JUDGMENT.

See APPEAL, 1, 5. LIMITATION, STATUTES OF, 2. TENDER, 1.

1. STAY BOND: When it creates a merger of the judgment.
Under the provisions of the code, the execution of a stay bond merges
the original in the statutory judgment as to the defendants who
execute the bond, if not to all of them; but if the original judgment
be void, all the subsequent proceedings based thereon are equally so,
and this rule will not operate. Bailey et al. v. Gibson.
472.

2. REPLEVIN: Judgment in.

The judgment in an action of replevin should be in the alternative for
the property or its value, as ascertained by the jury, if delivery can-
not be had. Jetton & Farris v. Smead.
372

3. JUDGMENT: When the verdict fails to fix the amount of the recovery.
Where, in a suit on an open account, the jury find a verdict generally
for the plaintiff, without ascertaintng the sum due, it is error to
render a judgment thereon for the sum demanded. Taylor, Radford
& Co. v. Hathaway.
597

JUDGMENT BY DEFAULT.

See APPEAL, 10. ATTACHMENT, 4. PRACTICE, 7.

When proper.

When a defendant has appeared to the action but interposed no answer
or defense, judgment by default may be rendered against him. Page
v. Sutton, Orlopp & Co.

304

JUDICIAL COGNIZANCE.

See CRIMINAL PLEADING.

JUDICIAL SALE.

See EVIDENCE, 12.

1. UNDER EXECUTION: In the absence of the goods.

A sale under execution by a constable, in the absence of the goods, is
void. Kennedy & Co. v. Clayton.

270

2. Who may take advantage of illegality in.

Any one who is in possession of property sold under execution may
contest the validity of the sale, in an action by the purchaser for
the possession.

Ibid.

3. COMMISSIONER'S SALE: NOTICE: Erroneous advertisement.
A special execution was issued under a decree for the foreclosure of the
vendor's lien, in which the lands were correctly described, the com-
missioner to whom the execution was issued, returned that he had
sold the lands described in the execution, and made a deed to the
purchaser in conformity to the return; through a clerical error the
land was misdescribed in the advertisement, and the commissioner,
without appearing to have known of the mistake, told a stranger to
the proceeding, he would only sell the lands that were advertised;
the purchaser was not a party to the process, nor shown to have had
knowledge of the mistake: Held, that whether the commissioner's
conduct was influenced by fraud or mistake, the purchaser obtained
a valid title. Files v. Harbison et al.
307

4. How irregularity may be remedied.

If the irregularity was prejudicial to those interested in the land, they
had the right to apply to the court from which the execution issued,
to have it set aside.

5. When the return cannot be contradicted.

Ibid.

In such a case, the commissioner's return cannot be contradicted after
deed is executed.

Ibid.

JURISDICTION.

See APPEAL, 4. BASTARDY, 1.

CHANCERY JURISDICTION. GOVERNOR,

2, 3. PRACTICE, 1. SUPREME COURT, 1, 2. TAXES, 1.

1. OF SUPREME COURT: To Render judgment on supersedeas bond.
The sureties in a supersedeas bond become, in legal effect, parties to
the suit, under our statute, and agree, in case of affirmance, that
judgment may be rendered against them by the supreme court for
costs and damages and the amount of the judgment below, and a
Judgment so rendered is not void for want of jurisdiction. White
v. Prigmore.

208

2. OF CIRCUIT COURT: To render judgment on supersedeas bond.
On appeal from a justice of the peace to the circuit court, with super.
sedeas, the circuit court has jurisdiction to render judgment against
the sureties on the appeal bond. Callahan et al. v. Saleski. 216

3. OF PROBATE COURT: Over lost will.

The probate court has no jurisdiction to establish a lost will; and its order establishing and probating the same, and all proceedings had thereunder, are void and may be impeached collaterally. Waggoner et al. v. Lyles et al.

47

4. OF JUSTICES OF THE PEACE: Criminal jurisdiction under the constitution of 1868.

Under the constitution of 1868, justices of the peace had concurrent jurisdiction of all criminal matters less than felony, and no written information or pleading was necessary. Watson v. The State.

