LESSOR AND LESSEE. See "Railroads."
Where an attachment had been levied by the Sheriff on certain
bonds and thereafter the plaintiff caused a second attachment
to be levied on them, the fact that the plaintiff had deposited
them with the Clerk of the Court before the second levy was
made upon them, the deposit not having been made by
authority of the Court, did not place them in custodia legis,
so as to protect them from the second levy, as they were con-
structively in the possession of the Sheriff under the prior
levy. Lemly v. Ellis, 200.
LEX LOCI CONTRACTUS. See "Contracts."
LICENSE. See "Marriage License"; "Railroads."
LICENSE, IN RE APPLICANTS FOR.
Under Revisal, ch. 5, an applicant for license to practise law who
complies with the formal prerequisites prescribed by section
208 is entitled to be examined, and if, on his examination he
satisfies the Court of his competent knowledge of the law, he
is entitled to receive his license, and an investigation into his
general moral character is no longer required or permitted.
In re Applications for License, 1.
Revisal, ch. 5, establishing the qualifications for applicants to
practise law, is not unconstitutional as an unwarranted exercise
of judicial power prohibited by section 8 of the Declaration
of Rights, nor as an unlawful attempt to deprive the Court
of its inherent power to direct and control the conduct of
attorneys who are its officers. Ibid.
The Legislature has the right to establish the qualifications to be
required of one to become a practising member of the bar by
virtue of the police power which is vested in that body. Ibid.
An attachment on land is void and constitutes no lien where the
defendants named in the attachment had parted with their
title before the attachment was issued. Morrison v. Mining
Co., 250.
Where the relief sought is a mandamus to compel a Board of
County Commissioners to expend in a township certain taxes
as directed by statute, the tax-payers in said township are
proper parties to bring the action, and there is no statute of
limitations, as the relief sought is prospective. Jones v. Com-
missioners, 59.
LIMITATION OF ACTIONS—Continued.
In a processioning proceeding under Revisal, secs. 325-326, to
establish a boundary-line, where the defendant denied the plain-
tiff's title and pleaded both the twenty years, and seven years'
statutes as a defense, the Clerk, under Revisal, sec. 717, should
"transfer the cause to the civil-issue docket for trial during the
term upon all issues raised by the pleadings"-in this case,
both the issues of boundary and title. Woody v. Fountain, 66.
Laws 1901, ch. 50, sec. 5, as amended by Laws 1905, ch. 770, sec.
1 (2), providing that any person aggrieved may within six
months after a change of road, or a new road has been opened
and completed, apply for a jury to assess damages, means
that the proceeding shall be begun "within,” i. e., “not later
than" six months after the road has been changed or the new
road opened and completed. In re Wittskowsky's Land, 247.
Under Revisal, sec. 4809, which provides that no insurance com-
pany shall limit the time within which an action may be
commenced to less than one year after the accrual of the cause
of action, or to less than six months from the time a nonsuit
is taken in an action brought upon the policy within the time
originally prescribed, where a suit was commenced upon the
policy in controversy within twelve months after the accrual
of the cause of action, and a nonsuit was taken, but the record
in that case, which was put in evidence, does not show when
the nonsuit was entered, it will be presumed, in favor of the
Court's ruling, to have appeared that it was done within six
months prior to the date on which this action was commenced.
Parker v. Insurance Co., 339.
Where the confession of judgment sets out that the amount of
$823.15 is due plaintiff by defendant for part of "bills of
goods bought from plaintiff by defendant and received by him
between 1 January, 1896, and October, 1896," and said amount
is "part of bills of groceries bought in the time named," this
is sufficient, in the absence of any attack by a creditor, where
the debtor himself, after an acquiescence of six years, is urging
a defect in his own confession of judgment, with no suggestion
of any fraud or imposition in securing the confession nor any
denial of the debt, and should the judgment be held invalid
the debt would be barred. Martin v. Briscoe, 353.
In an action for damages growing out of an attachment of plain-
tiff's cars, alleging malice and want of probable cause and that
the attachment of ten cars was excessive and an abuse of
process of the Court, evidence of profits which the plaintiff
MALICIOUS PROSECUTION-Continued.
might have made from hiring its cars was properly excluded
as speculative damages. Railroad Co., v. Hardware Co., 54.
In an action for malicious prosecution, it is necessary to show (1)
malice, (2) want of probable cause, (3) and that the former
proceeding has terminated. In an action for abuse of process,
it is not necessary to show either of these three things, but
two elements are necessary: first, an ulterior purpose; second,
an act in the use of the process not proper in the regular
prosecution of the proceeding. Ibid.
In an action for malicious prosecution, evidence of a member of
the jury in the criminal trial that the jury were "out a con-
siderable time" and at first stood "seven for acquittal and five
for conviction" was irrelevant, and should have been excluded,
but this Court cannot see that its admission was prejudicial
or reversible error in this case. Gaither v. Carpenter, 240.
An instruction that to constitute malicious prosecution there must
be want of probable cause and malice was correct. Ibid.
In an action for malicious prosecution, the plaintiff cannot com-
plain of the definition of malice as "a disposition to do the
person prosecuted a wrong without legal excuse." Ibid.
