Volume 5 — Grattan's Virginia Reports

In May 1830, a judgment was rendered in the Circuit Court of Accomack, in favour of Henry F. Finney, as assignee of Skinner Wallop, against John W. Downing, George D. Downing and Samuel Bloxom and Elizabeth his wife, as devisees of William Downing, for the sum of 700 dollars, with interest and costs, to be levied on certain assets confessed by them to have been derived from William Downing by devise; and ® J 7 an extent was awarded to have the said assets delivered to the…

Edmund Wood died in 1823. By his will, which was admitted to probat in the County Court of Campbell in December 1823, he devised and bequeathed his land and slaves specifically among his children ; disposing of all his slaves but one negro man named Squire. The share of his daughter Mrs. Martha Depriest, he gave in trust to John Rosser for the separate use of Mrs. Depriest and her children ; and he appointed Rosser his executor, who qualified as such in December 1823.

This was an action of trespass quare clausum fregit, in the Circuit Court of Jefferson county, by Wysong against Kretzer. On the trial, the defendant demurred to the evidence, and the jury found a verdict for the plaintiff for 180 dollars, subject to the opinion of the Court upon the demurrer.

<p>Persons who have been held as slaves, recovering their freedom, are in no case entitled to recover mesne profits.</p>

This was an action at law brought in the Circuit Court of the town of Lynchburg, in the name of the Governor for the benefit of Alexander Liggatt against Charles A. Withers and his sureties, upon a bond executed by him as inspector of tobacco at Lynch’s warehouse in the town of Lynchburg, in the year 1829-30. The defendants appeared and pleaded “ conditions performed upon which plea issue was joined.

Peter R. Deneufville died in 1809, leaving a widow, but without issue. He was a merchant in Williams-burg, having two stores in the place. His brother John A. Deneufville had acted as his clerk for a number of years ; and qualified as administrator upon his estate.

<p>1. A deed of trust executed in part to secure fraudulent debts, but in part to secure a bona fide debt, the bona fide creditor having no notice of the dishonest purpose on the part of the grantor, is a valid security for the bona fide debt.</p> <p>2. A part of the property conveyed in a deed of trust is taken in execution by a creditor of the grantor, and sold, the creditor giving an indemnifying bond to the sheriff. Afterwards suit is brought upon the bond in the name of the sheriff, for the benefit of the trustee in the deed. Quaere: If plaintiff is not entitled to recover, though some of the debts secured by the deed are proved to be fraudulent, if other debts secured by it are bona fide ?</p> <p>3. In an action on an indemnifying bond for the benefit of a trustee in a deed of trust, in which the property sold under the execution is embraced, the defence is that the deed was fraudulent, but a verdict and judgment is for the plaintiff The defendant afterwards comes into equity on the ground of after-discovered evidence establishing the fraud as to some of the debts secured, but not questioning the bona fides of others, and asks for an injunction to the judgment, for a new trial, and general relief. Held:</p> <p>1. The ground of equity jurisdiction being satisfactorily made out, the Court will not direct the new trial, because it would not probably afford the proper relief, but will retain the cause, and will allow the plaintiff to impeach the deed, notwithstanding his unsuccessful effort to do so at law.</p> <p>2. The cause being properly in the Court of Chancery, the plaintiff is entitled to have an account of the trust subject, and have it properly disposed of among all the parties interested in it, according to their respective rights.</p> <p>3. The deed of trust purporting to indemnify one of the parties, as to whom the deed is charged to be fraudulent, as surety of the grantor for certain debts due to specified creditors, these creditors, as well as those secured directly, and whose debts are not assailed by the bill, are necessary parties.</p>

This was a bill by John S. Wellford, Edward H. Carmichael, William Crump and others, against Sanford Chancellor, to enjoin him from proceeding to enforce the payment of a bond for 1124 dollars 50 cents, executed by the plaintiffs to the defendant. The bill charged that the plaintiffs, in November 1836, purchased a tract of land in the county of Spottsylvania, for the purpose of engaging extensively in the manufacture of iron.

This was a suit brought in the Circuit Court of Middlesex, by Thomas M. Stubblefield against John Beazely, for the division of a tract of land conveyed to them jointly by John P. Turner.

In July 1749, James Tutt obtained from the proprietor of the Northern Neck, a warrant to survey a tract of waste and unappropriated land, of about four hundred acres, lying in that district of the State of Virginia. This warrant was directed to George Hume as the surveyor, and he was directed to return it with the survey before the 29th of the next September.

