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within the 75th section of the Code, upon whom a summons
-: Appearance. A defendant may appear specially to object
: But if he seeks to call into action any power of the court
8. VERDICT a. The appellate court will presume the verdict of the jury
sustained by the evidence, unless the contrary fully appear. The
All the evidence adduced on the trial should be
6. —: It is not usual for courts to disturb the verdict of a jury,
because it is against the weight of evidence, when there is any
d -: A verdict which finds two inconsistent facts, is void, and
cannot be the foundation of a legal judgment. Meredith v.
-: The verdict must respond to all the material issues
f. —: Cases may occur, when a general verdict alone will be a
substantial response, to the issues taken by special matters
set up in the pleadings.
Damages 1, 2. EVIDENCE 1, 2, 3, 4, 5. JUDGMENT 1, 3, 4, 5, 0.
Practice in Criminal Cases.
affirmatively that every step was taken to convene the court at a called term, in order to support the proceedings had thereat, provide ing enough appears to establish the facts
: Pleading. A plea to the jurisdiction which only alleges conclusions of law, and not facts adverse to the jurisdiction, is not good
: - It is error to put a prisoner upon his trial before he has plead to the indictment....
But if the defendant plead “not guilty," and afterwards file his motion to quash and plea in abatement and they are determined, and the trial proceeds without a renewal of the plea of “not guilty," the presumption is that it, as first interposed, was not withdrawn.
-: Evidence. It is error to refuse to permit, on cross-examination, a question as to his being intoxicated being put to a witness, who, on his direct examination, has testified to acts and declarations of the accused and the deceased before the homicide, which tend to fasten guilt on the former
7. —: Filling vacancies in juries. It is error to fill vacancies in the
grand jury from the list of persons summoned as petit jurors, and it is not material whether any injustice was thereby suffered by the prisoner
: Called terms : Records in criminal cases. In a criminal case for felony, in which the indictment or other proceedings are had at a called term of the court, the record should show the request made by the county commissioners to the judge for the term, the order of the judge thereon, and the due publication of notice of the holding of the court
9. —: Record in criminal cases for felony should show that a venire for
summoning the juries has been issued to the sheriff and been by him executed, or that the court, by its order, directed the summoning of the juries
The record should also show that the prisoner was present at and during the trial, and at the rendition of the verdict..
-: Waiving a right. Nor can the prisoner waive his right thus to be present when on trial for a capital felony ....
12. - : Pleading: The caption. It is not necessary to follow, literally,
the form for the caption to an indictment given in section 166 of the
Criminal Code, and the omission of the word “chosen” is not fatal
1st. The word “selected,” coupled with the word “chosen," in
the form, signifies the same.....
2d. The omission of the word "chosen” is of no practical import
ance, and therefore section 170 requires it to be disregarded id
18. —: Assault with intent to kill. An indictment for an assault with
intent to kill, should charge that the assault was made with a weapon. which ex vi termini imports a deadly weapon, or charge specifically that the weapon was deadly
-: Assault and battery. An indictment alleging an assault of such a character as would support a charge of assault with intent to kill with a wooden club, if it described the club as a deadly weapon, will, when those terms are omitted, support a conviction for assault and battery ...
: Arraignment. In misdemeanors it is sufficient if the counsel of the prisoner waives the reading of the indictment, and enters the plea of not guilty without a formal arraignment..... —: Jury separating. It is not error in a case of misdemeanor for the court, having instructed the jury, as is usual, not to hold conversation with any person, to permit the jurors to separate for their meals
See LARCENY 1.
Pre-emptions. 1. —: OF LAND OFFICERS. The register and receivers of the local land
office and their superiors in the land department, form a special tribu. nal for some purposes and to a certain extent. Smiley v. Sampson... 56
They have jurisdiction to determine questions of settlement and improvement, between different pre-emption claimants, which are questions of fact; and their decision thereon is conclusive upon the parties and the court....
They have not jurisdiction to determine conclusively questions arising between one settler and the government, which are generally questions of law. On these questions the courts are not concluded by their decisions ...
Their decision on an application to pre-empt, when made ez parte without the presence of the party interested adversely to the applicant is not conclusive. Lindsey v. Hawes, 2 Black, 554, examined and distinguished......
6. FILING TWO DECLARATORY STATEMENTS. The act of Sept. 4, 1841 reo
quires the filing of a declaratory statement of intention to pre-empt a tract of land, only when the tract claimed is subject to private entry, 66
8. — The act of March 3, 1843, prohibits a second filing, only under
the act of '41; i. e., only on lands subject to private entry.....
7. STATUTORY CONSTRUCTION. General words of a statute will be restrained,
when they clearly were not intended to include a particular act or thing ......
-: The mischief. Where a matter is clearly out of the mischief
intended to be guarded against, and thus is out of the spirit, although it be within the letter of the act, it is the duty of the court in construing the act, to limit the effect of the terms employed. ....
9. LAND 18 NOT WITHDRAWN, from pre-emption, by the circumstance that
a company has endeavored to build a town thereon, after the enterprise has been abandoned......
10. FRAUD. If an indigent party give for a house standing on a tract of
the public land, his note for $3,000, and thereupon asserts a preemption claim to the tract, without making any other improvement thereon, and as soon as he effects his entry, conveys a large tract to the payee of the note, in discharge thereof, and also conveys most of the remainder to parties, who as witnesses and attorneys have aided him in securing it, and who have previously endeavored to secure it by fraudulent practices, these circumstances unexplained, justify the opinion that there was at the time of his first asserting his preemption claim, an agreement to do what was afterwards done. ...
-: OBJECT OF RESTRICTIONS. The several provisions of the preemption act of September 4, 1841, as to settlement, cultivation, inhabitancy, &c., were designed to secure permanent, actual settlers on the public lands. Tousley v. Johnson.
Such a settler will not be deprived of the benefits of the act, by giving to some provision of law a harsh and inequitable construction, when applied to his case, unless the terms of the statute clearly and imperatively require it.....
-: Priority. The first settler who has complied with all the provisions of the law in good faith, is entitled to the land settled upon, whatever any subsequent settler may do in respect thereof....
-: Conveyances in fraud of the law. A person occupying a portion of the public land under a supposed right, may, after such right fails, assert a pre-emption claim thereto; and the fact of his having mortgaged his supposed interest under the invalid claim, will not vitiate his pre-emption right.....
- Nor will conveyances of the lands after he has pre-
—: Town improvements. Surveying a tract of public land and
17. Smiley v. Sampson, ante, followed......
be relieved from liability thereon, if the holder does not notify him
nature of a quo warranto, that the defendant had given a bond " for
2. —: Pleading. A pleading which is ambiguous is not for that reason
liable to demurrer. The proper remedy is motion to make it more
on paying the amount thereof, by an assignment thereof, but not to
2. —: A judgment creditor not a party to a foreclosure suit, is entitled
to pay the mortgage debt, and have an assignment of a mortgage
-: After a decree of foreclosure, such a party may be permitted to
redeem the mortgage, or may be compelled to receive the amount o.
4. EQUITY OF REDEMPTION : Interest of execution purchaser. A purchaser