Laws

of "did and performed" Post Date: Sun, 27 Jul 2008 15:10:22 +0000
8 Where, however, the offense is In U S v Worrall, 2 Dal L (U S) 384, which was a case of attempted bribery, the court divided as to whether or not the United States courts have power to punish a man for an act not expressly declared by a law of the United States to be crimina L 1 2 Bis H CR Pr, 127 For forms of the indictment see 3 Chitty CR L 682^ se Q ; also Rex v Smith, 20 How St TR1227 2 2 Bis H CR Pr, 127 3 Where Indictabl e An offer of bribery made by letter is indictable either in the county in which it is mailed or in which it is received; the principle being that the offense is con- summated when the letter is mailed, and does not require an acceptance by the person to whom the bribe is of- 'fere d U S v Worrall, 2 Dal L ( U S) 3 8 4 . 6 Texa S An offer to accept a bribe is not punishable under the laws of Texa S Hence the indictment must charge specifically the acceptance of a bribe, and not merely an offer or agreement to accept the sa Me Hutch- inson v State, 36 Tex 293 7 2 Bis H CR Pr, 127 8 State v Walls, 54 Ind 561; Reed v State, 43 Tex 319; People z/ v Ed- son, 68Cal549; State v Taylor, 44 La An N 967; State v McCrystol, 43 La An N 907; State v Glaudi, 43 La An N 914; State v Lusk, 16 W Va 767 If the indictment is thus drawn up under the general laws of a state, it will be valid and unaffected by any charter provisions of a cit Y People v Swift, 59 Mich 529 Offense Sufficiently Charge d An in- formation in which the offense charged is called compounding a felony, but in which the facts stated constitute brib- ery, is in reality a charge of the latter offense, and a verdict finding the accused guilty of the former offense is erroneous and should be set asid e Watson v State, 29 Ark 299 So where an indictment for con- spiracy to bribe a member of the board of education charged that defendants did "then and there conspire to- gether to tempt, seduce, bribe, and corrupt said member by then and there offering to pay him $5000, all of which " defendants "did and per- formed to unlawfully and corruptly in- duce, influence, and bribe said mem- ber," it was held that the anteced- ent .of "did and performed" was the offering to pay, and not the conspiring together,, and that the indictment charged the commission of a cri Me State v Womack, 4 Wash 19 Andan indictment charging a defend- ant with asking for and soliciting a bribe, and charging the elements 'of not charged substantially under the statute, the appellate court will reverse the judgment, it is said, though no motion in arrest of judgment was made in the court belo W 1 b DUPLICIT Y There should be no duplicity in an indictment for bribery, but when it is not certain that different and distinct felonies, which cannot be joined, are charged in the different counts, a motion to quash on account of duplicity should be overrule d 2 C ALLEGATION OF VALU e An indictment for bribery should allege the offer, gift, or receipt of something of value as a bribe, 3 also 'holds that, unless the statute is followed, the addition that " so the accused did receive money for omit- ting and delaying to perform a duty pertaining to his office of constable," etc, will not cure the defe Ct See People v Judge, zCal564 2 Glover v State, 109 Ind 391 The corrupt acceptance of a gift and gratuity, and of the promise to make a gift, are not inconsistent, and there is no duplicity in so charging in a count of an indictment for brib- er Y State v Smalls, n S Car 262 So an indictment is not bad for du- plicity in charging the crime of re- ceiving a bribe, and also a conspiracy to do an unlawful act, where it is ex- pressly stated in the second count that there is no intention to charge two crimes, and where that count is merely intended to vary the charge so as to meet the proof State v Potts (Iowa), 5 L R A 814 A Single Count in an indictment which charged that B was a member of the general assembly, and also a member of the standing committee of the house to which the bill was re- ferred, and that the offer or promise was made to influence his vote there- for in the house, and his vote for a favorable report thereon in the com- mittee, is not bad for duplicit Y The charges thus made constitute but one offense under the statut e Watson v State, 39 Ohio St 123 3 U S v Kessell, 62 Fed Rep 57- In this case the indictment charged that defendant did unlawfully ask a "gratuity, the nature of which is un- know N" It was held that in not al- leging the gratuity to be of money, property, or other thing of value, the indictment was ba d Promissory Note as a Brib e An in- dictment against a public officer, charg- ing him with having received a prorrt- the offense defined in Pe N Code Ca L, 93, is not uncertain as to whether the offense is charged under that section or section 96 of the code, which does not make it an offense to solicit a brib e People v Squires, 99 Ca L 327 Corporation S Section 165 Pe N Code Ca L, providing for punishment for bribery, applies only to public and qua .

