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complaint sets up what under the common- tinction between law and equity is not law rules would have been a good declara changed. The relief which the law affords tion in trespass on the case, and also asks must be administered through the intervenfor two remedies, to wit: (1) A judgment tion of a jury, unless a jury be waived. The for the sum of $2,000; and (2) that the plain- relief which equity affords must be applied till be decreed to have a prior right to the by the court itself." And the same rule use of the waters of Mineral (reek, and that has been held to be the law in Hiornbuckle the copper company be enjoined from pol- v. Toombs, 18 Wall. (U. S.) 618, 21 L. Ed. luting the waters of said creek. The record 966, IIershfield v. Griffith, 18 Wall. (U. S.) also discloses that a verdict was returned 6.97, 21 L. Ed. 968, and Davis v. Bilsland, by the jury which tried the cause in De- 18 Wall. (U. S.) 639, 21 L. Ed. 969. cember, 1903, while nothing was done about It will be observed that all of these fed. securing the restraining order until March, eral cases were decided before the passage 1906, more than two months after the jury by Congress of the act of April 7, 1874, had passed upon the cause. Indeed, the which expressly saves to a litigant the record does not show that a permanent in- right of trial by jury. It is true that the junction has ever been granted in the case. plaintiff in error quotes in support of his

By section 1868 of the Revised Statutes contention the case of Lynch F. Metropolitan of the United States the district courts of Ry. Co., 129 N. Y. 274, 29 N. E. 315, 15 this and other territories possess chancery L. R. A. 287, 26 Am. St. Rep. 523, and seras well as common-law jurisdiction, and at eral fecleral cases; but the Lynch Case seems one time it was a serious question as to to stand alone, and is, we think, overwhelinwhether a territorial Legislature had the ed by the number of cases which hold to right to adopt a Code of Civil Procedure; the contrary, while all of the federal cases but on April 7, 1971, this right was given cited, except the first, refer to damages as by act of Congress, but attached to it is the

to infringements of patents, which class of proviso that by the enactment of a Codle no cases is governed by statute sections 4919 person should be deprived of the right of and 1921, Rev. St. U. S. [U. S. Comp. St. 1901, trial by jury in cases cognizable at common pp. 3394, 3395], providing that damages for law. There is no doubt, as stated above, infringement may be adjudged either in but that the complaint in this case, down to law or equity. The first case cited by counthe prayer for relief, sets up a state of sel for plaintiff in error is that of Barton facts which was "cognizable at common v. Barbour, 104 U. S. 126, 20 L, Ed. 672; law," and which entitled the plaintiff to and, as we understand that case, all that the the right of a trial by jury; and under the court holds is that a receiver of an insolvent acts of Congress just above referred to the railroad, where the decree appointing him Legislature could not, even if it had been provides that he has authority to defend all so disposed, which we do not even for a actions brought against him by leave of the moment intimate, have taken away the right. court, cannot be sued as such receiver in The mere fact that the defendant in error another jurisdiction, unless the order of the united in one complaint the necessary al- court by which he was appointed receiver legations and prayers for legal and equi- for leave to bring the suit be first obtained. table relief does not deprive him of his The true rule seems to us to be that in a right to a jury trial on the legal issues; and

suit for damages, where an injunction is althis has been the holding, and we think so asked, if the suit is primarily for the properly, in nearly all of the Code states. injunction and the right to damages is merePomeroy's Code Remedies, $$ 59, 86; Hill v. ly incident to and dependent upon plainSmith, 27 Cal. 476; Potter V. Froment, 47

tiff's right to the injunction, the court may Cal. 105; Hudson v. Caryl, 44 N. Y. 553; without the intervention of a jury assess Sternberger v. McGovern, 56 N. Y. 12; MC

the damages already sustained; but, if the Pherson V. Featherstone, 37 Wis. 632:

action is brought primarily for the recovery Hughes v. Dunlap, 91 Cal. 385, 27 Pac. 612.

