Abbildungen der Seite

in cases where they apply." It section, upon its true intendment and has been held that this section does construction, is strictly limited to local not render it obligatory upon

the statutes and local usages of the characcourts of the United States to fol- ter before stated, and does not extend low the decisions of the State courts to contracts and other instruments of a upon questions concerning contracts commercial nature, the true interpretaand other instruments of a commercial tion and effect whereof are to be sought, nature. Said STORY, J.: 'In order to not in the decisions of the local tribu. maintain the argument (that this sec- nals, but in the general principles and tion renders it obligatory upon the doctrines of commercial jurisprudence. courts of the United States to follow Undoubtedly the decisions of the local the decisions of the State tribunals in tribunals upon such subjects are entitled all cases to which they apply), it is es- to, and will receive, the most deliberate sential

to hold that the word attention and respect of this court; but *laws,' in this section, includes within they cannot furnish positive rules or the scope of its meaning the decisions conclusive authority by which our own of the local tribunals. In the ordinary judgments are to be bound up and govuse of language it will hardly be con- erned. The law respecting negotiable tended that the decisions of courts con- instruments may be truly declared, in stitute laws. They are, at most, only the language of Cicero, adopted by evidence of what the laws are, and are LORD MANSFIELD in Luke v. Lyde, not of themselves laws. They are often 2 Burr. R. 883, 887, to be, in a great re-examined, reversed and qualified by measure, not the law of a single counthe courts themselves, whenever they try only, but of the commercial world: are found to be either defective or ill. "Non erit alia lex Romæ,alia Athenis, founded or otherwise incorrect. The alia nunc, alia posthac, sed et apud omlaws of a State are more usually under- nes gentes, et omni tempori, una stood to mean the rules and enactments eademque lex obtenebit.Swist v. Ty. promulgated by the legislative authority son, 16 Pet. 18 (1842). thereof, or long established local cus- A judgment of the highest court of a toms having the force of laws. In all State is not a law within the meaning the various cases which have hitherto of the provision of the United States come before us for decision, this court constitution which declares that no have uniformly supposed that the true- State shall pass any iaw impairing the interpretation of the thirty-fourth sec obligation of contracts. Said GRAY, J., tion limited its application to State in New Orleans Water Works Comlaws strictly local, that is to say, to the pany v. Louisiana Sugar Refining Co., positive statutes of the State, and the 8 Sup. Ct. Rep. 741: “This court has construction thereof adopted by the no jurisdiction to review a judgment of local tribunals, and to rights and titles the highest court of a State, on the to things having a permanent locality, ground that the obligation of a contract such as the rights and titles to real es- has been impaired, unless some legislatate, and other matters immovable and tive act of the State has been upheld by intraterritorial in their nature and char- the judgment sought to be reviewed.

It never has been supposed by us The general rule, as applied to this that the section did apply, or was de- class of cases, has been clearly stated signed to apply, to questions of a more in two opinions of this court, delivered general nature, not at all dependent by MR. JUSTICE MILLER: 'It must be upon local statutes or local usages of a the constitution or some law of the fixed and permanent operation, as, for State which impairs the obligation of example, to the construction of ordi- the contract, or which is otherwise in nary contracts or other written instru- conflict with the constitution of the ments, and especially to questions of United States; and the decision of the general commercial law, where the State State court must sustain the law or contribunals are called upon to perform stitution of the State, in the matter in the like functions as ourselves, that is, which the conflict is supposed to exist, to ascertain upon general reasoning and or the case for this court does not arise.' legal analogies, what is the true expo- Railroad Co. v. Rock, 4 Wall. 177, 181. sition of the contract or instrument, or “We are not authorized by the judiciary what is the just rule furnished by the act to review the judgments of the principles of commercial law to govern State courts, because their judgments rethe case. And we have not now the fuse to give effect to valid contracts, or slightest difficulty in holding that this because those judgments, in their effect, impair the obligation of contracts. If administered; or where, as in admiralty, we did, every case decided in a State a mixture of public law, and of mari. court could be brought here, where the time law and equity was often found in party setting up a contract alleged that the same suit. Probably there were few, the court had taken a different view of if any, States in the Union, in which its obligation to that which he held.' some new legal remedies differing from Knox v. Bank, 12 Wall. 379, 383.". the old common law forms were not in



Customs and Usages Are Included in use; but in which, however, the trial by the Word Laws as Used in Treaties.- jury intervened, and the general reguThe Supreme Court of the United lations in other respects were according States has uniformly held that in the to the course of the common law. Proterm laws, as used in a treaty, is in- ceedings in cases of partition and of forcluded custom and usage, when once eign and domestic attachment, might settled; though it may be comparatively be cited as examples variously adapted of recent date, and is not one of those and modified. In a just sense, the to the contrary of which the memory amendment, then, may well be construed of man runneth not, which contributed to embrace all suits which are not of so much to make up the common law equity and admiralty jurisdiction, what. code. Strother 7. Lucas, 12 Pet. 410 ever may be the peculiar form which (1838); United States v. Arredondo, 6 they may assume to settle legal rights. Pet 715 (1832).

