« السابقةمتابعة »
IV. That it was not essential to set out the date of the bond, nor that it should possess a date, and if the bond had been dated before the enacting of the statute, and the contingencies had happened afterwards, the obligee was entitled to resort to this remedy.
Atwood v. Craig, 3 S. & P. 21. 84. In proceedings under the statute against a constable and his sureties, for failing to return an execution: it is not error to proceed to trial and judgment, without a declaration. Condry & Henly v. Murphy, 4 S. & P.9.
85. In such case, a jury is not essential unless specially requested by the parties: but, if one is empannelled and renders a verdict, it is not error.
Ibid. 86. And in such proceedings before justices, judgment will not be reversed, because motion was made on the former name, without setting out the christian name.
Ibid. 87. To authorize a summary judgment against security on bond for delivery of property taken on execution, and claimed by a third person; such bond must have been returned by sheriff, indorsed forfeited.
Allen v. Hays, 1 S. 10. 88. In summary proceedings, it is sufficient, if the record state that the necessary facts were proved; not necessary to show by what evidence.
Mc Whorter et al. v. Murrs, 1 S. 63. 89. Trial by jury not necessary, on motion against sheriff, when defendant voluntarily submits the question of fact to the court.
Ibid. 90. The statute of 1826, which authorizes the supreme court to render judgment against securities on writ of error bond; does not vest the circuit court with the like power, on writ of error from county court.
Ward et al. v. Alexander, 1 S. 382.
Johnson v. Atwood, 2 S. 225. 91. Notice of motion for judgment by the Planters' and Merchants’ Bank must be given under its corporate seal.
Logwood v. Planters' and Merchants' Bank, Huntsvill, A. R. 25. 92. To sustain a judgment recovered by bank, on motion, the record must show that the certificate of the president, as required by the statute, was produced and that it was under the seal of the corporation. Ibid.
93. Parol proof to show that a note had been discounted by the bank and that the bank had given no consideration for it, admissible without notice to produce the books of the bank.
Gaines et al. v. Tombecbee Bank, A. R. 51. 94. The statute 1819, to raise a revenue for 1820, did not authorize the circuit court to render judgment upon motion against the president of the Tombecbee bank, for failing to pay taxes.
Crawford v. State, A. R. 143. 95. In a summary proceeding against a president, for failing to pay taxes, the name of the bank must be accurately described.
Judson v. State, A. R. 150. 96. Service of notice on cashier, not evidence that he was cashier, on a motion for judgment under the statute.
Planters' & Merchant's Bank, Huntsville, v. J. B. Walker, A. R. 391. 97. On motion against bank for penalty in not paying taxes, they are entitled to a jury if demanded, although they do not plead.
Tombecbee Bank v. State, A. R. 425. 98. When the bank sues a security he cannot plead as payment or set-off a deposit made in bank by his principal. Such deposit is subject only to the check of the principal.
Lyon v. State Bank, 1 S. 442.
99. A notice by bank, of a motion for summary judgment is sufficient without a declaration, if the debt claimed is set forth with reasonable certainty, though it has not the technical precision of a declaration.
Ibid. 100. The like certainty is also sufficient, as to the certificate of the president, as required by the statute, its only object being to prove property in the bank, and not to establish the debt.
Ibid. 101. Where the notice is to three defendants, a notice and judgment may be had against one, and a discontinuance as to the others is not necessary.
Ibid. 102. To charge a bank with notice of the dissolution of a firm, it is not sufficient that one of the firm who received the credit was a director of the bank.
Lucas v. Bank of Darien, 2 S. 280. 103. Sheriff's return, that he had served the process upon the cashier, is not sufficient to support an action, without proof that such person is cashier.
St. John v. Tombecbee Bank, 3 S. 146. 104. The statute 1823, declaring a forfeiture of the charter of the Huntsville Bank to ensue from the failure to pay specie for its notes, did not take from the bank the right to sue in its corporate capacity,
Huntsville Bank v. McGhee, 1 S. & P. 307. 105. In proceeding by notice to charge one who does not appear as acceptor of a bill—the record must show the proof to have been made of the acceptance.
Walker v. Bank State of Alabama, 4 S. & P. 215. 106. As notice is not of the character of a declaration, and is only intended to bring the party into court without any formal averments—it follows, that the plaintiff must fully prove his cause of action, even to sustain a judgment by default.
Ibid. 107. An allegation, that the plaintiffs are "the holders and owners” of the bill, is equivalent to the averment that the bill is the property of the bank.
Ibid. 108. The notice authorized by the ninth section of the charter of the Montgomery Branch to a maker or indorser, need not be under the corporate seal.
