NOTES OF CASES.

N Sanders v. State, Indiana Supreme Court, 16

IN Sander, J., 440, a prisoner Ou trial for murder,

being terrified by threats of lynching, under advice of counsel withdrew his plea of not guilty, and pleaded guilty. Held, that judgment on that plea should be reversed, and a new trial ordered. The court said: "There are strong reasons in support of the appellant's prayer. All men are by our laws entitled to a fair trial, in absolute freedom from restraint and entire liberty from fear of threats and violence. It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance. A will executed under the influence of fear falls before the law. These are small things when compared with life and liberty, and yet in the eyes of the law they are null. If such things are null when procured by fear, or extorted by violence, should not a plea be So, when to have refused it would have been to put in jeopardy the life of the man arraigned upon a charge of felony? In many respects the facts of this case go far beyond that of ordinary cases of duress, for here the officers of the law, judge, sheriffs and jailers were inspired with fear of violence; counsel of age and experience, influenced by the appearance of danger which surrounded their client, secured from him a reluctant acquiescence to the plea of guilty. More than this, the accused, if not at the time absolutely insane and incapable of understanding what he did, was weak and enfeebled in mind, and as his counsel express it, 'lost and bewildered.

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*The assistance asked does not go to the extent of discharging without a trial, but the appeal is for relief from a plea of confession and for the award of an opportunity for trial. The application of the appellant brings to the knowledge of the court a fact, which if known, would have prevented a conviction; and all the cases agree that where a new fact is suggested which would have prevented judgment, the accused is entitled to the writ coram nobis. We cannot conceive it possible possible, we mean, in a legal sense, and under legal principles that a court, with knowledge that a plea of guilty is forced. from a prisoner by fear of death, would imprison him for life without a hearing or trial. No jeopardy attaches until the case is ripe for trial and the trial actually entered upon; and here the case was not ripe for trial, because the plea extorted from the appellant was null, and he was therefore not in legal jeopardy. The proceeding adopted by the appellant is in its general features, and in its consequences, closely analogous to a motion for a new trial, and as a defendant, who takes a new request, cannot claim that the finding set aside con

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stitutes a prior jeopardy, he cannot do so in a proceeding like this."

A striking exemplification of the danger of "helping one's self" in a shop, and of trying to get more than one's money's worth, is shown in Gwynn v. Duffield, Supreme Court of Iowa, April, 1883, 15 Rep. 786. This was an action of negligence against an apothecary. The plaintiff ordered some extract of dandelion, and the apothecary by mistake served him out of the belladonna jar, and was doing the package up. Then, as the court state, "the plaintiff went to the jar containing belladonna and took out, on the point of his knife, what he thought was a dose of the extract of dandelion, and called the attention of one of the defendants to it, and asked if that was a proper dose; and the defendant supposing that it was the extract of dandelion, told the plaintiff that the amount on his knife was a proper dose, and thereupon the plaintiff took it. The jar, it appears, was properly labelled, and the plaintiff's negligence, if any, consisted in not discovering that the jar contained belladonna. There is no pretense that he could not read. The only excuse for him was, so far as we can discover, that the defendant, whom he consulted in regard to the size of the dose, had just made the same mistake. He had just taken from that jar, as the plaintiff had seen, a portion of its contents to fill an order for the extract of dandelion, given by the plaintiff, and was doing up the package when the plaintiff proceeded to help himself to a dose from the jar as above set forth. There is not the slightest evidence that the defendant discovered the plaintiff's danger." The court charged the ordinary doctrine of contributory negligence, but added the exception that the plaintiff might recover, in spite of his own contributory negligence, if the defendant, after seeing the danger of injury, did not use ordinary care to avert it. The court said: "The jury then should have been instructed without qualification that if the plaintiff was guilty of negligence contributing to the injury

