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Nelms v. The State of Mississippi.

circumstances of confusion and surprise, connected with the object of the declaration, are to be considered with the most minute and scrupulous attention; the accordance and consistency of the facts stated with the other facts established in evidence, is to be examined with peculiar circumspection.” There is great force in these remarks. It may often happen that the party, without being perfectly certain, would ascribe the act to some suspected person, when, if the grounds of his suspicions could be known, they would be unsatisfactory. An enmity which had been but recently exhibited by threats, would be very likely to lead the mind of a wounded person to a thorough conviction that the wound bad been inflicted by the person who made the threat, and he might consequently speak of it as a fact. Hence the necessity for that degree of caution which is said to be necessary in the use of such evidence. The object of the first question seems to have been to ascertain the true meaning of the deceased. Usually the opinions of a witness are not admissible, but the peculiarity of this description of evidence, the absolute necessity for confining it within proper limits, might, under certain circumstances, seem to require a departure from the strict rule. If the declarations had been equivocal or ambiguous, perhaps the impression made on the mind of the witness who heard them might have been a proper subject of inquiry. It seems to be sufficient if the substance of the declarations be given. 11 Ohio Rep. 424. A witness who is called to prove what a deceased witness swore on a former trial, need only state the substance, and such testimony very much resembles the proof of dying declarations. To give the substance is but to give the ideas conveyed to the mind of the witness which he clothes in his own language. But there is no occasion for a resort to proof of the substance of what the dying man stated, since the witness gives the language used. The meaning of that language can be determined by the jury. We do not therefore feel prepared to say, there was error in refusing to permit the witness to answer the first question; but, in view of the foregoing rules, we are well satisfied that there was error in refusing to allow him to state what the deceased had said to him on the same subject at an

Nelms v. The State of Mississippi.


other time. If such previous conversation was had, which gave a different version of the transaction, it was important that the jury should have known what was said. To exclude it from them, was to exclude the means of trying the credibility of the evidence, a question which it was indispensably necessary for them to consider of. They could not otherwise justly weigh the declarations; it was compelling them to take them without the attending circumstances, and perhaps depriving them of the means of judging with that circumspection which the law requires. Important light may have been thus shut out.

We shall touch but one other question. Several of the jurors were introduced to testify in support of the motion for a new trial, who stated that two of the officers who had them in charge spoke of the enormity of the offence, by saying that it was a

case than Dyson's, and one of them said that public opinion was against the accused. To my mind this presents a very satisfactory and even a conclusive reason for a new trial. The purity of trial by jury must be strictly guarded. The verdict when rendered should command entire confidence; whatever may detract from that confidence, must weaken the security which is felt by the community in this mode of trial. I adhere to the doctrine laid down in Hare's case, 4 Howard, 187, which seems to me to apply here. The officer is required by the nature of his duty, as well as by an oath, not to speak to the jury himself on the subject of their deliberations, or to permit others to do so. This ceremony is a mockery, if a violation has no other effect than to subject the officer to punishment. If he may speak to them himself he may permit others to do so, and the door is thus thrown open to tampering, and the safety of trial by jury is invaded to an alarming extent. The duty of the officer is prescribed for the protection of the accused. If improper influences have been employed, it is but a poor boon to say to him that the officer is liable. The officer may be willing to incur the punishment for the sake of gratifying his wishes, or for reward. One who thus violates his duty and his oath, should be subjected to the severest possible penalties, but that does not purify the verdict; it should be set aside. It is danger

Robertson v. Alford.

ous to permit a verdict to stand which is liable to suspicion. The jury should not know the opinion of any one; and more especially should they be kept in ignorance of public opinion, which is often the result of prejudice.

The general rule is, that a juror shall not be allowed to impeach the verdict by disclosing his own misconduct, or his motive, or opinion, or that of his fellows; but this is a different question. The jury are not involved in the misconduct of the officer; that is a matter over which they have no control. A juror may be received to testify to improper attempts of a party to the suit to influence the minds of the jury. Chews v. Driver, Coxe's Rep. 166. On the same principle we should be allowed to state the misconduct of the officer, who may be the instrument

of the party.

Judgment reversed, and cause remanded.

Mr. Justice SMITH concurred.

Mr. Justice CLAYTON : I concur fully in the result of the foregoing opinion. But I do not concur in that part of it, which relates to the affidavits of the jurors, in regard to the conduct of the officers who attended them.

