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A TREATISE



ON THE



LAW OF TRIALS



IN ACTIONS



CIVIL AND CRIMINAL



By SEYMOUR D. THOMPSON, LL. D.



IN TWO VOLUMES
VOL. II



CHICAGO
T. H. FLOOD & COMPANY

1889



/



T

T377<^t



Entered according to Act of Congress, in the year 1888, bj

SEYMOUR D. THOMPSON,
lu the office of the Librarian of Congress, at Washington.



THE LA W OF TJ^tlALS.



VOLUME II.



TITLE V.-CONTINTJED



(1105O)



609835



lloiJ PROVINCE OF COURT AND JURY. [2 Thomp. Tr.,



CHAPTEE LT.

DESCRIPTION: (JUALITY: CHARACTERIZATION.
Sectiox

1507. Quostious of Fact.

l."»OS. EniiuentDoinaiu: "Whether a Use is a Public Use.

1509. Eminent Domain: Whether an Appropriation by the State was for Per-

manent or Temporary Use.

1510. Utility of a Public Highway.

1511. "SVIiether a Place is a "Pu))lic Place," within the Meaning of a Statute.

1512. Whether a Person Undertaking to Transport Goods is a Common or

Private Carrier.

1513. Whether a Stream Navigable for Logs.

15U. The Uses to which Demised Premises are Put.
1515. Whether a Particular Place of Business is a Bank.
151<!. Whether a Wharf in a City is a Public Wharf.

1517. Whether " Flash Boards " are Part of a Mill-Dam.

1518. What is an ''Appurtenance" to a Steamboat.

1519. Whether a Dwelling House is " Near " a Particular Place.

1520. What Fixtures are Removable. «

1521. Whether Particular Property is PartnersJiip or Individual Property.

1522. Extent of AVater Privilege set off in Partition.

1523. Continuance in Business.

1524. The Question of Sanity.

1525. Wliether a Particular Game is a Game of Chance.
152<;. Name — Idem Souans.

§ l.>07. Questions of Fact. — Matters of description, charac-
ter or (luality are closely allied lo matters of identity. They are
always questions of fact for a jury. Instances of these will be
^'ivcn in the present chapter; several others will be given in the
chapter relating to crimes. ^

§ 1508. Eminent Domain : AVlietlier a Use is a Public Use.

I iidcr Am('ri<-;ui constitutions, which j)i-ovi<l(' that private prop-
erty shall not })(> taken for ))ul)li(' use without just compensation,
where the (jucstion relates to the validitv of a statute authorizinc^

' Post, §2157, 2159, et seq.



Tit. V, Ch. LI.] description: quality. 1107

the condemnation of private property for a particular purpose,
the question whether the use prescribed in the statute is a jjublie
use, is, as between the judicial and legislative branches of the gov-
ernment, a judicial question} But, so far as the writer is
aware, this question has never been held a question of fact for
the jury; since, so to hold would present the anomaly of
allowing juries to overrule acts of the legislature. Under the
})resent constitution of Missouri,^ the question whether the use
for which private property is sought to be condemned is a
public use, so as to authorize its condemnation, is a question for
the court, any legislative declaration to the contrary notwith-
standing. ^ Prior to this constitutional provision, it was held that
the legislative declaration that the use was a public use, Avas con-
clusive;* and it is said that, if the legislature has declared the
use or purpose to be a public one, its judgment will be re-
spected by the courts, unless the use be palpably private.* The
court will decide this question, under the Missouri constitution,
without the aid of a jury.^

§ 1509. Eminent Domain : Whether an Appropriation by
the State was for Permanent or Temporary Use. — In Penn-
sylvania the right of the State to take and appropriate lands
required .in the construction and operation of such public improve-
ments as canals, is well settled; but there is a recognized
distinction between appropriations which are required for perman-
ent use and occupation, and those needed for temporary pur-
poses only. As to the latter, the title of the owner is not
divested, for his enjoyment is only temporarily interrupted ; as to
the former, the title acquired by the commonwealth is an abso-
lute estate in perpetuity .'^ Where it becomes a question, in an

1 Concord Railroad v. Greely, 17 N. « Savannah v. Hancock, sxiprn.

H. 47. V Pennsylvania &c. R. Co. v. Bilnngs.

2 Const. Mo., art. II., § 20. 94 Pa. St. 40, 44; Com. v. McAllister. 2

3 Savannah v. Hancock, 91 Mo. 54. Watts (Pa.) 190; Haldeman v. Railroad
* County Courts. Grisw^old, 58 Mo. Co., 50 Pa. St. 425; Craig v. Mayoi of

175; Dickey v. Tennisou, 27 Mo. 373. Allegheny, 53 Pa. St. 477; Robinson r.

