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Iron & R. Co. v. Roussell, 46 South. 866, 870, | Rep. 348 (citing and adopting Savage v. 155 Ala. 435, 130 Am. St. Rep. 56. O'Neil, 44 N. Y. 298, 300, 301; Owen v. Boyle,

LAW OF THE CASE

The term "laws," in Const. art. 3, vest-15 Me. 147, 32 Am. Dec. 143; Flato v. Muling the legislative power in the Senate and hall, 72 Mo. 522; 2 Starkie, Ev. [4th Am. Ed.] 568; Whart. Ev. §§ 314, 315, 1292; House of Representatives, constituting together the General Assembly, and declaring Smith, Merc. Law [10th Ed.] Introduction). that the style of their "laws" shall be, etc., denotes action of the General Assembly in its legislative capacity, and their style must be that of enactment, and they are the outcome of a bill for an act which has been presented to the Governor for his approval. McGovern v. Mitchell, 63 Atl. 433, 441, 78 Conn. 536.

The opinion delivered on a former appeal is the "law of the case." Hocker v. Louisville & N. R. Co. (Ky.) 96 S. W. 526, 527.

"The doctrine of 'law of the case' extends only to the questions squarely presented and distinctly passed upon on the former appeal." | Hunter v. Porter, 77 Pac. 434, 439, 10 Idaho,

The word "laws," as used in the federal statute denouncing conspiracies to commit of fenses against the laws of the United States, means statutory laws. United States V. 86. Thomas, 145 Fed. 74, 79.

A decision of the Supreme Court on appeal, is the "law of the case" on a subsequent trial, whether right or wrong. Neary v. Northern Pac. Ry. Co., 110 Pac. 226, 235, 41 Mont. 480.

It is a general rule of construction that, where an act of the General Assembly refers to the "laws" of its own state, the expression will be held to refer to statute law, rather than to unwritten law, unless the con- A decision of the Supreme Court on aptext requires a different construction; and peal is the "law of the case" governing the especially is this true of acts which are them- trial court on a subsequent trial. Berger v. selves in derogation of the common law. | Metropolitan Press Printing Co., 111 Pac. 872, Southern Bell Telephone & Telegraph Co. v. 61 Wash. 35. Beach, 70 S. E. 137, 138, 8 Ga. App. 720 (citing 5 Words and Phrases, pp. 4021, 4022). Unconstitutional act

The phrase "law of the case," as applied to the effect of a decision of an appellate court in an earlier appeal in the same case, "An unconstitutional act is not a law. merely expresses, in the absence of statute, It confers no rights. It imposes no duties. the practice of courts generally to refuse to It affords no protection. It creates no of- reopen what has been decided, and not a limfense. It is in legal contemplation as inop-it to their power. Messinger v. Anderson, 32 erative as though it had never been passed." Sup. Ct. 739, 740, 225 U. S. 436, 56 L. Ed. Wright v. Davis, 48 S. E. 170, 172, 120 Ga. 1152. 670 (quoting Norton v. Shelby County, 6 Sup. Ct. 1121, 118 U. S. 425, 30 L. Ed. 178).

LAW DAY

"Foreclosure" and "law day" are synonymous in the sense that it is the time when

The opinion of the Court of Appeals is the "law of the case" on the subsequent trial. South Covington & C. St. Ry. Co. v. Schilling (Ky.) 89 S. W. 220, 221.

The "law of the case" is a rule of expedi

the mortgagor declares a default and sub-ency, which should not be lightly disregardmits his case to a court of competent jurisdiction. The word "foreclosure," as used with reference to the rule under which a

mortgage is discharged by a tender before foreclosure, must be taken in the meaning which is commonly and generally accepted by the laity, as well as by the bar; that is, the institution of a suit, or the "law day," as contradistinguished from the "law day" of the common law. Murray v. O'Brien, 105 Pac. 840, 844, 56 Wash. 361, 28 L. R. A. (N. S.) 998.

