Gambar halaman

lien for the charge for a steam shovel. Troy | MATTERS ARISING SUBSEQUENT TO Public Works Co. v. City of Yonkers, 129 N. DECREE Y. Supp. 920, 921, 145 App. Div. 527.

Within the rule that Mills' Ann. St. $

2434, authorizing a claimant of an irrigation MATHEMATICAL DEMONSTRATION priority at any time within four years from

A "mathematical demonstration" is whol- a final decree in a statutory adjudication ly different from a "moral certainty." Evi- proceeding to bring a suit hitherto allowed dence of demonstration relates to necessary by the proper court to determine the priority, truths, truths as to which the supposition of authorizes such an action by parties to that the contrary involves not merely what is not proceeding only when their right of action acand cannot be true, but what is also absurd, crues out of "matters arising subsequent to whereas moral evidence is the basis of con

the decree," the quoted phrase means claims tingent truth. It follows obviously that the of priority for an appropriation made subseconvictions which these distinct and dissim- quent to the lowest appropriation included ilar classes of evidence are capable of produc- in the decree. Broad Run Inv. Co. v. Deuel ing are necessarily of very different natures. 0. Snyder Imp. Co., 108 Pac. 755, 758, 47 In the one absolute certitude is the result, to

Colo. 573. which moral certainty, the highest degree of assurance of which truths of the latter class

MATTER IN ABATEMENT admit, is necessarily inferior. Wills, Cir.

The defense that plaintiff, a foreign corEv. 5. Moral certainty is that full and com- poration, has not complied with Gen. Laws plete assurance which admits of no degrees, 1896, c. 253, § 37, by appointing, by written and induces a sound mind to act without power of attorney, a competent person redoubt apon the conclusions to which it natu- siding in the state as its attorney on whom rally and reasonably leads. 2 Stewart's Ele- to serve process, is strictly “matter in abatements, c. ii, $ 4. It is apparent, then, that ment,” and, having been pleaded in bar, canthe precision attainable in the one case is of not be considered. Russia Cement Co. v. a nature of which the other does not admit. Whitmarsh & Brown (R. I.) 67 Atl. 450 (citing Bowman y. Little, 61 Atl. 1084, 1086, 101 Md. Weaver Coal & Coke Co. v. Rhode Island Co273.

operative Coal Co., 61 Atl. 426, 27 R. I.


MATTER IN CONTROVERSY See Bonds of Matrimony.,

The words "matter in controversy," as See, also, Marriage.

used in Hurd's Rev. St. 1905, c. 110, $ 88, au“Matrimony" contemplates a mutual per- thorizing the appellate court to recite in its formance of the correlate duties which the final decree the facts as found by it, where law superinduces upon the marriage, and, the final determination of a cause “shall be while one does his part, the other is not au- made by the appellate court, as the result thorized to withdraw and live in separation. wholly or in part of the finding of the facts Massey v. Massey, 81 N. E. 732, 733, 40 Ind. concerning the 'matter in controversy,' differApp. 407 (citing Bishop, Marriage & Divorce). ent from the finding of the court from wbich

such cause was brought by appeal, or writ of MATRON

error," means the matters of fact in con

troversy. Gilmore v. City of Chicago, 79 N. As officer, see Officer.

E. 596, 598, 224 Ill. 490.



“By 'matter in dispute' is ineant the subSee Collateral Matter; County Matters; ject of litigation--the matter for which the Immaterial Matter; Mail Matter; Ma- suit is brought--and upon which issue is jointerial Matter; Printed Matter.

ed, and in relation to which jurors are called All probate matters, see All.

and witnesses examined.” Or, “the ‘matter in Any other matter, see Any Other.

dispute,' within the meaning of the statute, Other matter, see Other.

