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XVIII. CONSTITUTIONAL LAW.—A justice, in the trial of a cause, has jurisdiction to pass upon every question involved in the action, including the validity of a law imposing a penalty.1

XIX. Costs.--A justice's costs are matters of statute, and to the statute he must look; if that provides for no costs, he is not entitled to any, and in rendering judgment the justice can only award legal costs-statutory costs.?

JUSTIFIABLE.—That which can be justified, excused or defended.3

JUSTLY.-Fairly ; accurately. In accordance with facts and truth.4 In Missouri, no circuit clerk, county the constable where the law allows a clerk, or deputy of either, can hold or reasonable amount as costs for receivexercise the office of justice. 1 Rev. ing and keeping property levied upon Stat. Mo. (1879), ch. 44, § 2808.

by the constable; the constable cannot See Tate's Case, 3 Leigh (Va.) 802; fix the amount himself and lawfully Rodman z. Harcourt, 4 B. Mon. (Ky.) collect it. State '. Vasel, 47 Mo. 416. 224, 499; Magie v. Stoddard, 25 Conn. 3. Justifiable Cause.- Where an in565. Yet it is held that after accepting dictment was found for maliciously an incompatible office, the justice will and without justifiable cause forcing a be considered as a de facto justice to seaman on shore in a foreign port, third persons, and will justify an officer against the Crimes act of 1825, ch. 276, in serving a warrant issued by him. $ 10, it was held that justifiable cause Commonwealth v. Kirby, 2 Cush. does not mean such a cause as in the (Mass.) 577

mere maritime law might authorize a . 1. Hallock v. Dominy, 69 N. Y. 238. discharge, but such a cause as the In the syllabus of Mayberry v. Kelley, known policy of the American laws on it is said, “The constitution is law—the this subject contemplates, as a case of fundamental law-and must as much moral necessity, for the safety of the be taken into consideration by a justice ship and crew, or the due performance of the peace as any other tribunal. It of the voyage. C'nited States v. Coffin, is the duty of all courts to pass upon

i Sumn. (U. S.) 394. and determine the constitutionality of In an action for malicious prosecustatutes. Mayberry v. Kelley, Kan. tion, which averred that it was done 116.

without any "legal or justifiable cause," 2. Chase v. De Wolf, 69 Ill. 47; Cas- the averment was held insufficient, tle v. House, 41 Ind. 333; McGee v. Dil- ROANE, J., saying: “The word justifia

, Cutts v. Rock Co., ble is not synonymous with probable. 58 Wis. 641. In Iowa, for fee upon The latter refers to a standard within continuance of case, see Evans v. Story the reach of the person at the time and Co., 35 Iowa 126. Costs are not in- determining the purity of his motives. cluded in the amount for which justice The former refers to another criterion may render judgment in fixing his juris- within his reach, and carrying with it diction. Spiesberger v. Thomas, 59 no certain datum from which we can Iowa 606. But see Civil JURISDICTION decide upon the corruptness or purity -AMOUNT OF MONEY INVOLVED, of the motive;" and Carrington, J., supra. When the justice dismisses an saying: “It is completely settled that, action on the theory that it was not in a suit for a malicious prosecution, it brought, prosecuted or authorized by must appear that there was no probable the plaintiff, he cannot tax costs to the ground for the prosecution; since the plaintiff. Town v. Green, 32 Kan. 143. want of probable cause is the very gist

It is held, in Wisconsin, that where a of the action; and, therefore, it inust be constable demanded illegal fees for averred. This averment is not supserving process, the justice, upon ren- plied, in the present case, by the words dering judgment for costs, could not be justifiable cause, for the latter mean no compelled by mandamus to issue exe- more than legal cause." Young v. cution for the illegal fees. Chase z'. De Gregory, 3 Calì (Va.) 446. Wolf, 69 Ill. 47. And it is the duty of 4. Justly Due.-See DUE. the justice to fix the compensation of Where a judgment by confession on

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JUSTIFICATION IN PLEADING.—See PLEADING.