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1 d ALLEGATION Post Date: Sun, 27 Jul 2008 14:54:19 +0000
rz'-public corporations, and an in- dictment under that section is fatally defective which fails to charge chat the defendant is either a public or a ^m'-public corporatio N People v Turnbull, 93Cal630 Congressmen Indictable for Briber Y An indictment for bribery against a member of congress is not arrested by the privileges secured to representa- tives by Art. I, 5, of the Constitu- tion of the United State S State v Smalls, ii S Car 262 Repugnanc Y An indictment is not defective for repugnancy because it charges the corrupt acceptance of a bribe to vote for a " question which was and might be, by law, brought be- fore " the defendant as state senatoRState v Smalls, n S Car 262 Surplusage in Statut e Defendant was indicted under 62, Internal Rev Act of July 13, 1866 (14 U S Statat Large 168), which makes it an indictable offense to bribe an officer of the United State S Trial was had and a motion in arrest of judgment made on the ground that 'under the above section as it was drawn no conviction could be ha d It was held that the words " and t shall be thereof con- victed " are to be treated as surplus- age, since otherwise an indictment could not be filed till a conviction was had, a manifestly absurd provi- sio N U S v Stern, 5 Blatchf ( U S) 5 i2 but usually the specific sum of money or other consideration need not be set out. 1 d ALLEGATION OF TI Me Time is not of the essence of the offense of bribery or attempt to commit the same, and therefore no allegation of time is necessar Y 2 e BRIBERY OF OFFICIAL S An indictment for the bribery of an officer or functionary of justice should allege the pendency 3 and character of the suit or duty in which he was to be thereby influenced, 4 with such averments as to show that the intent was to bribe him in respect to his official dutie S 5 If, however, the issory note for the payment to him of money by the maker, as a bribe to in- fluence his action in the discharge of an official duty, does not charge the re- ceiving by him of a thing of value, and is bad on motion to quas H State v Walls, 54 Ind 561 1 Co M v Chapman, i Va Ca S 138; Watson v State, 39 Ohio St 123; Leeper v State, 29 Tex App 154 Indiana 2 Rev StatInd 1876, 39, P 443, as amended by the Act of 1871, p 45, is held to contemplate a distinct and well-defined offer to bribe, and if the offer be of a present, then its nature and value must not be left to conjectur e Therefore an affidavit for an information, charging that the offer was of "a present, or a present of one hundred dollars, the affiant is not certain which," is insufficient.

Autor of the post: Undefined

The crime must be more Post Date: Sun, 27 Jul 2008 14:36:05 +0000
A further charge therein of the payment of one hundred dollars, after the offi- cial action desired was consummated, is mere surplusag e State v Stephen- son, 83 Ind 246 2 State v McDonald, 106 Ind 233 The statute of California does not require that the indictment for brib- ery shall show that the offense was committed on a day prior to the time of filing the indictment; it is suffi- cient if it can be understood there- from that the offense was committed at some time prior to the time of find- ing the indictment. To accuse is to state that the act charged was prior to the accusatio N People v Squires, 99Cal327 3 California The defendant was charged with receiving money as a bribe, not to forfeit a recognizance; but there was no allegation that there was any proceeding commenced upon the recognizance, nor that any was to be commence d It was held that the cause was not sufficiently set out to warrant a conviction, since the stat- ute of California against the bribery of officials confines the offense to act- ing " more favorably to one side than another in any suit, matter, or cause pending or brought before hi M" Peo- ple v Judge, 2Cal564 4 Collins v State, 25 Tex Supp 203 Witnesses and Juror S The necessity of alleging the offense in connection with which the bribe was given, is not confined to officers of justic e Thus an indictment charging that defend- ant did corruptly give or offer to give, to a person named, three dollars, with intent to induce him " to commit a cer- tain crime punishable as a felony, to wit, the crime of perjury," is insuffi- cient. The crime must be more defi- nitely describe d Rivers v State, 97 Ala 72 In Caruthers v State, 74 Ala 406, the indictment was for the offer to bribe a juror in a case before him; and an averment that the indictment was for " disturbing females at a pub- lic assembly" was held a sufficient description of the offense upon which it was attempted to influence the ju- ror's decisio N Knowledge of Suit must be Allege d An indictment against a prosecuting attorney for receiving a bribe for com- pounding or concealing a crime is fatally defective if it does not charge that the attorney had knowledge of the actual commission of the crime which it is alleged that he agreed to compound, conceal, etc State v Hen- nin g 33 Ind 189 5 Collins v State, 25 Tex Supp 203 .

