Imágenes de páginas

sien of two or more of these defendants to improperly release Samuel Snow from his imprisonment, thus obstructing the process of the United States. If you are satisfied there was, you will find so many as entered into such a conspiracy and combination guilty under the first count of the indictment.

This case will point out the caution with which those in authority should proceed. The steps taken could not possibly redound to the benefit of Samuel Snow, for the discharge obtained could not protect him against an examination into his offence before the grand jury. Instead of having him to deal with, if no interference had occurred, we are now engaged in examining into the case growing out of the interference. It seems incomprehensible why a jealousy should exist between the state and the National Government, and especially between the judiciaries of the two. Identity of interests, affecting the individual in both capacities as a citizen of a state and the General Government alike, when rightly understood, can leave no room for differences.

The judiciary, solely interested in the faithful execution of the Jaws, should hesitate to interfere with each other, because of the conflict which must necessarily follow derogatory to both.

You, gentlemen of the jury, to whom this case is about to be submitted for final action, will enter upon the consideration thereof, I am sure, in that true spirit which recognises its obligations to both governments, and above all, to that spirit of justice and of right on which all government and laws securely rest.

The jury returned a verdict, finding McAfee (the judge who issued the writ) and Doss (the attorney of the prisoner sning out the writ) guilty, and Snow and Wray not guilty.





ADMINISTRATORS AND EXECUTORS. Payment of Debts out of Lands-Statute of Limitations.--The

· From J. H. Thomas, Esq., to appear in 42 or 43 Georgia Reports. ' From W. C. Webb, Esq., Reporter; to appear in 7 or 8 Kansas Reports. • From the Juistes ; to appear in 49 or 50 New Hampshire Reports. From Hon.'. L. Barbour, Reporter ; to appear in Vol. 61 of his Reports.

question whether there are any debts or legacies for the payment of which the lands of an estate in the course of administration are properly liable, is one clearly within the jurisdiction of the Court of Probate, and the decision of that court upon that question will be final and conclusive, if no appeal be taken : Hall v. Woodman, 49 or 50 N. H.

All claims against a solvent estate are barred by the statute in chree years after the granting of administration, specified cases excepted, unless suit thereon was commenced within the three years, and was not adjusted at the close of said term : Id.

The administrator cannot by any promise in writing or otherwise, take

any claim out from the operation of this statute, nor is he at liberty to omit to plead that statute of limitation in any case where it is appli. cable: Id.

The judge of Probate should not, therefore, grant to an administrator license to sell lands of the estate, if solvent, after the expiration of three years from the granting of administration, except in the cases specified in the statute, unless there are suits against the estate pending and unadjusted at the expiration of the three years, nor in cases of insol. vency, except in cases of appeal from the commissioner, or in cases of review pending and unadjusted at the close of said term, or for other similar reasons: Id.

And when such special reason exists for extending the time, the administrator should be required to make his application for license within reasonable time after the cause for delay has been adjusted or ceases to exist, else his application should be refused : ld.

An administrator, whether the estate is solvent or insolvent, is bound to execute his trust in a reasonable time. And if he'un reasonably delay and neglect to apply land of the estate for the payment of debts, his right to sell the land, his lien upon it for the payment of debts, will be forfeited and lost, and the heirs or devisees may enter and hold the land against him: Id.

ASSUMPSIT. Services where no Compensation is fixed- Evidence of Value of Services.—The refusal to permit a question asked on cross-examination to be answered, is not cause for reversal, even though the question was one which was properly asked in the latitude allowed on cross-examination, where it clearly appears that such ruling could not have prejudi. cially affected the losing party : Missouri River Railroad Co. v. Richards, 7 Kans.

A person who has personal knowledge of the services rendered, and has a knowledge of the value of the services, and what was usually paid for such services in the East, is competent to testify what the services were worth ; although he may not have known of any established price for such services in the vicinity where rendered : Id.

