Gambar halaman

to load on this charter,” meant that the ves- , the payment of such money, and in this con sel is to take a direct course to the port or nection the two words may be used inter ports at which she must load under the char- changeably. Pelzer Mfg. Co. v. Cely, 18 S. ter party, without deviation or unreasonable E 790, 791, 40 S. C. 430. lelay, but did not mean that the vessel should depart from T. instantly or immediately, but As wish. that she should at that place enter on the

The term "direct," as used in a will voyage provided for in the charter and pro- creating a trust, is used in the same sense ceed in a direct course to the place of load- as "wish” or “will.” Bliven v. Seymour, 88 ing. The Onrust (U. S.) 18 Fed. Cas. 734, 735. N. Y. 469, 476.

Natural and proximate synonymous.

DIRECT ATTACK. In the statement of the rule that one is not liable for the results of an act, unless the

"A direct attack upon a judgment," says act was the natural and proximate cause of Mr. Justice Cooke in Pope v. Harrison, 81 the injury, the word "direct" is often used Tenn. (16 Lea) 82, “is by appropriate proas synonymous with "natural" and with ceedings between the parties to it, seeking, “proximate.” Lovett v. City of Chicago, 35 for sufficient cause alleged, to have it anIll. App. 570, 571.

nulled, reversed, vacated, or declared void."

Meinert v. Harder, 65 Pac. 1056, 1038, 39 Or, As point out.

609. "Direct,” as used in Act 1863, providing

A direct attack on a judgment is an atthat the court to which the record is remit- tempt to amend, correct, reform, vacate, or ted is to pass such sentence as the appellate enjoin the execution of same in a proceedcourt shall direct, means to point out a law ing instituted for that purpose, such as a moproviding for the punishment, and direct the tion for a rehearing, an appeal, some form of court below to sentence thereunder. People writ of error, a bill of review, an injunction v. Bork, 96 N. Y. 188, 202.

to restrain its execution, etc. An attack in Code Civ. Proc. $ 1022, provides that the trespass to try title by devisees against a purreport of a referee must direct the judgment chaser at a sale by the executor, or the judg. to be entered thereon. Held, that the word 'ment of a probate court having jurisdiction "direct,” as used in this connection, is syn- over plaintiff which confirmed the sale, is not

Crawford onymous with the words “to point out; to a direct, but a collateral, attack. guide; to show; to regulate.” Webst. Internat. v. McDonald, 33 S. W. 325, 327, 88 Tex. 626. Dict. And hence it cannot be held that the

The phrase "direct attack," in a state Legislature thereby intended that the referee ment that upon a direct attack on a judg. should formulate the judgment, and that the ment there is no presumption in favor of the only requirement was that the report should existence of a fact essential to the jurisdicbe sufficiently full to show the particular tion of the court, refers to appeals from the form and terms of the judgment to which judgment. Eichhoff v. Eichhoff, 40 Pac. 24, the successful party was entitled thereun- 23, 107 Cal. 42, 48 Am. St. Rep. 110. der. Hinds v. Kellogg, 13 N. Y. Supp. 922, 923.

Where a statutory method is pursued for

avoiding a judgment, the attack on the judg. The verb "direct" ordinarily implies a

ment is direct. Spencer v. Spencer, 67 N. E. pointing out with authority, or directing as

1018, 1020, 31 Ind. App. 321. a superior, and as used in a contract by an attorney with a client for a percentage of

Collateral distinguished. the recovery as compensation for his services, providing that no settlement shall be

When the validity of a record attacked made unless he is present and directs it, is is directly put in issue by the pleadings of used in such sense, thus limiting the client's the party attacking it by proper averment, control over the action, and does not mean the attack is direct, and not collateral; but to guide or advise. Davis v. Chase, 64 N. E. when there are no proper averments attack88, 89, 159 Ind. 242, 95 Am. St. Rep. 294.

ing the record, although its validity is drawn

in the issue of the case, the attack is collatAs require.

