fended.3

In Missouri, no circuit clerk, county clerk, or deputy of either, can hold or exercise the office of justice. I Rev. Stat. Mo. (1879), ch. 44, § 2808.

See Tate's Case, 3 Leigh (Va.) 802; Rodman v. Harcourt, 4 B. Mon. (Ky.) 224, 499; Magie v. Stoddard, 25 Conn. 565. Yet it is held that after accepting an incompatible office, the justice will be considered as a de facto justice to third persons, and will justify an officer in serving a warrant issued by him. Commonwealth v. Kirby, 2 Cush. (Mass.) 577:

1. Hallock v. Dominy, 69 N. Y. 238. In the syllabus of Mayberry v. Kelley, it is said, "The constitution is law-the fundamental law-and must as much be taken into consideration by a justice of the peace as any other tribunal. It is the duty of all courts to pass upon and determine the constitutionality of statutes. Mayberry v. Kelley, 1 Kan.

116.

2. Chase v. De Wolf, 69 Ill. 47; Castle v. House, 41 Ind. 333; McGee v. Dillon, 103 Pa. St. 433; Cutts v. Rock Co., 58 Wis. 641. In Iowa, for fee upon continuance of case, see Evans v. Story Co., 35 Iowa 126. Costs are not included in the amount for which justice may render judgment in fixing his jurisdiction. Spiesberger v. Thomas, 59 Iowa 606. But see CIVIL JURISDICTION -AMOUNT OF MONEY INVOLVED, supra. When the justice dismisses an action on the theory that it was not brought, prosecuted or authorized by the plaintiff, he cannot tax costs to the plaintiff. Town v. Green, 32 Kan. 148. It is held, in Wisconsin, that where a constable demanded illegal fees for serving process, the justice, upon rendering judgment for costs, could not be compelled by mandamus to issue execution for the illegal fees. Chase 7. De Wolf, 69 Ill. 47. And it is the duty of the justice to fix the compensation of

the constable where the law allows a reasonable amount as costs for receiving and keeping property levied upon by the constable; the constable cannot fix the amount himself and lawfully collect it. State v. Vasel, 47 Mo. 416.

3. Justifiable Cause.-Where an indictment was found for maliciously and without justifiable cause forcing a seaman on shore in a foreign port, against the Crimes act of 1825, ch. 276, § 10, it was held that justifiable cause does not mean such a cause as in the mere maritime law might authorize a. discharge, but such a as the known policy of the American laws on this subject contemplates, as a case of moral necessity, for the safety of the ship and crew, or the due performance of the voyage. United States v. Coffin, I Sumn. (U. S.) 394.

In an action for malicious prosecution, which averred that it was done without any "legal or justifiable cause," the averment was held insufficient, ROANE, J., saying: "The word justifiable is not synonymous with probable. The latter refers to a standard within the reach of the person at the time and determining the purity of his motives. The former refers to another criterion within his reach, and carrying with it no certain datum from which we can decide upon the corruptness or purity of the motive;" and CARRINGTON, J., saying: "It is completely settled that, in a suit for a malicious prosecution, it must appear that there was no probable ground for the prosecution; since the want of probable cause is the very gist of the action; and, therefore, it must be averred. This averment is not supplied, in the present case, by the words justifiable cause, for the latter mean no more than legal cause." Young v. Gregory, 3 Call (Va.) 446.

4. Justly Due.-See DUE. Where a judgment by confession on

ond, to keeping down the interest of principal moneys borrowed on the credit of the act; third, to repairing the road, and fourth, to repaying the principal. Keeping down the interest here means paying the interest periodically, as it becomes due, and does not include the payment of arrears, which must be provided for as principal. Reg. v. v. Hutchinson, 4 E. & B. 200.

Keep House.-See IIoUSE. Keep Open. (See SUNDAY.) A shop is kept open on Sunday, although the usual entrance thereto is closed, if all who please can obtain access thereto to buy. Commonwealth. Harrison, 11 Gray (Mass.) 308; Blahut v. State, 34 Árk. 447. “What is meant by the terms 'keeps open store? We do not think it can be the simple fact, accidental or otherwise, that the door of the store or shop is open or kept open. What they intended was to prohibit the keeping of open store or open doors for purposes of traffic. It was this which was considered offensive to morals. If the defendant kept his store, or the door of it, whether front or rear, open on the Sabbath, and by means thereof sold merchandise or other articles or commodities kept there for sale, then he violated the statute. The store being open, one sale would constitute the offence." Snider v. State, 59 Ala. 64. To "keep open" implies a readiness to carry on the usual business therein. Lynch . People, 16 Mich. 472.

A reservation, in a deed, of a street to be kept open" gives the owners of the easement a right to an unobstructed street, and the owners of the servient tenement cannot place a fence across it, though there be therein a gate through which the owners of the easement may have free passage. Patton . W. C. Educational Co. (N. Car.), 8 S. E. Rep.