When the by-laws of a corporation provide that the officers shall receive such compensation for their services as the board of directors shall fix and allow, and the board has not fixed any compensation, a secretary who has rendered services is entitled to recover therefor, unless there was an understanding that he was to render the services without compensacion : ld.

The jury has a right in making up their verdict to use their genera' knowledge, such as any man may bring to the subject : ld.

BANKRUPTCY. Jurisdiction of State Courts after Filing of Petition— Homestead.When the United States courts under the Bankrupt Act have acquired jurisdiction of the estate of the bankrupt, the state courts lose jurisdiction of all claims against him provable under the Bankrupt Act, except specitic liens upon his property, and legal or equitable claims of title thereto, and the homestead and exemption provisions of the Constitution of 1868 do not create such a specific lien upon or title to his estate in favor of his family, as may be heard and adjudicated by the state courts pending the proceedings in bankruptcy : Woolfolk v. Woolfolk, 42 or 43 Ga.

Whether said claim is such a debt in favor of the family as may be proven before the Bankrupt Court, independently of the exemption graúted by the bankrupt law to the bankrupt, is for that court alone to decide : İd.

BILLS AND Notes. Endorsement after maturity.-If a promissory note, payable to the order of a person in whose hands it is invalid, is taken from him before maturity, but not endorsed by him till overdue, or till after notice of a defence, the endorsement does not relate back to the time of the taking, and the endorsee has no better title than the endorser bimself had, although it was taken in good faith and for value : Clark v. Whitaker, 49 or 50 N, H.

Usury.—When the payee of a note endorses it after maturity, and suit is brought by the endorsee against the maker and endorser, and the plea by the maker sets up usury, such plea by the maker does not affect the liability of the endorser upon his contract of endorsement after the maturity of the paper. The contract of endorsement was a new and distinct contract not affected by usury between the payee and maker in the hands of the endorsee without notice, and the endorser in a suit against him by the endorsee cannot set up his own illegal act in taking usury to defeat a recovery against himself as endorser: Frank v. Longstreet, Sedgwick & Co., 42 or 43 Ga.

CONTRACT. ConstructionIllegality never presumed.—When it is averred in a petition that language in a contract which is susceptible of two meanings was intended by the parties to have one of such meanings, upon issue joined by demurrer, the contract will be construed as having that meaning: Craft v. Bent et al., 8 Kans.

Under a contract to pay for land upon the execution of a deed, interest does not begin to run until tender of the deed : ld.

A decree requiring the performance of a contract by one party should also receive if possible performance by the other : Id.

Courts will never presume a contract to be illegal. Its illegality must be shown : Id.

CRIMINAL LAW. Magistrate or Police Court cannot commit except for the very Offence

. charged.-Although it is competent, upon an indictment, when the respondent is not guilty of the offence as charged, for the jury to find him guilty of some minor offence which is necessarily included in the offence as charged, yet this power is not conferred upon magistrates ar police courts : State v. Runnals, 49 or 50 N. H.

The charge as made in the complaint and warrant determines whether the magistrate can try and determine the case, or whether he can only hear the evidence and determine whether he will bind over or discharge the respondent: Id.

If the offence charged in the complaint and warrant is one that may be punishable by a fine of more than twenty dollars, or imprisonment in jail for more than six months, the magistrate has no power to determine it, but must either bind over or discharge : Id.

In such cases he should not arquit; for, when he cannot convict and pass sentence, he has no power to acquit: II.

The charge for assault and battery is made a special exception by statute, and in that class of cases the magistrate may acquit, or nay convict and pass sentence within certain limits, or he may bind orer, if, in his judgment, the punishment should exceed his jurisdiction to inflict: ld.

In all criminal cases where the magistrate or police court have juris. diction, the Supreme Court has also original concurrent jurisdiction: H.

Police Court-Jurisdiction. — Where a complaint before a polica court for larceny described an offence the macimum punishment of which was greater than a police court had power to impose, it was held, that such court had no jurisdiction to try such offence, and that is appeal from its sentence, although it was to pay a fine within the power of that court to impose, must be dismissed : Stute v. Dolly, 19 or 50 V. H.

