ON THE LAW OF TRIALS IN ACTIONS CIVIL AND CRIMINAL By SEYMOUR D. THOMPSON, LL. D. IN TWO VOLUMES VOL. II CHICAGO T. H. FLOOD & COMPANY 8915 Entered according to Act of Congress, in the year 1888, by SEYMOUR D. THOMPSON, In the office of the Librarian of Congress, at Washington 39970 SECTION CHAPTER LI. DESCRIPTION: QUALITY: CHARACTERIZATION. 1507. Questions of Fact. 1508. Eminent Domain: Whether a Use is a Public Use. 1509. Eminent Domain: Whether an Appropriation by the State was for Permanent or Temporary Use. 1510. Utility of a Public Highway. 1511. Whether a Place is a "Public Place," within the Meaning of a Statute. 1512. Whether a Person Undertaking to Transport Goods is a Common or Private Carrier. 1513. Whether a Stream Navigable for Logs. 1514. The Uses to which Demised Premises are Put. 1515. Whether a Particular Place of Business is a Bank. 1516. Whether a Wharf in a City is a Public Wharf. 1517. Whether "Flash Boards" are Part of a Mill-Dam. 1518. What is an "Appurtenance " to a Steamboat. 1519. Whether a Dwelling House is “Near" a Particular Place. 1520. What Fixtures are Removable. 1521. Whether Particular Property is Partnership or Individual Property. 1522. Extent of Water Privilege set off in Partition. 1523. Continuance in Business. 1524. The Question of Sanity. 1525. Whether a Particular Game is a Game of Chance. 1526. Name- Idem Sonans. § 1507. Questions of Fact. - Matters of description, character or quality are closely allied to matters of identity. They are always questions of fact for a jury. Instances of these will be given in the present chapter; several others will be given in the chapter relating to crimes. 1 § 1508. Eminent Domain: Whether a Use is a Public Use.Under American constitutions, which provide that private property shall not be taken for public use without just compensation, where the question relates to the validity of a statute authorizing 1 Post, $2157, 2159. et seq. peculiar circumstances incident to each case. If a man has a right, by contract or otherwise, to cut and take crops from the land of another, the law, it is obvious, can lay down no rule as to the precise time when they shall be cut and removed; all that can be done is to direct or imply that this shall be done in a reasonable and convenient time; and this must obviously depend upon the state of the weather, and other circumstances which cannot, from their nature, form the basis of any legal rule or definition." 1 "The term reasonable time," said Currey, C. J., "is a technical and legal expression which, in the abstract, involves matter of law as well as matter of fact. Whenever any rule or principle of law applies to the special facts proved in evidence and determines their legal quality, its application is matter of law. But whenever the special facts and circumstances are such that the court cannot, by the aid of any legal rule or principle, decide upon the legal quality of the facts, it is necessary that the jury should draw the inference in fact, with reference to the ordinary course and practice of dealing and the general principles of morality and utility. Where the law itself prescribes what shall be considered to be reasonable time in respect to a given subject, the subject is one of law, and the duty of the jury is confined to finding the simple facts. Where, on the other hand, the law does not, by the operation of any principle or established rule, decide upon the legal quality of the simple facts or res gestæ, it is for the jury to draw the general inference of reasonable or unreasonable [time] in point of fact. In such cases the legal conclusion follows the inference of facts; in other words, the question as to reasonable time, etc., is one of fact; and the time is reasonable or unreasonable in point of law, according to the finding of the jury in point of fact.” 2 § 1531. Meaning of the Words "Reasonable Time." - The words reasonable time would seem to be so easily understood as not to be capable of being made plainer by attempts at definition. The same may be said of the words "reasonable doubt; 1 Stark. Ev. (9th Am. ed.) 769. 2 Luckhart v. Ogden, 30 Cal. 548, 558. |