Volume 50 — Tennessee Reports

<p>FROM BLOTTNT.</p> <p>Appeal in error, by the State from the Circuit Court of Blount county. Elijah T. Hall, J., presiding. •</p>

<p>INDICTMENT. Disturbing pubUa worship. A presentment for disturbing public worship, which does not charge the acts committed, to have been “wilfully” done, is bad.</p> <p>Cases cited: State v. Doty, 5 Cold., 34; Morrow v.State, 10 Hum., 120.</p>

<p>Indictmestt: Joinder of offenses. An indictment for mayhem may charge in the same count that the defendant did “slit, cut off and bite off the ear,” &c.</p> <p>Code construed: 4606, 5121.</p> <p>Case cited: Whiteside v. State, 4 Cold., 182.</p>

<p>Statute oe Limitations. A party indicted, for a felony which includes a misdemeanor, is, if the proof shows him not guilty of the felony, and not guilty of the misdemeanor within twelve months, entitled to an acquittal.</p> <p>Code construed: 4983, 4988, 5122, 5223.</p> <p>Statute cited and construed: 1820, c. 9.</p> <p>Cases approved : Wilson v. The Stat.e, 7 Yer., 516; State v. Bowling, 10 Hum. 52.</p> <p>Case overruled: Garden v. State, 3 Head,r268.</p>

<p>1. Indictment. Attempt to poison. A charge of an “attempt to give and administer poison, by purchasing it and placing it in the hands of the defendant’s minor son, advising and directing him to administer it,” is sufficient in an indictment for an attempt to administer poison, under the Code, 4626.</p> <p>2 Same. Same. Assault. It is not necessary to charge an assault, in an indictment for this offense.</p>

<p>1. Pleading. Waiver. Replication. If a defendant in a misdemeanor, go to trial, without a replication to a plea of former conviction, it is a waiver of the defense.</p> <p>2. Same. Practice. Negligence. Where a plea of former conviction was filed at one term, and no replication was filed, and the trial was had at the next term on a plea of not guilty, affidavits of the defendant, and his counsel who filed his plea, that said counsel was engaged in another court when the trial began, and that defendant, with new counsel, had gone into the trial under the belief that it was another cause against the same party, was held to be no ground for a new trial.</p> <p>3. Grand Jurt. Caption of Indictment. If the facts necessary to show the proper organization of a grand jury, appear, either in the face of the indictment, or in the caption of the record of the court, it is sufficient on motion to quash or reasons filed in arrest of judgment.</p> <p>4. Indictment. Oath of Grand Jury. It is sufficient in an indictment, after showing that the Grand Jury was sworn, to aver that the Grand Jurors, &c., “ do present and say,” without the words “ upon their oaths aforesaid.”</p> <p>Cases cited: Long v. State, 1 Hum., 386; McClure v. State, 1 Yer., 206, 8 Yer., 514, 9 Hum., 119; Johnson v. State, M. & Y., 129.</p>

<p>FROM KNOX.</p> <p>From tlie Misdemeanor Court, C. V. Jokes, J., presiding.</p>

<p>. CHARGE oe Court. Doubts. A charge in a misdemeanor case, that the State need not show the parties guilty beyond a reasonable doubt, but that the proof must show the guilt of the defend ants to their “reasonable satisfaction,” that their best judgments must be that the defendants are guilty, so that the mind may rest easy, in the conclusion of guilt, is not error.</p> <p>2. Doubt. In misdemeanor. Reasonable doubt applies to misdemeanors, as well as felonies.</p>

<p>EBOM KNOX.</p> <p>In the Circuit Court, E. T. Hall, J., presiding.</p>

<p>Foemer ConvictioN. The proper judgment on sustaining a demurrer to a plea of former conviction, is, that the defendant answer over. He'may then plead a new or better plea of former conviction, or not guilty, or both.</p> <p>Cases cited: 9 Hum., 677; 10 Id., 431; 11 Id., 600; 5 Cold., 9; 1 Swan, 34.</p> <p>Code cited: 4994, 4995, 5001.</p>

EEOM HAMILTON. This was an indictment in the Circuit Court of Hamilton county, tried before W. L. Adams, J. The indictment was in these words: “State of Tennessee, Hamilton County, Circuit Court, February Term, 1868. — The grand jurors for the State, upon their oaths, present that Henry Williams, alias Andrew Williams, alias Andy Williams, colored, on the fifth day of November, 1867, in Hamilton county, aforesaid, did feloniously and of his malice aforethought, assault…

PROM LOUDON. Appeal from the judgment of E. T. Hall, J., presiding in the Circuit Court. cited Bishop’s Cr. Law, 552, and cases there cited. He admitted that the better ruling would be to retain the jurisdiction in the old county, as the other would perhaps interfere with pending prosecutions. insisted that it would be a departure from the Constitution to try a defendant in the new county for an offense committed in the old.

FROM KNOX. In tbe Circuit Court. E. T. Hall, J., presiding. The indictment upon which the prisoner was convicted was in the common law form. cited Roscoe, Cr. Ev., 569, 576-7, m.; 2 Whar. Am. Cr.

<p>EBOM KNOX.</p> <p>In the County (misdemeanor) Court. C. W. Jones, J., presiding.</p>

<p>P-LEAtetire. Former Conviction. A plea of former conviction, which avers that the former judgment was reversed and the indictment thereupon dismisssd, is bad.1</p> <p>Cases cited: Walton v. Stale, 3 Sneed, 687; Thurston v. State, 3 Cold., 117.</p>

<p>FROM LINCOLN.</p> <p>Appeal from a judgment of tbe Circuit Court of Lincoln county. N. A. Patterson, J., presiding.</p>

PROM SMITH. Appeal from tbe Circuit Court, A. McClaiN, J., presiding. cited Constitution, Art. 1, s. 9; Armstrong v. State, 1 Cold., 338; 'Kirk v. State, lb., 344; and insisted that tbe crime being one of omission, tbe failure to pay occurred where the payment ought to have been made: at tbe Treasury; and as to its locality, be cited Code, 228, 229. They cited also, 1 Bish. Cr. Pro., § 79.

FROM WHITE. In the Circuit Court. W. W. Goodpasture, J., presiding. insisted that as the Code 4706 requires some act of commission “use by loan, investment or otherwise, or a conversion, to constitute the offense of embezzlement, and the Acts of 1860, c. 131, and 1868, c. 79, s. 14, only require an omission to pay — 'the acquittal under the former act, did not disprove the omission. Embezzlement includes failure to pay, but failure to pay does not constitute embezzlement.