140.

Keep a tippling house imports the unlawful selling of liquors at retail. Commonwealth v. Campbell, 5 Bush (Ky.) 311.

1. A testamentary provision that "the residue of my estate be kept in reserve for further consideration in the way of charitable purposes in a liberal way, not to any particular creed or sect of religion," creates a trust in the executors for such charitable purposes as they may think proper. Claypool v. Norcross

(N. J.), 42 N. J. Eq. 545; 11 East Rep. 121. 121. So a provision in a will that the principal be kept in stock, and the interest paid to the beneficiary, raises a trust. Saunderson v. Stearns, 6 Mass. 37.

2. In an indictment for keeping a house of ill fame. State v. Hanchett, 38 Conn. 35; and for keeping a faro bank or gaming table. "What is the true import of the verb to keep? Does it not import something more than setting up a table for a day, or during the races? If I understand the meaning of the term, it implies some duration or permanency; and that the opening, or instituting, or setting up a gaming table for one day or a few days during a public race, if the evidence even went so far, is not keeping a gaming table within the meaning of the statute. . That it is never used to signify any temporary business, or employment, or engagement, is evident from innumerable instances where this verb is used as in the following instances. This is a rule, as far as I know, without exception. If there be one, I have not discovered it. We say he keeps a hotel, a store, a billiard table, a register's office, a broker's office. a coach, a horse, a gig, an omnibus, carts for hire, a livery stable, a school, a mistress, etc.

"Now, does not every instance in the examples above quoted, show that the word is only employed in cases of expressing the idea of some permanent and established business? The Latin word which seems to me to express most nearly the English word, to keep, is sustentare, and this word, in that language, implies to maintain, support, etc., extending its operation and effect beyond the ephemeral existence of a day." United States . Smith, 41 Cr. C. C. 640.

A requirement that the sheriff shall supply meat, drink, fuel and everything necessary for keeping prisoners at his own expense, refers to their maintenance, and not their protection or custody. Mitchell v. Commrs. of Leavenworth Co., 18 Kan. 188.

3. In an act prohibiting the keeping of houses of ill fame, "to keep and maintain implies much more than to live in such a house, as to keep a hotel implies more than to live in one. The controlling head of the hotel keeps it while

of anything.3

the individuals who take their meals and lodge in such hotel and have no other domicil, live therein. So the So the controlling head of a house of ill fame, or of a house reputed to be a house of ill fame, keeps such a house." State v. Main, 31 Conn. 572. "The keeping is not to be understood as having or renting in point of property; for in that sense she (a married woman) cannot keep it; but the keeping here is the governing and managing a house in such disorderly manner as to be a nuisance." Reg. v. Williams, 1 Salk. 384. In this sense, one who controls the business of a victualling shop, though in the name and on the credit of his wife, keeps it within the meaning of a revenue law. St. Johnsbury . Thompson (Vt.), 50 Vt. 300; 11 East Rep. 771. And a clerk or servant may be liable . for keeping an unlicenced liquor shop. "To 'keep' may in its ordinary and more obvious sense apply only to one who exercises control or proprietorship of the building or place used. But to 'maintain' has no such limited use." Commonwealth v. Kimball, 105 Mass. 465. A gambling house is kept by him, in whose possession, occupancy, or under whose control it is. Stoltz v. People, 5 Ill. 168.

v.

A requirement that he shall keep the jail does not impose on him "the duty to construct a jail, or furnish the bolts, bars and keys of the prison;" nor of employing guards where the jail is insufficient. Mitchell v. Commrs. of Leavenworth Co., 18 Kas. ISS.

An indictment, under statute, for entering an enclosed park and taking fish, bred, kept and preserved there, is not sustained in a case where a river flowed through the park uninterruptedly without any obstruction to keep the fish there, and where nothing was done to stock the river. Rex v. Caradice, 1 R. & R. 205.

1. Keep is used in this sense in statutes and provisions in policies of insurance against keeping hazardous and dangerous goods. Biggs v. Mitchell, 2 Biggs v. Mitchell, 2 B. & S. 523. "It is not enough, according to this phraseology, that hazardous articles are upon the premises. They must be there for the purpose of being stored or kept; and the premises must be appropriately applied or used to

effect that purpose. This is the definition that has been settled by repeated decisions in reference to the word 'storing;' and there is no reason why it should not be applied to keeping,' a word of more extensive signification, undoubtedly, but which in this connection seems to demand a continued occupation of the whole, or a part of the premites insured, in pursuance of a design for the specified purpose." A mere temporary or casual deposit is not such. Hynds v. Schenectady Co. M. I. Co., 11 N. Y. 554; affirming s. c., 16 Barb. N.Y.119; Williams v.Firemen's Fund I. Co., 54 N. Y. 569. "The words 'keep or have,' as applied to the articles first enumerated, evidently were intended to prevent a storage of the prohibited articles upon the premises either permanently or habitually. While the words are used in the disjunctive, they are evidently synonymous, and signify to retain in possession." Mears v. Humboldt Ins. Co., 92 Pa. St. 15.

