objection. No doubt where the sentence should be hanging, and a man was sentenced to transportation, he could maintain a writ of error, because there the sentence imposed would be a wrong sentence, and one not warranted by law; but here the plaintiff in error can not say that any wrong has been done to him, for his complaint is that he did not receive enough punishment, and therefore, as far as this objection goes, I doubt if error would lie. In any case, however, it seems to me that, on the true construction of the act, 2 Geo. 2, ch. 25, § 2, it is not necessary that there should be a sentence of fine or imprisonment; the words are "judgment shall be given that the person convicted shall be committed or transported accordingly over and besides such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being;" I think that the court may or may not adjudge fine or imprisonment under this section. Then comes the objection on which the writ of error was allowed. It is contended that there can not be a cumulative sentence on two counts in the same indictment to a term of punishment exceeding the maximum allowed for one offense. The objection is this, that a defendant may have different punishment on two separate counts, the one term of punishment commencing on the expiration of the other, provided the two together do not exceed the maximum term which could be imposed for a single offense. At common law there was no limit to the duration of sentences of imprisonment, the only condition being that imposed by Magna Charta and the Bill of Rights, that they must not be excessive, so that in the case of a common-law sentence the difficulty does not arise. Then it is said that the statute has drawn a hard and fast line, and has the effect of limiting the power of sentencing in the way contended for. As to that proposition, except the American case of People v. Liscomb, which runs counter to all the English authorities, no case has been cited; there is no other authority favorable to the contention. Suppose a man commits two offenses, each deserving seven years' penal servitude, is the Crown to wait seven years before prosecuting him for the second offense?—the notion is preposterous; or are there to be two separate indictments? If so, what is to happen then? Is judgment to be respited on the second charge until the defendant has served the sentence awarded on the first? Is not the more reasonable and convenient course to join the two offenses in different counts, and pass sentence for both? I can see no justification for the contention that this can not be done. I am of opinion that it is not so in law, it is not so in reason, and the authorities are against it. I agree therefore that the sentence must be affirmed.

BRETT, L. J.

I have listened attentively to Mr. Benjamin's argument, because I know that every point which could be raised would be put before us, but it has produced no real effect upon my mind. Two main objections have been taken, one of which,

if correct, would be fatal to the sentence (unless amended), even if only one term of penal servitude had been awarded, while the other only goes to this, that the second term is not warranted by law. These two objections are now brought forward, six years after the passing of the setence. As to the first point, it is said that the sentence is wrong, because it was not preceded by a nominal sentence of fine or imprisonment. This is really of no consequence, because the sentence could be amended if it were necessary; but it is important to give an opinion on the question, for it turns on the construction of 2 Geo. 2, ch. 25, § 2; I am of opinion that that is an enabling section, and empowers the court to add to the common-law punishment a sentence of transportation (now penal servitude), or to give such sentence in substitution for the common-law punishment. I think that the words of the statute give a strong indication of the view that the court may adjudge the common-law punishment in addition to penal servitude, or may not do so, as seems right. It is said that on other trials which have been referred to I took another view, and gave a short sentence of imprisonment in addition to a term of penal servitude, but that was only by way of precaution, and is no authority to the contrary of what we are now deciding. It is obvious that the judge has power to add a previous sentence of imprisonment to a sentence of penal servitude, but this does not show that he has not power to omit such previous sentence. According to our unanimous construction it is an enabling section. Then there is the main objection. It is argued that there were not two offenses. It is not necessary to consider what the law is with regard to two perjuries taking place on one trial. Here there were two absolutely distinct and separate offenses. It is said that because they are charged in the same indictment they are only one offense; but I think that during the last 300 years the contrary has been the law, and it has often been so ruled, and it seems to me that separate counts are equivalent to separate indictments. Then it is said that the counts do not end "against the form of the statute," etc.: if the offense is the result of a statute that must be put in; otherwise it need not. Then, can the punishment for the second offense be postponed until after the first punishment is over? This has been decided by the House of Lords in Wilkes' Case. A specific question was there put to the judges by the House of Lords in these words, "Whether a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offense, is good in law?" There was no reference there to one of several indictments, and the question was answered in terms by the judges: "That a judgment of imprisonment against a defendant, to commence from and after the determination of an imprisonment to which he was before sentenced for another offense, is good in law." 4 Burrow, 2579; 19 How. St. Tr., 1127-1136. That question and answer are entirely irrespective of whether the offenses were included in one indict