KEEP.—To have, or hold, customarily or continually. To rebond and warrant of attorney had been measuring coals sold by the chaldron entered, supported by plaintiff's affi- according to the lawful bushel directed davit as required by statute (Harrison's by the statute 12 Anne st. 2, ch. 17, 9 Compilation 248, § 1), that the debt was II. It was held that evidence of such "justly due andowing,"motion was made coals proving short upon remeasureto set the judgment aside on the ground ment was admissible to prove the that the debt was not yet due. This charge of their not having been justly the court refused to do, HORNBLOWER, measured. Warren v. Windle, 3 East C. J., saying: "This objection goes 205. upon the ground, and it was insisted in i. A tenant, to keep premises in reargument that since the statute (Har. pair, must have them so at ail times Comp. 248) a judgment cannot be during his term. Luxmore v. Robson, legally entered by confession for any i B. & Al. 585. “To keep a street in liability or by way of security, but only safe condition, means to have it so; to for a debt absolutely due and paya- make and remake it so.” City of Atble. But CHIEF JUSTICE EWING, in lanta v. Buchanan, 76 Ga. 585. Scudder v. Scudder, has fully and satis- But a stipulation in an insurance factorily answered this objection, after policy that a watchman be kept on the remarking, as is perfectly obvious, that premises, does not require his constant the word 'due' sometimes signifies sim- presence there, but only at such times ple indebtedness without reference to as men of ordinary care and skill, in the the time of payment as debitum in pre- like business, have watchmen on their senti solvendum in futuro; and that premises. Crocker v. People's M. F. I. at other times it means that the day of Co., & Cush. (Mass.) 79. payment or render has passed; he The owner of a hall, in which there adds, 'in the former sense it appears to is a stage, who offers it for rent, for use have been used in the statute, as it is as a theatre or for concerts, balls, etc., connected with a word of the like signi- but who had never used it as a theatre fication, due and owing. Moreover, nor let it to another for such use, canhe says, 'the word justly being con- not be convicted of "engaging in or nected with the word due shows the carrying on the business of keeping a true import of the phrase justly due.?" theatre," within the meaning of a reveHoyt v. Hoyt, i Harrison (N. J.) 138. nue law. Gillman v. State, 55 Ala. 248. See also Warwick v. Mattock, 2 Halst. An act, making it unlawful for any (N. J.) 165; Scudder v. Scudder, 5 person “to have or keep any house, etc. Halst. (N. J.) 340.

for the public performance of stage At the trial of the question of the plays” without legal authority, is not validity of a mortgage on personal prop- infringed by one who hires an unlierty, given to secure the mortgagee as cenced public room for a performance endorser for the mortgagor, when at- for six consecutive nights. Reg. 7'. tached in the hands of the mortgagor, Strugnell, 7 B. & S. 124. the mortgagee being summoned

An averment that one "did keep a ten trustee, under the Mass. Gen. Sts., ch. pin alley” is not equivalent to saying 123, 967, the sum “justly due” upon the that he was engaged in the business or mortgage to be ascertained by the employment of keeping a ten pin alley. courts is that sum which will fully se- “One may keep a billiard table or a ten cure the mortgagee against all con- pin alley for the amusement of himselt tingent future liabilities covered by the or his family, without being engaged in mortgage. Rogers v. Abbott, 128 keeping them as a business or avocaMass. 102.

tion.” Eubanks 2. State, 17 Ala. 181. So the existence of a claim against The offence of keeping a gaming table the estate of a deceased person, which may be committed by a single act; it is depends upon some future contingency, not necessary that the business of so is not a debt "justly due” from the es- doing should be engaged in. tate. Ames v. Ames, 128 Mass. 277. Keep Company with.-See COHABIT.

Justly Measured.—The statute 3 Geo. Keep Down.--A turnpike act provided II, ch. 26, § 13, gives a penalty against that the money received by the comdealers in coals within the city of Lon- pany should be applied, first, to paying don and ten miles round for not justly the expenses of obtaining the act; sec.

as

tain ;' to maintain ; 2 to have charge or control of ; 3

121.

