« SebelumnyaLanjutkan »
7833 WATERS OF THE STATE
(Appendix.) an order for the payment of money. State, the freehold or inheritance, or the neglect or v. Woods, 36 South, 626, 627, 112 La. 617. omission to do those acts which are required The word "warranted,” as used in Code, to prevent lasting damage to the freehold or
inheritance. The term is not an arbitrary art. 81, § 146 (Acts 1898, p. 819, c. 275), obliging a person loaning money on a mort. one, to be applied inflexibly, without regard gage on property in the state to make affi- to the quality of the estate, or the relation davit that he has not required, and will not ted the wrong, but the question as to wheth
to it of the person charged to have commitrequire, the mortgagor to pay the taxes on the interest warranted to be paid in advance, to be determined in view of the particular
er it has been committed in a given case is etc., was intended to mean "covenanted," and the section, as amended by Acts 1902, p. case." A mortgagor removed from the mort
facts and circumstances appearing in that 33, c. 26, uses the word “covenanted.” The gaged premises, giving notice of such fact section does not apply to a mortgage to se, to the mortgagee, and he took possession and cure the purchase money of the mortgaged rented the premises. At that time the buildarticle, interest not being covenanted for, or, ings, fences, etc., were out of repair, and so far as appears, secretly or indirectly pro- while the mortgagee was in possession be vided for. Salabes v. J. Castelberg & Sons made no repairs, but on an accounting be(Md.) 57 Atl. 20, 22, 64 L. R. A, 800.
tween the parties it did not appear that the
premises had been in any way permanently WARRANT OF ATTACHMENT.
injured owing to failure to make repairs. "A warrant of attachment is mesne pro Since the mortgagor was credited on the cess, and is nothing more than a provisional accounting with any sum that might have remedy. It is ancillary to the relief sought been spent for repairs, she was not damaged, in the principal action, and is intended to and a finding that the mortgagee bad not preserve the property or its proceeds if it been guilty of permissive waste was correct. has been sold as perishable in the hands of Chapman v. Cooney, 57 Atl. 928, 929, 25 R.
I. 657. the sheriff or in the custody of the law to abide the event of the suit." Virginia-Carolina Chemical Co. v. Sloan (N. 0.) 48 S. E. WATER. 577.
See “Appropriation of Water"; "Inland WARRANTY.
Waters”; “Percolating Water"; "Pub
lic Water." See “Affirmative Warranty"; "Express Warranty”; “Promissory Warranty."
WATER COURSE. “Warranties in insurance law are of two The elements of a water course are defikinds—atfirmative and promissory. Affirma- nite banks, and with an obvious bed or chantive warranties consist of a representation nel showing the presence of running water in the policy of a fact. Promissory warran- at times, anyway. Erwin v. Erie R. Co., 90 ties are those that require that something N, Y. Supp. 315, 317. shall be done or not done after the policy takes effect.”
"A stream does not cease to be a water Rosenthal Clothing & Dry Goods Co. v. Scottish Union & National Ins. course, and become mere surface water, beCo. (W. Va.) 46 S. E. 1021.
cause at a certain point it spreads over a
level meadow several rods in width, and A warranty in insurance is “a stipula- flows for a distance without defined banks tion or agreement on the part of the insured before flowing again in a definite channel.” party, in the nature of a condition.” A stip- Harrington v. Demaris (Or.) 77 Pac. 603, 606 ulation in a fire policy that the insurance (citing Gould, Waters [3d Ed.) 8 264). company should not be liable for loss caused, directly or indirectly, by order of any civil
WATERPROOF CLOTH. authority, is not a "warranty," within Civ. Code Cal. $$ 2607, 2008, providing that a Woolen or worsted fabrics known as statement in a policy of a matter relating to "cravenette cloths,” which have been subthe thing insured or to the risk as a fact, jected to a process to render them nonaband a statement which imports that it is in- sorbent, are dutiable under Tariff Act Oct. tended to do or not to do a thing which 1, 1890, c. 1244, § 1, Schedule J, par. 369 (26 materially affects the risk, is a warranty; Stat. 593), as "waterproof cloth." Brown the statute not creating any new definition & Eadie v. United States (U. S.) 126 Fed. 446. of warranty in insurance. Conner v. Manchester Assur. Co. (U. S.) 130 Fed. 743, 744 WATERS OF THE STATE. (quoting Bouv. Law Dict.).