In Gannon v. Union Ferry Company (to appear in Hun's Reports) a ferry-boat was so managed as to strike against the landing bridge with such force that the plaintiff was thrown down and his leg crushed between the boat and the bridge. At the time of the accident he was standing in front of the chain, leaning against the post to which it was fastened. Other passengers were standing in front of the chain at the same time. Held, that the question of negligence should have been submitted to the jury, and that the court erred in directing a "As a general rule the questiou of contributory negligence is for the jury. It is only under extraordinary circumstances that this question is one of law. The only fact to justify the nonsuit is that the plaintiff was before the chain. That is not a place of danger peculiarly if the boat is well managed. The fact that the boat was approaching the land swiftly is not of extreme moment, consider

nonsuit.

ing the skill and caution with which these boats are uniformly managed, and with what nicety of calculation the speed is proportioned to the needs of the occasion, and how soon the motion is reversed. Passengers commonly stand in front of the chains as the landing is approached. It was for the jury to say, under the general rule applicable to such cases, whether there was negligence upon defendant's part that caused the accident, and also whether the plaintiff's negligence contributed to the injury he received."

In Boyle v. State, Wisconsin Supreme Court, May 31, 1883, 15 N. W. Rep. 827, it was held that medical books may not be given in evidence, nor may a physician be permitted to give extracts therefrom from memory in evidence, nor may they be read by counsel on argument. The court said: "It seems to us that the court erred in permitting Dr. Cody to testify as to what was said in standard medical works upon the subject of strangulation, and what effects would be produced upon the body of the deceased when death resulted from such cause. The admission of such evidence is in direct conflict with the ruling of this court in the case of Stilling v. Town of Thorp, 54 Wis. 528; S. C., 41 Am. Rep. 60. In that case the question of the admission of medical works in evidence was fully discussed, and it was held that they were not admissible. In addition to the cases cited by Judge Cassoday in that opinion, we cite the following cases sustaining the ruling in that case: Whiton v. Ins. Co., 109 Mass. 44; Fowler v. Lewis, 25 Tex. 380; Collier v. Simpson, 5 Car, & P. 73; Reg. v. Thomas, 13 Cox Crim. Cas. 52; Carter v. State, 2 Ind. 617; State v. O'Brien, 7 R. I. 336; Ware v. Ware, 8 Me. 42; Davis v. State, 38 Md. 15, 36; Com. v. Brown, 121 Mass. 69, 75; Fraser v. Jennison, 42 Mich. 206, 214; Pinney v. Cahill, 48 id. 584; People v. Hall, id. 482; Harris v. Panama R. Co., 3 Bosw. 7, 18; Rog. Expert Test. 237, 243. The authors of this treatise cites the authorities showing

that evidence of this kind is held not admissible by the English courts, and the courts of Indiana, Maine, Maryland, Massachusetts, Michigan, North Carolina, Rhode Island, Wisconsin, California and New Hampshire, and admissible in the States of Iowa and Alabama. The rule stated by this court in 54 Wis., supra, was followed in the case of Knoll v. State, 55 Wis. 249, 256. The authors cited clearly show the correctness of the rule stated by this court in Stilling v. Town of Thorp, supra. If it be urged that the works of medical writers were not in fact offered in evidence, but that the witness was called upon to testify as to what certain medical works contained on the subject under investigation, it cannot help the State, as in such case the attempt is to put in evidence what is stated by a medical author upon the subject of inquiry, without producing the book, and depending upon the memory of the witness. Certainly, if the book itself cannot be used in evidence to the jury, the witness cannot be permitted to give extracts from it as evidence, depending upon

*

his memory for the correctness. The effect of the evidence given under objection by Dr. Cody was to put before the jury as evidence what the medical works laid down as evidences of strangulation. If this may be done indirectly by the oral testimony of the person who has read the medical works, it would certainly be a much safer rule to permit the books themselves to be read to the jury as being better evidence of the fact. We think the learned Circuit judge also erred in permitting the counsel for the State to read the medical authorities to the jury in the opening of his argument. It is evident they were not read by way of illustrating the argument of the counsel, but to give the jury a clear view of what such medical writers laid down as the evidence of strangulation. The jury must have understood that the extracts read to them were so read for the purpose or having them considered in determining the question of fact whether the deceased came to her death by strangulation. Many of the authorities above cited hold that it is equally inadmissible to permit the reading of such works to the jury by counsel, as to read them in evidence on the trial. It is apparent that if counsel are allowed to read extracts of medical authors in their argument to the jury, it would nullify the rule which prevents such extracts from being read in evidence. The following are some of the authorities holding it inadmissible for counsel to read medical works to the jury: Queen v. Crouch, 1 Cox Crim. Cas. 94; Regina v. Taylor, 13 id. 77; Washburn v. Cuddihy, 8 Gray, 430; Wade v. De Witt, 20 Tex. 398; Ashworth v. Kittridge, 12 Cush. 194; Huffman v. Click, 77 N. C. 55; Fraser v. Jennison, 42 Mich. 206, 214; Robinson v. Railroad Co., 24 Alb. Law J. 357; People v. Wheeler, (Cal.) 9 Pac. C. Law J. 581; People v. Hall, supra."