We say

ond, to keeping down the interest of (N. J.), 42 N. J. Eq. 545; 11 East Rep. principal moneys borrowed on the

So a provision in a will that the credit of the act; third, to repairing the principal be kept in stock, and the inroad, and fourth, to repaying the prin- terest paid to the beneficiary, raises a cipal. Keeping down the interest here trust. . Saunderson v. Stearns, 6 Mass. means paying the interest periodically, 37. as it becomes due, and does not include 2. In an indictment for keeping a the payment of arrears, which must be house of ill fame. State ». Ilanchett, provided for as principal. Reg. v. 38 Conn. 35; and for keeping a faro llutchinson,

+
E. & B. 200.

bank or gaming table. “What is the Keep House. See IIOI'SE.

true import of the verb to keep? Does Keep Open.-(See SUNDAY.) A shop it not import something more than setis kept open on Sunday, although the ting up a table for a day, or during the usual entrance thereto is closed, if all races?

If I understand the who please can obtain access thereto to meaning of the term, it implies some buy. Commonwealth 7. Harrison, il duration or permanency; and that the Gray (Mass.) 308; Blahut q' State, opening, or instituting, or setting up a 34 Ark. 447. “What is meant by the gaming table for one day or a few days terms 'keeps open store? We do not during a public race, if the evidence think it can be the simple fact, acci- even went so far, is not keeping a gamdental or otherwise, that the door of the ing table within the meaning of the store or shop is open or kept open. statute.

That it is never used What they intended was to to signify any temporary business, prohibit the keeping of open store or or employment, or engagement, is eviopen doors for purposes of traffic. It dent from innumerable instances where was this which was considered offensive this verb is used as in the following into morals. If the defendant kept his stances. This is a rule, as far as I store, or the door of it, whether front or know, without exception. If there be rear, open on the Sabbath, and by one, I have not discovered it. means thereof sold merchandise or he keeps a hotel, a store, a billiard taother articles or commodities kept there ble, a register's oflice, a broker's office. for sale, then he violated the statute. a coach, a horse, a gig, an omnibus,

The store being open, one carts for hire, a livery stable, a school, sale would constitute the offence.” Sni- a inistress, etc. der v. State, 59 Ala. 61. To "keep “Now, does not every instance in the open” implies a readiness to carry on examples above quoted, show that the the usual business therein. Lynch v. word is only employed in cases of exPeople, 16 Mich. 172.

pressing the idea of some permanent A reservation, in a deed, of a street and established business? to be "kept open" gives the owners of The Latin word which seems to me to the easement a right to an unobstructed express most nearly the English word, street, and the owners of the servient to keep, is sustentare, and this word, in tenement cannot place a fence across it, that language, implies to maintain, supthough there be therein a gate through port, etc., extending its operation and which the owners of the easement may effect beyond the ephemeral existence have free passage.

Patton i'. W. C. of a day.” United States i'. Smith, 4 Educational Co.(N. Car.), 8 S. E. Rep. Cr. C. C. 640. 140.

A requirement that the sheriff shall Keep a tippling house imports the un- supply meat, drink, fuel and everything lawful selling of liquors at retail. Com- necessary for keeping prisoners at his monwealth v. Campbell, 5 Bush (Ky.) own expense, refers to their mainte311.

nance, and not their protection or 1. A testamentary provision that "the custody. Mitchell Commrs. of residue of my estate be kept in reserve

Leavenworth Co., 18 Kan. 1SS. for further consideration in the way of 3. In an act prohibiting the keeping charitable purposes in a liberal way, of houses of ill fame, "to keep and mainnot to any particular creed or sect of tain implies much more than to live in religion,” creates a trust in the executors such a house, as to keep a hotel implies for such charitable purposes as they may more than to live in one. The conthink proper. Claypool v. Norcross trolling head of the hotel keeps it while

v.

to store ; 1 to maintain in illicit intercourse.2

KEEPER.—One who has the care, custody or superintendence of anything: 3

or

the individuals who take their meals effect that purpose.