FROM WHITE. Appeal from the judgment of the Circuit Court of White county. S. M. Fite, J., presiding.

FROM PUTNAM. Appeal from the judgment of the Circuit Court, S.M. Fite, J., presiding. insisted that though the cause for excluding the evidence of the bond was not tbe propel' one, yet the exclusion of the evidence was proper on other grounds. The evidence showed the church in possession under a deed, for twenty years before the bond was given. The bond, if produced, would have been an inferior equitable title against the elder legal title.

<p>FROM ROBERTSON.</p> <p>In the Circuit Court, before John A'. Campbell, J.</p> <p>cited Code, 5369, 5370.</p>

PROM MONTGOMERY. Special Criminal Court, Thos. W. King, J., presiding. insisted, that there was no legally constituted grand jury, the venire being returnable to the second Monday in September, ■ 1870, when by law the court is to be held on the 1st Wednesday of each month.

<p>1. Evidence. Witness. Want of understanding. An illiterate colored witness, of the age of 13 or 14, stating on examination as to her capacity, that if she swore a lie she would go to the bad world, held competent to testify.1</p> <p>2. Same. Discrepancies in statements of witnesses. Immaterial discrepancies in the statements of witnesses, do not affect their credibility, unless there is something to show that they originate in willful falsehood.</p> <p>3. Transcript. Several indictments. There being two indictments in the record, and it not appearing which of them the prisoner was tried upon, one being invalid, purporting to have been found at a time when no court was held, it was held that the conviction was upon the other.2</p> <p>4. Indictment. Attorney General, pro terni. The fact that an indictment is signed by an Attorney General, pro tem., whose appointment is not shown by the record, is not material after a verdict on a plea of not guilty: Code, 5242.</p> <p>5. Larceny. Value of Notes. Proof of. If it be necessary to prove the value of United States treasury notes stolon, it is sufficient proof of value, that the defendant declared that he had spent them.</p> <p>6. New Trial. Want of diligence. A new trial will not be granted, to enable a defendant to procure evidence of which he was cognizant before the trial, where he has made no effort to procure a continuance that he might obtain the testimony.</p> <p>Cases cited: Baldwin v. State, 1 Sneed, 416; State v. Shaw, 3 Sneed, 86.</p>

FROM STEWART. In the Circuit Court, before James E. Rice, J. cited 1 Plowd., 171; 2 Saund., 401, n. 2; 1 P. Wms., —; Bouv. Law Die., Title “House.” Insisted on the incompetency of Judge Rice, and cited Code, 3913; Fout v. State, 3 Hay., 94. conceded the incompency of Judge Rice, under the Const., Art. 6, s. 11, and the Code, 8913, sub-sec. 4.

<p>Boabs. Signs at railroad crossings. A turnpike company is not the overseer of a public road within the meaning of the Code, 1223, acquiring notices to be placed at every crossing of their roads by a a-ailroad, to “look out for the cars,” &c.</p> <p>Case doubted: State v. M. & A. of Loudon, 3 Head., 263.</p> <p>Code construed: 1223.</p>

FROM WILSON. Criminal Court. Wm. H. Williamson, J., presiding. insisted that the word or was not in this ease an alternative conjunction, expressive of one of two things, but of two or more descriptions of the same thing. The statement iu the indictment is, that the defendant did carry a belt or pocket pistol, or revolver. These may all be different descriptions of the same revolver, which may be at the same time, a belt pistol or a pocket pistol.

FROM ERANKLIN. Circuit Court, July Term, 1867, before N. A. Patterson, J. on the necessity of filing reasons in arrest, cited 1 Arch., 672, n., citing State v. Wing, 32 Me., 581; 2 Tidd’s Pr., 917, top. No change by Code, 5242. On the main point, cited Graham y. State, 3 Sneed, 134.

<p>FROM DAVIDSON.</p> <p>Criminal Court, before JOHN Hugh Smith, J., January Term, 1870.</p> <p>cited: 1 Starkie Ev., 510; Kirby v. State, 3 Hum., 289; Hensley v. State, 9 Hum., 243.</p> <p>cited Wright v: State, 9 Yer., 344, 345; Rhea v. State, 10 Yer., 260, and 1 Green!. Ev., 280, § 233. He distinguished this case from Hensley’s case, because there the admissions held to be evidence were made before the offense was committed, and cited, 1 Greenl. Ev., § 181, showing a similar distinction as to bankrupts. As to the want of a venire, he cited the Code, 5242.</p>

<p>EROM HARDIN.</p> <p>Circuit Court,' March Term, 1869, J. F. McKinney, Special J., presiding.</p>

EROM HAYWOOD. Circuit Court, May Term, 1870. Before ¥h. P. BOND, J. insisted that the indictment was defective for want of a specific statement of a time when the offense was committed, citing 1 Wharton’s Cr.

<p>Indictment. Joinder of offenders and offenses. An indictment against two persons for assault and battery upon three persons, is good.</p>

FROM MADISON. Circuit Court, W. P. BOND, J., presiding. October Term, 1870. insisted that the indictment was bad for duplicity, “give” importing a different offense from “sell, vend and retail,” citing 1 Whart. Cr. L., 382, and cases cited, especially Miller v. State, 5 How. Miss., 250; Arch. Cr. PL, 49; White-side v. State, 4 Cold., 175. That the presentment ought to allege that an election was held on' that day.

FROM CARROLL. In tbe Circuit Court, May Term, 1871, Isaac R. Hawkins, Special J., presiding. The defendant was convicted for feloniously prowling and travelling in disguise, &c. among other points, insisted that the Act of 1870, c. 78, s. 1, Sess. A., p. 125, is unconstitutional.

The case of The State v. Andrews, was tried in the Circuit Court of Gibson county, at February Term, 1871, before Gid. B. Black, J., and upon a conviction, defendant appealed. O’Toole was indicted in the Circuit Court of Carroll, where, at May Term, 1871, he moved to quash before James D. Porter, J., on the ground that the Act of 1870, c. 13, was unconstitutional, and because the indictment did not charge that the pistol was a belt pistol, or pocket pistol.

eeoM latjderdale. In.the Circuit Court, January Term, 1871, T. J. Flip-PIN, J., presiding. insisted that the indictment ought to have been quashed because the Term did not open on the day appointed by law. Cited. Code, 4220, 4222. That the record did not show that the witnesses were sworn in open court, on the indictment; that there was error as to the verdict: citing, Dougherty v. Shown, 1 Heis., 302.

