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XI. The Credibility of the Witnesses is to be determined by the jury. This is the general rule, but it is peculiarly applicable in cases of alleged negligence. Thus, suppose it was proved that the engine was properly equipped and operated, it is possible, perhaps probable, under the circumstances of a particular case, that the witnesses are mistaken; beside, the jury are to determine the question of negligence from all the facts and circumstances of a case. The witnesses therefore are to state the condition of the engine and how it was operated, not the conclusions; the jury will draw the proper inferences from the testimony.1

29 Minn. 12; s. c., 7 Am. & Eng. R. R. Cas. 501; Lindsay v. Winona & St. Peter's R. Co., 29 Minn. 411; Kansas Pacific R. Co. v. Brady, 17 Kan. 380; Murphy v. Chicago, eto., R. Co., 45 Wis. 222; Ross v. Boston, etc., R. Co., 6 Allen (Mass.), 87; Birge v. Gardiner, 19 Conn. 507; Ohio, etc., R. Co. v. Shonefelt, 47 Ill. 497; Erie R. Co. v. Decker, 78 Pa. St. 295; Brown v. Hannibal, etc., R. Co., 37 Mo. 297; Missouri Pac. R. Co. v. Cornell, 30 Kan. 35; s. c., 11 Am. & Eng. R. R. Cas. 56; Kansas City, etc., R. Co. v. Owen, 25 Kan. 419; Chicago, etc., R. Co. v. Simonson, 54 Ill. 504; Murphy v. Chicago, etc., R. Co., 45 Wis. 222; Collins v. New York, etc., R. Co., 5 Hun (N. Y.), 499; Diamond v. Northern Pac. R. Co., 6 Mont. 580; s. c., 29 Am. & Eng., R. R. Cas. 117-130, and note.


When contributory negligence claimed, and such negligence consists only in the place in which the plaintiff has put his property and the means used to protect it from fire, there is ordinarily presented only a question of fact to be determined by the jury. Missouri Pac. R. Co. v. Kincaid, 29 Kan. 654; s. c., II Am. & Eng. R. R. Cas. 83; Texas & Pac. R. Co. v. Levi, 69 Tex. 674; 13 Am. & Eng. R. R. Cas. 464; Gibbons v. Wisconsin U. R. Co., 58 Wis. 335; s. c., 13 Am. & Eng. R. R. Cas. 339; 25 Am. & Eng. R. R. Cas. 479. But in Post v. Buffalo, etc., R. Co., 108 Pa. St. 585, a railroad company constructed a siding near one of their stations to facilitate the shipment of freight. A lumberman, accustomed to load cars at this siding, placed a large amount of lumber near the track, partly on the railroad company's right of way, and partly on ground hired for the purpose, in order that the lumber might be ready for shipment as required and as cars were furnished, and also (as reasonably appeared from the evidence) for storing and seasoning the lumber. This lumber caught fire from sparks thrown out by a locomotive engine run

ning on the road, in an extremely dry season, when fires were of frequent occurrence. In an action by the owner of the lumber against the railroad company to recover damages for the loss thus occasioned, the above facts appeared from the plaintiff's testimony, and the court entered a nonsuit. Held, that, conceding the loss to have been occasioned by the negligence of the defendant, nevertheless, the plaintiff, having placed his lumber in a dangerous place with a full knowledge of the danger, was guilty of contributory negligence, and the nonsuit was therefore rightly entered.


In Illinois the usual rule of comparative negligence applies in such cases. the negligence of the land owner is slight compared with that of the company, he is entitled to recover for an injury done by sparks from passing engines. Illinois, etc., R. Co. v. Mills, 42 Ill. 407; Ohio, etc., R. Co. v. Shanefelt, 47 Ill. 497; Illinois, etc., R. Co. v. Frazier, 47 Ill. 505; Illinois, etc., R. Co. v. Nunn, 51 Ill. 78; Toledo, etc., R. Co. v. Pindar, 53 Ill. 447; Chicago, etc., R. Co. v. Simonson, 54 Ill. 504.