In Pen. Code, 8 636, providing that every WASTE.
person who shall set any net for catching
fish in waters of the state shall be guilty of “Waste” may be defined as the "doing of a misdemeanor, the words "waters of the those acts which cause lasting damage to state” refer to the waters coming within the
WATERS OF THE UNITED STATES 7834
(Appendix) regulating power of the state concerning the may also bave a technical meaning to the fish therein. People v. Miles, 77 Pac. 666, botanist or the chemist. It is a nuisance to 669, 143 Cal. 636.
the farmer, the gardener, or the owner of a
well-kept lawn, notwithstanding that some WATERS OF THE UNITED STATES.
weeds may contain valuable medicinal prop
erties, which, when extracted, may be of See “Navigable Water of the United benefit and profit to mankin But it is a States."
fact of common information, of which courts
may properly take judicial notice, that a WATERWORKS COMPANY.
high, rank growth of weeds in a populous As quasi corporation, see "Quasi cor community has a strong tendency to produce
sickness and to impair the health of the inporation."
habitants, and so may be a nuisance in such
locality, notwithstanding they may be comWAY.
paratively innocuous in the country, when See “Private Way"; "Public Way."
far away, from human habitation," A city
ordinance made it a misdemeanor for any Private road distinguished, see “Private Road."
owner, lessee, etc., of any part of any lot to
allow or maintain on any such lot any The character of a “way,” whether it is growth of weeds to a height of over one foot, public or private, is determined by the ex- and defined the word "weeds,” as therein tent of the right to use it, and not by the used, to include all rank vegetable growth extent to which that right is exercised. If which exhale unpleasant and noxious odors, all the people have the right to use it, it is and also high and rank vegetable growth that a public way, although the number who may may conceal filthy deposits. Held, that a have occasion to exercise the right is very conviction for the violation of such ordinance small. Railroad Commission of Texas v. St. was proper under evidence tending to prore Louis Southwestern Ry. Co. of Texas (Tex.) that, at the time the city gave defendant no80 S. W. 102, 104 (citing Phillips v. Watson, tice to cut down the weeds on his lot, there 63 Iowa, 28, 18 N. W. 659).
were weeds on the lot from four to five feet
high, about one-third of which were sunflowWAYLEAVE.
ers, the notice to cut down the weeds have
ing been given in July. City of St. Louis v. In 12 Ency. of Laws of England, 575, it Galt, 77 S. W. 876, 877, 179 MO. 8, 63 L R is said: “The term 'wayleave' means a right A. 778. of way.
• In considering the extent to which a wayleave may be used, the very object of the grant or reservation to which
WEEK. it is ancillary must be borne in mind, and
See "Successive Weeks." this may involve a user of a different kind from that which was actually in contemplation at the time of the grant or reservation." WELL FOUNDED. Jones & Co. v. Venable (Ga.) 47 S. E. 549,
In discussing the contention that the trial 551.
court erred in charging that a reasonable
doubt must be “well founded” it is said: WEAPON.
“The expression is certainly a loose one, and
not to be commended. The term 'well found. See “Deadly Weapon.”
ed' has a double significance. It may mean
founded on good reasons, or it may be de WEARING APPAREL.
fined as not baseless or having no support.
In the latter sense the instruction is not Neither a watch and chain, nor a sword erroneous, for it is well settled that a doubt, and belt, constituting a part of Masonic re to be reasonable, must have some basis ei. galia, are exempt to a bankrupt as “wearing ther in the evidence, or from a lack of eviapparel,” under the Vermont statute. In re dence on some material proposition. In othEverleth (U. S.) 129 Fed. 620.
er words, it is not a barely possible one, nor Lace neckwear is included in “wearing one sought after, not a capricious nor an apparel made wholly or in part of lace," as imaginary one, nor one based upon a surthat phrase is used in paragraph 339, Tarife mise or groundless conjecture. In other Act July 24, 1897, c. 11, § 1, Schedule J, 30 words, it must be a rational or substantial Stat. 181 (U. S. Comp. St. 1901, p. 1662]. one, having some basis in reason, although it Goldenberg Bros. & Co. v. United States (U. need not be such a one as the jurors may S.) 130 Fed. 108, 109.
be able to give a reason for." State v. Ma
honey, 97 N. W. 1089, 1091, 122 Iowa, 168. WEED.