In 1841, Francis Smith filed his bill in the Circuit Court of Washington, against George M’New, sr., George M’New, jr. and David M’New, in which he stated that prior to the year 1823. George M’New, sr. was indebted to him: That in that year said M’New executed to him his bond for the amount: That M ’New, sr. subsequently became farther indebted to him on account.

John W. Pitman being the owner of two adjoining tenements in the town of Staunton, he in 1841, made an agreement with Benjamin Morris, by which he rented to Moms one of these tenements, and the front cellar under the other, for one year. In 1842 Pitman sold these tenements to John G. Sowers; Morris being in possession as tenant under his agreement with Pit-man.

This was an action of ejectment in the Circuit Court °f Botetourt, by Thomas C. Lancaster against Thomas Shanlcs and John T. and Francis T. Anderson.

Sarah B. Preston, who sued for the benefit of S. Gose, brought a writ of right in the Circuit Court of Russell against Archer Jesse.

Andrew Frame executed to David Given, a note dated the 5th of September 1839, and payable the 1st of February 1840, for 91 dollars 25 cents. Given assigned this note to Joseph Duffield ; and Duffield assigned it to H. O. Middleton, by the following endorsement on the note: “ 1 assign the within bond to H. O. Middleton, and agree not to take any legal advantage of said Middleton, in the indulgence he may give.

This was an action on an indemnifying bond brought by Dickinson, high sheriff of Russell county, for the benefit of M'Farlane against Smith The defendants appeared and pleaded “ conditions performed,” and “conditions not broken;” on which pleas issues were made up.

Jacob Cline brought an action of debt against WilHam Compton, in the Circuit Court of Tazewell, to the December term 1842. The writ claimed 188 dollars, tke endorsement was: “An action of debt on a note obligatory for the payment of money.” The declaration claimed but 108 dollars, and counted on a writing obligatory for that amount.

This was an action of ejectment upon the demise of George, Elizabeth and Julia English against Solomon Pasley, originally instituted in the Circuit Court of Franklin, and from thence transferred to the Circuit Court of Roanoke.

This was a writ of right brought in the Circuit Court of Tazewell by John Wynn, against Hezekiah Harman, and afterwards revived against Harman's devisees.

This was a writ of right brought in the Circuit Court of Fayette, by Charles Clendennin and Daniel Baltzell, executors of ¡Sarah W. Varner deceased, against George Masters. On the trial the demandants introduced in evidence a patent, bearing date the 15th of November 1791, from the Commonwealth to Joseph Carrol and William Morris, for five hundred and fourteen acres of land, and sundry mean conveyances down from the patentees to John Rosebrough.

On the application of John M. Robinson, the Circuit Court of Botetourt issued a rule against the president and directors of the Branch Bank of Virginia at Buchanan, requiring them to shew cause why a… Held: that the Executive had the authority to fill the vacancy; and ordered that Robinson should be permitted to act as a director of the bank: Whereupon the president and directors applied to this Court for a supersedeas, which was awarded.

This is the sequel of the case of White v. Toncray, reported in 9 Leigh 347. When the cause went back to the Circuit Court, the plaintiff Toncray, filed an amended declaration containing five counts; in all of which the covenant declared upon was set out in substantially the same terms.

Ira Jeter having recovered a judgment in the Circuit Court of Roanoke, against William Langhorne for upwards of 9000 dollars, subject to certain credits, Langhorne, on the 27th of March 1844, obtained an injunction to the judgment.

This was a bill filed in the Circuit Court of Botetourt, by James M’ Dowell, a judgment creditor of Jacob Carper, to set aside two deeds executed by Carper to Fletcher H. Mays, in trust to secure certain securities and creditors of the grantor.

In September 1843, Richard Sampson applied to the Circuit Court of Goochland for a rule upon the justices of Goochland county, to shew cause why a mandamus should not be awarded against them, commanding them to repair, and keep in repair, the bridge across Stony creek, in the said county, on the main stage road leading from Richmond to Goochland courthouse.

Ill February 1834, Leroy P. Williams and Ann M. his wife, filed their bill in the Superior Court of Fauquier county, against John P. Philips and Elizabeth his wife, and other defendants, for the purpose of enforcing certain claims to which they supposed themselves entitled, under the will of William Pickett, sr., a copy of which is exhibited with the bill. That portion of the will which relates more particularly to their claims, is as follows.

