Index to Ninth Volume. scribed by the act of 1828, (Thomp. Digest, 225,) but such appointment only gives "power over the child," and not over the property of the minor. 2. Under the statute of 12 Charles 2d c. 26, sections 8 and 9, fathers were authorized to appoint guardians for their children, who should have power over the person of the child, and the custody and management of the estate of the minor; but our statute of 1828, is inconsistent with the statute of Charles, and restrains the custody, care and management of the guardian appointed by deed or will to the person of the child. 3. A person appointed guardian by deed or will of the father, may be guardian both of the person and estate of the minor, but as guardian of the person, he derives his appointment from the father, and of the property by authority from the court authorized to grant it. 5. 4. An infant may, by his prochein ami, call his guardian to an account. A Court of Chancery will permit a stranger to come in and complain of the guardian, and abuse of the infant's estate. 6. The statute authorizing the father to appoint a guardian of his child, does not contemplate their giving a bond. 7. If a person appointed guardian, pursuant to our statute, abuses the trust, by doing anything prejudicial either to the person of the infant or his estate, the Court of Chancery, where the Probate Court refuses or neglects so to do, may, upon proper application, either remove him and appoint another guardian, or else impose such terms on him, by obliging him to give security, &c., as will effectually hinder him from doing anything prejudicial to the infant. Thomas et al. vs. Williams and Wife, 289. INDICTMENT 1. As a general rule when an indictment is defective on demurrer, advantage may also be taken of the defect on motion in arrest of judgment. Murray a Slave vs. The State, 246. 2. Where all the counts in the indictment are good, and the jury return a general verdict of guilty, it is the true practice of the court, if the evidence and law warrants the conviction, to pass judgment on the count charging the highest grade of offence. But where the grades of offence in each count are equal, and there are good and bad counts in the indictment, the practice is to pass judgment on all the good counts, provided the conviction is warranted by the law and evidence applicable to the offence charged in that count Cribb vs. The State, 409. Index to Ninth Volume. 3. An indictment will not be quashed except for something appearing in the indictment itself. Broward vs. The State, 422. 4. An indictment under the act in relation to trading with slaves, approved January 24, 1851, which charges the defendant with buying and receiving grain from a slave, "whose name is to jurors unknown," but avers the name of the owner of the slave and charges the offence to have been committed on a day certain; held sufficient, without giving the name of the slave. Harrison vs. The State, 156. INJUNCTION 1. On the application for an injunction, a Chancellor may go into the consideration of the merits as disclosed in the bill, and which are intrinsic and dependent upon its express allegations and charges. 2. On a motion for an injunction, the court will not commit itself to points or questions that may arise at the final hearing. JUDGMENT 1. Relief will be granted in equity against a judgment at law when the defence could not at the time, or under the circumstances, be made available at law, without any laches of the party. 2. So if a fact material to the merits should be discovered after a trial, which could not, by ordinary diligence, have been discovered before, the like relief will be granted. Baltzell & Chapman vs. Randolph, 366. JURY (See Grand Jury.) 1. It is not indispensable that the jury, in a capital case, should be committed to the charge of a bailiff specially sworn for the occasion. It is sufficient if they be put in charge of the Sheriff, or his deputy, who has taken the oath of office. 2. The "bill of exceptions" is a privilege accorded to a party to cause that to be made a matter of record which would not otherwise appear in the history of the trial; he must therefore incorporate in his bill whatever fact he may desire to rely upon as a matter of error. Unless so incorporated, the Supreme Court will not assume its existence,nor will it be induced to enter the field of mere conjecture. Cato a slave vs. The State, 163. 3. A venire man stated on his voir dire that he had formed an opinion as to the guilt or innocence of the prisoner, but that such opinion was based on mere rumor; that he had not heard the witnesses or any one speak of the matter by detailing any of the facts or circumstances connected with the killing as of their own knowledge; that it would require evidence to remove the opinion Index to Ninth Volume. so formed upon rumor, but that if taken upon the jury, he could readily and without hesitation find a verdict according to the evidence, although that verdict might be contrary to the opinion so formed on rumor.Held, that said juror was competent. 4. A venire man stated on his voir dire, that "he, as Coroner of the county,held the inquest on the body of the person for whose killing the prisoner is on trial; that he heard all the evidence that was then before him, but that he had not formed or expressed an opinion as to the guilt or innocence of the prisoner at the bar." The record did not show what evidence was "then before him," or that there was any whatever pointing to the prisoner as the person who had committed the killing. Held, that said venire man was competent to be sworn in chief as a juror. 5. A venire man stated on his voir dire that he is related by blood to the prisoner; thinks he is not so near related as second cousin, but that he may be third cousin : Held, that he was not competent to be sworn as a juror. 