1. Longabaugh v. Virginia, etc., R. Co., 9 Nev. 271. In Burlington, etc., R. Co. v. Westover, 4 Neb. 268, it is said: "When there is no conflict of testimony, and the existence of a fact is clearly proved by undisputed testimony, it would be error to submit the question to a jury as to whether that fact existed or not. It is therefore insisted that the court erred in refusing to give the instruction in question, asked by the plaintiff in error, there being, it is claimed, no conflict of testimony on that point. It is true there is no direct testimony in regard to the character of the construction and appliances of the engines of the defendant in the court below, except that offered by the company.

But a case of this kind differs in many respects from a case where the facts are equally within the knowledge of the plaintiff and defendant, such as the want of consideration of a

FIREWORKS. See note 1. (See also EXPLOSIONS.)
FIRING.-See note 2.

FIRM. The word "firm" has a recognized legal signification. It is used in treatises on the law of partnership as synonymous with "partnership." Wharton's definition is," The name or names under which any house of trade is established." 3 (See PARTNERSHIP.)


note. If in a suit on the note between the original parties the defendant plead want of consideration, and introduce proof establishing that fact, if the plaintiff offered no proof he must fail, and there would be no question to submit to the jury. In cases of this kind, however, the means of knowledge are entirely with the company. Witnesses are called on the stand to testify in regard to the condition of an engine and its appliances, on a particular day, perhaps months before the trial. Under such circumstances witnesses of the utmost reliability may be mistaken, and the circumstances connected with setting out the fire may be of such a character as to leave a doubt in the mind of the court and jury as to the correctness of their testimony. Under such circumstances the question of the credibility of the witnesses must be left to the jury," etc.

1. An information charged A. with making and keeping fireworks, explosive preparations and compositions, without a license, it appearing that fogsignals were manufactured and kept upon the premises. Fog-signals are concave pieces of tin filled with gunpowder, and fitted with nipples and percussion-caps, and then firmly attached to each other, in order to secure the greatest amount of explosive power. Held, that A. was liable to a penalty, and, semble, per one of the judges, that fogsignals are "fireworks." Bliss v. Lilley, B. & S. 128.

A policy of insurance was issued upon a stock of fireworks, it being provided that whenever any article subject to legal restriction should be kept in quantities or in a manner not allowed by law, unless the use or keeping was specially provided for, the policy should be void. By a city ordinance fireworks, "excepting works of brilliant colored fires," were allowed to be kept in limited quantities for a limited time, upon permission, for retailing. Plaintiff purchased and placed in his store a quantity of signal-lights, classed as "works of brilliant-colored fires." A fire occurred, originating in

the signal-lights. In an action upon the policy the court directed a verdict for the plaintiff, and this was held error. "We are not to presume that the agreement to insure the plaintiff against loss was intended to cover an article so specially hazardous that he had no right to store it; but that fireworks, in the sense in which the term was used, had reference to such fireworks as were in the prohibition excepted or might by permission be kept for retailing.' Jones v. Fireman's Fund Ins. Co., 51 N. Y. 318.

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"Fireworks," it seems, are not included under firecrackers," in a policy of insurance. As to whether the former constitute "an article in the line of a German jobber and importer," compare the conflicting decisions in Steinbach v. La Fayette Fire Ins. Co., 54 N. Y. 90, and Steinbach v. Insurance Co., 13 Wall. (U. S.) 183.

2. An indictment alleging that the defendant did kill and murder, etc., the deceased by feloniously, etc., firing a pistol, loaded with gunpowder and leaden balls, which he then and there had and held in his hands, etc., was held bad for want of certainty in charging the mode and manner in which the deceased came to his death. "Was he wounded by the balls from the pistol, from which wounds he died?

