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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."
29 Minn. 12; . C., 7 Am. & Eng. R. R. ning on the road, in an extremely dry Cas. 501; Lindsay v. Winona & St. season, when fires were of frequent ocPeter's R. Co., 29 Minn. 411; Kansas
In an action by the owner of Pacific R. Co. v. Brady, 17 Kan. 380; the lumber against the railroad company Murphy v. Chicago, eto., R. Co., 45 to recover damages for the loss thus ocWis. 222; Ross v. Boston, etc., R. Co., casioned, the above facts appeared from 6 Allen (Mass.), 87; Birge v. Gardiner, the plaintiff's testimony, and the court 19 Conn. 507; Ohio, etc., R. Co. v. entered a nonsuit. Held, that, conceding Shonefelt, 47 111. 497; Erie R. Co. v. the loss to have been occasioned by the Decker, 78 Pa. St. 295; Brown v. Han- negligence of the defendant, nevertheless, nibal, etc., R, Co., 37 Mo. 297; Missouri the plaintiff, having placed his lumber in Pac. R. Co. v. Cornell, 30 Kan. 35; s. a dangerous place with a full knowledge C., II Am. & Eng. R. R. Cas. 56; Kan of the danger, was guilty of contributory sas City, etc., R. Co. v. Owen, 25 negligence, and the nonsuit was therefore Kan. 419; Chicago, etc., R.
rightly entered. Simonson, 54 Ill. 504; Murphy v. Chi. In Illinois the usual rule of comparacago, etc., R. Co., 45 Wis. 222; Collins v. tive negligence applies in such cases. If New York, etc., R. Co., 5 Hun (N. Y.), the negligence of the land owner is slight 499; Diamond v. Northern Pac. R. Co., compared with that of the company, he 6 Mont. 580; s. C., 29 Am. & Eng., R. R. is entitled to recover for an injury done Cas. 117-130, and note.
by sparks from passing engines. Illinois, When contributory negligence is etc., R. Co. v. Mills, 42 Ill. 407; Ohio, claimed, and such negligence consists etc., R. Co. v. Shanefelt, 47 Ill. 497; Illionly in the place in which the plaintiff nois, etc., R. Co. v. Frazier, 47 III. 505; has put his property and the means used Illinois, etc., R. Co. v. Nunn, 51 Ill. 78; to protect it from fire, there is ordinar- Toledo, etc., R. Co. v. Pindar, 53 Ill. ily presented only a question of fact to 447; Chicago, etc., R. Co. v. Simonson, be determined by the jury. Missouri 54 Ill. 504. Pac. R. Co. v. Kincaid, 29 Kan. 654; s. 1. Longabaugh v. Virginia, etc., R. C., 11 Am. & Eng. R. R. Cas. 83; Texas Co., 9 Nev. 271. In Burlington, etc., R. & Pac. R. Co. v. Levi, 69 Tex. 674; 13 Co. v. Westover, 4 Neb. 268, it is said: Am. & Eng. R. R. Cas. 464; Gibbons v. “ When there is no conflict of testimony, Wisconsin U. R. Co., 58 Wis. 335; s. C., and the existence of a fact is clearly 13 Am. & Eng. R. R. Cas. 339; 25 Am. proved by undisputed testimony, it would & Eng. R. R. Cas. 479. But in Post v. be error to submit the question to a jury Buffalo, etc., R. Co., 108 Pa. St. 585, a as to whether that fact existed or not. railroad company constructed a siding It is therefore insisted that the court near one of their stations to facilitate the erred in refusing to give the instruction shipment of freight. A lumberman, ac- in question, asked by the plaintiff in customed to load cars at this siding. error, there being, it is claimed, no conplaced a large amount of lumber near the flict of testimony on that point. It is true track, partly on the railroad company's there is no direct testimony in regard to right of way, and partly on ground hired the character of the construction and apfor the purpose, in order that the lumber pliances of the engines of the defendant might be ready for shipment as required in the court below, except that offered by and as cars were furnished, and also (as the company. But a case of this kind reasonably appeared from the evidence) differs in many respects from a for storing and seasoning the lumber. where the facts are equally within the This lumber caught fire from sparks knowledge of the plaintiff and defendant, thrown out by a locomotive engine run- such as the want of consideration of a
FIREWORKS.-See note 1. (See also EXPLOSIONS.)
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.) FIRMLY.-See BELIEVE ;4 BOUND.