of a money judgment, it is triable by a And the highest federal court has held like

jury, notwithstanding the plaintiff also asks wise in a case very similar to this which for an injunction against the further violacame up from Montana, when it was still

tion of his rights, or an injunction pendente a territory, and its courts were organized

lite. 24 Cyc. 122. under a law about the same as ours. The

2. The next error assigned which we nend syllabus in the case of Basey et al. v. Gal

to consider is that the court below erred in lagher, 20 Wall. (U. S.) 670, 22 L. Ed. 452,

overruling defendant's motion for a continuwhich was decided in 1874, says: "Although ance. The record shows that the complaint the organic act of the territory of Non

in this case was filed on July 13, 1904. tana common-law and chancery jurisdiction On August 13, 1901, a special answer, in the is exercised by the same court, and by legis

nature of a plea in abatement, was filed, lation of the territory the distinctions be

stating that the name in which defendant tween the pleadings and modes of proce- was sued was not its true name. On Sepdure in common-law actions and those in

tember 9, 1904. answer was filed, and on equity suits are abolished, the essential dis- į September 12, 1904, leave was given to


amend the complaint by correcting the name, what they are, we would have to search the of the defendant by interlineation. The entire evidence and the rulings of the court case appears to have been set for trial on most carefully, and endeavor to ascertain the jury trial list for the June, 1903, term which questions and answers the plaintiff in of court, for a motion was made to strike error objected to, and even then we might the cause fron.1 the jury trial docket, which : not select all of those which were regarded motion on June 30, 1905, was overruled, and as harmful by its counsel. It is a well-seton July 6, 1905, the case was again set in tled rule of this court that we will not reopen court for trial for the second Monday view alleged erroneous rulings of the trial of the next ensuing term of court-i. e., the court upon the admissibility or nonadmissiDecember, 190.), term. On December 6, bility of evidence, unless they are specifical1505, motion for security for costs was filed, ly pointed out. In the case of Anderson v. and on the 10th of the same month such Territory, 4 N. 1. 21:3, 13 Pac. 21, this court security was filed, and three days later a lays this down as the rule, and quotes apmotion and affidavit for continuance was provingly the law as laid down in Grant v. filed, which motion was presumably over- Westfall, 57 Ind. 126, as follows: “It has ruled, as the cause was tried; the trial com- j· been repeatedly held by this court that when mencing on December 13, 1905. This court a party complains of an alleged erroneous has repeatedly held that the granting or

decision of the court trying the cause, either refusing of a continuance in any case rests

in the exclusion or armission of evidence, in the sound discretion of the court, and he must point out in his motion for a new wili not be ground for error unless the court

trial with reasonable certainty the particugrossly abuses such discretion. Beall

lar evidence admitted or excluded; otherwise, Territory, 1 N. M. 507; Territory v. Padilla, the court below need not, and this court will 12 V. M. 1, 71 Pac. 1084.

not, consider such alleged erroneous deciWe can see no abuse of discretion on the sion." And we have held the same as late as part of the court in the case at bar in re- the case of Territory v. Cordova, 11 N. M. fusing the motion for continuance. The case 367, 68 Pac. 919, in which case authorities was first set on the jury trial docket for the are cited. We see no good reason for deJune term, A. D. 1905, and on July 6, 1905, in