COMMON WORDS AND PHRASES.

ERM. In an action for rent the defendant TERM counterclaimed for one-half the value of the building erected by him on the land. By the terms of the lease, the premises were granted to the lessee for twenty-one years, at $3,000 a year, besides taxes, the right of re-entry being reserved to the lessor if the rent was in default for ten days, or for default in any of the lessee's covenants; the lessee within two years to erect on the premises a first-class fivestory commercial building, to cost not less than $30,000. At the expiration of the term the lessor was to pay one-half the value of the building, or at his option to give a new lease for twenty one years more, at a rental agreed upon or appraised. The estate of the lessee terminated at the end of five years, by dispossession for failure to pay rent and taxes, and then this action was begun. Held, that the liability of the lessor to pay one-half the value of the building did not arise when the estate of the lessee terminated by the dispossession proceedings, and not until the end of the twenty-one years. Finkelmeier v. Bates, New York Court of Appeals,

เ

April, 1883. The court observed: "The seventh subdivision of the lease, after providing that at the expiration of the aforesaid term 'the building should be appraised, further undertook to stipulate for the ultimate surrender of the premises by the lessee in good order and condition, and in fixing the date of such surrender uses the expression on the last day of the said term, or other sooner determination of the estate hereby granted.' The phraseology indicates that the word 'term' was used in the sense of time as distinguished from the estate granted. The character of the agreement tends to the same result. The lease provided, at the option of the lessor, for paying the value of the building by the tenant's occupation at a reduced or graded rent for forty-two years; and the lessor reserved a choice at the end of the first twenty-one to pay one-half of the then value of the building. That value at the end of twenty-one years might be very different from the value at the end of five; and the lessor after twentyone years' receipt of rents might easily have saved and accumulated from them the means with which to pay, when at the end of five years such payment might be impossible. The contention of the appellants, if sustained, would enable a lessee to change materially, and to the injury of the lessor, the stipulations of a lease by the mere process of repudiating its conditions. He makes default in the payment of rent and taxes, and so obliges the landlord to remove him, and rests upon that fact as the ground for depriving the lessor of a credit or delay of nearly twenty-one years, and matures the debt by means of his own wrong. We think the counterclaim was properly rejected for that reason. INDORSED. A contract referred to a guaranty as “indorsed." It was in fact on the face of the paper. Held, a sufficient reference. Musselman v. Wise, 84 Ind. 248.

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BROUGHT, COMMENCED. These mean the same thing, in respect to starting of a suit. Goldenberg v. Murphy, United States Supreme Court.

NAVIGABLE. - A non-tidal stream, that in its natural state, without artificial improvements, may prudently be relied upon for use, at some seasons of the year, recurring with tolerable regularity, although for no great length of time annually, as a means of carrying off the products of the forests, and bringing merchandise to the dwellers upon its banks, is navigable. Little Rock, etc., R. Co. v. Brooks, 39 Ark. 403. The evidence showed the stream in question was navigable for barges from six weeks to Bix months in the year, and that sometimes for six months in the year, but generally less, it was navigable for lumber barges and small steamboats. The court said: 'Nor is it necessary that the stream should be capable of floating boats or crafts the whole, or even the greater part of the year. Upon the other hand it is not sufficient to impress navigable character, that there may be extraordinary times of transient freshets, when boats might be floated out. For if this was so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and

depends on the usefulness of the stream to the population of its banks, as a means of carrying off the products of their fields and forests, or bringing to them articles of merchandise. If in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, although the annual time may not be very long. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats, or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round. The Montello, 20 Wall. 430; The Daniel Ball, 10 id. 557; Moore v. Sanborne, 2 Mich. 519; Morgan v. King, 35 N. Y. 454; Browne v. Chadborne, 31 Me. 9."