If in a suit on the note between the signal-lights. In an action upon the the original parties the defendant plead policy the court directed a verdict for the want of consideration, and introduce plaintiff, and this was held error. • We proof establishing that fact, if the plaintiff are not to presume that the agreement offered no proof he must fail, and there to insure the plaintiff against loss was would be no question to submit to the intended to cover an article so specially jury. In cases of this kind, however, the hazardous that he had no right to store means of knowledge are entirely with the it; but that fireworks, in the sense in company. Witnesses are called on the which the term was used, had reference stand to testify in regard to the condi- to such fireworks as were in the prohibition of an engine and its appliances, on a tion excepted or might by permission be particular day, perhaps months before the kept for retailing.' Jones v. Fireman's trial. Under such circumstances wit. Fund Ins. Co., 51 N. Y. 318. nesses of the utmost reliability may be “Fireworks," it seems, are not includmistaken, and the circumstances ed under a firecrackers," in a policy of nected with setting out the fire may be insurance. As to whether the former of such a character as to leave a doubt in constitute “an article in the line of a the mind of the court and jury as to the German jobber and importer,” compare correctness of their testimony. Under the conflicting decisions in Steinbach v. such circumstances the question of the La Fayette Fire Ins. Co., 54 N.Y. 90, and credibility of the witnesses must be left Steinbach v. Insurance Co., 13 Wall. to the jury,” etc.
(U. S.) 183. 1. An information charged A. with 2. An indictment alleging that the demaking and keeping fireworks, explo- fendant did kill and murder, etc., the de. sive preparations and compositions, ceased by feloniously, etc., firing a pistol, without a license, it appearing that fog- loaded with gunpowder and leaden balls, signals were manufactured and kept which he then and there had and held in upon the premises. Fog-signals are his hands, etc., was held bad for want of concave pieces of tin filled with gun- certainty in charging the mode and manpowder, and fitted with nipples and per- ner in which the deceased came to his cussion-caps, and then firmly attached death. * Was he wounded by the balls to each other, in order to secure the from the pistol, from which wounds greatest amount of explosive power. he died? The indictment does not so Held, that A. was liable to a penalty, and, charge. It does not aver that the pistol semble, per one of the judges, that fog- even shot at him.
It may have signals are "fireworks.” Bliss v. Lilley, been fired into the air, or at a mob, or 3 B. & S. 128.
at a flock of birds, so far as we are inA policy of insurance was issued upon formed by the indictment. It may have a stock of fireworks, it being provided been that the deceased was a man in feethat whenever any article subject to legal ble health, and that the sudden and unexrestriction should be kept in quantities pecied discharge of a pistol near him or in a manner not allowed by law, un- caused his death, by the shock or fright less the use or keeping was specially pro- it occasioned. If so, it might be imporvided for, the policy should be void. By tant that the indictment should state a city ordinance fireworks, "excepting how long he survived after the discharge works of brilliant colored fires,” were of the pistol, that the connection between allowed to be kept in limited quantities the discharge and the death might apfor a limited time, upon permission, for pear. Shepherd z'. State, 54 Ind. 25. retailing. Plaintiff purchased and placed 3. Bolckow v. Foster, 25 Grant Ch. in his store a quantity of signal-lights, (U. C.) 478. And see Ryder v. Wilcox, classed as "works of brilliant-colored 103 Mass. 28. fires." A fire occurred, originating in 4. To the same effect as the case to
FIRST.-See note 1. which cross-reference is made, see Brad- First Heir Male.—“A devise to a man ley v. Eccles, I Browne (Pa.), 258. and his first heir male can have no other
1. First Boat.— Where goods were or- effect than a devise to him and his heir dered to be forwarded by the “first boat male in the singular number, without the leaving P. for W.,” it was held that the word first; for the heir male and the first direction meant no more than that they heir male must necessarily be the same should be forwarded at the earliest op- person; for the heir male must be the portunity. Johnson v. Chambers, 12 immediate heir male, and consequently Ind. 102.
the first heir male." Otherwise of “first First Cost. The defendants, carry. or eldest issue," as that is “a description ing on business in manufacturing and of the person particularly designed to upholstering goods, entered into take, and shall go no further than to that agreement with the plaintiff, whereby person only.” Dubber v. Trollope, Amb. the plaintiff was to manufacture all the 462—3. upholstered goods sold by the defend- Where a testator devised lands in reants at an advance of 11 per cent upon mainder to the first male heir of the the actual first cost of goods made and branch of my uncle's family,” and at the shipped from T.; the percentage to pay time the will was made the uncle was cost of packing and shipping the goods dead, having left five daughters, all marand material used as packing to be ried; the eldest having several daughters, charged at cost price; the plaintiff to buy but no son, and each of the others having all goods required for manufacture (except sons; and the fourth daughter died before such frames as the plaintiff should make any of her sisters, and during the continhimself) from the defendants; and the uance of the life estates given by the will price charged for the goods to be under leaving a son, it was held that this son stood as the actual first cost; and the ac- was the “first male heir." Lilciedale, J., cual first cost value of the goods so man- said: “It will be a subject of more disufactured for the defendants to be com- cussion whether he fills the description puted from the prices charged by the of first within the meaning of the will. defendants to the plaintiff. Held, that His mother having died before any of her under the agreement the "actual first sisters, he was the first person who filled cost” en which the plaintiff was to charge the character of heir, if heir is to be taken an advance of ui per cent was the price in that sense of the word, which says of the material used and the wages paid that a person cannot be heir till the anBlack 7. Toronto Upholstering Co., 8 cestor be dead; and if that be so, then as Can. L. T. 232.
