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6. A common carrier may by contract so limit his liability as to be responsible only as an
ordinary bailee for hire. "Ib.

See NEGLIGENCE; RAILROAD.

CONFEDERATE BONDS.
An executor is personally liable for money of his testator invested in Confederate bonds,

even if such investment was approved by a court having charge of the settlement of
the estate. Horn v. Lockhart, 55.

CONSTITUTIONAL LAW.
1. Although a part of a statute may be in conflict with the constitution, and therefore

void, yet the whole statute will not be pronounced void if the other provisions are com-
plete in themselves, and may be executed without regard to the obnoxious portions.

Supervisors of Knox Co. v. Davis, 461.
2. Article 6, section 1, of the constitution of Illinois of 1848, declared that every white

male citizen, above the age of twenty-one, who had resided in the state one year next
preceding the election, should be entitled to vote at such election; and every white
male inhabitant, of the age aforesaid, who resided in the state at the adoption of the
constitution, should have the same right to vote; and then provided that no citizen or
inhabitant should be entitled to vote except in the district or county in which he should
actually reside at the time of such election. The election law of 1861 provided that
no person should be entitled to vote at any general or special election unless he should
have actually resided in the election precinct thirty days immediately preceding such
election; and the charter of Galesburg, which regulated elections in that city, required
six months' residence in the city and thirty days in the ward, preceding an election, to
entitle the citizen to vote. Held, on bill to contest an election for the removal of the
county seat of Knox County, that the fact that some legal voters under the constitution
were deprived of their right of suffrage under such laws did not render the election
void; but that if the laws were restrictions on the right of suffrage, it was a wrong to
the elector who was deprived of his vote, for which he had a complete remedy against

the judges of election. " Ib.
3. The usual and ordinary legislation of the states regulating or prohibiting the sale of

intoxicating liquors raises no question under the Constitution of the United States prior

to the fourteenth amendment of that instrument. Bartemeyer v. The State, 200.
4. The right to sell intoxicating liquors is not one of the privileges and immunities of

citizens of the United States which by that amendment the states were forbidden to

abridge. Ib.
5. But if a case were presented in which a person owning liquor or other property at the

time a law was passed by the state absolutely prohibiting any sale of it, it would be a
very grave question whether such a law would not be inconsistent with the provision of
that amendment which forbids the state to deprive any person of life, liberty, or prop-

erty without due course of law. Ib.
6. The latter clause of the first section of the fourteenth amendment to the federal Con-

stitution — “nor shall any state deny to any person within its jurisdiction the
equal protection of the laws" secures to each child in California, regardless of the
race or color of such child, a legal right to attend as a pupil, and receive instruction at
the public schools in the state, under the law providing for common schools. Ward
v. Flood, 204.
7. The act of the legislature providing for the maintenance of separate schools for the

education of children of African or Indian descent, and excluding them from schools

where white children are educated, is not obnoxious to constitutional objection. Ib.
8. But unless such separate schools' be actually maintained for the education of colored

children, then the latter have a legal right to resort to schools where white children are
instructed, and cannot be legally excluded therefrom by reason of race or color. 1b.
See ELECTION, 1; HOMESTEAD EXEMPTION, 2; Taxation, 1, 2.

CONSTRUCTION.
The word " to " held to be inclusive — to December 31, held to include December 31.

Conarcango Pet. Ref. Co. v. Cunningham, 57.

CONSTRUCTION OF STATUTES.
1. In the construction of a statute, it is to be presumed that the legislature did not intend

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to grant to a corporation such an exemption from the operation of the general law ap-
plicable to similar corporations as would create an unreasonable monopoly or immunity
at variance with constitutional principles; and, when such an exemption is excluded by
a fair construction implying the qualification that the statute is to operate in harmony
with and subject to the general law, such a construction will be adopted. De Lancey ř.

Ins. Co. 80.
2. A general statute authorizes a tax collector for state and county taxes to execute a

deed upon a tax sale, and further provides that such deed shall be primâ facie evidence
of certain facts recited therein, and conclusive evidence of the regularity of the pro-
ceedings in all other respects. A subsequent statute provides that a town tax in a cer-
tain town shall be assessed and collected at the same time, and in the same manner, as
provided by said general act, and confers upon the town treasurer all the powers exer-
cised by the tax collector of the state and county taxes under the general act, but
makes no provision as to the effect of the tax deed executed by the town treasurer.
Held, that such deed will not be primâ facie evidence of the regularity of the prior
proceedings. Minturn v. Smith, 507.

