2. The Supreme Court has the power in a proper case to remand causes,
to the end that proper amendments may be made or further proceed-
ings taken in the Court below. Holley v. Holley, 229.
1. Wherever the statute directs the County Commissioners not to include
the names of a class of persons if drawn to serve on the jury in the
panel, as in case of those having suits pending and at issue in the Su-
perior Courts, it is a fundamental objection to the juror whenever it
is made to appear and is a cause of challenge, although the County
Commissioners may have allowed his name to go upon the venire.
Hodges v. Lassiter, 351.
2. Quare, whether a juror who has an indictment pending and at issue
against him in the Superior Court is disqualified from serving on the
jury by the statute which prohibits those having a suit so pending and
at issue from serving. Ibid.
3. In order to disqualify a juror from serving under this statute, the suit
must be at issue, and so where an indictment was pending against a
juror, to which he had never pleaded; It was held, that he was not
disqualified under this statute, even if it applies to indictments. Ibid.
See also" VERDICT."
Where an order of reference is made without objection or opposition it is
equivalent to consent and is a waiver of the right to have the issue
tried by a jury. Grant v. Hughes, 177.
One let into possession of land under a contract to purchase is an occupant
at the will of the vendor, and he so continues until the purchase money
is paid. Allen v. Taylor, 37.
A will in one clause devised a tract of land to the testator's son W. In
another clause a pecuniary legacy to a daughter was made an express
charge on this land, and in the same clause another tract of land was
devised to another son, C, and a pecuniary legacy to another daugh-
ter, I. This last legacy was not made an express charge on the land
devised to C, but the will provided that the son W of the testator
should manage the entire estate, including the land devised to C, until
the legatees and devisees arrived at full age, and that he should pay
the legacy to I by installments; It was held, that the legacy to I was a
charge on the land devised to C. Carter v. Worrell, 358.
1. In action to recover damages for a libel it is competent for the defend-
ant to introduce evidence in mitigation of damages, to show the provo-
cation which induced him to publish the libel, but this provocation
must originate in the same subject-matter out of which the libel arose,
or be closely connected with it. Knott v. Burwell, 272.
2. In actions for defamation under the former system of pleading, evidence
offered to sustain a plea of the general issue could not be considered
in mitigation of damages, but this has been changed by The Code,
$266. Ibid.
3. Malice is presumed from the utterance of false defamatory words, and
proof of it, other than proof of the utterance of the false and defama-
tory words, is not necessary, and hence it is always proper to allow
the defendant to prove an absence of malice in order to mitigate the
damages. Ibid.
4. So where the plaintiff had charged the defendant with using false
weights in his business, and upon hearing of the charge the defendant
sent to the plaintiff and asked him to correct the charge, which the
plaintiff promised to do, admitting at the time that the charge was
false, but he afterwards refused to retract it, upon which refusal the
defendant published the libel sued on; It was held, that these facts
were admissible in evidence in mitigation of damages. Ibid.
While the Board of Commissioners of a municipal corporation cannot issue
a license to retail liquors for a longer period than one year, the time
need not begin and terminate with the term of office of the Board
which grants it, for they can grant a license which extends beyond
their term of office, provided that it does not exceed one year and does
not begin to take effect after their term of office has expired. Hen-
dersonville v. Price, 423
I. Creditors of a deceased person have no lien upon his lands, but only the
right to have them subjected to the payment of the debts if there shall
be a deficiency of the personal assets, and consequently a conveyance
made by the heir or devisee within two years after the grant of admin-
istration and advertisement for creditors is not absolutely void, but
only subject to be annulled by the contingency of the personal assets
proving insufficient. Davis v. Perry, 260.
2. The act of 1879, which provides that mortgages executed by corpora-
tions on their property or earnings shall not exempt the property or
earnings from executions for the satisfaction of a judgment obtained
for labor performed, materials furnished, or for torts committed by
such corporation, so far as it relates to labor and materials furnished,
is only intended to more effectually secure the lien given by the Con-
stitution and statutes to laborers and material men, and was not in-
tended to create a lien in favor of parties who furnish machinery, &c.,
to the corporation upon its personal credit. Bank v. M'fg. Co., 298.
3. The lien of an attachment takes effect from its levy, and so, where in
an action to compel a corporation to transfer certain stocks on its
books, which the plaintiff had purchased at execution sale after it had
been attached to answer the judgment, and the defendant answered
that said stock had been transferred by the judgment debtor before
the rendition of the judgment, but did not aver that such transfer was
before the levy of the attachment; It was held, that the answer did
not raise an issue, or set up a substantial defence. Morehead v. The
R. R. Co., 362.
Where by will land is devised to a trustee, to rent the land and pay the
rents over to a person during his life, the cestui que trust takes no
estate in the land, but only the right to have the rents paid to him.
Hicks v. Bullock, 164.
(See STATUTE OF LIMITATIONS.)
