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Seal v. The State of Mississippi.

The record, in its caption, stated that the proceedings took place “in the

circuit court of Harrison county, at a regular term thereof, begun and held at the court-house of said county in Mississippi city, on the first Monday in March, 1848 : " Held, that the recital was amply sufficient to show the term

of the court, and the house in which it was held. A prisoner convicted of gaming moved for a new trial on the ground that one

of the jury who tried him was an alien, and read the juryman's affidavit to that effect, but did not himself make oath that he was not aware of this disqualification of the juror at the time of his selection : Held, that if he knew of the disqualification at the time, he waived it by not making the objection, and should therefore have, if he did not know it, made oath to that effect; for want of which the new trial was properly refused.

In error from the circuit court of Harrison county ; Hon. Wiley P. Harris, judge.

The facts will be found in the opinion.

R. Seal, in proper person,

Cited Carpenter v. State, 4 How. (Miss.) R. 168; H. & H. 490 ; 5 How. 32; 8 S. & M. 297.

D. C. Glenn, attorney-general, for the state,

Cited 1 Chit. Cr. Law, 388; 3 How. (Miss.) R. 28; 8 S. & M. 598; State v. Friar, 3 How. (Miss.) R. 422.

Mr. Justice Clayton delivered the opinion of the court.

This was an indictment in the circuit court of Harrison county for gaming.

The defendant moved to quash the indictment, because it did not affirmatively appear, by the indictment or its caption, that the grand jury was properly constituted.

Secondly, because the indictment does not sufficiently describe the term of the court, or the house in which the court was holden.

We may set out with the remark, that the statute provides that all laws against gaming are remedial, and not penal; hence, a strict construction will not be applied.

The first objection taken is, that "neither the caption nor the indictment shows with sufficient certainty that the grand jurors

Seal v.

The State of Mississippi. were selected and chosen from the county of Harrison.” The statement in the caption in this particular is as follows: " The venire being returned into court executed by the sheriff, the following jurors appeared and answered to their names, to wit, &c. Whereupon the following named persons of the same were duly drawn, elected and empanelled, sworn, and charged as a grand jury for the term."

In the case of Carpenter v. The State, 4 How. 168, which is relied on in support of the objection, the record states "the grand jurors of the state of Mississippi, duly empanelled, charged, and sworn, returned into court,” &c. It was held that this might be true, and yet the grand jury might not have been selected from the proper county.

The law requires the assessor, once in every year, to return to the circuit court a list of the freeholders and householders, citizens of the United States, within his county, who are liable to serve as jurors. From this list the jurors are drawn by lot, either before the circuit court or the probate court, and a venire then issues, containing the names so drawn. From those thus summoned the grand jurors are selected by lot. Hutch. Dig. 886; McQuillen v. The State, 8 S. & M. 597.

Reasonable certainty in the proceedings is all that the law requires, in regard to the offence of gaming; there is, at least, that degree of certainty in this case, that the indictment was found by good and lawful jurors of the county. The venire, the service and return by the sheriff of that county, their being empanelled and sworn from the venire, exclude all reasonable doubt as to the proper constitution of the jury. These circumstances certainly authorize a presumption in its favor, until something improper be shown.

In those cases in this court in which bills of indictment have been quashed on account of objections to some of the grand jury, the want of qualifications in the jurors has been pointed out and made apparent by plea in abatement. McQuillen v. The State, 8 S. & M. 587; Barney v. The State, 12 Ib. 72; Kincaid v. The State, MS. Had there been in fact any objec. tion to the grand jury in this case, it is not unreasonable to suppose that it would have been shown in that mode.

Rice v. Maxwell.

The next objection is, that the indictment does not sufficiently describe the term of the court, or the house in which the court was holden. The record states in its caption, that the proceedings took place “in the circuit court of Harrison county, at a regular term thereof, begun and held at the court-house of said county in Mississippi city, on the first Monday in March, 1848." This description is entirely sufficient, and it would be difficult to make it more specific, without unnecessary prolixity.

An application was made for a new trial, because one of the jurors who tried the case was an alien. The affidavit of the juror, to that effect, was read to the court; but there was no affidavit of the defendant that he was ignorant of the fact when the juror was sworn.

If the defendant knew of this want of qualification of the juror at the time he was sworn, he waived all objection by failing to challenge him at that time. If he did not know it, he should have made affidavit of that fact, in aid of his application for a new trial. Booby v. The State, 4 Yerg. 112.