CONTEMPT.
1. The power to punish for contempts is inherent in all courts; its existence is essential

to the preservation of order in judicial proceedings, and to the enforcement of the judg.
ments, orders, and writs of the courts, and consequently to the due administration of
justice. The moment the courts of the United States were called into existence and
invested with jurisdiction over any subject, they became possessed of this power. In

re Robinson, 326.
2. The act of Congress of March 2, 1831, entitled “ An act declaratory of the law con-

cerning contempts of court,” limits the power of the circuit and district courts of the
United States to three classes of cases : 1st, where there has been misbehavior of a
person.in the presence of the courts, or so near thereto as to obstruct the administra-
tion of justice; 2d, where there has been misbehavior of any officer of the courts in his
official transactions; and, 3d, where there has been disobedience or resistance by any
officer, party, juror, witness, or other person, to any lawful writ, process, order, rule,

decree, or command of the courts. 16.
3. The 17th section of the judiciary act of 1789, in prescribing fine or imprisonment as

the punishment which may be inflicted by the courts of the United States for con-
tempts, operates as a limitation upon the manner in which their power in this respect
may be exercised, and is a negation of all other modes of punishment. 1b.

COSTS.
See PLEADING AND PRACTICE, 5, 6.

CRIMINAL LAW.
1. The defendant having been indicted for murder, a jury was duly empanelled and

sworn; evidence was introduced and the case was submitted to the jury on the 30th of
July. The jury remained together until the evening of the 2d of August, when the
court ordered the sheriff to proceed to the door of the jury room and inquire of them
if they had agreed upon a verdict, to which they replied that they “ had not, and could
not agree on a verdict;” whereupon the court was adjourned for the term.

The term
would not have expired by operation of law until the evening of the next day. Held,
that the defendant by these proceedings had been placed in jeopardy, and that they

therefore operated as a verdict of acquittal. People v. Cage, 127.
2. Under the provision of the Penal Code of California, the defendant upon being placed

again on trial had a right to introduce evidence of the above facts under the plea of not

guilty. Ib.
3. By the constitution of the Commonwealth of Massachusetts, the governor, with the

advice of the council, may grant a pardon of an offence after a verdict of guilty, and
before sentence, and while exceptions allowed by the judge who presided at the trial
are pending in the supreme judicial court for argument, and the convict, upon waiving
his exceptions and pleading the pardon, is entitled to be discharged. Commonwealth

v. Lockwood, 141.
4. There can be no doubt about the general power of a court over its own decrees, judg.

ments, and orders during the existence of the term at which they are first made ; but
this power must be exercised within comm law restrictions and constitutional pro-
visions that sustain personal rights. In re Lange, 257.

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3. A statute provided for fine or imprisonment under which the accused was sentenced

to pay a fine and be imprisoned and the fine was paid. At the term during which the
sentence was pronounced the court sought to modify the sentence by changing it to
imprisonment alone. Held, that there was error ; that one of the alternative penalties

of the law having been satisfied, the power of the court was at an end. 16.
6. While intoxication cannot excuse crime, it may be sufficient to prevent a conviction

of murder in the first degree. Jones v. Commonwealth, 266.
7. Where it was shown that the accused had been taking laudanum and drinking to

excess for several days previous to the killing, which, with other causes, had produced
a disordered state of mind, and the killing took place during an altercation, the crime

was held to be murder in the second degree. Ib.
8. If the accused has been indicted and convicted for a mere assault and battery in the

county court having jurisdiction of such offence generally, the conviction will not be a
bar to an indictment for a felony, in the perpetration of which the assault and battery

was committed. Murphy v. The Commonwealth, 486.
9. On a trial for an assault with intent to kill, the witness upon whom the assault was

alleged to have been made was asked if he did not tell his wife that the prisoner acted
only in his own defence. 1. The answer to the question may tend to criminate him-
self, and the testimony is inadmissible. 2. It required him to state a communication
supposed to have been made by him to his wife, which, if made, was a confidential

communication, and which he was not bound to disclose. 1b.
10. A man is taken to intend that which he does, or which is the natural and necessary

consequence of his own act. Therefore, if the prisoner wounded the prosecutor, by
the deliberate use of an instrument likely to produce death under the circumstances,
the presumption of the law is that he intended the consequences that resulted from

said use of said deadly instrument. Ib.
11. Malice may be inferred from the deliberate use of a deadly weapon, in the absence

of proof to the contrary. 16.
12. Where there are two counts in an indictment for a felony, and there is a general
finding by the jury of “ guilty," if either count is good, it is sufficient. 16.

