Volume 4 — Mississippi Reports

<p>Where more than a year and a day has elapsed after rendition of a judgment, and no steps have been taken to enforce it, the judgment must be revived by scire facias; and an execution issued after the lapse of that period, without a revival of the judgment by scire facias, is irregular, and will be quashed on motion.</p> <p>Judgments on forfeited forthcoming bonds are regarded in the same light as judgments obtained in the ordinary mode of proceeding.</p>

<p>It will be presumed, that the court, entrusted with’ the duty of empannelling grand jurors, selected good and lawful men. The party may destroy this presumption by challenge and proof before the trial; but the question cannot be afterwards raised in another court.</p> <p>The record must show that the grand jurors were sworn. ’</p> <p>If the record show that one of the grand jury was sworn as foreman, it will be evidence of his appointment as such.</p> <p>It was held good ground for a new trial that one of the jurors, after he was summoned and before trial, declared that should he be of the jury, he did not think he could clear the accused, but would be bound to find him guilty.</p> <p>The indictment will be bad, unless the name of the prosecutor is endorsed thereon.</p>

This cause was tried at the May term of said court, 1837. The defendant filed a plea in abatement, alleging that the writ was not signed by the clerk of the court, in his own hand, nor by any other person authorised by law to sign the same. The plea was rejected by the court, which opinion is assigned for error.

<p>ERROR to the circuit court of Hinds county.</p>

<p>If the sheriff return a process endorsed with the word “ Executed,” to which he has signed his name, the court cannot question the legality of the service; but if the means of service are set forth, the court will judge of its legality.</p> <p>A return on a writ of “ executed by leaving a copy at the boarding house of the defendant,” is insufficient.</p>

<p>Where there is no husband or wife, the next of kin is entitled to the administration of the estate of the deceased, unless under twenty-one years of age, of unsound mind, incapable, according to law, of making a contract, or a convict of some crime rendering him infamous.</p> <p>A judge cannot give judgment upon his private knowledge, but must render it according to law and evidence.</p> <p>Where the judge of probate refused administration of an estate to the next of kin, on the ground of mania a potu, as a fact within the knowledge of the court: Held, to be irregular. The judge must be sworn as a witness as to facts within his own knowledge.</p>

<p>MOTION to dismiss.</p>

<p>The sheriff made affidavit that he had served the citation on the attorney of records, for defendant in error to appear at the December term of said court, but had made diligent search for the citation and could not find it. It also appeared that fifteen days had elapsed since the plaintiff in error was bound to know that his citation had not been served, and no steps taken for an alias citation: Held, that the cause must be dismissed for laches of plaintiff in not applying for an alias citation.</p>

<p>A judgment by default on the special count, without a discontinuance on the money counts, is not error.</p> <p>The account required by the statute to be filed with the declaration of the plaintiff, must state distinctly the several items ' of his claim against the defendant.</p> <p>A general statement of account filed with the count for money loaned, “ that the defendant was before a particular day mentioned in the count, indebted to the plaintiff in 8000 dollars, for money before that time loaned,” is not such -an account as the statute requires.</p>

This was a proceeding of distress for rent, instituted by attachment, originally issued by a justice of the peace of the county of Adams for the sum of 291 dollars, and 66 cents. The lessor’s bond was executed by Rulon alone, without any security. There was a replevin bond duly executed by Cornell and Noah Barlow and J. S. Tooley as securities.

<p>. The writing of an acknowledgment of service of citation upon the hack of it, by the clerk of an inferior court, is a mode of service not known to the law, and therefore void.</p>

PERKINS moved to dismiss the cause for want of a sufficient bond. The grounds of the motion are sufficiently stated in the opinion of the court.

<p>After a forthcoming bond taken and forfeited, a second execution, levy, and . bond, on the same judgment, are absolutely void.</p>

ERROR from the circuit court of Madison county. Held: that such a sale is not void at law.

THIS cause was tried at the February term of the circuit court of Adams county, 1838, before die Hon. George Coulter, and came up on appeal. The action in the court was ejectment. The record shows that one Girault obtained a judgment in the circuit court of Adams county, against one William Vannersen. That a fieri facias issued upon that judgment which was levied upon the land in question; andón the day of sale the defendant in error became the purchaser of the sheriff.