ment or two, and the law has been so interpreted ever since. The question of the House of Lords in that case was whether the court could postpone the commencement of the second sentence until the expiration of the first. The judges gave one limitation, "that the punishment shall take place before a total dismission of the party; a punishment shall not hang over a man's head when he has once been discharged:" 19 How. St. Tr. 1133. They seemed to consider it not right to postpone the Commencement of the second term of punishment to a period later than the prisoner's dismission from the first. But then they continue: "But whilst he remains under a state of punishment, whilst he is suffering one part of his punishment, he is very properly the object of a different kind of punishment to take place during the continuance of the former, or immediately after the end of it." Id. R. v. Williams, Gregory v. Queen, and R. v. Robinson, supra, are to the same effect. Mr. Benjamin cited 7 & 8 Geo. 4, ch. 28, sec. 10, and said that because that provision was required for cases of felony, something of the kind is also required for cases of misdemeanor. That section was passed after the answer of the judges in Wilkes' Case had been given, as Blackburn, J., says in R. v. Cutbush, L. R. 2 Q B., 381, "to give the courts the same power in cases of felony as they had at common law in misdemeanors." Therefore this argument is turned against Mr. Benjamin by this opinion of Blackburn, J. Mr. Benjamin says that this rule applies only where the defendant is in prison; but he is really in prison when the sentence is passed; the sentence always begins from a date prior to the time at which it is passed. What Blackburn, J., says, shows that the law is the same as to felony and misdemeanor, and that is a strong authority against the view adopted by the American judges. It is said that by statute three felonies are expressly allowed to be joined in cases of embezzlement. But that enactment relates to procedure, not to punishment, and it only took away the power to quash the indictment for misjoinder, or put the prosecutor to his election, in cases to which it applies. Then there is the American decision, People v. Liscomb, supra. I am always anxious to hear what has been decided by the courts and judges in America, and what views they have taken on any points coming before us; but here the proposition seems to be that if one sentence follows another, the two together shall not exceed the extreme amount which could have been awarded for one of the offenses. With deference, and with candor, I confess that I can see no reason in form or in substance for the conclusion arrived at in that case; it seems to me to be only a judicial declaration that it is so. The question is dealt with by Patteson, J., in O'Connell v. Queen, 11 Cl. & F. at p. 261, and what he says there shows that it was his opinion that where the commencement of the second sentence is postponed till the conclusion of the first, it is no objection that the aggregate exceeds the maximum

which could be awarded for one offense. This seems to me to be an irresistible inference from the language used. In R. v. Robinson, supra, while deciding that a sentence of two years' imprisonment was incorrect, the judges said "that there should have been consecutive judgments of one year's imprisonment each." It is true that it is not a decision, but it shows very clearly what the opinion of the judges on this point was, and what Blackburn, J., said in R. v. Cutbush, supra, is also a strong authority to the same effect. I am, therefore, of opinion that this is a per fectly clear case, and that the sentence imposed was warranted by law. Judgment affirmed.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF KANSAS.

September, 1880.

VERDICT BY LOT-MOTION FOR NEW TRIAL-CONSTITUTIONAL LAW-INTOXICATING LIQUORS-ACTION.-1. Where, in order to determine the amount of the verdict, the jury agreed that each juror should name the amount for which he was willing to give a verdict, and that the sum of these amounts should be divided by twelve and that the quotient should be returned as the verdict, and this agreement was carried into effect, and the result reached in no other way and without any subsequent consideration or assent of the several jurors: Heid, that a verdict so made up and returned was improper and must be set aside. 2. No notice is required to be given of a motion for a new trial, and on the hearing of such a motion the court may not refuse to hear an affidavit on the ground that it has not been filed before the motion is called for hearing. If the affidavit discloses unexpected testimony, the court may for good cause postpone the further hearing so as to give the opposing party time to produce counter testimony. 3. Section 16, art. 2 of the Constitution, which provides that no bill shall contain more than one subject, which shall be clearly expressed in its title," does not invalidate or render unconstitutional secs. 9 and 10 of the dram-shop act. 4. It is no defense to an action brought under these sections that the intoxication was caused partially by liquor sold by other parties; it is enough if the liquor sold by the defendant was the direct cause, either in whole or in part, of the intoxication. Reversed. Opinion by BREWER, J. All the justices concurring.— Werner v. Edmiston.