^ Dill. Mun. Corp. (3rd ed.), § GOO; West Pa. R. Co., 72 Pa. St. 31(5.
Mills Em. Dom., § 10.



1108 PUOVIXCE OF COURT AND JUHV. [2 TllOlup. Tl.,

action of ejectment, whether the commonwealth acquired title to
jiroperty which is appr()i)riat(Ml, for temporary purposes or for
permanent use autl occupancy, it is a question of fact exclusively
for the jury}

§ 1510. Utility «£ a Public Highway. — In what are called
'' highway cases," that is, proceedings to open a highway, the
question whether the proposed highway is of public utility is a
question of fact for the jury.^

§ 1511. Whether a Place is a "Public Place," within the
Meaning of a Statute. — It has been held, under a statute pro-
viding for posting notices of sale for taxation of the lands of non-
residents, which requires such notices to be posted in some
"public place" in the town, that the question whether a
particular place is to be considered a public place, within the
meaning of such a statute, is a question pai'tly of fact and jjaiHb/
of law. The nature and situation of the places and the cases to
which they are applied are matters of fact, to be settled by a
jury. But when these are settled, whether the place is to be
considered a public place within the intent of the statute is purely
a question of law; ^ and the like doctrine was ap})lied in the case
of a statute providing for the posting of notices of the sale of an
equity of redemption in land, which required such notices to be
posted up at " two of the most public places in the town in which
the property is situated." ^

§ 1512. "Whether a Person Undertaking to Transport Goods
is a Common or Private Carrier. — What constitutes a common
carrier is said lo l)e a question of law. Whether a party comes
within that delinition, is a question of fact for a jury.'' It has
been held })ro))er, in a doubtful case, to leave it to the jury
to decide, under i)roi)er definitions, what constitutes in law a

' rennsjivania &«•. \{. (. u. u. Bil- * Russell «. Dyer, 40 N. H. 173, 187.

liuj^s, ;i4 I'a. St. 40. 6 reuuewill r. CuUeii, 5 Harr. (Del.)

2 Kyle r. .Miller, 108 lud. 90. 238,241. Compare Mclleury i;. Rail-

■•- Tuld V. Siulth, 3 N. 11. 178. road Co , 4 Ilarr. (Del.) 418.



Tit. V, Cli. LI.] description: quality. 1109

common currier, jiud what constitutes one who undertakes to
carry goods for hire, a private carrier merely, — whether a de-
fendant, sued for a loss of goods, was a common or a private
carrier.^

§ 1513. Whether a Stream Navigable for Logs. — Whether
a stream is navigable for logs has been held a question for a jury?

§ 151-1. The uses to which Demised Premises ai*e put. —

Where premises were demised upon a condition that no intoxi-
cating liquors should be sold thereon, an unauthorized sale by a
third person upon the premises, where the lessee is chargeable
with no fault or negligence, will not work a forfeiture of the
term, and the question of the lessee's knowlethje of such sales,
and of his negligence or diligence in relation thereto, is wholly
one of fact for the jury ?

m

§ 1515. Whether a Particular Place of Business is a Bank. —

"Whether a place of business in a city called the Bank of the
Metropolis, and having that name over the door, the same being
a place where notes are discounted and accounts are kept with
depositors, is a bank, is what is frequently termed a mixed ques-
tion of law and fact. What is a bank is said to be a question of
law, but the -sufficiency of the evidence to prove that the par-
ticular place is a bank, is for the jury. It is therefore held
error for the court to instruct them that it was a bank, for this
included a decision upon the truth of the evidence.*

1516. Whether a Wharf in a City is a Public Wharf . —

Whether a wharf in the city of Baltimore was a public wharf or
not, has been held a question of fact, which the court cannot
assume as established, although the testimony, if credited, might
seem clearly to establish it.^ It has been held in Connecticut,
after an extended discussion of the subject, that the mere fact