LAW MERCHANT

See, also, Commercial Law.

There is no presumption that the socalled "law merchant," taken as a vaguely defined portion of the common law or in its widest interpretation of the law of European countries having the Roman and the Frankish law for its parents, prevails in other countries. Aslanian v. Dostumian, 54 N. E. 845, 846, 174 Mass. 328, 47 L. R. A. 495, 75 Am. St.

ed; but it should be restricted to such questions as have been presented to and decided on the former appeal, and those necessarily involved in such decision, and should not apply to a mere expression of opinion in regard to matters not actually involved in the decision, nor should it apply to questions referred to by intimation only, and not determined. First Nat. Bank of Hastings v. Farmers' & Merchants' Bank of Platte Center, 95 N. W. 1062, 1064, 2 Neb. (Unof.) 104.

The decision of certain questions by a District Court of Appeal, with a view to further proceedings in the case, only concurred in by two of the justices of such court, does not constitute "the law of the case" for further proceedings. Turner v. Fidelity Loan Concern, 83 Pac. 70, 2 Cal. App. 122.

The evidence on retrial being substantially the same as on the first trial, the decision on the questions presented on the former appeal is the "law of the case" on a subsequent appeal. Teakle v. San Pedro, L. A. & S. L.

R. Co., 102 Pac. 635, 637, 36 Utah, 29 (citing | was properly refused. Illinois Cent. R. Co. 5 Words and Phrases, p. 4024). v. Seitz, 73 N. E. 585, 586, 214 Ill. 350, 105 Am. St. Rep. 108.

A decision on appeal that, upon the facts in the record, plaintiff cannot recover, becomes the "law of the case" on a subsequent appeal, wherein the record discloses a substantially unchanged set of facts. Thuis v. City of Vincennes, 73 N. E. 1098, 35 Ind. App. 350.

Where, in an action by a servant for injuries, the cause was reversed on appeal on the ground that plaintiff was guilty of contributory negligence, as shown by his testimony that he was not looking, at the time of the injury, at the piece of machinery which caused the injury, but on the next trial he testified that he was looking at it, the holding on the former appeal was not the "law of the case" on the next appeal. Buehner Chair Co. v. Feulner, 73 N. E. 816, 817, 164 Ind. 368.

On the first appeal of a suit concerning the title to land, the question involved was: Did a decree in a former suit to correct a deed to the land by striking therefrom the words "her bodily heirs," inserted after the name of the grantee, finding that the deed should be so corrected and the master's deed Where the only question involved or made pursuant to that decree, to correct the decided on a former appeal was the suffiformer deed, devest the plaintiffs, T. and S., ciency of an answer setting up the statute bodily heirs of the original grantee, of the of limitations as a defense, and no question fee-simple title thereof? And it was held as to the sufficiency of the complaint was that the decree was inoperative, and that disclosed, but, after the case was remanded, the master's deed did not devest these plain- plaintiff filed an amended complaint which tiffs of the fee-simple title, but that it still was not shown to be substantially the same remained in them. On a second appeal the as the original, the ruling on the former apquestion presented was: Did the court prop- peal that the answer was insufficient was no erly decree upon the cross-bills filed after bar to a subsequent objection to the suffithe case was reinstated, on the evidence sub- ciency of such amended complaint. Stafford mitted to it, that the deed should be correct- v. St. John, 73 N. E. 596, 600, 164 Ind. 277. ed, and in correcting it and decreeing the feeThe decision of the Supreme Court on simple title to the land to be in defendants, the remote grantees of the original grantee? appeal on a will contest as to the insufficienHeld, that the decision of the court on they of the evidence to overthrow the will is first appeal is not conclusive against the

rights of the defendants on the second appeal, since the question presented for determination is not the same. Teel v. Dunnihoo, 82 N. E. 844, 847, 230 Ill. 476, 120 Am. St. Rep. 319.