<p>PROM GIBSON.</p> <p>Circuit Court, October Term, 1870. Before Gid. B. Black, J.</p>

PROM SHELBY. Writ of error to the Criminal Court. The prisoner was tried before Jqhh R. FlippiN, J., at September Term, 1870. insisted that the Code, 4981, was unconstitutional, citing Simpson v. State, 4 Hum., 456; Code, 4977, 4697; Hex v. Prowes, 1 Moody Cr. C., 349; Armstrong v. The State, 1 Cold., 338; People y. Gardner, 2 John., 477; People v. Schenk, 2 John., 479; Co wen’s Cr.

<p>1. Constitutional Law. Right of accused to be heard. Under the Constitution of the State, Art. 1, s. 9, giving to a person accused the right to be heard by himself and his counsel, the right conferred is not to make a sworn or unsworn statement of facts not otherwise proved, but to argue the case upon the facts in evidence.</p> <p>2. Confessions. When voluntary. Where a prosecutor, pursuing a prisoner, came up with him in the road, drew his gun, and ordered him to halt, and his brother coming up, said the prosecutor ought to have shot the prisoner, when the prosecutor said to the prisoner he should not be harmed; and thereupon the parties proceeded two and a half miles, when the prisoner confessed. Held admissible in evidence.</p>

PROM SHELBY. Criminal Court, January Term, 1871. Before JOHN B. FlippiN, J. insisted that the conduct of the prisoner on the first trial, taking part in the selection of the jury and making challenges, was an authority to the court to enter the plea of not guilty: Ilensche v. The People, 16 Mich., 46; cited People v. Frost, 5 Parker’s Cr. B., 52, as to purpose of arraignment; Code, 5242.

PROM MEIGS. Circuit Court, June Term, 1871. Johk B,. Hoyle, J., presiding. insisted that tbe presentment did! not charge any offense against the laws of this State.

EROM ftl’MINN. Circuit Court, August Term, 1871. ---2 for the prisoner, cited: Williams v. The State, 8 Hum., 585; Neville v. The State, 7 TIum., 78, cited Peek’s case, 2 Hum., 78; and Perdue’s case, lb., 494; and the Code, 5114, 5115, 5119, 5120. Of these, 5115 dispenses with all “words not essential to constitute the offense;” and insisted that the words necessary to constitute the offense were those chosen by the Legislature to define it.

FROM RHEA. Circuit Court, July Term, 1866. The record does not show what Judge presided. insisted that a threat that prosecutor “should suffer the consequences,” is too vague, and can not be supplied by inference. No threat charged to do any specific injury. said: It is objected that the threat is vague; 1st, that prosecutor should take the consequences.

FROM HAMILTON. County Court. A. G. W. Puckett, J., presiding insisted that the indictment was for a misdemeanor simply. If otherwise, the grand jury had no power to find the presentment; and the plea in abatement, that it was found upon the information of witnesses, was good: 4 Cold., 199; 1 Hum., 59; Meigs, 192. The presentment is defective, for not averring knowledge by each of the status of the other, knowledge being the gist of the offense.

PROM HAMILTON. Circuit Court, July Term, 1871. John B. Hoyl, J., presiding.

PROM ANDERSON. Circuit Court, March Term, 1871, E. T. Hade, pre- There was no evidence, of notice of the payment to the District Attorney, before the motion was entered, or of tender of the costs of the notice.

EBOM KNOX. Criminal Court, May Term, 1871. Indictment quashed.

<p>FROM FENTRESS.</p> <p>Circuit Court, July Term, 1871. Motion before E. T. Hall, J., to tax costs, allowed. J. M. Thornburg, District Attorney, appealed for the State.</p>

<p>1. Indictment. -Affray. Public place. An indictment for an affray charging a fighting in a public place, is good without further description of the place.</p> <p>2. Aeeray. Need not originate in a public place. A fight commenced in private, but carried by flight and pursuit to places where people are assembled, is an affray.</p> <p>3. ERROR. Charge on hypothetical case. An error in the charge of the court below, which has no application to the facts proved, is not a ground of reversal.</p>

EROM KNOX. Presentment in the Criminal Court, September Term, 1870.

STtOM KNOX. Criminal Court, June Term, 1871, before M. L, Hall, J. The proof showed “that the defendant was married to and lived and cohabited with the person charged in the indictment, previous to the finding of said indictment.” The indictment was found March 8, 1871.

<p>1. Costs. Fees for taxing costs. The Clerk of the Supreme Court is entitled to tax a fee of 50 cents in each case, for taxing and entering on the • execution docket the bill of costs from the inferior, and an additional fee for taxing and entering the bill of costs in the Supreme, Courts.</p> <p>2. Same. Law of, construed liberally. The law of costs, is, by the Code, 3219, to be construed remedially, and this construction applies as well in favor of officers and witnesses, as to parties.</p> <p>Code construed: 4551, 3219.</p>

EJROM HAWKINS. Circuit Court. Before E. E. GilleNWATERS, J. The evidence in the case of Wilson Johnson was as follows: “I bought some liquor of the defendant on the 13th day of May, 1871. It was on the day of an election. I got the liquor from the defendant at his house, where he kept it to sell; he lived about one mile, or one mile and a quarter from the election ground; got some liquor in the morning and some in the evening.

FROM GREÉNE. Circuit Court, October Term, 1871, before E, E. GillENWATEKS, J. cited 2 Archb., 304, where the form is the same, except that the addition “spinster” is there given. That being merely a feminine termination, is not a more satisfactory indication of sex, than “her” and the feminine name Sarah. And see lb., 159, and cases in note. Ravish is technical, lb., 159. Indictment is good at common law: Code, 5119.

FROM KNOX. Circuit Court, November Term, 1870. O. P. Temple, Otu, presiding by interchange. insisted that if a man be convicted for an offense, included in a greater offense, he could not afterwards be tried for the greater offense; as the lesser being included in the greater, must be punished with it, which would be a double punishment as to the lower offense. Cited 1 Bishop, § 838, 884, 889, 892, note 2; 1 Chit. Cr. L., 458, 486; 1 Whar. Am. Cr. Law, § 563, 565.