he is the first person of the descendants First Cousin. --See Cousin, and 13 Cent. of the daughters that fills the character
of heir, he unites in him all the three First Day.-A provision in a code au- parts of the description; he is heir, he is thorizing an appeal in any suit in equily male heir, and he is first male heir." pending in the supreme court on the Doe dem. Winter v. Perratt, 5 B. & C. 48. “first day of July," held to authorize On error to the House of Lords four of appeals in suits pending on the "first the judges held that “first male heir” Monday of July," such construction be- was not used by the testator to denote a ing necessary to give any effect to the person of whom an ancestor might be statute, as no such causes could be pend. living, while the others held that it was ing in the supreme court prior to tho used in a popular sense. The judgment last-mentioned date. Burch v. Newbury, of the lower court in favor of the son of 10 N. Y. 374.
the fourth daughter was affirmed. 6 M. First Draw.-The term “the first draw" & G. 314. -the compensation which a pensioner First Inventor.- Where an invention agreed to allow an agent for procuring a has already been made public by a depension-construed to mean the first an scription contained in a work, whether nuity,” not including the arrearages due written or printed, which has been pubby the retrospective operation of the act. licly circulated, one who afterwards takes Trimble v. Lord, 5 Dana (Ky.), 518. out a patent for it is not the “first and
First Half of a Month, as the time true inventor” within the meaning of a during which parties contract for the per- statute, whether he has himself borrowed formance of an act, the month contain- his invention from such publication or ing thirty-one days, -requires that the Stead v. Williams, 7 M. & G. 818. act be performed by noon of the sixteenth First Mortgage. The words “first day. Grosvenor v, Magill, 37 III, 239. mortgage,” in Pennsylvania, have a fixed,
L. J. 5.
definite meaning and imply that the lien the prisoner is arraigned for trial.” John of the mortgage is prior to that of any 7'. Siate, i Head (Tenn.), 49. other claim. “In the plain, ordinary A law providing that a report of sale and popular sense, first mortgage means should be approved or rejected “at the first lien." Green's Appeal, 97 Pa. St. first term thereof after filing the same, 312; s. C., II Repr. 819.
held not to mean the same term at which The clause of the State constitution the report was filed, but the succeeding which reads, “And as a further security, one. Highley v. Barron, 49 Mo. 103. an amount of first mortgage bonds, on the First tried. - The term at which a roads, lands, and franchises of the respect- cause couid be “ first tried,” in the sense ive companies, corresponding to the of a statute declaring that a party seeking State bonds issued, shall be transferred a removal from the State to the Federal to the treasurer of the State, at the time court should make and file a petition in of the issue of State bonds," was held the suit in the State court, before or at not to give to the State an exclusive lien the term at which said cause could be on the roads, etc., to the extent of the first tried, and before the trial thereof, is bonds which might be received from the term at which the issues are first them, and it was not necessary that the made up, the party applying for removal deeds of trust executed by the compa- not having been guilty of negligence. nies should specify a priority of lien to Scott v. Clint. & Spring. R. Co., 6 Biss. such bonds as the companies might de. (U. S.) 529. It is some term occurring liver to the State in exchange for the after the passage of the act, and not a bonds. Minn. & Pac. R. Co. v. Sibley, term before its passage. Merch., etc., 2 Minn. 13. And see the dissenting opin- Natl. Bk. v. Wheeler, 13 Blatch. (U. S.) ion of Flandrau, J.
218. But if the term at which the cause First Privilege. In the grant of a grist could otherwise be first tried occurs durmill on a stream to have the first privi- ing the time a trial of the cause is stayed lege of water necessary for running the by an order of the State court, that is same as a good grist-mill," the phrase not such a term as is meant.
Warner v. “first privilege" must be construed to P. R. Co., 13 Blatch. (U. S.) 231. mean the right to take so much water as Consent first had.—Where an act prois necessary, subject to no vested prior vided that no minor should be enlisted claim.” Hapgood v. Brown, 102 Mass. without the consent of his parent, etc., 451.