A decision on a former appeal is the "law of the case" as to all questions then decided, so far as the facts remain the same; the court on a subsequent appeal being enti

tled to look to the report of the former appeal to determine to what extent the rule applies. Gipe v. Pittsburgh, C., C. & St. L. Ry. Co., 82 N. E. 471, 472, 41 Ind. App. 156.

A holding on appeal that plaintiff's evidence entitled him to have the issues mitted to the jury is not conclusive that plaintiff is entitled to go to the jury on a retrial, but that question depends on the evidence introduced on retrial. Hartley v. Chicago & A. R. Co., 73 N. E. 398, 399, 214

Ill. 78.

the "law of the case" on those facts. West

fall v. Wait, 73 N. E. 1089, 1091, 165 Ind. 353,

6 Ann. Cas. 788.

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Where the instructions of the court on the second trial of a cause conform to the opinion on appeal from the judgment on the first trial, it is not error to refuse sub-requested instructions. Where, on the first trial of a cause, a peremptory instruction was not given or requested, and that question was not presented on appeal, the propriety of giving a peremptory instruction on the second trial must be determined by the evidence, without reference to the opinion of the appellate court. Miller v. Metropolitan Life Ins. Co. (Ky.) 89 S. W. 183, 184.

That principle of the "law of the case," when applicable to a subsequent appeal of the same case, is limited to decisions on a prior appeal on points necessary to a determination of the cause. City of Rushville v. Rushville Natural Gas Co., 73 N. E. 87, 89, 164 Ind. 162, 3 Ann. Cas. 86.

Where, in an action at law tried to the court, the facts were in dispute, a submitted proposition as the "law of the case," which was a mixed proposition of law and fact,

The rule of the "law of the case" has no application to questions of fact, so that nothing said on a former appeal as to the facts can bind the trial court or be conclusive on a second appeal. Where, in an action on a policy, the Supreme Court reversed a judgment in favor of plaintiff, and remanded the cause for new trial, holding that the policy was void for breach of a condition, and that

the facts proved did not establish a waiver thereof, such judgment was not res judicata of the issue of waiver on the retrial at

which the evidence was materially different. Hartford Fire Ins. Co. v. Enoch, 96 S. W. 393, 394, 79 Ark. 475.

The decision of the appellate court will be followed on a subsequent appeal, where the record therein supports the conclusion reached on the prior appeal. Malone's Committee. v. Lebus (Ky.) 96 S. W. 519, 521.

700, 157 Cal. 339 (quoting Tally v. Ganahl, 90 Pac. 1049, 1050, 151 Cal. 418, 421).

The rule of the "law of the case" is applicable only where the same matters determined in a previous appeal are involved in a subsequent appeal, and a judgment on appeal sustaining a demurrer to a complaint is not conclusive on a subsequent appeal, where the facts alleged are different and present different questions of law. Flood v. Templeton, 92 Pac. 78, 83, 152 Cal. 148, 13 L. R. A. (N. S.) 579.

LAW OF CONTRACT

Under Acts 1903, p. 55, c. 39, making it the duty of the court to charge the law of the case, "the law of the case" means the "The law of contract' may be described substantial issues of the case. Gibson & as the endeavor of the state, a more or less Cunningham v. Purifoy, 120 S. W. 1047, 56 imperfect one, by the nature of the case, to

Tex. Civ. App. 379.

"According to the more rigid rule, an expression of opinion, however deliberate upon a question, however fully argued, if not essential to the disposition that was made of the case, may be regarded as a dictum; but it is, on the other hand, said that it is difficult to see why, in a philosophical point of view, the opinion of the court is not as persuasive on all the points which were so involved in the cause that it was the duty of counsel to argue them, and which were deliberately passed over by the court, as if the decision had hung upon but one point." Bouvier. Where, in an action on a contractor's bond for the construction of a high school, the constitutionality of the Code provision providing for such bonds, and the validity of the bond in question given thereunder, were directly presented and decided by the court, to the effect that the bond was enforceable as a common-law bond voluntarily given, regardless of the validity of the statute, such decision was not obiter, but constituted the "law of the case" and was conclusive on the parties on a subsequent appeal. People's Lumber Co. v. Gillard, 90 Pac. 556, 557, 5 Cal. App. 435.

establish a positive sanction for the expectation of good faith which has grown up in the mutual dealings of men of average rightmindedness." Viles v. Barre & M. Traction & Power Co., 65 Atl. 104, 105, 79 Vt. 311 (quoting and adopting Williston's Wald's Pol. Cont. 1).