<p>FROM MONTGOMERY.</p> <p>Criminal Court, September Term, 1871, before T. W. King, J.</p> <p>cited 11 Hum., 39; 4 Sneed, 357; 2 Wat. Archb., 356-7, and notes; Com’l v. Smith, 1 Mass., 245; Wilson v. State, 1 Porter, 118; 1 Archb., 283; Kit v. State, 11 Hum.; Hope v. Com’l, 9 Mete.</p>

<p>FROM MONTGOMERY.</p> <p>Criminal Court, June Term, 1871. T. W. King, J.</p> <p>cited: As to foreman of .grand jury, 9 Yerg., 3.25; 8 Yer., 166. Examination. before J. P.: 2 Swan, 581. Confessions, 2 Cold., 223; 5 Cold., 300.</p>

<p>EROM MONTGOMERY.</p> <p>Criminal Court, Nov. Term, 1871. T. W. King, J.</p>

PROM MONTGOMERY. Criminal Court, January Term, 1871, before Jakes E. Rice, J. insisted: 1st, that the transcript of the record from the Circuit Court of Montgomery, to the Criminal Court of Montgomery, is not properly certified.

<p>EROM MONTGOMERY.</p> <p>Criminal Court, August Term, 1871. T. W. King, J.</p> <p>cited: Code 4680; State Y. Sharrer, 2 Cold., 324; State v: Barker, 4 Sneed, 555; Eskridge v. State, 1 Swan, 414; Sioord v. State, 5 Hum., 102, 103; Dean v. State, 5 Yer., 367; Brown v. State, 5 Yer., 367; Caldecott, K. B., 432; Gom’l v. Maxwell, 3 Pick, 139. Insisted that there was a distinction in pleading, between offenses affecting the public, as disturbing public worship, affray, nuisance, gaming and selling 'liquor to slaves, where the party injured need not be named, and offenses injurious to the person.</p>

<p>FROM LINCOLN.</p> <p>Circuit Court, November Term, 1871, before W. P. Hickerson, J.</p>

<p>EROM MAURY.</p> <p>Circuit Court, May Term, 1871, Yi. P. Martin, J., presiding.</p> <p>cited, to the defect in the indictment, Lucius Witt v. The State, 6 Cold., 6; Williams v. The State, 8 Hum., 595; 7 Cold., 78; Code, 4597, 4598, 4599; Chitty, 163; 4 Bl. Com., 307; 2 Hum., 78; 10 Hum., 120. As to tbe prejudice of jurors, Brahejield v. The State, 1 Sneed, 215; Mann v. The State,. 3 Head, 370; Troxdale et al., v. The State, 9 Plum., 416; Cooke, 315; 3 Haywood, 159; 4 Hum., 27; 2 Head, 520; 3 Head, 87.</p> <p>The indictment is defective, because it does not charge to have been committed either feloniously or unlawfully: Arch. Cr PL, 42; 2 Hum., 78; 10 Hum., 120; 11 Hum., 167 6 Cold., 6; 8 Hum., 585; Chitty’s Grim. Law, 242 Bouv. Law Die., vol. 1, 517. As to the word felo-niously: JBudd v. State, 3 Hum., 483.</p> <p>Fair and' impartial trial: Bill of Bights, s. 9; Alfred v. State, 2 Swan, 581; Moses v. State, 11 Hum., 232; 10 Hum., 456; Henry v. State, 4 Hum., 270; McGowan v. State, 9 Yer., 184; Payne v. State, 3 Ham., 375; Brahefield v. State, 1 Sneed, 215; 1 Swan, 61; 3 Head, 373.</p> <p>The onus is not upon the prisoner to show that the verdict was improper, if the juror is shown to be incompetent : Sam v State, 1 Swan, 61.</p> <p>The Court should have charged on all material points in the record: 2 Swan, 237; 4 Cold., 190.</p> <p>cited Williams v. State, 3 Heis., 37; Dillard v. State, 3 Heis., 260; and attached the case of Witt v. State, 6 Cold., 6, as being decided without reference to the Code.</p> <p>The word felonious does not occur in the definition of murder, Code, 4597. The Code does not declare, as the act of 1829 did, that the offenses described therein are felonies. Felony is a word of unknown meaning: 1 Arch., 1; Buss, on Cr., 43. It will not supply the word maliciously: Killenbeeb v. State, 10 Md., 431; State v.-Gove, -; State v. Cord, 34 N. H., 510; Bex v. Turner, 1 Moody, O. C., 239.</p> <p>The Code, 5115, dispenses with technical words, and declares that it is not “necessary or proper” to use words “not essential to constitute the offense.” The essentials to constitute murder are, 1 willful, 2 deliberate, 3 malicious, 4 premeditated, killing. If felonious adds anything to these, it adds what is not essential. If it adds nothing to the meaning, it is useless repetition, or nonsense. Every unlawful killing, with malice, is murder,1 but these circumstances are matters far beyond unlawfulness^ and necessarily include it. Cited Anderson v. State, 5 Ark., 444.</p> <p>Courts may modify forms: Lamden v. State, 5 Hum., ■ 83; JR. v. Mosley, 2 Arch., 888, n.; where an order of Lawrence, J., is recognized as an authority for changing the form of an indictment.</p> <p>Indictment may follow statute: State v. Ladd, 2 Swan, 226. Improvements are to be favored: Isham v. State, 1 Sneed, 115.</p> <p>On the competency of the jury, they cited Norfleet’s Case, 4 Sneed, 342, where it was held to be error to discharge a juror, unless it appeared that he had formed his opinion from more than rumor: Major’s case, lb., 608, Mann’s case, 3 Head., 375, is full on this question... Biddle’s affidavit in this case shows that the juror qualified himself on his examination. It does not show that he did not make a statement consistent with the affidavits as to his declarations. The Judge below heard the whole case, and acted upon that. This court has no information what appeared on the- voir dire. It can not see that there is error. Reviewed Howerton’s case, Meigs, 262; Troxdale v. State, 9 Hum., 416; Brake-field’s case, 1 Sneed, 215; Norfleet v. State, 4 Sneed, 342; Mann v. State, 3 Head., 373.</p> <p>The error must appear: Ewell v. State, 6 Yer., 374¿ McClure v. State, 1 Yer., 206; Jamigan v. Mairs, 1 Hum.,, 479; Nolen v. Wilson, 5 Sneed, 340, and cases there cjte&g Large v. Dennis, 5 Sneed, 597; Currier v. Bank of Louisville, 5 Cold., 464; Isham v. State, 1 Sneed, 114, 115.</p> <p>Cited numerous authorities from other States, to the point that objection to a juror propier defectum, is no ground for a new trial; and from this State, McClure v. The State, 1 Yer., 213, 214; 6 Yer., 375; Gillespie v. The State, 8 Yer., 507; 1 Hum., 253-, 259; 10 Yer., 530.</p>

EBOM GILES. Circuit Court, August Term, 1871. ¥m. P. Mab-TIN, J. in addition to the points noticed by the Court, objected that the bill of exceptions stated, that the judge in his charge read to the jury sec. 4626 of the Code, but did not set it out in his charge.