eral. Walker y. Goldsmith, 12 Pac. 537, 553,

14 Or. 125. The word “directing,” in Code, s 346, providing that “a notice of appeal from a A direct attack on a judicial proceedjudgment directing the payment of money ing is an attempt to avoid or correct it in shall not stay the execution of the judgment some manner provided by law. In Morrill v. unless a stay of execution is granted,” Morrill, 20 Or. 96, 25 Pac. 362, 11 L. R. A. amounts to neither more nor less than the 155, 23 Am. St. Rep. 95, a collateral attack is word "require." When a tribunal invested aptly defined to be “an attempt to impeach a with the power to enforce its mandates di- decree in a proceeding not instituted for the rects by its judgment a payment of money, express purpose of annulling, correcting, or it is equivalent to saying that it required modifying the decree, or enjoining its execu

tion." It follows, therefore, that if the pro- | Ashland Light, Power & Street Ry. Co., 84 N. ceeding was instituted for any one of these W. 998, 1000, 108 Wis. 255. express purposes it would be a direct attack. Smith v. Morrill, 55 Pac. 824, 826, 12 Colo.

The direct cause of an injury is one with

out which the injury would not have happenApp. 233.

ed. Such was the sense in which the word A direct attack upon a judgment is an at- i “directly" was used in an instruction in an tempt to amend, correct, reform, vacate, or action for damages for an injury occasioned enjoin the execution of the same, in a pro- by collision between two vessels, stating that ceeding instituted for that purpose, such as a the plaintiff would not be entitled to recover motion for a rehearing, an appeal, some form if by his negligence he had directly conof writ of error, a bill of review, an injunc tributed to the accident. Tuff v. Warman, 5 tion to restrain its execution, etc., while a C. B. (N. S.) 573, 586. collateral attack is an attempt to avoid its binding force in a proceeding not instituted

DIRECT CONSANGUINITY. for one of the purposes aforesaid, as where, in an action of debt on a judgment, defend- The series of degrees between persons ant attempts to deny the fact of indebted- who descend from one another is called diness, or where, in a suit to try title to prop- rect, or lineal, consanguinity. Civ. Code erty, a judgment is offered as a link in the Mont. 1895, § 1856; Civ. Code Cal. 1903, 8 chain of title, and the adverse party at- 1390; Rev. Codes N. D. 1899, 8 3747. tempts to avoid its effects, etc. Thus, where a plaintiff in an action to recover land sought

DIRECT CONTEMPT. to set aside on the ground of fraud judgments in partition affecting their title, all Direct contempts are contempts offered parties to the judgments were made parties to a court while sitting as such and in its to the action, the tribunal in which the pend- presence. Stuart v. People, 4 Ill. (3 Scam.) ing action was brought had rendered the 395, 404; Cooper v. People, 22 Pac. 790, 796, judgments, and had jurisdiction to set them 13 Colo. 337, 6 L. R. A. 430; Territory v. Muraside. The attack on the judgments was not ray, 15 Pac. 145, 148, 7 Mont. 251; Stewart v. collateral, but direct, though third parties, State, 39 N. E. 508, 140 Ind. 7; State v. Ano defendants to the action, claiming under the ders, 68 Pac. 668, 669, 64 Kan. 742. judgments, had become possessed of the land. Schneider v. Sellers, 61 S. W. 541, 543, the face of the court, in the presence of the

“A direct contempt is an open insult in 25 Tex. Civ. App. 226.

judges while presiding, or a resistance to its

powers in their presence.” Ex parte Wright, DIRECT CAUSE.

65 Ind. 504, 508. See, also, Holman v. State, By the words “direct and proximate 5 N. E. 556, 557, 105 Ind. 513; Whittem v. cause” are meant the cause which naturally State, 36 Ind. 196, 198. led to and might have been expected to be di

Direct contempts are such as are commitrectly instrumental in producing the result ted in the presence, or such as obstruct or incomplained of. McKeon v. Chicago, M. & terrupt the proceedings, of the court. State St. P. Ry. Co., 69 N. W. 175, 177, 94 Wis. 477, v. McClaugherty, 33 W. Va. 250, 253, 10 S. E. 35 L, R. A. 252, 59 Am. St. Rep. 910.