HOMICIDE - CONDUCT OF TRIAL EVIDENCE ON PRELIMINARY CHARGE FOR ASSAULT-DYING DECLARATIONS.-1. On the trial of a party charged with the crime of murder in the second degree the defendant was represented by three counsel. The county attorney was at his request assisted by one counsel whose compensation was received from the father of the decased. Notwithstanding the objections of defendant, the court permitted such private counsel to assist in the trial. After the State had rested, and defendant had commenced offering testimony, it was disclosed that such assisting counsel had been, pending the trial, appointed deputy county attorney. Objection was made to his further participation in the trial, and overruled. Nothing in the

record tends to show any surrender of the control of the prosecution by the county counsel, or any ungentlemanly or unprofessional conduct on the part of the assistant counsel, or any undue zeal in the prosecution, or any oppression of the defendant. Held, that no error affecting the substantial rights of defendant, or calling for a reversal of the judgment against him, appears from such participation of privately employed counsel in the trial. 2. Defendant was arrested, and a preliminary examination held on a charge of an assault with intent to kill. On such examination the testimony of the party assaulted was taken. This testimony was taken at the rooms of, the witness, he being unable to move therefrom, and in the presence of the justice and the counsel for defendant, the defendant himself being absent. He could have been present if he had desired, but preferred not to be. Subsequently the party assaulted died, and a charge of murder was preferred in lieu of the original charge of assault with intent to kill. Upon the trial upon this charge evidence was received of the testimony given by such deceased witness on the preliminary examination. Held, no error. 3. The admission of this testimony did not render incompetent and inadmissible evidence of the dying declarations of such deceased witness subsequently made. 4. Dying declarations, to be admissible, must be made under a sense of impending death; but it is not necessary that the declarant state that he is expecting immediate death; it is enough if from all the circumstances it satisfactorily appears that such was the condition of his mind at the time of the declarations. 5. A witness was called who heard the dying declarations, and testified that at the time he made a minute or memorandum of them. Held, that as such memorandum was not of itself competent evidence, and could only be used to refresh the witness' recollection, the witness might testify as to the declarations without producing the memorandum and without such evidence of its loss and a proper search for it as would open the door to parol testimony as to its contents as a lost instrument. Affirmed. Opinion by BREWER, J. VALENTINE, J., concurring. HORTON, C. J., dissenting.-State v. Wilson.

NEGOTIABLE PAPER-Indorsement-DEMAND.— 1. The indorsement of a note after maturity is in effect the drawing of a new bill, payable on demand; and to hold the indorser, demand and notice of nonpayment are essential. Swarts v. Redfield, 13 Kas. 550. 2. After the indorsement of a note after maturity, J, the indorser, held the note in his care and custody for B, the indorsee, and at his instance, from March 1st, 1874, to January 11th, 1875, for safe keeping in a bank of which J was the president and cashier. The indorsee took actual possession of the note on January 11th, 1875, and brought an action thereon against the maker, failing to collect all the judgment from the maker, or the mortgaged property, on May 11th, 1878, an action was brought against J, as indorser: Held, as no other demand was made than the institution of the suit on January 11th, 1875, and as no notice of non-payment was given, and as such notice was not waived, the indorser is not liable. Affirmed. Opinion by HORTON, C. J. All the justices concurring.-Shelby v. Judd.

class, at a meeting where all the members of the council and the mayor are present, take steps to pass a certain city ordinance, and afterwards, at an adjourned meeting of said council, pass such ordinance: Held, that the ordinance may be valid, notwithstand ing the fact that no ordinance had previously been passed fixing the times for holding the regular meetings of the city council. And where the records of the city council show that the ordinance was as a whole, and each section thereof separately, adopted by a majority of all the members of the city council elected, and that there was no vote against the ordinance or any part thereof, and that each section of the ordinance was considered separately, and that upon the adoption thereof the yeas and nays were taken: Held, that the ordinance may be valid, although the records of the city council may not show in terms that the yeas and nays were taken upon the final passage of the ordinance as a whole. Affirmed. Opin. ion by VALENTINE, J. All the justices concurring.— City of Solomon v, Hughes.

ASSAULT WITH INTENT TO COMMIT RAPE — EVIDENCE.-B and M were charged with an assault with intent to commit rape on Anna B, the wife of the defendant B. On the trial, the wife testified to certain shameful acts and words of the defendants committed several days subsequent to the date of the alleged offense, showing a willingness on the part of B that the wife might be debauched by M. Held, incompetent and sufficiently prejudicial to be material error. versed. Opinion by HORTON, C. J. All the justices concurring.-State v. Boyland.