FROM OVERTON. Indictment in tbe Circuit Court of Fentress. Change of venue to Overton. Tried at June Term, 1871, S. M. Fite, J., presiding. The indictment was for the murder of Catharine Galloway. She was found, on the 20th day of November, 1868, lying dead, with mortal wounds on her body, in the house where she lived with her mother, Lucy Galloway, and two children.

<p>EKOM CORTEE.</p> <p>Circuit Court, September Term, 1871, before W. P. ItickeesoN, J.</p>

FROM MAURY. Error to the Circuit Court. Judgment, June Term, 1871. Wm. P. Marten, J,, presiding. insisted that the Code, '5242, sub-seo. 9, is contrary to the Constitution. That the right of trial by a jury of the county was secured by magna ¿harta, c. 29; 4 JBl.

<p>Statute. Passed when signed. The time at which an act of Assembly takes effect, forty days after its passage, is ascertained by computing from the date of its signature by the Governor, or its final passage over his veto.</p>

<p>PROM PE KALB.</p> <p>Circuit Court, July Term, 1871, S. M. Fite, J.</p> <p>insisted that the indictment must charge the assault to be felonious: citing Act of 1829, c. 23, s. 53;- Code, 4615; Williams v. State, 8 Hum., 585; Nevills v. State, 7 Cold., 78; 2 Grant, (Pa.,) 385; Wharton’s Pr., 255; Felony defined, 4 Bl. Com., 94; Ballew v. Alexander, 6 Hum., 434. Admitted that the first section of the Act of 1829 was omitted from Code.</p> <p>On the evidence of rape, cited: Phillips v. State, 9 Hum., 246; East’s P. C., 443; 4 Bl., 214 n., 215; 1 Russ on Cr., 691; Roscoe Cr. Ev., 862; Major v. State, 2 Sneed, 11; 4 Sneed, 597.</p> <p>On the charge they cited: Phipps v. State, 3 Cold., 348.</p> <p>Dillard v. Slate, ante 260; Biddle v. State, ante, 401; Williams v. State,- ante, 39; J. G. Williams v. State, ante, 376.</p> <p>On the presumption in favor of proceedings below: Stanley v. Grippen, 1 Head, 116; Cornelius y. Merritt, 2 Head, 99, 100; Nolen v. Wilson, 5 Sneed, 340; Large v. Dennis, lb., 597; State v. Harder, 2 Dev. & Bat., 407; Thomas v. Alexander, lb.-, 385; Pickett v. Pickett, 3 Dev., 6; Turner v. State, 9 Hum., 119, 120; Isham v. State, 1 Sneed,' 114; Bedford v. State, 2 Swan, 73; Betts v. JDemumbrune, Cooke, 39, 48; McGavoch v. Ward, lb., 403, 405, 406; Kelton v. Bevins, lb., 102; Gregory v. Alien, M. & Y., 74, 77; White v. Hembree, 1 Tenn., 529; Cassel v. Franklin, 2 Tenn., 201; Mitchell v. State, 5 Yer., 346; Wartraee v. W. & B. G. T. Co., 2 Col., 519; MeBee v. Petty, 3 Col., 178; Williams v. State, ante, 379; Meigs’ Digest, § 602; Harris v. State, per Nelson, J., Nashville, 1871.</p> <p>The presumption is the same in civil and criminal cases: McClure v. State, 1 Yer., 217; Ewell v. State, 6 Yer., 374; Gillespie v. State, 8 Yer., 508. And see Turner v. State, post, 452.</p>

<p>1. House Steading. Verdict. When capital Under the Act of 17th May, 1865, e. 5, s. 1, horse stealing is capital, in all cases where the jury do not commute the punishment; and a simple verdict of guilty is sufficient for the infliction of the death penalty.</p> <p>2. Chaege. Reference to Statute. If the Bill of Exceptions show that the judge read “the Act on which the indictment was founded,” without further description, it is sufficient without setting it out in words.</p> <p>3. Indictment. Description. Color and sex. If the indictment describe the animal stolen, by color and sex, the color and sex must be proved as laid, but such description is unnecessary.</p> <p>4. Same. Color. Proof of. Where the indictment described the animal as a bay, proof that the animal was a bay or red sorrel was held sufficient to support the verdict.</p> <p>5. Error. Must appear. To obtain a reversal in a court of errors, error must be affirmatively shown.</p> <p>Case cited: Kirby v. State, 7 Yer., 259.</p>

FROM LINCOLN. Circuit Court, July Term, 1871. W. P. Hickerson, J. cited Code, 4657, and Whart. Am. Cr. Law, title, Malicious Mischief. cited and commented on the State y. Wiloox, 3 Yer., 278, insisting that the original construction of the Act of 1803 was strained, as it made the act criminal if done either maliciously or of purpose.

FROM GILES. Circuit Court, August Term, 1871. Wm. P. MARTIN, J. cited Hope v. Com?I, 9 Mete., 134; State v. Williams, 10 Hum., 101; Baldwin v. State, 1 Sneed, 411; 2 Arch. Cr. PL, 356, n. cited, on effect of verdict and judgment below, same authorities cited in Jones v. State, ante, 446; allegation of value of property stolen, and verdict, State v. Hood, 51 Maine.

