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Seymour D. (Seymour Dwight) Thompson.

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; whether of duration and character to sustain a prescrijjtion, a

question of fact, § 1414.

how jury instructed in such a case, § 1415.
whether common, mixed or exclusive, a question of fact, § 1416.
whether under color of title, a question of law, § 1417.

whether held in good faith under such color of title,
a question of fact, § 1417.
territorial extent of an adverse possession, a question of fact,

§ 1418.
ouster of one co-tenant by another, a question of fact, § 1419.
abandonment of a prior possession, a question of fact, § 1420.
surrender of title to a chattel acquired by adverse possession,

a question of fact, 1421.
possession of land sufHcient to affect strangers with notice, a
question of fact, § 1422.
instructions as to adverse possession under color of title, § 1423-1430.
as to successorship of such adverse possession, §§ 1424, 1425.
similar instructions under Missouri statute, § 1426.
instructions on the theory of an acquisition of the fee by 20

years' adverse possession, § 1427.
instruction as to acquisition of personal property by five years'
adverse possession, §§ 1428-1430.
grantor remaining in possession of chattel renders sale fraudulent iu
law, § 2009.

doctrine that non-delivery is only /(rima/acje evidence of fraud,
§ 2010.
when possession delivered, when a question of law and when of fact,
§ 2014.

instruction as to a symbolical delivery in such a case, § 2015.
See Delivery; Non-Delivery.

POSSIBILITY OF INNOCENCE,

belief in bare possibility of innocence disqualifies juror, § 80.

POST-DATED,

judge decides whether check post-dated when offered in evidence,
§324.

POVERTY,

of jurors, not ground of challenging array, § 33, p. 31.

PREVIOUS TESTIMONY,

report of, used as memorandum to refresii recollection, § 401.



INDEX. 2319

PRE-EMPTIOX,

iibauclonraeut of xu'e-emption claim, when a question of law aud when
of fact, §§ 1441, 1442.
rUKFERENCE,

where evidence equally balanced, disqualifies juror, § 73.
PREGNANCY,

inspection in case of alleged pregnancy, § 852.
PREJUDICE,

as a ground of challenge, considered, § 72.
against crime, § 73.
against a particular crime, § 73.
a criminal business, § 73.
a particular unlawful act, § 73*.
a particular class of actions, § 78.
the defendant, § 73.
a particular defense, § 73.
a party's nationality, § 73.
a party's character, § 73.
socialists, communists and anarchists, § 73.
against circumstantial evidence, does not disqualify juror, when,

§ 75.
objection to juror for, waived unless made before verdict, § IIG, p. 118.
of witness, shown on cross-examination, § 450, et seq,
questions creating prejudice but not affecting credibility, excluded on
cross-examination, § 468.

PREJUDICIAL STATEMENTS,

a catalogue of prejudicial statements in argument which have produced
reversals, § 976.
PRELIMINARY QUESTION FOR COURT,

in admitting or rejecting evidence, §§ 318-338.

whether there has been an alteration of a negotiable instrument,
§ 1400.
"PREMEDITATED MALICE,"

defined, § 2209.
" PREMEDITATEDLY,"

defined, § 2209.
PREPONDERANCE OF EVIDENCE,

See Reasonable Doubt.
PRESCRIPTION,

duration and character of possession necessary to sustain, a question
for jury, § 1414.

how jury instructed in such a case, 1415.
prescriptive right to carry on business which would otherwise be a
nuisance, § 1808.
PRESENCE OF COUNSEL,

necessary, when additional instructions given, § 2367.