parting from the law as heretofore announced open court, was reset for the second Monday by this court, and we will not consider the of the following December terin of court. objections to the introduction of the testiWe know of no greater publicity that can mony, except in so far as we are obliged to be given as to when a case will be tried than do so in passing on the giving and refusing of to set it in open court. It is true that the instructions by the court to the jury. affidavit for continuance sets out that the 4. The other alleged errors relate to the attorneys for the defendant below had no measure •of damages. These alleged errors notice of such setting until November 22, are based upon the admission of certain evi1905: but it seems to us that they should dence by the court, the refusal of the court to have had such notice long before that day, give to the jury certain instructions asked for an attorney who has cases on the docket by plaintiff in error, and the giving of cershould be in attendance at court while it tain instructions asked by the defendant in is in session, or at least should have some error, to all of which objections were duly one there who will advise of the action of made and exceptions saved. One of the exthe court in any matters in which he may be ceptions is that it was error to permit eviinterested. We will also take judicial no- dence to go to the jury as to the damages tice of the fact that the December term, 1905, caused by the tailings remaining on the of the district court, sitting within and for lands, because the water which contained the Socorro county, began on December 4, 1905, tailings was turned upon such lands by the and that the second Monday of said term defendant in error. The evidence discloses was Derember 11th. Consequently from Yo- that the spring of the year 1904 was very dry, vember 2211, when the attorneys for the le- and that much vegetation was destroyed by fendant below admit that they had notice reason of the prevailing drought; that deof the setting of the case to December 11th, fendant in error knew that tailings from was nearly three weeks—ample time, it seems the mill of plaintiff in error was in the water to us, to prepare for trial. The first affida- which ran down Mineral creek and into his vit for continuance was not filed until De- irrigation ditch, but that he thought that much cember 13, 1903, two days after the case was loss would be prevented by irrigating his set for trial. We see no error in the refusal : alfalfa, trees, vines, and vegetables with such of the court to grant the continuance asked : water, even if polluted, as without such irrifor.

gation they would be completely destroyed. 3. Fire of the alleged errors relate to the The instruction given by the court in readmission of evidence objected to by plaintiff : gard to this point is numbered 7, and is as in error. Each of these objections, as shown follows, to wit: "(0) You are instructed that in the motion for a new trial and assigned if you believe from the preponderance of as error, is in the most general terms, and the evidence the plaintiff has acquired the does not point out the particular question and right to use the water of Mineral creek för answer objected to. In order to ascertain , the irrigation of his farm prior to the pollution of the same by defendant corporation by testimony to go to the jury as to the amount allowing the tailings from its quartz mill to of money and also to the percentage of damflow therein, then you are instructed that it age occasioned by the deposit of the tailings devolved upon the plaintiff, before using the on the land, and as to the value of the fruit said water for irrigation, to use ordinary trees in the orchard and grapevines growing care in determining whether said water, so in the vineyard, and destroyed by the tailpolluted, would injure the vegetation on his ings; the plaintiffs in error claiming that farm or would injure the soil thereof, and, they had no value except as a part of the failing to exercise said ordinary care, he can- inheritance, and that the true measure of not recover in this case, unless you further damages was the difference in the value of find from a preponderance of the evidence the land prior to the death of the trees and that he was compelled to use said water for vines and its value subsequent to that time. irrigation, and in the exercise of ordinary The authorities on this point are somewhat care and prudence he elected to use said wa- in conflict. Some of the states have admitter in its polluted condition, as calculated ted evidence both ways on the question, and to result in less injury to him than to fail the rule contended for by the plaintiff in erto irrigate his said land at all, in which event ror is not the only or universal one. We beyou will not refuse to award plaintiff such lieve that the damages may be proven in damages as he has suffered, notwithstanding either way. What the law really requires he may have known, or with ordinary care “is that such damages be allowed as, in the should have known, the damaging results of judgment of fair men, directly and naturally such use of such water in such polluted con- resulted from the injury for which the suit dition; but in no event would the plaintiff is brought. This is the rule which obtains be entitled to greater damages than would in civil actions for damages. They have have accrued by not using the water so their foundation in the idea of just compolluted.” This instruction covers the law pensation for wrongs done.” Hetzal v. B. & as we understand it. It is the duty of a per- 0. R. Co., 169 U. S. 37, 18 Sup. Ct. 259, 42 L. son to prevent an injury to his property, if he Ed. 618. The damages to vines and fruit can do so, and, if he cannot prevent such trees "is to be estimated with reference to injury entirely, to take such reasonable steps what they are worth on the premises in as are in his power to reduce the damages. their growing state, and not as taken up and This rule is admirably stated in 13 Cyc. 71, removed from the place." Montgomery V. 72, and is supported by citations of many Locke, 72 Cal. 75, 13 Pac. 401. cases in notes 43 to 46, inclusive, on those The instruction given by the trial court in pages. The rule is: “Where an injured par- regard to the damages seems to us to be ty finds that a wrong has been perpetrated eminently fair. It reads as follows: “(6) on him, he should use all reasonable means Now, if you find from the preponderance of to arrest the loss. He cannot stand idly by the evidence in this case, if any, that the and permit the loss to increase, and then hold plaintiff operated and used the waters of the wrongdoer liable for the loss which he said Mineral creek for the purpose of irrigatmight have prevented. It is only incumbent ing his farm, and the crops, trees, and vines upon him, however, to use reasonable exer- thereon, prior to the bringing of this suit, tion, and the question in such cases is al- and prior to the time the defendant began ways whether the act was a reasonable one, depositing the tailings from their mill there, having regard to all the circumstances of the if they so did, that the depositing of such particular case. The application of this rule tailings in said creek by said defendant comsometimes has the effect of enhancing the pany, if you so find, polluted the water of damages, rather than reducing them; but, said stream, and that such tailings were where a reasonable and bona fide attempt washed down by plaintiff's land and in his has been made on the part of the plaintiff to irrigating ditches during the year A. D. 1901, reduce the damages,