is not the principle involved, but the pecunCode ('iv, Proc. $ 46, forbidding a judge iary consequence to the individual party, to sit or take part in the decision of a “cause dependent on the litigation." Shewalter v. or natter" in which he has been an attorney Lexington, 143 Fed. 161, 163 (quoting Lee or counsel, refers only to actions or special v. Watson, 1 Wall. [68 U. S.] 339, 17 L. Ed. proceedings in which a judge might take 557; Wheless v. St. Louis, 21 Sup. Ct. 402, 403, part; the word “cause" meaning a cause of 180 U. S. 379, 382, 45 L. Ed. 583); McDaniel action, and the word "matter” referring to 1. Tra ylor, 123 Fed. 338, 339 (quoting and some judicial proceeding which, under the adopting definition in Lee v. Watson, 1 Wall. ('ode, is included in special proceedings for [GS U'. S.] 337, 17 L. Ed. 557); Gallagher v. the enforcement of civil rights. Keeffe v. Asphalt Co. of America, 55 Atl. 259, 269, 63 Third Nat. Bank of Syracuse, 69 N. E. 593, X. J. Eq. 258 (quoting Lee v. Watson, 1 Wall. 594, 177 N. Y. 305.

[68 U. S.) 337, 17 L. Ed. 557); Baltimore &

O. R. Co. v. Ryan, 68 N. E. 923, 924, 31 Ind. The phrase "matter in dispute," as used App. 597 (quoting Lee v. Watson, 1 Wall. 337, in the Code of the District of Columbia (Act 17 L. Ed. 557).

March 3, 1901, c. 854, § 233 (31 Stat. 1227), In a suit to enjoin railroad companies providing that any final judgment of the from establishing a new schedule of rates, Court of Appeals may be re-examined and the matter in dispute is the right of the de- affirmed, reversed, or modified by the Sufendants to enforce such proposed rates, and, preme Court of the United States, on writ of where the value of such right exceeds $2,000, error or appeal, in all cases in which the a federal court has jurisdiction. Northern matter in dispute, exclusive of costs, shall Pac. Ry. Co. v. Pacific Coast Lumber Mfrs.' exceed the sum of $5,000, means money, or Ass'n, 165 Fed. 1, 11, 91 C. C. A. 39.

some right the value of which can be esti.

mated and ascertained in money, and which The right to remove an action, wherein a money judgment is demanded, to the fed- appears by the record to be of the requisite

pecuniary value; and, assuming that the eral court is determined by the sum de- term “matter in dispute" may embrace a manded as appears by the record at the right to have a claim against a foreign govtime the petition for removal is filed; and, ernment presented through the political de where an amendment is made, the sum last partment of the United States, and that the demanded is “the matter in dispute.” MC value of such a right may be gauged by the Culloch v. Southern Ry. Co., 62 S. E. 1096, possible pecuniary injury which may be sus1097, 149 N. C. 305.

tained if no such action is taken, it is evi"By 'matter in dispute' is meant the dent that a claim for damages from the Gersubject of litigation, the matter upon which man Empire in redress of an alleged wrong. the action is brought and issue is joined, and ful imprisonment in that country is one hav. in relation to which, if the issue be one of ing a merely conjectural value. Hence the fact, testimony is taken. It is conceded that value of the matter in dispute in a proceedthe pecuniary value of the matter in dispute ing to compel by mandamus the Secretary may be determined, not only by the mon- of State to seek to obtain $500,000 damages er judgment prayed, where such is the case, from the German Empire in redress of petibut in some cases by the increased or dimin- tioner's alleged wrongful imprisonment while ished value of the property directly affected on a visit to that country does not exceed by the relief prayed, or by the pecuniary re the sum of $5,000. United States ex rel. sult to one of the parties immediately from Holzendorf v. Hay, 24 Sup. Ct. 681, 182, 194 the judgment. Thus a suit to quiet the ti-U. S. 373, 48 L. Ed. 1025. tle to parcels of real property, or to remove a cloud therefrom, by which their use and MATTER IN ISSUE enjoyment by the owner are impaired, is

The "matter in issue" in a former acbrought within the cognizance of the court, tion is that on which plaintiffs' cause of acunder the statute, only by value of the prop- tion is based, and which defendant denies by erty affected.” Way v. Clay, 140 Fed. 352, his pleadings. Kerr v. Blair, 118 S. W. 791, 353 (quoting and adopting the definition of 793, 55 Tex. Civ. App. 349. Justice Field in Smith v. Adams, 9 Sup. Ct. 566, 130 U. S. 167, 32 L. Ed. 898).

