8 F. 232 | U.S. Cir. Ct. | 1881
The court is satisfied that the construction put upon the Revised Statutes (section 5358) is the correct one. I cannot consent to emasculate this statute by whittling it down by construction to the paltry proportions of larceny of lost goods on land, as understood at common law; and certainly not to the once still narrower doctrine of our state that there can be no larceny of lost property, which has everywhere been repudiated as unsound, and is now changed by statute. T. & S. (Tenn.) Code, 4685; 2 King Dig. (2d Ed.) tit. “Larceny,” §§ 1986,1992; 2 Ben. & Heard, Lead. Crim. Cas. (2d Ed.) 409, 426; 1 Crim. Law Mag. 209, 214; 2 Whart. Crim. Law, (7th Ed.) §§ 1791 et seq.; Id. § 1867; 2 Bish. Crim. Law, (6th Ed.) § 758, note; par. 17, § S38; § 880 et seq. I am of opinion, therefore, that the instructions asked by the defendant, defining larceny and the specific intent necessary to constitute that crime, and applying it to goods “floating in the water, at the time when they had escaped from the custody and control of the crew of the steamer,” were properly refused.
In the first place, goods so situated are neither lost nor abandoned, in the circumstances of this case, while floating near a recent wreck to which they belong, with full knowledge on the part of those who take them that they do so belong. Even in the eyes of the common law they are not lost, but certainly not in those of the maritime law.
That there is a prevalent belief along this river that goods floating from a wreck may be appropriated by those who “capture” them from the water is, perhaps, true; and it may be that goods so situated are supposed to belong to the first taker by those who know better than to apply the same rule of conduct to goods lost or in peril by fire or other disaster on land. But it seems to me plain that this preposterous claim of right cannot serve to excuse the taking either at common law or under the statute. I dp not see how any man whose moral sensibilities are not blunted by the temptation always afforded by such disasters, whether on land or sea, and who is not wholly demoralized' in the presence of the temptation, ■can fail to recognize the wrong in it. The duty of restoring the
But while I am inclined to the opinion that on the facts of this case a common-law indictment for larceny, pure and simple, might be sustained, if the statute had intended only to declare that offence as applicable to wrecks, as the statute was not so interpreted and the jury was not instructed on that theory, the conviction cannot be sustained on that ground, because it was their province to determine whether the facts constituted larceny. It is, then, still necessary to inquire whether the charge has correctly interpreted the statute as one declaring an offence distinct from larceny, or rather one
Mr. Stephen says of this word “plunder” that he does not know that it has any special legal signification. Steph, Dig. Grim. Law, (St. Louis Ed. 1878,) 261, 266, and notes. The lexicographers define it as that which is taken from an enemy by force: “spoil;” “rapine;” “booty;” “pillage,” etc. Wórcest. Diet.; Webst. Diet. In Roget’s Thesaurus it will be found grouped with “mutilation,” “spoliation,” “destruction,” and “sack,” at section 619; with “harm,” “wrong,” “molest,” “spoil,” “despoil,” “lay waste,” “dismantle,” “demolish,” “consume,” “overrun,” and “destroy,” at section 649; with “booty,” “spoil,” and “prey,” at section 793; and with “taking,” “catching,” “seizing,” “carrying away,” “stealing,” “thieving,” “depredation,” “pilfering,” “larceny,” “robbery,” “marauding,” “embezzlement,” “filch,” “pilfer,” and “purloin,” at sections 791, 792, (Sears’ Ed. 1866.) In Abbott’s Law Dictionary “plunder” is said to be often used to express the idea of taking property without right to do so; but not as expressing the nature of the wrong involved, or necessarily imputing a felonious intent. 2 Abb. Diet. 284, word, “Plunder.” In Bouvier’s Law Dictionary it is limited to the idea of capturing property from a public enemy on land; but “plunderage” is defined as a maritime term for the “embezzlement” of goods on board a ship. The word is used in Rev. St. § 5361, in describing an intent as a synonym of “despoil,” this being also a section of the act of 1825, from which the one we are considering was taken. The first English statute of 7 and 8 G-eo. IY. c. 29, § 18, used the words “plunder or steal,” but contained a proviso that where things of small value were east on shore and were stolen, without circumstances of violence, the offender might be prosecuted for simple larceny; which shows that the statute was not regarded as declaring the crime of larceny simply, but something more. Indeed, anciently, the common law would
“ The most common meaning,” says Mr. Chief Justice Shaw, “ of this term plunder ’ is to take property from persons or places by open force, as in the ease of pirates or banditti. But in another and very common meaning, though perhaps in some degree figurative, according to the general tendency of men to exaggerate and apply stronger language than the case will warrant, it is used to express the idea of taking property from a person or place without just right, but not expressing tho nature or quality of the wrong done. Like many such terms, as pillaging, rifling, pilfering, embezzling, swindling, peculation, and many other like ambiguous terms which have not acquired, either in law or philology, a precise or definite meaning, they express the idea of wrongful acquisition, but not the nature of the wrong done.” Page 9.
