Page images
PDF
EPUB

Index to Twelfth Volume.

without regard to length of time of such domicil, if sufficient to constitute the party a juror, and neither the want of length of residence or qualification as a householder, is such an objection to a juror as will justify the setting aside a verdict. State vs. Madoil, 152.

15.

Relationship, by affinity to one of the parties within the ninth degree, is, by common law, a ground of challenge of a juror. But where a juror is called who is "first cousin to plaintiff's wife's mother," and the defendant being present makes no objection, and does not afterwards show that he was unaware of the relationship, (though his counsel does make an affidavit to that fact,) and it does not appear that the persons through whom such relationship existed are still living, such cause is not sufficient to set aside a verdict, especially when there is no evidence that the juror is in fact influenced from that cause. Morrison vs. McKinnon, 552. 16. Under the statutes 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.

17. 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.

18. Every indictment must be found by at least twelve, but it is not necessary that all above that number should be present consenting, 562.

What facts justify or excuse a homicide is a question of law. It is the province of the court to state what the rules of law are as to facts, and of the jury to determine whether such facts exist in the particular case. Gladden vs. The State, 562.

LANDLORD AND TENANT

1. An agreement in writing properly executed, and stipulating that the amount due for rent of land should be paid before the crops are removed, held to be a "security for the payment of money," and under the provisions of the statute to operate as a mortgage, 166.

2. But being a mortgage on personal property, no lien is thereby created, unless it be duly recorded in compliance with the requisition of the statute, 166.

3. The act of 1865-6, entitled "An Act for the relief of Landlords," was designed only to enlarge and extend the "remedy" for the collection of rent, and does not interfere with any pre-existing "rights" of the parties. Ward vs. Standley, 166.

LEGISLATURE

1. The Legislature of this State has no authority to hear and determine a case involving the right and title to the office of Lieutenant-Governor of this State. This is a power distinct from the right of the Senate to try an officer for crime upon articles of impeachment preferred by the Assembly. It is judicial in its character, and a matter solely within judicial cogni

Index to Twelfth Volume.

zance. Nor is it a political question beyond the power of the courts to determine. State vs. Gleason, 190.

2. 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 purposes 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. Executive Communication, 653.

3. The Senate of the United States is the exclusive judge of the election, return and qualification 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 Communication, 686.

4. The provision 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 times as the Legislature may, by law, determine. Executive Communication, 689.

(See Impeachment, 1.)

LIEN

1. The existence of a "lien" on behalf of the complainant, will not entitle him to an injunction to restrain the defendant in the free use and enjoyment of his property, 26.

2. In cases of lien, to entitle a complainant to the aid of an injunction, he must show that the free enjoyment of the property by defendant will, in all probability, tend to its injury or destruction to an extent that will impair its value as a security for his demand, and peril its ultimate payment. P. & G. R. R. vs. Spratt & Callahan, 26.

(See Landlord and Tenant, 1, 2, 3.)

LIMITATIONS

1. A writ of error is not commenced or brought and prosecuted with effect within the meaning of the statutes of this State until it is filed in the court which rendered the judgment. The day on which it is issued or bears test is immaterial. Crippen vs. Livingston, 638.

LUNATIC-See Equity, 16, 17.

MALICE See Criminal Law.

MANDAMUS

1. Where in a proceeding to disbar an attorney, an inferior court has

Index to Twelfth Volume.

decided erroneously on the testimony, and a plain case of wrong and in-
justice is presented, the appropriate remedy for restoration is by man-
damus rather than writ of error. The State of Florida vs. Wm. Kirke, 278.

MASTER'S REPORT-

1. When a bill is filed, and a cause is at issue, and the nature of the
case requires a statement of account by a master, and the master in his
report simply recapitulates immaterial portions of the testimony, with-
out stating an account, no decree can be based upon such report, 310.

2. Where the appellate court cannot determine from the report of a
master or from evidence in the case the basis upon which the decree
was made, the decree will be reversed. June vs. Myers, 310.

(See Practice.)

MORTGAGE-See Landlord and Tenant, 1, 2, 3.

NEW TRIAL

1.

Where two juries have concurred in finding a verdict, it ought not to
be set aside as against the weight of evidence; otherwise, when it is
clearly against evidence, 497.

2. Where the evidence is contradictory, making it the duty of the jury
to decide upon the credibility of the witnesses, the court will not set
aside a verdict as against the weight of evidence, 497.

3. Where a jury on a second trial find a verdict against the decision of
the court on a former motion for a new trial upon a point of law, the
court will grant a new trial, 497.

4. If a verdict be found upon testimony which did not tend to prove a ma-
terial fact necessary to entitle a party to recover, or upon a misapplication
of the facts to the charge of the court, a new trial will be ordered, though
the same verdict may have been found by two juries upon the same state
of facts. P. & G. R. R. vs. Nash, 497.