407, 408. By “direct and proximate cause" is not

Direct contempts are those which are meant the cause or agency which is nearest committed in the presence of the court while in time or place to the result, necessarily. in session, or so near as to interrupt its pro“The active efficient cause, that sets in mo- ceedings. State ex inf. Crow v. Shepherd, 76 tion a train of events which brings to a re- s. w. 79, 177 Mo. 205. sult, without the intervention of any force started and working actively from a new and A direct contempt is an act committed in independent source, is the direct and proxi- the presence of the court, while sitting judimate cause." Lynn Gas & Electric Co. v. cially, or so near to the court as to interMeriden Fire Ins. Co., 33 N. E. 690, 691, 158 | fere with or stop its ordinary way of proMass. 570, 20 L. R. A. 297, 35 Am. St. Rep. cedure. Indianapolis Water Co. v. Ameri540.

can Strawboard Co. (U. S.) 75 Fed. 972, 975;

Snyder v. State, 52 N. E. 152, 151 Ind. 553. The direct cause may not be the proximate cause, and the proximate cause may not Where attorneys during a court day, but be the direct cause. Neither time nor dis- while it was not in session, held a meeting tance is essentially a controlling element in at which one of their number presided in a determining whether a certain cause of an room in the courthouse adjoining the courtinjury is the proximate cause of such injury; room, and occasionally used as a courtroom, so that an instruction that the words "di- which meeting was attended by the judge rect" and "proximate” mean about the same at their request, their acts in his presthing, mean the cause which naturally pro-ence are not committed in the presence of duced the accident, is erroneous. Wills v. the court, and hence cannot constitute direct

contempt. Snyder v. State, 52 N. E. 152, 151, ment, the evidence of a witness who was Ind. 553.

present and witnessed the making of it is

direct. Code Civ. Proc. Cal. 1903, & 1831; To constitute a direct contempt of court there must be some disobedience to its pow. where, on a trial for murder, the identity of

Ann. Codes & St. Or. 1901, § 684. Thus ers, judgment, or process, or some open and intended disrespect to the court or its offi- the person alleged to have been guilty was cers in the presence of the court, or such proved by the direct evidence of an accomconduct in or near the court as to interrupt The death of a human being was proved by

plice, corroborated by circumstantial evidence. or interfere with its proceedings or with the the identification of certain teeth and charred administration of justice. In re Dill, 5 Pac. bones found in a river near the point where 39, 47, 32 Kan. 668, 49 Am. Rep. 505.

the body was burned, and there was circumContempts are either direct, which open- stantial evidence to prove the identity of the ly insult and resist the powers of the court deceased. The evidence was sufficient to sator the persons of the judges who preside isfy the requirements of Pen. Code, $ 358, there, or else are consequential, which with that the death of a person alleged to have out such gross insolence or direct opposition been killed must be established by direct plainly tend to create a universal disregard proof as an independent fact. State v. Calof other authority. A direct contempt is one der, 59 Pac. 903, 904, 23 Mont. 504. offered in the presence of a court while sit

1 Greenl. Ev. $ 13, defines direct evidence ting judicially. A constructive contempt is one which tends to obstruct or embarrass a is directly attested by those who speak from

as being given when the thing to be proved court, though the act be not done in its pres their own actual and personal knowledge of ence. State v. Hansford, 28 S. E. 791, 792, 43 W. Va. 773; State v. Henthorn, 26 Pac. 937, to be proved is to be inferred from other

its existence; circumstantial, when the thing 938, 46 Kan. 613; Androscoggin & K. R. Co. facts satisfactorily proved. See, also, Wills, v. Androscoggin R. Co., 49 Me. 392, 400.

on Cir. Ev. c. 2, § 1. And in a case of bomi

cide direct proof of death would have been DIRECT DAMAGES.

testimony of a witness who knew the person Direct damages are such as flow imme- killed in his lifetime, and who would testify diately upon the act done. Civ. Code Ga.

that the body found was the body of such 1895, § 3911.

person. People v. Palmer, 11 N. Y. St. Rep.