Branch Bank Montgomery v. Harrison, 2 P. 540. 109. The summary proceedings authorized against the debtors of said bank, though different from the common law course, is yet remedial in its character, and if substantially pursued will not be defeated by mere technicalities.
Ibid. 110. To sustain a judgment in favor of the bank rendered on motion, the record must show that the certificate of the president was produced, and filing a declaration will not alter the case, so as to render such certificate unnecessary.
Duncan v. Tombecbee Bank, 4 P. 181.
1. That section of statute 1819, which confers jurisdiction on preme court, to hear an original motion against a delinquent tax-collector, is contrary to the constitution of the State, and therefore void.
State v. Flinn, A. R. 8. 2. The supreme court has appellate jurisdiction in chancery. The constitution provides that the "judicial power of the State, shall be vested in one supreme court.”
Lewis, adm. v. Lewis, A. R. 38. 3. The act of 1820, authorizing the circuit court to refer to the supreme court in criminal cases, questions of law "novel and difficult,” does not enlarge its jurisdiction; but provides an additional mode of carrying a cause of such a natnre into that court, after final judgment.
Phleming v. State, A. R. 42. 4. The supreme court has no appellate jurisdiction in criminal cases. The constitution clothes it with appellate jurisdiction under such restrictions and regulations as may be prescribed by the legislature. The legislature has not provided for appeals in such cases.
Humphreys v. State, A. R. 64. 5. When plaintiff has verdict for less than $50, but files an affidavit that more than $50 is due under statute, the judgment will not be arrested or non-suit ordered.
Curtis v. Garey, A. R. 118. 6. The supreme court has not jurisdiction of points, referred as “novel and difficult," until after final judgment, by the inferior court.
State v. Sampson 8. Reece, A, R. 266. 7. Verdict for less than sum that inferior court has jurisdiction of, will not be disturbed unless motion for non-suit had been there made.
Howard v. Ware, A. R. 84. 8. Judgment for less than $50—no motion for non-suit or affidavit filed as authorized by statute, reversed for want of jurisdiction.
Carter y. Dade 1 S. 18. 9. When there is'an adequate remedy at law, equity in general has no jurisdiction.
Standifer f. Standifer v. Mc W hurter, 1 S. 532. 10. A guardian may be removed by county court for improper conduct and mismanagement.
Riptoe v. Hall, 1 S. 166. 11. The county court has no jurisdiction by certiorari on appeal in cases of forcible entry and detainer. Dunham v. Carter f. Carroll 2 S. 496.
12. Chancery has jurisdiction to relieve a sheriff, when judgment has been obtained against him, for failing to return an execution three days beföre court; a sufficient excuse being shewn for such failure, and also for the failure to make defence at law.
Roberts & Battle, v. Henry, 2 S. 42. 13. Jurisdiction of justice of the peace in forcible entry and detainer, is not in violation of the constitution.
Ward v. Lewis, 1 S. 26. 14. The power given to county courts by statute over the estates of deceased persons, does not divest chancery of jurisdiction.
Gayle et al. v. Singleton, 1 S. 566. 15. When over $50 is due on a contract, plaintiff may relinquish all over that sum, and avail himself of jurisdiction of justice of the peace.
King v. Douglass, 2 S. 487.
Bond v. Nichols, 2 P. 186.
16. If demand is under $20 when warrant is issued, but is increased to more than that sum, by interest during the pendency of the appeal, the issue is properly triable by a jury.
McGrew v. Adams f. Elliott, 2 S. 502.. 17. When debt is under $50, but adding interest it exceeds it, the circuit court has jurisdiction.
Hogan v. Odam f. Odam, 3 S. 58. 18. Circuit court has exclusive jurisdiction as to sales of real property, levied on in virtue of an execution granted by justice of the peace.
McDaniel v. Moody, 3 S. 314. 19. The court that first commences the exercise of its powers cannot be obstructed in its legitimate action, by another court of only co-ordinate and equal jurisdiction.
Eaton v. Patterson & Hinchman, 2 S. & P. 9. 20. But the fact that the county court has before it a question as to the indebtedness of a garnishee, will not preclude the creditors from inteposing in chancery against a judgment on such garnishment.
• Ibid. 21. If an inferior court refer a question, purely legal, to a jury, for their determination, it is error.
Shaw v. Wallace, 2 S. f. P. 193. 22. The question whether a plaintiff in instituting in circuit courta suit for a larger sum than $50, and recovering a less sum, designed to waive the latter part of the statute 1807, is one of discretion in the court trying the cause; the affidavit required by that statute is designed for the protection of the plaintiff from an improper exercise of the discretion of the court, and it would seem to be error in the court to non suit a plaintiff in a case commenced for more than $50, when the affidavit was filed as required by the statute.
