Page:Harvard Law Review Volume 4.djvu/254

2 38 HAR VARD LAW RE VIE W. the trial jury was objected to for the same reason. The Court refused so to rule, and the defendant excepted. The Supreme Court {Com.w. Brown f 147 Mass. 585) upheld the ruling of the trial judge, on the ground that the interest of the jurors in both cases was not sufficient to incapacitate them, and that the interest of the selectmen was not suffi- cient to render the draft illegal. In the course of the opinion the court remarked that the defendant could not have been indicted in any other county than Nantucket. The exceptions being overruled, the defendant pleaded to the indict- ment, and a verdict was found against him. After the trial had begun the defendant's counsel learned for the first time that some, if not all of the members of both juries had been present at the meeting at which it was voted to prosecute Brown, and had voted for the prosecution. He immediately filed a plea of exception to the jurisdiction, on the ground that the members of both juries were incompetent, because of their participation in the town-meeting; that under the circumstances of the case it would be impossible to get an impartial jury in tl e county of Nantucket; and that the present trial, and any trial by the court in that countv, would be in violation of the Constitution of Massa- chusetts, and of the Fourteenth Amendment of the Constitution of the United States. The court overruled the plea and the defendant excepted. The Supreme Court {Com. v. Brown^ 150 Mass. 334) overruled the exception. The court held that the plea amounted to a motion in arrest of judgment, and that the objection to the jurisdiction on the aboe grounds, not appearing on the record, could not be brought before them. The conviction was therefore affirmed, the defendant was sentenced and imprisoned. Two weeks later his counsel obtained a writ of review from a court of the United States, and the defendant was released on bail. The case is now docketed in the United States Supreme Court, where, unless advanced, it will not come up for three years. It is not altogether unlikely that that court may decide in favor of the defend- ant Brown, and in that event, as it is admitted that he cannot be tried in any other county, the Legislature of Massachusetts will have the question forcibly presented whether some change in the judicial system of the county of Nantucket is not desirable. In a case at the Drogheda Sessions, mentioned by the March "Jurist," the defendant, being sued for rent, "pleaded the house was haunted, and his wife had been greatly frightened by a ghost appear- ing at their bed and throwing something upon her at night ; they had to leave the house, and witness would prove it was haunted." The court ruled, correctly as it would seem, that these facts did not constitute a defence ; but if the lease were of a furnished house the question might perhaps be more doubtful. According to the doctrine of S?nith v. Marrable (11 M. & W. 5) there is an implied covenant in such a case that the house is reasonably fit for habitation, and the fact that the house is infested with bed-bugs is a breach of this covenant. If the presence of the ghost should be thought equally objectionable, he might thus become a material issue ; but it may be doubted whether the court would think there was substance enough in a ghost for judicial investigation.