1 Haynie V. Baylor, 18 Tex. 498, 507. MVay v. Butterworth, 106 Mass.

2 Haines v. Welch, U Ore. 319. 75.

3 Collins Mau. Co. v. Marcy, 25 ^ Brown i'. Ellicott, 2 Md. 75, 81.
Conn. 242.



1110 piioviNCK OF couKT AND JURY. [2Thomp. Tr.,

that the owner of u landing in a highway has erected a wharf
thereon, at a point of contact between the highway and navigable
water, does not, ipso facto, make the wharf a public wharf, so as
to exclude his proprietary interest ; but that, " although a public
landing at the Incu^ in quo may have existed ^n-ma/acte, at the
time tiie plaintiff's ancestor erected the wharf, still, whether it
was neetled for the jjurpose, so that the wharf could not become
the property of the plaintiff, would depend upon circumstances,
and is a question of fact to be determined by the jury." More
freuerally stated, the ruling was that, where a highway is laid out
to navigable water and there terminates, the terminus may pre-
suniablv be regarded as a public landing incidental to the high-
way . lUit where a highway, running from place to place, is laid
al(»nir the shore of a navigable stream, and in immediate contact
with it for a considerable distance, the reason for the presump-
tion does not exist. The question in such a case depends on the
ciri'unislances, and is one of fact for the jury.^

§ ir.lT. AVhcther " Flashboards " are part of a Mill-dam. —

In an action against the owner of a mill-dam for the tlowage of
thi' plaintiffs meadow, it has been held a question for the jury ,
whether "■ Jlashhoards'" upon the defendant's dam were or were
not a part of the dam, or an appurtenance to i\ ; and that the court
ought to instruct the jury that, if they should find them to be a
part of the dam, then the defendants could not be sued for main-
taininir them, in the condition in which they were w^hen pur-
chased. with(»ut previous notice that they had no right to use
them. Ijut if they found them to be no part of the dam, and
oiil\- placed iipmi it for occasional use, as the state of the
water might make them convenient or necessary, then the raising
of the water by means of them to a greater height than the
defeixlants had a law fid right to raise it, to the injury of the
plaintiH", would render the defendants liable without any such
notice, although they originally purchased the dam with Hash-
boards ujion It .•'

' Hiirrowh r. (Jalliiti, :vj ("oiui. 4'.t.'5, ^ Noj-es r. Stiilmuu, 24 Conn. 15,

601. '11.



Tit. V, Ch. LI.] description: quality. 1111

§ 1518. AVhat is an "Appurtenance" to a Steamboat. —

So, under a former statute of Missouri, known as the " Boat
and Vessel Act," the question, what was and what was not
an appurtenance of a steamboat, was regarded as a question
offf^cl, to be established by evidence, and a fit subject of inquiry
by a jury; since the statute nowhere defined what was meant by
the term. It must therefore be referred to the intention of the
defendant (the owner) and the general understanding of the com-
munity who are conversant with the business of steamboatinof.^

§ 1519. Whether a Dwelling- House is "near" a Particular
Place. — A statute of New York^ provides that " if any passen-
ger shall refuse to pay his fare, it shall be lawful for the conduc-
tor * * * to put him and Kis baggage out of the cars, using no
unnecessary force, at any usual stopping place, or near any dwell-
ing house, as the conductor shall elect on stopping the train," In
an action for damages for putting off a passenger in violation of this
statute, the plaintiff testified that there was no house or crossing
near the place where he was put off, and the conductor testified
that there was a farm house 25 rods from the crossing: and 30 rods
from the train, which testimony was corroborated by other tes-
timony. The court submitted the question to the jury upon
proper instructions, whether there was a dwelling house near the
place where the plaintiff was put off, within the meaning of the
statute. This ruling was affirmed in General Term, — the court
saying: " We can hardly say, as matter of law, that a dwelling
house twenty-five or thirty rods distant, upon another highway,
is, within the contemplation of the statute, a near dwelling house
in a dark night, its vicinity being unknown to the passeno-er."^

§ 1520. What Fixtures are Removable. — The question as -
to whether a given article is removable by a tenant, as a fixture,
has been held a question for the jury, under proper instructions.*

1 Amis V. Steamboat Louisa, 9 Mo. s Loomis u. Jewett, 35 Huu (N. Y.),
629, r,32. 313.

2 New York Laws 1850, chap. 140, < Ambs v. Hill, 13 Mo. App. 585.
§35.



1112 PROVINCE OF COURT AND JURY. [2 Thomp. Tl'.,

The quest ion whether the removal can be made so as to leave the
freehold in as good a condition as before, is also a question for
the jurv.^

§ 1521. Whether Particular Property is Partnership or In-
dividual Property. — The question whether, under proceedings
in insolvency instituted by a. surviving partner, money found
upon the person of a deceased partner and mingled with other
money which is admitted to be his own, is partnership property
or private property, is a question of fact, which, if a dispute
arises in reference to it, must be submitted to the jury.-