“first had or obtained,” it was held that First received. - The expression “mon- an enlistment by a minor without the eys first received” under a United States knowledge or consent of his parent was appropriation, in statutes directing the valid if the parent gave his consent after application of the funds derived from the the enlistment. Com. 2. Camac, I S. & appropriation to two objects successively, R. (Pa.) 87. in the language of the court “ may fairly In the first place.-If a testator express and justly be interpreted to mean money himself thus, “imprimis, or, in the rst first received into the treasury and dis- place, I give so much to A, and in the posable for the objects contemplated by next place I give so much to B," these these two acts, not already appropriated words will neither give a preference to A to another specific purpose for which the above B, nor to them over the other genfaith of the State had been pledged, and eral legatees, so as to exempt them from was therefore not to be touched; and that the obligation of abating with the other the word first, in the mind of the legisla- legatees. The reason is they merely ture, referred to the first object, the per- point the order in which the bequests are manent school fund, in preference to the made in succession, and do not import second object, the payment of the public with certainty an intention to prefer one debt, and not at all to the mere date and to another. Swasey v. Am. Bible Soc., absolute time of reception. State ex rel. 57 Me. 528; Everett v. Carr, 59 Me. 325; Kellogg v. Treas., 41 Mo. 23, 24.
Perrine v. Perrine, i Halst. (N. J.) 133; First Son, in a will, not necessarily Blower v. Morret, 2 Ves. Sr. 420; i Ro. “ first-born son,” but used in the sense per on Legacies, 426. of an elder son, --senior or maximus natu, “ Just compensation first made," in Lomax v. Holmden, i Ves. Sr. 290. the Bill of Rights, as an essential requisite
First Term.-In an act authorizing a to the taking of private property for pubcontinuance at the first term upon the lic use, held to require the compensation affidavit of the prisoner that he cannot to precede the seizure of the property. go safely to trial on account of popular “The word 'first,' used in the Bill of prejudice against him, the first term” Righis, cannot be regarded as useless; was held to mean " the term at which nor are we at liberty to suppose that it
FIRST-CLASS.-See note 1.
I. A Common of Fishery-Defini- 2. United States and the Dominion tion, 23.
of Canada, 29.
III. Private Fisheries, 31.
1. Constitutionality of Statutes, 35.
2. Construction, 39. 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.4 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.5
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 acci- enlarge the scope of the duties of an as dent." Thompson v. Grand Gulf R. & sistant-treasurer, so as to authorize the Banking Co., 3 How. (Miss.) 240; s. C., Secretary of the Treasury to impose upon 34 Am. Dec. 81.
him duties connected with the collection 1. In a contract, the term “first class as well as with the custody and disbursefuneral” or “very handsome funeral,” ment of revenue. It is more reasonable when applied to a particular individual, “to construe it as referable to the fiscal generally has reference to the previous duties of each officer within official limits social status and pecuniary condition of defined by law.” Folger v. U.S., 13 Ct. the person to be interred; for what might of Cl. 93. be considered extravagant in one case The term fiscal agent” does not mean, would be seemingly moderate in another. necessarily, the depositary of the public Mackoosky v. Manhattan R. Co., II funds, so as, by the simple use of it in a N. Y. St. Rep. 649.
statute, without any directions in that “First-class station," in a covenant respect, to make it the duty of the city with a railway company, has a defined or State treasurer to deposit with him and well-understood meaning among any moneys in the treasury, and confer persons who have any knowledge of on such agent power to compel such derailways. It means a station at which posit. State ex rel. Baldwin v. Dubuclet, all ordinary and fast trains, and occa- St. Treas., 27 La. Ann. 29. sional express and special trains, are ad- Fiscal Year.- Where one of the items vertised to stop and take up and set in the published account of a county's down passengers. “A station at which finances is to be "the amount of the exall trains, other than mail, express, and penditures for all purposes during the special, are advertised to stop and take fiscal year,'' the “fiscal year,” “so far as up and set down passengers.
it relates to the financial operation of the N. E. R. Co., L. R. 8 Eq. Cas. 666. counties, must mean the current year
2. Where an assistant-treasurer of the embraced between the dates of the colUnited States is required by statute inter lector's annual settlements.” Moore v alia" to perform all other duties as fiscal State, 49 Ark. 499. agent of the government which might be 3. 2 B1. Com. 34. imposed upon him by any act of Con- 4. Bennett v. Castor, 8 Taunt. 183. gress,” etc., the word“ fiscal
does not 5. 3 Kent's Com. 411.