"As

ARTICLE OF MANUFACTURE. A butter dish, consisting of a dish and cover, is one "article of manufacture," within the Copyright act, as to registration marks. Fielding v. Hawley (Q. B. Div.), 48 L. T. Rep. (N. S.) 639. The court said. regards the second question, what is meant by the butter dish? It is referred to just before in the second objection as 'the butter dish and cover;' and further back it is called 'a butter dish in two parts, viz., a dish and cover.' That is the way it is described in the case. We must now look at the act. Its object is to secure that potters, and lay persons as well, may know whether any particular design belongs to any one else. The act says you shall not have the right to these penalties unless the distinguishing registration mark is on each article of manufacture. The mark may be put on by means of a label. Is it contended that there must be a label on each cover as well as dish? What is an article of manufacture?' What have the complainants here manufactured? If they manufactured dishes and covers separately and to be sold separately, probably then there might be two articles of manufacture. A soup tureen and a vegetable dish, though belonging to one dinner set, are clearly two articles of manufacture. The question is, is it a single article divisible into parts, or are they separate articles? Clearly this was the former. If the magistrate had found that this was a contrivance to make two articles, which were meant to be sold separately, but at the same time to escape from marking them both, then the case would be different. the dish is marked, but not the cover which is the principal? The dish seems to be so, and it is marked in the usual place, and so the mark is sufficient."

6

In this case

DEBT OWING OR ACCRUING. This means actually existing and not such as may arise in the future. Webb v. Stenton, Eng. Ct. App. A Mr.

Hatton became entitled in August, 1882, to a share of the income arising from the trust fund under a will, payable half-yearly. Hatton, in October, 1882, mortgaged his interest to a Mr. Allen. On one occasion a payment had been made to Hatton, on account of the income due him. The plaintiff, a judgment creditor of Hatton, sought, on the 11th of November, 1882, to attach his interest under the will, and the question was whether such interest was attachable at that time. A divisional court (Cave and Day, JJ.,) gave judgment for the defendant. The plaintiff appealed. The Court of Appeal (Brett, M. R., Lindley and Fry, L. JJ.,) dismissed the appeal. Brett, M. R., said that the interest under the will was not a debt 'owing or accruing' to the defendant at the time when the order was asked for, and could not therefore be attached. Upon the plain reading of the rule, an order could only be made in respect of debts 'owing or accruing' from some third person who was indebted to the judgment debtor. If there was a debt due from a third person, and payable, it might be attached, and the same rule would apply if the debt was due, but payable in futuro. The term 'accruing debt,' however, did not mean any debt which might arise at any future time. The debt must be one recognized by law, and it was not sufficient to show that it was probable that there would soon be a debt. It must be shown that a debt actually exists, though it need not yet be payable.

PERMIT. This implies knowledge. City of Chicago v. Stearns, 105 Ill. 554. This was a question of construction of a charge that the city was liable if it "permitted" the sidewalk to remain out of repair. The objection was raised that the city could not be made liable without actual or constructive notice. But the court said: "We do not however regard the instruction to be in conflict with this rule. It will be observed that the instruction contains the words, was permitted to remain out of repair.' Webster in referring to the words 'permit,'' allow,' and suffer,' says, 'permit' is the most positive, denoting a decided assent. From this definition it is plain that if the city assented it did so from a knowledge of the condition of the walk,- the assent implied knowledge."