Autor of the post: Undefined

1605, Paschal's DigeSt 6 Scoggins Post Date: Sun, 27 Jul 2008 14:16:35 +0000
In Barefield v State, 14 Ala 603, it was held that an indictment for an offer to bribe a justice of the peace was fatally defective if it failed to al- lege that the matter about which the defendant attempted to influence the latter fact appears from other facts set out, a specific averment to that effect seems not to be require d 1 The indictment should also charge that the bribe was given or received corruptl Y 2 The gravamen of the offense of bribery of an official is the intention to influence his official action by giving or offering him a bribe, and if all the facts necessary to constitute this be alleged, no other allegations are necessar Y 3 Thus there is no need to allege the effect intended or had on such official action by such bribe, 4 nor is it necessary to set out the particular acts for the performance of which the officer was offered the brib e 5 Classes of Officer S In a prosecution under a statute punishing the giving or offering to give bribes, with intent to influence the action of any judicial, legislative, or executive officer, it is sufficient if the indictment sets forth such a state of facts as show to which of the above classes the party to whom the bribe given or offered belongs, and an allegation showing the particular class is unnecessar Y 6 judgment of the justice was within his jurisdictio N 1 Co M v Murray, 135 Mas S 530 In this case the indictment was under Mas S Pu b Stat, C 205, 9, and alleged that the bribery took place when the defendant " was lawfully brought before the District Court of Central Berkshire, a court duly and legally established, and before J T , Es Q, the standing justice of said court;" and that he was a judicial offi- cer duly qualified to perform his du- ties as suc H It was held that the in- dictment sufficiently alleged that the matters referred to were pending be- fore the justice in his official capacity, and that he was duly appointe d 2 State v Pritchard, 107 N Car 921 3 Unnecessary Allegatio N Thus an indictment against a school trustee, for having accepted money for con- tracting to purchase furniture and supplies to a large amount for the school, need not contain an averment as to the amount, quality, or descrip- tion of the property contracted for or purchase d Glover v State, 109 Ind The indictment need not aver that the defendant was eligible to the office for the appointment to obtain which he had given the brib e State v Graham, 96 Mo 1 20 And in an indictment charging the acceptance of a bribe by a state sena- tor to vote for a certain joint resolution it is sufficient to designate the joint resolution by its title onl Y State v Smalls, ii S Car 262 The fact that a township trustee is the trustee of the school township, and that, in contracting for apparatus for the school, he acts as school trus- tee, is a matter within judicial knowl- edge, and need not be alleged in an indictment for briber Y Such indict- ment is correct in designating the person to whom the bribe was offered, either as the township trustee or the school truste e ' State v McDonald, 106 Ind 233 4 State v Walls, 54 Ind 561 See Glover v State, 109 Ind 391 5 Reed v State, 43 Tex 319 It is not necessary that an indict- ment for bribery aver that the corrupt intention to influence the act or judg- ment of an executive officer was in relation to any specific or particular matter then pending before hi M It is enough to aver a corrupt intention to influence him in any matter pend- ing before him, or which may by law come or be brought before hi M Co M v Lapham, 156 Mas S 480 6 Co M v Lapham, 156 Mas S 480 Thus an indictment charging a cor- rupt offer to H, a member of the House of Assembly of the state of Florida, and representing the county of Gadsden as one of the representa- tives thereof, sufficiently showed that the said H was a legislative officer, without an averment to that effe Ct State v Pearce, 14 Fla 153 So an averment that the appellee / BRIBERY OF VOTER S: An indictment against a person for accepting a bribe to influence his vote in an election need not state who gave the bribe, 1 nor is it necessary to aver that the persons voted for were candidates for office S* Such an indict- ment, however, should allege that an election was held, and that the defendant's vote was given at this election, 3 at least if these facts do not sufficiently appear from the other allegation S 4 g ATTEMPT TO BRIBE A WITNES S An indictment for offer- ing to bribe a witness to disobey a subpoena or other legal process must allege the issuance of such process on lawful authority ; 5 but if the bribe is offered to induce the witness to avoid a sub- poena or other legal process, an allegation as to its issuance is un- necessar Y 6 In the former case it is also necessary to allege the pendency of the suit and the parties thereto, and to designate affirmatively the witness to whom the bribe was offere d T was duly elected and qualified as a county attorney is a sufficient aver- ment that he is a judicial officeRState v Currie, 35 Tex 17 1 Hensley v Co M (Ky, 1888), 9 S W Rep 129 2 Co M v Stephenson, 3 Mete (Ky) 226 3 Newell v Co M, 2 Wash ( Va) 88 4 In Co M v Stephenson, 3 Mete (Ky) 226, the fact that an election occurred at the time and place stated in the indictment, was held to appear sufficiently from the allegation that C was bribed, and for said bribe did vote for the several persons named therein, and for the several officer S See State v Jackson, 73 Me 91 Sufficient Charge of Offens e The alle- gations, in an indictment, that the per- son bribed was a legal voter and en- titled to vote at a legal election, and that defendant gave him two dollars, and he, influenced thereby, voted for a candidate for an office named, suffi- ciently describe the offense of bribery under Ge N StatKy, C 33, art. 12, 12 Co M v Selby, 87 Ky 594 An Instruction was asked to the effect that the jury must believe that the money was given the accused for the purpose of influencing his vote, and that for said money he did vote as desired; but that if the money was in good faith loaned, the accused was not guilt Y It was held that this instruc- tion was improperly refuse d Johnson v Co M, 90 Ky 53 5 Brown v State, 13 Tex App 358 In State v Hughes, 43 Tex 518, where the indictment failed to allege that a bribe was offered the witness either to induce him to disobey a subpoena or other legal process, or to avoid the service of the same by secreting himself or any other means, it was held fatally defective under art. 1605, Paschal's DigeSt 6 Scoggins v State, 18 Tex App 298, reviewing the Texas cases on this point.

