silence would have all the legal characteris-jection of evidence. Commonwealth v. Antics of actual misrepresentations. French v. thes, 71 Mass. (5 Gray) 185, 253. Vining, 102 Mass. 132, 135, 3 Am. Rep. 440.

Where the record shows that the tax board met to levy taxes, and "decide" what should be the rate of taxation for various purposes, such act was a levy of the required tax. Tallman v. Cooke, 43 Iowa, 330, 331.

Within Rev. St. 1889, § 4707, providing that, in every case of a pending contesting election, the person holding the certificate of until the contest shall be decided, the word election may perform the duty of the office "decided" will be held to mean the entry of a final judgment against him in the trial court,

so that his right to the office terminates then, and does not refer to a decision on appeal. State ex rel. Craig v. Woodson, 31 S. W. 105, 107, 128 Mo. 497.

The phrase, "If they [the court] decide the public good requires the proposed railroad, the Secretary of State shall issue to the corporation a certificate," etc., as used in Pub. St. c. 156, does not mean, “If they find as a fact," etc., nor does it mean, "If the referees find as a fact," there must be a judicial decision-a judgment or decree-conclusively establishing the public need of the proposed railroad. Facts are not established by the findings of referees, judges acting as triers of fact, or by the verdict of a jury, but by a judgment on the report, finding, or verdict. Clough v. Moore, 63 N. H. 111, 113.

The court, in each case alike, must decide1. e., adjudge whether the facts are lawfully and properly found, and all other questions raised by the petition or other form of proceeding. "If they render judgment" may be a more technical, as well as more cumbersome, mode of expression, but does not so differ in meaning from "if they decide." By Webster "to decide" is defined, "To render judgment." Internat. Dict. A decision is "a judgment of a court." Rap. & L. Law Dict. In re Milford & M. R. R., 36 Atl. 545, 548, 68 N. H. 570.

Under a statute providing that no judge shall decide or take part in the decision of any question which shall have been argued when he was not present as a judge, the fact that a judge was present as one of the judges of the court, but did not hear the argument, while the other two judges, who did hear the argument, made the decision, did not make the judgment invalid on the ground that the third judge assisted to decide the case. Corning v. Slosson, 16 N. Y. 294, 296.

As used in St. 1855, c. 152, declaring it to be the duty of the jury, after having received the instructions of the court, to decide, at their discretion, by general verdict, both the law and the facts involved in the issue, or to find a special verdict, at their election, to "decide" includes the power and the right to deliberate, to weigh the reasons for and against, to see which preponderates, and to be gov-posed highway, is not in compliance with erned by that preponderance. The word is used in the same sense as it is employed in that part of the statute making it the duty of the court to decide on the admission and re

A notice by town surveyors that they will meet on a certain day, at a place named, to make an examination and survey of a pro

Rev. St. c. 16, § 53, requiring them to give notice of a time and place at which they will meet and decide on such application. Austin v. Allen, 6 Wis. 134, 141.

Of county commissioners.

"Decision," as used in Pol. Code, c. 20. §

46, providing that from all decisions of the board of county commissioners on matters properly before them there shall be allowed an appeal to the District Court by any person aggrieved, means the determination of the board on matters of a quasi judicial character, and not those of an executive, administrative, or legislative character, and includes the decisions of the board sitting as a board of

See "Final Decision"; "Judicial Decl- equalization, since they are quasi judicial. sion."

O'Boyle v. Shannon, 80 Ind. 159, 161 (citing Hanna v. Putnam County Com'rs, 29 Ind. 170).

Of pension board.

papers transmitted to the Supreme Court on the appeal, together with the judgment or decision of the Supreme Court thereon, within 30 days after the same shall have been made, etc. Held, that the term "decision," as used in such act, included an order dismissing the appeal, and, after the entry of such order, it was the duty of the clerk to remit the pa

As final decision.

Code Civ. Proc. § 279, defining an excep tion as being an objection taken on the trial to a decision on a matter of law at any time from the calling of the action for trial to the rendition of the verdict or decision, means final decision. Kleinschmidt v. McAndrews, 5 Pac. 281, 286, 4 Mont. 8.

