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Opinion of the conrt.
least, some evidence that the claim was just, and this they would have furnished had they contained nothing more than averments that-the defendants had agreed to insure, and that the person whose life was insured had died. The first assigument of error is, therefore, not sustained.
The second is equally without merit. After the case had been summed up, and when the court was about to charge the jury, the defendants offered to submit prayers for instructions, but the court refused to receive them, assigning as a reason that the offer was too late. This is alleged to have been an error, What the prayers were, whether the instructions asked were pertinent to the case or not, or whether they could rightfully have been given had they been received, we are not informed. They were not incorporated in the bill of exceptions, and they do not appear in the record. But, assuming that they were such as the court ought to have given had they been presented in time, there was no error in refusing to receive them after the case had been argued to the jury. The rule of the court then existing was as follows: “In causes, civil or criminal, tried by a jury, any special charge or instruction asked for by either party must be presented to the court, in writing, directly after the close of the evidence and before any argument is made to the jury, or they will not be considered.” This is a reasonable rule, intended to guard as well the court as the opposite party against sudden surprise. It does not deprive either party of a right to the opinion of the court upon any material propositions which he may desire to have presented to the jury. It merely regulates the exercise of that right. The rule exists in very many courts, and it has been found necessary in the administration of justice. No doubt a court may, notwithstanding the rule, in its discretion,' receive prayers for instructions even after the general charge has been given to the jury, but neither party can claim as a right a disregard of the ordinary rules of practice in the court. There is nothing inconsistent with this to be found in the case cited.* On the contrary, whether a court shall
* People v. Williams, 32 California, 280
Opinion of the court.
enforce such a rule, or depart from it, is treated in that case as a matter resting in the discretion of the court. That it is competent for courts to adopt such a rule has often been decided, and once, at least, if not oftener, in California.*
The remaining errors have been assigned to the charge of the court. The principal defence set up at the trial was that in the application for insurance false answers had been given to the questions propounded by the defendants. Those questions were, in substance, whether the person whose life was proposed for insurance had had certain diseases, or, during the next preceding seven years, any disease, and the answers given were that he had not. It was in reference to this that the court instructed the jury it was for them to determine from the evidence whether the person whose life was insured had, during the time mentioned in the questions propounded on making the application, any affliction that could properly be called a sickvess or disease, within the meaning of the term as used, and said, “ for example, a man might have a slight cold in the head, or a slight headache, that in no way seriously affected his health or interfered with his usual avocatious, and might be forgotten in a week or a month, which might be of so trifling a character as not to constitute a sickness or a disease within the meaning of · the term as used, and which the party would not be required to mention in answering the questions. But again, he might have a cold or a headache of so serious a character as to be a sickness or disease within the meaning of those terms as used which it would be his duty to mention, and a failure to mention which would make his answer false.”
There is no just ground of complaint in this instruction, either considered abstractly or in its application to the evidence in the case. It was, in effect, saying that substantial truth in the answer was what was required. If, therefore, the defendants have been injured it was by the verdict of the jury rather than by any error of the court.
* People v. Sears, 18 California, 635.
The twenty-fifth section of the Judiciary Act of 1789 and the second section of the act of 1867, much similar to it, being referred to in the body of this book more than once, are here given. Words in the former act omitted in the latter, or words in the latter not in the former, are here put in brackets; and words variant in the two acts in italics.
JUDICIARY ACT OF 1789.
JUDICIARY ACT OF 1867.
[1 Stat. AT LARGE, 85.]