Under the rule that a contract for testa

mentary compensation for work done by a Direct evidence is given where a wit- ' father for a son, after his majority, can be ness testifies directly of his own knowledge proved only by direct and positive evidence, of the main fact or facts to be proven. State a charge that the evidence must be clear and v. Avery, 21 S. W. 193, 197, 113 Mo. 475; satisfactory is erroneous; the words not beState v. Tate, 56 S. W. 1099, 1100, 156 Mo. ing synonymous. Bash v. Bash, 9 Pa. (9 119; State v. Dickson, 78 Mo, 438, 441.

Barr) 260, 262. “Direct or positive evidence is given when a witness can be called to testify to the DIRECT EXAMINATION. precise fact which is the subject of an issue

The examination of a witness by the on trial." Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 310, 52 Am. Dec. 711; rect examination”; the examination of the

party producing him is denominated the “diPeople v. Morrow, 60 Cal. 142, 144.

same witness upon the same matter by the Evidence is direct and positive where the adverse party, the cross-examination. The particular facts in dispute are communicated direct examination must be completed before by those who have actual knowledge of them the cross-examination begins, unless the court by means of their senses. Pease y. Smith, otherwise direct. Ann. Codes & St Or. 1901, 61 N. Y. 477, 484.

$ 846. Direct evidence is that which in the first

DIRECT INJURY. instance applies directly to the factum prohandum. Beason v. State, 67 S. W. 96, 98,

The phrases “direct injury" and "conse43 Tex. Cr. R. 442.

quential injury” are not of the same meaning Direct evidence is that which immediate- as "direct damages” and “consequential damly points to the question at issue. Civ. Code ages.” The latter phrases are of the termiGa. 1895, $ 5143; Pen. Code Ga. 1895, $ 983.

nology of damages and the measure of dam

ages, while the former are not, but are of the Direct evidence is that which proves the terminology of injuries. To illustrate, a difact in dispute directly, without an infer- rect injury may, in addition to direct damence or presumption, and which in itself, if ages, do indirect, or, as it is often more true, conclusively establishes that fact; for loosely phrased, consequential, damages; and example, if the fact in dispute be an agree the latter are recoverable as well as the for


mer, unless they be not "proximate,” but, or chemicals caused by ire; explosion of "remote," to use two other words which be- steam boilers; the destruction of buildings long to the terminology of damages. In the to prevent the spread of fire; or their decase of a direct injury the measure of dam- struction through the falling of burning ages includes both direct and indirect or con- walls, etc. California Ins. Co. v. Union Comsequential damages, but in the case of conse- press Co., 10 Sup. Ct. 365, 372, 133 U. S. 387, quential injuries, there are no recoverable 33 L. Ed. 730. damages at all. Consequential damages can only result from a direct injury, while no

DIRECT PAYMENT. actionable damages of any kind result from a consequential injury. Sadlier v. City of New The term "direct," as defined by WebYork, 81 N. Y. Supp. 308, 312, 40 Misc. Rep. ster, means “immediate, express, unambigu78.

ous, confessed, absolute.” The word “direct,"

in the English language, is one of wide acDIRECT INTEREST.

ceptation, and has been adopted into the law

in many relations. Thus, we have “direct A direct interest, as relating to the com- descent," "direct taxes," "direct interest,” petency of a witness in a suit against an ex- "direct route," and "direct payment"; and as ecutor, is the opposite of an indirect inter- used in the latter term it means one which is est, and excludes the idea of contingency. absolute and unconditional to time, A direct interest is defined in Winfield, Words amount, and the persons by whom and to & Phrases, p. 195, as “one which is certain, and whom it is to be made. People v. Boylan (U. not contingent or doubtful.” In Black's Law S.) 25 Fed. 594, 595. Dictionary it is defined: “A direct interest, such as would render the interested party in