See EVIDENCE, 7, 8; HABEAS CORPUS.

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DIVORCE.
1. All the powers of the ecclesiastical courts, which are necessary for the protection of
civil rights, and which have not been lodged elsewhere, may be exercised in this coun-

try by the courts of chancery. Carris v. Carris, 41.
2. Courts of chancery, therefore, have jurisdiction to annul a contract of marriage on

the ground of fraud. Ib.
8. The parties were married ; the complainant, the husband, supposing from her acts
and otherwise that the defendant, the wife, was at the time of the marriage virtuous.
Two months after the marriage the defendant was delivered of a full-grown child,
Held, that the want of chastity and concealment avoided the consent, and constituted
a fraud upon which a court of equity would declare the marriage void ab initio. Ib.

ECCLESIASTICAL LAW.

See DIVORCE.

ELECTION.
1. A statute which directed a vote to be taken in Knox County, on the question of re-

moving the county seat from Knoxville to the city of Galesburg, also authorized the
city and individuals to raise and secure funds requisite for the public buildings, and
declared the subscriptions and donations made for that purpose valid and binding in
case the vote should be in favor of the removal. On a contest of an election held
under such law, it was contended that this law was unconstitutional, in holding out
inducements in the shape of a bribe for votes in favor of the change. Held, that if the
* law was unconstitutional, it was so only so far as to render the subscriptions and dona-
tions void, and no further ; that the balance of the law being constitutional, the elec-
tion under it was not void, and that the courts had no power to relieve against the
effects of the inducements which may have operated favorably to the removal. Super-

visors of Knox Co. v. Davis, 461.
2. On the contest of an election for the removal of a county seat, it was urged that the

election was void, because no registry of the voters of the county had been taken.
Held, that the general registry laws of the state had no application to elections of this
character. In the same case the common council of Galesburg required the polls within
the city to be opened at eight o'clock A. M., and kept open until midnight of the day of
this election, and this was urged as a fraud. Held, that as under the general laws of the.
state the judges of election were empowered to keep the polls open until twelve o'clock
at night if deemed necessary, and as the common council had the general power to
regulate elections in the city, they might make this discretion compulsory ; and that,
in the absence of proof of an evil intent, no fraud could be presumed, but rather a

desire to afford all an opportunity to vote. Ib.
3. Where it appeared, on the contest of a vote for the removal of a county seat, that the

judge and clerk of the election in a town had acted fraudulently in registering the votes
as they were keeping the lists, and in making fraudulent returns, and that they know-
ingly allowed illegal votes, and many persons to vote several times, and even minors to
vote ; and where the vote returned was double the vote ever cast before in the town,
and the evidence showed that heavy frauds were practised, the judge and clerk par-
ticipating therein, the court below rejected the poll-books and returns from such town
for all purposes, except to show that an election was held, leaving it to be shown by
proof who in fact voted and how such votes were cast. Held, that the court did not

err in rejecting the books and returns on account of the fraud. Ib.
4. Although there may be some fraudulent voting at an election in a town, yet, where the

officers conducting the same are not participants in it, but endeavored to hold the elec-
tion according to law, their returns are primâ facie evidence of all they contain, sub-
ject, however, to be corrected by proof; but where their returns are successfully im-
peached for fraud in them, they are unworthy of credit, and are evidence of nothing
except that a poll was opened. 1b.

See PLEADING AND PRACTICE, 3.

ESTOPPEL.
See BOND; PRINCIPAL AND SURETY; WARRANTY,

EVICTION.
See LANDLORD AND TENANT.