* it does not re- and that thereby the plaintiff's trees, vines, lieve the defendant from a full recovery of crops, and land were injurel, then and in the damages claimed.” Plaintiff in error such event you shall find for plaintiff in such asked the court to instruct the jury that, if sum or sums as will compensate him for the the defendant voluntarily turned the water damages sustained by him, if any, during the carrying the tailings into his land, he was said year 1904, prior to the bringing of this bound to know the effect of so turning the suit, and claimed by him in his complaint water containing the tailings into his land, therein, in no event to exceed the amount of and therefore could recorer no damages on damages claimed by plaintiff in his comaccount of the injury done by the tailings to plaint, namely, two thousand dollars." In a his land. The court very properly, we think, well-considered case in Kansas involving the declined to give this instruction, as the ques- destruction of fruit trees, the court said: tion was: Was he justified in turning the "It is contended that the question should water on his land, with the view of trying have been confined to the value of the farmı to prevent the greater damage which would as a whole before and after the injury, leavoccur if he did not so irrigate it?

ing the jury to compute the damages by deAnother claim of the plaintiff in error is ducting one from the other. While this is that the court committed error in allowing undoubtedly the regular and proper method


of arriving at such damages as cannot be

(14 N M. 293) itemized and definitely measured in detail, UNITED STATES V. TALLMADGE et al. it does not preclude the use of the best evi- (Supreme Court of New Mexico. Aug. 30, 1907.) dence which the nature of the case affords.

INDICTMEXT-FINDING BY GRAND JURY-INWhere a thing, whether it be a building, a PEACEMENT. tree, or shrub, is destroyed by a wrongdoer,

Members of the grand jury, under our statthe most natural and best measure of dam

ute, will not be permitted to impeach an indiet

ment duly found, returned in open court, and age is the value of the thing destroyed as an filed as such, by testifying as to what was said appurtenant to or part of the realty, and or- by the prosecuting officer, while advising with dinarily the value of the thing destroyed

them in his official capacity.

