Cain v. The State of Mississippi.

the indictment contained two counts. On the first there was a verdict in favor of the defendant. The second was as follows: "And the jurors aforesaid, upon their oaths aforesaid, in the name and by the authority of the state of Mississippi, do further present, that the said Dempsey B. Cain afterwards, to wit, on the day and year aforesaid, 1st of October, 1848, at the county aforesaid, did then and there bet a certain valuable thing, to wit, a certain fine coat, upon the result of a certain election to be holden on the seventh day of November, in the year of our Lord one thousand eight hundred and fortyeight (according to law) in said state, for six electors for said state, to vote for a President and Vice-President of the United States of America, against the peace and dignity of the state of Mississippi."

The defendant pleaded not guilty. The evidence in the cause was as follows: Willis Byrd testified that he and the defendant did not bet on the result of the election for six electors, but that he promised in the county of Franklin, on the day charged in the indictment, to make a present to the defendant of a nine or ten dollar coat if Cass got 2000 votes more than Taylor. And if Cass did not get that majority, defendant was to make a present of a nine or ten dollar coat to witness; that he voted for six electors, and that there was an election at which electors were voted for at Jones' Precinct, where he voted; that Cass and Taylor were candidates for president, and the persons for whom the six electors to be elected were expected to vote; that there was nothing up in the hands of a stake holder at the time, and that defendant afterwards in Adams county paid him nine dollars; that this was in lieu of the present he expected to receive, on account of its being conceded that Cass did not get 2000 votes in the state of Mississippi more than Taylor. The way it was determined who had the present to pay, was by knowing the majority received by the electors in the state; and there was a dispute about the amount of the present.

The state then introduced a writ of election, directed to the sheriff of that county, directing him to hold an election of six electors for president and vice-president, and proved by the

Cain v. The State of Mississippi.

sheriff that an election was held on the day of election mentioned in the indictment.

The court gave certain instructions for the state, and refused those asked by the prisoner; but the instructions were not embodied in a bill of exceptions, though copied by the clerk in the record. They are not set out because disregarded by the court.

The jury found the prisoner guilty; he moved in arrest of judgment, because the indictment did not charge that the election had been holden. This was overruled. He then moved for a new trial, which was refused. The court fined him twenty dollars and the costs of the prosecution, when he sued out this writ of error.

Cassidy and Sanders, for plaintiff in error,

Cited Hutch. Code, 951, 953; 1 Chit. Cr. Law, 662; 4 Bl. Comm. 325; 3 Burr. 901; 1 East, 146; Foster, 194; 3 Inst. 41; 2 M. & S. 386; 2 Leach, 594; 1 Chit. Cr. Law, 382; Ib. 114.

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

Insisted the indictment was sufficiently certain, and the proof conclusive of guilt.

Per curiam. The plaintiff in error was indicted for betting on the election of 1848, for electors for president and vice-president. Several reasons are urged for the reversal of the judgment, which we cannot notice. The statute which requires the clerk to take down the charges given or refused, and make them a part of the record, without bill of exceptions, does not apply to criminal cases. We therefore pass over the alleged error in this particular.

A motion was made in arrest of judgment, because the indictment does not charge that the election was holden. The indictment charges that the bet was "upon the result of a certain election to be holden on the seventh day of November, in the year of our Lord one thousand eight hundred and forty-eight, according to law in said state, for six electors, &c." The elec

Burrus v. Thomas.

tion is provided for, and directed to be holden by a public law. The event was therefore sufficiently certain, and it was not necessary to charge that it had occurred. The statute on which the indictment is founded is declared to be a remedial, and not a penal statute. The object of this provision must have been to get rid of the general rule which requires that penal statutes should be construed strictly.

A new trial was moved for on the evidence. It was in proof that the parties mutually agreed that a present of a coat should be made to the defendant, if the Cass electors obtained a majority of 2000 votes, but if they did not, the defendant was to make the other party a present of a coat. This was mere evasion. It was in proof that the election was afterwards holden, and the bet was paid in money. There is no pretence for holding the verdict to be against law or evidence. Judgment affirmed.

JAMES R. BURRUS, Judge of Probate of Yazoo county, vs. HIRAM J. THOMAS.

It is not necessary, in order to sustain an action on a guardian's bond against the sureties, for a failure of the guardian to deliver the property to a subsequent guardian, that the plaintiff shall have first obtained a decree of the probate court directing such delivery.