<p>The return of the sheriff must show, within itself, that the writ was executed, a sufficient number of days before the return day, to entitle the plaintiff to his judgment. A judgment by default, in absence of such showing, is irregular.</p> <p>The statute makes it the duty of the officer to mark on the process the day it is received, and the time when executed.</p>

<p>The act of the legislature of 1837, authorises the clerks of the circuit courts to issue writs of error, and, also, citations to adverse parties. The clerks of the circuit courts issue their processes under the seal of their respective courts, which practice has been approved by this court; but such processes are required to be tested and signed, as provided by the Supreme Court law.</p> <p>A citation tested as follows: “Witness the Hon. Wm. L. Sharkey, presiding judge of the High Court of Errors and Appeals of said state, and seal of the circuit court of Hinds:” Held to be regular.</p>

<p>An appeal bond as well as the security must be approved of by the court. Where the court only approved of the security and authorised the bond to be given any time within thirty days: Held, insufficient.</p> <p>Causes can be brought into this court by appeal or writ of error, but to give jurisdiction to the court, the requisitions of the law in relation to obtaining such writ or appeal must be strictly complied with.</p>

MOTION to dismiss this and other causes for want of assignment of errors, and on suggestion that the same were brought up for delay.

This cause was tried at the March term of said court, 1838, before the Hon. George Coulter. It was an action of assumpsit, on a promissory note drawn by one Smith, in favor of Neibest & Gemmel, endorsed by them, also by Lillard, by one Lyle, by Murchison & Doyal, and Jacob Soria & Co. Lillard appeared and pleaded in abatement the non-joinder of the above parties under the statute of 1837, and that they were still living in the city of Natchez.

This was an action of trespass quare clausum fregit, brought by the trustees of school lands, section 16, in township No. 1, range 4, against Carmichael, for two hundred cypress trees cut and carried away from the school lands by the slaves of the defendant below. There were two counts in the declaration, one at common law, de bonis asporiatis, and the other upon the statute of June, 1832, for the fprfeiture of 10 dollars for each tree cut and carried away.

<p>An order for a change of venue in vacation, must be under the hand and seal of the judge, to the clerk of the court in which the cause is pending, directing him to transmit the papers in the cause to the clerk of the court to which the venue is changed.</p> <p>On application for a change of venue in term time, an order of the court is necessary. The statement of the clerk, that the venue was changed, is insufficient, and will not give jurisdiction of the cause to the court to which the papers are transmitted.</p>

This was an action of assumpsit upon a promissory note, to recoVer of the plaintiff in error and others, the sum of 14,500 dollars. The plea of non-assumpsit was filed by all the defendants. There was a verdict and judgment for the defendant in error.

This was an action of ejectment. The plaintiffs below claimed under a final certificate from the United States, in favor of one Pipes, and it was admitted, that Martin was the legal assignee of said certificate. • The question involved was one of boundary between the plaintiffs on the north, who claimed according to the United States survey, and the defendants on the south, who claimed under a Spanish grant, and a survey by the Spanish authorities.

The record shows that, on the 8th day of March 1836, William Scott as the administrator of Eliza Lucretia Calvit filed his bill in the court below against Sarah Calvit, James G. Wood and David Hunt, in which amongst other matters he states that, in 1821 Thomas Calvit, under whom complainant’s intestate claims title to the estate sued for, made his last will and testament in which he made certain specific bequests, but left the greater portion of his estate undisposed of and…

<p>A contracted with B to purchase and improve lands, and it was stipulated, that if A did not see proper to buy said lands at a price to be agreed upon by the parties, then B was to pay so much for the improvements as two disinterested persons should say they were worth. The price could not be agreed on, and B refused to choose a person to value the improvements, but selected a person to survey the land. A selected another person to survey and appraise. The two persons thus appointed surveyed and valued the improvements at 584 dollars. A brought an action of assumpsit on the agreement; and B demurred to the evidence. The jury in a conditional verdict, assessed the plaintiff’s damage at 636 dollars and 14 cents. The court overruled the demurrer and gave judgment for the plaintiff in the last mentioned sum.</p> <p>By the court: B was bound to appoint a person to appraise the improvements. His acts amounted to a refusal to choose an appraiser, which authorised A to have the improvements valued. B could not defeat the contract by failing or refusing to choose a person to value. Every thing is to be taken most strongly against him on whom the obligation rests. A having done all in his power, the justice of the cause is manifestly with him, and for these reasons the judgment must he affirmed.</p>

<p>A judgment by default, writ of inquiry and verdict, without taking issue.upon, pleas pleaded, is irregular.</p> <p>The notes made by the judge on the docket are not part of the record nor evidence for any purpose, and a judgment cannot be amended by them.</p>