[Ed. Note.-For cases in point, see Cent. Dig. would be the measure of the injury to the

vol. 27, Indictment and Information, $ 53.] freehold." M., K. & T. Ry. Co. v. Lycan, 57

(Syllabus by the Court.) Kan. 635, 47 Pac. 526. And in another case the Supreme Court of Kansas also say: "A

Appeal from Fifth Judicial District Court; further claim is made that at most only nom- before Justice Wm. H. Pope. inal damages could be awarded under the

Benjamin H. Tallmadge and others were evidence. The plaintiff showed that some

indicted for conspiracy. Judgment vacating 150 apple trees had been destroyed and that

the indictments, and the United States apthey were of the value of from $5 to $10

peals. Reversed. each. The defendants' witnesses testified that the farm on which the orchard was

W. H. H. Llewellyn, E. L. Medler, and U.

Catron growing was as valuable after the fire as it

S. Bateman, for the United States. was before. It is competent to prove dam

& Gortner and J. M. Hervey (A. M. Stevenages such as were here claimed by showing

son and Daniel Prescott, of counsel), for apthe value of the trees destroyed (M., K. & T.

pellees. Ry. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; M. C., Ft. S. & M. R. R. Co. v. Perry, 65

MANN, J. At the November, 1903, term Kan. 792, 70 Pac. 876), or by showing the de. of the district court of the Fifth judicial dispreciation of the value of the real estate." trict, sitting for the trial of causes arising A., T. & S. F. Ry. Co. v. Geiser, 68 Kan. 281,

under the Constitution and laws of the Unit75 Pac. 68. We are of the opinion that this ed States, the defendants were indicted upon is the proper rule, and that the damages can various charges concerning the public lands be proved in either or both ways, and that

of the United States, charging conspiracy to this is the rule which is sustained both by defraud the government, perjuries, subornareason and by the weight of authority. tion of perjury, and other offenses of like

We have carefully examined the instruc- nature; the indictments being numerous, but tions given by the court in this case, and all relating to like transactions referring to we see no error in them, and we have also certain land entries and proofs under the examined the instructions asked by plaintiff laws of the United States. To some or all in error, and which virtually ask the court of the indictments appellees filed pleas in to instruct the jury to return a verdict in abatement, setting up the specific grounds, favor of the defendant below, and we see no to some of which grounds demurrers were error in the refusal of the court to give them. interposed and sustained by the trial court,

An examination of the record discloses and upon the remaining issues appellant that the verdict as returned by the jury, and made answer, and the issues thus formed the judgment entered in the lower court were submitted to a jury. The issue thus against the defendant, was in the wrong tried consists of alleged misconduct of the name, to wit, the Mogollon Gold & Copper United States district attorney: (1) In urgMining Company, and not against the Mogol- ing to and upon the grand jury that the inlon Gold & Copper Company, as is shown by terests of the government of the United the special answer on page 12 of the trans- States required and demanded that said cript of record to be the true name of the grand jury should find an indictment against defendant company; and according to the said defendants; (2) that he stated to said authority vested in this court to make such grand jury that the evidence theretofore amendments as may be necessary to do jus- considered by them was amply sufficient uptice between parties to the suit, it is ordered on which to find indictments against said that the judgment of the lower court in the defendants; (3) that he stated to said grand name of the Mogollon Gold & Copper Min- jury that, if they did not find and return ing Company be affirmed in the name of the a true bill or true bills against said defendMogollon Gold & Copper Company, and the ants, upon the evidence theretofore given because is remanded to the lower court, with fore them, that he, the said Llewellyn, would directions to execute the judgment as amend. have the grand jury dismissed. Upon the ed; and it is so ordered.

trial of these issues the court permitted mem

bers of the grand jury to testify as to what POPE, MANN, ABBOTT, and McFIE, JJ., was said by the United States district atconcur. PARKER, J., having tried this case torney in the grand jury room; in fact the below, took no part in this decision,

sole evidence upon the issues raised by the

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plea was the evidence given by the grand jury and by the United States district attorney. This evidence was admitted over the objection and protest of the United States, and exceptions to the court's rulings upon the admission of such evidence were duly taken at the time. The jury found for the appellees as to all the indictments. A motion for a new trial was heard and sustained as to certain: indictments and overruled as to others, and final judgment rendered against the United States abating the indictments, from which judgment the United States appeals.