2320 INDEX.

PRESUMPTIONS,

presuraptiou of prejudice from error, § 406.
of error iu restricting right of cross-examiuatiou, § 406.
ou error, that witness tendered was material, § 682.
of contents of paper, iu case of failure to produce, § 794.
of fact, drawn by jury, § 1039.
of a delivery of a deed, § 1128.

of tlie acceptance of a deed poll by the grantee, § 1129.
that a deed was delivered at the time when it bears date, § 1130.
in favor of the validity of contracts, § 1139.

that title to goods does not pass iu case of inchoate sale, where any-
thing remains to be done to the goods, § 1166.
of payment, from lapse of time, § 1260.

what will repel this presumption, § 1260.

whether this presumption repelled, a question for court or
jury, § 1260.
of seaworthiness iu marine insurance, § 1318.

what circumstances raise presumption of unseaworthiness,

§ 1319.
nature of this presumption, § 1319.
presumptions of law, how far govern questions of intent, § 1334.
presuraptiou of title from long possession, § 1408.
no presumption of law as to the identity of monuments called for in

a deed, § 1467.
presumption of fraud in case of undue influence by superiors in fidu-
ciary relation, § 1936.
fraud not presumed but must be proved, §§'1938, 1939.
presumption of malice from the speaking of actionable words, § 2048.
presumption as to written instructions ou appeal or error, § 2385.
presumption of right acting on part of the jury, § 2616.

rpiantum of evidence to overturn tliis presumption, § 2616.
of prejudice fi'om misconduct of jury, § 2617.
of sanity, §§ 2523-2527.

of intending natural consequences of act, §§ 2528-2530.
of malice, from deadly weapon, §§ 2531-2533.
of theft, from possession of stolen goods, § 2534.
PRESUMPTION OF INNOCENCE.

See IlcASOX.xBLE Doubt.
PRINCIP.\L AND AGENT.

See Agency.
PRIOR SERVICE,

as a juror within a stated term, aground of challenge, § 58.
as juror in same or similar case, disqualifies, § 68.
PRIORITIES AMONG CREDITORS,

effect of delay in exposing property of debtor to judicial sale, § 1566.
PRIVATE ROAD,

existence of, question of fact, § 1891.



INDEX. 2321

PRIVILEGE,

of exemption from jury duty, § 11.

of service of copy of panel, §V7.

of having special venire in capital cases, "§21.

of witness set up by habeas corpus, § 170.

against subpoena duces tecum, § 177.

wiien exercised by attorney, § 177.
of witnesses, against arrest and service of process, § 185.
of member of congress, against process as a witness, ]§ 186.
of witnesses generally in respect of questions asked, §§ 285-312.
judge decides all questions of fact involved in claim of privilege,

§ 326.
of witness, not to answer criminating question, § 465.
against self-crimination, waived by accused taking the witness stand

§ 644 ; but see §§ 652-655.
books and papers not produced under New York statute to disclose

matters of privilege, § 745 ,
commenting on claim of privilege of accused on witness stand, § 989,

p. 776.
privilege of party in a civil case not to testify, § 993.
whether failure to testify may be alluded to in argument, § 993.
time during which member of parliament privileged from arrest,

§ 1557.
whether the occasion privileged in action for defamation, a question of

fact, § 2037.
whether a communication, although privileged, was malicious, a ques-
tion of fact, § 2038.
PROBABLE CAUSE,

importance of understanding, in actions for malicious prosecution,

§ 1599.
definitions of, §§ 1600, 1644, 1645, 1651.
knowledge of defendant, how far an ingredient, § 1601.
may depend on reasonable grounds of belief, § 1602.
jury how instructed as to its meaning, § 1603.
consciousness of prosecutor that he is in the wrong, § 1603.
judge not to submit each particular fact to jury, § 1604.
malice inferred from want of, § 1605.

but jury not bound to draw the inference, § 1605.
want of, not inferable from malice, §§ 1608, 1647.
binding over by a magistrate, evidence of, § 1609.
conviction, conclusive evidence of, § 1610.
a question of law, § 1613,

no matter how numerous or complicated the facts, § 1611.

origin of the rule, § 1615.

doubts as to the propriety of the rule, § 1616.

no definite rule of decision as to what is probable cause, § 1617.

sense in which it is a question of law, § 1618.

sense in which it is a mixed question of law and fact, § 1619.



2322 INDEX.

PROBABLE CAUSE — Coutinned.

^^•heu error of submitting question to jury no cause of reversal, § 1G23.
instrnctioa that jury may infer malice from want of, § 1(337.
instructions defining, §§ 1644, 1G45, 1651.

