CAVEAT EMPTOR.

The doctrine of caveat emptor does not apply where defendant sold four barrels of crude turpentine, representing "that they were all right, just as good at bottom as at top," when in fact the barrels contained only a small quantity of turpentine on top, the rest of the contents being chips and dirt. Jones, 70-75.

A false representation that certain cotton is "good middling" is not indictable, since the rule caveat emptor applies. Young, 76-258.

CERTIORARI AND RECORDARI.

Sec. 118 (584). Certiorari, recordari and supersedeas.

Writs of certiorari, recordari and supersedeas are hereby authorized as heretofore in use. The writs of certiorari and recordari, when used as substitutes for an appeal, may issue when ordered upon the applicant filing a written undertaking for the costs only; but the supersedeas, to suspend execution, shall not issue until an undertaking is filed, or a deposit made to secure the judg ment sought to be vacated, as in cases of appeal where the execution is stayed.

Code, s. 545; 1874--5, c. 109.

PRAYER FOR INSTRUCTION OMITTED BY JUDGE IN CASE SETTLED.-An application for a certiorari which avers that a special prayer for instruction was asked in writing and in proper time, and was refused and exception noted, will be denied when it is not alleged that such exception was set out in the appellant's case on appeal, since if appellant did not set it out as an exception in his case on appeal, he can not complain that the judge did not incorporate it in the "case settled" by him. Had the exception been set out in the appellant's statement of the case, and the judge had omitted such prayer and the exception for its refusal from the "case settled," a certiorari would lie to have them incorporated. Black, 109—.

CLERK REFUSING TO SEND TRANSCRIPT UNTIL COST PAID.-Where the clerk refuses to send up the case on appeal until the cost of the transcript is paid, a certiorari will be issued to bring up the transcript, since the clerk is not entitled to his cost for the transcript in advance in criminal actions. Nash, 109-822.

WHEN MOTION TO DISCHARGE PRISONER IS DENIED.-Where a motion to discharge a prisoner after a mistrial is denied, the proper method to have the alleged errors in ordering the mistrial reviewed is by a petition for a certiorari in due form, setting forth the grounds of the application. Locke, 86-647.

OMISSIONS BY JUDGE IN CASE SETTLED NOT MADE BY OVERSIGHT.-A certiorari to correct a case on appeal will not be granted when it appears that the omissions complained of were not made by the judge by inadvertence or oversight, and there is no reason to believe that he would amend the case if given opportunity. Sloan, 97-499.

AVERMENTS IN APPLICATION CONTRADICTING CASE SETTLED.-Where the case on appeal is settled by the judge after a full hearing has been accorded, and

the action of the court has been careful and considerate, no occasion for interference is presented, and the court can not listen to averments that contradict the statement of the court. Gooch, 94-982.

APPELLEE'S OBJECTIONS IN FORM OF COUNTER-CASE.-It is no objection to the objections filed by the appellee to the appellant's case that it is in the form of a counter-case, and not of specific objections. Gooch, 95—982.

RECORDARI TO HAVE CASE DOCKETED.-A warrant for bastardy was returnable at 10 a. m., but the justice, of his own motion, and without notice to prosecutrix, changed the place of trial to a place eight miles distant and in another township, and the hour of hearing to 1 p. m. It was raining, the roads were "in a wretched condition," and prosecutrix protested because she had no means of riding to the place of trial. The justice tried the case in the absence of prosecutrix and the state's witnesses, and discharged defendant. The prosecutrix gave notice of appeal, and the justice promised to send up the papers, but failed to do so, assigning as a reason the non-payment of his fees: Held, that on the case being brought up by recordari, a motion to docket the case was properly granted. Warren, 100-489.

WHEN AVERMENT OF MERITS IN APPLICATION UNNECESSARY.-In such case the appeal having been lost by the conduct of the justice, an averment of merits in the application for the recordari was unnecessary. Warren, 100— 489.

WHEN WRIT GRANTED WITHOUT SECURITY. A recordari may be granted without giving security when no execution is stayed and no default is imputable to the relator. Warren, 100-489.

WRIT GRANTED IN FORMA PAUPERIS.—A writ of recordari may be granted in forma pauperis. Warren, 100-489.

NO APPEAL FROM ORDER DOCKETING A CASE.-An appeal from an order docketing a case brought up on recordari is premature and may be dismissed. Warren, 100-489.

APPLICATION DENIED.-As a matter of practice the supreme court will not send down a certiorari, unless sufficient excuse is made to appear, but will on motion of the attorney-general, or adverse party, dismiss the appeal. Frizell, 111–722.

Where appellant, without whose default the appeal was not settled by the judge, fails to docket at the next succeeding term, an application for a certiorari at such term will not be allowed. Freeman, 114-872.

Where an insufficient record is sent to the supreme court the appeal will be dismissed unless it appears that the appellant is guilty of no laches, or unless a serious question is presented. May, 118-1204.