Within the meaning of the statute prohibiting the bribery of a United States officer with intent to influence his decision or action on any question, matter, or proceed-pers to the court within 30 days after the or ing, the certificate which a pension board is der was entered. Estey v. Sheckler, 36 Wis. required to make out is, in effect, both a de- 434, 436. cision of the board and an action by the board and the members thereof upon the question or matter submitted to them for their official action and decision. It is true that the board of surgeons cannot decide the question of the granting or increasing of a pension, nor do they finally decide the rating of the applicant; but they are required to thoroughly examine the claimant, and to give a certificate containing a full description of the physical condition of the claimant, and of all structural changes. This requires of the board a proper consideration of the symptoms or evidences of disease or disability, and the result thereof is a decision of the board upon the question of the claimant's physical condition. United States v. Van Leuven (U. S.) 62 Fed. 62, 66.

DECISION (Of Court).

The word "decision," as used in Const. 1894, art. 6, § 9, providing that "no unanimous decision of the Appellate Division that there is evidence sustaining or tending to sustain the finding of fact or a verdict not

directed by the court shall be reviewed by the Court of Appeals," applies to special pro

ceedings as well as to actions. It is not confined to judgments or orders, but covers both. People v. Barker, 46 N. E. 875, 880, 152 N.

Y. 417.

Within the provisions of St. 1879, § 408, providing that an exception to a decision or a verdict on the ground that it is not supported by the evidence cannot be reviewed on appeal, unless, etc., the verdict or decision referred to relates exclusively to findings alleged to be erroneous for want of sufficient support in the evidence. Kleinschmidt v. McAndrews, 6 Sup. Ct. 761, 763, 117 U. S. 282, 29 L. Ed. 905.

Dismissal of action.

Gen. St. 1878, c. 66, § 253, providing that a verdict, report, or decision may be vacated and a new trial granted on the ground that the verdict, report, or decision is not justified by the evidence, should be construed to include the dismissal of an action for insufficiency of evidence. Volmer v. Satgerman, 25 Minn. 234, 245.

Dismissal of appeal.

Laws 1860, c. 264, § 7, provides that the clerk of the Supreme Court shall remit to the court from which an appeal was taken the

The word "decision" has no fixed legal meaning. It may be a final judgment, or a mere determination or opinion, or even a report of an opinion; but as used in Code, § 227, declaring that the decision of a referee shall stand as the decision of the court, the word does not mean a mere interlocutory decision in the progress of a cause as to the admission or rejection of evidence, etc., but refers to that part of the decision of the referee which states his conclusions of law. Deming v. Post (N. Y.) 1 Code Rep. City Ct. R. 121.

contained the conditions required by Gen. St. A bond on appeal to the Supreme Court C. 86, § 10, and, in addition, obligated the shall be finally recovered in such municipal sureties "to pay the amount, if any, which court against defendant after the decision of said Supreme Court." The appeal was dismissed, on motion of the respondent, for failure of appellant to serve his paper book and points and authorities as required by rules 7 and 13 of the Supreme Court. Held, that the term "decision," as used in such extra condition, meant a final decision on the merits, and thereby, by reason of such extra condition, the plaintiff was entitled to recover from the sureties on the bond the amount of the judgment subsequently entered in the municipal court, unappealed from. Kimball Printing Co. v. Southern Land Improvement Co., 58 N. W. 868, 869, 57 Minn. 37.

As finding of facts and conclusions of law.

Code Civ. Proc. 1033, requires the party in whose favor judgment is rendered to file and serve a memorandum of his costs and disbursements within five days after notice of the decision of the court, when the case is tried without a jury. Held, that the word "decision" means the findings of the facts and conclusions of law signed by the court and filed with the clerk as a basis of the judgment entered. Porter v. Hopkins, 63 Cal. 53, 55. “Decision," as used in Code Civ.

Proc. 1033, providing that the party in|of “insufficiency of evidence to justify the whose favor judgment is rendered, and who verdict or other decision," a notice of intenclaims his costs, must deliver to the clerk tion to move for a new trial on the ground and serve on the adverse party, within five that the evidence was insufficient "to justify days after the verdict or notice of the deci- the finding and judgment," is sufficient, for sion of the court or referee, a memorandum the word "anding," as used in the notice, is of the items of his costs and necessary dis-equivalent to the word "decision," as used bursements in the action or proceeding, in the statute, a new trial being the re-exammeans the finding of facts and conclusions of ination of an issue of fact after trial and delaw signed by the court and filed with the cision. Cobban v. Hecklen, 70 Pac. 805, 809, clerk as the basis of the judgment. Mullally 27 Mont. 245. v. Irish-American Ben. Soc., 11 Pac. 215, 216, 69 Cal. 559.