PROCESS,

■whether process and papers in the cause go out with jury, § 2582.
PROFESSIONAL SERVICES,

jury to ascertain nature of contract for, § 1109.
PROHIBITION,

remedy by, in contempt proceedings, § 147.
PROMISE,

to revive debt discharged by bankruptcy, §§ 1267, 1274.
to revive debt barred by limitation, § 1268, et seq,

judge decides whether promises were made, such as will exclude con-
fessions, § 328.
PROMISSORY NOTE,

purpose for which a note is delivered and accepted, §§ 1241, 1242, 1243,
1254, 1255.

whether in satisfaction or as collateral security, § 1254.
whether in payment of a partnership debt, § 1254.
whether in payment pro tanto of a note, § 1254.
whether in payment or purcha.se of a note, § 1255.
whether given to extend time or as collateral security, § 1241.
whether in renewal of former note, §§ 1242, 1243.
alterations in, after delivery, §§ 1399-1403.
fraud in inducing an illiterate person to sign for an excessive amount,.

§ 19S1.
See Negotiable Instruments.

PROOFS,

stipulation to submit on, construed, § 202.

PROOFS OF LOSS,

sufficiency of, under insurance policy, question for jury, § 1297.

instruction as to fraudulent proofs of loss, § 1298.

waiver of preliminary proofs of loss, question for jury, § 1299.

PROPERTY,

privilege of witness does not extend to protection of, § 288.

PROPOSAL,

for contract, construed by court when in writing, § 1114.

PROPRIETY,

bounds of, not to be exceeded on cross-examination, § 415.

PROSECUTING ATTORNEY,

effect of promise of not to prosecute, upon privilege of witness, § 295.
not to object to evidence in doubtful cases, § 711.
a discourse concerning his duties on trials, § 711.
entitled to assistance of private counsel, § 1010.



INDEX. 2323

PKOSECUTOR,

offer of, to settle, not shown on cross-examination, § 454.
PROSTITUTE,

whether a woman is a pi'ostitute, question of fact, § 2159.
court cannot lay down what degree of uuchastity creates, § 2159.
PROTECTION,

of witnesses against arrest and service of process, § 185.
PROVINCE OF COURT AND JURY;

competency of juror, a mixed question of law and fact, § 118, p. 126,
judge must decide all preliminary questions of fact involved in admis-
sibility of evidence, §§ 318-338.

although decision would decide the main issue, § 319.

admissibility of copy of instrument sued on, existence
of original in dispute, § 320.
error to submit to jury these preliminary questions of fact,

§ 321.
judge must be satisfied by competent proof, § 322.

illustration in question of competency of witnesses,
§323.
must decide questions of fact involved in competency of docu-
mentary evidence, § 324.

whether witness unable to attend, so as to admit de-
position, § 325.
questions of fact involved in claim of privilege, § 32(3.
questions of fact preliminary to admission of dying

declarations, § 327.
whether threats or promises were made such as will

exclude confession, § 328.
question of fact necessary to admission of evidence of

similar acts, § 329.
question of fact as foundation for admission of evidence

of usage, § 336.
question of fact preliminary to determining whether a

question is leading, § 337.

further illustrations, § 338.

questions of law for the court, §§ 1015-1031.

the ends of judicial administration, § 1015.

facts ascertained, judge pronounces the conclusion of law,

§ 1016.
judge must declare law and not leave it to jury, § 1017.

but error not reviewed unless excepted to, § 1018.
nor unless prejudicial, § 1019.

nor where jury decide question of law rightly, § 1020.
judge decides ail questions on an agreed case, § 1021.
but question reserved for appellate court should present a

pure question of law, § 1022.
judge passes upon the admissibility of evidence, § 1023,



2324 INDEX.

PROVINCE OF COURT AND JURY — Coutinued.

decides as to the competency of witnesses, § 1024.
Tvlietlier lie may submit tlie question to tlie jury, § 1025.
not bound to hear objections to competency and
sufficiency at the same time, § 1026,
judge construes the pleadings, § 1027.