Iela, also, that the value of the goods as stated in the complaint must govern the question of jurisdiction, and not the value as found on trial, and that this defect could not be cured by amendment in the appellate court: Id.

Larceny.--Upon a trial for larceny of a horse, a bill of sale to the horse offered by the prisoner without showing aliunde its bonâ fide er: ecution, is inadmissible as evidence: Taylor v. The State, 42 or 13 Ga.

DEBTOR AND CREDITOR. Assignments for Benefit of Creditors-Infancy of Assignor.- Where, at the time an assignment of property in trust for the benefit of cred. itors was executed, one of the assignors was an infant, of the ago nineteen years, only: Held, That that fact, alone, rendered the assign. ment void, as matter of law, as against creditors ; upon the ground that an infant having a right to disaffirm his contracts, an assignment by him does not, and cannot, as matter of law, devote the property assigned, absolutely and unconditionally, to the payment of his debts : Yutes et al. v. Lyon, 61 Barb.

The general principle, that a sale or assignment by an infant is roid. able only, and not void, until he elects to avoid it, and remains valid until such election, does not apply to such a case: Id.

Nor is it of the least consequence that the infant assignor did De elect to disaffirm or revoke, but by his silence, afterwards, consented ta, and ratified the assignment. The vice lies in the power he had to die affirm or avoid : Id.

DEED. Want of Consideration-Subsequent Grantee.- A subsequent granteo cannot ordinarily attack a prior deed of his grantor for fraud or want of consideration : Gray v. Ulrich et al., 7 Kans.

But where he has the equitable title at the time of the execution of the prior deed, then be may question the interest conveyed by such deed: Id.

DESERTER. Disfranchisement of.—The United States Act of March 3d 1865 does not contemplate the disfranchisement of deserters except after conviction by court-martial: Severance v. Nealey, 49 or 50 N. H.

DOWER. A widow, in this state, is entitled to dower in lands bargained by the husband in his lifetime to a third person, the purchase-money remaining unpaid, and the title to the land being retained by the husband in himself until his death : Slaughter v. Culpepper et al., 42 or 43 Ga.

ESTATE FOR YEARS. An estate for years may be bought and sold as other real estate, even against the consent of the grantor, if there be nothing in the deed to prevent it: Clark v. Herring & Mock, 42 or 43 Ga.

EVIDENCE. See Assumpsit; Criminal Law. The admission of parol evidence to contradict a note and prove conditions not expressed therein is error; while the failure of consilerution, in whole, or in part, may be given in evidence, new conditions cannot: Lester & Lester v. Fowler et al., Scaife v. Beall, 42 or 43 Ga.

FORMER SUIT. Judgment in, when not a Bar to a subsequent Action.—Creditors who had seized, upon attachment, the property of their debtors in the hands of an assignee for the benefit of creditors, being sued by the assignee, for the conversion of the property, set up as a defence, that the assignment was invalid, for fraud. The defence was ruled out, because the attachment had been set aside for irregularity, and the creditors were thus left without justification, and were mere tort-feasors. The question as to the validity of the assignment was not litigated and determined, as it was held not to arise. Held, That the judgment in that action was no bar to a subsequent action, by the creditors against the assignors and assignee, to set aside the assignment: Yates et al. v. Lyon, 61 Barb.

HIGHWAY Dedication-UseAbandonment. The laying out of a highway by the selectmen of a town without an application for it, is invalid. The provision of the Revised Statutes, ch. 53, s. 7, that no highway not laid out agreeably to statute law shall be deemed a public highway, unless the same has been used by the public for twenty years, operates to discontinue all highways not so used, and depending upon dedication, even when used long enough to become public highways under the former laws: State v Morse, 49 or 50 N. H.

The jury cannot rightfully presume that a highway has been laid ou

« AnteriorContinuar »