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to his action at la W Post Date: Sun, 27 Jul 2008 14:01:37 +0000
Jackson v State, 43 Tex 421; Chrisman v State, 18 Neb 107 Missour I In an indictment under Rev Code 1855, C 50, art. 2, 9, it is not necessary to state that the tes- timony of the witness was material, or that he had been summoned as a witness, or that the attempted bribery was with intent to impede and obstruct the due course of justic e Nor is it necessary to state either the kind or amount of money or property offered to the witness, or the intent of the Defendant And when the attempt was made to induce a witness in a criminal proceeding to absent himself, so as to prevent his giving testimony before a justice of the peace, it is sufficient to allege that the justice had jurisdiction of the matter heard before him; an allegation that he was an act- ing justice is unnecessar Y State v Biebusch, 32 Mo 276 7 Brown v State, 13 Tex App 358 I ACTIONS BY BRIDGE AUTHORITIES parties Plaintiff Where the proprietors of a bridge are private individuals or a private corpora- tion, they are the proper parties plaintiff in all matters pertaining to such structure S But where the bridge is a public structure, the legislature has full power to direct by what officers any class of suits shall be brought, and the same must be instituted by the persons thus designated, 1 such as the county commissioners, 2 commissioners of highways, 3 or overseers of highway S 4 Misjoinder of Partie S The joinder of parties not in strict com- pliance with the statute will be erroR5 I I ACTIONS FOR NEGLIGENCE AND DEFECTIVE BRIDGES 1 Parties Defendant The parties chargeable, by the law of the place where the bridge is situated, with its maintenance and repair are the proper parties defendant in actions pertaining to or growing out of such structure S These parties defendant may be the county, 6 1 Mahoning County v Railway the overseer of the road district, or, in Co, 45 Ohio St 401 case of his failure to institute the 2 Perry County v Newark, etc, Rsame, the commissioners of highways Co, 43 Ohio St 451 for the town within which the injury 4 Denver T P v White River Log, County, 140 Mas S 311; Cooper v etc, Co, 51 Mich 472 Mills County, 69 Iowa 350 Contra, 5 Port Huron v Stockman, 5 Mich, unless by special statute, White v 528 This case was an action under a Chowan County, 90 N Car 437; Michigan statute which authorized Reardon v St Louis County, 36 Mo town, 1 turnpike, 2 railroad, or other corporation, 3 or private indi- viduals ; 4 or the liability may be joint, and consequently there may be joint defendants ; 5 or the liability may be joint and sev- eral, and an election of defendants ha d 6 2 Statutory Restrictions A GENERALL Y An act of the legis- lature limiting or transferring a liability for negligence in the con- struction or maintenance of a bridge cannot affect causes of action accrued at its passag e 7 And a statute which allows the presen- tation of such claims to a board of commissioners, and appeals therefrom to a court, does not restrict the party to such proced- ure ; but he may resort .to his action at la W 8 b PRELIMINARY NOTIC e Whenever, as a preliminary to an action against bridge proprietors, a statutory notice is required, such notice must be given 9 to all the parties therein prescribed, 10 555; M'Kinnon v Penson, 8 Exc H 319, 22 L J M C 57, affirmed in error ing Exc H 609, 23 L J M C 97; Russell v Devon, 2 T R667 1 Wabash v Carver, 129 Ind 552; Spicer v Elkhart County, 126 Ind 369; Maiden, etc, RCo v Charles- town, 8 Allen (Mas S) 245; Newlin T P v Davis, 77 Pa St 317; Etheridge v Philadelphia, 26 Fed Rep 43 2 Williams v Hingham, etc, Bridge, etc, Co, 4 Pic K (Mas S) 341; Ward v Newark, etc, Turnpike Co, 20 N J L 323 3 Wilson v Boston, 117 Mas S 509; Gates v Pennsylvania RCo, 150 Pa St 50 4 Chenango Bridge Co v Lewis, 63 Barb ( N Y) i N 5 Tolland v Willington, 26 Con N 582; Arnold v Henry County, 81 Ga 730; Gates v Pennsylvania RCo 150 Pa St 50 NonjoindeRThe nonjoinder of de- fendants can only be pleaded in abate- ment; and a failure to thus plead may render the party sued liable for the whole damag e Lyman v Hampshire County, 140 Mas S 311 6 Code Ga , 690, provides that if any damage shall accrue by reason of the nonattendance or 'carelessness of any proprietor of a bridge, such proprietor shall be liable for the dam- ag e Section 691 makes this rule ap- plicable to all contractors, and to the county when no bond is taken from the contractoRIn Arnold v Henry County, 81 Ga 730, it was held that if the county let out the repair of the bridge to a contractor and neglected to take a bond from him, any person injured by reason of a defect in the bridge could maintain an action against either the contractor or the tow N In an action against a city for in- juries caused by a defective bridge, a complaint is not demurrable for not joining the bridge tender as a party defender, where no negligence is im- puted to hi M Stephani v Manitowoc (Wi S, 1895), 62 N W Rep 176 7 Reid v New York, 139 N Y 534, 68 Hun ( N Y) no; Bullock v Dun- ham (Supreme Ct), 19 N Y Supp 635 8 Posey County v Stock (Ind App, 1894), 36 N E Rep 928 Such a claim need not be filed with such commissioners before bringing actio N Sullivan County v Arnett, 116 Ind 438 9 Dickie v Boston, etc, RCo, 131 Mas S 516 10 Brown v Fairhaven, 47 Vt 386; Tyler v Williston, 62 Vt 269, distin- guishing above case of Brown v Fair- haven, 47 Vt 386, Municipal Officer S A notice addressed personally to a municipal officer has been held sufficient, where it was apparent that such notice was in- tended for, and the action was against, the municipalit Y Sargent v Lynn, 138 Mas S 599; Lyman v Hampshire County, 138 Mas S 74 Receiver S Under the act of con- gress (Au g n, 1888) which em- powered the secretary of war to determine when a bridge was an ob- struction to navigation, and then notify the owners and proprietors to so alter the same as to render navigation through and under it free, easy, and unobstructed, the secretary of war notified a railroad company to alter a certain bridge, and specified the time within which the same was to be don e In" the interim, by judicial proceed- ings, the company notified was dis- and, when required, must point out the defects complained of, 1 and contain a specification of the plaintiff's injuries, where that is like- wise a statutory requisite and the foundation of the actio N 2 Such notice must be definite and certai N 3 Alleged in Complaint.