The issues in a cause are the points in “By 'matter in dispute' is meant the dispute between the parties on which they

put their cause to trial, and the matter in issubject of litigation, and the matter upon which the action is brought and issue is sue is that matter on which plaintiff proceeds joined and in relation to which, if the issue verts by his pleading. Bowen v. W. 0. Ea

by his action, and which defendant controbe one of fact, testimony is taken. It is ton & Co., 89 N. E. 961, 964, 46 Ind. App. 65. conceded that the pecuniary value of the matter in dispute may be determined, not The first essential of the rule of res juonly by the money judgment prayed, where dicata is the identity of the “matter in issuch is the case, but in some cases by the sue,” which is defined to be that matter on increased or diminished value of the proper- which plaintiff proceeds by his action, and ty directly affected by the relief prayed, or which defendant controverts by his pleadby the pecuniary result to one of the par- ings. Leroy v. Collins, 130 N. W. 635, 636, ties immediately from the judgment." In an 165 Mich. 380. action to recover a piece of land on which a

The matters which plaintiff must allege railroad had located its depot, the value of

in his declaration and the defendant deny the land to the railroad company, according to its present situation and use, is the value in his plea are necessary "matters in issue. to be considered in determining whether the In an action on a liquor dealer's bond, whethamount involved in the litigation is suffi-er the dealer's failure to comply with the cient to confer jurisdiction on the federal provisions of the statute in applying for a courts. King v. Southern R. Co., 119 Fed. license was a “matter in issue” is to be de1016, 1017 (quoting definition in Smith v. termined by deciding whether the licensee's Adams, 9 Sup. Ct. 566, 130 U. S. 167, 32 L. failure to comply with the provisions is a Ed. 895).

matter the state must allege and the licensee

deny. State v. Corron, 62 Atl. 1044, 1052, | service subject to competitive examination, 73 N. H. 434, 6 Ann. Cas. 486.

shall be removed, unless he has been allowed

an opportunity of making an explanation. MATTERS IN STATUTE

Held, that the charter of 1901 conferred on As used in Const. art. 4, § 19, providing the president of the borough of Manhattan that every act shall "embrace but one sub- the same powers possessed by the commisject and matters properly connected there. sioner of highways under the charter of 1897; with, which subject shall be expressed in that the organization of bureaus is “matter the title," the word "subject" indicates the of administration” within the meaning of the thing about which the legislation is had, and charter of 1901, and under such charter the the word “matters" the incident or second-president of the borough of Manhattan had ary things necessary to provide for its com- power to organize a bureau of highways, and plete enforcement. Board of Com’rs of Ma- to appoint a head therefor; and that one rion County v. Scanlan, 98 N. E. 801, 802, appointed as head of such bureau was not 178 Ind. 142.

subject to removal, except under the restricAs used in a constitutional requirement tions of section 1543. People ex rel. Collins that every act shall embrace but one subject V. Ahearn, 86 N. E. 474, 475, 193 N. Y. 441. and matters properly connected thereith, MATTER OF CONTRACT which subject shall be expressed in the title, the word “subject” refers to the thing about in Const. art. 7, § 40, which declares that

The term "matters of contract," as used which the legislation is had, and the word

justices of the peace shall have jurisdiction "matters" includes subordinate and incidental things relating to the same general sub- exclusive of the circuit court, in all matters ject. The title of an act was "An act to does not exceed $100, embraces an action for

of contract where the amount in controversy amend sections 1, 4, and 5, of an act entitled 'An act concerning street railroad companies, tract. Smith v. Taylor, 134 S. W. 634, 97

unliquidated damages for a breach of congranting additional rights and powers there

Ark. 424. in specified and matters relating thereto, and declaring an emergency.'