<p>.FROM WILSON.</p> <p>Criminal Court, June Term, 1871. W. H. Wil-liaMson, J., presiding.</p> <p>Smith v. State, 1 Hum., 396; Hutehinson v. State, 5 Hum., 142; Act of 1844, c. 98, not carried into Code, and so repealed; 1859-60, c. 10. See, also, 1843, c. 141, s. 4.</p>

<p>EROM DEKALB.</p> <p>Circuit Court, July Term, 1871. S. M. Pite, J.</p> <p>cited 10 Hum., 456; Henry v. State, 4 Hum., 270; Brahefield v. State, 1 Sneed, 215; Alfred v. State, 2 Swan, 582.</p> <p>cited McGowan v. State, 9 Yer., 184; Moses v. State, 10 Hum., 456; Alfred v. State, 2 Swan, 581; Carroll v. State, 3 Hum., 315, 317; Henry v. State, 4 Hum., 270.</p>

<p>EROM DAVIDSON.</p> <p>Criminal Court, May Term, 1871. Thos. N. Frazier, J., presiding.</p> <p>insisted that the indictment was bad, citing Whar. Cr. L., 168, (3 ed.,) 488, 489; 2 Hale, 186, Archb. Cr. PL, 384; Hawk. P. C., b. 62; 1 Dev. (N. C.,) 139; 2 Virginia Cases; Archb. Cr. PI. (5 ed.,) p. 51, 53, top.; 10 Hum., 121; State v. Heflin, 8 Hum., 85.</p> <p>That the bill of exceptions shows that it contains all the evidence, and there is no evidence of venue. That the Code, 4542, sub. see. 9, is in contravention of the Constitution, Art. 1, s. 9.</p> <p>cited the Code 5114, 5115, 5117, and insisted that the indictment was certain; that William Stewart could only have been killed once, and that a charge of killing him was as certain as any number of circumstances could make it. That the weapon was not necessary to be charged. It was no longer deodand. It need not be proved as laid. It was ridiculous to say you may charge a pistol and prove a shot gun or a cannon; charge a knife and prove a sword, battle-ax or spear. The nature of the wound need not be alleged, for, if alleged, it need not be proved as laid. It need not be alleged to be mortal, for, if it killed, it was necessarily so.</p> <p>As to venue, he urged the same matters as in Mays v. The State, ante, p. 434; and also that it was not matter of presumption for the court, but it was a question whether the Legislature could establish a presumption. He insisted that the Legislature could declare that a general statement, that the bill of exceptions contained all the evidence should be regarded as subject to the qualification that it did not include the evidence as to venue unless it was specially stated that it contained the evidence on that point. This was the effect of the ' clause objected to. The Legislature could fix the burthen of proof. They could require a special plea to put venue in issue or put the proof on the defendant, and, of course, could fix the burthen of putting facts into a bill of exceptions without affecting the constitutional right of persons to be tried in the county.</p>

FROM DAVIDSON. Criminal Court, January Term, 1872. Thomas N. Frazier, J. insisted that an indictment for robbery, does not include simple larceny, but does include stealing from tbe person; citing 3 Green!., § 229, (Redf. ed.); also, note; Code, 4682; Carden v. State, 3 Head, 267. In tliese offenses the value is not material, Code, 4681, 4682; in simple larceny it is. cited 1 Archb., 308, 9; 606, n.; 1 Russ on Cr., 905; Code, 5122, 5222.

The defendant was convicted in the Circuit Court of Van Burén county, at the August Term, 1871, the charge being that she “did sell spirituous liquors in quantities of one quart, and in quantities, without having taken the oath and given the bond not to adulterate said liquors, as required by law.” Judgment was en-entered for fine and costs; but ~W. P. HickersoN, J., afterwards arrested the judgment.

<p>EJROM DAVIDSON.</p> <p>Criminal Court, May Term, 1871. Thos. N. Fjra-ZIER, J.</p> <p>cited the case of The State v. Saville, MS., Knoxville, September Term, 1871.</p>

EROM DAVIDSON. Criminal Court, September Term, 1871. Thos. N. Frazier, J. cited the authorities generally, on jeopardy. As to the unsigned minutes, they cited the Code, 4040, 4101; Hite v. State, 9 Ter., 380; Ch. Cr. L., 459.

<p>FROM COFFEE.</p> <p>Circuit Court, September Term, 1871, before W. P. Hickerson, J.</p>

<p>PROM ROBERTSON.</p> <p>Circuit Court, October Term, 1868. Jno. Alex. Campbell, J.</p> <p>commented on 1 Ch. PL, 333, (8 Am. ed.); Cited Carroll v. Foster, 3 Yer., 468; lb., 461; Hughes v. Smith, 5 Johns., 168; Fletcher v. Peek, 6 Cr., 127; Michie v. The Governor, 4 Hum., 486,</p> <p>cited Blair v. Billingsly, Peck, 85, 89, and cases cited; MoJNairy v. Thompson, 1 Sneed, 141; Carnes v. Apperson, 2 Sneed, 562; 1 Chitty PL, 321 to 328; 2 lb., 555; 2 Saund., 352..</p>

<p>1. Judgments. Void and voidable. A judgment rendered before a Justice of the Peace, before the return-day of the warrant, is not void, but erroneous.</p> <p>2. CebtiorAbi. Court must act upon grounds laid.. A certicn'ari granted to re-try a cause, does not authorize a court to quash the execution issued on an erroneous judgment, without trial.</p>

FROM WHITE. Chancery Court at Sparta, March Term, 1860. S. J. W. Lucky, Ch., presiding by interchange, overruled the demurrer. Final decree, September Term, 1867, before B. M. TillmaN, Ch. cited, as to demurrer, Woods v. North, 6 Hum., 309 to 313; 4 Hum., 66; 1 Head., 640. On the verification of the answer, he cited, Code, 4398.

<p>FROM WHITK.</p> <p>Chancery Court at Sparta, September Term, 1868, before B. M. TillMAN, Ch.</p> <p>cited: 3 Sneed, 462; M. & Y., 323, 332; 10 Yer., 335; 2 Yer., 193 to 199; lb., 509 to 513; 1 Yer., 71 to 73; lb., 302; lb., 337, 338; 1 Hum., 491 to 497; 6 Yer., 108 to 118.</p> <p>cited; Burrow v. Henson, 2 Sneed, 658.</p>

<p>1. Escheat. 'Aet of 1850, c. 54, valid. The lands of an unnaturalized resident, which were sued for by the State as escheated, and'the suit dismissed under the third section of the act of 1850, c. 54, by virtue of that act vested in the widow of such resident.</p> <p>2. Execution Sake. Dower in equity not subject to. A dower interest laid off, out of an equitable estate, is not subject to execution at law for the 'debt of the dowress.</p> <p>3. Lis Pendens. Conveyances pending a suit. A deed executed pending a suit by parties to the suit, does not affect the title, but the purchaser, though not a party, is bound by the decree.</p> <p>Cases cited: Pueheti v. State, 1 Sneed, 358; Combs v. Young, 4 Ter., 218; Balcer v. Heishdl, 1 Cold., 642.</p>

<p>Motion to strike cause from docket.</p> <p>cited Code, 3177, 3179, 3180, 3181, 3183: Montgomery v. Buck, 6 Hum., 416; 2 Cold., 487.</p>

EROM MONTGOMERY. In the Chancery Court at Clarksville, April Term, 1867, before Ti-ios. Barry, Ch. insisted that tenant for life can not charge remainderman for improvements: Washb., R. Pro., 95 mar.; Williams on R. Pro., 28 mar.; Marablev. Jordan, 5 Hum., 417. Korean he charge the executor: 5 Rich., Eq., (So. Car.,) 401.