Cummings v. Edmundson, adm’r. 5 P. 145.
Tippin v. Petty, 7 P. 442.) 23. If an objection to the jurisdiction be not taken in the circuit court, on an appeal from a magistrate, yet the supreme court will do what the court below should have done; nor does a wrong reason given by the circuit court for its judgment in such a case of appeal, necessarily authorize the reversal" of the judgment by the supreme court.
Wyatt et al. v. Judge et al. 7 P.37. 24. A want of jurisdiction of the subject matter is not aided by a plea to the merits, and is available in the appellate court, and the consent of the parties, whether express or implied, cannot give jurisdiction.
Ibid. 25. When the State has extended its jurisdiction over the Indian lands within its territory, the title to which has not been extinguished, the State courts have jurisdiction of offences committed within their limits.
Caldwell v. State, 1 S. & P.327. 26. It seems that quo warranto would be the proper remedy to test the right of an individual to an office or franchise, the duties and privileges of which he may be exercising and enjoying.
State ex rel, v. Paul, 5 S. & P. 40. 27. The supreme court has no authority, on the relation of the attorney general in behalf of the State, to inquire into the constitutionality of an appointment by the legislative department, of a judicial officer. Ibid. . 28. Thus, where the legislature having established a new judicial circuit, at the same session elected one of its own members the judge thereof-it was held on an information in the nature of a quo warranto, filed by the attorney general in the name of the State, that this court had no power to control the appointment, by an inquiry into the constitutional power of the legislature, to make the election.
See County and Orphans Court-Admiralty-Executors and Admi
JURY AND JURORS.
1. A subject of the king of Spain, living in Louisiana, when acquired by | the United States, is not a competent juror, unless it appear that he is natu
ralized, or was an inhabitant of Louisiana, at the time she was admitted into the Union.
Judson v. Eslava, A. R. 3. 2. Challenge of a juror, must be made before he is sworn, and if the overruling of the challenge is to be assigned in error, the matter should be spread upon the record, by bill of exceptions.
Ripley v. Coolidge & Bright, A. R. 11. 3. A party, who would avail himself of the privilege of jury trial, must appear and claim it.
Logwood et al. v. Planters' & Merchants' Bank, Huntsville, A.R. 23. 4. Not necessary that the record should show that the jury was sworn.
Purdue v. Burnett, A: R. 138.
Goyne v. Howell, A. R. 63. 5. Trial by jury not necessary, on motion against sheriff, the defendant voluntarily submitting the questions of fact to the court,
Mc Whorter v. Marrs, 1 S. 62. 6. In summary proceedings against officers, when there is a material issue on controverted matters, in pais, they have a right to trial by jury.
Pope & Hickman v. Stout, i S. 375. 7. A party may by his acts, waive his right of trial by jury.
Johnston et al. v. Atwood, 2 S. 225. 8. In trying titles, a party is entitled to a jury of freeholders; but that right must be claimed in the court below. Hamner v. Eddings, 3 S. 393. 9. In computing the time of delivering the list of the jury to the accu
cused, the day of delivery and the day of trial, must both be excluded.
State v. McLendon, 1 S. 195. 10. It is not necessary, to sustain an indictment, that the record should show the mode in which the jurors for the term were drawn. The venire will be presumed legal until the contrary appears. It is sufficient, if it appears that the grand jurors were "selected as the statute provides.'
Collier v. State, 2 S. 388.
, } 11. In a capital case, it is not ground for a peremptory challenge of a juror, that he has formed upon common report, and expressed an opinion of the guilt of the prisoner, if the
juror believes that such opinion would have no influence in the formation of his verdict, should the evidence on the trial be different from the report of the facts. State v. Williams, 3 S. 454.
12. After a juror is accepted and sworn, the court cannot discharge him from the pannel, without the consent of the prisoner, for any cause in issue at the time he was sworn, although the cause may have been discovered after he was empannelled.
Ibid. 13. And when a juror is so erroneously discharged and the judgment is arrested—this does not discharge prisoner from a second trial. Ibid.
14. Although in cases under $20, the court are priviledged to determine without a jury, yet a cause will not be reversed, merely because the court without objection from the parties left it to a jury.
Casy v. Braul, 1 S. & P.51. 15. A juror may be challenged after judgment by default, upon executing a writ of enquiry.
Opothle Yoholo v. Mitchel, 2 S. & P. 125.