The phrase "direct payment of money," competent to testify in regard to the matter,

as used in Code, $ 92, which provides that in is an interest which is certain, and not con- all actions brought on overdue promissory tingent or doubtful.” In re Van Alstine's Es. notes, bills of exchange, or other written in

struments for the direct payment of money, tate, 72 Pac. 942, 943, 26 Utab, 193.

and upon book accounts, the creditor may

have a right of attachment entered, means DIRECT LINE.

such instruments as provide for the immediSee "By Direct Line.”

ate payment of money, such as overdue bills

of exchange and promissory notes. Hurd v. The direct line is divided into a direct McClellan, 23 Pac. 792, 793, 14 Colo. 213. line descending and a direct line ascending. The first is that which connects the ancestor

DIRECT RESULT. with those who descend from him. The second is that which connects a person with By direct result, as relating to the cause those from whom he descends. Rev. Codes of an injury, is meant the first result or efN. D. 1899, $ 3748.

fect. Story v. Chicago, M. & St. P. Ry. Co.,

44 N. W. 690, 692, 79 Iowa, 402. DIRECT LOSS.

In an instruction, in an action for perIn an insurance policy, providing that sonal injuries, that the jury should assess the insurer would be liable if the falling of such damages as were the direct result of the insured building was caused by a direct

defendant's negligence, "direct" is synonyloss or damage by fire, the word "direct" mous with “natural” and “proximate.” Lovmeans merely immediate or approximate, as

ett v. City of Chicago, 35 Ill. App. 570, 571. distinguished from remote; and where a "Direct result," as used in the statement building fell because a portion of the build- that the diseased mental condition of acing was burned and fell, thereby causing the cused in a prosecution for murder was the partition wall to fall, the loss was direct. direct and immediate result of voluntary Ermentrout v. Girard Fire & Marine Ins. drunkenness, means that such mental condiCo., 65 N. W. 635, 636, 63 Minn. 305, 30 L. R. tion arose during a condition of drunkenness, A, 346, 56 Am. St. Rep. 481.

and pending a single, continuous, voluntary, “Direct loss or damage by fire,” as used drunken debauch, which at its origin started in a fire policy against direct loss or damage with the accused in a condition of sanity. by fire, applies to all losses of which fire is State v. Haab, 29 South. 725, 728, 105 La. 230. the immediate cause. California Ins. Co. v. Union Compress Co., 10 Sup. Ct. 365, 133 U. DIRECT ROUTE. S. 387, 33 L. Ed. 730.

Code, $ 3788, provides that a sheriff sball In a policy of insurance, direct loss or be entitled to mileage for conveying convicts damage by fire meant the loss or damage oc- to the penitentiary at the rate of 16 cents for curring directly from the fire as the destroy each mile traveled from the county seat to ing agency, in contradistinction to the remote- the penitentiary by the most direct route of ness of fire as such agency. Remoteness of travel. Held, that the term "most direct agency is the explosion of gunpowder, gases, / route of travel," as so used, meant the route

which was most generally used in journeying a tax on personal property or the income
between the two places. Thus, where the thereof. Pollock v. Farmers' Loan & Trust
route most generally used was a railway, Co., 15 Sup. Ct. 912, 916, 158 U. S. 601, 39 L
which was much longer than an old wagon | Ed. 1108.
road, which was but seldom used, and then

A tax on real estate is a direct tax on
only by private conveyances, the sheriff was
entitled to convey his prisoners by the rail- real property. People v. Knight, 67 N. E.
road, and was entitled to compensation com- 65, 66, 174 N. Y. 475, 63 L R A. 87.
puted by that route, instead of by the shorter
wagon road. Maynard v. Cedar County, 1 N. DIRECT TESTIMONY.
W. 701, 702, 51 Iowa, 430.