Findings distinguished.

The word "decision," as used in a state- "Decision," as used in Prac. Act, 195 ment of the grounds of a motion for a new (Comp. Laws, 1258), requiring the party trial that the evidence was insufficient to moving for a new trial to give notice of his justify the "decision," includes not only the intention within 10 days after receiving writconclusions of law, but the facts found. Hi-ten notice of the rendering of the decision of bernia Sav. & Loan Soc. v. Moore, 8 Pac. 824, 825, 68 Cal. 156.

As finding of facts by the court.

The word "decision," as used in statutes providing that an application for a new trial

must be made at the term the verdict or decision is rendered, is used in the sense of "finding on the facts," where the cause is tried by the court. Wilson v. Vance, 55 Ind. 394, 396; Rodefer v. Fletcher, 89 Ind. 563, 564; Evansville & R. R. Co. v. Maddux, 33 N. E. 845, 346, 134 Ind. 571; Allen v. Adams, 50 N. E. 387, 388, 150 Ind. 409; Clement, Bane & Co. v. Hartzell, 56 Pac. 504, 505, 60 Kan. 317; Corbett v. Twenty-Third St. Ry. Co., 21 N. E. 1033, 1034, 114 N. Y. 579. Such is likewise its meaning as used in statutes making it a cause for new trial that the verdict or decision is not sustained by sufficient evidence or is contrary to law. Hubbs v. State, 50 N. E. 402, 20 Ind. App. 181; Gates v. Baltimore & O. S. W. Ry. Co., 56 N. E. 722, 724, 154 Ind. 338; Weaver v. Apple, 46 N. E. 642, 643, 147 Ind. 304.

The word "decision," when used in connection with a trial or other inquiry or a judgment, means the decision of the court upon a hearing, or the trial of an issue before the court without a jury. Code Civ. Proc. N. Y. 1899, § 3343, subd. 5.

the judge, is the announcement by the court of its judgment, and is distinct from the findings. The decision may be rendered after or before the filing of findings, or, as is frequently the case, no findings may be made. Elder v. Frevert, 3 Pac. 237, 238, 18 Nev. 278.

Judgment synonymous.

The "decision" of a court is its judgment. Adams v. Yazoo & M. V. R. Co., 24 South. 317, 318, 77 Miss. 194, 60 L. R. A. 33.

A "decision" is a judgment of a court. Rap. & L. Law Dict. Webster defines "to decide" as "to render judgment." Internat. Dict. There is no substantial difference between the phrase "a petition for a decision of the question," as used in Pub. St. c. 156, § 8, providing that a provisional corporation may file in the office of the clerk of the Supreme Court a petition to the court for a decision of the question whether the public good requires the proposed railroad, and the phrase "a petition to determine the question,"

as used in Laws 1883, § 7. Each asks for an adjudication. In re Milford & M. R. R., 36 Atl. 545, 548, 68 N. H. 570.

Within Code Civ. Proc. § 4403, providing that an application for a new trial must be made at the term at which the verdict, report, or decision is rendered, the word "decision" has the same meaning as the word "judgment." A decision of the court is its judgment. Board of Education of City of Emporia v. State, 52 Pac. 466, 467, 7 Kan. App. 620.

Within the meaning of Code Civ. Proc. § 763, providing that if either party to an action die after a verdict or decision, or before final judgment is entered, the court must enter final judgment in the name of the original The terms "judgment," "decree," "deciparties, the word "decision" refers to a decision," and "order" are more or less cognate sion made by the court upon a trial of issues as applied in legal proceedings, and closely without a jury. Corbett v. Twenty-Third allied in meaning, especially under our sysSt. Ry. Co., 114 N. Y. 579, 21 N. E. 1033. tem of practice, where we do not distinguish Thus an affirmance by a general term upon between forms of actions at law or suits in the hearing and trial of the issues is a deci- chancery. We generally, almost invariably, sion. Peetsch v. Quinn, 26 N. Y. Supp. 728, both bench and bar, express or refer to the 729, 6 Misc. Rep. 50. judicial determination of the controversy by the word "judgment." The term "order" is not infrequently used in a more restricted sense than the word "judgment." It may be defined to be a command, direction, or deci

Findings synonymous.