The indictment does not so charge. It does not aver that the pistol was even shot at him. It may have been fired into the air, or at a mob, or at a flock of birds, so far as we are informed by the indictment. It may have been that the deceased was a man in feeble health, and that the sudden and unexpected discharge of a pistol near him caused his death, by the shock or fright it occasioned. If so, it might be important that the indictment should state how long he survived after the discharge of the pistol, that the connection between the discharge and the death might appear." Shepherd v. State, 54 Ind. 25.

3. Bolckow v. Foster, 25 Grant Ch. (U. C.) 478. And see Ryder v. Wilcox, 103 Mass. 28.

4. To the same effect as the case to

FIRST.-See note 1.

which cross-reference is made, see Bradley v. Eccles, 1 Browne (Pa.), 258.

1. First Boat.-Where goods were ordered to be forwarded by the "first boat leaving P. for W.," it was held that the direction meant no more than that they should be forwarded at the earliest opportunity. Johnson v. Chambers, 12 Ind. 102.

First Cost. The defendants, carrying on business in manufacturing and upholstering goods, entered into an agreement with the plaintiff, whereby the plaintiff was to manufacture all the upholstered goods sold by the defendants at an advance of 11 per cent upon the actual first cost of goods made and shipped from T.; the percentage to pay cost of packing and shipping the goods and material used as packing to be charged at cost price; the plaintiff to buy all goods required for manufacture (except such frames as the plaintiff should make himself) from the defendants; and the price charged for the goods to be under stood as the actual first cost; and the actual first cost value of the goods so manufactured for the defendants to be computed from the prices charged by the defendants to the plaintiff. Held, that under the agreement the "actual first cost" en which the plaintiff was to charge an advance of II per cent was the price of the material used and the wages paid. Black . Toronto Upholstering Co., 8 Can. L. T. 232.

First Cousin.-See COUSIN, and 13 Cent. L. J. 5.

First Day.-A provision in a code authorizing an appeal in any suit in equity pending in the supreme court on the "first day of July," held to authorize appeals in suits pending on the "first Monday of July," such construction being necessary to give any effect to the statute, as no such causes could be pending in the supreme court prior to tho last-mentioned date. Burch v. Newbury, 10 N. Y. 374.

First Draw. The term "the first draw -the compensation which a pensioner agreed to allow an agent for procuring a pension-construed to mean "the first an nuity," not including the arrearages due by the retrospective operation of the act. Trimble v. Lord, 5 Dana (Ky.), 518.

First Half of a Month, as the time during which parties contract for the performance of an act,-the month containing thirty-one days,-requires that the act be performed by noon of the sixteenth day. Grosvenor v. Magill, 37 Ill, 239.

First Heir Male.-"A devise to a man and his first heir male can have no other effect than a devise to him and his heir male in the singular number, without the word first; for the heir male and the first heir male must necessarily be the same person; for the heir male must be the immediate heir male, and consequently the first heir male." Otherwise of "first or eldest issue," as that is "a description of the person particularly designed to take, and shall go no further than to that person only." Dubber v. Trollope, Amb. 462-3.

Where a testator devised lands in remainder to the "first male heir of the branch of my uncle's family," and at the time the will was made the uncle was dead, having left five daughters, all married; the eldest having several daughters, but no son, and each of the others having sons; and the fourth daughter died before any of her sisters, and during the continuance of the life estates given by the will leaving a son, it was held that this son was the "first male heir." Littiedale, J., said: "It will be a subject of more discussion whether he fills the description of first within the meaning of the will. His mother having died before any of her sisters, he was the first person who filled the character of heir, if heir is to be taken in that sense of the word, which says that a person cannot be heir till the ancestor be dead; and if that be so, then as he is the first person of the descendants of the daughters that fills the character of heir, he unites in him all the three parts of the description; he is heir, he is male heir, and he is first male heir." Doe dem. Winter v. Perratt, 5 B. & C. 48. On error to the House of Lords four of the judges held that "first male heir" was not used by the testator to denote a person of whom an ancestor might be living, while the others held that it was used in a popular sense. The judgment of the lower court in favor of the son of the fourth daughter was affirmed. 6 M. & G. 314.