On the 3d of September 1846, the County Court of King George, on the motion of Henry T. Washington, appointed viewers to view the ground along which a road was proposed to be opened, from a point on the road leading out from his house to the public road which leads to King George courthouse, passing for a part of the way on the line between said Washington and Daingerfield Lewis, and then through the lands of r J-jGWIS.

In a suit then pending in the late Circuit Court of Law and Chancery for the county of Henrico and City of Richmond, in which Josiah Riddick was plaintiff, and John 8.

In October 1848 Retha Harris, a free woman of co-lour, and whose husband was a slave, on behalf of herself and her three children, Sally, Joannah and Milly Harris, applied to the Judge of the Circuit Court of Henry county for a writ of habeas corpus, to require John S. Brewer to bring the said Sally, Joannah and Milly into Court; and charging that they were illegally detained in custody by Brewer.

This was a proceeding by foreign attachment, instituted in December 1838, in the Circuit Court of Hampshire, by David Gibson, against Edward M’Carty, jr. an absent defendant, and Cornelius R. and David Long, as garnishees. The bill charged that in July 1823, Edward M ’Carty, sr., P. M ’Carty, and the defendant Edward M’Carty, jr. executed to the plaintiff a bond for 1654 dollars 63 cents, which remained due and unpaid.

At the October term 1840 of the County Court of Amelia, upon notice duly served upon the superintendents of the Upper Appomattox company, Abner Nash moved the Court for a writ of ad quod damnum to ascertain the damages that had accrued to his lands by the erection of a dam across the Appomattox river at Randolph's gravel; which dam abuts upon the lands of John Huddleston of Powhatan, and Richard H. Bra-zeal of Amelia.

In April 1836, John H. Pence and Sarah B. Lyle being about to marry, they executed a deed, which, after setting out the property of Mrs. Lyle, recites that it hath been agreed that the said Sarah B. Lyle, after the intended marriage shall have been had, shall receive and enjoy during the life of the said John H. Pence, and after his death, the full rents, issues, hires and profits of the property, real and personal, aforesaid, and of all other property, real and personal, to…

In January 183S, Wilson C. Nelson obtained from the honourable John B. Clopton an injunction to two judgments recovered by James Cocke, administrator of Isaac Cocke deceased, against said Nelson, in the Circuit Court of King William, In his bill he charged, that in the year 1834, William B. Armstrong had won from him at cards the sum of 267 dollars; that soon afterwards Armstrong had drawn two drafts upon him in favour of Isaac Cocke, on account of the money thus won from…

This was a bill by Elizabeth Sutherland, widow of Ransoms Sutherland, to enjoin sales under four deeds of trust, executed by Rcmsome Sutherland in his lifetime. Held: that the bond executed by Sutherland to Laxo and Chandler, was usurious, and that they were only entitled to recover the amount that Sutherlaxid had received therefor, without interest.

This case was before this Court in 1841, and the decision then made is reported 12 Leigh 147. It was an action of trover, by Archibald Tutt against Martin Slaughter, and revived against Slaughter’s adm’r, for the conversion of six slaves.

This was a suit in equity in the Circuit Court of Orange county, by Thomas Hord and others, claiming as legatees under the will of Francis Taliaferro, of Epsom, against Benjamin Hume and others. The facts, as they appear from the pleadings and proofs, are as follows: William Taliaferro was the owner of a tract of land in the county of Orange, called Newmgton; and his wife Elizabeth was the owner in her own right, of a tract called Potatoe Neck.

This was a bill by William H. Macon, to enjoin the sale of a number of slaves which had been taken in execution to satisfy judgments recovered by James M'Kenzie, Archibald Govan and others, against Miles Macon. The plaintiff claimed the slaves as belonging to him, and the injunction was awarded.

In 1819, Thomas Dunn, as the administrator de bonis non of Lewis Dunn, deceased, and as heir and distributee of said Lewis, filed his bill in the County Court of Sussex, against William Wills, and Lucy his wife, who was the administratrix of Thomas Dunn the elder, and against Allen Temple, as the administrator de bonis non of Nathaniel Dunn, deceased.