299

Under the provisions of the constitution of 1868, the jurisdiction of a justice of the peace was determined by the amount of the debt, exclusive of the interest. Sherrill & Wilson v. Keach.

384

JURORS AND JURY.

See CONSTITUTIONAL LAW, 1. CRIMINAL PRACTICE, 2, 3, 4. GRAND JURY. LEGAL PRESUMPTIONS, 1.

1. How talesman sworn.

When the regular panel is exhausted, and the deficiency of jurors is supplied by talesmen, they may be sworn separately as they are selected. Hurley v. The State.

2. Clerical error as to name of, how corrected.

17

When it appears that a juror belonged to the regular panel for the term; that the ticket upon which his name was written before drawing contained his proper name, and that by a clerical misprision, the clerk entered his name erroneously in the record of the proceedings, the error may be corrected by the court on the motion of the attorney for the state. Ibid.

3. Mode of determining the qualification of. The provisions of the constitution of 1868, prescribing the qualifica, tion of jurors, did not take from the legislature the power to direct in what manner the question of qualification should be determined by the courts; and sec. 25, ch. 98, Gould's Dig., regulating this matter, is not in conflict with the constitutional provision, nor was it abrogated by the code of practice prior to the amendments of 1871. Whitehead v. Wells. 99

4. Time of objecting to.

An objection to the qualification of a juror must be made before he is sworn and impaneled. It comes too late on motion for new trial, even though the cause of the disqualification may not have been discovered earlier.

5. Form of oath.

Ibid.

The oath prescribed for the petit jury by sec. 219, Crim. Code, is not in violation of the constitution; it in effect requires the jury to try the the case according to the law and the evidence. Palmore v. The State. 248

6. Irregular and improper conduct of petit jury. During the deliberations of the petit jury, in a trial for murder, they should not be permitted to separate, or to indulge in the use of liquor, or to read a newspaper containing improper comments on the trial of the case before them, nor should the defendant or his counsel be called on to consent to such irregularities, as a refusal might incense the jury; but where the court below, with a knowledge of the facts and circumstances, and of the habits and character of the jurors, refuses to set the verdict aside on account of such irregularities, this court will not do it. Ibid.

7. What papers should be excluded from the jury. The jury should not be permitted to take with them, when they retire, papers containing statements bearing on the case, which were not read in evidence; but the appellant cannot complain if the paper taken was his motion for a continuance. Ibid.

8. NEW TRIAL: When the separation of the jury not ground for new trial. When the jury was permitted to separate into two bodies for the pur. pose of dining, but were under the eye of the bailiff, and were not exposed to improper influences, it was not a ground for new trial. Wilder v The State,

293

9. Testimony of jurors, on motion for new trial. The court properly refused to permit the appellant to prove by jurors, as a ground for new trial, that the verdict was influenced by representations of the bailiff in charge of the jury. Under our statute, a juror can be examined to establish no other ground of new trial than that the verdict was made by lot. Ibid.

JUSTICE OF THE PEACE.

See APPEAL, 10. BASTARDY. CORONER. JURISDICTION, 4, 5.

LABORER.

See LIEN.

LANDLORD AND TENANT.

See EXEMPTION, 2. MORTGAge, 3.

LANDLORD: Has no right to the possession of the crop.

The mere ownership of land confers no right to the possession and disposal of the crop raised on it by tenants. The right to rent must be asserted and perfected under the provisions of the law. Robin son v. Kruse,

575

LARCENY.

See INDICTMENT, 3.

LEGAL PRESUMPTIONS.

See AMENDMENTS. WILLS, 1.

1. In favor of circuit court.

In the absence of any showing to the contrary, it must be presumed by this court that the oath was administered to the jurors in proper form. Hurley v. The State, 17

2. When the circuit court set aside the regular panel of grand jurors, and had another summoned; and the record fails to disclose the ground of its action, this court will presume that it was done for good cause. Dixon v. The State, 165

LIEN.

See ATTACHMENT, 1, 2, 3. VENDOR'S LIEN.

1. Of laborer for the erection of buildings.

Section 4092 of Gantt's Dig., construed in connection with other sections of the chapter, impliedly gives laborers a limited lien on land for buildings erected thereon under contract. Taylor, Radford & Co, v. Hathaway,

597