Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 2) online

. (page 122 of 126)
Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 122 of 126)
Font size
QR-code for this ebook

; 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.


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


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


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


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

INDEX. 2319


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

where evidence equally balanced, disqualifies juror, § 73.

inspection in case of alleged pregnancy, § 852.

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.


a catalogue of prejudicial statements in argument which have produced
reversals, § 976.

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

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

defined, § 2209.

defined, § 2209.

See Reasonable Doubt.

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.

necessary, when additional instructions given, § 2367.

2320 INDEX.


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.

See IlcASOX.xBLE Doubt.

See Agency.

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

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

existence of, question of fact, § 1891.

INDEX. 2321


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.

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.


^^•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.


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

jury to ascertain nature of contract for, § 1109.

remedy by, in contempt proceedings, § 147.

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.

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 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.


stipulation to submit on, construed, § 202.


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.


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


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


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


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


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

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

of witnesses against arrest and service of process, § 185.

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,
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.


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


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.


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


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-

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,

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.


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

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.

See Manslaughter.

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

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

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.


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


members of, when disqualified as jurors, § 63.


proved by copies, § 164.


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


abandonment of, a question of law, § 1444.

INDEX. 2329


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

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

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

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

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

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


See Highways.


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

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

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

what constitutes a newspaper publication, § 2054.

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

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.

of public highways, §§ 1886, 1887.



of talesmen, §>27.

of sheriff and deputies summoning talesmen, § 27.

See Evidence; Reasonable Doubt,

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

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

2330 INDEX.


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

judges proliibited from charging on, § 2280.

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


nonsuits in statutory actions to quiet title, § 2236.

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

parol evidence heard on the question, 1123.

Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 122 of 126)