§ 1522. Extent of Water Privilege set off in Partition. —

The report of commissioners in- a proceeding for a partition
contained the following clause, descriptive of a portion of the
estate set off to one of the parties: " Also a water privilege now
occupied by the saw-mill called Franklin." In an action by the
})r()prietor of another mill, against the proprietor of the mill called
Franklin, to recover damages for diversion of a portion of the
water from the plaintiff's mill and obstructing his race, it was
held that the extent of the water privilege granted by the words'
quoted was a question of fact for the jury.^

§ 1523. Continuance in Business. — Where a servant agrees
to work for a master at an advanced rate for the second year if
the master continues in business, the question whether he does
continue in business is, in an action for the servant's wattes, a
question for the jary.^

§ 1524. The Question of Sanity. — " The question of sanity,"
said .Mcllcn, C. J., " depends on a nuiltitudc of circumstances,
various and minute, peculiar and contradictory, and where lights
and shades are sometimes almost lost in each other. Besides, it

> Ambs V. Hill, 10 Mo. App. 108. ^ Muoroe v. Gates, 42 Me. 178

See Tay. Land. & T., § 550; Ewell on 181.
Fixtures, pasiiim. 4 Collett u. Smith, 14:5 Mass. 473.

* Duiriii V. Coolidge, 3 Allen
(Mass.), .555.



Tit V. Ch. LI.] description: quality. 1113

is, porhaps, .'ilinost impossible for :i jiuliie to draw any certain
divisional line, and j)resent it beforehand for the regulation of
the jury. The line of fc5ei)aration between the powers and prov-
inces of court and jury, in the decision of such cases, we appre-
hend, it is also equally difficult to draw ; and in those cases, cited
by counsel for the api)cllant, from the celebrated speeches of
Erskine, to show the various manners in which insanity displays
itself and operates on the powers of the mind, it ap})ears that
the subjects of investigation were then before the jury for de-
cision." The court accordingly held that the trial court com-
mitted no error, on the trial of an issue of devisavit vel non, in
refusing to give the following instruction, requested by the ob-
jector: "That if an illusion was fixed upon the mind of the
testator as a reality, for months before and up to the time of
executing the will, and his conduct was at any time influenced
by such illusion, he was not of sane mind. That if the testator
w,as under the continued delusion for months previous to the
time of the execution of the will, and during that time, that he
believed an illusion of the imagination to be a reality, he was
not of sane mind. That if he really, for months before and u})
to the time of executing the Avill, believed that he was repeatedly
visited by a superhuman being, whom he saw, felt, heard and
conversed with, as some of the testimony tended to show, then
he was not of sane mind." But, instead of giving this, the judge
instructed the jury that the law, upon the facts assumed by the
counsel for the objector, had laid down no certain rules, and
prescribed no deductions necessary to be made from them ; but
that these facts, if proved, together with the testimony in the
case, must be left to their sound discretion, as a matter of evi-
dence, from which to determine the issue before them." It was
held by the whole court that in these rulings there was no error.
The court summed up its conclusions in the language of Starkie : ^
" The question of sanity is so peculiarly a question of fact for
the decision of a jury, that a will of real estate cannot be set
aside in equity, without being first tried at law on an issue of

i 3 Stark. Ev. 1707.



1114: puoviNCE OF COURT AXD JURY. [2 Tliomp. Tr.,

devisavil vel non.'"' ^ In Kentucky there is a decision ^vhicli
seems to be quite out of line with authority. It was an appeal
to the circuit court, from a decision of the probate court rejecting
a will. A trial by jury had taken place in the circuit court, re-
sultino; in a finding in favor of the will, on Avliich finding a
judgment had been rendered, from which the heirs had appealed.
In the opinion of the Court of Appeals the following language
was used by Stites, J.: " In all cases involving the capacity of
a i)erson to make a will, the inquiry is, was such person, at the
time of making and publishing the paper offered as his will, of
sound and disposing mind? The degree of capacity necessary
to make a valid will must be determined by the courts of the
country; and, in ascertaining whether such capacity exists, they
are to be governed, necessarily, by rules of evidence aj^plicable
to such cases, and deemed authoritative, because founded upon
reason and experience, and so recognized by enlightened jurists."
This conclusion seems to be founded upon the following pro-
vision of a Kentucky statute, applicable to such cases: "The
Circuit Court and Court of Appeals shall try both law and fact,
but the Court of Appeals shall not hear or adjudije auv matter
of fact pertaining thereto, otJier than such as may be certified
from the circuit court." The court therefore proceeded to ex-
amine the facts, and, being of opinion thereon that the verdict
of the jury was right, affirmed the judgment without considering
the correctness of the instructions.- The reporter cites in a foot-
note a manuscript opinion in the matter of Hooten's will, de-
livered by the same court in 1X57, where the court decided such
a contest upon the merits, irrespective of the verdict of the jury
and the instructions of the circuit court.

