without the presence of the officer having them in charge; there was no
proof of tampering with the jury, either by the guests at the table or the
barber; on the contrary, the officer stated that he heard no one speak to them
on the subject of the trial, though the barber might have whispered to them,
or delivered written communications on the subject : Held, that the prisoner
was entitled to a new trial; it was not necessary for the prisoner to show
that the verdict was vicious ; it was enough to show that the common law
rale had been violated, which prohibits the jury being spoken to hy any one.

Ib.
44. The statute which requires the clerk to take down the charges given or re-

fused by the circuit judge, and makes them a part of the record without
bill of exceptions, does not apply to criminal cases.

Cain v. The State, 456.
45. In an indictment for betting on a presidential election, it is not necessary to

law; and it may rise so high in the scale of belief as to generate full convic-
tion; when, after due caution, this result is reached, the law authorizes its

ministers to act upon it. McCann v. The State, 471.
53. Where a conviction depends upon circumstantial evidence, the legal test

of its sufficiency for that end is its power to satisfy the understanding and
conscience of the jury. It is sufficient if the circumstances produce moral

certainty, to the exclusion of every reasonable doubt. 16.
54. In this case the prisoner was convicted on circumstantial evidence; no one

saw him commit the fatal act; the court review the proof on which the
prisoner was found guilty, and reach the conclusion that the circumstances
proved were sufficient 10-justify the finding and uphold the verdict of the

jury. 16.
55. While if the verdict of a jury, in a criminal case, were against the deci-

ded preponderance of the testimony, the high court of errors and appeals
would set aside and grant a new trial ; yet it is a power which that court

would exercise with great caution. Ib.
56. In cases depending upon circumstantial evidence, every thing which may

tend to elucidate the transaction should be admitted. 16.
57. It was held therefore on the trial of a man for murder, where there was

no positive proof of the prisoner's guilt, but circumstances had been shown,
connecting the son of the murdered man with the murderer, as his abettor in
the crime, not to be error to allow proof of an interview between this son
and the prisoner, in which the former seemed to be giving the latter some
powder in a somewhat retired place; the murder having been committed

with a pistol shot. Ib.
58. On the trial of a prisoner for murder, the court below instructed the jury,

“that, in confessions by a prisoner, all must be taken together, as well that
which is in his favor, as that which is against him; but that the jury are
the sole judges of the truth of confessions, and can receive a part and reject
a part :

Held, that the instruction propounded the law correctly. lb.
59. The court below refused to instruct the jury, “that all the declarations of

the prisoner brought out by the state are to be taken together, as well those
in his favor as those against him; and the portions favorable to him are to
be regarded by the jury as being true, unless impossible in their nature, or
inconsistent with other evidence in the case : Held, that the instruction

was properly refused. 1b.
60. The following instruction was asked, and held to have been properly

62. While it seems that a person who has formed or expressed an opinion as

to the guilt or innocence of the prisoner, from mere rumor, is not absolutely
disqualified as a juror, yet if he have formed or expressed the opinion from
what he has heard one say some of the witnesses had told him, he is dis-
qualified, though he himself had not heard any of the witnesses say any
thing on the subject ; and though he stated that his opinions were not such
as would influence his verdict, but that he would be governed by the evi-

dence. Nelms v. The State, 500.
63. It is not competent, in order to discredit a witness, to introduce the state-

ment of the witness as taken down by the vice-chancellor on a previous
occasion, on the trial of a habeas corpus, involving the same matter; the
statute does not make it the duty of the judge who tries the habeas corpus
to take down the evidence, unless one of the parties desire it, and then he is
only required to take down the material facts ; unless, therefore, the state-
ment thus made be read over to, and signed by the witness, it cannot be

read to impeach his testimony given on another trial. 16.
64. On the trial of a prisoner for murder, the dying declarations of the murdered

man were offered in evidence; and the witness, who proved the precise
words used by the dying man, was asked whether “ the deceased did not so
express himself as to convey the idea that it (what the deceased stated) was
a mere opinion, and not a thing within the actual knowledge of the de-
ceased : " Held, that inasmuch as the witness gave the exact words used by
the deceased, it was for the jury to judge of their import; and that the
witness could not answer the question; though it seems it would be other-
wise if the witness were detailing merely the substance of what the deceased