5. Where there is testimony tending to prove the concurrent under-
standing and intention of the parties as to the particular terms of a parol
dis-
agreement, and the jury have passed upon it, the verdict will not be
turbed; particularly where the charge of the court was proper. Morrison
vs. McKinnon, 552.

6. Where the pleadings are regular, and the defendant's attention on
witnesses is
crossing plaintiff's interrogatories for the examination of
called to the character of a draft upon the defendant, which draft is a
proper cause of action in the case under an agreement of the parties,
"not being advised of the particular character of the draft," under such
circumstances, is no such matter of surprise as to authorize a new trial, 640.

7. If from a general review of the case there was evidence to justify the
verdict, and it does not clearly appear that there have been errors in law
or fact which necessarily operated to the prejudice of the defendant, a
new trial will not be granted for surprise. Orthing vs. Gundersheimer, 640.

1. Where a verdict is clearly against evidence, or clearly in disregard of

Index to Twelfth Volume.

preponderating evidence, It will be set aside and a new trial granted. Branch & Clark vs. Wilson, 543.

(See Jury, 5, 6, 7, 10, 11, 12, 13, 14.)

NOTE-See Promissory Note.

NUISANCE

2. All obstructions to the navigation of a bay or harbor, not authorized by the Legislature, are public nuisances, but all structures built upon submerged soil between the line of high tides of a navigable bay and its channel are not ipso facto nuisances; whether they are nuisance is a question of fact to be determined in each case, 348.

the

3. An obstruction to navigation which is a public nuisance, being subject of a proceeding at the instance and in behalf of the State, by which it may be abated, and the person guilty of its erection punished, an individual cannot maintain an action, either at law or in equity to have it abated or to prevent the creation of other like nuisances, unless he sustains damage beyond and in addition to that which falls alike upon the public, and he must seek relief in a court of law or equity, as the nature of his special injuries' and the remedies for them should determine to be appropriate, 348.

4. Where the erection of a structure upon a public road or street, in a city is threatened, the structure being a public nuisance which works special damage to a neighboring proprietor in the enjoyment of his property in the vicinity, as well as to the value of it, a court of equity will grant an injunction to restrain its erection, but if the structure is some distance from the true line of the road or street, and does not interfere with the use to which the road is dedicated, it will not, on this ground, restrain its erection. Alden and wife vs. Pinney, 348.

OFFICE AND OFFICER

1. The Attorney-General is the proper officer to file an information, in the nature of a quo warranto, against a person holding a public office to inquire into his title to the same. It is a power incident to his office. Upon the filing of the information the writ issues upon his demand, as in ordering actions of debt by the State against its debtors, and in a case of this character, the Court cannot inquire into his motives or the motives of a third person alleged to influence his action, 191.

2.

The Legislature has no authority to hear and determine a case involving the right and title to the office of Lieutenant-Governor. This is a power distinct from the power of the Senate to try impeachments, and a matter solely within judicial cognizance. It is not a political question beyond the power of the courts to determine, 191.

3. The right to an office will not be inquired into collaterally; the only method known to the law of trying the legal title to an office is by a dlrect proceeding for that purpose, 192.

4.

An officer de facto is one exercising the duties of an office under color

Index to Twelfth Volume.

of election or appointment, and his acts are as valid and binding upon the public, or upon third persons, as those of an officer de jure, 192.

5. The terms "registered voter," in section 22, article XVI., of the Constitution of this State refer to the registration authorized by the 6th section article XIV., of the Constitution. It did not become operative as a requirement for eligibility to office before the Legislature had passed registration law and the constitutional requirement could be complied with, 192.

a

crea

6. The office of Lieutenant-Governor of this State being an office ted by the Convention which framed the Constitution of the 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 eligibility 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, 191.

7. 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 executive, legislative, or judicial, in this State. Executive Communication, 651.

8. To constitute an impeachment so as to be effective under the Constitution to suspend the officer, the articles of impeachment must be presented to the Senate, and a constitutional quorum of the Senate must receive them. Executive Communication, 653.

PARTNERSHIP

B and C assign

A, B, and C, being partners, agree upon a dissolution; and transfer all their interest in the joint property to A, who assumes payment of the joint debts, and covenants to save B and C harmless. Held:

the

1. That the property ceases by such agreement to be joint property, and that the lien or equity of the retiring partners to have a sale of the property, and an application to the joint debts, is destroyed, 315.

cove

2. That as between C and A a relation analagous to that of principal and surety exists by virtue of A's assumption of the debts and his nant, and that, saving the rights of the joint creditors, C has the standing of a surety in a court of equity, 315.

3. When the liability of a surety has attached in consequence of the default of the principal, the surety who has been sued by the creditor may apply to a court of equity and compel the principal to relieve him from his liability, 315.

4. Where the Chancellor has, upon a bill filed by the surety in such a case, appointed a receiver to take charge of the old stock and such prop

« PreviousContinue »