game.
8. Changes and modifications in the
game of faro, which did not mi-
terially alter the nature and chir-
acter of the game, do not destroy
its legal and statutory identity.

erroneous.

Ib.
9. The indictment in this case was
found several years after the pas-
sage of the act of 1829, making
dealing at faro felony. Upon this
the circuit court charged the jury,
that if the game of forto-eight was
substantially a different game
from old faro, but was commonly
called and well known by the name
of faro in this State and at Nash-
ville, at and before the finding of
the bill of indictment, it would be
faro within the meaning of the
law, if it was within the mischief,
to remedy which the act was made.
Held that the charge was clearly
16.
10. The act of 1829, making dealers
at certain kind of games, guilty of
felony, is not like the ordinary
acts against gaming to be con-
strued remedially.
Ib.
11. A statute was passed, authorising
the courts to construe all statutes
against gaming remedially. At
that time all kinds of gaming were
indictable as misdemeanors. The
legislature subsequently, mude
dealing faro and some other games,
felony: Held that it would not be
proper to apply to the latter stat-
ute, the rule of construction crea-
ted by the former.
Ib.
12. To constitute the crime of larceny
there must be a trespass in the
original taking of possession, the
taking must be invito domino, a-
gainst the will of the owner, and
the property in his actual or con-
structive possession.
Hite v The State,

198

3. The possession by a slave of his
master's property, is the posses-
sion of his master. The slave
can acquire no right of property in
possession-it is a naked charge,
unaccompanied with a trust, and
he cannot part with the possession

legally, except in particular cases,
when he is authorised as agent to

do so.

Ib.
14. A slave can give no consent by
which the possession of his mas-
ter's property may be transferred,
for in point of law he has no pos-
session in himself.
Ib.
15. The consent of a slave to part with
his master's property is a nullity,
and if a person receives property
from him, with the fraudulent and
felonious intent, of converting it
to his own use, he is guilty of lar-
ceny; it is taken from the posses-
sion of the owner, and without
his consent.

Ib.
16. A defendant who has been acquit-
ted upon one of several counts in
an indictment, is entirely discharg-
ed therefrom, nor can he a second
time be put upon his trial upon that
count. Campbell v The State.

338
17. Where a defendant has been ac-
quitted on some counts and con-
victed upon others, a motion for
a new trial made by him general-
ly, is only applicable to the count
upon which he was convicted, and
if the court sets aside the whole
verdict, it is erroneous.

Ib.
18. The defendant was acquitted upon
the first and third counts but con-
victed on the second. He moved
for a new trial which was granted,
and the entire verdict set aside by
the court. Upon the second trial,
he moved the court to put him on
trial upon the second count only;
this the court refused. Upon the
second trial he was acquitted on
the first and second counts, and
convicted on the third. Held, that
it was error in the court to set a-
side the verdict entirely, and that
plaintiff was entitled to judgment
of acquittal upon the first and third
counts, because upon these he was
acquitted by the jury upon the
first trial, and that he was also en-
titled to judgment of acquittal
upon the second count, because he
was acquitted on that count upon
the second trial.

19.

Ib.

To constitute the crime of mali-
cious stabbing, such malice as is
necessary to make killing murder

in the first degree, is not necessa-
ry; malice according to its com-
mon law signification, is sufficient.
Wright v The State.
342
20. Where the stabbing is proved, the
law presumes the existence of mal-
ice, to rebut which, the proof ei-
ther on the part of the State or
the prisoner, must be of such a
nature as to show that the stabbing
was done under such circumstan-
ces, as would, had death ensued
therefrom, have mitigated the of-
fence from murder to manslaugh-
ter or excusable homicide, or to
leave it doubtful whether it was
not so done.
Ib.
21. Evidence, that the prosecutor, a
mulatto and the person stabbed,
was a turbulent, insolent, saucy
fellow, is inadmissable, upon a
prosecution for "malicious stab-
bing."
So also, is evidence that
he had said sometime after the
stabbing, he had struck the defend-
ant before he stabbed him. Ib.
22. The circuit judge presiding on the
trial of a cause, is, under our sys-
tem, competent to try the qualifi-
cations of jurors, who may by him
be examined on their voire dire,
and if upon an issue or question of
competency and qualification, a
juror wilfully and corruptly state
what is untrue in a matter materi-
al to such issue, he is guilty of per-
jury. State v Wall,
347
23. The defendant was indicted for

keeping "a disorderly common
tippling house." The jury found
a special verdict, "that the defend-
ant on one occasion kept a house
in which there was a collection of
twenty or thirty negroes more than
belonged to the place, who got
drunk, danced, and disturbed the
neighborhood with noise and up-
roar." Held, that the facts found
by the special verdict, did not con-
stitute the offence of keeping "a
disorderly common tippling house.'
Dunnaway v The State, 350
24. To constitute a common tippling
house of a disorderly character,
there must be more than one act
of tippling and disorder.

lb.