In an action for malicious prosecution, it must be shown that
an action or proceeding has been instituted without probable
cause from malice, and that damage has been sustained, and
that the proceeding has terminated. Stanford v. Grocery
Co., 419.
In an action for malicious abuse of process, there must be shown
(1) an ulterior purpose, and (2) some act done in the use
of the process not proper in the regular prosecution of the
case; but it is not necessary to show a want of probable
cause, nor that the proceeding has terminated. Ibid.
Where the complaint endeavors to set up two causes of action-
one for malicious prosecution and the other for malicious abuse
of process--but the evidence shows that the plaintiff's entire
grievance arises from a criminal prosecution for embezzle-
ment, in which he was arrested and bound over to court, and
there is no evidence that the defendant did or attempted
to do any act in the criminal proceeding which was contrary
to the orderly and regular prosecution of the case, an issue
addressed to the cause of action for malicious abuse of process
should not be submitted. Ibid.
In an action for malicious prosecution in causing the arrest of
plaintiff on a charge of embezzling goods which defendant
claimed had been consigned and plaintiff claimed had been
MALICIOUS PROSECUTION-Continued.
sold outright, the statements made by defendant's salesman
who effected the sale and just after the sale, to defendant's
manager, who swore out the warrant, as to the nature of the
trade under which the goods were passed to plaintiff, were
competent both as corroborative of the salesman and substan-
tive testimony on the question whether the defendant's mana-
ger, in taking out the prosecution, had probable cause for so
doing and whether he acted in good faith. Ibid.
The principle that knowledge of the agent will be imputed to the
principal does not apply where the question is as to the
responsibility for instituting a criminal prosecution, dependent
in part on what the principal understood the trade to be
which the agent had made, from information reasonably relied
on by him, nor does the principle of imputed knowledge apply
when it would be against the interest of the agent to make
the disclosure. Ibid.
In an action for malicious prosecution, where the wrong charged
against the defendant was in taking out a warrant and causing
plaintiff's arrest, the declarations of the defendant made to the
justice of the peace at the time the warrant was procured are
admissible as substantive testimony as part of the res gestæ.
Ibid.
In an action for malicious prosecution, where a committing magis-
trate has bound over a party, or a grand jury has returned
a true bill against him, such action prima facie makes out a
case of probable cause, and the jury should be directed to
consider the evidence as affected by this principle. Ibid.
In an action for malicious prosecution, an instruction that if the
jury find that the defendant sold the goods straight-out to the
plaintiff, and that the defendant had him arrested for the
purpose of collecting the debt, they would answer the issue
of malice in favor of the plaintiff, because that would be a
wrongful act done intentionally and without just cause and
excuse, was erroneous, as it was for the jury to determine
and not for the Court whether such an act was committed
when the defendant caused the plaintiff's arrest under the
evidence in this case. Ibid.
In an action for malicious prosecution, on the question of damages
the Court properly told the jury they could allow for a reason-
able attorney's fee paid by plaintiff in the case in which the
prosecution was had. Ibid.
In an action for malicious prosecution, punitive or exemplary
damages may be awarded by the jury, but the right to such
MALICIOUS PROSECUTION-Continued.
damages does not attach, as a conclusion of law, because the
jury have found the issue of malice against the defendant,
but the jury must find that the wrongful act was done from
actual malice in the sense of personal ill-will, or under cir-
cumstances of insult, rudeness or oppression, or in a manner
which showed a reckless and wanton disregard of the plain-
tiff's rights.
In an action for malicious prosecution, the term "malice," in refer-
ence to the question of damages, means malice in the sense of
personal ill-will, while in respect to the issue fixing responsi-
bility it need not necessarily be personal ill-will, but may be
said to exist where there has been a wrongful act knowingly
and intentionally done plaintiff without just cause or excuse,
and it may be inferred from the absence of probable cause.
Ibid.
Where the relief sought is a mandamus to compel a Board of County
Commissioners to expend in a township certain taxes as directed
by statute, the tax-payers in said township are proper parties
to bring the action, and there is no statute of limitations, as
the relief sought is prospective. Jones v. Commissioners, 59.
Where a statute requires the County Commissioners to invest each
year, in interest-bearing securities, the county taxes derived
from the taxation of the property of a railroad in a certain
township, as a sinking fund for the payment, at maturity, of
the bonds issued by said township to aid in building said rail-
road, a mandamus to compel the Commissioners to reimburse
said township for the amount of said bonds was properly
refused, where the bonds had been already paid off. Ibid.
MARRIAGE AND DIVORCE. See "Divorce."
In an action against a Register of Deeds to recover the penalty
under Revisal, sec. 2090, for issuing a marriage license con-
trary to its provisions, where the uncontradicted evidence
showed that the Register took the word of the prospective
bridegroom and his friend, neither of whom he knew, as to the
age of the young lady, and made no further inquiry of any
one, the Court should have given the plaintiff's prayer for
instruction that as a matter of law defendant failed to make
reasonable inquiry as to the age of plaintiff's daughter. Mor-
rison v. Teague, 186.
MARRIED WOMEN. See "Contracts."
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