OPEN. — This sometimes means patent and evident. Kelleher v. City of Keokuk, Iowa Supreme Court, March, 1883. The court said: "The court in three instructions directed the jury, in effect, that if the defect in the sidewalks was 'open and notorious,' the city is chargeable with notice thereof. To these instructions counsel for the plaintiff object on the ground that the use of the word 'open' is misleading, in that the jury would understand the court to refer to a defect consisting of an 'open hole' in the sidewalk. Counsel give an improper effect to the word 'open.' It means, in the connection where it is found in the instruction, 'not concealed, not hidden, exposed to view, apparent;' a secondary signification in which the word is very frequently used. We observe that the learned and experienced counsel, who argued the case before us,

uses the word in this precise sense in his written brief. The instructions, we think, are not objectionable upon the ground urged by counsel." PROPERTY. A pension is "property," within the bankrupt law. Ex parte Huggins, Eng. Ct. App. 47 L. T. Rep. (N. S.) 559. Jessel, M. R., said: "It would be too dangerous to define 'property,' but there is no doubt, that even according to lawyers, the bonds would be property. A man who had a large pension from government would be called a man of property. The annuities formerly granted by kings of England and charged on tonnage and poundage dues were always considered as property, although they were not debts for which the crown could be sued. They were not even the subject of a petition of right, because they were granted out of the voluntary bounty of the crown; but they were nevertheless property and were assignable even at law. Government pensions for past services were always assignable in equity, if not at law. Then it is said that this pension cannot be taken until it has been voted by the Legislature of the colony. But the mere voting is only a mode of securing the payment. It is not as if the bankrupt had been told, when the office was offered to him, that he would have a pension only if it was voted by the colonial Legislature. He would probably have refused the office on those terms. It is done much in the same way in this country. Salaries and pensions of servants of the crown are mostly voted every year by Parliament, and until the vote is taken they cannot be paid, but they are still property. There are pensions, undoubtedly, which are not assignable, but this state of things is always referable to one of two grounds. Either it is said to be against public policy that pensions given as an inducement to people to keep themselves ready for the service of the crown, or payments made for actual service rendered to the crown (which would be prejudiced by disposal of the pensions) should be assigned; or the pensions are by statute expressly made not assignable, as the retiring allowances of beneficed clergymen. Nevertheless I think these are all property."

DEBTOR HAVING A FAMILY. A married woman supporting her husband and children is not entitled to an exemption from execution as "a debtor having a family." Muir v. Howell, New Jersey Chancery, 6 N. J. L. J. 184. The chancellor said: "The question is whether the complainant is within the description of a debtor having a family.' That the husband is is obvious, and he is undoubtedly entitled to the benefit of the statute. The complainant and her children are the family of the husband. The legitimate and necessary results of the construction contended for would be to secure in this and every like case a double exemption, one to the husband and one to the wife. It is very clear from the language of the statute, especially in connection with the other statute also providing for exemption in favor of the family of a deceased debtor, that the Legislature intended to grant the exemption to the father, regarding him as the person who has the family."

MANUFACTURE. The business of cutting sawlogs and driving them to the place of manufacture is not included within the words, "works, mines, manufactory or other business," etc., in a statute giving a labor lien. Pardee's Appeal, Pennsylvania Supreme Court, October 2, 1882, 13 W. N. C. 201. The court said: "The words 'works, mines, manufactory' thus employed in the act have a definite signification, well understood in their general and popular acceptation. Ex vi termini the branches of business intended to be described by them are in a certain sense complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. It will scarcely be pretended that either of these words fitly describes the business in which the appellant was employed. It is contended however that the expression 'other business,' etc., is sufficiently comprehensive to embrace cutting and driving logs. Perhaps it would, if we were at liberty to construe it without reference to the context; but the preceding words, designating particular branches of business with which the idea of permanency and completeness, in a certain sense, is always associated, must control the meaning of the more general expression used in immediate con. nection therewith. The other business' is ejusdem generis with that more particularly described by the preceding words of the context, business of the same general character, not embracing every species of employment in which the service of others may be rendered.

WEARING APPAREL. It seems that a watch may be "wearing apparel." In re Steele, 2 Flip. 324. The court said: "It would not be doing any great violence to the meaning of the term wearing apparel,' as used in the bankrupt act, to include in it a gold watch of moderate value. The definition of the word 'apparel,' as given by lexicographers, is not confined to clothing; the idea of ornamentation seems to be a rather prominent element in the word, and it is not improper to say that a man wears' a watch or wears' a cane. The exemption law of Arkansas says that wearing apparel shall be exempt except watches.'" The court cite, as supporting this doctrine, Bumpus v. Maynard, 38 Barb. 626, and Mack v. Parks, 8 Gray, 517, and Smith v. Rogers, 16 Ga. 479, as opposed.