The same thing may be said of the word “steal,” though it is not as indefinite as “plunder.” It is generally used to express the crime of larceny, — which is the purely technical word, about the meaning of which there can be no doubt, — and in a slander case it would need no innuendo or colloquium to give it force. Yet we often use it in a sense not synonymous with larceny, as when we speak of stealing a child, stealing a wife, stealing - a thought, stealing land, stealing a literary composition, or the like. One of the definitions is “to take without right or leave.” The primary idea of the word is stealth, or a secret, concealed, or clandestine taking; but it is quite as often applied to open taking, and is used interchangeably with “rob,” which is defined “to take away” without right — to steal; “to take anything away from, by unlawful force or secret theft — to plunder; to strip.” Worcest. Diet., words, “Steal,” “Rob;” Webst. Diet., same words and “Purloin;” 2 Bouv. Diet., word, “Stealing;” 2 Abb. Law Diet., word, “ Steal. ” I do not find the word “steal ” used in defining larceny in any of the common-law authorities cited by Mr. Bishop, or elsewhere, from Lord Coke down. 2 Bish. Crim. Law, § 758, andnotes; 1 Bish. Crim. Law, § 566; 2 Whart. Crim. Law, § 1750. And the truth is, Ithink, it is not a technical word, in the strict sense of that term, but a com
“ The natural ancl most obvious import of the word ‘ steal ’ is that of felonious taking of property, or larceny; but it may be qualified by the context.”' Page 554.
In Alexander v. State, 12 Tex. 540, where the words of the statute were “steal or entice away a slave,” it was held the word “steal” imported a simple larceny, and ’“entice, away” defined a separate offence, distinctly differing from the other. A similar statute was not so construed in South Carolina, but as creating a statutory offense differing from larceny; and this Texas case is, I believe, exceptional. State v. Gossett, 9 Rich. (S. C.) Law, 428. In Spencer v. State, 20 Ala. 24, it appears that in the Penal Code of Alabama there were two sections, one of which, the twenty-fifth, enacted that if one should “fraudulently or feloniously steal” property in any other state or country, and bring it into that state, he might be convicted and punished “as if such larceny” had been committed in Alabama. Another, the eighteenth section, enacted that any one who should “inveigle, steal, carry, or entice away” any slave, etc., should, on conviction, be punished, etc. The words “steal” and “larceny” were held to be technically used in the twenty-fifth section, and required that the ingredients of larceny should exist; while in the eighteenth section the word “steal,” with others used, embraced not only larceny, but other offences different from that offence in some essential particulars. Perhaps it would have been more accurate to say that the eighteenth section constituted a statutory offence embracing not only larceny, but other acts, essentially differing ffom those entering into that offence; because it is apparent from the case, and the others cited in the opinion, that is what the court meant, and not a plurality of offences, including larceny. In Williams v. State, 15 Ala. 259, the word “steal” is said to import a larceny, when technically used, but in this eighteenth section to be used as a synonym of “carry away;” for the act declares that the offence shall be complete without an intention to convert to use of the taker or some other person, ■which was the essential ingredient in larceny. So, in Murray v. State, 18 Ala. 727, it was held that although the acts must, under the twenty-fifth section, constitute larceny in Alabama, it was the bringing of the slave into the state that constituted the statutory offence. And see Ham v. State, 15 Ala. 188. Furthermore, it appears from these cases that under these two sections a common-law
The word “destroy” is also somewhat a maritime word, and is used, as will be seen by other sections of this chapter of the Revised Statutes, to denote any kind of deprivation of the owner by demolishing, making way with, or other subversion of his property. Taken altogether, these three words comprehend any kind of taking with evil intent, and we have implied by them the animo furandi and lucri causa of larceny, the love of greed accompanying embezzlement, breach of trust, and such self-appropriation as escapes the punishment for larceny for want of a trespass, and the wicked intent that belongs to such acts as we call malicious mischief, criminal trespass, and the like. Any of these intents are sufficient under the statute; and, although there must necessarily be a general evil