If property is transferred by the defendant pending a suit involving its
title, in which there is afterwards a judgment for the plaintiff, the
judgment relates to the beginning of the action, and binds the prop-
erty in the hands of the purchaser, and when the transaction and suit
are in the same county and the record furnishes evidence of the claim,
this rule is not affected by the provisions of The Cade, $229. Dancy
v. Duncan, III.
While the Board of Commissioners of a municipal corporation cannot issue
a license to retail liquors for a longer period than one year, the time
need not begin and terminate with the term of office of the Board
which grants it, for they can grant a license which extends beyond
their term of office, provided that it does not exceed one year, and
does not begin to take effect after their term of office has expired.
Hendersonville v. Price, 423.
1. Where a party claims under a lost deed, he must show by clear and full
evidence that such a deed once existed, its legal operation, and its
loss. Loftin v. Loftin, 94.
2. Under the present practice, where a party claims under a lost deed, it
is not error for the trial Judge to charge the jury that the lost deed
could only be established by clear and satisfactory proof. Ibid.
1. Malice is presumed from the utterance of false defamatory words, and
proof of it, other than proof of the utterance of the false and defama-
tory words, is not necessary, and hence it is always proper to allow
the defendant to prove an absence of malice in order to mitigate the
damages. Knott v. Burwell, 272.
2. So where the plaintiff had charged the defendant with using false
weights in his business, and upon hearing of the charge the defendant
sent to the plaintiff and asked him to correct the charge, which the
plaintiff promised to do, admitting at the time that the charge was
false, but he afterwards refused to retract it, upon which refusal the
defendant published the libel sued on; It was held, that these facts
were admissible in evidence in mitigation of damages. Ibid.
Whether the duty of the County Commissioners of inducting persons who
have received a certificate of election into office is merely ministerial
or not; Quare, but if the commissioners refuse to induct one who is
plainly ineligible, the Courts will not compel them to do so, and thus
put one into an office which he cannot constitutionally hold. McNeill
v. Somers, 467.
1. A married woman cannot be estopped by anything in the nature of con-
tract, but where it would amount to a fraud to allow her to repudiate
her acts, she is estopped. Hodges v. Powell, 64.
2. Where a husband and wife joined in a bond to convey a tract of land to
the defendant, but the wife was not privily examined, and after the
death of the husband she received payment for the land and invested
the money in other land; It was held, that she was estopped from tak-
ing advantage of the want of a privy examination, and therefore was
not entitled to dower in the land sold by her husband. Ibid.
3. It seems, that when a feme covert has the consideration in her hands
for a contract which she disaffirms, on account of her coverture, the
disappointed party may recover it, and when she has converted such
consideration into other property, he may follow it and subject it to
the satisfaction of his demand by a proceeding in rem. Ibid.
4, While a wife may execute a power of appointmeut conferred upon her
in favor of her husband, yet she cannot convey her land directly to
him, except as allowed by The Code, 1835, 1836. Sims v. Ray, 87.
5. The reason that all transactions of the wife with her husband in regard
to her separate property were held void at common law, was not be-
cause there was fraud, but because there might be fraud. This rule
is now modified by statute, and the wife may contract with the hus-
band by complying with the provisions of $1835, 1836 of The Code.
Ibid.
6. Where an agreement is made between husband and wife, that the pro-
ceeds of a sale of the wife's land shall be invested in other land in the
name of the wife, such agreement is within the provisions of the sta-
tute of frauds, and cannot be specially enforced, but relief will be
given the wife by declaring her to be entitled to the proceeds of her
land, and perhaps to charge the land purchased with her money with
its payment. Cade v. Davis, 139.
7. Where a husband contracts with his wife to invest money received from
a sale of her land in other land, the title to which is to be taken to
the wife, but instead he takes the title to himself, he must either exe-
cute his contract by conveying the land to his wife or restore to her
the money which he received from her estate. Ibid.
8. The privy examination of a feme covert which sets out that she signed
the deed of her own free will and accord, and without any compulsion
of her husband, is sufficient, without adding the words, and doth
voluntarily assent thereto." Robbins v. Harris, 557.
9. Where under the old system, it appeared that an order was made ap-
pointing a justice of the peace to take a privy examination, it will be
presumed that the justice was a member of the County Court ap-
pointed for that purpose. Ibid.
1. The burden of proof is on the plaintiff to show that a co-employee of a
common master is a superior and not a fellow-servant, unless the na-
ture of the employment shows the extent of the co-employee's powers.
Patton v. R. R. Co., 455.
2. Where the common master invests one of his employees with the power
to hire, discharge, command and direct the other employees, the mas-
ter is liable for his acts, and he is not a fellow-servant, although he
works as any other servant and there is nothing in the nature of the
employment to show an authority to charge the common master. Ibid.
3. So, while there may be nothing in the nature of the employment of a
section master on a railroad to charge the master with responsibility
for his acts towards his co-laborers, yet if the master gives him au-
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