said, and not giving his exact words. 16.
65. It is competent, when the dying declarations of a murdered man have been

admitted, to show, by way of impairing their credibility, what he said on the
same subject at other times. It is for the court to determine upon the com-
petency of such evidence; and for the jury to adjudge its credibility ; and
to that end, it is important that all the deceased said touching the subject-

matter, should be before the jury. lb.
66. On a trial of a prisoner, who was convicted of murder, after the jury had re-

tired, two of the officers who had them in charge, spoke on the subject of the
case in the hearing of the jury, one of them saying that “it was a worse
case than D.'s;” the other," that public opinion was against the accused :
Held, that on proof of this improper conduct on the part of these officers,

the court below should have granted the prisoner a new trial. 16.
67. An officer having a jury in charge in a criminal case, who, in violation of his

oath, converses with the jury on the subject of their deliberations, should be

subjected to the severest possible penalties. lb.
68. It seems, that while the affidavits of jurors are incompetent to impeach their

verdict by disclosing their own misconduct, or their motives or opinions, or
those of their fellows, yet a juror may be admitted to testify to the improper

conduct of the officer who had them in charge. Clayton, J., dissented from
this proposition, and thought the testimony of the juror inadmissible. 16.

DECEIT, ACTION OF.

See Contract.

DECREE.
See Chancery.

DEED.
1. A delivery to the trustees in a deed of assignment by a bank for the benefit of
its creditors is equivalent to a delivery to the cestui que trusts.

Ingraham v. Grigg, 22.
2. So also the record of a deed of that nature amounts to primâ facie evidence of

10. In order to discharge the lien of a deed of trust on personal property, it is

sufficient if the grantor, grantee, and trustee regard the deed of trust as
at an end, and consider the property as revested in the grantor.

House v. Fultz, 39.
11. In the case of personal property conveyed by recorded deed of trust, no for-

mal release of the deed, or memorandum in writing, is necessary to extin-
guish the deed of trust; a different rule prevails in relation to real estate.

Ib.
12. A sale of personal property under execution, on which there is a deed of

trust on the records, apparently unsatisfied, will, nevertheless, pass the

title to the purchaser, if in point of fact the deed of trust be satisfied. Ib.
13. Where, after a public sale under a deed of trust of personal property, the

property sold is left in the possession of the grantor in the deed of trust,
no presumption of fraud will arise therefrom ; and if the sale be otherwise
free from fraud, a purchaser under a judgment against the grantor in the
deed of trust, in whose possession the property is left, junior to the
sale under the deed of trust, will acquire no title to the property.

Ewing v. Cargill, 79.
14. Where, in the trial of the right of property, the claimant claims by purchase

under a deed of trust, executed by the defendant in execution of date older
than the judgment, and the jury find for him, such verdict will relieve him

from the imputation of fraud in fact in the purchase. 16.
15. The conveyance of property by deed of trust, which is consumable in the use,

is not in itself fraudulent, unless it be stipulated in the deed that the grantor
may use it ; and whatever may have been the intention of the parties, if it
be not so expressly stipulated in the deed, a bond fide purchaser of property
at a sale under the deed of trust, for valuable consideration without notice,

will be protected in his purchase. 16.
16. A bona fide purchaser for valuable consideration without notice, under a deed

of trust, not void upon its face, cannot be affected by any intended fraud of

the grantor in the deed of trust. Ib.
17. A deed made voluntarily, and without any pecuniary consideration, cannot

stand as against a creditor whose debt was valid and subsisting at the date

of the deed. Swayze 6. McCrossin, 317.
18. The plaintiff in ejectment claimed under a deed of gift from Bernard McCros-

sin, which described the lands sold as follows, viz. : “ 412 acres of all of a
certain tract of fand purchased by said Bernard from the United States,
containing one thousand and twenty arpents, and known and distin-
guished as follows: Bounded on the north by lands of Mrs. Poole, on the
south by lands of Walter Shropshire, on the west by lands of James
McNeely, and on the east by public lands, being the same which was im-
proved in part by Mr. Herring:" Held, that this description was too vague
to convey an interest in any definite and particular portion of the tract; and
a recovery in ejectment, therefore, under such deed, of a specific portion of

68

VOL. XIII.