It em- MATTER OF COUNTERCLAIM braces the general subject of street railroad

Under a plea of payment

an action companies and gave power to acquire ground for price of printing defendant cannot show for the construction of lines for the trans. what, under a lease, was due him from plainmission of electricity for light, heat, and tiff for excess power furnished; this, under power, and was not violative of the consti- Code Civ. Proc. 88 500, 501, being “matter of tutional provision. Mull v. Indianapolis & C. counterclaim,” to be pleaded as such. T. J. Traction Co., 81 N. E. 657, 659, 169 Ind. 214 Hayes Printing Co. v. Springer, 123 N. Y. (citing State v. Gerhardt, 44 N. E. 469, 145 Supp. 240, 242. Ind. 439, 33 L. R. A. 313; Maule Coal Co. v. Partenheimer, 55 N. E. 751, 57 N. E. 710, 155 MATTER OF FACT Ind. 101; Parks v. State, 64 N. E. 862, 159 The word "fact," as used in the propoInd. 211, 59 L. R. A. 190).

sition that representations must onsist of

"matters of fact," distinguishes “fact” from MATTER OF ADMINISTRATION

mere matters of opinion. Brown v. South The power to compel an administrator to Joplin Lead & Zinc Min. Co., 92 S. W. 699, fulfill a contract of conveyance of real estate 704, 194 Mo. 681. of his intestate is a "matter of administration,” within the Constitution, defining the MATTER OF FORM jurisdiction of the probate court. Servis The delivery of an indictment to the v. Beatty, 32 Miss. 52, 87.

court by the foreman of the grand jury in New York Charter (Laws 1897, p. 1, c. the absence of the other jurors, if a defect 378), creating a number of departments, at all, is “in matter of form only,” within among which was the department of high- the meaning of U. S. Rev. Stat. § 1025, proways, by section 458 (page 160) provides that viding that no indictment presented by a the commissioner at the head of each depart- grand jury shall be deemed insufficient nor ment “may organize such bureaus as he shall the trial, judgment, or other proceeding there. from time to time deem necessary." Great- on be affected by any such defect which shall er New York Charter (Laws 1901, p. 166, C.

not tend to the prejudice of the defendant, 466) 388, vested in the city of New York all it not being disputed but that the indictment

was found and returned into court as a true the powers and duties conferred on the commissioner of highways of the city of New bill. Breese v. United States, 33 s. Ct. 1, York by the charter of 1897, and devolved 3, 226 U. S. 1, 57 L. Ed. 97. upon the president of the borough as “matter The omission of the signs for dollars and of administration" certain powers and duties | cents, in the recitals of alleged false entries to be executed pursuant to the provisions of in reports, and misnomer of the reports in the act. Laws 1901, p. 636, c. 466, § 1543, an indictment charging directors of a nationprovides that no head of a bureau, holding al banking association with making false ena position in the, classified municipal civil tries in a report to the Comptroller of the Currency, within the denunciation of Rev. | 158 Fed. 841, 850 (citing and adopting BroderSt. § 5209, are matters of form within the ick's Will, 21 Wall. [88 U. S.] 503, 22 L. Ed. meaning of Rev. St. § 1025, for which the in- 599; Farell v. O'Brien, 25 Sup. Ct. 727, 199 dictment is not to “be deemed insufficient." U. S. 89, 110, 50 L. Ed. 101). United States v. Potter, 56 Fed. 83, 95.

Code Civ. Proc. $ 1678, authorizing a MATTER OF IMPRESSION OR OPIN- court of probate to order distribution of a deION

cedent's estate, though some of the heirs, “Evidence which is characterized as

legatees, or devisees had conveyed their

shares, applies only where no question arises ‘matter of opinion' is predicated upon the ex

on the distribution as to the conveyances istence or nonexistence of a fact, while 'mat- having been made; and, where the fact of ter of impression' or 'understanding' is only a deduction drawn from the assumption of conveyance is disputed or its validity is in that fact, so that, while the former may rise issue, the question is not within probate juto the standard of evidence, the latter is the determination of the persons succeeding

risdiction; “matters of probate" including universally rejected as such." Cross v. Aby, 45 South. 820, 822, 55 Fla. 311 (quoting and to the estate of a decedent, either as heir, adopting the definition in Chaires v. Brady, is entitled, and the construction of the will,

devisee, or legatee, the amount to which each 10 Fla. 308; citing 1 Wigmore, Ev. $$ 658; but not including a determination of claims 726-728; 4 Words and Phrases, p. 3441; against heirs or devisees for their portion Tait v. Hall, 12 Pac. 391, 71 Cal. 149).