Where an appellant has ground for a certiorari he should move for it before the case is reached for argument. Harris, 114-830.

WHEN GRANTED.-Defendants served their cases on appeal in due time on the solicitor, but it was agreed that the solicitor should have fifteen days within which to file exceptions; the exceptions were prepared and sent to the associate counsel of the solicitor, who resided in the same town with defendants' attorney, on the fifteenth day, with instructions to hand them to defendants' counsel, but as he was absent it was not done until next day: Held, that there was laches in not causing the exceptions to be served within the stipulated time, and defendants were entitled to a certiorari to send up their case, which would be substituted for that settled by the judge. Price. 110-599.

IMPROVIDENT APPEAL FROM INFERIOR COURT.-Where an appeal is improvidently taken from an inferior court to the supreme court it will be dismissed, and the appellant will be remitted to his right to certiorari from the superior court and to an appeal from the latter if an appeal becomes necessary. Ray, 122-1097.

WHEN GRANTED EX MERO MOTU.-Where, by inadvertence, the judgment of the court below is omitted from the transcript, the supreme court will, er mero motu, send down an instanter certiorari to perfect the record. Beal, 119-809.

MUST BE ASKED BEFORE APPEAL REACHED.-Certiorari in lieu of a lost appeal should be moved for before the appeal is regularly reached in its order on the docket, Rhodes, 112-857.

WHEN ISSUED WITHOUT NOTICE.-While the court may, in matters of grave concern, permit certiorari to issue on motion of a party without notice to the other side, or ex mero motu, this will not be done where the record shows only technical and not substantial grounds of exception to the proceeding below. Jackson, 112-849.

NO AMENDMENT TO TRANSCRIPT.-An amendment or correction to a case or transcript on appeal can not be made by a party himself without certiorari granted. Jackson, 112–849.

APPEAL WITHOUT MERIT DISMISSED THOUGH TRANSCRIPT DEFECTIVE.Where a defective transcript is filed, the supreme court, ordinarily, will direct a writ of certiorari, but if it is apparent from the case settled that the appeal is without merit, it will be dismissed. Preston, 104-733.

CERTIORARI FOR THE STATE ON REFUSAL OF MOTION TO AMEND THE RECORD.— A certiorari, as a remedial writ, will be granted on behalf of the state in a criminal action, under the supervisory power conferred upon this court by section eight, article four of the constitution, where it appears in the petition that the superior court, on motion of the state to amend the record of a trial so as to make it speak the truth, refused to hear evidence in support of the motion on the ground of a want of power. Swepson, 83-584.

CASE SETTLED BY JUDGE CONCLUSIVELY TRUE.-An application for a certiorari, which states that the case as prepared by the trial judge after disagreement of counsel, erroneously states that certain objectionable evidence was withdrawn from the jury when in fact it was not so withdrawn, must be denied. The case as prepared by the judge on disagreement of counsel must be accepted as conclusively true. Gay, 94–821.

APPLICATION TO CORRECT STATEMENT IN REGARD TO PUNISHMENT DENIED.— Where the application is made for the purpose of correcting certain statements of fact as to what transpired after judgment in an effort to obtain a modification of the sentence, it must be denied since, as the punishment is a matter of discretion, it must also be a matter of discretion whether the court will hear evidence for a modification of the judgment. Miller, 94-902. JUDGMENT NOT VACATED UNTIL STATUTE COMPLIED WITH.-A judgment in a criminal action is not vacated by an appeal until the statutory requirements are complied with. Bennett, 93-503.

APPEAL LOST BY CONDUCT OF ADVERSARY.-Where a party has lost his appeal by the conduct of his adversary his remedy is by certiorari, and not by motion for a new trial. Bennett, 93-503.

FRIVOLOUS APPEAL.-Where the transcript fails to show that a court was held, or that a grand jury presented the indictment, and when it appears from the case on appeal that the grounds on which defendant appealed are frivolous, the appeal will be dismissed. McDowell 93-541.

A certiorari will not be granted when it appears from the case on appeal that there are no merits in the case. Ib.

CERTIORARI FROM ONE SUPERIOR COURT TO ANOTHER ON REMOVAL.-On removal from one superior court to another the latter court may issue a certiorari to the former, directing a more perfect transcript to be certified. Collins, 14 (3 Dev.), 118.

CERTIORARI INSTEAD OF APPEAL FROM INTERLOCUTORY JUDGMENT.-While no appeal lies, in state cases, from an interlocutory order or judgment, yet where a matter involves the power of a superior court and error in its exercise, as where the judge improperly discharges a jury and refuses to discharge the prisoner, the record below may be brought up for review by a writ of certiorari in the nature of a writ of error. Jefferson, 66-309.

EFFECT OF THE WRIT.-The granting of a certiorari has the same effect as an appeal as to a stay of execution, and where the defendant has been committed to jail in execution of the judgment, he is, after the writ has been granted, entitled to bail pending the hearing of the case in the supreme court. Walters, 97-489.