LAWS OF THE COUNTRY

See Conformably with the Laws.

The treaty between the United States and the Argentine Republic of July 27, 1853 (article 9, 10 Stat. 1009), provides that if any citizen of either of the two contracting parties shall die without will in any of the territories of the other, the Consul General or consul of the nation to which decedent belonged, or the representative of such Consul General or consul, may intervene in the possession, administration, and judicial liquidation of decedent's estate, conformably with the laws of the country, for the benefit of the creditors and legal heirs. Held, that the phrase "laws of the country," so far as the United States is concerned, means the local laws of administration and procedure of the respective states, and qualifies the right and the method of intervention, as well as the procedure after intervention takes place, so that if a consul intervenes he must do so in the manner, to the extent, and for the purpose prescribed by the laws of the and the Italian Consul General, under the jurisdiction where the property is situated, treaty of May 8, 1878, between Italy and the United States (article 17, 20 Stat. 732), providing that the respective Consuls Gen"The doctrine of the 'law of the case' is eral, etc., shall enjoy in both countries all this: That where the Supreme Court, in de- the rights which are or may hereafter be ciding an appeal, states in its opinion a prin- granted to the officers of the same grade of ciple of law or rule necessary to the deci- the most favored nation, would not have sion, that principle or rule becomes the law the right to be appointed administrator of of the case,' and must be adhered to through- the estate of a subject of Italy resident in out its subsequent progress, both in the California, leaving property there with his lower court and upon subsequent appeal, heirs resident in Italy, in view of the Cali* and this, although in its subse-fornia law providing that the public adminquent consideration this court may be clear- istrator of the county shall officiate in such ly of the opinion that the former decision a case. In re Ghio's Estate, 108 Pac. 516, is erroneous in that particular." Wester- 518, 157 Cal. 552, 37 L. R. A. (N. S.) 549, 137 feld v. New York L. Ins. Co., 107 Pac. 699, Am. St. Rep. 145.

The doctrine of the "law of the case" presupposes error in the enunciation of a principle of law applicable to the facts of a case under review by an appellate tribunal, but the ruling adhered to in the single case where it arises is not carried into other

cases as a precedent. Allen v. Bryant, 100 Pac. 704, 705, 155 Cal. 256.

LAW OF HIS RESIDENCE

Code Civ. Proc. § 390, provides that, where a cause of action not involving real estate within the state accrues against a nonresident, an action cannot be brought thereon in the state after the expiration of the time limited by the "law of his residence" for bringing a like action. Held, that the phrase "law of his residence" means the law of the debtor's residence at the time the cause of action accrued, and not the time when the action was commenced. Utah Nat. Bank v. Jones, 96 N. Y. Supp. 338, 339, 109 App. Div. 526.

LAW OF THE LAND

See Due Process of Law. LAW OF NECESSITY

The "law of necessity," as applied to the power to punish for contempt, is the law of self-defense. People ex rel. Attorney General v. News-Times Pub. Co., 84 Pac. 912, 967, 35 Colo. 253 (adopting definition in Thomas, Constructive Contempt).

LAW OF THE ROAD

The custom of the road, and the law founded on it, to go to the right of the center of the road in order to safely pass governs the case of vehicles passing on the same side of the roads and streets so wide that there is no necessity for them to turn to the right of the center line in order to pass safely. Wright v. Fleischman, 85 N. Y. Supp. 62, 41 Misc. Rep. 533.