Re

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

September, 1880.

TORT-AVERMENT-PROOF-EVIDENCE OF NEGLIGENCE.-1. An averment in the plaintiff's declaration that he was injured by a horse car of the defendant company which was carelessly driven upon and over him, is not supported by proof that he was injured by another car in attempting to escape from a car carelessly driven. Lund v. Tyngsboro, 11 Cush. 568. 2. The mere fact that the car which did strike the plaintiff was driven at a rate of speed forbidden by the city ordinance, would not be conclusive proof of negligence; nor if such unlawful rate of speed contributed to the injury, would that alone give the plaintiff a right to recover. Opinion by COLT, J.Hanlon v. South Boston Horse Railroad Co.

FRAUDULENT CONVEYANCE-EVIDENCE-DECLARATIONS. In a writ of entry upon the issue whether certain conveyances made by a husband, through a third person, to his wife, were fraudulent as against the husband's creditors. the declarations of such third person, made to the magistrate by whom the acknowledgment of said deeds was taken, concerning the purpose and intent of the parties in the execution of said deeds, were held inadmissible, it appearing that the deeds to said third person, though signed, had not been acknowledged or delivered at the time the declarations were made. Noyes v. Morrill, 108 Mass. 399; Haynes v. Rutter, 24 Pick. 242; Pool v. Bridges, 4 Pick. 378; Lund v. Tyngsboro, 9 Cush. 40. Opinion by COLT, J.-Stockwell v. Blamey.

ASSIGNMENT FOR BENEFIT OF CREDITORS-ATTACHMENT-COMITY.-A debtor, a resident of the State of Rhode Island, made an assignment under seal valid as against creditors in that State, of his entire property, real and personal, to the plaintiff as

assignee, in trust for his creditors, the only consideration for said assignment being the acceptance of the trust by the plaintiff. At the time of said assignment there was personal property of said debtor in this Commonwealth, and thereafter the plaintiff came here and took possession thereof; and while in said possession, and before the removal thereof by him, it was attached by the defendant, a deputy sheriff, on mesne process in favor of a creditor here, who had not, nor at that time had any other of the creditors of said debtor, become a party or assented to said assignment. In an action of tort it was held, that said assignment, if made here, would be invalid, and that there was no comity which required this court to give force to the laws of another State which decidedly conflict with the laws of our own, or to allow to the act of a debtor resident in another State an effect in disposing of his property, which, as against his creditors here, it would not have if he lived in Massachusetts. Zipcey v. Thompson, 1 Gray, 243; Swan v. Crafts, 124 Mass. 453; Osborn v. Adams, 18 Pick. 245; Fall River Iron Works v. Croade, 15 Pick. 11. Opinion by COLT, J.-Pierce v. O'Brien.

--

CONVERSION-CONSTABLE-DISCHARGE IN BANKRUPTCY.-Where a constable had converted goods belonging to the plaintiff by attaching the same upon writs against a third person, it was held, that a discharge in bankruptcy obtained by the defendant subsequent to such attachment was a bar to the plaintiff's claim. Opinion by MORTON, J.-Hayes v. Nash. CONTRACT DEATH OF CONTRACTING Party— EXECUTOR. The defendant's testator placed his niece in the school of the plaintiff and agreed to pay a reasonable compensation for her board, teaching and such articles of clothing as were furnished to her, but there was no stipulation that she should remain for any definite time. In an action against the executor to recover for certain items furnished the niece after the death of the testator, it was held, that the death of the testator terminated the contract, and that the defendant was entitled to the ruling which he requested, that the plaintiff was not entitled to recover for any of the items furnished after the plaintiff had notice of the testator's death, which ruling the court had declined to give. Opinion by MORTON, J.Browne v. McDonald.

SUPREME COURT OF INDIANA. September, 1880.

