6. Where a plea to the jurisdiction is triable by the record, a judgment for the plaintiff is not peremptory, but respondeat ouster. Ocean, &c. v. Portsmouth, &c. 3 Met. 420. 7. The judgment of a foreign court, in a process of foreign attachment, is conclusive as to all matters of right and title to property within its jurisdiction, decided by such court. - Barrow v. West, xxiii. 270. 8. A judgment in the trustee process in this state against an inhabitant of the state, who is indebted to a corporation in another state, will protect the trustee against a suit brought in that state by the corporation for the debt. Ocean, &c. v. Portsmouth, &c. 3 Met. 420. Jurisdiction. 1. Persons residing on lands, purchased by or ceded to the United States, for navy yards, forts and arsenals, and where the only reservation of jurisdiction to the state is that of the right to serve process thereupon, are not entitled to send their children to the common schools of the town where the lands lie; nor liable to taxation in such town; nor by such residence do they gain a settlement, or any elective franchise, in the town. 1 Met. 580. 2. By St. 1800, c. 26, giving the consent of the Commonwealth to the purchase by the United States of a tract in Charlestown for a navy-yard, it was provided that the state should retain concurrent jurisdiction over it, so far as that all civil processes, and such criminal processes as might issue under the authority of the Commonwealth, against those charged with the commission of crimes without such tract, might be executed therein. St. 1822, c. 103, required vessels employed in transporting stone within this Commonwealth, to be weighed and marked. Held, in the case of a vessel, used for transporting stone from Maine to the navy-yard, but not weighed or marked, no penalty was incurred by thus using her, because the transportation was not within this Commonwealth according to the intent of the act, and because no offence was committed within the jurisdiction of the Commonwealth. — Mitchell v. Tibbetts, xvii. 298. 3. St. 1812, c. 133, gave to the Municipal Court jurisdiction, concurrent with the Supreme Court, of all offences not capital. Held, the former court was thus empowered to sentence, in the same way that the latter might sentence, persons convicted of such offences. Hopkins v. Commonwealth, 3 Met. 460. 4. By St. 1840, c. 87, the Supreme Court has original and exclusive jurisdiction of all writs of entry, except for the foreclosure of mortgages. Held, this exception applies to a suit for foreclosure of a mortgage, though the mortgage is not referred to in the declaration. Ingalls v. Richardson, 3 Met. 340. 5. Trespass, for taking and carrying away the plaintiff's "small fish-house or camp," and burning up and destroying his "wooden camp or small house," upon an island in another state. The evidence showed that the injury was done to a building, without a cellar, about nineteen feet square, used by the plaintiff and his men as a dwelling, in the spring, while catching salmon. Held, the burden was on the defendant to show want of jurisdiction in the court, on the ground that the action was local; and that neither the declaration nor the evidence showed the property injured to be real estate. Rogers v. Woodbury, xv. 156. 6. A warrant from the county commissioners to a sheriff, for the impannelling of a jury to assess the damages to a land-owner, arising from the location of a canal across his land, was made returnable to the Court of Common Pleas, and was accordingly returned, with the verdict, to that court, which thereupon ordered the warrant and verdict to be transmitted to the county commissioners, on the ground that the warrant should have been returnable to the commissioners. Held, the return of the warrant was of the substance of the proceeding; that, if the warrant should have been returnable to the commissioners, the error was not cured by the order of the Court of Common Pleas ; and that the county commissioners had no jurisdiction over the warrant and verdict. Hampshire, &c. v. Ashley, xv. 496. Jury. 1. A member of the legislature will be excused from serving as a juror, while the legislature is in session. Commonwealth v. Walton, xvii. 403. - 2. St. 1812, c. 141, § 2, exempted "settled ministers of the gospel" from serving as jurors. Held, the act applied to a minister of the Methodist Episcopal Church, who belonged to the local connexion, and was therefore bound to preach, when called upon, to churches within a convenient distance from his residence. -Commonwealth v. Buzzell, xvi. 153. 3. Attornies at law, though retired from practice, are exempted from serving as jurors. Ex parte Swett, xx. 1. 4. The Revised Statutes, c. 95, § 2, do not absolutely disqual ify persons more than sixty-five years of age from serving as jurors, but only at their own election, and with the right of parties to object to them on that ground, when the jury are impannelled. Hence, a verdict will not be set aside because a juror was more than sixty-five years old, and the fact was not known to the party excepting till after a verdict was rendered. - Munroe v. Brigham, xix. 368. 5. If a legal objection to a juror is known to a party when the jury is impannelled, but not then suggested, it is held to be waived, and is no ground of exception to the verdict. Hallock v. County, &c. 2 Met. 558. 6. Where a juror, upon voir dire, disclaims all prejudice between the parties, in general, this answer is decisive, and other evidence will not be received. Otherwise, for the purpose of proving a cause of challenge, which may be unknown to the juror himself. - Commonwealth v. Wade, xvii. 396. 