This is the definiand lodge in such hotel and have no tion that has been settled by repeated other domicil, live therein. So the decisions in reference to the word 'storcontrolling head of a house of ill fame, ing;' and there is no reason why it or of a house reputed to be a house of should not be applied to keeping,' a ill fame, keeps such a house." State word of more extensive signification, v. Main, 31 Conn. 572. “The keeping undoubtedly, but which in this connecis not to be understood as having or tion seems to demand a continued ocrenting in point of property; for in that cupation of the whole, or a part of the sense she (a married woman) cannot premites insured, in pursuance of a dekeep it; but the keeping here is the sign for the specified purpose.” A governing and managing a house in mere temporary or casual deposit is such disorderly manner as to be a nui- not such. Hynds v. Schenectady Co. sance.” Reg. v. Williams, i Salk. 384. M. I. Co., 11 N. Y. 554; affirming s. C., In this sense, one who controls the 16 Barb. N.Y.119; Williams v.Firemen's business of a victualling shop, though in Fund I. Co., 54 N. Y. 569. "The the name and on the credit of his wife, words 'keep or have, as applied to the keeps it within the meaning of a articles first enumerated, evidently revenue law. St. Johnsbury z'. Thomp were intended to prevent a storage of son (Vt.), 50 Vt. 300; 11 East Rep: 771. the prohibited articles upon the premises And a clerk or servant may be liable either permanently habitually. . for keeping an unlicenced liquor shop. While the words are used in the dis"To keep' may in its ordinary and more junctive, they are evidently synonyobvious sense apply only to one who ex- mous, and signify to retain in possesercises control or proprietorship of the sion.” Mears v. Humboldt Ins. Co., building or place used. But to 'main- 92 Pa. St. 15. tain' has no such limited use." Com- In a chattel mortgage, by the terms monwealth v. Kimball, 105 Mass. 465. of which the mortgagee might sell, to A gambling house is kept by him, in pay the debt due, together with all whose possession, occupancy, or under reasonable costs pertaining to the takwhose control it is. Stoltz v. People, 5 ing, keeping advertising and selling of Ill. 168.

the property, “the word 'keeping' eviA requirement that he shall keep dently means the keeping of the propthe jail does not impose on him “the erty after the taking and pending the duty to construct a jail, or furnish the advertising before the sale. When the bolts, bars and keys of the prison;” nor subject of the mortgage consists of inof employing guards where the jail is animate chattels,it includes storage, and insufficient. Mitchell v. Commrs. of in many cases insurance," but not the Leavenworth Co., 18 Kas. ISS.

expenses of keeping while in possession, An indictment, under statute, for actual or constructive, of the mortgagor. entering an enclosed park and taking State Bank of Neb. v. Lowe, 22 Neb. fish, bred, kept and preserved there, is 68; s. C., 33 N. W'. Rep. 482. not sustained in a case where a river 2. It is actionable per se to say of a flowed through the park uninterruptedly woman that a certain man “keeps her.” without any obstruction to keep the fish “The words, 'keep' and 'kept' have, unthere, and where nothing was done to doubtedly, several meanings; the prestock the river. Rex v. Caradice, i R. cise signification in any given case de

pending on the context of which they 1. Keep is used in this sense in form a part, or the circumstances under statutes and provisions in policies of in- which they are used. But when it is surance against keeping hazardous and said in reference to a female, that a cerdangerous goods. Biggs v. Mitchell, 2 tain man 'keeps her,' the ordinary and B. & S. 523. “It is not enough, accord- popular interpretation of the expression ing to this phraseology, that hazardous is, that the relation between the parties articles are upon the premises. They is one which involves illicit intercourse.' must be there for the purpose of being Downing v. Wilson, 36 Ala. 717stored or kept; and the premises must 3. Stevens 7 People, 67 Ill. 587. be appropriately applied or used to In an act making it unlawful to allow

& R. 205.

