Reports of cases determined in the Supreme Court of the State of California (Volume 24) - Tapa blanda

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1865 Excerpt: ... French v. Teseheniaker et ah. meaning of the Legislature besides the one advanced, and the amount of writing and time necessary to carry into practieal effect its provisions would be so to hinder and clog their business as to make the intended benefit to these companies burdensome and insupportable. It is perhaps not essential to discuss in this form of action, whether it is competent or not for contractors or creditors to waive a constitutional right; yet as we desire to dispose fully of all the issues raised, we ask the indulgence of the Court for a brief space. Admitting the provisions of the Constitution to be in full force without legislation, then it is in force as to the creditors of the company, and they may at their own volition waive that right; in fact, the question of waiving a constitutional right has been affirmatively determined repeatedly in America. In the case of Lee v. Tillotson, 24 Wend. 338, as to the right of trial by jury, Judge Cowen held that "the objection called for the less countenance in this case, inasmuch as the parties mutually consented to the reference by writing. This of itself is a waiver of the objection, even if the Constitution stood in the way. A party may waive a constitutional as well as a statute provision made for his own benefit. The contrary argument would deprive a criminal of the power to plead guilty." Again: as to the waiver of the right of trial by jury, in People v. Murray, 5 Hill, 472, Mr. Chief Justice Nelson held that " the defendants took the grant to build the dam, with the condition attached to it, and they are not now at liberty to make the objection, though under other circumstances it might have been effected. It was competent for them to waive the right of a trial according to the common law, eve...