16. When matters of fact, proper for the jury are passed upon by the court, and withdrawn from the jury in the instructions given-it is error. Matthews v. Turner, 2 S. & P. 239.

17. In an indictment for negro stealing, under the statute, it is no cause of challenge to the array, that the sheriff who assisted in summoning the origiginal venire, was one of the owners of the slaves, alledged to have been stolen, and that he assisted in drawing the jury.

ས

Prince v. State, 3 S. & P. 253. 18. If a party elects the determination of the jury upon an issue, properly belonging to the court, he will not be permitted afterwards to take advantage of that matter in error.

Judge Limestone county court v. French, 3 S. & P. 263. 19. The statute 1831, prescribing the mode of selecting jurors in capitał cases, embraces within its provisions only the two grounds-opinion formed and expressed from a knowledge of facts, and upon rumor. But this statute does not embrace the whole ground of challenge, on account of ceived and expressed opinions. Queensberry v. State, 3 S & P 308.

precon

20. An opinion formed by a juror, upon facts not personally known but well authenticated by witnesses or others in whom he placed confidence, would not be included in the term rumor, as used in the statute; as, when the information was derived from one in whom the juror had confidence, and who received his intelligence from a witness. Ibid.

21. The discharge of a jury, charged with a capital case, on account of the illness of the judge, does not release the accused from a trial before a second jury. Nugent v. State, 4 S. & P. 72.

22. When a cause has been tried by an impartial jury, although the judge, on the application of the plaintiff and against the consent of the defendant, may have rejected a juror for cause, somewhat questionable as to its sufficiency, such rejection of the juror, is not matter available in error.

Tatum v. Young, 1 P. 298.

23. The submission of a legal question to the determination of a jury is Pistole v. Street, adm'tx, 5 P. 64.

error.

24. The statute 1826, which requires courts, when juries have not been drawn and summoned as directed by law, to empannel a jury instanter, gives no authority to a court to summon persons from whom a grand jury may be drawn, and the exception may well be taken by plea in abatement.

State v. Williams, 5 P. 130. 25. The statute 1836, in relation to grand jurors, repeals so much of the law previously enacted as related to the selection of grand jurors by the clerk and sheriff under statute 1811.

Ibid.

26. A sheriff, since the passage of the statute 1836, has no authority to summon grand jurors, except they have been selected by the clerk and himself, as directed by that statute; and a grand jury summoned in any other manner, has no authority to find a verdict, and such objection may well be taken advantage of by plea in abatement.

Ibid.

27. The jury, and not the court are to weigh evidence tending to prove a fact in issue, and to determine what facts are proved by the testimony. Mundine v. Gold, 5 P. 215. 28. The question as to whether a grand jury has been drawn, summoned and empannelled, according to law, can only be considered under a plea in abatement. State v. Middleton, 5 P. 484. į State v. Greenwood, 5 P. 474.

29. And this exception can be taken advantage of after indictment found and accepted by the court, (the case of Boyington v. State, 2 P. 100-overruled.) State v. Middleton, 5 P. 484.

30. In this State it is essential to the competency of a grand juror, that he should be a freeholder or householder when his name is returned to the clerk by the sheriff, and it would seem not to be necessary that they should continue to be householders or freeholders up to the time of being drawn to serve as such. State v. Legon, 7 P. 167.

31. All the acts of this State in relation to juries are to be construed in pari materia, as forming part of one entire system. Ibid.

32. A plea in abatement to the competency of a grand juror who found the bill, may properly conclude with a prayer of judgment that the indictment be quashed. Ibid.

33. The law does not presume that the grand jurors returned by the sheriff, as by law required, are qualified to serve to wit: that they are freeholders or householders, nor is the list returned by the sheriff, evidence that they are qualified according to law. State v. Legon, 7 P. 167.

34. It is good cause of challenge to a juror, that he has formed and expressed an opinion of the innocence or guilt of a prisoner from conversations held with jurors who had previously been charged with the trial of the prisoner; and it seems that if such challenge is refused, it may be spread upon the record. Ned, a slave, v. State, 7 P. 187.

35. The discharge of a jury for no better cause than that the jury was not agreed, is irregular and unwarranted, and in a capital case will be equivalent to an acquittal. Ibid.

36. The objection to a venire that it contains only the initial of the christian names of several of the grand jurors, furnishes no cause for arresting the judgment, for if there is a mistake, and one not drawn is summoned, defendant may plead it in abatement. State v. Stedman, 7 P. 495.

37. Admitting that a venire facias is within the statute 1819, which requires the day on which proof issued to be marked on the back-this is but directory, and the omission would not be fatal to the writ. Ibid.