In April 1782, a marriage was about to take place between William Stepioe of Westmoreland, and Elizabeth Robinson of the county of Middlesex. She was then an infant possessed of a large estate, real and personal, derived from her father and brother.

John Baylor Hill, having purchased from John Camm Pollard a tract of land in King William, sold and conveyed the same to Robert Pollard, for the consideration of 3500 dollars, all of which was paid or satisfied at the time, except the sum of 1000 dollars. For this sum a bond, in the penalty of 2000 dollars, conditioned for the discharge of the lesser sum on or before the 1st January 1834, was given by Robert Pollard to Hill.

In February 1839, John Hestend instituted an action of covenant in the Circuit Court of Campbell county, against Alexander S. Withers and Robert W. Withers, which abated as to A. B. Withers by the return of the sheriff, that he was no inhabitant of the county.

This was an action of debt in the Circuit Court of King William county, by Thomas Pollard against Nathaniel Trimyer. The declaration was filed in September 1835, and was founded on a single bill for 109 dollars, executed by the defendant to the plaintiff, bearing date the 1st day of May 1821, and payable on demand. The defendant appeared at the November term of the Court, and pleaded payment, upon which plea issue was made up, and the cause was tried in May 1838.

This was ah action of waste brought in the Circuit Court of Caroline county by Wilson Allen and Sophia his wife, against Elliott Dejarnatte. Held: and still holds, a certain messuage, dwelling-house and lands lying in the county of Caroline, known by the name of Pole Cat, as tenant thereof to the plaintiffs, for the life of the said Wilson Allen, and of which the reversion is in the said Sophia Allen, wife of the said Wilson Allen, and her heirs.

For many years the number of causes pending in the Supreme Court of Appeals at Richmond had continued to increase, so that in the winter of 1847-8 they amounted to five hundred and sixty-four; and… Held: shall, in person or by deputy, attend such Special Court with the records and papers in the cases which it is to hear and determine, and enter the proceedings of such Special Court, which shall be signed by the presiding Judge thereof.

This was an injunction to a judgment at law. The bill was filed in January 1843, by William Washington against William L. White, and charged that the judgment was for the sum of 500 dollars, which White had won from the plaintiff at cards; and that the judgment was recovered on the evidence of John B. Hill, who proved the promise of the plaintiff to pay the money, but who did not hear the consideration of the promise, or pretended that he did not.

At the November term 1843, of the County Court of Chesterfield, the attorney for the Commonwealth filed an information, founded on a presentment of the grand jury, against John Ratcliffe, for that he within twelve months preceding the second Monday in August 1843, wit, on the 19th day of May 1843, at the county of Chesterfield, knowingly and wilfully, without lawful authority, did remove a fence from the lands of Joseph Pollard and John Poioell, leased by Wilson Bottom for…

John J. Johnston was indicted in the Circuit Court of Warren county, for the murder of John M. Elliott, and he was found guilty of murder in the second degree, and the term of his imprisonment in the penitentiary was fixed at seven years and six months.