WEST HALF. “The word 'weed' has a common, everyday meaning to the mind of every man. It See "Hall."
which," and the meaning of the provision is
that after the commands of the law as thus The word "westerly," as used in an orgiven have been obeyed, and not before, the der of the county court incorporating a vil- ordinances shall be of the force of law. lage, which describes the commons as “on Mayor & Board of Trustees of Town of New the west side of said limits one quarter of a Iberia v. Moss Hotel Co., 36 South. 552, 553, mile in a westerly direction,” should be con- 112 La. 525. strued to mean due west, rendering the de scription definite and certain. State ex rel. Chandler v. Huff, 78 S. W. 1010, 1012, 105 WHILE. Mo. App. 354.
In Batts' Ann. St. art. 4560ea, protect
ing persons, while engaged in the work of WHARFAGE.
operating cars, against the negligence of any
servant or employé of the company, the word Wharfage is the use of a whart furnish- "while" places a time limit on the protection, ed in the ordinary course of navigation. The and means “during the time such employé James T. Furber (U. S.) 129 Fed. 808, 810.
may be engaged in the work of operating the
locomotive." Gulf, C. & S. F. Ry. Co. v. WHEN SO MADE.
Howard (Tex.) 80 S. W. 229, 230.
The words "when so made," in Gen. St. 1897, c. 95, $ 590, and Gen. St. 1897, 8 4843, WILL. providing that the case, when so made, shall
See “Found with the Will”; “Good Will." be settled, certified, and signed by the judge, evidently include all the preliminary steps to
Desire equivalent, see “Desire.” the presentation of the case to the judge for settlement Butler v. Scott (Kan.) 75 Pac. WILLFUL-WILLFULLY. 496, 497.
The term “willful,” when applied to the
intent with which an act is done, implies a WHENEVER.
purpose or willingness to do the act. State “'Whenever is an adverb of time. It V. McGahey, 97 N. W. 865, 867, 12 N, D. 535. Is not the equivalent of‘in any case.' Its
The word "willful,” as used in Rev. St. meaning, and the only meaning given to it U. S. & 5341 (U. S. Comp. St. 1901, p. 3628), by lexicographers, is 'at whatever time."
defining "manslaughter" as the unlawful and As used in a constitutional provision that, willful killing of another without malice, whenever the requisite majority of the judges means done wrongfully, with evil intent. It of the Supreme Court of Appeals sitting are
means any act which a person of reasonable unable to agree upon a decision, the case knowledge and ability must know to be conshall be rebeard by a full bench, it does not trary to duty; and, while the act must be mean in any case in which the requisite ma- done with evil design and knowingly, still a jority of the judges sitting, etc., but means killing which takes place under circumstanat whatever time it may happen that the ces showing a reckless disregard for the life requisite majority of the judges sitting, etc., of another, and the reckless and negligent the case shall be reheard. Funkhouser v.
use of means reasonably calculated to take Spa br, 46 S. E. 378, 379, 102 Va. 306.
the life of another, would be a killing done
willfully. Roberts v. United States (U. 8.) WHERE.
126 Fed. 897, 902, 61 C. O. A. 427.
The word "willful,” used "in a statute The word “where," as used in the stat
creating a criminal offense, means something ute providing that notice of the time and
more than an intention to do a thing. It place of taking depositions shall be served on the adverse party or his attorney, where implies the doing the act purposely and desuch party or his attorney resides' in the liberately; indicating a purpose to do it with
out authority; careless whether he has the state, is synonymous with “if," and assumes the condition of one or the other either ad- right or not; in violation of law; and it is verse party or litigant-residing in the state. which one cannot be brought within the
this which makes the criminal intent, without Swink v. Anthony (Mo.) 81 8. W. 915, 916.
meaning of a criminal statute." State V.
Morgan (N. C.) 48 8. E. 670, 671 (quoting WHEREUPON.