<p>Where a promissory note, given to secure payment of the purchase money fox land, was payable on a fixed day, and the payment was.to be made before the deed to the land was to be executed: Held, the covenants were mutual and independent, and that an action would lie on the note before conveyance made.</p>

<p>The record must show a judgment in order to give jurisdiction to the appellate' court.</p> <p>The written evidence ’relidd on in the court below, should be set out in the bill of exceptions, if tó be reviewed by the appellate court.</p>

Brown & Hawthorn obtained a judgment in July, 1837, against H. J. Childress, for 226 dollars and 47 cents and costs. A forthcoming bond was taken, and the money made by the sheriff, Demoss, the defendant in error.

■ This was an action of assumpsit tried before the Hon’. George Coulter at the May term of said court, 1838. It was founded on the promises of defendant, to pay the plaintiff for the purchase of lumber to enable the defendant to complete certain buildings of his testator, which defendant promised to pay in writing. ■ Two agreements were offered in evidence in support of the , action. 1.

This was an action of assumpsit upon three bills of exchange; drawn by J. G. Ott, at Vicksburg, in this state, on John Steady, at Livingston, also in this state, in favor of the plaintiff in error,for the sum of 1,508 dollars, 49 cents each. They were endorsed by the plaintiff, and likewise, by John Long, and accepted by Steady, payable at New Orleans.

<p>When the plaintiff takes judgment by default, for want of plea, the record must show there was no plea filed at the time of the rendition of the judgment.</p>

This was an action of debt, upon a writing obligatory, or note under seal, executed by the plaintiff in error, and made payable to Allensworth & Ewing. The defendant in error declared as assignee of Allensworth alone, and set forth an endorsement of the note to him by Allensworth, who, as the declaration avers, became the sole owner of the writing by a release to him of Ewingis entire interest in the same.

This was an action of assumpsit by the defendants in error, upon a bill of exchange.

<p>The constitution and laws of this state c.onfer upon the probate court general powers in cases of dower. These powers are not restricted by the relation of the parties to the suit. It is immaterial whether the contests for dower be between the widow and heir, or the widow and a stranger. The jurisdiction of the court is founded on the claim of the widow, and she will be decreed dower against all the world, if found entitled thereto.</p> <p>Where a party contests the claim on the merits in the court below, he will not be permitted to insist on proof of the marriage in the appellate court. The administrator will not be permitted to give parol evidence of the sale of the land of the estate by himself. The deed must be produced, or its absence accounted for.</p> <p>Where an order for publication was made by the probate court, on the filing of a petition for dower, it will be presumed, in the absence of any evidence , to the contrary, that the publication was made.</p> <p>/Proof of the seisin of the husband during coverture, is sufficient to entitle the widow to dower, as against all the world, except those who may have the title paramount, for it is a well settled rule, that the seisin of the husband, even for a moment, will entitle the wife to dower against strangers, and those claiming under him, although his seisin be tortious.</p> <p>Those who claim under the husband cannot "set up an outstanding title.</p> <p>After a deed has been read and admitted on the trial below, its authenticity cannot be called in question in the appellate court. The objection will be considered as waived.</p>

<p>A motion in the circuit court, made in time, against an administrator to refund money, which has been p^id as security for the intestate, and an appearance and resistance of the motion by the administrator, is a sufficient presentation of the claim in compliance with the 115th section of the Orphans’ Court law.</p> <p>Judgment on a claim against an administrator in his representative capacity, is sufficient authentication of such claim within the meaning of the 90th section of the Orphans’ Court law.</p>

This was an action of trespass to recover the value of a mule alleged to have been killed by the defendant. The bill of exceptions, which was taken on the trial below, states that the mule had broken into the defendant’s close, that he then seized and put it into his stable, and tied it with a halter; and that in its struggles to escape, it was choked, and died. It is stated that, whilst confined, it was well watered and fed.

The action was assumpsit upon a warranty of the soundness of a negro woman Amy, sold by Tutt in his lifetime to the wife of M’Leod whilst a feme sole. Held: that if an agent sell to A, two horses belonging to B and C and warrant them, it must not be declared on as the sale of one horse only, the contract being entire. 2 Saunders on Pleading and Evidence, 913, tit. Warranty.