<p>The facts of the case are sufficiently stated in the opinion of the Court, delivered by Lomax, J.</p> <p>The prisoner was indicted in the Circuit Court of Wood, for arson. The first count charged, that she did “feloniously, unlawfully, willingly and maliciously set fire to and burn a certain mill-house of one Fidelias Ott," &c. The second count charged that she did “ feloniously, maliciously, unlawfully, and willingly set fire to a certain other house of the said Fidelias Ott," &c. These are the only counts in the indictment, and both conclude against the form of the statute, &c. The prisoner, upon her arraignment, demurred generally to the indictment, and to each count thereof; and there being a joinder in demurrer, the indictment, and each count thereof, was adjudged to be good and sufficient — whereupon the prisoner pleaded not guilty, and she was put upon her trial.</p> <p>Three bills of exception, in the progress of the trial, were taken by the prisoner to matters of testimony. The Court, upon the cross-examination of a female witness that had been examined on the part of the prosecution, refused to allow the following questions to be propounded to her: “ Whether she is not generally reputed in the country to be a woman of unchaste habits; and whether she was not, or had not been, unchaste ?” The Court stated, upon the bill of exceptions, as the ground for its judgment in this refusal, “ that the questions tended immediately and directly to degrade and disgrace the witness. And the Court was further of opinion, that the morals of the country require that parties should not be permitted to ask such questions of female witnesses ; and that, if virtuous females could be thus tortured by questions in relation to their chastity, it would be impossible to procure their testimony, unless by compulsory process, and would lead to conflicts and violence between counsel and suitors, and the husbands, brothers and fathers of such witnesses.” The Court also refused to allow the prisoner’s counsel, on cross-examination, to ask another female witness, who had been examined for the Commonwealth, (she having previously answered in the negative, a question, “ if she was married ?” that was put to her by the prisoner’s counsel,) “How old her youngest child was ?” and “ whether the said child was not a bastard ?” The Court moreover refused to allow the prisoner’s counsel to ask this last witness, upon her cross-examination, “ if she had not been found with stolen goods in her possession ?”</p> <p>The foregoing matters of exception bring up for consideration, the extent of the privilege, upon cross-examination, of interrogating witnesses as to matters having a tendency only to degrade their own character. Upon this subject there has been great confusion in the cases; and no little difficulty in arriving at any rule, as established by the authorities. This doctrine will be found treated of in 2 Russ. Cri. 625, &c.; Archb. Cr. PI. and Ev. 143; Roscoe’s Cr. Ev. 162, &c.; 1 Stark. Ev. 167-170; and has been ably reviewed by a writer of our own country, in an excellent work upon the law of evidence. 1 Greenl. L. Ev., part 3, ch. 3. After stating with much discrimination, a variety of authorities relating to questions propounded upon cross-examination tending to the crimination or disparagement of the witness who has been examined, he says, in <§> 458, “ There is another class of questions, which do not seem to come within the reasons already stated, in favour of permitting this extent of cross-examination, namely, questions, the answers to which, though they may disgrace the witness in other respects, yet will not affect the credit due to his testimony. For it is to be remembered, that the object of indulging parties in this latitude of enquiry is, that the jury may understand the character of the witness whom they are asked to believe, in order that his evidence may not pass for more than it is worth. Enquiries, therefore, having no tendency to this end, are clearly impertinent. Such are the questions frequently attempted to be put to the principal female witness, in trials for seduction, per quod servitiam amisit, and on indictments for rape, &c., whether she had not previously been criminal with other men, or with some particular person ; which are generally suppressed. Dodd v. Norris, 3 Camp. R. 519 ; Rex v. Hodgson, Russ. & Ry. R. 211; Vaughn v. Perrine, Penningt. R. 534. So on an indictment of a female prisoner, for stealing from the person in a house, the prosecutor cannot be asked, whether, at that house any thing improper passed between him and the prisoner. Rex v. Pitcher, 1 Car. & Payne 85; Rex v. Lewis, 4 Esp. Cas. 225; Arundall v. Pratt, Moo. & Man. 108. This Court approves of the doctrine as there stated by Greenleaf. It has a pointed application to the questions particularly, which were put to the female witnesses in regard to chastity, and tending to their disgrace by the seeming imputation of a want of that virtue. It may not necessarily follow, under all circumstances, that because a female may have violated her chastity, she is therefore to be denied credit. And the spirit of the same doctrine also applies to the suppressing the question, so vaguely put to one of the witnesses, whether she had not been found with stolen goods in her possession. One of these female witnesses was also asked by the prisoner’s counsel, “ If she knew a man by the name of Bonnet 1 and if she had not lived at his house ?” To which she answered, that she had heard of him, but did not know him, and that she had not lived at his house. She was then further asked, “ if, whilst she lived with said Bonnet, she was not accnsed of stealing or taking things not her own ? And whether, when she left there, she was not followed and the things taken from her?” The Court, without arresting this question, informed the witness, that she was not bound to answer the question, unless she thought proper. This interference of the Court below in the cross-examination, was, in the opinion of this Court, entirely correct, whether the question propounded is regarded as tending to extort from her circumstances that might expose her to erimiual prosecution, or to degrade her character.</p> <p>It is made a ground of exception by the prisoner’s counsel, that the Court refused to allow him to argue the propriety of the questions which he had asked of one of the female witnesses, as noticed above, in relation to her chastity. Any argument that the counsel could propose to make, could only be addressed to the Court, for the purpose, exclusively, of influencing its judgment. But if that judgment was already definitively made up, there can be no legal privilege belonging to the prisoner’s counsel to exhaust the patience and time of the Court, and to interrupt the progress of the trial, by an argument which could have no effect upon the opinions of the Judge, already fixed by the previous consideration which he may have given to the subject. The Judge presiding in a Court of Justice may surely be permitted to say when his mind is fully satisfied upon any question that is raised before him, and be allowed to preclude all further discussion, when his fixed convictions render any further discussion utterly unavailing. If his opinion upon the point itself be correct in the judgment of an Appellate Court, there can surely be no error in his refusing to listen to an argument to persuade him to do wrong.</p> <p>Another ground of exception taken, is, that a witness who had, on one day of the trial, been examined on behalf of the Commonwealth, and cross-examined, and told by the Commonwealth to stand aside, was the next day recalled by the Commonwealth, before any other . . ..... . witness was examined, and certain other interrogatories propounded to him, and a further examination of him was had. The point on which the witness was this second time recalled for examination, was, as the Commonwealth’s attorney stated, a matter on which the witness was not examined the day before. It related to what the prisoner herself had said upon a particular occasion. During the former day’s examination of the witness, the Commonwealth’s attorney, as he stated, did not know of this matter, and discovered it after the witness had, the day before, been discharged; and he deemed the testimony as to this new matter important in the case. It appears by inspection of the record, that the witness was recalled upon the second day of the trial, whilst the examination of the witnesses was yet unfinished, and before the argument of the case had commenced. The record does not shew that the Commonwealth had gotten through the examination of the witnesses on her behalf, before the witness in question was called up for this further examination. The objection to the re-examination seems to consist merely in this, that after the witness had been examined and cross-examined, he was recalled, not merely for the purpose of explaining facts stated by him on cross-examination, but to testify to new facts, unconnected with his former examination and cross-examination. The re-examination by a party of his own witness, after a cross-examination by the adversary, in order to obtain evidence as to new matter, seems not to be allowable in the practice of the English Courts. Roscoe’s Or. Ev. 151. Nevertheless, it is stated, even there, if any material question has been omitted in the examination in chief, the practice is to suggest it to the Court, who will put it to the witness, or decline to do so, at its discretion. 2 Russ. Cr. 621; see also, 2 Gabb. Cr. L. 508. It would seem a most unreasonable rigour in the rule alluded to, if it shall be enforced so as to defeat justice, because of the accidental . . - , , , . omission of counsel at the regular stage to examine the witness as to this other matter, or if it were so inflexible as to preclude examination of the same witness, as to matter newly discovered, and which, therefore, could not have been searched out by enquiries when the witness was first upon the stand. This Court considers it as a matter resting in the sound discretion of the Court to allow a relaxation of the rule whenever the purposes of justice are thereby to be promoted; and we are of opinion, that upon the present occasion the Court below very properly permitted the re-examination of the witness.</p>