It is said by a learned annotator that the finder of a lost article of goods may have three motives — (1) To keep it and use it as his own; (2) to keep it for the owner when ascertained; (3) to keep it for a reward. 2 Ben. & Heard, Lead. Crim. Cas. (2d Ed.) 431. To which may be added, in cases like this, that of depriving the owner of his property by destruction, if that can be an intent independent of that to use it as property belonging to the finder, or supposed by him to belong to himself, as in this case. I am unable to see any other motive, and the ingenuity of counsel has not satisfactorily suggested any; and I charged the jury in this case that if the second and third of these motives existed this statute was not violated, but if any other were found it was, and, it seems to me, clearly so. It was said in argument one might drag goods from the river to see if worth saving, and, on examination, supposing them worthless, immediately cast them back. I understand the authorities to hold that if kept but for a moment with the unlawful intent the crime is complete. 2 Whart. Crim. Law, § 1789. So, if in the case put the intent were to appropriate the goods to his own use, the statute would be violated ; but if it were to save them for the owner it would not. However, if excused in the case suggested it would not be for want of unlawful intent, but because the act of taking had not been completed.
I consider the case of the U. S. v. Pitman, 1 Sprague, 196, — and see. The Missouri’s Cargo, Id. 260, for a fuller statement of facts, — as a direct authority, in support of the charge given to the jury. The learned counsel for the defendant, who have defended this case with a pertinacity and zeal that characterizes all they do, and a professional ability that could not be surpassed, — and I say this sincerely, and not to assuage defeat, — have gone into an elaborate argument and. citation of authorities to show that the learned judge in that ease uses the word “embezzlement” as the synonym of “larceny,” which, it is said, was the crime committed, and also that Chancellor Kent and other judges have so used the word. I shall not stop to inquire whether Pitman could have been convicted of larceny at common law, but I doubt it. I think, however, that the court in that case did not' só use the word, but rather in the sense used in the maritime law, as any fraudulent taking by the crew of parts of the cargo. 1 Bouv. Die., word, “Embezzlement;” 1 Abb. Diet., same
The next objection taken to the charge is that the court unwarrantably amalgamated the counts in the indictment, by which the defendant was surprised and misled. It is said the court made a new indictment and departed from the pleading of the government in order to avoid trying the defendant upon an indictment for larceny. This only amounts to saying that the court refused to adopt the defendant’s view of the statute restricting it to a larceny of lost goods on land, for it is almost too plain for argument that under our practice the form of the pleading is immaterial if the substance of the averments is sufficient; and it requires some injury to the defendant to enable him to take any advantage of a defect in form. Rev. St. § 1025. The indictment is misleading, no doubt, in chopping this offence, as it does, into pieces, by predicating one offence on “plunder, ” another on “steal,” and yet another on “destroy,” and subdividing these again into separate offences in relation to goods taken from the wreck and those belonging to it. The process may as well have been continued by a like separation of the words “money, goods, merchandise, or other effects;” or, still further, of the words “in distress, wrecked, lost, stranded, or cast away upon the sea, or upon any reef, shoal, bank,” etc., etc. The court admits that it did not detect this defect, if it be one, until it came to consider the charge to be given, and the request of the defendant to charge the jury
“ It is practically unimportant whether the provisions of the second section are expounded as so many instances or methods in which the offence of an endeavor to make a revolt or mutiny may he manifested, or whether they are taken distributively, and understood to be so many separate and distinct offences, each being sufficient of itself to sustain an indictment. The three counts of this indictment are so framed as to secure to the United States the advantage of either construction. It appears to me, therefore, that the court did not err in instructing the jury that, if the acts charged in the indictment were satisfactorily sustained by the evidence, and if the defendant committed those acts with intent to resist the master in the free and lawful exercise of his authority on board of the vessel, they would amount, in law, to an endeavor to make a revolt.” At pages 423, 424.