In Prussel v. Knowles, 4 How. 95, this court said, the rule is well settled, “that a juror shall not impeach his verdict." Policy and prudence require, in my opinion, an adherence to the rule thus laid down.' In all other respects, the opinion in chief meets my cordial approbation.

WILLIAM ROBERTSON, trustee of Commercial Bank of Natchez,

vs. RICHARD E. ALFORD, administrator de bonis non of Robert Cooper, deceased.

An injunction issued under the sixth section of the act of 1843, establishing

the mode of proceeding against banks which have forfeited their charters,

Robertson v. Alford.

against a bank does not suspend the operation of the statute of limitations

as to claims held by the bank. The operation of the statute of limitations will not be suspended except by leg

islative provision to that effect ; and the direction for an injunction to issue, restraining a bank, against which proceedings are commenced under the law of 1843, from the collection of its claims, such injunction to have the force and effect of an injunction in chancery, is not a legislative prohibition of suit; for such is not the force and effect of an injunction in chancery, such an injunction being always subject to modification in the discretion of the chancellor; and upon application, the chancellor, if the party were enjoined from suing, and the debt were thereby likely to be lost, would qualify

the injunction so as to enable the party to bring his suit. Mr. Justice Clayton dissented, and considered that the bank, when proceeded

against under the act of 1843, was prohibited from suit upon her demands until a termination of the proceedings against her; and that, therefore, being without power to sue, the statute of limitations was of necessity suspended in its operation; and this, by express legislative enactment.

On appeal from the circuit court of Madison county; Hon. Robert C. Perry, judge.

On the 22d of April, A. D. 1847, William Robertson, trustee of the Commercial Bank of Natchez, sued Richard E. Alford, administrator de bonis non of Robert Cooper, deceased, upon a note made by Cooper, dated May 2, 1838, and due twelve months after date. The defendant plead, i. Non assumpsit; 2. The statute of limitations of six years. The plaintiff replied, in substance, that on the 8th of March, 1844, a writ of quo warranto and injunction were sued out under the act of 1843, against the bank, from the circuit court of Adams county, by which the bank, pending the proceedings which terminated in a judgment of forfeiture on the 19th of May, 1846, against the bank, was prohibited from bringing suit on the note; and by excluding this prohibited period, the cause of action had accrued within six years.

The defendant rejoined, that the judgment of forfeiture against the bank was rendered on the 12th of June, 1845, and the plaintiff appointed trustee of the bank, at which time his right to sue begun; and so deducting the period from the institution of the proceedings against the bank, to the judgment of forfeiture, and six years still had expired.

Robertson v. Alford.

The plaintiff surrejoined that the bank appealed from the judgment of June 12, A. D. 1845, which suspended all plaintiff's rights, and this appeal was not determined until the 19th of May, 1846, when plaintiff's right to sue accrued.

The defendant demurred to this surrejoinder, and the court sustained the demurrer, and gave judgment for the defendant. The plaintiff appealed.

7. C. Tupper, for appellant,

Contended that, during the pendency of the injunction, there was no party having the right to sue on the note. He cited Robertson v. Hoy, 12 S. & M. 566 ; Abbott v. McElroy, 10 Ib. 100; Dowell v. Webber, 2 Ib. 456; Moses v. Jones, 2 Nott & McCord, 259; Wall v. Robeson, Ib. 508, 509.

A. H. Handy, for appellee,

Argued the case, and cited 3 Johns. Ch. Rep. 142; McIver v. Ragan, 2 Wheat. 29; 1 Cow. 356; Ang. on Lim. 205, § 3; Dwarris on Stat. 703; Ang. Lim. 216, § 5; Ib. 534, V 4; 3 McCord, 457; Rholes v. Smethhurst, 4 Mees. & Welsb. (Eng. Com. L. Rep.) 42; Ang. Lim. 57, 83; Barker v. Millard, 16 Wend. 572; Green v. Johnson, 3 Gill & John. 394; Bell v. Morrison, 1 Peters, 360.

L. M. Garrett, on same side,

Cited, in addition, Ang. Lim. 144; Beckford v. Wade, 17 Ves. 87; Wilson v. Appleton, 17 Mass. 180; Ang. Lim. 215; Ib. 147 - 149; 3 S. & M. 194; 4 Mass. 188, 189; 6 S. & M. 573.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The note on which this suit was brought, bears date the 2d of May, 1838, and was payable twelve months thereafter. The suit was brought on the 22d of April, 1847. The defendant pleaded the statute of limitations. The note was payable to the Commercial Bank of Natchez, against which a proceeding in the nature of a quo warranto was commenced on the Sth of

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