Nor is it necessary, in order to maintain an action against the sureties on such a bond for the defalcation of the guardian, that there should be a decree of the probate court in the first place, establishing the amount of the guardian's indebtedness.

However the rule may be with reference to the right to sue the sureties on an administrator's bond, before the liability of the administrator be fixed, (and whether the rule as to them be universal or not, which it seems is questionable,) such rule has no application to suits on guardians' bonds.

If an order of the probate court, to put a former guardian's bond in suit, were necessary, the allegation in a declaration on such a bond, that "the bond was at the April term, 1813, of said probate court, on, &c., at, &c., de

Burrus v. Thomas.

clared by said court forfeited and ordered to be put in suit," would be sufficient.

It is too general a breach of a guardian's bond to allege "that the guardian failed to discharge his duty according to law; " it must show in what he failed.

ON appeal from the probate court of Yazoo county; Hon. Robert C. Perry, judge.

James R. Burrus, judge of Probate of Yazoo county, for the use of Virginia C. Hope, by John Nelson, her guardian, sued Hiram J. Thomas, as surety for John H. Walker, upon a former guardian's bond.

Thomas, after waving oyer of the bond, plead:

1. A plea of general performance.

2. That there were no proceedings had in, or judgment or decree rendered by, the probate court, before suit, declaring said bond forfeited, or directing it to be put in suit.

3. That the probate court did not, before the suit, make any order or decree directing said Walker to pay or deliver the property and estate of his said ward, which came to his hands to said John Nelson, as guardian as aforesaid, nor did said Nel ́son, before suit, demand said property of said Walker.

4. That no judgment or decree of the probate court, or of any other court, was rendered before this suit, declaring or establishing any liability of said Walker, as guardian, and for any breach of the condition of said bond.

The plaintiff replied nine different replications to the 1st plea of defendant, assigning breaches of the condition of the bond sued on; he demurred to the 2d plea, and replied to the 3d plea, that, though true it is, the probate court did not, before the suit, make any order or decree, directing said Walker to pay or deliver the property and estate of his said ward, which came to his hands, to said Nelson, as guardian as aforesaid; and although true it is, that said Nelson did not, before suit, demand said property from said Walker, yet plaintiff avers that, long before this suit, said Walker fled beyond the limits of the United States, and was thus beyond the jurisdiction of said probate court, &c. The defendant demurred to this replication. The

Burrus v. Thomas.

plaintiff replied to the 4th plea, that, although true it is no judgment or decree of the probate court, or any other court, was rendered before this suit, declaring or establishing any liability of said Walker, as guardian, yet plaintiff in fact avers that, long before this suit, said Walker fled beyond the limits of the United States, and was thus beyond the jurisdiction of said probate court, or any other court in said state of Mississippi, without having first made any final settlement as guardian as aforesaid, &c. The defendant demurred to this replication also, and to plaintiff's 6th replication to his general plea of performance, which was: "That the letters of said Walker, as guardian aforesaid, granted by said probate court, were revoked by said probate court on the 24th of March, 1841, some time prior to which time said Walker had removed beyond the jurisdiction of the state of Mississippi to Texas, where he has ever since resided, without ever having, before or since, delivered up the estate of his said ward, which he had received into his possession as guardian to said probate court, or any person entitled to receive the same." The defendant also demurred to plaintiff's Sth replication to his general plea of performance, which was: "That said Walker has wholly neglected and failed to perform the duty of guardian to his ward, according to law."

The court sustained plaintiff's demurrer to the defendant's 2d plea, and defendant's demurrers to plaintiff's replications to defendant's 3d and 4th pleas, and defendant's demurrer to 8th replication to 1st plea of defendant, and overruled defendant's demurrer to 6th replication to 1st plea; and the plaintiff below appealed.

W. R. Miles and Battaile, for appellant,

Cited Hutch. Code, 657; Ib. 504, § 126; 5 How. 59; Ib. 688; Hutch. Code, 678; Commonwealth v. Wenrick, 8 Watts, R. 159; Buckingham v. Owen, 6 S. & M. 502; and insisted that it was not necessary, under the statutes, to obtain any order of the probate court to put the bond in suit. The law, without the intervention of the court, gave the right of action upon a breach.