25. Selling liquor by the quart to be
drank in the house of the defend-

1. Debt and indebitatus assumpsit are
concurrent remedies upon all im
plied contracts, where the sum to
be recovered is made certain, ei-
ther by the contract of the parties,
or by operation of law. Hickman
v Searcy's Executors,

47
2. A and B sold a tract of land and
jointly covenanted to warrant and
defend the title; the vendee was
evicted by paramount title, and re--
covered a joint judgment against
A and B, upon their warranty. A
paid the whole of the judgment:
Held, that he could sustain an ac-
tion of debt, to recover from B,
his proportion of the money paid.

Ib.

1. The probate of a deed, as copied
from the records of the court in
which it was proved at its Decem-
ber term, 1800, was as follows:
"A deed from Phillip Shackler to
John Young, for 640 acres of land
was proved by the oath of Jacob
Young, and ordered to be regis-
tered: Held, that this probate was
sufficient, and authorised the deed
to be read to the jury. Yerger
and others v Young,
2. A conveyance by deed, of slaves to

37

a person not in essee at the time of
such conveyance as where a con-
veyance is made to such child as
B may thereafter have, is inopera-
tive and vests no title in such after
born child. Lillard v Rucker. 64
3. The act of 1809, c. 100, § 3, author-
ising deeds for lands lying in the
Indian boundary theretofore exe-
cuted, proved and registered, in
the manner pointed out in said act,
is not prospective in its operation,
but only applied to deeds executed,
proved and registered at, and be-
fore the passage of the act. Den,
lessee of M'Iver's heirs v Clay.

257
4. Where a statute requires that a deed
or other instrument made in a an-
other State, shall be proved before
a court of record of said State,
query, if it must appear from the
certificate of probate on the deed
that the court in which it was prov-
en was a court of record. Ib.
5. Where a deed is authorised to be
proved in a court of record in an-
other State, the probate on the
deed must be a copy of the record
of probate, certified by the clerk,
and must not be merely a state-
ment of his own as to what was
done, &c.

Ib.

6. The probate of deeds and other in-
struments, under the act of 1809,
c. 14, § 2, are required to be certi-
fied according to the act of Con-
gress authorising records, &c. to
be certified: any other mode of au-
thentication will not authorise the
instrument to be registered or read
in evidence,
Ib.

7. Where a deed or other instrument
executed in another State, is prov-
ed, and the probate certified as re-
quired by the act of 1809, c. 104,
§ 2, it must be registered in a court
of record or by the order of a court
of record in this State, before it is
admissable in evidence.

DEPOSITION.

Ib.

1. The deposition of A was taken in
one suit to prove the boundaries
of a tract of land. He subse-
quently became deranged. In an-
other suit, this deposition was of-
fered as evidence of his statements
upon oath in relation to boundary:
Held, that the matter of the depo-
sition was competent evidence, if
proved by witnesses who heard
him make the statements, but that
the mere certificate of the magis-
trate who took the deposition. was
iosufficient for that purpose.
Ross v Cobb and others,

DEVISAVIT VEL NON.
Vide WILL, 2, 3, 4, 5, 6.
EVIDENCE, 8.

DISORDERLY HOUSE.
Vide CRIMINAL LAW, 22, 23.
DYING DECLARATIONS.
Vide EVIDENCE, 6, 7.

E

EJECTMENT,

463

2. An outstanding title, to bar a recov-

ery in an action of ejectment, must
be a present subsisting legal litle,
not one abandoned, or barred by
the act of limitations. Peck, et al.
v Carmichael,

325
3. A defendant in ejectment, may set
up an outstanding title in a third
person, with which he has no con-
nexion, yet it is a defence stricti
juris, and a new trial will not be
granted by the court, to enable a
defendant to avail himself thereof
unless the court below have re-
fused to permit it to be relied on,
or have grossly erred in acting on
it.
Ib.

5. An averment and proof by the
plaintiff, that the note or instru-
ment sued on, was by agreement
of the parties to fall due 25th De-
cember, 1833, and that by mistake
of the parties, produced by the
fraud of the defendant, it was made
payable 25th December, 1834, are
inadmissible.

Ib.
6. The circuit court charged the jury,
"that if they found that the de-
ceased in her dying declarations
made contradictory statements,
that they were not to be governed
by the rules of evidence in rela-
tion to contradictory statements
made by a witness." Held, that
this charge was erroneous.
M'Pherson v The State
7. The same principles of law are ap-
plicable to the contradictory state-
ments of persons in extremis as to
those of a witness under examina-
tion on oath.

279

Ib.
8. Upon the trial of an issue of devisa-
vit vel non, the legal effect of the
words of a bequest, as vesting the
entire and absolute interest, when
from the proof the testator only
intended a life estate, is incompe
tent and insufficient evidence to
prove fraud in obtaining the will.
Gibson v Gibson,

329

9. Where the stabbing is proved, the

law presumes the existence of mal-
ice, to rebut which, the proof ei-
ther on the part of the State or
the prisoner, must be of such a
nature as to show that the stabbing