38. Where the record shows that issue was tried by a "jury of good and lawful men," after verdict the court will presume there were twelve jurors, though only eleven names are set forth; the parties being in court, and no objection being made at the trial. Foote v. Lawrence, 1 S. 483.

39. The whole record and proceedings in a cause are before a jury trying the issues and they may examine any part, though not read on the trial. Collier v. State, 2 S. 388.

40. It is the province of the jury to determine if the evidence establishes Clifton v. Grayson, 2 S. 412.

the facts charged.

See Forcible Entry and Detainer.

JUSTICE OF THE PEACE.

Statute 1819.

1. In cases of appeal, the court before whom the same shall be brought, shall proceed to try the cause according to its justice and equity, without regard to defect in warrant, capias, summons, or other proceeding of said justice. Perry v. Brown, A. R. 57. demand, circuit court cannot Martin v. Price, A. R. €8. ascertaining the sum sued for, judgBevin v. Goodman, A.R.90.

2. On appeal from justice on unliquidated render final judgment by default.

3. On appeal from justice on writing ment by default is final.

4. Proceedings before justices of the peace are not records, except on writ of forcible entry and detainer, and their irregularities must be shewn by bill of exceptions, or something in the nature thereof.

Gayle v. Turner, A. R. 204. 5. On trial before justice, defendant may set off a debt exceeding $50. Bowman v. Gary, A. R. 326.

6. On appeal from justice's judgment, the appeal and appeal bond become matters of record, so far as they are necessary to bring the case into court to which the appeal is taken; and that such court, if it appear that the said cause has not been properly brought into it, should entertain a motion to dismiss, either before or after verdict. Rhodes v. Sneed, A. R. 404. Į Gayle v. Turner, A. R. 204.

7. Plea that the matter in controversy has been determined by the judgment of a justice of the peace, is not good unless it show conclusively that the trial before the justice was on its merits. Pace v. Dossey, 1 S. 20. 8. The statute 1807, enacting that no freeholder shall be sued out of the county of his residence, extends to suits before justices.

Read v. Coker, 1 S. 22.

9. Jurisdiction in cases of forcible entry and detainer, constitutional. Ward v. Lewis, 1 S. 26.

10. By statute, justices have jurisdiction of all demands in form ex contractu; therefore they have jurisdiction for the recovery of the value of specific articles, bailed and not redelivered according to promise.

Spann v. Boyd, 2 S. 480. 11. When more than $50 is due on a contract, the plaintiff may sue before justiec by relinquishing all over said sum.

King v. Dougherty, 2 S. 487.

12. A justice of the peace may give judgment in debt for penalty of $20, under the act of 1811, for marking the hogs of another without his consent, and it is no objection to his jurisdiction that his court is not provided with a jury, the offence being merely penal, and not criminal.

Reagh v. Spann, 3 S. 100. 13. When an execution is issued by a justice, and levied on real property, and is claimed by a third person, the justice cannot award a venire facias to try this right of property. McDaniel v. Moody, 3 S. 314.

14. A proceeding by garnishment is a suit, and a justice cannot render judgment therein against garnishee for a sum beyond his jurisdiction, and where judgment is rendered for more, it is void, and the court to which the case is removed cannot take cognizance thereof for want of jurisdiction.

Witherspoon v. Barber, 3 S. 335.

15. A justice of the peace who receives money in his official capacity,

cannot lawfully retain it in satisfaction of a debt due him individually. Prewett ux. v. Johnson & Marsh, 1 S. & P. 17. 16. The authority of justices to administer the oath required in affidavits for bail in civil cases, is not limited to cases within their jurisdiction, but extends to all cases where bail is authorized.

Wycloff, Pickens & Co. v. Taylor, 2 S. & P. 105. 17. The balance of an open account originally for more than $50, but reduced below that amount by credits, is recoverable in a justice's court. Baird v. Nichols, 2 P. 186. 18. Open accounts do not necessarily draw interest, and if they do, it is in the power of plaintiff to release the same, and thus bring his claim below the sum of twenty dollars; and so prove the demand by his own oath. Murfs v. Harding, 6 P. 121. 19. When a justice entered a judgment as follows: "judgment against plaintiff for costs," and signed the same, it is not void for want of form, but is to be understood as a judgment of non-suit against plaintiff for not appearing to prosecute his suit. Wyatt, et al. v. Judge, et al. 7 P. 37. 20. When the merits of a case are not considered by justice, he mediately issue forth process, and proceed to final judgment. 21. When the decision is not final, no appeal will lie. 22. It is competent for a party sued before justice of the peace to prove his set off by his own testimony if it does not exceed $20; but after a judgment he cannot pay off the amount over $20, and then appeal and claim the benefit of his own oath to swear off the balance.

may im

Ibid.

Ibid.