THE PRESUMPTION OF KNOWLEDGE.

I.

RULE I. Every one is presumed to know the law when ignorance of it would relieve from the consequences of a crime or from liability upon a contract.

The presumption that every person knows the law is often spoken of, but it is clear that there is no such general presumption. When Mr. Duuning in arguing before Lord Mansfield, said: "The laws of this country are clear, evident, and certain; all the judges know the laws, and knowing them administer justice with uprightness and integrity," that learned judge replied: "As to the certainty of the law mentioned by Mr. Dunning, it would be very hard upon the profession if

the law was so certain that every body knew it; the misfortune is that it is so uncertain that it costs much money to know what it is even in the last resort. (1) "Is it not a mockery," said Mr. Livingston in his report on the Louisiana Penal Code "to refer me to the common law of England? Where am I to find it? Who is to interpret it for me? If I should apply to a lawyer for a book that contained it, he would smile at my

ignorance, and pointing to about five hundred volumes

on his shelves would tell me those contained a small part of it; that the rest was either unwritten or might be found in London or New York, or that it was shut up in the breasts of the judges at Westminster Hall. If I should ask him to examine his books and give me the information which the law itself ought to have

afforded, he would hint that he lived by his profession, and that the knowledge he had acquired by hard study for many years could not be gratuitously imparted." Certainty in the law has hardly increased since Lord Mansfield's time, and Mr. Livingston's lawyer would to-day point to a library of five thousand instead of five hundred volumes. We may therefore safely say with Mr. Justice Maule "there is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so"

and add, as he did, with a quiet dig at his learned

brethren: "If every body knew the law, there would be no need of courts of appeal whose existence shows that judges may be ignorant of law."

ILLUSTRATIONS.

On the trial

1. A. sues B. in trover for property. evidence is introduced of admissions by B. that the property is A.'s. The presumption is that these admissions were made not only with a knowledge of the facts but of his legal rights growing out of these facts.(2)

2. An action is brought against the makers of a note personally signed by them as trustees of the M. E. Church. The defendants plead, that they were induced to give the note by representations that they would not be individually liable. This is no defense for the presumption is that they knew their liability.(3) 3. A. having two judgments of different dates against G. issued execution on the second, under which G.'s land was sold to B. A. afterward proceeded against the land under the first judgment, to which B. replied that he had purchased believing the law to be that the sale on the second judgment extinguished the first. Held, that it was no defense. (4)

4. The drawer of a bill of exchange knowing that time had been given by the holder to the acceptor, but not knowing that this discharged him, and thinking himself still liable promised to pay it if the acceptor did not. He was bound by this promise though made under a mistake of law. (5)

5. A statute prohibits the selling of liquor to an intoxicated person, and prescribes a penalty therefor. B. sells liquor to an intoxicated person not being aware of the law. B. is nevertheless liable as he is presumed to know it.(6)

6. A public officer was indicted for extortion in taking a fee before it was due. The fee being due to him after a time in any event, he thought that the law

(1) Jones v. Randall, Camp. 38.

(2) Butler v. Livingston, 15 Ga. 565 (1854). (3) Mears v. Graham, 8 Black. 144 (1846).

(4) Shotwell v. Murray, 1 Johns. Ch. 512 (1815).

(5) Stevens v. Lynch, 12 East, 38 (1810), and see Goodman v. Sayres, 2 Jac. & W. 263 (1820); Broshana v. Dacres, 5 Taunt. 143 (1813); East India Co. v. Tritton, 3 B. & C. 280 (1824); Stockley v. Stockley, 1 V. & B. 23 (1813); Clarke v. Dutcher, 9 Cow. 674 (1824); Warder v. Tucker, 7 Mass. 452 (1811). (6) Whitton v. State, 37 Miss. 379 (1859).