<p>On demurrer to the declaration, it is discretionary with the court, under the statute, to allow the plaintiff to amend and go, to trial instanier.</p> <p>The statute authorises the court to reject a demurrer whenever it shall be manifestly frivolous and intended only for delay.</p> <p>Where the judgment was for “ five hundred dollars and fourteen eents, the amount of the promissory note in said plaintiff’s declaration mentioned with costs:” Held, although the judgment is not technically formal, yet it is substantially correct.</p>

This was an action of ejectment instituted by the lessors of the plaintiff, in the circuit court of said county, for the recovery of a tract of land on the bay of Biloxi. The verdict was for the defendant, and the plaintiff sued out his writ of error.

This was an action of debt, instituted by the governor of the state, at the instance of William Stamps, who sued for the use of the West Feliciana Rail Road Company, against the appellant, as one of the sureties in the sheriff’s bond, of John Slade, sheriff of said county, for failing to pay over the proceeds of an execution, by him collected and returned satisfied.

The Grand Gulf Railroad and Banking Company filed their petition against Thompson, in the circuit court, praying for a jury to assess the damages which would be sustained by Thompson, by their railroad passing over his land, and also, to assess the land which would be taken for the purpose of making the road.

<p>The constitution gives the probate court exclusive jurisdiction, in all matters, specifically set forth in the article from which it derives its powers.</p> <p>It seems, however, if the court of probate be wholly incompetent to give relief, and the party has not, by his own laches, lost his remedy, it might be a proper case for the jurisdiction of a court of equity.</p> <p>If profits, in the possession of an administrator de bonis non, be assets, he may be compelled to account for them by the probate court; if not assets, the remedy is at law.</p> <p>Where distribution is claimed, a bond to refund must be tendered, before a breach of the administration bond can be charged upon the administrator.</p> <p>It seems, that the powers of the probate court, in matters committed to its jurisdiction, are coextensive with those of a court of equity.</p> <p>Where a co-heir claimed, in his bill, partition of real estate, and a distributive share of the personal estate of his ancestor, in possession of the administrator of the estate: Held, that the bill was bad for multifariousness, as demanding several matters of distinct natures.</p>

<p>The statute which requires the cause of action to be endorsed on the writ by the clerk or plaintiff’s attorney, only intended to give the defendant notice of the nature of the action. If the plaintiff states more in his endorsement . than is necessary it will be treated as surplusage.</p> <p>Where the endorsement on the writ stated correctly the amount of the note, time of payment, &c., but described it as payable at one bank when it was in fact payable at another: Held, the notice given of the cause, of action / was a sufficient compliance with the statute.</p> <p>When notice of a protest of a promissory note is to be given to a member of congress, it must be sent to his place of residence, and if his residence is not known due diligence must be exercised to ascertain the same. Notice sent- to Washington City, District of Columbia, when the party has a residence in the state which he represents, is not sufficient.</p> <p>If a member of congress had no fixed place of residence, but was known to be in Washington City, notice sent there would be sufficient. (Semble.)</p>

The plaintiff in error was sued as endorser of a bill of exchange for 1000 dollars, payable generally, and not at any particular place. Held: that in case of a bill like that sued on in the present action, the same rule was to be adopted as to demand and note, as on a promissory note payable in a particular bank, and whether the usage is actually known or not. The principle, in 11 Wheaton, 430, is commented ou, and re-decided.

The appellant filed his bill in the court below, to recover a tract of land in the county of Adams, as the heir of one Mark Iler, deceased. Held: even in courts of law, where the statute of limitations has been attempted to be set up, in order to evade the consequences of a fraudulent act. Bree v. Holbech, Douglas, 654; 3 Mass. Rep. 201. In the first of these cases, the decision was made by Lord Mansfield; in the second, by Judge Parsons.

This was an action of debt upon a writing obligatory. The defence relied on by the appellees was the statute of limitations, which bars all claims against the deceased, unless the same shall be presented to his executors or administrators within eighteen months after publication of notice by them for that purpose.

<p>Covenant for the false warranty in the sale of three negroes, one of whom was diseased with the small pox at the time of sale, and another was idiotic and unsound; with the third no fault was found. The price paid for the slaves was 2550 dollars; verdict for damages 2200 dollars: Held, it was unjust that the plaintiff should retain all the negroes, two of whom were valuable, and recover back so large a portion of the purchase money; a new trial awarded.</p>

Peter Pressler, after having made his will, died leaving his wife Elizabeth, and his daughter Jaily Aim, surviving him.