state the issues to the jury, § 1027.
decides whether there is a variance between the
pleadings and proof, § 1028.
judge decides facts shown by the records of the court, § 1029.
tries issue on plea of mil tiel record, § 1029.
instructs jury as to dates fixed by records of court,

§ 1029.
does not submit to them question whether money

paid into court, § 1029.
decides" fact on motion for order nunc pro tunc, § 1029.
withholds, from jury facts admitted or not disputed,
§ 1030.
what is meant by a mixed question of law and fact.
§ 1031.
questions of fact for jury, §§ 1035-104C.

what evidence was in fact given, § 1035.

knowledge of a witness, § 1036.

weight, probative effect and sufficiency of evidence, § 1037.

subject to limitation of evidence by instructions, § 1037.

jury pass upon credibility of witness, § 1038.

rule applicable both in civil and criminal cases,
§ 1038.
decide what inferences of fact shall be drawn from other

facts in evidence, § 1039.
decide particular question or points of fact, § 1040.
pass on effect of contradictoiy admissions previously made,

§ 1041.
decide whether a witness an accomplice, § 1042.
pass upon sufficiency of corroborative testimony, § 1043.

and of impeaching testimony, § 1044.
decide what inference is to be drawn from failure to produce

evidence, § 1045.
make deductions from the appearance of witnesses, § 1046.
exi.stence and iuterpi'etatiou of laws, ordinances, rules and customs,
§§ 1050-1061.

judge interprets written laws, § 1050.

illustration of this rule, § 1051.
declares the meaning of words in statutes, § 1052.
decides whether a pretended act of legislature was duly passed,

§ 1053.
interprets foreign laws, § 1054.

which must be proved as other facts, § 1054.



INDEX. 2325

PEOVINCE OF COURT AND JURY — Continued.

whether such proof addressed to judge or
jury, § 1054.
decides existence of municipal ordinances, § 1055.
interprets municipal ordinances, § 105G.
decides Avliether such ordinances are reasonable; and therefore

valid, § 1057.
jury decide existence of particular usage, § 105S.

and whetlier tlie parties contracted with reference to

it, § 1058.
except general usages, which are noticed judicially,

§ 1058.
decide extent of local custom, § 1058.
inferences from course of dealing, § 1058.
mining laws and customs, § 1059.
court interprets by-laws of private societies, § 1060.
such as boards of trade, § lOtiO.

decides law of particular case, as announced by appellate
court, § 1061.
interpretation of private instruments, § 1065, et seq.
generally interpreted by the court, § 1065.
reason of the rule, § 1066.
error to submit such questions to jury, § 1068.
what instruments the rule embraces, § 1067.
rule where two or more instruments are to be construed

together, § 1067.
characterization, interpretation and effect of wills, § 1069.
whether executed with proper formalities, § 1069.
whether testamentary in character, § 1069.
whether attestation in proper form, § 1069.

but testamentary capacity is a question for

the jury, § 1069.
so in case of doubt whether it is a deed or

will, § 1069.
so whether intended to cover personal prop-
erty, § 1069.
interpretation of public records, for the judge, § 1071.
specifications of a jmtent, § 1070.

whether a spiral wheel or spiral propeller meant,
§ 1070.
interpretation of judicial records, for the judge, § 1071.
validity of letters of administration, § 1071.
of order of sale in orplians' court, § 1071.
Interpretation of degree, § 1071.
of an award, § 1071.
interpretation of contracts by correspondence, for the judge, § 1072.

where correspondence qualified by conduct, question for jury,
§ 1072.



2326 INDEX.

PKOVINCE OF COURT AND JURY — Continued.

observations on the rule tliat the question is for the court,

§ 1072.
exception to rule, § 1074.
meaning of words and phrases, usually for the judge, § 1075, et seq.
warranty in policy of insurance, § 1075.

