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Index to Twelfth Volume.

be 'The State of Florida,' and all prosecutions shall be conducted in the name and by the authority of the same." It is sufficient, if it appears from the record that it is conducted by the authority of the State of Florida as distinct from the authority of any other power, 190.

7. The Constitution, until changed in some recognized legal mode, is as well a limit upon the power of the people as upon the departments of the government. The simple election by the people of a person to an office who has not the constitutional requisites for eligibility does not destroy the effect of the constitutional requirements. The fact that the party is eligible at the time the case is tried cannot modify the principle. He must have been so when elected. Nor is it necessary that there shall be a party contesting the office before this court can act. It acts upon the motion of the Attorney-General, 190.

8. The terms "registered voter," in section 22, article XVI., of the Con stitution of the State, refer to the registration authorized by the 6th section, article XIV., of the Constituion. It did become operative as a requirement for eligibity to office before the Legislature had passed a registration law, and the constitutional requirement could be complied with.

9. The office of Lieutenant-Governor of this State being an office created by the Convention which framed the Constitution of this State, it is not controlled in such manner by the legislation of Congress authorizing the holding of such Convention, as makes the constitutional requisites for eligibity inoperative. Officers elected at the first election to fill the offices provided by the Constitution must be eligible according to its requirements. State vs. Gleason, 190.

10. A prosecution for crime must be conducted in the name and by the authority of the State of Florida, 272.

11. A judgment authorized by a statute which creates the debt upon which it is based, and which is entered in favor of a person whose suit or demand the defendant has not been summoned to answer, is void. Ex Parte Wm. Nightingale, 272.

12. Ordinance No. VIII of the Convention of 1865 applies to contracts made during the war of 1861-5, and by the terms of the ordinance, courts are "authorized to admit testimony as to the value of the property or consideration contemplated by the parties ;" held: That the testimony must be confined to the value of the consideration at the time the contract was made. Randall vs. Pettes, 517.

13. Members of what is known as the "Secession Convention," were neither executive nor judicial officers of this State, within the meaning of these terms as used in Section 1, Article XVI., of the Constitution of this State. A person who was a member of such Convention, and signed the ordinance of secession, and who afterwards gave aid and comfort to the enemies of the United States, is not prohibited from holding any office,

Index to Twelfth Volume.

executive, legislative, or judicial, in this State. tion, 651.

Executive Communica

14. Sec. 8, Art. IV., of the Constitution provides that "a majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the presence of absent members, in such manner and under such penalties as each House may prescribe."

The term "House" in this clause of the Constitution, when used in reference to the matter of quorum, means the entire number of which the Assembly or Senate may be composed. A quorum for the purpose of general legislation is not less than a majority of the whole number of which the "House" may be composed. Vacancies from death, resignation, or failure to elect, cannot be deducted in ascertaining a quorum, 653.

15. To constitute an impeachment so as to be effective under the Constitution to suspend the officer, the articles of impeachment must be pre sented to the Senate, and a constitutional quorum of the Senate must re risdiction to decide. Executive Communication, 686.

16. The Senate of the United States is the exclusive judge of the election return and qualifications of its own members. Whether an election of a Senator by a State Legislature is in conformity with such regulations as are prescribed by Congress, or whether, for want of strict conformity therewith, it is illegal and void, are questions which this court has no jurisdiction to decide. Executive Communcation, 686.

17. The provison of the Constitution, that the salaries of officers shall be payable quarterly, does not refer to the "pay" of members of the Legislature; their "pay" may be drawn at such time as the Legislature may by law determine.) Executive Communication, 689.

CONTINUANCE

1. The rules of law in granting continuances in civil and criminal cases are substantially the same, except so far as they are modified by the dif ference in proceeding. In criminal cases, however, the grounds for the motion should be scanned more closely than in civil causes, on account of superior temptation to delay, 562.

2. In a motion of this character much must be left to the tribunal before which the parties are. Circumstances occurring in its presence often indicate whether such motions are in good faith, and a writ of error will not be sustained on account of the refusal of the court to grant a continuance unless it is a plain and palpable instance of the arbitrary and oppressive exercise of the discretion necessarily vested by law, 562.

3. In application for a continuance it must be shown by affidavit that the witness has been duly served with a subpoena, or a satisfactory reason assigned for the omission, and when it is not served, and the time at which the subpoena is issued is not disclosed, nor the residence of the witness stated, so that this court can determine the propriety of the order of the

Index to Twelfth Volume.

court below in these respects, this court will not interfere. Gladden vs.
State of Florida, 562.

CONTRACTS-

1. Ordinance No. VIII of the Convention of 1865 applies to contracts
made during the war of 1861-5, and by the terms of the ordinance, courts
are "authorized to admit testimony as to the value of the property or
consideration contemplated by the parties;" held: that the testimony
must be confined to the value of the consideration at the time the con-
tract was made. Randall vs. Pettes, 517.

(See title Appropriation of Payments, 1, 2.)

COUNTY COURT-See title Attorney, 1, 2, 3, 4, 5, 6, 7, 8.

COURTS-

1. Both by the rule of the common law and by the statute of Florida, a
Judge is precluded from sitting on the trial of any cause in which he may
have a pecuniary interest. Whether under the second section of the Act
of 1862, the defendant may waive the objection. Query? Ochus vs.
Hoyt, 138.