Autor of the post: Undefined

It is not necessary, however Post Date: Sun, 27 Jul 2008 13:41:43 +0000
The giving of such notice must be alleged in the complaint. Its omission will be a ground for demurreR4 But if the negligence charged is in relation to the original con- struction of the bridge, it is not necessary to allege notic e 5 Commencement of Suit. It is not necessary, however, to wait for the authorities notified to act before beginning suit.

Autor of the post: Undefined

9 Facts must be sufficiently Post Date: Sun, 27 Jul 2008 13:26:29 +0000
6 C t COMPLAINT. It is elementary that the complaint must con- tain facts sufficient to constitute a cause of action, 7 that of two intendments the one must be taken which is most against the party pleading, 8 and that matters more properly coming from the defendant should not appear in the complaint. 9 Facts must be sufficiently alleged, however, to show the grounds of liability of the party charge d 10 But where the authority is to maintain a possessed of the property in question, and the same was placed in the hands of receiver S The notice was not complied with, and an action was com- menced to recover the penalty pre- scribed by the a Ct Held, that the re- ceivers were not liable, because no such notice had been served on them, al- though they had knowledge of the notice served upon the company; and that the company was not liable, be- cause the dispossession by legal pro- ceedings was to it an excuse and a defense for noncomplianc e U S v St Louis, etc, RCo, 43 Fed Rep 414 1 Breaking of a Spa N In Whitman v Groveland, 131 Mas S 553, a notice, under Mas S Stat1877, C 234, set- ting forth that a person was injured through a defect or want of repair in a bridge, and that the cause of the injury was the breaking and falling of a cer- tain span in the bridge, set forth the cause of the injur Y Hole in Plankin g In the same state, a notice of the place of the accident described a large hole in the planking of a certain bridge, although there were two smaller holes nearb Y Held, that the place of injury was suffi- ciently describe d Lyman v Hamp- shire County, 138 Mas S 74 3 While the validity of the Act of Au g ii, 1888 has been seriously questioned, yet, if valid, the notice must be definite and point out the al- leged defects and alterations require d A notice to " so alter " a designat- ed bridge "as to render navigation through and under it free, easy, and unobstructed," and prescribing that said alteration shall be completed "on or before" a designated time, is in- sufficient.