arising subsequent to decedent's death. In MATTER OF INDUCEMENT

re Howe's Estate, 118 Pac. 515, 517, 161 Cal.

152. See Inducement.

Code Civ. Proc. & 1639, providing that on MATTER OF LAW

the death of an executor his accounts may be Refusal of a judge sitting in bankruptcy presented to and settled by the court in which to sanction an arrangement between the the estate of which he was executor is being bankrupts and certain of their creditors and administered, and that upon petition of his persons who had received preferential trans- successor such court may compel the personfers of the bankrupts' property, in the legit al representatives of the deceased executor to imate exercise of discretion, did not present a

render an account of the administrator of “matter of law” reviewable on a petition for their testator, and to settle such account as review authorized by Bankr. Act July 1, in other cases, is a "matter of probate," ju1898, c. 541, $ 24b, 30 Stat. 553. Mulford v. risdiction of which may, under Const. art. Fourth Street Nat. Bank, 157 Fed. 897, 85 6, § 5, be conferred upon the superior court, C. C. A. 225.

sitting in probate. King v. Chase, 115 Pac.

207, 209, 159 Cal. 420. MATTER OF LEGAL AVOIDANCE

The term “matters of legal avoidance," MATTER OF PUBLIC CONCERN as used in the statement that a recognizance

See Public Concern. is in the nature of a conditional judgment,

MATTER OR THING subject only to such matters of legal avoidance as may be shown by plea, or to such

Within the rule that a court has no matters of relief as may induce the court to power to acquire jurisdiction of a party by remit or mitigate a forfeiture, refers to such service of notice outside its territorial limits matters as are entirely consistent with the except where the court is dealing with some truth of the facts stated in the record and matter or thing" within its territorial jufurnish a legal excuse for the failure of the risdiction, it has been held that marriage is defendant to appear according to the con

such a “matter or thing," so that, if a spouse dition of his recognizance. The sureties, for is a bona fide resident and the other spouse example, show, in answer to the scire facias, is absent, the court may require jurisdiction the death of the principal before the time for Watkinson, 58 Atl. 384, 389, 67 N. J. Eq. 142.

by extraterritorial service. Watkinson v. his appearance had arrived, or that he had been arrested under other process issued at the instance of the state, or that he had be- MATURED come insane. All pleas of this kind are not

MATURING only consistent with the truth of what is averred in the record, but they are predicated

See Debt Maturing in the Year. on the assumption of such truth. State v. MATURITY Morgan, 48 S. E. 604, 606, 136 N. C. 593.

.See Prior to Maturity. MATTER OF PROBATE

Defendants, in payment of property “The proceeding to establish or prove bought of plaintiff, transferred bonds mathe claim against the executors is essentially turing November 27, 1913, and secured by a an independent suit inter partes and not a trust deed of Iowa property, and by a con‘matter of pure probate jurisdiction.'" tract of guaranty agreed "if said bonds were Farmers' Bank of Cuba City, Wis., v. Wright, I not paid at maturity," and the trust deed was

foreclosed, to be present at the sale and bid | MAXIMUM
a specified amount for the property. In the
bonds was a reservation of the right to pay

The word "maximum" is defined as them before maturity, and in the trust deed meaning the greatest, superlative of great; it was provided that, if default was made in the greatest quantity or value attainable in the payment of interest, the principal, as well a given case. Manaca v. Ionia Circuit Judge, as the interest, should become due at the 110 N. W. 75, 77, 146 Mich. 697. election of the trustee. On the back of the

MAXIMUM RATE bonds was a trustee's certificate that the bonds were issued in conformity with the