<p>1. What opinions formed and expressed will not disqualify a juror in a trial for murder.</p> <p>2. Several days being taken up in completing the panel in a trial for murder, it is not necessary that the jurors who have been sworn, shall be committed to the custody of the sheriff until the whole number of the panel is completed.</p> <p>3. The prisoner objecting to a juror, on the ground that the venire facias was illegally executed, and the Court sustaining the objection, it is proper to set aside the whole return, and direct another venire facias.</p>

David R. Hill was indicted at the October term 1846, of the Circuit Court of Henry county, for that he, without having a license therefor according to law, did on the 20th of August 1846, at his own house in said county, sell by retail, rum, brandy, &c., not to be drank where sold, against the statute in such case made and provided, &c. The defendant demurred to the indictment, and the Court below sustained the demurrer.

This is the same case which was before this Court at the June term, when a new trial was directed on the second count of the indictment. See supra, p. 663.

James Cole was indicted in the Circuit Court of Clarke county, for advising slaves to escape from their master. The indictment contained seven counts, some of which charged that the slaves were the property of Esther Lewis.

At the September term 1845 of the Circuit Court of Fluvanna county, the grand jury presented Jordan Scott, a free negro, for selling confectionary, oranges, lemons, &c. within six months last past, the same not being of his own growth, production or manufacture, without license for so doing within the county of Fluvanna.

Lina Williams was indicted for a trespass, in the Circuit Court of Greenbrier. He appeared and moved the Court to quash the indictment, because the name of the witness, upon whose testimony it was found, was not written at the foot of the indictment: and thereupon the Court, with the consent of the defendant, adjourned to this Court the following questions : 1. Whether the indictment ought, for the reason stated in said motion, to be quashed ? 2.