Autor of the post: Undefined

A contractor seeking to recover Post Date: Sun, 27 Jul 2008 13:11:35 +0000
U S v Keokuk, etc, Bridge Co, 45 Fed Rep 178 4 Dickie v Boston, etc, RCo, 131 Mas S 516 5 Boone County v Mutchler, 137 Ind 140 The rule which requires notice to a corporation of defects in its high- way or bridge has no application where the defect is a lack of comple- tion of the bridge for the use for which it was intended, and is obviou S It is not like the case of an accident to the bridge or mere want of repaiRStephain v Manitowoc (Wi S, 1895), 62 N W Rep 176 6 So held in Whitman v Groveland, 131 Mas S 553, where an action wascom- menced after such notice was given, but before a town-meeting could be called to determine whether the town would pay the amount of the injur Y 7 Baltimore, etc, RCo v Rowan, 104 Ind 88; Topeka Bridge Co v Cummings, 3 Ka N 56; Uhl v Doug- lass T P 27 Ka N 81; Stephens, etc, Trans P Co v New Jersey Cent RCo, 33 N J L 229 8 Stephens, etc, Trans P Co v New Jersey Cent RCo, 33 N J L 229 9 Louisville, etc, Canal Co v Murphy, 72 Ky 522 See Contributory Negligence, note 2, infr A 10 Lewis v State, 41 Ala 414 In an action against a board of county commissioners for injuries caused by a defective bridge, a com- plaint stating facts which show that the bridge was one which the board was bound to keep in order, need not contain a direct averment of such fa Ct Shelby County v Castetter, 7 Ind App 309 Character of Bridg e In Clark County v Brod, 3 Ind App 585, it was held that the laws of Indiana requiring county commissioners to keep bridges in repair covered only bridges erected over a river, creek, pond, lake, or stream of water flowing in a channel between banks more or less defined; and that a complaint against the county commissioners for alleged dam- ages by reason of the want of repair in a bridge must, upon its face, de- scribe a bridge within the purview of such statute; and also that an allega- tion that "defendant had, in its cor- porate capacity, supervision and con- trol over the structure," did not remove the necessity of such specific descrip- tio N Corporate Liabilit Y In the case of Co M v Chase, 127 Mas S 7, it was also held that the allegation that the bridge in question was "duly erected and legally maintained as such draw- bridge by said corporation," was a sufficient allegation of the duty of the corporation to maintain the bridg e Directions for RepaiRSmith v Wright, 27 Barb ( N Y) 621, was an action against commissioners of high- ways, and alleged that the defendants had negligently permitted " a certain bridge in said town, in a public high- way, to be and remain in a dangerous conditio N" The complaint was held bad on demurrer because it did not also allege that the defendants had omitted to give directions for the re- pair of the bridge, or that the bridge was over a stream crossing a high- wa Y Drawbridge Demand to Pas S In Jennings v Fitchburg RCo, 146 Mas S 621, the defendant was author- ized to maintain and keep in repair, over a navigable river, a drawbridge affording proper accommodations for vessels desiring to pas S By statute a railroad train was allowed fifteen min- utes before and after it was due within which to cross the draw, and all approaching trains were allowed a reasonable time within which so to d O The plaintiffs sued the railroad com- pany for the loss of a vessel which was caught in the draw and sun K One of the allegations of the com- plaint was that the master requested the superintendent of the drawbridge to open the draw and that he refused to do So This allegation was held in- sufficient because it did not show either in what way the demand was made, or that such demand was made at a time when the draw might have been le- gally opene d Highway Bridg e In the case of Shartle v Minneapolis, 17 Min N 308, an allegation that " said bridge was situate upon a street or highway over which passed a large amount of trave L" was held a sufficient allega- tion of a public street. Reasonable Time to Buil d In Frank- lin County v White Water Valley Canal Co, 2 Ind 162, the canal com- pany, by its charter, was bound to build and keep in repair bridges upon highways crossing its cana L The plaintiff constructed a bridge, and brought suit against the defendant for the expense of so doin g It was held that the complaint in such an ac- tion should allege that a reasonable time had elapsed within which the de- fendant ought to have performed the work and neglected to do So Request or Benefit. A contractor seeking to recover for removing the material of an old bridge which he has contracted to rebuild, must allege in his complaint that such work was done at the request of defendants or for their benefit, or that defendants accepted or took benefit by the sa Me Foy v Craven County, in N Car 129 Situation of Bridg e Where the loca- tion of the bridge is material, an alle- gation that it constitutes a part of a public highway leading into a city at or near the city limits sufficiently alleges that the bridge was not within the cit Y Jackson County v Nichols (Ind, 1894), 47 A M Eng Cor P Ca S 198 A complaint, in an action against a board of county commissioners for injuries caused by a defective bridge, where it states that defendant erected a bridge over a certain river "on the line and as a part of a public high- way," need not aver that it was the duty of the commissioners to keep such bridge in repair, as that duty is imposed by la W Shelby County v Castetter, 7 Ind App 309 In an action against a county for an injury resulting from the negligent failure to put up railings at the ap- proaches of a bridge, a complaint which shows that the county built the bridge, but fails to show that it was upon such highway or at a place where the county had authority to build it, is bad on demurreRShelby County v Deprez, 87 Ind 509 Special Liabilit Y In Alabama it was held that, in order to hold a county liable for the insufficiency or unsafe condition of a public bridge, the existence of this special liability must appear upon the complaint; and that among other things it must be stated that no guaranty had been taken from the builder of the bridge, or, if taken, that the time during which it was to continue had expired before the accrual of the cause of ac- tion at baRHarbour County v Horn, 48 Ala 649 Undsr Statut e U S Rev Stat1878, 1605, is as follows: " Every person or corporation that maintains any dam or bridge across the Wiscon- sin river shall also maintain at one side of a slide over such dam, and at each end of the channel-span of such bridge, a guide-boom, constructed in such manner and of sufficient length to secure the safe passage of all rafts, lumber, and water-crafts over the slide of such dam and through the channel- span of such bridge; and such boom, at its upper end, shall be securely at- tached to some pier or other firm struc- tur e This section shall not apply to any bridge below the city of Portage until the channel-span thereof shall have been established by the engineer of the United States in charge of the improvement of said river, nor to the bridge across said river within the limits of said cit Y" In the case of Sweeney v Chicago, etc, RCo, 60 Wi S 60, an action was brought to recover damages occa- sioned by a bridge obstructing navi- gation over the Wisconsin river be- low Portag e The point was raised that the complaint was bad because it did not allege that the channel-span of such bridge had been designated by the engineer described in the above sectio N The obstruction to naviga- tion was unnecessary and unlawful, and the fact that the channel-span had not been so established could not be a defense to such action, although, un- der another section of the said stat- ute, the company might be liable for treble damages for so constructing said bridg e This not being an action under that section, the allegation was not requisit e Had it been under the penal section referred to, the allega- tion in regard to the engineer would have been necessar Y Acts of Congres S In a complaint alleging that a bridge was so con- structed as to obstruct navigation, and seeking to recover for special loss and injury occasioned thereby, it is not necessary to aver that the bridge was not built in conformity with the con- ditions prescribed by an act of con- gress authorizing its construction, as it devolves upon the defendant to show that the structure conforms to said a Ct Pennsylvania RCo v Baltimore, etc, RCo,, 37 Fed Rep 129 Nor need the complaint show that the defendant was authorized by act of congress to construct and main- tain the bridge, for the court must take judicial notice of the fa Ct Penn- sylvania RCo v Baltimore, etc, RCo, 37 Fed Rep 129 Toll-bridge Liability of Count Y In Barbour County v Horn, 48 Ala 569, it was held that if the bridge was a toll-bridge, established under contract with the County Commissioners' Court, the declaration should show that it was such a bridge, and that the contract was within the scope of the authority of such court.