We come, now, to the objection that the evidence of the confession was improperly admitted. I cannot see any reason why it should have been excluded. The witness Bennett was not in any proper view a person in authority; neither was Tarrant, the deputy marshal. In Com. v. Tuckerman, 10 Gray, 173, 190, the court states the rule to be that all confessions—
“■Which are obtained by threats of harm or promises of favor and wordly advantage, held out by a person in authority, or standing in any relation from which the law will presume that his communications would be likely to' exercise an influence over the mind of the accused, are to be excluded from the hearing of judicial tribunals.” Again: “Whether the court improperly admits them cannot be determined by reference to judicial authorities, which can only supply the principle of law which is to constitute a standard of decision; but in every ease the admissibility in evidence of confessions must depend upon the peculiar state of facts and circumstances existing in that case.” Id. at p. 192; Com. v. Morey, 1 Gray, 461, 463; U. S. v. Nott, 1 McLean, 499.
The circumstances in Tuckerman’s Case, supra, are instructive, but I shall not take space to relate them here. The confessions were made to a stockholder and director of the corporation injured by the embezzlement, and yet were admitted, although the promises were stronger than we have here. The court says:
“ Thus, if an accused party has been made a prisoner, anything which may be said to him by the officer by whom he is held in custody will always be scrutinized with greatest care, and slight promises of favor coming from him will be considered a sufficient reason for rejecting all proof of subsequent confessions,*255 But the defendant was ndt under arrest, and no charge had been brought or complaint made against him at the time of his interview with Reed.” At page 193.
The court then compares the men in their relations and respective intelligence, and refers to the capacity of the accused to know what he was doing, and declares that what was said must always be considered in the light of the accompanying circumstances, which are never to be lost sight of in determining whether the promises in threats wore limited, explained, or qualified in their meaning by whatever else was said and done. See, also, Com. v. Curtis, 97 Mass. 474, 578; Com. v. Whittemore, 11 Gray, 202; Com. v. Cuffie, 108 Mass. 287; Com. v. Smith, 119 Mass. 311; Com. v. Sego, 125 Mass. 210. The cases in the federal courts substantially agree with these Massachusetts cases. U. S. v. Nott, supra; U. S. v. Pocklington, 2 Cranch, 293; U. S. v. Kurtz, 4 Cranch, 682; U. S. v. Williams, 1 Cliff. 5; U. S. v. Graff, 14 Blatchf. 381; Montana v. McClin, 1 Mont. 394; Beery v. U. S. 2 Col. Ter. 186, 203, in which there is an able dissenting opinion attacking the rule of exclusion and recommending its abandonment. Indeed, it is generally lamented that there is any exclusion of the evidence of confessions under any circumstances, although it is conceded that the rule has become too firmly established to be ignored. The Tennessee cases are likewise in accord with the best cases on the subject. Beggarly v. State, 8 Bax. 520; Self v. State, 6 Bax. 244; Frazier v. State, Id. 539; 2 King, Dig. (2d Ed.) § 184. And I have found no more exact statement of the law of the subject than that made by that learned and accurate writer, now Mr. Justice Stephen. He says:
“ No confession is deemed to bo voluntary if it appears to the judge to have been caused by any inducement, threat, or promise proceeding from a person in authority and having reference to the charge against the accused person, whether addressed to him directly or brought to his knowledge indirectly; and if (in opinion of the judge) such inducement, threat, or promise gave the accused person reasonable grounds for supposing that by making a confession he would gain some advantage or a void some evil in reference to the proceedings against him. But a confession is not involuntary only because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceeding, or by inducements held out by a person not in authority. The prosecutor, officers of justice having the prisoner in custody, magistrates, and other persons in similar positions, are persons in authority.” Steph. Dig. “Evidence,” (May’s Ed. 1877,) 72.
See, also, 1 Greenl. Ev. (12th Ed.) § 219 et seq.; 2 Ben. &
The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from fear of the threat or hope of profit from the promise. Steph. Dig. “Evidence,” p. 70, and note; Reg. v. Reason, 12 Cox, 228. And Chief Baron Kelly said: “The cases excluding confession, on the ground of unlawful inducement have gone too far for the protection of crime.” Id. p. 73, and note; Reg. v. Reeve, 12 Cox, 179. The same thing was said by Baron Parke, and he further said that—
“ He could, not look at the decisions without some shame when he considered what objections had prevailed to prevent the reception of confessions in evidence, and that justice and common sense had been too frequently sacrificed at the shrine of mercy.” Reg. v. Baldry, 5 Cox, 623; S. C. 2 Ben. & Heard, Lead. Crim. Cas. (2d Ed.) 484, 495.