STORY, J., in Parsons v. Bedford, 3 Pet. Common Law.–The phrase "common (U.S.) 446. law," found in the seventh amendment A proceeding to take land in virtue to the constitution of the United States, of the government's eminent domain, which declares that "in suits at com- and determining the compensation to mon law, where the value in contro- be made for it, when initiated in a court, versy shall exceed twenty dollars, the is a suit at common law within the right of trial by jury shall be preserved, meaning of the elventh section of the Juand no fact once tried by a jury shall be diciary act of 1789, conferring jurisdicotherwise re-examinable in any court of tion of suits of a civil nature at comthe United States than according to mon law or in equity upon the circuit the rules of the common law," is used

Said the court: “When in the in contradistinction to equity and ad- eleventh section of the Judiciary act of miralty and maritime jurisprudence. 1789 jurisdiction of suits of a civil The constitution had declared, in the nature at common law or in equity was third article, “that the judicial power given to the circuit courts, it was inshall extend to all cases in law and tended to embrace not merely suits equity arising under this constitution, which the common law recognized as the laws of the United States and trea- among its old and settled proceedings, ties made or which shall be made under but suits in which legal rights were to their authority,” etc., and to all cases of be ascertained and determined as disadmiralty and maritime jurisdiction. tinguished from rights in equity, as well It is well known that, in civil causes, in as suits in admiralty. The right of courts of equity and admiralty, juries eminent domain always was a right at do not intervene, and that courts of common law. It was not a 'right in equity use the trial by jury only in ex- equity, nor was it even the creature of traordinary cases to inform the con- a statute. The time of its exercise may science of the court. When, therefore, have been prescribed by statute, but the we find that the amendment requires right itself was superior to any statute. that the right of trial by jury shall be That it was not enforced through the preserved in suits at common law, the agency of a jury is immaterial, for many natural conclusion is that this distinc- civil as well as criminal proceedings at tion was present to the minds of the common law were without a jury. framers of the amendment. By com- Kohl z. U. S., 91 U. S. 376. mon law they meant what the constitu- Martial and Military Law Defined tion denominated in the third article and Distinguished. — “As the phrases ‘law;' not merely suits, which the com- ‘martial law' and 'military law' are mon law recognized among its old and sometimes carelessly used as meaning settled proceedings, but suits in which the same thing, it is proper to point legal rights were to be ascertained and out the broad distinction between them. determined in contradistinction to those The constitution authorizes congress to where equitable rights alone were rec- raise and support armies, and to make ognized, and equitable remedies were rules for the government thereof. Acting



under this authority congress has passed government that one who aids and abets divers acis prescribing the rules and the public enemy cannot be rendered articles of war, and providing for the powerless for mischief, and brought to government and discipline of the justice by the arm of the civil law, that troops. These rules constitute the mili. fact would justify the government in tary law, and are directly sanctioned treating such district as virtually atby the constitution; but they apply only tached to the theatre of military operato persons in the military or naval serv- tions, and in enforcing therein martial ice of the government. What is called law or the laws of war, so far as might martial law, however, has a far wider be necessary to the public safety. We scope and application. When once may concede the right to do this as the established it is made to apply alike to exercise of constitutional power citizen and soldier. To call this system resulting from the power to wage by the name of law seems something of war. But beyond the enforcement a misnomer. It is not law, in any of martial law on the actual field proper sense, but merely the will of the of military operations, which is the remilitary commander to be exercised by sult of an overmastering necessity, and him only on his responsibility to his its establishment in districts which, government or superior officer. Sir though remote from the seat of war, Matthew Hale said (Hist. C. L. are yet so far in sympathy with the 54): 'It is in truth and reality no law, public enemy as to obstruct the adminbut something indulged rather than istration of the laws through the civil allowed law,' In the famous tribunals, and render a resort to milipetition of right in the reign of Charles tary power a necessity as the only I, it was solemnly enacted, that no means of restraining the disloyal from commission should issue to proceed in overt acts, and preserving the authority England according to inartial law, and of the government, we know of no the principle was reasserted in the bill of ground upon which its exercise can be rights of 1688. In the case of Grant z'. defended. It is the result of an abso. Gould, 2 Hen. Blackst. 99, decided in the lute necessity during a period of war, year 1792, Lord Loughborough said that and should terminate with the necessity martial law, in the sense in which we itself. The doctrine that a state of war are now considering it, did not exist in itself suspends, at once and everywhere England, was contrary to the constitu- the constitutional guaranties of our lib. tion, and had been for century erty and property, finds no support in totally exploded. We make these ref- the constitution, and is inconsistent erences merely illustrate how with every principle of civil liberty and odious this system is to the spirit of free government. Johnson v. Jones, 44 liberty and good government. That I11. 153. See also Griffin v. Wilcox, 21 martial law must be permitted to pre- Ind. 376, 377. vail on the actual theatre of military Revenue laws, within the meaning of operations in time of war, is an un- the acts of congress, are those laws avoidable necessity. It results from the which, upon their face, are plainly devery nature of war, which is simply an signed to raise revenue, and not those appeal to force, and where it is being under which revenue may incidentally waged it necessarily suspends and dis- arise. The Nashville, 4 Biss. (U. S.) places the ordinary laws of the land by 188; U. S. v. Morton, 91 U. S. 566; those usages which are known as the . Warner v. Fowler, i Blatch. (U. S.) laws of war. If a commanding officer 311. finds within his lines a person, whether According to Law. -An averment in citizen or alien, giving aid or informa- a complaint that an affidavit was made tion to the enemy, he can arrest and de- according to law, will be held, after tain him so long as may be necessary verdict and judgment, to mean that it for the security or success of his army. was made within the time prescribed