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Defective Plan K In Merkle Post Date: Sun, 27 Jul 2008 12:56:27 +0000
Toll-bridg e Under Mas S Stat1804, C 125, no one but a person from whom toll was demandable could maintain an action for injuries received from a de- fective toll-bridg e And in Williams v Hingham, etc, Bridge, etc, Co, 4 Pic K (Mas S) 341, it was held that such an allegation was absolutely necessary for a recovery, and that its omission would not be cured by verdi Ct In Ver Mont In an action against a town for injuries caused by a defect- ive bridge, it was held sufficient to allege that the injury was received through the insufficiency of a High-way; for, under Rev Laws, 24, a bridge is a portion of the highway, and it is never necessary that the declaration should point out with certainty the it was a watercourse, or giving its na Me 1 The liability must be shown to be for the specific claim set forth, 2 and to which the recovery will be limite d 3 Defective Bridge Damage S In an action for damages by reason of a defective bridge, notice of the defect, 4 or its equivalent, must be alleged ; 5 and when based upon the negligence of the bridge au- thorities, the specific acts of negligence, 6 together with a descrip- tion of the occurrence and of the injuries received, must be set forth, 7 and also that such injuries were due to the derelictions charged as their proximate cause, 8 which is a question for the place of the accident, or in what re- spect the highway was defectiv e Cook v Barton, 63 Vt 566 1 Jackson County v Nichols (Ind, 1894), 47 A M Eng Cor P Ca S 198 A complaint, in an action against a county for personal injuries, alleged that such injuries were caused by de- fects in a "bridge over a natural watercourse; " that the bridge consti- tuted part of a public highway in the county " leading from Numa to Clin- ton Rocks;" and that it was the duty of the county to maintain the bridg e Held, that a motion to make the com- plaint more specific was properly over- ruled, because it is both difficult and unnecessary to describe the character of the watercourse and bridg e Parke County v Wagner (Ind, 1894), 38 N e Rep 171 Where the statute authorizes the construction of bridges over water- courses, it has been held sufficient, in a complaint, to name the river, without using the statutory word, as the courts take judicial notice of the geog- raphy of the countr Y Shelby County v Castetter, 7 Ind App 309 5 Rotten Timber S Where a bridge is permitted to become defective by reason of the rotting of its timbers, it is not necessary to allege that the party having the burden of repair knew of this conditio N Allen County v Bacon, 96 Ind 31 6 Louisville, etc, Canal Co v Murphy, 72 Ky 522 7 Varianc e It is not indispensable to a recovery that the injury shall be proved precisely as laid, although some particular injury must be averred in the declaratio N Thus, in Mem- phis, etc, RCo v Hicks, 5 Snee d (Tenn) 427, the declaration based the damages upon the fact that the boat company were deprived of the profits which they would otherwise have made by the use of their boat over a river, because navigation had been obstructed, and which obstruction was the foundation of the actio N Under the judge's charge the verdict was based upon the expenses incurred by the boat in making the tri P Held, that it was not permitted to disturb the verdict by reason of this varianc e Person Drivin g In Ross v Ionia T P (Mich, 1895), 62 N W Rep 401, where the complaint alleged that com- plainant was driving, etc , and the evi- dence disclosed that her companion was actually handling the reins, the variance was held fata L Bridge or Embankment. In Smith v Sherwood T P, 62 Mich 159, the dec- laration alleged that plaintiff's horse, alarmed at a hole in the bridge, backed against the railing, which gave way, whereby the vehicle and its contents were precipitated belo W Held, im- material whether the plaintiff was pre- cipitated from the bridge or from its adjoining embankment. Defective Plan K In Merkle v Ben- nington T P, 68 Mich 133, the com- plaint alleged that the " planks in the bridge where the accident occurred were loose, and the stringers uneven, so that the planks were liable to slip off and turn over, and thereby to trip horses; and that the horse became en- tangled in the loose planks and there- by trippe d" The evidence disclosed that the horse had "stepped into a hole in a broken plank, that the horse thereby became frightened," and the injuries complained of followe d Held, that there was no varianc e 8 Harris v Vigo County, 121 Ind 299 Intervening Caus e In Baldridge, etc, Bridge Co v Cartrett, 75 Tex 628, it was alleged that the plaintiff Due Car e It is better also to allege due care on the part of the plaintiff 2 statutory Bequisite S The complaint should show a compliance on the part of the plaintiff with all the preliminary statutory requisites to his right of actio N 3 II I INDICTMENTS 1 Who may be Indicted Parties Failing to RepaiRThe county, 4 the commissioners of highways, 5 the city or town, 6 and the corporation 7 or individual, chargeable by the law of the particular place with the repair of a bridge, have been sev- erally held liable to indictment for failure to perform that dut Y 8 stopped to pay his toll at a bridge, when, from some unknown cause, his mules became frightened, and before he could recover control of them, backed the wagon against a defective railing to the bridge, which gave way and caused the injuries allege d Upon a demurrer it was held that the com- plaint did not show an intervening cause of the injur Y Injuries Result of Defe Ct An alle- gation that "the horse behind which plaintiff was riding fell from the bridge, and that the wagon-wheel dragged over the side, whereby the plaintiff was precipitated to the stream below," sufficiently connects the per- sonal injuries alleged to have been received, with the defective condition of the bridge as their proximate caus e Jackson County v Nichols (Ind, 1894), 47 A M Eng Cor P Ca S 198 Where a complaint alleges that the board of county commissioners negli- gently failed to place railings or guards at the sides of the bridge, and left it in such dangerous condition that, while plaintiff was driving over it in a buggy, her horse, without fault on her part, became frightened at a hog under the bridge and backed him- self and buggy off at the side where there was no railing or protection; that the horse, by reason of the defend- ant's unlawful and negligent conduct aforesaid, backed off the bridge, se- verely injuring plaintiff; and that such injuries were caused wholly by the said negligent conduct of defendant, without fault on plaintiff's part held, that the complaint is not objectionable as not alleging that the injury was caused by the defect in the bridg e Boone County .