How far a failure to make inquiry as to a juror's competency, at the time he is presented, may operate as a waiver of objection, we need not now inquire.

The judgment is affirmed.

Levi RICE vs. HARRISON P. MAXWELL.

A note given by an applicant for a discharge in bankruptcy from his debts

under the act of Congress, to a creditor resisting his discharge on the ground of a fraudulent concealment of his assets, the note being executed on condition that the creditor would withdraw his opposition, is void, though executed after the bankrupt's discharge; the consideration being illegal,

and the transaction in fraud of the policy of the act of Congress. The debts of a discharged bankrupt are annihilated by the decree in bank

ruptcy; a subsequent promise, therefore, by the bankrupt, to pay a debt from which he has been thus discharged, though in writing, is void for want of consideration.

Rice v. Maxwell.

In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge.

The facts sufficiently appear in the opinion.

Watson and Craft, for plaintiff in error,

Insisted that the notes were founded on an illegal consideration. They were made for the purpose of stifling a due scrutiny into the claim of Solomon C. Rice to a discharge under the bankrupt act. See Waite v. Harper, 2 Johns. R. 386; Bruce v. Lee f. Mullikin, 4 Ib. 410; Tuxbury v. Miller, 19 Ib. 311, 312. See also Armstrong v. Toler, 11 Wheat. 258; Collins v. McCargo, 6 S. & M. 128; Adams et al. v. Rowan et al., 8 Ib. 624.

The notes sued on were certainly given as a reward to the plaintiff below, for not opposing the discharge of an applicant for the benefit of the bankrupt law. The transaction implies that there was good ground for opposition, and that if such opposition had not been withheld, the applicant could not legally have obtained his discharge. Such bargains are against public policy and the true intent of the bankrupt act, and an agreement or undertaking founded on such a consideration cannot be sustained.

Tarpley, for defendant in error,

Insisted that, both in law and morals, Rice was bound to pay the debt; and contended that the policy of the bankrupt act was in no wise contravened.

Mr. Justice Smith delivered the opinion of the court.

The instruments, which were the foundation of the proceeding in attachment in the court below, were executed by Solomon C. Rice, and the plaintiff in error as his security, to secure a debt due by the former to the defendant in error, prior to the application of the said Solomon C. Rice for a discharge as a bankrupt, under the provisions of the act of congress passed 19th of June, 1841, establishing a uniform system of bankruptcy throughout the United States. The circumstances under which these instruments were executed appear to be as follow :

Rice v. Maxwell.

Solomon C. Rice, in 1843, in the circuit court of the United States for West Tennessee, had filed his petition in bankruptcy, by which it appeared that he was the debtor of the defendant in error, who, on the 18th of May of the same year, had proved his account and filed a dissent to the discharge of the petitioner as a bankrupt. The grounds alleged by the dissentient were, that the "petitioner had been guilty of fraud and wilful concealment of his property and rights of property, contrary to law.” Afterwards, and pending the examination of the claim of the petitioner for a discharge, Levi Rice, plaintiff in error, proposed to the defendant, that if he would withdraw his objections to the discharge of Solomon C. Rice as a bankrupt, that he (Levi Rice) would assume the debt which said Solomon C. owed him. The defendant in error, pursuant to this proposition, withdrew his objections, and the petitioner was discharged. In execution of this understanding, and in consideration of defendant's having withdrawn his objections as above stated, these instruments were given.

The defence relied on was the illegality of this consideration.

If the transaction was founded in fraud or against the policy of the act above referred to, the consideration was illegal and the instruments void.

The primary object of this statute was doubtless to afford relief to unfortunate debtors; but, in effecting this object, it was not less certainly the object of the national legislature to effect an equal distribution of the insolvent's estate, thereby securing equal advantages to the creditors. The execution of these instruments, and their subsequent payment by the bankrupt, would not lessen the distributive shares in his estate of his creditors; yet the suppression of facts producing such a result, and which might well be the case here, would directly defeat the objects of the statute.

In the case of Cockshott v. Bennett, 2 Term Rep. 763, all the creditors of an insolvent agreed to accept a composition for their respective demands, upon an assignment of his effects by a deed of trust, to which they were all to be made parties. One of these creditors refused to execute the deed until he had obtained

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