"insupportable," " outrageous," in a statute relating to di-
vorce, § 1075.
of words in actions for slander, § 1075.
meaning of words not used in their ordinary sense, referred

to jury, § 1076.
technical, other than legal, terms, § 1076.
words used in particular trades, § 1076.
language of commercial correspondence, § 1076.
instances under this rule, § 1077.
promise to pay in " cash notes," § 1078.
view that jui-y must declare meaning of such words and court

expound the contract, § 1079.
technical terms known only to experts, § 1080.

when expert testimony called in to aid the court, § 1080.
meaning which the parties have placed upon their contract, for
the jury, § 1081.

court to instruct jury as to inferences, § 1082.
rule where parol evidence is required to explain ambiguities,

§ 1083.
admixture of parol with written evidence draws the whole
question to jury, § 1083.

as where parol evidence is admitted to explain a will,

§ 1084.
how jury instructed in such a case, § 1085.
contract partly in writing and partly in parol, construed by

jury, § 1086.
receipts for money paid — conclusiveness of for jury, § 1087.
meaning of words varied by evidence of usage, question for

jury, § 1088.
mercantile contracts explained by usages of trade, question
for jury, § 1089.

instance of an erroneous instruction under this rule,
§ 1089.
correct reading of written instruments, identity of words,
legibility, § 1091.

generally submitted to jury, § 1091.
sometimes determined by court, § 1091.
reading of written instruments which contain blank
spaces, question for court, § 1092.

but sometimes referred to jury, § 1093.
as Avhere there are bhmks in the descriptive
callsof a deed, § 1094.



INDEX. 2327

PROVINCE OF COURT AND JURY — Continued.

whether au iustrumeut sealed or unsealed submitted to jury, § 1095.

so whether altered by addition of seal, § 1095.
validity of written instrument, § 1090.

when determined by inspection, question for court, § 109<).
when dependiuii on extrinsic evidence, for jury, § 109G.
whether a contract is against public policy, decided by court, § 1097.
inferences from writings put in evidence to show extrinsic facts,

question for jury, § 1098.
interpretation of verbal speech and oral contracts, §§ 1105-1109.
existence and terms of express contracts, §§ 1112-1143.
in respect of sales of personal property, §§ 1160-1189.
In respect of warranties in sales of chattels, §§ 1195-1210.
in respect of questions arising in the law of commercial paper, §§ 1215-

1245.
in respect of payment, §§1251-1203.
in respect of accord and satisfaction, § 1250, et seq.
in respect of promise to revive debt discliarged by baniiruptcy, §§ 1267,

1274.
in respect of promise to revive debt barred by limitations, § 1268, et seq.
questions in the law of tire insurance, §§ 1279-1308.
questions in the law of life and accident insurance, §§ 1310-1310.
questions in the law of marine insurance, § 1318-1328.
when intent to be declared by court and when by jury, § 1323-1363.
questions of authority, agency and ratification, §§ 1368-1387.
in respect of the alteration of written instruments, §§ 1394-1404.
in respect of the question of possession, §§ 1407-1430.
waiver, abandonment, laches, acquiescence, §§ 1435-1448.
questions of identity and resemblance, §§ 1450-1457.
questions of place, locality, boundary, identity of laud, §§ 1461-1484.
questions of notice, actual and constructive, §§ 1 487-1503.
description, quality, characterization, §§ 1507-1526.
reasonable time, when a question of law and when of fact, §§ 1530-1566.
province of court and jury in respect of reasonable things, §§ 1567-1588.
in actions for malicious prosecution, §§ 1595-1623.
questions of law and fact respecting negligence, §§ 1001-1713.
precedents of instructions in these cases, § 1718-1825.
questions in respect of the liability of carriers and other Ijailees,
§§ 1830-1867.

precedents of instructions in such cases, §§ 1872-1881.
questions respecting nuisance and obstruction, §§ 1886-1925,
in cases of fraud, §§ 1930-2019.

distinction between fr.aud in fact and fraud iu law, § 1930.
court adjudges when self-evident, § 1931.
and whei'o facts indisputable, § 1932.

unless depending upon a variety of circum-
stances involving motive or intent, § 1933.
or upon conflicting evidence, § 1934.