We do not deemn it necessary to discuss but one of the questions of law raised by the assignment of error and discussed by counsel in their briefs, as we think it controlling under the circumstances of this case. If the members of the grand jury and the district attorney are competent witnesses to the transactions and occurrences concerning which they testified in this case, then the verdict of the jury on the issues joined could not be disturbed. Section 950 of the Compiled Laws provides: The grand jury may, at all reasonable times, ask the advice of the court, the Attorney General or the district attorney of the county, and whenever required by the grand jury it shall be the duty of the district attorney of the county to attend them for the purpose of framing indictments, or of examining witnesses in their presence but no district attorney, sheriff or other person shall be permitted to be present during the expression of opinions, or giving of their votes upon any matters before them. Section 987 provides that every member of the grand jury must keep secret whatever he himself, or any other grand juror, may have said, or in what manner he or any other grand juror may have voted, on a matter before them, and provides a penalty for a violation of such provisions. Section 988 provides that a grand juror may, however, be required by the court to disclose the testimony of any witnesses examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given before them, by any other person, upon a charge against him for perjury, or in giving his testimony, or upon his trial thereof. The foreman and each member of the grand jury, before entering upon their duties as such, are required by law to take an oath that they will diligently inquire and true presentment make of all public offenses against the people of the United States or this territory, committed, or triable in this county, of which they shall have or obtain legal evidenre; that they sball present no jielseitilizou l: malice, liittred, or ill will; not have any presented through fear, favor, or alle till, or for any reward

, or promise or hope thereof; but that in all their presentments or livictments they shall present the truth, the whole truth, and noth

ing but the truth, according to the best of their skill and understanding. The law also makes it imperative upon the court to instruct the grand jury as to the nature of their duties as such, and provides that their indictments, when found, must be returned by them in open court, and the indictments must be filed with the clerk of the court and remain in his office as a public record.

It is a serious question, then, whether indictments so found, presented, and filed may be impeached by members of the grand jury, for such impeachment would involve the testimony under oath of a grand juror that he and his fellow jurors had violated another oath, solemnly administered, by voting a true bill upon other considerations beside legal evidence, and that the indictment which had been solemnly presented and tiled as a public record did not present the truth, the whole truth, and nothing but the truth, according to their skill and understanding. It is a principle well established by eminent authorities that, where there are statutory provisions (such as ours above quoted) prescribing the instances in which grand jurors may testify as to what occurred before them, such statutes are exclusive, and grand jurors may testify in no other than the prescribed cases. 17 Am. & Eng. Ency. of Law, 1295; People v. Thompson, 122 Mich. 113, S1 X. W. 341; People v. Lauder, 82 Mich. 109, 40 X, W.; State F. Jolinson, 115 Mo. 130. 22 S. W. 163; Tindle v. Nichols, 20 Mo. 326;

Mo. 326; State v. Baker, 20 Mo. 339; State v. IIamilton, 13 Nev. 387; Hall v. State, 134 Ala. 91, 32 South. 750. “At common law a grand juror could not ordinarily become a witness as to facts occurring or testified to in the session of the grand jury, but by modern statutes this disability has been reinoved to some extent." 1 Elliott on Evidence, 8 611, citing numerous authorities. The only exceptions to the common-law rules made by our statutes are those contained in section 988, and the evidence offered in the trial of the plea in abatement did not come within these exceptions. That the common law prevails in this jurisdiction, where it is applicable to conditions, except where it has been abrogated by statutes, has been well settled by this court. In IIall v. State, 131 Ala. 90, 32 South. 750, a case very similar to the case at bar, where the district attorney was ar('used of using language to about the same effect as is alleged was used by the Uniteil States district attorney in this case, the court says, at page 113 of 134 Ala.. at page 737 of 32 South.: "Certainly to permit a grand juror to testify that one or more of the jury did not vote for the finding of the bill of indictment or matters influencing the action of menibers of the grand jury would be not only a violation of his oath as a grand juror, but would be destructive and subversive of the grand jury as an institution of our judicial system, and destructive of that

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