[14 STAT. AT LARGE, 385.] SECTION 25. And be it further en SECTION 2. And be it further en. acted, That a final judgment or decree acted, That a final judgment or decree in any suit, in the highest court [of in any suit in the highest court of a law or equity] of a State in which a State in which a decision in the suit decision in the suit could be had, could be had,
Where is drawn in question the Where is drawn in question the validity of a trenty or statute of or an validity of a treaty or statute of or an authority exercised under the United authority exercised under the United States, and the decision is against States, and the decision is against their validity,
their validity, Or where is drawn in question the Or where is drawn in question the validity of a statute of, or an au- validity of a statute of or an authority exercised under any State, on thority exercised under any State, on the ground of their being repugnant the ground of their being repugnant to the Constitution, treaties, or laws to the Constitution, trenties, or laws of the United States, and the decision of the United States, and the decision is in favor of such their validity, is in favor of such their vaiidity,
Or where is drawn in question the Or where any title, right, privilege, construction of any clause of the Con- or immunity is claimed under the stitution, or of a treaty, or statute of, Constitution, or any treaty or statute or commission held under the United | of, or commission held, or authority States, and the decision is against the exercised under the United States, title, right, privilege, or exemption and the decision is against the title, specially set up or claimed by either right, privilege, or immunity especiparty, under such [clause of the said] ally set up or claimed by either party Constitution, treaty, statute, or com- under such Constitution, treaty, statmission,
ute, commission (or authority),
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May be re-examined and reversed May be re-examined and reversed or affirmed in the Supreme Court of or affirmed in the Supreme Court of the United States upon a writ of error, the United States, upon a writ of the citation being signed by the chief crror, the citation being signed by the justice, or judge, or chancellor of the chief justice, or judge, or chancellor court rendering or passing the judg- of the court rendering or passing the ment or decree complained of, or by judgment or decree compluined of, or a justice of the Supreme Court of the by a justice of the Supreme Court of United States, in the same manner and the United Stutes, in the same manunder the same regulations, and the ner, and under the same regulations, writ shall have the same effect as if the and the writ shall have the same effect judgment or decree complained of as if the judgment or decree comhad been rendered or passed in a Cir- plained of had been rendered or passed cuit Court, and the proceeding upon in a court of the United States; and the the reversal shall also be the same, proceeding upon the reversal sball except that the Supreme Court (in- also be the same, except that the Sustead of remnanding the cause for a preme Court may, at their discretion, final decision as before provided] proceed to a final decision of the same, may, at their discretion [if the cause and award execution (or remand the shall bave been once remanded be- same to un inferior court). ... fore], proceed to a final decision of the same and award execution. [But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the beforementioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or au. thorities in dispute.]
IN DE X.
ADMIRALTY. See Prize; Practice, 15.
answers responsive to the bill. Moore v. Huntington, 417. APPEAL. See Practice, 7, 15, 19, 20; Supersedeus. 1. When a proceeding below is, in its essential nature, a foreclosure of a
mortgage in chancery, an appeal is the only proper mode of bringing
it to the Supreme Court. Marin v. Lalley, 14. 2. In prize cases, wherever it appears that notice of appeal or of intention
to appeal to the Supreme Court was filed with the clerk of the District Court within thirty days next after the final decree therein, an appeal will be allowed to the Supreme Court whenever the purposes of jus
tice require it. The Nuestra Señora de Regla, 29. 3. Where the Circuit Court of the United States proceeds to exercise ju
risdiction under the twenty-third section of the act of 31st May, 1870, entitled "An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes," an appeal will lie to the Supreme Court from its final decree. Ex parte
Warmouth, 64. 4. That court has no power to issue the writ of prohibition in such a
cause until such appeal is taken. 16. 5. Where the claim on a fund in the Registry of the Admiralty of several
mortgages secured in a body by one mortgnge, exceeds $2000, an appeal to the Supreme Court will lie by the mortgagees in a body, though the claim of no one of them exceed the said sum.
Rodd v. Heartt, 354. APPEARANCE. When a defendant has filed a plea to the merits, and afterwards, by leave
of the court, withdraws his plea, that does not withdraw his appearance, and he is still in court so as to be bound personally by a judg
ment rendered against him in the action. Eldred v. Bank, 545. ARMY OFFICER. 1. One who shows that he received a commission from the proper source,
and who serves and is recognized as such officer by his superiors until his regiment is mustered out, and who presented himself at the proper time and place to be mustered in, and was refused, makes out a primâ
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