EEOM SMITH. In Chancery at Carthage, before B. M. TillMAN, Chancellor. The bill alleged that the defendant, Joseph Meador was in possession of the deed of ~W. A. Meador, .late husband of complainant, and that he claimed to hold it under a parol mortgage and deposit of the deed. That he had sold the land to a co-defendant, Jones, and made him a deed, and prayed the delivery of the deed deposited, and the cancellation of the other deed as a cloud.

<p>1. ADMINISTRATOR. Stayor of Judgment against. Suggestion of Insolvent^. A bill will not lie, by an executor who has wasted assets to enjoin a suit or judgment in favor of a stayor, who, at his instance, has stayed and paid a judgment against th§ executor for a debt of the estate, though the estate has become, and been suggested to be, insolvent.</p> <p>2. Same. Same. Devastavit. The failure of an executor to pay a debt when the estate is solvent, and his allowing judgment to be taken and stay to be entered, is prima facie evidence of waste if the estate subsequently became insolvent.</p>

FROM SMITH. Chancery Court at Carthage. The decree of February, 1865, was rendered by J. O. Shachelford, Chancellor, and the orders of February, 1866, by Ti-iomas Barry, Chancellor. cited 2 Cold., 38, and Lowry v. Naff, 4 Cold., 370, as to the jurisdiction of the original bill; and 9 Hum., 525, on the bill of review. On the refusal of the appeal, Gill v. Creed, 3 Cold., 295.

PROM WHITE. County Court, August Term, 1866, dismissed tbe petition, from which the petitioners appealed to the Supreme Court. insisted that the debt of the husband could not be set-off against the distributive share of the wife, and cited Code 2483. insisted on the want of parties, and that the County Court had no jurisdiction, citing Bowers v. Lester, 2 Heis., 456.

FROM SMITH. Chancery Court at Carthage, October Term, 1867. B. M. TillmaN, Ch., pronounced a decree granting relief, but not to the full extent prayed, from which both parties appealed. cited, on jurisdiction, Lowry v. Naff, 4 Cold., 370. On equitable set-off, Brazelton v. Brooks, 2 Head, 194; Lindsay v. Jaekson, 2 Paige, 581; Gay v. Gay, 10 Paige, 369; Williams v. Helm, 1 Dev. Eq., 151; Bichardson v. Parker, 2 Swan, 529.

FROM MONTGOMERY. Motion to dismiss appeal as prematurely granted. insisted that the decree not being final, the appeal could not be granted on the ground of sale, as the sale was prayed by the complainant; that the only other ground of appeal from such a decree was, that it should determine the principles involved in the case, which was not done. insisted that the sale before the settlement of the priorities, was, what it was the very purpose of the bill to prevent, and so…

<p>1. Appeal. Pasties. Former decree. A decree of the Supreme Court, made upon an appeal by part only of the defendants interested, though the opinion of the court shows a doubt as to the power of the court to bind the others, infant defendants, will affect the rights of the parties as to whom no appeal is prayed, unless such right is saved by the decree. But if it appears from the opinion, and the manner in which the case was presented, that a particular question was not presented, or intended by the parties to be passed upon on the appeal, the court will not, on a subsequent appeal, be precluded from an examination of the question.</p> <p>2. Chanceby Jurisdiction. Compromise of infants’ rights. "Where a compromise is made of doubtful rights the Chancery Court has power, on behalf of minors, to ratify the compromise, and will exercise the power where it is plainly for the benefit of the minors. Case cited: Trigg v. Head, 5 Hum, 545.</p> <p>3. Marriage Settlement. Fower of married women. A married woman, who by marriage contract has provided that her real estate “shall remain, and enure to her sole use and benefit, subject to her uncontrolled disposition and pleasure, as much as if she remained an unmarried woman, with the further right of selling or disposing of it by her last will and testament,” has the power to dispose of the land by executory contract of sale.</p> <p>4. Conversion. Contract of sale. An executory contract for the sale of land, operates a conversion of the property into personalty, and it goes to the distributees.</p> <p>6. COMPROMISE. Consideration. Sucli a sale, if subsisting at the death of the married woman, with a bill filed afterwards to enforce it, is a valid basis of a compromise on the part of infant heirs with adult distributees.</p> <p>6. Distributee. May aid in setting up sale to establish conversion. Where a bill is pending by a purchaser of land to enforce his contract, an agreement by a distributee of the estate of the vendor to furnish a deposit to prevent the dismissal of the bill, is not fraudulent on account of his relation to the estate, but his interest 'being to set up the sale and conversion, he might well aid the suit. The withdrawal of the distributee from such combination would form a valid consideration for a compromise with the heir.</p> <p>7. Trustee. Bill for instructions. A trustee for infants may maintain a bill for instructions as to matters arising after the creation of the trust; as a compromise, making it necessary to raise funds not provided for in the trust deed, or the refusal of one co-trustee in the deed to act.</p>

<p>FROM SMITH.</p> <p>Chancery Court at Carthage, February Term, 1867. V. II. DeWitt, Special Ch.; Barry, Ch., being incompetent.</p>

FROM LINCOLN. Chancery Court at Fayetteville. Decree at October Term, 1868, pronounced by John P. Steele, Ch. A. S. Marks, for the legatees, submitted the following propositions and authorities, with an argument: First — As to the rents, the Executors were the Receivers of the court; and they are estopped from denying it. Second — The executors were a legal unit under the statutes and their bond. The slaves were legal assets, and embraced in their bond.