6. "There is no provision whatever in our law for issuing a special venire facias." "When by reason of challenges or otherwise a sufficient number of jurors duly drawn and summoned cannot be obtained for the trial of any cause, civil or criminal, or for the execution of a writ of enquiry, the court shall cause jurors to be summoned from the bystanders, or from the county at large, to complete the panel." These jurors need not be regularly drawn from the box, like the members of the regular panel, but they must have the same qualifications as those presented for the regular panel, that is to say, they must be free white male citizens of the United States, who are householders and inhabitants and residents of the State and county,above twentyone years and under sixty years of age. In practice it is not error for the court to anticipate that the regular panel will be exhausted, and therefore in advance to order the Sheriff to summon any reasonable number of competent jurors to be present, so that they may be in readiness to be taken on the happening of the anticipated contingency. 7. The prisoner demanded that each juror, as he was tendered by the State and accepted by him, should be sworn in chief, which the court overruled, and each juror as he was tendered and accepted, was ordered into the box and kept under the eye of the court until the whole twelve were chosen, and thereupon the court ordered them to be sworn in chief, three at a time. Held, that this was not error. It is not error for the court to refuse to cause Index to Ninth Volume. the jurors to be tendered to the prisoner again separately after he has once accepted them, but it is the right of the prisoner to retract his acceptance and object to a juror at any time before he is sworn in chief. 8. It is not error for the court to refuse to have the jury sworn "to find a verdict according to the law as well as the evidence in the case." The usual and proper form of oath is this "You shall well and truly try and true deliverance make between the State of Florida and the prisoner at the bar, whom you shall have in charge and a true verdict give according to the evidence." 9. The verdict of the jury must be recorded before they are discharged. The jury having returned into court and having answered to their names, the court asked them if they had agreed on their verdict; they answered they had, and handed the court the indictment, on the back of which was written : "We, the jury, find the prisoner guilty. CHARLES PRATT, Foreman." The court then said, "do you all say that the prisoner is guilty?" to which the jury assented; thereupon, on motion of the prisoner, the jury was polled, and each juror answered guilty. Thereupon the court discharged the jury. Held, that this verdict was recorded within the meaning of the law. O'Connor vs. The State, 215. LIMITATIONS, STATUTE OF 1. Section 11 of our Limitation Act, November 10, 1828, has no reference to defendants who reside out of the State of Florida, when the cause of action accrued. Haviland, Clark & Co. vs. R. B. Hargis, 15. "MARRIED WOMAN'S LAW" 1. The fourth section of the Act of 1845, known as the "Married Woman's Law," is not in conflict with the proviso contained in the Act of 1835, which requires the private examination of the wife, when about to convey her separate real estate; and to be valid against her, the deed must be executed conformably to the requirements of that proviso. 2. Where in such case there was a private examination, but the written acknowledgment of the execution of the deed stated that it was done with "the intent of relinquishing her right of dower," these words will be rejected as surplusage, and the deed be held to be properly executed. Hartley vs. Ferrell, 374. MASTER'S REPORT 1. As a general rule, wherever exceptions will lie to the Master's report, it must be regularly confirmed before any order can be made upon it. Index to Ninth Volume. 2. A decree directing a reference to a Master, for the purpose of ascertaining any material fact in the case, is not a final decree. Griffin vs. Ormand, 22. NATURALIZATION— 1. Under the naturalization act of Congress of 1802, the infant children of aliens, though born out of the United States, if dwelling within the United States at the time of the naturalization of their parents, become citizens by such naturalization, and the provisons of that act on this subject are prospective, so as to embrace the children of aliens naturalized after the passage of the act as well as the children of those who were naturalized. O'Connor vs. The State, 217. NEW TRIAL 1. It is not error to refuse a new trial for the purpose of enabling a party to procure testimony to impeach a witness. Judge vs. Moore, 260. NOTE (See Promissory Note.) 1. An Executor or Administrator under the proviso of the 24th section of the Act regulating judicial proceedings, approved Nov. 23, 1828, may deny the signature of his testator or intestate to any bond, note, or other instrument purporting to have been signed by him, and also plead a failure or want of consideration by plea put in without being sworn to, and after the cause is called on the appearance docket, on giving reasonable notice, and the effect of such plea will be the same as at common law, that is, to require the plaintiff to prove the signature and the defendant to prove the want or failure of consideration. 2. If the Executor or Administrator desires to throw the onus of proving the consideration on the plaintiff, he must put in his pleas under oath, before the cause is called on the appearance docket. Knight vs. Knight, 283. NOTICE 1. There is no particular form necessary for the notice directed to be given in the statute of non-claim. It should, however, be so full and ample in its terms as to make it a warning to those having demands against the estate. Amos vs. Campbell, 189. 2. In an action by a Railroad Company against one of its Stockholders to recover the amount of certain assessments or calls upon his shares of stock, notice of such assessments or calls must be averred in the declaration and proved at the trial. 3. A notice published in a newspaper, calling upon the Stockholders generally to pay up such calls, is not sufficient proof of notice, unless it be so provided by the charter or by-laws of the Company. Alabama & Florida Railway Co. vs. Rowley, 508. |