Mr. Justice Earle said that the sacrifice was made, “not at the shrine of mercy, but at the shrine of guilt.” Id. I am aware that the cases on this subject are conflicting to that extent, that if we look only for precedents any given .case can be ruled one way or the other, so often are the established distinctions overlooked. But I think the principle to be extracted from them amounts to this: The court will submit the confession to the jury for what it may be worth, in all cases where the threat or promise has been made by one having no authority over the prosecution for the offence, and will exclude it in all cases where there has been a threat or promise, of the nature above described, to one having such authority, or in his presence or by his sanction. There may be possible qualifications to this statement, as applicable to other circumstances, but it is sufficiently comprehensive to include the facts we have in hand. As I understand the law established by the cases that show the adjudication to have been made with careful consideration, the determination of the question of authority depends upon the relation of the person to a criminal prosecution for the act done by the accused. If some officious person, not at all so related to the prosecution for the crime, should, by threats or promises, extort a confession, it would be a question, not of the competency of the evidence for the judges to decide, but of its weight with the jury. The elements entering into the preliminary inquiry by the judge, where he is called on to determine the competency of the evidence, are these:
(1) Has the person to whom, or in whose presence, or by whose sanction, the alleged confession was made, any authority ? (2) Were the threats or promises of that character that should exclude the confession as one made involuntarily ?
It would be going too far, perhaps, to say that the term “confession” implies, somewhat in the nature of the word, an acknowledgment of guilt to one in authority, not competent as evidence, if the judge sees that the person in authority has taken advantage of his position to extort or induce it; while such acknowledgment to one not in authority is merely an admission or declaration of the party, receivable in evidence precisely as in civil cases, to be valued by the jury according to circumstances. But the inexactness is more philological than technical, and this, because the two terms are ordinarily used to distinguish between civil and criminal cases, more as a matter of convenience than anything else. 1 Greenl. Ev. § 213. But when we come to classify confessions, when so broadly used, we find a need of some further division than that of judicial and extrajudicial. Id. § 216. Because, whether the given case falls within the one or the other of the classes as defined by Mr. G-reenleaf, we find that it is subject to the distinctions above adverted to, unless we treat all confessions made to one in authority as judicial — which in a broad sense they are — and do not limit that class, as he does, to those “made before a magistrate, or in court, in the due course of legal proceedings.” Otherwise, extrajudicial confessions, as defined by that learned author, must be again distinguished into those made to persons in authority over the prosecution and those made to such as are not. Authoritative and unauthoritative, official and extraoficial, may be suggested as sufficiently comprehensive to designate the distinctions between the two, though I should prefer — following a not unnatural signification of the terms — to limit confessions to that acknowledgment of guilt made to any person in authority over the prosecution,
“All confessions of this kind are receivable in evidence, being proved like other facte, to be weighed by the jury.” 1 Greenl. Ev. § 216.
Again: ' ■
“ Before any confession can be received in evidence in a criminal ease, it must be shown that it was voluntary.” Id. § 219.
Now, manifestly, f-ese two statements of the texts are not only inaccurate, hu-t conflicting, unless attention is given to the limitation to which I have just alluded; and with such attention they are both accurate - and harmonious, and abundantly supported by the best-considered cases. Some such classification will greatly aid in understanding the cases, and serves to somewhat clear up the confusion attending the subject throughout any investigation of it.
The case of Beggarly v. State, supra, contains, in the opinion of a very able judge, intimations of an adherence to the rule suggested by Mr. Greenleaf as the wiser one, though, confessedly, not the one established by the later cases, that all confessions, whether made to persons in authority or not, must be entirely excluded by the judge, if it appear to him that the threats or promises used were sufficient to overcome the mind of the accused. 1 Greenl. Ev. §. 223. (12th Ed. by Redfield,) and note.