7. Where a cause is to be tried upon the testimony of witnesses of a particular religious faith, it is not proper to inquire of one summoned as a juror, in order to determine his fitness for the office, whether he would believe this class of witnesses upon their oath. Commonwealth v. Buzzell, xvi. 153. 8. Indictment for burglary and arson in destroying a convent, an act done by a large number of persons. Held, a juror might be asked, whether he had expressed or formed an opinion as to the general guilt or innocence of all concerned, because, if he considered the act as no crime, this would be a prejudice in the cause. Ibid. 9. But not whether he thinks the crime charged ought not to be punishable, or to be differently punished. Ibid. 10. Action for double damages, on account of an injury sustained through a defect in the highway. Held, the testimony of jurors was not admissible, to prove that the damages were doubled in the verdict. Hannum v. Belchertown, xix. 311. Justice of the Peace. 1. In trespass before a justice, if the defendant file a plea of title to real estate, the jurisdiction of the magistrate is taken away, though the defendant afterwards plead over, and an issue be joined which does not involve this question. Kelley v. Taylor, xvii. 218. 2. Trespass before a justice of the peace for taking and carrying away a cow. Plea, that defendant was owner of a close, that the cow broke into it, and he thereupon impounded her. Replication, that defendant injured the cow, and an issue thereupon, which was tried. The case being appealed, the Court of Common Pleas allowed an amendment, putting in issue the title to the close. Held, the allowance of such amendment was erroneous. Ibid. 3. Upon appeal from a justice of the peace, the defendant, under Revised Statutes, c. 85, cannot set up a title to real estate, unless either the pleadings, or some statement upon the justice's record, show, that such title was concerned or brought in question before him. Hunt v. Wilson, 1 Met. 309. 4. Where an action of trespass qu. claus., commenced before a justice, is removed to the Court of Common Pleas upon a plea of title; that court cannot allow a new assignment, or any alteration of the pleadings, which will change the nature of the issue. Magoun v. Lapham, xix. 419. 5. By the filing of such plea, the justice is not wholly divested of his jurisdiction, but may still act upon a motion to waive or amend the plea, to amend the declaration or new assign; and, unless the question of title arises upon the pleadings, as ultimately settled, he must proceed to a trial. — Ibid. 6. Such action having been removed, upon the plea of title, to the Court of Common Pleas, the plaintiff newly assigned, the defendant pleaded title to the new assignment, together with the general issue, the case was tried, and a verdict rendered for the plaintiff. Held, the new assignment and the subsequent proceedings should be set aside, and that there should be a repleader. — Ibid. 7. Statutes 1797, c. 50, and 1828, c. 114, requiring a continuance of actions against absent defendants, do not apply to suits before justices of the peace. - Gay v. Richardson, xviii. 417. 8. The justice's court for the county of Suffolk has exclusive jurisdiction of a complaint against a member of a militia company in Chelsea. Such complaint cannot be brought before a justice of the peace. Belcher v. Johnson, 1 Met. 148. Larceny. 1. An indictment may, without duplicity, charge in one count the breaking and entering a dwelling-house with intent to steal, and actually stealing therefrom.-Commonwealth v. Hope, xxii. 1. 2. The judgment in such case, upon a general verdict, for an offence committed in the day-time, must be for house-breaking, and not a distinct sentence for larceny. Ibid. 3. The larceny included in such conviction cannot make one of the "three distinct larcenies," which authorize a judgment against the prisoner, that he is a common and notorious thief, under Revised Statutes, c. 126, § 19. Hence, where one was convicted at the same term of the Municipal Court in Boston of three such combined offences, from neither of which, by itself, he had any right of appeal, and upon the three together he was erroneously sentenced to imprisonment for more than five years, as a common and notorious thief; held, no appeal would lie from such sentence. Ibid. 4. This provision, under which one may be adjudged a common and notorious thief, applies to aggravated as well as simple larcenies. Ibid. 5. It seems, under Revised Statutes, c. 126, larceny in a shop, &c., in the night, and the breaking and entering of a shop, &c., in the night, with intent to steal, &c., are punishable, though such building be "adjoining to or occupied with a dwelling-house." Devoe v. Commonwealth, 3 Met. 316. 6. Where an indictment, for stealing in a shop or warehouse property worth less than $100, does not allege that it was done in the day-time; the offence can be punished only as a simple larceny. Haggett v. Commonwealth, 3 Met. 457. 7. Under a warrant in the usual form on a complaint for larceny, the officer may break and enter the defendant's shop, and seize the article alleged to be stolen.- Banks v. Farwell, xxi. 156. Lease. A. What constitutes a lease; and the construction and effect thereof. B. Assignment or transfer by landlord or tenant. C. Tenancies at will and at sufferance. D. Actions between landlord and tenant, and by them against strangers; evidence therein and defences thereto. |