The term “maximum rate," as used in trust deed. The word "maturity," as used

a statute authorizing the fixing of a “maxiin the agreement, was the maturity as fixed mum rate” to be charged for gas and elecby the trust deed, and not the one specified tricity, means a "reasonable rate with perin the bonds. Binz v. Hyatt, 98 S. W. 637, mission to the party furnishing the service 200 Mo. 299.

to do business at an inadequate profit or at

a loss, if he desires." Trustees of Village of A note payable with interest from ma- Saratoga Springs v. Saratoga Gas, Electric turity contained a blank space after the Light & Power Co., 107 N. Y. Supp. 341, 361, word “maturity," and the payee after execu- 122 App. Div. 203 (dissenting opinion of tion filled up such space by writing therein Judge Kellogg). the word "date," so that the note called for interest after “maturity date.” Held, that

MAY the alteration was not a material change which would prevent recovery on the note. Must construed as may, see Must. “Maturity” and “maturity date” mean the Shall construed as may, see Shall. same thing. Baldwin v, Haskell Nat. Bank (Tex.) 124 S. W. 443.

As permissive or mandatory

The word “may” is usually only permisWhere a note bearing a given date was sive or discretionary. State v. Stepp, 59 S payable four months after, it reached its E. 1068, 1070, 63 W. Va. 254. “maturity” four months after date. Seabury F. Sibley, 66 N. E. 603, 183 Mass. 105.

The word "may" means "must" when

ever third persons or the public have an in MATURITY DATE

terest in having the act done or have a claim

de jure that the power shall be exercised. See Maturity.

Smalley v. Paine, 116 S. W. 38, 39, 102 Tex.


“The word ‘may' is construed to mean

'shall,' whenever the right of the public or As improvement of real estate, see Im- third persons depends upon the exercise of provement.

the power or performance of the duty to

which it refers." Montgomery v. Henry, 3:) MAXIM

South. 507, 509, 144 Ala. 629, 1 L. R. A. (N.

S.) 656, 6 Ann. Cas. 965 (quoting and adoptA "maxim," says Coke, "is so called be- ing definition in Wheeler v. Chicago, 24 Ill. cause its dignity is chiefest, and its author- 105, 76 Am. Dec. 736). ity the most certain, and because it is univer

"May" does not mean “shall," and is not sally approved by all.” Coke, Litt. lla. so construed in private contracts. It is only Again he says: “A maxim is a proposition to in the case of statutes by which public rights be of all men confessed and granted with

are involved that this construction is someout proof, argument, or discourse." Id. 67a. times adopted ex debito justitiæ. Northwest"Maxims," says Sir James Mackintosh, "are ern Traveling Men's Ass'n v. Crawford, 126 the condensed good sense of nations." Chris. Ill. App. 468, 480. man v. Linderman, 100 S. W. 1090, 1092, 202

It is true that "may" oftentimes means Mo. 605, 10 L. R. A. (N, S.) 1205, 119 Am. St. | “must,” but it always retains its primitive Rep. 822.

meaning unless common fairness and the “A ‘maxim' is a proposition to be of all rights of the parties litigant demand that it men confessed and granted without proof, be supplanted by “must,” or unless it is used argument, or discourse." Felver v. Central

in a sentence which creates an exception in Electric Ry. Co., 115 S. W. 980, 983, 216 Mo. favor of the public. Chicago, W. & v. Coal 195 (quoting Lord Coke).

Co. v. People, 114 Ill. App. 75, 112; Id., 73

N. E. 770, 214 Ill. 421. Justinian said that the “maxims of the

In a contract for the construction of law" are these: "To live honestly, to hurt no part of a sewer, a clause provided that “if man, and to give every one his due.” City an emergency demands

he (the enTrust, Safe-Deposit & Surety Co. of Phila- gineer in charge] may make alterations in any delphia v. American Brewing Co., 67 N. E. part of the work.” Held, that this clause was 62, 174 N. Y. 486.

for the benefit of the commonwealth alone,


« SebelumnyaLanjutkan »