FOUNDATION OF RIGHT.-The right to issue the writ of certiorari is not founded on the circumstance that the court from which it issues is superior to that to which it is directed; but on the principle that all courts have the right to issue any writ necessary to the exercise of their powers. Collins, 14 (3 Dev.), 117.

Where a cause is removed from one superior court to another the latter has the right to issue certiorari to the former directing a more perfect transcript to be certified. Collins, 14 (3 Dev.), 117.

Where a mistrial is ordered and the defendant desires to have this court review the lower court in refusing to discharge the defendant the proper method is by certiorari. Twiggs, 90-687.

WRIT NOT RETURNED.—Where a more perfect transcript is returned in obedience to a writ of certiorari it is not necessary that the writ should also be returned, since such writ does not give jurisdiction. Collins, 14 (3 Dev.), 117.

TRANSCRIPT NOT AFFIXED.-In sending a transcript in pursuance of certiorari from one court to another it is not necessary that the transcript should be affixed to the writ of certiorari. Carroll, 27 (5 Ired.), 139.

SECOND WRIT.-A second writ of certiorari may be issued after the first is returned, if the court thinks the record still defective. Munroe, 30 (8 Ired.), 258.

CHALLENGES TO JURORS.

Sec. 119 (3263). Peremptory challenges by defendant; judge decides competency.

Every person on joint or several trial for his life may make a peremptory challenge of twenty-three jurors and no more; and in all joint or several trials for crimes and misdemeanors, other than capital, every person on trial shall have the right of challenging peremptorily and without showing cause, four jurors and no more. And to enable defendants to exercise this right, the clerk in all such trials shall read over the names of the jurors on the panel, in the presence and hearing of the defendants and their counsel before the jury shall be impaneled to try the issue; and the judge or other presiding officer of the court shall decide all questions as to the competency of jurors.

Code, s. 1119; 1887, c. 53; R. C., c. 35, s. 32; 1871-2, c. 39; R. S., c. 35, ss. 19, 21; 1777, c. 115, s. 85; 1812, c. 833; 1801, c. 592, s. 1; 1826, c. 9; 22 Hen. VIII., c. 14, s. 6.

Sec. 120 (3264). Peremptory challenges by state.

In all capital cases, the prosecuting officer on behalf of the state shall have the right of challenging peremptorily four jurors for each defendant. Said challenge must be made before the juror is tendered to the prisoner; and if he will challenge more than four jurors he shall assign for his challenge a cause certain; and in all other cases of a criminal nature, a challenge of two jurors shall be allowed in behalf of the state for each defendant, and challenges also for a cause certain, and in all cases of challenge for cause certain the same shall be inquired of according to the custom of the court.

Code, s 1200; 1887, c. 53; R. C., c. 35, s. 33; 33 Edw. I., c. 4; 1827, c. 10; 1907, c. 415.

[NOTE.-The two challenges allowed the state for each defendant does not apply to indictments found prior to February 26, 1907. Laws 1907, c. 415.]

Sec. 121 (3265). Jurors on special venire subject to challenge as tales jurors.

In the trial of all criminal cases, where a special venire shall be ordered, the same causes of challenge to the jurors summoned on the special venire shall be allowed as exist to tales jurors.

1887, c. 53.

In addition to the peremptory challenges there are also the following challenges for cause:

CHALLENGES TO THE ORIGINAL PANEL:

1. Formed and expressed an opinion. Efler, 85-585. Potts, 100-457. Collins, 70-241. Green, 95-611.

2. Taxes for preceding year not paid. (The Revisal, 1905, section 1957.) 3. Suit pending and at issue.

(The Revisal, 1905, section 1960.)
(The Revisal, 1905, section 1957.)
(The Revisal, 1905, section 1957.)
Potts, 100-457. Shaw, 25 (3 Ired.),

4. Moral character not good. 5. Want of sufficient intelligence. 6. Relationship within ninth degree. 532. Perry, 44 (Busb.), 330.

7. Prejudice. McAfee, 64-339. CHALLENGES TO A SPECIAL VENIRE:

1. Formed and expressed an opinion.
2. Taxes for preceding year not paid.
3. Suit pending and at issue.

4. Served on jury within two years.
5. Freeholder within the county.

6. Moral character not good.

7. Want of sufficient intelligence.

8. Relationship within ninth degree. 9. Any prejudice.

(The Revisal, 1905, section 1967.) (The Revisal, 1905, section 1967.)

It is essential to the purity of trial by jury that every juror shall be free from bias, and if the juror's mind has been poisoned by prejudice of any kind, whether resulting from reason or passion, he is unfit to sit on a jury. Any fact or circumstance may be given in evidence, tending to establish bias, prejudice, or partiality on either side. McAfee, 64–339.

5. Want of sufficint intelligence. (The Revisal, 1905, section 1957.)