AC

REAL ESTATE PAROL PURCHASE-Deed KNOWLEDGMENT - DEMAND-STATUTE OF LIMITATIONS.-1. A bought certain land of B by parol, receiving possession and agreeing to pay the purchase price with interest. No time was specified within which payment was to be made. Subsequently B demanded payment, and C, by agreement with A, paid the purchase money to B and took a conveyance of the land from B, agreeing to hold the title as his security for repayment by A. Held, that C became the absolute owner of the land in fee simple, and not the holder of a mere lien thereon, holding it subject to the equitable interest of A therein under his parol contract of purchase; and in a suit by C to enforce the specific performance of A's contract of purchase, an answer setting up facts tending to show an abandonment of C's lien is insufficient, as not being responsive to the complaint. 2. Where money is not made payable at any fixed time, it is payable only on demand, and does not become due until payment is demanded, and an action will not lie until demand is made. In such a

case the statute of limitations does not begin to run until demand is made. 19 Ind. 105; 43 Ind. 276. 3. A deed without acknowledgment is valid as to the parties thereto; and as to other parties who have notice or knowledge of its execution, it is not void for the want of an acknowledgment, or because of a defective certificate of acknowledgment. 23 Ind. 322. 4. The fifth clause of the first section of the statute of frauds is not applicable to an agreement in relation to real estate. Affirmed. Opinion by HowK, J.-Cole v. Wright.

SHERIFF FAILURE TO MAKE RETURN-DILIGENCE IN MAKING LEVY.-1. At common law no action could be maintained against a sheriff for a neglect to return an execution. The practice was to compel a return, and then to seek a remedy upon that if untrue. Gwynne on Sheriffs, 569; 6 Hill, 550. But sections 482, 484 and 485 of the code have so far changed the common-law rule as to authorize a party in interest to maintain an action against a sheriff, either individually or upon his bond, for failing to return an execution. for such damages as the party may have sustained by reason of such failure; but to entitle the party to recover more than nominal damages, the facts upon which he relies for a recovery must be set forth in his complaint. 2. Section 433 of the code provides that a sheriff shall have sixty days after an execution comes into his hands in which to make a levy and an offer of sale; and where the sheriff was greatly pressed with official business, in consequence of which he delayed levying an execution for fourteen days after he received it: Held, that he could not be deemed guilty of negligence in the absence of some direction or notice that greater diligence was required. Affirmed. Opinion by NIBLACK, J.-State ex rel. Alford v. Blanch.

LIABILITY OF CHILD FOR NECESSARIES FURNISHED PARENT-CONTRACT-EVIDENCE.-A son is under no legal obligations to support his parents, but may be held for necessaries furnished them at his request; but such request must be proved and can not be inferred from his natural duty to provide for them, or from any merely collateral fact. 45 N. H. 558; 32 Conn. 142. In a suit by a physician to collect his bill for services rendered the defendant's parents at his request, evidence that the defendant had paid house rent for his parents and employed a person to take care of them, is not admissible as tending to establish snch request. But such facts having been called out by the plaintiff, it was competent for the defendant to show that the firm of which he was a member paid such bills and charged them to his father, and that he and his brothers had reimbursed said firm for the amounts so paid. Affirmed. Opinion by NIBLACK, J.-Becker v. Gibson.

COURT OF APPEALS OF KENTUCKY.

September, 1880.

VOID SALE OF REAL ESTATE CONSTRUCTIVE SUMMONS.-Appellee obtained judgment against appellant for the recovery of real estate held by the former, and in attempting to trace the title from the appellant to his interest in the real estate in controversy relied on a sale made by the sheriff under an attachment levied on this real estate. When the attachment is produced, it is found that no levy was made on the interest of appellant in any manner, but his estate was sold upon a constructive summons (he being a non-resident) without any levy or seizure so as to give the court jurisdiction: Held, that even if here was an appearance, the sale could not have been

made under an attachment when no levy had been made so as to pass title to the purchaser. Judgment reversed and cause remanded. Opinion by PRYOR, J.-Williamson v. Eliott.

CONSTITUTIONAL LAW - TAX ON COMMERCIAL AGENTS "COMMERCE AMONG THE STATES."-By the charter of the town of Richmond, the trustees thereof "have power and authority to tax all auctioneers in a sum not exceeding five per cent. for all goods, wares, merchandise and articles sold to bidders within said town, except property sold by citizens of the town or county, and who are bona fide owners thereof, etc., and shall have a lien on the articles sold for such tax until the same is paid, or the person selling the same take out a license for that purpose." In pursuance to the charter the board of trustees adopted an ordinance in substance as above quoted, and fixed the license of auctioneers at five dollars for residents of Madison County, and ten dollars for such as were not residents of that county. Appellant sold goods for Cincinnati parties, and the trustees demanded the five per cent. on amount of sales made within the corporate limits; he refused to pay, claiming that the tax was unconstitutional. Appellant, by agreement, deposited the amount of the tax with a third person, to hold same until a judicial decision was had. Suit was instituted for that purpose, and in court below the charter was held to be constitutional. On appeal: Held, that the provision of charter above quoted is in conflict with sec. 2, art. 4, of Federal Constitution, which provides that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States;" and a provision of the same Constitution further declares that 'no State shall lay any imposts or duties on imports, exports or tonnage, " and that it is the duty of Congress to regulate commerce among the States." Judgment reversed, and the portion of the charter in question is adjudged unconstitutional and cause remanded for further proceedings. Opinion by HARGIS, J.-Daniel v. Trustees of Richmond.