2328 INDEX.

PROVINCE OF COURT AND JURY — Continued.

whether there is evidence tending to show fraud, a

question of law, § 1935.
situations in which the law presumes fraud, § 1936.

in cases of undue iuflueuce by fiduciary in a
superior position, § 1936.
when fraud declared as a question of interpretation of

writings, § 1937.
doctrine that fraud in fact is not presumed, but must

be proved, § 1938.
an instruction presenting the rule, § 1839.
fraud in fact always a question for the jury, 1940.
illustrations, § 1941.
in matters of crime, §§ 2154-2189.
of the power to order nonsuits, §§ 2225-2229.
power of court to direct verdict, §§ 2242-2272. (See Directing the

Vekdict.)
invading province of jury in instructions, §§ 2280-2304.
judge must not trench upon province of jury, in giving them cautionary
instructions, § 2420.

nor direct attention to the credibility of particular witnesses,
§ 2421.
PROVOCATION.

See Manslaughter.
PROXIMATE AND REMOTE CAUSE,

in actions for damages for negligence, §§ 1C76, 1677, 1678.

when a question for the judge and when for the jury, §§ 1677,

1678.
where the evidence fails to connect the negligence with the

accident, § 1678.
instruction as to causal connection between wrong and injury,

in action for negligence, § 1720.
as to whether plaintiff's or defendant's negligence was the
proximate cause, § 1722.
whether a person acted upon false representation or upon liis own
knowledge, question for jury, § 1947.

PRUDENCE,

in relying upon fraudulent representations, question for jury, § 1709.

PUBLIC CORPORATIONS,

members of, when disqualified as jurors, § 63.

PUBLIC DOCUMENTS,

proved by copies, § 164.

PUBLIC LANDS,

whethei location upon followed up with reasonable diligence, § 1558.

PUBLIC OFFICE,

abandonment of, a question of law, § 1444.



INDEX. 2329

PUBLIC OFFICER,

not required to produce public documents under subpoena, § 164.

testifying as a witness need not produce coinmissiou, § 308.
"PUBLIC PLACE,"

whether a place is a public place within the meaning of a statute,
mixed question of law and fact, § 1511.
PUBLIC POLICY,

question of for court and not for jury, § 1097,

to set aside verdicts, where there has been tampering, § 2560.
PUBLIC RECORDS,

interpretation of, by the court, §§ 1070, 1071.

PUBLIC ROADS.

See Highways.

PUBLIC TRIAL,

right of, when not violated by excluding spectators, § 216.
PUBLIC USE,

whether the use for which land taken is a public use, question of law,
§ 1508.
PUBLIC WHARF,

whether a wharf in a city is a public wharf, question of fact, § 1516.
PUBLICATION,

what constitutes a newspaper publication, § 2054.
PUBLISHING,

knowledge of the defendant in publishing a libel, question of fact,
§ 2043,
PURCHASE,

whether a transaction amounted to the payment or purchase of a

note, a question of fact, § 1255.
whether an act intended as redemption or purchase, a question of fact,
§ 1348.
PUBPBESTUEE,

of public highways, §§ 1886, 1887.

Q.

QUALIFICATIONS,

of talesmen, §>27.

of sheriff and deputies summoning talesmen, § 27.
QUANTUM OF PROOF,

See Evidence; Reasonable Doubt,
QUANTUM MEBUIT,

value of work done or materials furnished, question for jury, § 1122.
QUESTION RESERVED,

should present a pure question[of law, § 1022.



2330 INDEX.

QUESTIONS AND ANSWERS,

mode of examining witnesses by, dispensed -with in discretion, § 354.
QUESTIONS OF FACT,

judges proliibited from charging on, § 2280.
QUESTIONS OF LAW AND FACT,

as to what questions are questions of law and what are questions of
fact, see Province of Court and Jury.

QUIETING TITLE,

nonsuits in statutory actions to quiet title, § 2236.
QUIT-CLAIM DEED,

purpose of giving, a question for jury, § 1123.

parol evidence heard on the question, 1123.
"QUOTIENT" VERDICTS,



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