Under Code Civ. Proc. § 1171, providing that a new trial may be had on the ground 2 WDS. & P.-57

sion of the court or judge on some inter- cisions are founded, and the perspicuity and mediate point or issue in the case, but with- precision with which those reasons are exout finally disposing of the main issue or is- pressed. The weight and authority of judisues in the cause. Then it is merely inter- cial decisions depend also on the character locutory, but the term is sometimes given a and temper of the times in which they are more extensive signification, even in legal pronounced. An adjudication at a moment controversies, and is occasionally used as a when turbulent passions or revolutionary synonym of "judgment" or "decree." A frenzies prevail deserves much less respect "judgment" is a final determination of a than if it were made at a season propitious cause given by any competent tribunal. to impartial inquiry and calm deliberation. Judgments, like decrees, are either final or The peculiar organization and practice of interlocutory, and in the latter sense also in- this court renders it difficult to establish a clude orders. A judgment is the decision or system of precedents. In the supreme courts sentence of the law pronounced by a court, the judges confer together, compare opinions, or other competent tribunal, upon the matter weigh each other's reasons, and elicit light contained in the record. According to the from each other. If they agree, one is usucommon-law rule, by a "final judgment" is ally delegated by the others not only to proto be understood, not a final determination of nounce judgment, but to assign reasons for the rights of the parties, but merely of the the whole bench. In the court of errors the particular suit or controversy depending be- members never hold any previous consultatween them before the court. A "decision" tion together. They vote for the most part has been defined to be a judgment given by a as in a legislative capacity. Few assign any competent tribunal. This word also includes reasons, and fewer still give written opinions in legal parlance both orders and judgments, which may be reported. For these reasons as well as the report or account of the opin- it would be extravagant and dangerous to ions or judicial determinations of courts. A consider the dieta and opinions of a single decree is the judgment or sentence of a member as settling definitely the law of the court of equity. It is either interlocutory or land on all the points on which he chooses final. It embraces, therefore, orders as well to give opinions or to assign reasons. Yates as decrees in equity or admiralty. Hence a v. Lansing (N. Y.) 9 Johns. 395, 415, 6 Am. bond conditioned merely for the perform- Dec. 290. See, also, United States Savings ance of the decree or judgment is sufficient, & Loan Co. v. Harris (U. S.) 113 Fed. 27. under a statute providing that the appeal 35; Swift v. Tyson, 41 U. S. (16 Pet.) 1, 18, bond shall be conditioned that the appellant 10 L. Ed. 865; Phipps v. Harding (U. S.) perform the decision, order, decree, or judg- 70 Fed. 468, 473, 17 C. C. A. 203, 30 L. R. ment of the district court, the word "judg- A. 513; Falconer v. Simmons, 41 S. E. 193, ment" and the word "decree" both being 194, 51 W. Va. 172. broad enough to include decisions and orders. Halbert v. Alford (Tex.) 16 S. W. 814, 815.

In the abstract sense, there is a shade of difference between the import of the word "decision" and the word "judgment," as expressed by Abbott's Law Dict. 351. The decision is the resolution of the principles which determine the controversy; the judgment is the formal paper applying them to the rights of the parties. But the same author gives the general definition of "decision" as the result of the deliberations of a tribunal; the "judgment" is the determination of the question or case. The term "judgment" may properly be used in a motion for new trial, though the statute on which the motion is based provides that a new trial may be granted when the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. Buckeye Pipe Line Co. v. Fee, 57 N. E. 446, 447, 62 Ohio St. 543, 78 Am. St. Rep. 743.

Law distinguished.

The decisions of courts are not the law. They are only evidences of the law, and this evidence is stronger or weaker according to the number and uniformity of adjudications, the unanimity or dissension of the judges, the solidity of the reasons on which the de

The term "law" includes decisions of the courts. Miller v. Dunn, 14 Pac. 27, 29, 72 Cal. 462, 1 Am. St. Rep. 67; Nelson v. Kerr (N. Y.) 2 Thomp. & C. 299, 301.

The thirty-fourth section of the judiciary act of 1789, c. 20, provides that "the laws of the several states, except where the Constitution and treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply," and it was claimed that this furnished a rule obligatory on the court to follow the decisions of the state tribunals in all cases to which they apply. In order to maintain the argument, it is essential, therefore, to hold that the word "laws" in this section includes within the scope of its meaning decisions of the local tribunals. In the ordinary use of language, it will hardly be contended that

the decisions of courts constitute "laws." They are, at most, only evidence of what the laws are, and are not of themselves laws. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases which have hitherto come before us