This was an action on the case, instituted by the defendant ill ‘error, against the plaintiff, to recover the amount of a note placed in his hands for ‘collection as an attorney, and which, it was alleged, had been lost by his negligence. The cáuse was tried at 'the May term of Yazoo county, in 1838, and a verdict was then 'found in favor df the plaintiff below, for the sum of 404 dollars, upon which judginent was rendered.

<p>Where the consideration of a promissory note for the payment of money at a time certain, was a bond in which the payee agreed without fixing any definite period for performance, to procure a deed from the person entitled to an Indian reservation and to make all the necessary proof before the government officer to perfect the title: Held, an action could be sustained on the note, although the title to the land had not been perfected, in as much as the agreement to pay was independent of the covenant to make titles. The remedy of the vendee is in a suit on the bond for covenants broken.</p>

This was an action of detinue, brought by Tourney, for the recovery of a slave. The defendant offered in evidence a bill of sale of said slave from the former wife of the plaintiff, and a deed of gift of said slave from Tourney direct to his wife, and an agreement between them to live separate; by which agreement it was stipulated, that the one should not interfere with the rights or property of the other.

This was an indictment against Overstreet for living in fornication. Plea, not guilty. On the trial, the attorney for the state proposed, and offered to prove, that, it “ was common report in the neighborhood, that the defendant, and one Sarah Hamilton, lived together in fornication,” which proof was objected to by defendant’s counsel. Objection overruled, and opinion of the court excepted to.

This was an action of assumpsit on a promissory note, for 150 dollars, made by defendant, payable to, and endorsed by, one Samuel Baker. • Plea of non assumpsit. On the trial, the defendant proved by Baker, that, the words, “at the bank in Rodney,” were inserted in said note after he had endorsed it.

the.circuit court of Warren county. This was an .action of assutnpsii brought by Ewing & Cromey, against Glidwell* Green & Co., as acceptors of a bill of exchange, drawn by J. N. Glidwell, on Glidwell, Green & Co., at Vicksburg. The words, “ payable, Union Bank, La.,5’ were written on the face of the bill, below the signatures, of the defendants* the-acceptors. The plaintiffs’ declaration described, the bill as payable at the' Union Bank, La.

The appellees filed their bill of complaint in the court below, on the 4th day of December, 1837, in which they averred, that a certain John Vick died without children, or the descendants of them,… Held: that the 1000 pounds was part of the residue, and did not pass to the testator next of kin as a legacy. 4 Sim. 21.

The appellees, James Cawden and Sarah Calvit, executor and executrix of the last will and testament of Samuel Calvit, deceased, filed their bill against William F. Markham, Peter G. Goosey and Christopher Dart, persons composing the firm of Wm.

The demandant, who is the appellee in this court, filed her petition in the probate court of Hinds county, in September, 1836, in which she demanded dower of certain lands and town lots, of which her husband, the late Thomas Wooldridge, was seised and possessed during their coverture. The lands and lots we^ particularly described in the petition.

<p>The endorsee of a promissory note is entitled to file the same as an offset in a suit against him by the payee and prior endorser to recover money due by the defendant on another claim.</p> <p>An endorsement is in the nature of a new and distinct contract, and is an engagement to pay, to whoever may by subsequent negotiation become the holder of the bill or note, the amount secured by it; it may, therefore, be given in evidence on a count for money had and received.</p> <p>The act of 1837, which only changed the rule of pleading, does not affect the right of the endorsee of a promissory note to give it in offset to a suit by the endorser.</p>

<p>It is a settled rule that a bill of review can only be entertained fot errors of law appearing in the body of the decree, or for new and material matter discovered after enrolment of the decree.</p> <p>A general decree on the foreclosing of a mortgage, that the complainant have execution for any balance unsatisfied by the sale, is error; for which the decree will be reversed. The remedy for such balance is at law.</p>

THIS was an action of ejectment, commenced by the appellant in the circuit court of Claiborne county. The land claimed by the appellant, is fractional section 68, in township 11, range 3, east. This was sold by the United States to Simeon Newman, under whom Sally Newman claims title, as is evidenced by the final certificate of the register of the land office. Plis title to this section is not controverted.