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In Co M v Chase Post Date: Sun, 27 Jul 2008 12:42:51 +0000
Mutchler, 137 Ind 140 1 Ross v Ionia T P (Mich, 1895), 62 N W Rep 401 2 Contributory Negligenc e While contributory negligence may be, and is in manyjurisdictions, considered amat- ter of defense, and consequently more appropriately a matter for the defend- ant's pleading, Louisville, etc, Canal Co v Murphy, 72 Ky 522; the safer way will be found to cover it in the complaint, as many other jurisdictions so require it, Riest v Goshen, 42 Ind 339; Wabash v Carver, 129 Ind 552; Vermillion County v Chipps, 131 Ind 56 See article CONTRIBUTORY NEGLI- GENC e 3 Dickie z/ Boston, etc, RCo, 131 Mas S 516 SeeB Preliminary Notice, supr A 4 Reg v Ely, 4 New Ses S Ca S 222, 15 QB 827, 19 L J M C 223, 14 JuR956; Rex v Yorkshire, 5 BurR2594, 2 W B L 685, Lofft 238, 2 East 342; Rex v Glamorgan, 2 East 342, note; Rex v Kent, 2 M S 513; Yorkshire v Rex (in error), 2 Do W I 5 Taunt 284, 7 East 588, 3 Smith 437 Special Ple A In Yorkshire v Rex (in error), 2 Do W i, 5 Taunt 284, 7 East 588, 3 Smith, 437, it was held that, by the common law, declared by 22 He N VII I, C 5, and the subsequent bridge acts of England, the county chargeable with the repair of a bridge could only exonerate itself by plead- ing specially that some other was bound, by prescription or tenure, to repair the sa Me 5 People v Adsit, 2 Hill ( N Y) 619; Dunlap v Knapp, 14 Ohio St 64 6 State v Canterbury, 28 N H 195; Saukville v State, 69 Wi S 178 7 Co M v Newburyport Bridge, 9 Pic K (Mas S) 142; New York, etc, RCo v State, 50 N J L 303 8 Rex v Sutton, 5 N M 353, 3 A d E L 597, i H W 428 Private Bridg e An individual who builds a private bridge over a private Parties Obstructing Navigatio N An indictment will also lie for ob- structing navigation by a bridg e 1 Parties Committing Statutory Offense S Individuals may be indicted for the violation of statutory offenses relative to bridges, such as the exaction of illegal tolls, 3 or the wilful disobedience of the lawful orders of a drawbridge superintendent. 3 2 Form and Requisite S Such indictments should be found at the instance of the public authoritie S 4 They should sufficiently describe the defendant, 5 and contain a specific description of the offense against the law with which he is charged 6 and the way for his own benefit, is not indict- able for suffering it to be out of re- paiRState v Seawell, 3 Hawks ( N Car) 193 1 South Carolina RCo v Moore, 28 Ga 398; State v Portland, etc, RCo, 57 Me 402; State v Narrows Island Club, 100 N Car 477; Dugan v Bridge Co, 27 Pa St 303, 67 A M De C 464 United State S In the United States " an indictment against the bridge as a nuisance is not maintainable, no such proceeding having been author- ized by congres S The appropriate remedy is by an information at the suit of the attorney-general in equit Y" U S v Pittsburgh, etc, RCo, 26 Fed Rep 113; Pennsylvania v Wheeling Bridge Co, 13 How (U S) 518 In Pennsylvania, it seems, the pro- ceeding may be by indictment or by a bill in equity, to be prosecuted in either case at the instance of the public authoritie S Dugan v Bridge Co, 27 Pa St 303 2 Lewis v State, 41 Ala 414 3 Co M -v Chase, 127 Mas S 7 4 South Carolina RCo v Moore, 28 Ga 399; Dugan v Bridge Co, 27 Pa St 303, 67 A M De C 464 It is "well settled that private citi- zens have no right of action, either in law or equity, for the suppression of a public nuisance, unless they aver and prove some special damage to themselve S" Flanagan v Philadel- phia, 8 Phi La (Pa) No 5 Tow N In Wisconsin a description in a charge against a town need not allege "that defendant is a duly or- ganized town, which is bound by law to keep the bridge in repai R" Sauk- ville v State, 69 Wi S 178 6 Co M v Newburyport Bridge, 9 Pic K (Mas S) 142 Disobeying Superintendent. In Co M v Chase, 127 Mas S 7, an indict- ment under Mas S Stat1874, C 372 alleged that the defendant "made application to the superintendent of a drawbridge to pass the draw with his tug-boat ; that at the same time a schooner made appli- cation to the superintendent to pass the draw ; that the superintendent decided that the schooner had the right to pass the draw first, and before the tug-boat, and communi- cated said decision to the defendant; and that the defendant, knowing that the superintendent had full authority to make said decision, and that he had made it, wilfully refused to be gov- erned by it and attempted to pass the tug-boat through the draw first, and wilfully refused to withdraw his tug- boat to the rear and astern of the schooner, and wilfully threatened the superintendent to interfere with and to jam said schooner and to block up and impede said dra W" Held, a good indictment, sufficiently alleging that the defendant disobeyed the order of the superintendent, and set forth an offense under the statute name d It was not necessary to allege by whom the superintendent in question was appointe d Failure to Light.

Autor of the post: Undefined

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