JACKSON.

April, 1836. says the covenant was not to pay at all events, but that he

Hagler

V

McMeans

would use reasonable diligence in collecting the debts and would pay the amount collected, upon request.

Yielding to the authority of these cases, we are of opinion that the judgment be affirmed.

Judgment affirmed.

HAGLER VS. McMEANS.

A memorandum or endorsement without date, made on the back of a protest by the notary thus, "notices of the witbin protest put in the post office at Jackson, addressed to John Ray and James R. McMeans, Paris, Henry county, Tennessee. W. W. Perkins Notary Public," is inadmissable as evidence to prove the fact of notice.

The facts of this case are stated in the opinion of the court delivered by Judge Green.

A. M'Campbell, for plaintiff in error.

Ferril, for defendant in error.

GREEN, J. delivered the opinion of the court.

This action is founded upon an endorsement by McMeans of a bill single, drawn by John Ray, and payable to McMeans at the Branch of the Union Bank of Tennessee, at Jackson. The note was protested for non-payment. On the trial, the protest of the notary public was read in evidence, to prove that a demand of payment had been regularly made. The plaintiff, to prove notice, then offered to read the following memorandum, which was endorsed on the back of the certificate of protest, "notices of the within protest put in the post office at Jackson, addressed to John Ray and James R. McMeans, Paris, Henry county, Tennessee.

W. W. PERKINS, Notary Public."

It was insisted for the plaintiff, that he was authorised to read this memorandum by the act of 1820, c. 25, § 4. The court refused to permit it to be read, to which opinion the

plaintiff excepted. The memorandum of the notary that notices had been placed in the post office at Jackson is without date, and therefore could not tend to fix the endorser. That he had knowledge of the demand would have created no liability, unless notice had been given in time. As this memorandum fixes no time when notice was given, it is insufficient proof of itself, and it could not have assisted other proof that might have been introduced to establish the time when notice was given, for evidence to prove the time would, necessarily establish the notice, therefore it was useless to read the memorandum to the jury, as it could have had no other effect than to mislead them.

Judgment affirmed.

KNOXVILIE June 1836.

M'Pherson

V

The State.

JOHN M'PHERSON VS. THE STATE.

The circuit court charged the jury, "that if they found that the deceased in her dying declarations made contradictory statements, that they were not to be governed by the rules of evidence in relation [to contradictory statements made by a witness." Held that this charge was erroneous.

The same principles of law are applicable to the contradictory statements of persons in extremis as to those of a witness under examination on oath.

The defendant was indicted for the murder of his wife, in the circuit court of Carroll county. He was convicted and sentenced to be hung. He moved for a new trial, which being overruled, he appealed in error to this court. The facts necessary to be stated are found in the opinion delivered by Judge Turley.

M. Brown, for the plaintiff in error.

Geo. S. Yerger, Attorney General, for the State.

TURLEY J. delivered the opinion of the court.

At the July term 1835 of the circuit court for the county of Carroll, the plaintiff in error was convicted of the crime of

JACKSON.

April, 1836,

M'Pherson

V

The State.

murder, and sentenced by the judgment of the court to die, which judgment this writ of error is prosecuted to reverse. The first objection to this judgment is, that the bill of indictment is drawn without any specification as to the degree of murder intended to be charged, and that the verdict of the jury is in general terms, that the prisoner is guilty in manner and form as charged in the bill of indictment, without specifying that he is guilty of murder in the first or second degree.

This objection is well taken: The act of 1829, c. 23, § 3, enacts, "that the jury before whom any person indicted for murder shall be tried, shall if they find such person guilty thereof, ascertain in their verdict, whether it be murder in the first or second degree.

The second objection is, to the charge of the court as to the manner in which the testimony in the case was to be judged by the jury. The bill of exceptions shows, that the dying declarations of the individual charged to have been murdered by the prisoner, were contradictory; sometimes accusing him of having committed the deed, and at other times saying that she did not know who had done it. Upon this the court charged the jury, that if they found that the deceased in her dying declarations made contradictory statements, that they were not to be governed by the rules of evidence in relation to contradictory statements made by a witness in a court of justice. This charge is clearly erroneous, for there is no reason why the same principle of law should not be applied to the contradictory statements of persons in extremis and those of a person on examination under oath. The court upon this point should have charged the jury, that if they believed that the contradiction in the dying doclarations of the deceased, were produced by ignorance on her part as to who had committed the offence, and a mere surmise that it was the prisoner, they ought to be rejected and not permitted to have any weight in coming to a conclusion upon which their judgment was to be based; but that if they believed that the contradictions were produced by apprehension and fears of her husband, or an unwillingness to charge him with the offence, and not from ignorance as to his guilt, then the contradictions might be reconciled, and that portion of her declaration charging the

prisoner with the offence ought to be taken into consideration by them, and such weight ought to be given to it as from all the circumstances in the case they might think it justly entitled. The judgment will be reversed and the prisoner remanded to Carroll county for a new trial under these instructions. Judgment reversed.

36

JACLSON. April, 1836.

McPherson

The State