Thompson v. Jones, 2 S. & P. 46. 23. A justice's warrant may be proved by its production and his oath. Scott v. McCrary, 1 S. 315. 24. And the proceedings of two justices may be proved by their production, and the oath of one only. Ibid.

25. The holder of a note payable in a sum exceeding fifty dollars, has the right (without the makers consent) to credit it with an amount, by which it can be reduced within the jurisdiction of a justice of the peace, and sued before the latter. Nibbs v. Moody, 5 S. & P. 198.

26. Cases carried from the justice's courts into the circuit or county courts hy certiorari or appeal, are triable de novo on their merits and equity; and a payment made, after the rendition of a judgment by a magistrate, is available without a special plea puis darrien, continuance.

Hagan v. Thompson, 2 P. 48.

27. The complaint of a party, in a proceeding before a justice, for forcible entry and detainer, need not specify the land by statutory demarkations of section township and range, any description by metes and bounds and objects of notoriety in the neighborhood, is sufficient.

Mead v. Daniel, 2 P. 86. 28. In such proceeding, the law does not require the justice to record and certify all the evidence before him. It is only necessary to record and certify such as is admitted after objection, or rejected when offered. Ibid.

29. An unexpired term of years, is a sufficient estate to support this proceeding. Ibid,

court.

30. The balance of an open account (originally for more than fifty dollars but reduced below that amount by credit) is recoverable before a justice's Baird v. Nichols, 2 P. 186. 31. In proceedings before justice's of the peace, in cases of forcible entry and detainer, a party is entitled to the peremptory challenge of a juror, as in civil cases, in the circuit or county courts.

Johnson & Wash v. Christian & Goyne, 2 P. 201. 32. Whether in a proceeding before a justice of the peace for forcible

entry and detainer, the justice has the discretionary power of granting a new trial on merits-quere. Barr v. White, 2 P. 342.

33. Where, after a judgment for defendant on unlawful detainer, a justice (after three days consideration) granted a new trial to plaintiff, and gave a new judgment without notice to defendant. Held to be error. Ibid.

34. A plea to an action of debt on a judgment to the justice of the peace, in another State, that the plaintiff and defendant were citizens of this State, when the judgment was rendered by the justice, (the cause of action being ex contractu)-is bad.

McGee & Richardson v. Sheffield, 3 S. & P. 351. 35. Sworn copies of the proceedings in a suit, had before a justice of the peace in another State (proved by the evidence of such justice taken in compliance with the statute of this State) in the absence of proof that such State has provided by law a certain mode of proof in relation to such proceedings, are admissible as testimony. Ibid.

36. This State will not presume that justices' courts in a sister State, are courts of record. Ibid. 37. Semble-in a suit brought to recover the amount of a judgment rendered by a justice of the peace in another State; parol proof is admissible to show that the individual purporting to have rendered the judgment, was a justice of the peace. .Ibid.

38. On certiorari, bringing up to the circuit or county court, the judgment of a justice of the peace, no matter can be cosidered subsequent to such judgment. Bobo & Johnson v. Thompson, 3 S. & P. 385. 39. Certiorari is not grantable to determine a question on the payment of an execution. Ibid, 40. A justice of the peace, who is witness in a cause, may be asked whether he has had any particular case before him, but may not speak of the papers connected with the suit unless they are produced.

Kennedy v. Dear, 6 P. 90. 41. The usual and ordinary mode of proving the official character of a justice of the peace, who is a witness in a cause, is by his own oath; and this is the usual mode in all cases, except in suits against himself.

Ibid.

42. Proceedings in forcible entry and detainer, before a justice and others of a similar character, when removed by certiorari from the justice to the circuit court, are to be tried upon the transcript sent up, and not by an invesgation of the matters of fact. Perryman v. Burgster, 6 P. 99.

43. Transcripts, in such cases, cannot be amended in the circuit court, upon motion sustained by affidavits, shewing the neglect of the justice to record fully, the matters occurring on the trial

Ibid

44. When a justice has omitted to perfect a record, the correct practice is, to move for a rule on him, to make certain amendments shewn to be material, and if he fails, then to show cause, and if the cause shewn be insufficient a mandamus should be awarded,

Ibid.

45. A paper purporting to be a transcript, as a return to a certiorari should not be received unless it be certified by the justice and returned with the writ. Ibid.

46. It is no available objection, on a case of forcible entry and detainer brought up from a justice by certiorari, that the process was issued by one justice, and the case tried by another. Their powers are co-extensive.

Ibid.

47. Appeals to the circuit court from the judgment of a justice of the pcace, are to be tried de novo. Murfs, v. Harding et al. 6 P. 121.

See Forcible Entry and Detainer-Appeals-Evidence-ExecutionJudgment-Free Persons of Color-Jurisdiction.