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EVIDENCE.
1. When evidence is offered, if it is relevant it should be admitted, and the jury permitted

to determine its true weight. Underwood v. McVeigh, 281.
2. When a vendor of land, having contracted to convey a perfect title, brings his action

to compel specific performance against the vendee, who denies the sufficiency of the
vendor's title, the burden of showing title in himself rests on the plaintiff, and the
introduction of a deed of recent date executed to himself, without further proof of title,

is not sufficient. Walsh v. Barton, 341.
3. A deed purporting to have been executed by the president of a railroad corporation,

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under the seal of the corporation, as authorized by section fifteen of the statute of Ohio
of May 1, 1852 (S. & C. 279), if objected to, cannot be given in evidence without proof

of its execution. Ib.
4. Shortly after the discovery of the fraudulent conduct of the treasurer of a railroad

company in the over-issue of stock, the directors of the company held a meeting at
which a report was made by the finance committee, setting out in detail the extent of
such over-issue. In this report there was no mention made of one of the certificates
held by the plaintiff. The plaintiff offered to read in evidence the record of the pro-
ceedings of this meeting, from the record book of proceedings of the company, having
previously read, without objection, from the record of the various meetings of the stock-
holders and directors of the company, held prior to this meeting. The defendant
objected to the admission of the proffered testimony. Held, that the proceedings of
the meeting of the 10th of August were admissible, the report of the finance com.
mittee, that one of the certificates of stock held by the plaintiff did not appear upon
the list of “over-issues of the stock of the company,'' furnishing the strongest negative
proof that such certificate was genuine and not spurious. Tome v. Parkersburg Branch

R. R. Co. 426.
5. On the question of the genuineness of the signature of a Mr. Van Winkle to certain

certificates of stock sued on, a witness professing to be an expert in the matter of hand-
writing was offered to prove that the signature to such certificates was not genuine.
He stated that he had never seen Mr. Van Winkle write, nor received any letter from
him, nor had he become acquainted with it in the course of business ; but that his
only knowledge on the subject was derived from an examination of the signatures of
said Van Winkle, in the two certificate books in evidence, which had been placed in
his hands by the defendant to enable him to testify, and that he had carefully examined
them for five or six months, and had thus acquired a knowledge of the handwriting of
Van Winkle. Held, that the witness was not competent to testify as to the genuineness
of Mr. Van Winkle's signature, his opinion being derived solely from a comparison of

handwriting. Ib.
6. On the same question, a photographer by profession and expert in handwriting offered

as a witness by the defendant, stated that he had, at the instance of the defendant,
made photographic copies of the signatures of Van Winkle to the certificates sued on,
and of others admitted to be genuine ; that some of these copies were of the actual
size of the original, and others of an enlarged size. The defendant thereupon pro-
posed to offer said copies in evidence, to be examined by the jury, together with expla-
nations by the witness as to the differences between the genuine and those alleged to
be forged, and his opinion, derived from a comparison of those copies, as to the gen-
uineness of the signatures to the certificates sued on. The plaintiff objected. Held,

that the proffered evidence was inadmissible. Ib.
7. Where a question is put to a witness which he answers, and which relates to a

collateral matter not connected with the subject of the prosecution, his answer to that
question is conclusive, and cannot be contradicted. Murphy v. The Commonwealth,

486.
8. In this case, after the witness was asked the question whether he did not state to his

wife that the defendant had acted only in his own defence, and he had answered the
question denying that he had done so, the wife of the witness was introduced to prove
the statement was made to her. She is not a competent witness to prove it, though at
the time it was alleged to have been made they were living apart from each other, but
not divorced. Ib.
See CRIMINAL LAW, 1, 2, 9; Malicious PROSECUTION.

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EXECUTOR.
S. made his will in 1858, and died in July, 1867. He gave to his daughters S. and C.

each ten thousand dollars, to be realized out of his estate by sale or otherwise, as early
as practicable after his decease ; and directed his executors to invest the said legacies
in the bonds of the State of Virginia, in the names of S. and C. The residue of his
estate he gave to his two sons, who were his partners in business, and who he ap-
pointed executors. When S. died his daughter C. was over twenty-one years of age,
and capable of understanding her rights. The executors did not invest the $10,000
left to her, but retained it in their hands with her knowledge, and, as they aver, by
express agreement with her, and paid her the interest regularly upon it. Held, in the
condition of the country from 1867 to 1870, the executors were well justified in not
investing the money in state bonds. Perry v. Smoot, 234.

See CONFEDERATE BONDS.

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