First Inventor.-Where an invention has already been made public by a description contained in a work, whether written or printed, which has been publicly circulated, one who afterwards takes out a patent for it is not the "first and true inventor" within the meaning of a statute, whether he has himself borrowed his invention from such publication or not. Stead v. Williams, 7 M. & G. 818.

First Mortgage. The words "first mortgage," in Pennsylvania, have a fixed,

definite meaning and imply that the lien of the mortgage is prior to that of any other claim. "In the plain, ordinary and popular sense, first mortgage means first lien." Green's Appeal, 97 Pa. St. 342; s. c., II Repr. 819.

The clause of the State constitution which reads, "And as a further security, an amount of first mortgage bonds, on the roads, lands, and franchises of the respective companies, corresponding to the State bonds issued, shall be transferred to the treasurer of the State, at the time of the issue of State bonds." was held not to give to the State an exclusive lien on the roads, etc., to the extent of the bonds which might be received from them, and it was not necessary that the deeds of trust executed by the companies should specify a priority of lien to such bonds as the companies might deliver to the State in exchange for the bonds. Minn. & Pac. R. Co. v. Sibley, 2 Minn. 13. And see the dissenting opinion of Flandrau, J.

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First received.-The expression "moneys first received" under a United States appropriation, in statutes directing the application of the funds derived from the appropriation to two objects successively, in the language of the court may fairly and justly be interpreted to mean money first received into the treasury and disposable for the objects contemplated by these two acts, not already appropriated to another specific purpose for which the faith of the State had been pledged, and was therefore not to be touched; and that the word first, in the mind of the legislature, referred to the first object, the permanent school fund, in preference to the second object, the payment of the public debt, and not at all to the mere date and absolute time of reception. State ex rel. Kellogg v. Treas., 41 Mo. 23, 24.

First Son, in a will, not necessarily "first-born son," but used in the sense of an elder son,-senior or maximus natu. Lomax v. Holmden, 1 Ves. Sr. 290.

First Term. In an act authorizing a continuance at the first term upon the affidavit of the prisoner that he cannot go safely to trial on account of popular prejudice against him, the first term" was held to mean "the term at which

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the prisoner is arraigned for trial." John 7. State, I Head (Tenn.), 49.

A law providing that a report of sale should be approved or rejected "at the first term thereof after filing the same, held not to mean the same term at which the report was filed, but the succeeding one. Highley v. Barron, 49 Mo. 103.

First tried. The term at which a cause could be "first tried," in the sense of a statute declaring that a party seeking a removal from the State to the Federal court should make and file a petition in the suit in the State court, before or at the term at which said cause could be first tried, and before the trial thereof, is the term at which the issues are first made up, the party applying for removal not having been guilty of negligence. Scott v. Clint. & Spring. R. Co., 6 Biss. (U. S.) 529. It is some term occurring after the passage of the act, and not a term before its passage. Merch., etc., Natl. Bk. v. Wheeler, 13 Blatch. (U. S.) 218. But if the term at which the cause could otherwise be first tried occurs during the time a trial of the cause is stayed by an order of the State court, that is not such a term as is meant. Warner z. P. R. Co., 13 Blatch. (U. S.) 231.

Consent first had.-Where an act provided that no minor should be enlisted without the consent of his parent, etc., "first had or obtained," it was held that an enlistment by a minor without the knowledge or consent of his parent was valid if the parent gave his consent after the enlistment. Com. v. Camac, I S. & R. (Pa.) 87.