LAW OF THE STATE

The "laws of a state" are such enactments as its Legislature promulgates, and as expounded by its courts, and a state statute has such meaning as the judicial department of the state construes it to have, though without such judicial construction the federal courts might from its language construe it differently. Commonwealth v. International Harvester Co. of America, 115 S. W. 703, 706, 131 Ky. 551, 133 Am. St. Rep. 256; American Tobacco Co. V. Commonwealth (Ky.) 115 S. W. 755, 756.

A provision in a note that the same shall be construed by the "laws of the state" of Kansas means the statute of the state with reference to negotiable instrument and the rights and liabilities of the parties thereto, and does not comprehend the decisions of local courts construing like contracts that had been or might thereafter be announced, nor can it be expended so as to make the decisions of the local courts the governing law with respect to the construction of the provisions of the mortgage given to secure such note. Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221, 227, 59 C. C. A. 225.

Within the provision of Bankr. Act, § 64b(5), giving priority to debts owing to any person who by the laws of the state or the

United States is entitled to priority, insolvency laws are "laws of the states," although their operation is suspended by the bankruptcy act. In re Bennett, 153 Fed. 673, 687, 82 C. C. A. 531 (citing In re Wright, 95 Fed. 807).

The phrase "laws of the states," as used in Bankr. Act July 1, 1898, providing for the payment of debts owing to any person who, by the "laws of the states," or the United States, is entitled to priority, means that the priorities must be determined by the laws of the particular state where the proceeding is pending, and not by the laws of all the states together. In re P. J. Potter's Sons, 143 Fed. 407, 411.

A county ordinance regulating sheep grazing, and imposing a license tax thereon "is a law of this state" within Pen. Code, § 435, providing that every person commencing or carrying on any business for which a license is required by any "law of this state," without taking out or procuring the license prescribed, is guilty of a misdemeanor. mas County v. Wheeler, 87 Pac. 909, 913, 149 Cal. 758; Sierra County v. Flanigan, 87 Pac. 913, 149 Cal. 769 (citing In re Lawrence, 11 Pac. 217, 69 Cal. 608).

Plu

Municipal ordinances are "laws of the state," within the provisions of Pen. Code, § 435, making it a misdemeanor for a person to carry on any calling for the transaction of which a license is required by any law of the state, without taking out or procuring the prescribed license. Ex parte Sweetman, 90 Pac. 1069, 1070, 5 Cal. App. 577; Ex parte Bagshaw, 93 Pac. 864, 865, 152 Cal. 701.

LAW STUDENT

See Student.

LAW OF THE UNITED STATES

Congressional enactments having general application throughout the United States, and not the purely local laws of the District of Columbia, are what are meant by the provision of the Federal Judicial Code, § 250, for the appellate review in the Federal Supreme Court of judgments and decrees of the court of appeals of the District in cases in which the construction of "any law of the United States" is drawn in question by the defendant. American Security & Trust Co. v. Commissioners of District of Columbia, 32 Sup. Ct. 553, 554, 224 U. S. 491, 56 L. Ed. 856.

The phrase, "laws of the United States," as used in the removal acts, authorizing removal of a cause arising under the laws of the United States, means acts of Congress, and does not include executive rules and regulations, unless a recovery of damages is expressly authorized by statute for a disre gard of such regulations. Beck v. Johnson, 169 Fed. 154, 162.

LAWFUL ACT

The laws enacted by a territorial Legis- [1015, 1019, 177 Mo. 699 (quoting with aplature, subject to disapproval by Congress, proval from State v. Bulling, 15 S. W. 367, are not "laws of the United States," and a 16 S. W. 830, 105 Mo. 204). suit arising under them, as where a corporation organized under them is a party to the suit, does not arise under the laws of the United States, and a federal court has no jurisdiction on that ground. Maxwell v. Federal Gold & Copper Co., 155 Fed. 110, 112, 83 C. C. A. 570.