This is the power of a mili- by law. McElhaney v. Gilleland, 30 tary commander on the actual scene of Ala. 183. military operations, and when hostile A Verdict Against Law.-A verdict of armies are confronted with each other a jury in disobedience to the instruc

may, for the purposes of the tions of the court, although the instrucpresent case, go further, and admit tion itself was not correct in point of that, if, in a district remote from the law, is a verdict "against law," within theatre of military operations, the the meaning of subd. 6, § 193 of popular sentiment is so disloyal to the the Practice Act of California, which





I. Definition, 957.
II. Rights and Duties of Persons

Travelling on Highways and

Streets, 957
III. Obstructions, 963.

IV. Rate of Speed, 963.

V. Stopping by the Wayside, 963.
VI. Foot Passengers, 964.
VII. Pleading, 964.
VIII. Canals, 964.

I. Definition.—The law of the road is the law regulating the conduct of travellers as between themselves. 1

II. Rights and Duties of Persons Travelling on Highways and Streets. It is the right of every one to travel on any part of the right of way that may suit his taste or convenience, not occupied by another, providing no one is meeting him with teams and carriages having occasion or a desire to pass. And whe

persons are meeting and passing each other upon the highway it is their duty to drive to the right of the middle of the travelled part of the road or bridge when practicable;3 and in so doing

Cal. 543

provides that a verdict may be set aside to the word “summoned” in the act of on the ground that it is against law.” February 28th, 1799, which provided a Emerson v. County of Santa Clara, 40 compensation for all witnesses "sum

moned" in any court of United States; A Verdict Contrary to Law.-When a and that they import that witnesses verdict, either general or special, is im- who attend without being summoned, perfect by reason of some uncertainty are voluntary witnesses, whose fees or ambiguity, or by finding less than cannot be taxed against the losing the whole matter put in issue, or by not party. Woodruff v. Barney, i Bond assessing damages, it cannot be deemed (U. S.) 528. “contrary to law," within the meaning 1. Grier v. Sampson, 27 Pa. St. 183. of the code of Indiana on the subject of 2. Dunham v. Rackliff, 71 Me. 345. new trial. Said the court: "The statute 3. Kennard v. Burton, 25 Me. 39; points out the causes for which a new Daniels v. Clegg, 28 Mich. 33; Comtrial may be granted, and in our opinion monwealth v. Allen, 11 Met. (Mas..) a defective and insufficient verdict is not 403; Clark v. Commonwealth, 4 Pick. among them.

2 R. S., 1852, p. 117. (Mass.) 125; Earing v. Lansingh, 7 One of the causes for a new trial is that Wend. (N. Y.) 185. the verdict 'is contrary to law.' What is The travelled part of the road under meant by the phrase, "contrary to law,' the Michigan statute (Comp. L. as used in the statute? Clearly not a 2002) means that part which is wrought verdict that is defective or insufficient for travelling, and is not confined simin law merely. A verdict may be de- ply to the most travelled wheel track. fective and insufficient in law and yet Daniels v. Clegg, 28 Mich. 33. See also not contrary thereto. We think that a Earing v. Langsingh, 7 Wend. (N. Y.) verdict which is contrary to law is one 185. which is contrary to the principles of The rule requiring persons meeting law, as applied to the facts which the each other on any public highway to jury were called upon to try; contrary keep their vehicles to the right of the to the principles of law which should centre of the worked part of the road govern the cause." Bosseker v. Cramer, does not apply to the winter season

when the depth of snow renders it imPursuant to Law.-The act of con- possible, or difficult to ascertain the gress of February 26th, 1853, provides centre of the worked part of the road. for the compensation of witnesses “for It is a reasonable construction of the each day's attendance in court, or be- statute to define the center of road fore any officer pursuant to law.” It when obstructed by snow - - to be the has been held that the words “pursuant centre of the beaten or travelled track to law,” in the said act, are equivalent without reference to the worked part.