In Beggarly's Case, supra, it is said:
“In regard to the person by whom the inducements were offered there has been conflict in the authorities — some holding that the inducements held out by private persons, not being prosecutor, officer, or having any authority over the prisoner, are not sufficient to exclude confessions thus obtained; but the sounder rule manifestly is that this is a mixed question of law and fact for the judge, and while it is proper 'to note the difference between confessions ab-tained by prosecutor, officer, or person in authority, and those obtained by private persons, yet, if in fact the confessions were forced from the prisoner through hope or fear presented to his mind by a third person, it should be rejected.” Page 526.
, This was said in regard to, an occurrence that did not result in any confession, but a denial of guilt, the adjudication turning upon the admissibility of subsequent confessions received in evidence in the court below, and sustained because the prisoner had been warned and all the influence of that occurrence removed, as the court determined. But, as to the occurrence itself, if confession had resulted, as suggested by the.court,,it would have been as well rejected-because the inducements were sanctioned- by one in authority,- the magistrate, namely. It is true the magistrate did not talk to the prisoner, on account of a
When we come to determine who are persons in authority, in the sense of the rule above indicated, I do not. know how better to express my judgment on the question than to adopt that of the learned judge in Com. v. Smith, supra. It was contended by the learned counsel in this case that the fact that a master or mistress could be such person in authority, would show that any kind of domination would answer the rule, and that official authority was not essential as an element in determining the question. It might be a sufficient answer to this to say that the facts here do not show that Bennett had. that domination over the mind of Stone to bring the case within the rule as thus indicated. The authorities already cited demonstrate that
• It was said that Bennett was a detective and also the agent of the owners.of the goods, and stood for them in the relation of prosecutor. It is to be first observed that he was not a police officer, although he calls himself ^a detective, but only a private agent employed, not to prosecute the crime, or to procure evidence for that purpose, but to gather up the goods or their value. He undoubtedly, during the progress of that employment, sought to influence the parties by suggestions of prosecution under the federal statutes, which he printed and circulated; but, as I understand the evidence, not till after the alleged confession of the defendant in this case. And at that time he had been advised by counsel, if I remember the testimony, and by the assistant United States district attorney, that no prosecution would lie in this court. But take all he said at the strongest, and it may well be doubted, if he had been in authority over the prosecution, whether the confession would be excluded under the latest cases. The Queen v. Jarvis, L. R. 1 C. C. 96; The Queen v. Reeve, Id. 362. But I did not place my judgment on this ground, but on the more substantial one that he occupied no such relation to the prosecution as would exclude the evidence of the confession; conceding that it would have been excluded if he had been in authority. We have in our courts no such quasi officer as a prosecutor, as known to the common law and our state practice. At common law some person, generally the party injured, though it might be another person, must bo named as prosecutor, except in special cases. And without this there could be no prosecution. 1 Arch. Crim. Pr. (8th Ed.) 245, and
Finally, I may say that, while the courts are constantly lamenting that there is any rule that excludes the evidence of confessions or admissions of guilt in any case from the consideration of the jury, who have just as much capacity to weigh the facts of duress or inducement as they have any other facts in the case, and who finally in all cases pass upon the question, not of admissibility, but of duress or inducement, whenever the judge does admit the proof, I see no reason why the rule should be extended in the least beyond the established law of the cases. In this case I fully submitted to the jury the determination of the weight they would give to the evidence, and I have no doubt, if there was any threat or inducement to impair the testimony, the defendant received the full benefit of it. He could have been properly convicted upon his own testimony before the jury without the confessions; still, if they were improperly admitted, be would be entitled to a new trial. U. S. v. De Quilfeldt, 5 Fed. Rep. 276. Hence I have given the subject a careful examination, and am satisfied the evidence was properly admitted. The other requests refused need not be especially noticed. They are on the face of them not in accordance with the views I have taken of the statute and the law of the case as here expressed, and after thorough reconsideration I am of opinion a new trial should be refused.
Motion overruled.
Note.' Of the-51 indictments found by the grand jury for plundering the wreck of the City of Yicksburgh, 10 were disposed of by conviction subse-
The ruling made at the trial of this ease, on the authority of the Yew York eases, permitting the defendant to testify as to his own intention in taking the goods, receives confirmation in the case of Greer v. Whitfield, 4 Lea. (Tenn.) 85, appearing since the trial.