<p>1. Emancipation. Proclamation of, void. The Emancipation Proclamation of A. Lincoln was an unconstitutional and void act.</p> <p>2. Same. By Constitution of 1870. Slavery was unquestionably abolished in Tennessee by the Constitution of 1870, if it was not effectually and properly done by the Constitution of 1865.</p> <p>Cases cited: Nelson v. Smithpefers, 2 Cold., 14; Craves v. Keaton, 3 Cold., 14; Chokon v. Blackmon, 4 Cold., 587; Wharton v. The State, 5 Cold., 3,4; Keith v. State, lb., 38; Bedford v. Williams, lb., 210.</p> <p>3. Slaves. Bights of, in Tennessee. Review of the cases on the rights of slaves in Tennessee before emancipation.</p> <p>Statutes cited: 1813, c. 56; 1835, c. 19; 1839, c. 7; 1799, c. 9, s. 1; 1829, c. 23, s. 2.</p> <p>Code cited: 3808, 3809, 4597.</p> <p>Cases cited: Britain v. State, 3 Hum., 203, 204; Loften v. Espy, 4 Yer., 92; Henderson v. Vaulx, 10 Yer., 38; Dement v. Scott, 2 Head, 367; Huggins y. Moore, 3 Head, 426; Traynor v. Johnson, lb., 44. Cases cited in 1 Meig’s Dig.: 454, 459; Harris v. Clarissa, 6 Yer., 240; Fisher’s Negroes v. Dabbs, 6 Yer., 157; Hartsell v. Ceorge, 3 Hum., 255; Cremlmo v. Bawlings, I b., 90; Hope v. Johnson, 2 Yer., 123; David v. Bridgman, 2 Yer., 558; Jacob v. Sharp, Meigs, 114; John v. Tate, 7 Hum., 388; Elias v. Smith, 6 Hum., 33; Hinklin v. Hamilton, 3 Hum., 569; Lewis v. Simonton, 8 Hum., 185; Jámese. The State, 9 Hum., 308; Isaac v. McGill, Ibid, 616; Jane v. Hagan, 10 Hum., 332; Lewis v. Daniel, 10 Hum., 305; Jones v, Arterburn, II Hum., 97; Ford v. Ford, 7 Hum., 92, & S. C., 11 Hum., 89; Boon v. Lancaster, 1 Sneed, 577; Abram v. Johnson, 1 Head, 120; Jones v. Allen, lb., 626; McCloud v. Chiles, 1 Cold., 248; Porta• v. Blakemore, 2 Cold:, 556; Stephenson v. Harrison, 3 Plead, 732, 733.</p> <p>4. Same. Marriage of. The relation of husband and wife among slaves was recognized in Tennessee.</p> <p>Statutes cited: 1715, c. 31, s. 6; 1778, c. 5, s. 1; 1778, c. 7; 1787, c. 6, s. 3.</p> <p>Cases cited: Hartsell v. Ceorge, 3 Hum., 255; Edwards v. McConnell, Cooke, 313.</p> <p>5. MARRIAGE. Form of. The act of 1778, c. 7, and the act of 1741, c. 1, s. 7, do not expressly annul or prohibit marriages in the common law form.</p> <p>Cases cited: Bashaw v. State, 1 Yer., 177; Grisham v. State, 2 Yer., 589; Johnson v. Johnson, 1 Cold., 630; McCorry v. King’s heirs, 3 Hum., 273.</p> <p>Case disapproved: MeJReynolds v. State, 5 Cold., 20.</p> <p>6. Constitutional Law. Laws legitimating marriages. The power to validate marriages and legitimate children by general laws, exists in the Legislature of this State, and the act of 26th of May, 1866, legitimating marriages of slaves is valid.</p> <p>7. Slaves. Children of, legitimate. Inheritance. The children of slave marriages were legitimate and were capable of inheriting by act of 1866. 8. Same. Freedom. Purchase of a slave for a wife. The purchase by a freeman of a slave for a wife gave her an inchoate right to freedom, which it only required the assent of the State to perfect, and this assent was given by the general emancipation.</p> <p>9. Same. Same. Relation. The rights of freedom upon this assent relate to the time the inchoate right was acquired.</p> <p>10. Same. Same. Rights of widow. Dower is one of the rights which resulted from the marriage of a freeman with a slave bought by him for a wife, and emancipated after his death.</p>

<p>FROM WILLIAMSON.</p> <p>Circuit Court, July Term, 1868, W. H. S. Hill, J.</p> <p>cited act of 1756, c. 4, s. 1; Cave & Sehaffer v. Basket, 3 Hum., 340.</p> <p>cited Code, 3781, 3782.</p>

<p>1. Accounts. From another county or State. Set-off or recoupment. Where an account comes from another State properly proved by the affidavit of • the party, a set-off or recoupment may be pleaded without being sworn to.</p> <p>Code construed: 3780,1819, c. 25, s. 1.</p> <p>Cases cited: Cave v. BaskeU, 3 Hum., 340; W. & A. R. R. Co. v. Mead, 4 Sneed, 108.</p> <p>2. Recoupment. Damage ly leakage. If a plaintiff ship oil in unseasoned casks whereby it is lost, the consignee, on being sued for the price may recoup the damages from the loss of the oil.</p>

<p>1. Becoupm’ent, Must arise out of the matter sued on. A landlord having ' contributed to cause injury to his renters’ land by trespasses of stock, promised that, if the renter would not hurt his slock,-he would pay for the injuries done by them. On a suit by the landlord for his rent, the lessee 'offered to recoup the damages by the landlord’s stock. Held that the damages did not so arise out of the contract sued on as to be a propier subject of recoupment.1</p> <p>Cases cited: Porter v. Stacker, 3 Hum., 56; Whitaker v. Pallen, lb., 466; Overton v. Phelan, 2 Head, 446.</p> <p>2. A charge right ns applied to the evidence in the cause, but erroneous in the abstract, is not a ground of reversal.2</p>

<p>FROM WHITE.</p> <p>Chancery Court at Sparta.- W. H. Goodpasture, Ch.</p>

<p>Will. Codicil. Republioation. A testator made a will devising his home place. He afterwards bought eight acres adjoining, on which he erected a horse mill. Some time after he executed' a codicil, which makes no allusion to the devise of the home place. The eight acres would be undisposed of unless held to pass by that devise. Held to pass.</p> <p>Cases cited: Gass v. Gass, 3 Hum., 286; Stover v. Kendall, 1 Cold., 560.</p> <p>Code cited: 2195.</p>