LAWS, RULES, AND REGULATIONS
GOVERNING THE SOCIETY

The words "lawful act," as used in Pen. Code 1895, § 684, providing that if any person in the performance of a lawful act shall by negligence and carelessness cause the death of another he is guilty of negligent homicide of the first degree, is defined by article 685 as an act not forbidden by the penal law, and which would give no just A certificate in a mutual benefit associa-occasion for a civil action. Gorden v. State tion, requiring that members should comply (Tex.) 90 S. W. 636, 637. with all "laws, rules, and regulations governing the society," or that might be thereafter enacted for its government, related to bylaws enacted to control the internal management of the association, and did not include a by-law by which the society attempted to limit its liability on all outstanding certificates to an amount not exceeding one-half of the amount the association had contracted to pay on the death of members in good standing. Bornstein v. District Grand Lodge No. 4 Independent Order B'nai B'rith, 84 Pac. 271-275, 2 Cal. App. 624.

LAWFUL

See Shall be Lawful.
See, also, Legal.

Where plaintiffs alleged that, being the owners of certain capital stock in defendant company, they deposited it with the company, to be sold by defendant and the proceeds used in paying its debts, in consideration of an agreement that plaintiffs should hold certain offices of defendant until its business should be in successful operation, that defendant violated its agreement and ejected plaintiffs from the offices, and had sold and issued the stock to others, and refused and failed to deliver it to plaintiffs, or to pay plaintiffs the value thereof, though requested to do so, there could be no recovery as on a contract, as the alleged contract was illegal under Civ. Code, § 431, requiring directors of a corporation to be elected annually by the stockholders or members, and section 2240, declaring that which is contrary to an express provision of the law not "lawful." Glass v. Basin & Bay State Min. Co., 77 Pac. 302, 304, 31 Mont. 21.

Legal, adequate, and reasonable syn

onymous

LAWFUL AUTHORITY

See Proper and Lawful Authority.

the

Plaintiff's superintendent visited land on which defendants were claimed to have committed a trespass in cutting timber, and on each of the visits stopped at defendants' camp. On his first visit the superintendent pointed out the section or lot lines to the foreman of defendant company and requested him to keep an accurate account of all timber he might cut. A like request was made of defendant S., who was president and general manager of defendant company. Held, sufficient to show that plaintiff acquiesced in the cutting and removing of the timber, subject to defendants' accounting for its actual value, and that it was not cut without "lawful authority," within Rem. & Bal. Code, § 939, authorizing a recovery of treble damages for the cutting of timber without lawful authority, etc. Lytle Logging & Mercantile Co. v. Humptulips Driving Co., 111 Pac. 774, 775, 60 Wash. 559. LAWFUL BENEFICIARY

The word "lawful," as used in a benefit certificate, providing that the beneficial association would pay to the beneficiary a certain sum of money, provided he was the "lawful" beneficiary of the member at the time of his death, means, according to the laws of the beneficial association, that plaintiff should be at the time of the member's death within the order of family relationship to the beneficiary mentioned in the charter. Davin v. Davin, 99 N. Y. Supp. 1012, 1014, 114 App. Div. 396.

LAWFUL BUSINESS

In Business Corporations Law, § 2, authorizing the formation of stock corporations for any lawful business, "lawful business"

In speaking of the provocation necessary to arouse the heat of passion, which would result in reducing the crime to manslaughter, "this court has held that 'lawful,' | means one lawful to all who engage in it and 'legal,' 'adequate,' and 'reasonable,' when used as adjectives qualifying 'provocation,' are synonyms; and, as a general rule, with very few exceptions, it takes an assault or personal violence to constitute this provocation." State v. Heath, 121 S. W. 149, 154, 221 Mo. 565; State v. McKenzie, 76 S. W.

does not include the business of practicing law; the right to practice law being in the nature of a franchise from the state conferred only for merit. In re Co-operative Law Co., 92 N. E. 15, 16, 198 N. Y. 479, 32 L. R. A. (N. S.) 55, 139 Am. St. Rep. 839, 19 Ann. Cas. 879.

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