The term "direct testimony,” or “posi

tive testimony," is used to designate the DIRECT TAX.

testimony of those who speak of their own A direct tax, within Const. art. 1, § 8, in controversy. The proof in such case

actual and personal knowledge of the fact providing that no capitation or other direct rests upon faith in the veracity, impartial. tax shall be levied, unless in proportion to the census of the inhabitants of the United of memory, etc., of the witnesses. The proof

ity, opportunity for observation, accuracy States, means a capitation or poll tax simply, without regard to property, profession, applies immediately to the factum proban

dum, without any intervening process. State or any other circumstance, and a tax on

v. Miller (Del.) 32 Atl, 137, 141, 9 Houst. land. Hylton v. United States, 3 U. S. (3

564. Dall.) 171, 174, 1 L. Ed. 556; Pacific Ins. Co.

. Soule, 74 U. S. (7 Wall.) 433, 445, 19 L.
Ed. 95; Scholey v. Rew, 90 U. S. (23 Wall.) DIRECT TRUST.
331, 347, 23 L. Ed. 99; Springer v. United
States, 102 U. S. 586, 602, 26 L. Ed. 253.

A direct or express trust is one spring.
The tax imposed by Act Cong. July 13, 1866, ated by words, either expressly or impliedly

ing from the agreement of the parties, cre. on notes of state banks, is therefore not a direct tax. Veazie Bank v. Fenno, 75 u. evincing the intention to create a trust. It

is distinguished from a constructive or imS. (8 Wall.) 533, 542, 19 L. Ed. 482.

plied trust, which is a trust created by eg. Historical evidence shows that personal uity law; a trust not created by any words property, contracts, occupations, and the like either expressly or impliedly evincing a dibave never been regarded as the subjects rect intention to create a trust, but by the of direct taxation. The phrase is understood construction of equity in order to satisfy to be limited to taxes on land and its appur- the demands of justice. Currence v. Ward, tenances, and on polls. Veazie Bank v. Fen- 27 S. E. 329, 330, 43 W. Va. 367. no, 75 U. S. (8 Wall.) 533, 541, 19 L Ed. 482.

DIRECTION. A direct tax is a tax demanded from

See “Express Direction"; "Under the Di. the very person who it is intended or desired

rection of." should pay it. A tax assessed as a direct tax in this sense may nevertheless fall ulti

In a plea alleging that plaintiff had the mately upon one other than the one desired “direction, care, and management” of a ship, to pay it. It is generally agreed that the which defendant was charged with having greater part of a tax assessed against the neglected to load according to contract, was landlord falls finally upon his tenant. So construed to mean the actual direction, care, a tax upon mortgages upon land in the end and management, and not merely the legal proves to be a tax upon the borrower. In direction, care, and management. It is neither of these cases was it intended or equivalent to a charge of actual bad didesired that the burden of the tax should rection, care, and management, which infall upon either the renter or borrower. cluded such conduct on the part of the masYet, though it may happen that the renter ter and crew. Taylor v. Clay, 9 Q. B. 713, and borrower have in other forms fully paid | 723. their due proportion of tax, the unintended duplication of their burden will not make

The word “direction," as used in a con. the tax which they have been indirectly tract by which a contractor agreed to build compelled to pay double taxation. South a sewer under the immediate direction and Nashville St. R. Co. v. Morrow, 11 S. W. 348, superintendence of the commissioner of pub850, 87 Tenn. (3 Pickle) 406, 2 L. R. A. 8.33.

lic works, related to the results, and not to

the methods to be employed, and did not, A tax upon rents and income of real es- therefore, make the contractor a servant of tate is equivalent to a tax on the real estate the city, as being one who, though he is to Itsell, and is therefore a direct tax, within have a stipulated price for a thing, executes the constitutional prohibition. Pollock v. it under the direction and superintendence Farmers' Loan & Trust Co., 15 Sup. Ct. 673, of the employer. Foster v. City of Chicago, 689, 157 U. S. 429, 39 L Ed. 759. Likewise 64 N. E 322, 323, 197 Ill. 264.

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