18 Ind. 44.

Smith v. Dygert, 12 Barb. (N. Y) care under the circumstances. Dudley 613. See also Joquith 7. Richardson, v. Bolles, 24 Wend. (N. Y.) 465. 8 Metc. (Mass.) 213.

It is ordinarily the duty of one on According to the case of Com. v. horseback to yield the travelled path to Allen, ri Metc. (Mass.) 403, travellers one in a vehicle.

Washburn v. Tracy, in carriages who meet in a road are re- 2 Chip. 136. quired, under a penalty, seasonably to In Grier v. Sampson, 27 Pa. St., it drive their carriages to the right of was held that where a horseman or the middle of the travelled part of the light vehicle can pass with safety to the road; and they cannot avoid the pen- left of a heavy loaded team, it is their alty by seasonably turning to the right duty to give way, and leave the choice of the wrought part of the road, though to the more unwieldy vehicle. they leave sufficient room for the trav. In England, the rule of the road as to ellers whom they meet to pass with keeping the proper side applies to sadconvenience and safety in the use of dled horses as well as carriages; and if ordinary care and skill.

Com. v,

a carriage and horse are to pass, the Allen, ii Metc. (Mass.) 403. See also carriage must keep its proper side, and so Simmonson v. Stellenmerf, i Edm. (N. must the horse. Turley v. Thomas, S Y.) Sel. Cas. 194; O'Maley v. Dorn, 7 C. & P. 103. Wis. 236; Pike v. Boswick, 51 N. Y. Teams Heavily Loaded.- A person on Super. (44 Hun) 626; Pigott v. Engle, foot or on horseback cannot compel a 60 Mich. 221; Johnson & Co. v. teamster who has a heavy draught to Small, 5 B. Mon. (Ky.) 25.

leave the beaten part of the road if Though the statute requires a trav- there is sufficient room to pass; and eller to keep to the right, yet it does this rule applies where a person on not justify him in stubbornly keeping horseback meets a buggy carrying on that side, and thus causing a colli three persons drawn by a single horse. sion which a slight change on his part Beach v. Parmeter, 23 Pa. St. 196. might have avoided. O'Maley v. Mail Stage.-A mail stage coach is Dorn, 7 Wis. 236.

protected by act of congress from obAnd though the rule of the road is struction, but is subject in all other renot to be adhered to, if, by departing spects to the laws of the road. Bolton from it, an injury can be avoided, yet, v. Colder, 1 Watts (Pa.) 360. where parties meet on the sudden, and Bicycles.-In Pennsylvania, bicycles, an injury results, the party on the tricycles, and all vehicles propelled by wrong side should be held answerable, hand or foot, and all persons by whom unless it appears clearly that the party "they are used, etc., upon the public on the right had ample means and op highways, shall be entitled to the same portunity to prevent it. Chaplin v. rights and subject to the same restricHawes, 3 C. & P. 554..

tions in the use thereof, as are preApplication of the Rule.—The law of scribed by law in the cases of persons the road, as it is commonly termed, using carriages drawn by horses.” Act does not apply to buildings that are April 23rd, 1889; L. 1889, No. 43, p. 44. being moved through a public high- For a similar statute see Parkyns v. way. Graves v. Shattuck, 35 N. H. Priest, 7 Q. B. Div. 313. 257.

In New York, the act of June 25th, The statute (1 Rev. Stat., ch. 695, 1) 1887, L. 1887, ch.705, is substantially the requiring carriages meeting upon the

the Pennsylvania statute, highway to turn seasonably to the supra. right has no application to the meet- A North Carolina statute which foring of railroad cars with common ve- bids the use upun a certain road "of hicles; and where it appears that the a bicycle, tricycle, or other nonhorse plaintiff turning to the left, his carriage vehicle without the express permission was struck by the defendant's car, it of the superintendent" (Priv. Acts, was held that this did not, of itself, 11856, 14), does not destroy the lawful constitute such negligence on the part use of property, but is a reasonable poof the plaintiff as to put him in the lice regulation. State v. Yopp. 97 N. wrong. Hegan v. Eighth Avenue R. Car. 477. Compare Purple ?'. GreenCo., 15 N. Y. (1 Smith) 380.

field, 138 Mass. 7; Regina v. Mathias, 2 A traveller on horseback meeting an

F. & F. 570. other horseman or a vehicle is not re- Roads Subject to the Rule.-The law quired to turn in any particular way to ofthe road, Rev.Stats. of Massachusetts, avoid collision; he must exercise due ch. 51, § 1, extends to all places appro-



« ZurückWeiter »