<p>The husband is entitled to a vested legacy of the wife, although not reduced into possession during coverture, and the purchaser of the same from the husband will acquire a good title.</p> <p>An assignment of the wife’s choses in action by the husband during the lifetime of the wife, for a valuable consideration, has been repeatedly held to be valid.</p> <p>It seems that the husband is considered as the next of kin to his wife, by relation of marriage, and takes her property as such in case of death; but whether so considered or not, her personal property, remaining after death goes to her husband, either jure mariti, or as next of kin.</p> <p>In an action of detinue the rule is, that, although possession by the defendant must be proved, yet it is not necessary, that it should be continued up to the time of the commencement of the suit, and the plaintiff will be entitled to recover, unless the defendant has been lawfully dispossessed.</p> <p>A judgment against the administrator can operate as a lien only upon the assets in his hands; and where he wrongfully delivers up possession of property which is not assets, detinue will lie agajnst him for its recovery, in as much as he is not lawfully dispossessed thereby.</p>

<p>An agreement for liquidated damages for the non-performance of covenants of a certain nature and amount, may be enforced for the amount of damages stipulated; but it is otherwise, where the covenant is certain and fixed as to the amount.</p> <p>Where a deed is mere inducement, profert need not be made; but if made, the adverse party is entitled to oyer.</p> <p>Where, by the terms of the covenant, money is to be paid and other things to be performed before conveyance, it is not necessary for the vendor to plead a tender of titles on his part; it will be sufficient if he aver readiness to perform.</p> <p>Where a deed with warranty is tendered, and the other party does not object to it, it is a sufficient offer of performance.</p>

<p>Where two separate suits were brought against the drawer and endorser of a . promissory note, and judgments had, and forthcoming bonds given in each case; the bond against the maker of the note having been given and forfeited prior to that against the security: Held, the forfeiture of the forthcoming bond against the maker of the note, did not operate as a satisfaction of the judgment against the security, in as much as the judgments were separate, and in separate suits.</p> <p>But it seems the rule is different when the judgment is joint, on a joint, or joint and several liability.</p>

<p>The question of the necessity and propriety of directing d special term of the circuit court, is a matter entirely within the discretion of the judge. No formal order is necessary by the statute.</p> <p>The twenty days notice by advertisement, required by the statute, is for the information of the public, but is not necessary to confer jurisdiction. In this respect the statute is merely directory.</p> <p>Where the indictment is endorsed a true bill, and returned by the authority of the whole grand jury, it is sufficient without the special appointment of a foreman.</p> <p>The sheriff, as one of' the officers of the court, is competent to serve the prisoner with a copy of the venire and indictment.</p> <p>By the assent of the parties, or the direction of the court, the jury may bring in a sealed verdict, deposit it with the clerk, and then separate before it is opened and read.</p> <p>The affidavit of a juror will not be received to impeach his verdict.</p> <p>A mere affidavit of a third person, that the prosecutor had declared, that there was in existence a bill of sale of the property charged to be the subject of the larceny, which bill of sale went to establish title in the prisoner, is not a sufficient ground for a new trial, unless the affidavit be supported by the oath of the prisoner, alleging sufficient reason, why such bill of sale was not produced on trial, and an expectation, that it could be procured on a subsequent trial.</p> <p>The bill of exceptions must show the precise ground of exception.</p> <p>A general verdict of guilty will be sustained, although all the counts of the indictment are bad but one.</p>

<p>If the time and place of the holding of the court appear in any part of the record, it will be sufficient.</p> <p>The whole of the record must be considered together, and that which is uncertain in one part, may be rendered clear by that which is certain in another part.</p> <p>A separate certificate of the clerk to each paper in the record is sufficient, and if such papers are styled “ originals” by him, it will be regarded as a mere clerical mistake, which cannot change the character of the record.</p> <p>The power to award a certiorari has always been conceded to the courts, as well in criminal as in civil cases.</p> <p>It seems that a prisoner who has applied for and obtained a change of venue, will not be permitted to question the regularity of the proceedings. And the presumption will be in favor of the regularity of the proceeding below, in absence of any proof to the contrary.</p> <p>If the prisoner go to trial without a copy of the indictment and venire having been served upon him two entire days before trial, he waives his privilege of such service.</p>

<p>Where a prisoner in custody makes confessions without any compulsion or . promise of advantages, it seems they are admissible in evidence.</p> <p>A special appointment of foreman is not necessary, when the record shows. that the indictment was found and returned into court by the whole panel.</p> <p>The name of the prosecutor must be marked on the indictment.</p> <p>Where the appellate court reverses the judgment of the court below, for want of form in the indictment, the indictment will be considered sufficient prima facie evidence of guilt to remand the prisoner.</p>