KEROSENE.—A mixture of certain liquid hydrocarbons, used for purposes of illumination.

of illumination. It has been prepared from bituminous coal and various other articles, but at present its practical source is petroleum, from which it is obtained by processes of distillation and refinement.1

KEY.-A portable instrument of metal for shooting the lockbolt of a door; an instrument formed with cavities or interstices corresponding to the wards of a lock, by which the bolt is moved backwards or forwards.2 The word “key," in a statute enumer

animals to go "at large without a yet not be its keeper. One may take keeper," "the phrase 'at large without a somebody else's dog to keep.” Burnkeeper' must have a reasonable inter- ham v. Strother (Mich.), 33 N. W. pretation applicable to the subject mat- Rep. 410; and see Cummings v. Riley, ter. ‘A keeper' says Worcester, 'is one 52 N. H. 368. who has something in charge. To be One may be convicted as the keeper 'without a keeper,' in the purview of the of a gaming house if he, as employee, statute, is to be without the charge of has general superintendence and charge. anyone having the right of control, or It is not necessary that he be proprietor 'not under the care of a keeper,' as the or lessee, or be interested in the profits. statute of Massachusetts expresses it. Stevens v. People, 67 Ill. 587. Such charge or care does not in all Under an act imposing a penalty on cases imply direct physical power to a ferryman who took a slave out of the control the actions of the animals; in State, and, in case the ferryman was a some cases moral means would be suffi- slave, upon the owner or keeper of the cient for this purpose, such as the prox- ferry, "keeper” meant not the ferryman, imity of the owner of the animal, the but a grantee, lessee, or other person human voice, gestures and like means. having a beneficial interest in and conWhether in a given case, physical or trol over the ferry. Covington Ferry moral power over the animals is neces- Co. v. Moore, 8 Dana (Ky.) 158. sary depends upon the nature, age, 1. It is, in a commercial sense, a recharacter, habits, discipline and busi- fined coal or earth oil, and is embraced ness or use at the time, and whatever within those terms as used in an inother circumstances have a hearing surance policy. Bennett v. No. Brit. upon the subject. What would con- & Merc. I. Co., 81 N. Y. 273. stitute a person a keeper of one animal The legislature of New York having would not make him keeper of another declared that certain grades of kerosene under different circumstances. It is are proper and safe to use, a court will sufficient to constitute the owner of not take judicial notice that kerosene is animals their keeper, in a given case, if an "inflammable fluid" within the it appears that he possessed the means meaning of an insurance policy: this upon which a person in the exercise of must be proved as a fact. ordinary care, judgment and intelli- W. Ins. Co., 46 N. Y. 421. “The policy gence upon these matters would rely forbids the use of camphene, spirit gas, to control their actions. Whether or or any burning fluid or chemical oil. It not animals are thus in charge is a was proved that kerosene was used. question of fact to be determined by the

The defendant's witness stated jury under proper directions.” Jennings that he did not know what chemical oil v. Wayne, 63 Me. 468.

meant, and he stated how kerosene was In a statute making the keeper as well made from petroleum. We cannot as the owner of a dog liable for injuries hold, aside from proofs, that kerosene done by it, the word includes a street comes under the words 'burning fluid; railway company whose employee the any more than it did under the words owner was, and about whose stables the inflammable fluid.'

'inflammable fluid. •Burning fluid' in dog was kept. Barrett v. & M.R. Co., this position, cannot mean every fluid 3 Allen (Mass.) 101. And where the

And where the that will burn." Mark v. National F. plaintiff had enticed the dog from its I. Co., 24 Hun (N. Y.) 565. And see owner's premises and had kept it on his Morse v. Buffalo F. & M. I. Co., 30 own premises, he himself was its Wis. 534; s. C., II Am. Rep. 587. keeper. “A man may own a dog and 2. Encyc. Dict.

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