§ 1525. Whether a Particuhir Game is a Game of
Cliaiico. — It seems to be a question of fact for a jury whether
a i)articular game, — as for instance, the game called rondeau,
is a game of chance, within the meaning of a criminal statute
against gaming.^

» Ware r. Ware, 8 Me. 42, 4(1, 00. ^ Glascock v. State, 10 Mo. 503.

'^ Overton i'. Overtou, 18 B. Mon. 61.



Tit. V, Cli. LI.] description: quality. 1115

§ 1526. Name — Idem Soiiaiis. — Where there is a ques-
tion whether two names differently spelled, or two different
spellings of the same name, are idem sonans, it is said to be
governed by the following rule : If two names, spelled differ-
ently, necessarily sound alike, the court may, as matter of law,
pronounce them to be idem sona)is; but if they do not necessa-
rily sound alike, the question whether they are idem sonaiis is a
guesiion of fact for the jury.^ Thus, it has been said that, as a
matter of law, Darius and Trius are idem sonans, Coleridge, J.,
saying: " If the question had been left to the jury, there can
be no doubt that a Dorsetshire jury would have found that
Darius and Trius were the same name." ^ On the other hand,
in a criminal case, where a witness testified that his name was
spelled ^lalay or Maley and that he was called Maley, but never
Mealy, — the court left it to the jury to say w'hether the name
proved Avas idem sonans wnth the one in the indictment, and it
was held that this ruling was rio;ht.^ In another case the court
submitted to the jury the question w'hether the name Celestia
and Celeste were usually and ordinarily pronounced alike, and
it was held proper.*

1 Cora. v. Warren, 143 Mass. 568; ^ Com. v. Donovan, 13 Allen
Eeg. V. Davis, 4 New Sess. Cas. Gil; (Mass.), 571.

«. c. 5 Cox C. C. 237; 2 Den. C. C. * Com. v. Warreu, 143 Mass. 568.

233. See also Com. v. Jeuuings, 121 Mass.

2 Reg. v. Davis, supra. 47.



11 10 PKOviN'CE OF COURT AND JURY. [2 Tliomp. Tr.»



CHAPTER LIL

REASONABLENESS.



Article I. — Reasonable Time.
Article ll. — Reasonable Things.



Article I. — Reasonable Time.

Section

1530. General Observations.

1531. Meaning of the Words " Reasonable Time."

1532. As a Question of Interpretation: Meaning of Words -nhicli Imply Im-

mediate Action.

1533. Reasonable Time for Performing a Contract: Tlie General Rule Stated.

1534. For Delivery of Goods by Common Carrier.

1535. Other Illustrations.
153G. For Making Payments.

1537. "Unreasonable and Vexatious Delay of Payment."

1538. Parol Evidence Admissible on the Question.

1539. For Making a Tender: A Question of Law.

154rO. Rule where the Tender is to be Made at a Certain Place.
/^To IlTy or the Rescission or Disafflrraauce of a Contract obtained by Fraud.
^ToTlfrFor the Rescission of a Contract of Sale for a Breach of Warranty.

1543. For the DisafGrmance after Coming of Age of Couti-acts made during

Infancy.

1544. For tlie Disaffirmance of the Unauthorized Acts of an Agent.

1545. For tiie Return of Money Received under Rescinded Contract.
154G. For the Return of Counterfeit Money.

1547. For Objecting to au Account Rendered.

1548. For the Acceptance of au Office.'

1549. For the Acceptance of Shares of Unpaid Stock by a Bankrupt

Assignee.
15.50. Reasonable Notice to Quit a Yearly Tenancy.

1551. Reasonable Notice of Discontinuance of Contract of Service.-

1552. For Applying for Letters of Administration. ,

1553. For Removing Goods l)y Executor from Mansion of Testator.

1554. For Removing Trespassing Cattle.

1555. Consideration: Reasonable Time of Forbearance to Ijring Suit.



Tit. V, Ch. LIT.] REASONABLE TIME. 1117

Sectiox

looC). Priorities amoug Creditors: Delay iu Exposing Property to Judicial
Sale.

1557. Time during -which Member of Parliament privileged from Arrest.

1558. Whether a Settler on Public Land has followed up his Location with

Reasonable Diligence.

1559. In Matters arising iu the Course of Judicial Administration.
15(>0. Keasouable Time for holding Prisoner for lie-examination.

1561. For Passenger to call for and Receive his Baggage after Transit



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