PRINCIPAL AND SURETY-AUTHORITY OF FORMER TO SIGN LATTER'S NAME-PAROL EVIDENCE.-Appellant, Ragan, instituted this action against J. W. Chenault on two notes executed by the latter as the surety of Joseph Chenault, one note for $2,000, dated December, 1874, the other for $1,000, dated January, 1879. Chenault (the appellee) denies the execution of the notes, and alleges that his name was signed in the character of surety only by the principal and without any written authority from him for that purpose. Appellant relies on the subsequent ratification by the appellee of the act of the principal in affixing his name to the paper. The law and facts were submitted to the court, and a judgment for the surety, from which this appeal is prosecuted. The court say, quoting the statutes, p. 252, that "no person shall be bound as the surety of another by the act of an agent, unless the authority of the agent is in writing signed by the principal:" The mischief intended to be provided against by this statute was to prevent the use of one's name as surety in obligations so as to fix upon him a liability with no other evidence than the alleged parol authority given the principal or some other person to sign the surety's name. The numerous cases where the authority to sign had been successfully questioned, and as many more where the surety acting in bad faith denied the authority, induced the passage of this law, and to permit parol proof of a subsequent ratification would in effect nullify the statute. If the parol authority given before the note was signed to affix the surety's name is incompetent, we can not well see how the subsequent admission by the surety that he gave such authority and is liable as such can be held

admissible. If the surety had pleaded that he gave his authority in parol, and therefore was not liable, the plea would have been good, and that is the substance of the defense made. The surety is not bound unless the authority to sign his name is in writing; and a subsequent statement that it was all right, the principal had authority to sign it," when this authority was in parol, and that fact not questioned would not, if conceded, make the appellee responsible. Judgment affirmed. Opinion by PRYOR, J.-Ragan v. Chenault.

SUPREME COURT OF ALABAMA.

December Term, 1879.*

66

BURGLARY-WHEN NOT PROVED-INDICTMENT.1. An indictment which charges that the accused broke and entered a gin-house, the property of W R, in which was kept for use, sale or deposit, seedcotton, a thing of value," etc., is sufficient, without an additional averment that the gin-house was specially constructed for the storage, etc, of seed-cotton. Only structures of a temporary character, erected for special purposes or occasions, require such additional descriptive averment. 2. The two rooms of a ginhouse, which Las not been used as such for two years or more, being separated by a partition, in which an opening was left, not for ingress or egress, but for the passage of the cotton from the gin into the lint room; and being rented to different tenants, each having the key to the door of his room; if one of them enters the room of the other through said opening, with the intent to steal his seed cotton stored therein, he is not guilty of burglary; nor would he be guilty of burglary, though he opened and entered the door of his own room with intent to pass through the opening and steal the cotton stored in the other room. Reversed and remanded. Opinion by MANNING, J.-Stone v. State.

EXAMINATION OF WITNESSES -RES GESTA. 1. It is a common practice, when a witness is put on the stand, to ask him his age, residence, condition in life, etc., which questions are merely introductory, intending to aid the jury in putting a proper estimate on his testimony, and hardly the subject of exception. Under this practice, in a criminal case, the prosecutrix may be asked, "if she was a widow." 2. The prisoner was arrested on a charge of larceny in stealing a $20 gold piece with other money, and denied having any money whatever in his possession, When taken to the guard-house, the officer said to him, "I know all about it, and am going to find it;" to which he replied, "Since you know so much about it, I am going to tell you where it is," and told the officer that the gold piece was buried under the hearth in his house. The officer having failed to find the money in the place indicated, he asked the prisoner to go and point it out to him, which the prisoner consented to do; and on arriving at the house he raised a brick in the hearth and disclosed a gold piece. After pointing out the money defendant said it was given to him by'a servant in the employment of the prosecutrix. Held, that this declaration was not admissible evidence for the defendant, not being explanatory of his possession, nor constituting a part of the res gesta. Affirmed. Opinion by MANNING, J.-Cooper v. State.

*From the Southern Law Journal and Reporter.