In the first place.-If a testator express himself thus, "imprimis, or, in the first place, I give so much to A, and in the next place I give so much to B," these words will neither give a preference to A above B, nor to them over the other general legatees, so as to exempt them from the obligation of abating with the other legatees. The reason is they merely point the order in which the bequests are made in succession, and do not import with certainty an intention to prefer one to another. Swasey v. Am. Bible Soc., 57 Me. 528; Everett v. Carr, 59 Me. 325; Perrine v. Perrine, I Halst. (N. J.) 133: Blower v. Morret, 2 Ves. Sr. 420; 1 Ro. per on Legacies, 426.

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'Just compensation first made," in the Bill of Rights, as an essential requisite to the taking of private property for public use, held to require the compensation to precede the seizure of the property. "The word 'first,' used in the Bill of Rights, cannot be regarded as useless; nor are we at liberty to suppose that it

FIRST-CLASS.-See note I.

FISCAL.-See note 2.


I. A Common of Fishery-Defini-
tion, 23.

1. Fisheries in the Sea and in Navi-
gable Rivers. 24.

II. International Fisheries, 28.
1. England and France, 28.

2. United States and the Dominion of Canada, 29.

3. Whale Fisheries, 30.

III. Private Fisheries, 31.

IV. Statutory Regulations, 34.
1. Constitutionality of Statutes, 35.
2. Construction, 39.

I. A Common of Fishery-Definition.-A common of fishery is a right of fishing in the water covering the soil of another person, or in the river running through another man's land. It is not an exclusive right, but one enjoyed in common with certain other persons in a particular stream. But it appears that there is a difference between a common fishery which may mean for all mankind, as in the sea, and a common of fishery, which is a right in common with certain other persons in a certain stream. The better division of this subject would be: (1) A right of fishing common to all; (2) A right vested exclusively in one or a few persons. At one time a franchise was granted to a subject, or it existed by prescription, distinct from the ownership in the soil. It was

was inserted without design or by accident." Thompson v. Grand Gulf R. & Banking Co., 3 How. (Miss.) 240; s. c., 34 Am. Dec. 81.

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1. In a contract, the term 'first-class funeral" or "very handsome funeral,' when applied to a particular individual, generally has reference to the previous social status and pecuniary condition of the person to be interred; for what might be considered extravagant in one case would be seemingly moderate in another. Mackoosky v. Manhattan R. Co., II N. Y. St. Rep. 649.

"First-class station," in a covenant with a railway company, has a defined and well-understood meaning among persons who have any knowledge of railways. It means a station at which all ordinary and fast trains, and occasional express and special trains, are advertised to stop and take up and set down passengers. A station at which all trains, other than mail, express, and special, are advertised to stop and take up and set down passengers. Hood v. N. E. R. Co., L. R. 8 Eq. Cas. 666.

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2. Where an assistant-treasurer of the United States is required by statute inter alia "to perform all other duties as fiscal agent of the government which might be imposed upon him by any act of Congress," etc., the word "fiscal" does not

enlarge the scope of the duties of an as sistant-treasurer, so as to authorize the Secretary of the Treasury to impose upon him duties connected with the collection as well as with the custody and disbursement of revenue. It is more reasonable to construe it as referable to the fiscal duties of each officer within official limits defined by law." Folger v. U. S., 13 Ct. of Cl. 93.

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The term fiscal agent" does not mean, neccssarily, the depositary of the public funds, so as, by the simple use of it in a statute, without any directions in that respect, to make it the duty of the city or State treasurer to deposit with him any moneys in the treasury, and confer on such agent power to compel such deposit. State ex rel. Baldwin v. Dubuclet, St. Treas., 27 La. Ann. 29.

Fiscal Year. Where one of the items in the published account of a county's finances is to be "the amount of the expenditures for all purposes during the fiscal year," the "fiscal year," "so far as it relates to the financial operation of the counties, must mean the current year embraced between the dates of the collector's annual settlements." Moore v State, 49 Ark. 499.




2 Bl. Com. 34.

Bennett v. Castor, 8 Taunt. 183. 3 Kent's Com. 411.

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