State v. Whitener, 93 N. C. 590). The word "whereupon," as used in a mu That the term “willfully," when applied nicipal charter directing that, on ordinances to the intent with which an act is done, imbeing passed over his veto, the mayor shall plies simply a purpose or willingness to comcause them to be published, whereupon they mit the act referred to. It does not require sball be of force as law, means “after any intent to violate law or injure another.
8 WDS. & P.—66
(Appendix) Klenk v. Oregon Short Line R. Co., 76 Pac. trespasser.” Resurrection Gold Min. Co. ve 214, 215, 27 Utah, 428.
Fortune Gold Min. Co. (U. S.) 129 Fed. 668,
679. The word "willfully," in Pen. Code, $ 639, subjecting to punishment any person who willfully or maliciously displaces, in- WINE. jures, or destroys any water main, means something more than a voluntary act, and
À Japanese alcoholic beverage made more also than an intentional act which in trom rice by processes similar to those in fact is wrongful. It includes the idea of an making beer, wbich resembles still wine in its act intentionally done with a wrongful pur- percentage of alcohol, which in quality is pose, or with a design to injure another, or only remotely similar to wine, is not suffione committed out of mere wantonness or
ciently similar to warrant its classification lawlessness. McMorris v. Howell, 85 N. Y. as such, under Act July 24, 1897, c. 11, $ 1, Supp. 1018, 1021, 89 App. Div. 272 (citing Schedule H, par. 296, 30 Stat. 174 [U. S. Wass V. Stevens, 128 N. Y. 123, 28 N. E. 21). Comp. St. 1901, p. 1654). Nishimiya v. Unit
ed States (U. S.) 131 Fed. 650.
WILLFUL AND MALICIOUS INJURY.
WINNER. The phrase "willful and malicious injuries to the person or property of another,"
All those who have won more than they as used in Bankr. Act July 1, 1898, c. 541,'& bave lost during one sitting by playing at 17, subd. 2, 30 Stat. 550 [U. S. Comp. St cards are "winners,” within the meaning of 1901, p. 3428), providing that a discharge in Hurd's Rev. St. 1901, c. 38, $ 132, which pro bankruptcy shall release a bankrupt from vides that any person who sball at any time all his provable debts except such as are
or sitting by playing at cards lose to any judgments in actions for fraud or for willful person so playing any money amounting to and malicious injuries to the person or prop- $10, and shall pay the same, may sue and erty of another, includes a judgment for dam. recover the money by action in assumpsit. ages for criminal conversation, and hence Zellers v. White, 70 N. E. 669, 672, 208 Ii. such a judgment is not discharged by a dis- 518, 100 Am. St. Rep. 243. charge in bankruptcy. Tinker v. Colwell, 24 Sup. Ct. 505, 506, 193 U. S. 473, 48 L. Ed. 754. WIRES. WILLFUL DEFAULT.
The word "wires," in Laws 1890, c. 566,
p. 1148, $ 65, providing that the occupant of The words "willful default” imply more any premises within 100 feet of the wires of than negligence or carelessness. The word any electric light corporation may require it "willful” means intentional, while the word to supply him with electric light, was in"default” means transgression. Where a tes tended to designate the wire through which tator exempted his trustee from liability for was distributed the electricity with which losses occurring without his own willful de the houses were to be lighted. Moore v. fault, it was evidently his intention to re- Champlain Electric Co., 85 N. Y. Supp. 37, lieve the trustee from everything but his in- 39, 88 App. Div. 289. dividual intentional transgression,
In re Mallon's Estate, 89 N. Y. Supp. 554, 43 Misc.
WISH. Rep. 569.
"Undoubtedly the word 'wish' may be WILLFUL DESERTION.
equivalent to will or request or direct, if the
context justifies that meaning." A testator Willful desertion is a breach of matri- left his property to his wife and daugbter, monial duty, and is composed, first, of a the will reciting that his mother was living, breaking off of matrimonial cohabitation; and dependent upon her children, and thereand, second, an intent in the mind to desert. fore requested his wife to pay her such sums Both facts must be shown. Mere cessation as might be requisite for her comfort. The of cohabitation is not enough. Tillis v. Til- will then added, "and it is my wish and exlis (W. Va.) 46 S. E. 926.
pectation that when my wife, J., shall make
her will, disposing of the property left her WILLFUL TRESPASSER.