In a chattel mortgage, by the terms of which the mortgagee might sell, to pay the debt due, together with all reasonable costs pertaining to the taking, keeping, advertising and selling of the property, "the word 'keeping' evidently means the keeping of the property after the taking and pending the advertising before the sale. When the subject of the mortgage consists of inanimate chattels,it includes storage, and in many cases insurance," but not the expenses of keeping while in possession, actual or constructive, of the mortgagor. State Bank of Neb. v. Lowe, 22 Neb. 68; s. c., 33 N. W. Rep. 482.

2. It is actionable per se to say of a woman that a certain man "keeps her." "The words, 'keep' and 'kept' have, undoubtedly, several meanings; the precise signification in any given case depending on the context of which they form a part, or the circumstances under which they are used. But when it is said in reference to a female, that a certain man 'keeps her,' the ordinary and popular interpretation of the expression is, that the relation between the parties is one which involves illicit intercourse." Downing v. Wilson, 36 Ala. 717.

3. Stevens People, 67 Ill. 587. In an act making it unlawful to allow

animals to go "at large without a keeper," "the phrase 'at large without a keeper' must have a reasonable interpretation applicable to the subject matter. 'A keeper' says Worcester, 'is one who has something in charge.' To be 'without a keeper,' in the purview of the statute, is to be without the charge of anyone having the right of control, or 'not under the care of a keeper,' as the statute of Massachusetts expresses it. Such charge or care does not in all cases imply direct physical power to control the actions of the animals; in some cases moral means would be sufficient for this purpose, such as the proximity of the owner of the animal, the human voice, gestures and like means. Whether in a given case, physical or moral power over the animals is necessary depends upon the nature, age, character, habits, discipline and business or use at the time, and whatever other circumstances have a hearing upon the subject. What would constitute a person a keeper of one animal would not make him keeper of another under different circumstances. It is sufficient to constitute the owner of animals their keeper, in a given case, if it appears that he possessed the means upon which a person in the exercise of ordinary care, judgment and intelligence upon these matters would rely to control their actions. Whether or not animals are thus in charge is a question of fact to be determined by the jury under proper directions." Jennings v. Wayne, 63 Me. 468.

In a statute making the keeper as well as the owner of a dog liable for injuries done by it, the word includes a street railway company whose employee the owner was, and about whose stables the dog was kept. Barrett v. & M. R. Co., 3 Allen (Mass.) 101. And where the plaintiff had enticed the dog from its owner's premises and had kept it on his own premises, he himself was its its keeper. "A man may own a dog and

yet not be its keeper. One may take somebody else's dog to keep." Burnham v. Strother (Mich.), 33 N. W. Rep. 410; and see Cummings v. Riley, 52 N. H. 368.

One may be convicted as the keeper of a gaming house if he, as employee, has general superintendence and charge. It is not necessary that he be proprietor or lessee, or be interested in the profits. Stevens v. People, 67 Ill. 587.

Under an act imposing a penalty on a ferryman who took a slave out of the State, and, in case the ferryman was a slave, upon the owner or keeper of the ferry, "keeper" meant not the ferryman, but a grantee, lessee, or other person having a beneficial interest in and control over the ferry. Covington Ferry Co. v. Moore, 8 Dana (Ky.) 158.

1. It is, in a commercial sense, a refined coal or earth oil, and is embraced within those terms as used in an insurance policy. Bennett v. No. Brit. & Merc. I. Co., 81 N. Y. 273.

The legislature of New York having declared that certain grades of kerosene are proper and safe to use, a court will not take judicial notice that kerosene is an "inflammable fluid" within the meaning of an insurance policy: this must be proved as a fact. Wood v. N. W. Ins. Co., 46 N. Y. 421. "The policy forbids the use of camphene, spirit gas, or any burning fluid or chemical oil. It was proved that kerosene was used.

The defendant's witness stated that he did not know what chemical oil meant, and he stated how kerosene was made from petroleum. We cannot hold, aside from proofs, that kerosene comes under the words 'burning fluid; any more than it did under the words 'inflammable fluid.' 'Burning fluid' in this position, cannot mean every fluid that will burn." Mark v. National F. I. Co., 24 Hun (N. Y.) 565. And see Morse v. Buffalo F. & M. I. Co., 30 Wis. 534; s. c., II Am. Rep. 587. 2. Encyc. Dict.