2. The fifth section of the 6th article of the Constitution of this State
provides that "the Supreme Court shall have appellate jurisdiction in all
cases in equity, also in all cases of law in which is involved the title to,
or right of possession of real estate, or the legality of any tax, impost,
assessment, toll, or municipal fine, or in which the demand or the value
of the property in controversy exceeds three hundred dollars; also in all
other causes not included in the general subdivisions of law and equity;
also in all questions of law alone; in all criminal cases in which the of
fense charged amounts to felony. The court shall have power to issue
writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus
and also all writs necessary or proper to the complete exercise of its ap-
pellate jurisdiction." Held, that the jurisdiction of this court is two-fold
-appellate jurisdiction proper, with power to issue all writs necessary
to its full exercise, and original jurisdiction to issue the writs specified
where they are the appropriate remedies, 190.

3. A grant of power to issue a writ of quo warranto embraces and in-
cludes the proceeding by information in the nature of a quo warranto, this
proceeding being civil in its essential incidents, and having in view the
same object, 190.

4. A constitutional grant of power to issue a writ of quo warranto, can
be exercised by this court without legislative action prescribing the mode
and manner of its exercise, and the court will discharge its duty by a
course conformable to the principles of the common law, in the absence
of legislation upon the subject. State of Florida vs. Gleason, 190.

5. Courts by common law had no power to admit an attorney or coun-
sellor to practice, 278.

6. Courts by common law had the power to disbarr attorneys after ad-
mission when guilty of such conduct as would justify it, 278.

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COURTS (Continued.)

7. The county courts of this State have the power to disbar an attorney and to deny him the rights of an officer of that court, but their judgment cannot extend beyond a denial of the privilege of an attorney in that court. It does not directly affect his right in other courts, 278.

8. While it is essential that the authority of the courts should remain unimpaired in the exercise of this great and peculiar power, it is not the less so that the rights of the officer should be protected against a wrongful exercise of it, and this court will interpose when the inferior court has decided erroneously on the testimony, and a plain case of wrong and injustice is brought to its attention. State vs. Wm. Kirke, 278.

9. A judgment is a general lien upon real estate, and a court of law cannot control that general lien by directing execution of the judgment against specific portions of the property of the defendant in execution to the exclusion of other portions equally subject to the general lien, on account of equities claimed to exist in favor of a person not a party to the judgment or execution. Clonts vs. Ritch, 633.

(See Constitutional Law, Equity, Attorneys, Jurisdiction, Process.)

COVENANT

The warranty contained in a bill of sale given for a negro, that he was to be a "slave for life," is not broken by the subsequent act of the Government, which abolished in the Southern States the institution of negro slavery. Walker vs. Gatlin, 1.

CRIMINAL LAW AND PRACTICE

1. When the question of malice has arisen in cases of homicide, the matter for consideration is, whether the act was done with or without just cause or excuse. A wrongful act done intentionally, without just cause or excuse, is said to be done maliciously, 117.

2. The implication of malice arises in every instance of homicide and in every charge of murder, the fact of killing being first proved, the law will imply that it was done with malice, 117.

3. To rebut the implication of malice, all the circumstances of accident, necessity or infirmity, are to be satisfactorily proved by the prisoner, un less they arise out of the evidence produced aginst him, 117.

4. If the evidence proves a previous grudge or bad blood, or menaces or expressions of vindictive feeling, or a former attempt on the part of the accused to do the deceased some great bodily harm, there can be but little hesitancy in declaring that the killing was done upon "express malice," unless it can be shown, that at the time of the killing, the accused was smarting under a recent and great provocation, calculated to arouse sudden and violent anger, 117.

5. The law implies from any deliberate and cruel act against another, however sudden; and if the natural consequence of the act would be the death of another, a court and jury may fairly infer that it was done with intent to kill such other person, and is, therefore, murder.

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An act is said to be deliberate within the meaning of the law when it is voluntarily done, 117.

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6. The natural and necessary inference is, that a cruel act, wilfully done, without apparent excuse, is done "malo animo," in pursuance of a wrongful and injurious purpose previously, though perhaps suddenly formed, and if death ensues from such act, it is "a homicide with malice aforethought," which is the true definition of murder.

7. When from the evidence the jury are satisfied of the previous existence of malice in the slayer, its continuance down to the perpetration of the homicide must be presumed, unless there is evidence to rebut it and show the wicked purpose had been abandoned, 117.

8. When an antecedent grudge has been proved, and there is no satisfactory evidence to show that the wicked purpose had been abandoned, it must be clearly shown to the court and jury that the provocation was great, in order to warrant them in finding that the killing was on the recent provocation, and not on the old grudge, 117.

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Whenever a dengerous weapon is used against an unarmed adversary, upon reasonable provocation, the killing will be murder and not manslaughter, for the law implies from the use of a dangerous weapon that the intent was to kill, and not to fight on equal footing, 117.

10. There is no means by which an Appellate Court can ascertain if there was a rational doubt in the minds of the jury as to the guilt of the accused. When a case of homicide is brought to this court, on appeal, the grade of the offense must be determined by the evidence in the record. Holland vs. the State, 117.

11. The carrying arms on the person partially concealed is construed to be a violation of law prohibiting the carrying of arms secretly. The statute provides that arms shall be carried openly outside of all the clothes. Sutton vs. the State, 135.

12. Under the statute of this State regulating the subject at the time of this trial, there must have been fifteen grand jurors on the panel as originally drawn, 562.

13. After organization of the grand jury, in accordance with the terms of the statute, their proceedings are governed by common law rules, and the improper discharge of one member of the grand jury does not vitiate its proceedings if a sufficient number to find an indictment remain, 562.

14. Every indictment must be found by at least twelve, but it is not necessary that all above that number should be present consenting, 562. 15. The rules of law in granting continuances in civil and criminal cases are substantially the same, except so far as they are modified by the difference in proceeding. In crimnal cases, however, the grounds for the motion should be scanned more closely than in civil cases, on account of superior temptation to delay, 562.

16. In a motion of this character much must be left to the tribunal before which the parties are. Circumstances occurring in its presence often

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