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
rule had been violated, which prohibits the jury being spoken to by any one.
lb.
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
allege that the election was held; the indictment alleged the bet to have been
made upon the result of that election, "to be holden" on a certain day;
the election is provided for by a public law; the event was therefore suffi-
ciently certain. Ib.

46. The statutes against gaming are remedial and not penal; and are therefore
not to be construed strictly. b.

47. A. agreed with B. that if the Cass electors obtained a majority of two thou-
sand votes in this state, at the recent presidential election, he would make B. a
present of a coat, but if they did not, B. was to make him a present of a
coat; after the election B. paid A. the money instead of the coat: Held, the
agreement was a mere evasion, and B. being indicted for the bet and con-
victed, must undergo the penalty of the law. Ib.

48. Under the statute in this state, (Hutch. Code, 983, § 22,) which provide
"that upon an indictment for an offence consisting of different degrees, the
jury may find the defendant not guilty of the offence charged, but guilty of
an inferior degree of such offence," a jury may find a defendant indicted for
an assault with intent to commit murder, guilty of a common assault and
battery; and therefore, since that statute, however it may have been at
common law, it will not be improper to join in the same indictment a count
for each offence. Brantley v. The State, 468.

49. Where a party indicted in two counts, is found guilty only on one, objec-
tions to the count on which he is acquitted, will not be available to him. lb.
50. It seems that where counts are improperly joined in an indictment, the
objection can only be reached by motion to quash, or to compel the prosecu-
tor to elect on which count he will proceed. Ib.

51. Where no exceptions in the court below are taken to the grand jury,
either by plea or otherwise, the high court of errors and appeals will not,
after a plea of not guilty, and trial without objection, go back to look for
defects in the organization of that body. Ib.

52. Circumstantial evidence has been received in every age of the common

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. lb.

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 to-justify the finding and uphold the verdict of the
jury. lb.

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. 1b.

56. In cases depending upon circumstantial evidence, every thing which may
tend to elucidate the transaction should be admitted. lb.

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. lb.

66

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. Ib.

60. The following instruction was asked, and held to have been properly
given, viz.: “In criminal cases, the mere union of a number of independ-
ent circumstances, each of which is inconclusive in its nature and tendency,
cannot afford a just ground for conviction, unless the combination be conclu-
sive." lb.

61. An indictment for murder, charging the offence as at common law, whilst
the punishment is inflicted under a statute, is not therefore liable to objec-
tion. lb.

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. lb.

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. lb.

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. lb.
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. 1b.

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. lb.

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 primû facie evidence of
delivery. lb.

3. It was held not to be sufficient proof, that a deed of assignment made by a bank
in this state, in 1842, and which was recorded, was made to take effect upon
a condition, that one of the directory testified that it was his understanding,
that such was the fact; especially when the reasons urged for the execution
of the deed tended to an opposite conclusion. Ib.

4. A deed of assignment by a bank for the benefit of its creditors, which conveys
all its assets and property, except certain specified portions, to trustees, is not
void because of this reservation; a debtor may convey part of his property in
trust for his creditors, if he leave the residue open to their debts. Ib.
5. A bank making an assignment of its effects for the benefit of its creditors, may
stipulate that no interest shall be paid out of the assets and property conveyed,
until the whole principal of all the debts is paid; such a provision may give
some advantage to a part of the creditors over others, but it secures no benefit
to the bank; and a bank may, in an assignment of that nature, make prefer-
ences among its creditors, even to the exclusion of some. Ib.

6. Such a provision does not exclude the mode of computing interest according to
our statute; for if there be funds enough to pay interest after the principal is
paid, the interest may yet be computed according to the statute to ascertain
the interest due; and even if it did exclude that mode of computing interest,
the creditors who assent to the deed may renounce the benefit of a statute
created in their behalf. Ib.

7. Large salaries stipulated to be paid to trustees in a deed of assignment, for the
benefit of creditors, do not necessarily vitiate the deed upon its face. Ib.

8. A deed may delay creditors and not be void, when such delay is not its prin-
cipal object. Ib.

9. The certificate of an officer authorized to take acknowledgment of deeds, that
the vendor in a deed made oath that he signed, sealed, and delivered the
deed, &c., though in the form of a jurat, is not thereby deprived of its
character of an acknowledgment. 16.

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.
lb.
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 grant or 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. lb.

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. lb.

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. ль.

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 . 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 land 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
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VOL. XIII.