by me, that she will generously remember
the children of my deceased brother, W., and One who takes the ore of another from such others as she may choose." The will nis land without right either recklessly or did not create a trust in favor of the children with the actual intent so to do is a "willful of the deceased brother. Russell v. United trespasser"; but one who takes such ore States Trust Co. (U. S.) 127 Fed. 445, 447 without right, but inadvertently and unin- (citing Bliven v. Seymour, 88 N. Y. 469; Phil. tentionally, or in the honest belief that he is lips v. Phillips, 112 N. Y. 197, 19 N. E. 411, exercising his own right, is not a “willful 8 Am. St. Rep. 737).
WITH THE WILL
7837 WORK OF NECESSITY
[Appendix.) WITH THE WILL
to mean that a third person who took goods
from the possession of the bankrupt on a writ See “Found with the Will."
of replevin from a state court, after the petition in involuntary bankruptcy bad been filed
and a receiver appointed therein, shall be WITHIN THE CITY LIMITS.
permitted to retain possession of the merWhere a street railroad company agreed chandise taken under the replevin sult. If to issue transfer tickets within the city lim- any signification be attached to the phraseits, “within the city limits” was interpreted ology of the order it must be that the words as not to apply only to limits as then fixed, as the petitioning creditor's rights which might
quoted were inserted for the protection of it must have had in contemplation that the city in the future might exercise the right to efit of the adverse claimant. In re Briskman
otherwise be defeated, and not for the benannexing territory and thereby extend its limits. Indiana R. Co. v. Hoffman, 69 N. E. (U. S.) 132 Fed. 201, 203. 399, 401, 161 Ind. 593.
WITNESS. WITHIN THE STATE.
Any other witness, see "Any Other.” See “Property not within the State."
WOOD. WITHIN TEN DAYS.
See “Logs of Wood." Notice was posted in a custom house that It would be closed June 17th—a holiday ob- WORK. served by local custom, but not established by law. Certain importers, having notice of
See "Public Work"; "Street Work." the closing of the custom house on that day,
The word "work," as used in a city charwhich was the tenth day after the liquida- ter, providing that all work exceeding in cost tion of their entry, Aled a protest on the day a specified sum shall be let to the lowest reaCollowing. Held, that the protest was filed sonable and responsible bidder, includes in accordance with the requirements of sec structures such as buildings and bridges. tion 2931, Rev. St., providing that protests Chippewa Bridge Co. v. City of Durand shall be made “within ten days after the (Wis.) 99 N. W. 603, 606. ascertainment and liquidation of the duties." Frost & Adams V. Saltonstall (U. 8.) 129 “Work," as used in Batts' Ann. St. `art. Fed. 481.
4560e, protecting all persons while engaged
in the work of operating cars against the WITHIN THREE DAYS.
negligence of any servant or employé of the
company, is synonymous with “at," and in See “Day."
its connection means the doing of those things which constitute operating the loco
motives, etc., and the person so engaged is WITHOUT HER CONSENT.
protected against the negligence of any other
employé during the time he is engaged in “Against her will" synonymous, see the act of operating the machinery. A per“Against Her Will."
son employed about a locomotive roundhouse
to take charge of engines was not, 'while on WITHOUT ISSUE.
his way to take charge of a locomotive and
before he began to perform the act of opSee “Die Without Issue."
erating the machinery, a servant engaged in the work of operating the cars, locomotive,
or trains of a railroad, so as to give him or WITHOUT NOTICE.
his representatives a right to recover for his
Injury when caused through the negligence Bona fide purchaser without notice, see of a fellow servant Gulf, O. & S. F. Ry. “Bona Fide Purchaser."
Co. v. Howard (Tex.) 80 S. W. 229, 230.
WORK OF NECESSITY.
Courts, in construing the term "neces.
sity" as used in statutes relating to the statThe phrase, “without prejudice to Inter- ute prohibiting work on the Sabbath exceptested parties," as used in an order consoli- ing work of necessity, is given a liberal rathdating with involuntary proceedings in bank. er than a literal interpretation, and it is “not ruptcy the proceedings on a voluntary peti- an absolute, unavoidable, physical necessity Hon subsequently fled, cannot be construed that is meant, but rather an economic and