Ordered, That the second day of each term of this SupremeCourt be set apart as the time when persons, desiring admission to practice as attorneys and counsellors in the courts of this State, may appear, and present their applications; and having been examined in open court, touching their qualifi cations for admission to practice, if found duly qualified, may be admitted; and that such admission shall entitle such attorney and counsellor to practice in all the courts of this State; and that applications for admission as such officers can only be made in this court.

Ordered, That the fee for such admission be fixed at five dollars, which shall entitle the attorney to a certificate of admission.

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Roberts v. Carland.

JESSE ROBERTS, Plaintiff in Error, v. DANIEL CARLAND,

Defendant in Error.

Error to Douglas.

In an action for the recovery of money or damages, if the plaintiff fail to recover fifty dollars on account of his demand, then he shall pay costs of the suit; but if he fail to recover this sum, and such failure results solely from a counter action or set-off, then, that costs shall follow judgment.

THIS action in the court below was brought by Daniel Carland against Jesse Roberts, to recover damages for the breach of a contract to manufacture and deliver flour. The plaintiff, in his original complaint, asked damages in the sum of four hundred dollars, and interest; and in his amended complaint, claimed damages in the sum of eight hundred and five dollars. The defendant admitted the detention of three thousand pounds of flour, manufactured from the wheat of the plaintiff. Verdict was rendered for the plaintiff for $22 75, and judgment was rendered for this amount, with costs of

suit.

Mosher & Chadwick, for plaintiff in error.

WAIT, C. J. The only point assigned as error, for the reversal of the judgment of the court below, is, "that the said judgment awards the costs and expenses to the plaintiff, when it should have awarded them to the defendant." Our statute provides, (chap. 8, sec. 2,) that costs shall be allowed, of course, to the plaintiff, "in an action for the recovery of money or damages, when the plaintiff shall recover fifty dollars or more." Section four of the same act provides, "that costs shall be allowed, of course, to the defendant, in the actions mentioned in the second section, unless the plaintiff be entitled to costs therein." The true construction to be given to these pro

Goodall v. State.

visions of law is, we think, that, when a plaintiff brings suit in the Circuit Court for the recovery of money or damages, and sets out his cause of action, and makes his proof, if he fail to recover fifty dollars on account of his demand, he shall pay the costs of the suit; but, if he fail to recover this sum, and such failure results solely from a counter action or setoff, then that costs shall follow the judgment. This is the construction which has prevailed in most of our Circuit Courts, and is based, as we believe, upon principle. (Barnard v. Curtis, 8 Mass. 535; Gilman v. Burgess, 12 Mass. 206; Muling v. Rife, 3 J. J. Marsh. 587; Carrington v. Combs, ib. 308; Brown v. Pollard, 6 J. J. Marsh. 116; Odell v. Culbert, 9 Watts & Serg. 66; Cambridge Association v. Nichols, 3 Bernard, 248; Benton v. Martin, 4 Miss. 200; Levy v. Roberts, 1 McCord, 395; Burbank v. Willoughby, 5 New-Hamp. 111.)

It appears from the answer of the defendant in the court below, that the plaintiff would have been entitled to a judgment of over one hundred dollars, except for the offset interposed. The plaintiff's claim was reduced below fifty dollars by reason of the offset of the defendant. The plaintiff was entitled to costs.

1. Dying declarations having been admitted-Held, it was competent to show that the deceased was a disbeliever in a future state of rewards and punishments.

2. Evidence, sought for the purpose of laying a ground for impeaching a wit ness, must be relevant to the issue.

8. The court below having instructed the jury that, "to justify a killing in selfdefence, it was necessary that an assault should have been committed by the

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Goodall v. State.

person killed; that it was not enough that the party killed had a pistol in his hand, but that there must have been a presentation of it, or some demonstration of shooting." And that "the having a drawn pistol in his hand, by deceased, would not be enough, although deceased had threatened to take the life of the prisoner, and those threats had been communicated to him.”—Held,

erroneous.

4. Held, that "if the jury believed from the evidence in the case, that there was reasonable ground for A. to believe his life in danger, or that he was in danger of great bodily harm from the deceased; and that such danger was imminent, and he did so believe, and acting on such belief, killed the deceased, he was excusable; and that it was not necessary that he should wait till an assault was actually committed."

5. The reasonableness of the appearances, under which a party claims to justify, may very properly be left to a jury, under the instructions of the court. 6. Under our statute, upon a charge of murder, the killing, having been admitted by the prisoner, does not devolve upon him the necessity of proving justification.

7. It is necessary for the prosecution, in all trials for murder, to go into the proof of the facts and circumstances of the killing, to establish malice, under our statute.

8. The only declarations of the deceased admissible are, either dying declarations, or those which are a part of the res gesta.

GOODALL was indicted, and convicted in the Circuit Court, for the murder of one Potts; and the case is brought into this court, and stands on errors assigned on bill of exceptions.

It appears from the evidence reported, that Potts (the deceased) went to the house of one Aldrich, where Goodall resided. Goodall was absent when Potts arrived. When Goodall came home, he first saw Potts at the door of the house, and at the door of Goodall's private room. Goodall was at a short distance from the house. Potts was shot with a pistol in two places, the balls striking near the door. He had a pistol which was not discharged, and as to whether it was drawn or not, the evidence is conflicting. One witness states that Potts drew his pistol before he left the house, immediately before he was shot. There was evidence tending to show that Potts had threatened violence to Goodall, and that Goodall was informed of these threats. The dying declarations of the deceased were admitted in evidence. And there was considerable other evidence, which is reported; but

Goodall v. State.

this statement is sufficient to show the pertinency of the matters passed on by this court.

Williams & Kelly, for Goodall.

W. W. Page, for State.

BOISE, J. The dying declaration of the deceased being admitted in evidence, the counsel for the prisoner offered to prove that the deceased was a disbeliever in a future state of rewards and punishments, for the purpose of discrediting his dying declarations. And I am of opinion that such evidence should have been admitted; for this belief, and the anticipation of future retribution, is the only sanction of such declarations. It is supposed that one impressed with the fear of immediately impending dissolution, and believing that he will soon be called to answer for the truth of his statements to his final judge, will be under restraint against falsehood sufficient to make the admission of such evidence safe, and generally contribute to the ends of justice, But when the deceased was a disbeliever, and, consequently, under no apprehension of future punishment for his falsehood, it is reasonable to believe that, however much he may be impressed with the fear of immediate and certain death, still he would not be under such strong influences to make a true statement of the facts as one impressed with the belief of future accountability. (1st Greenleaf Ev. sec. 157; 2 Russel on Crimes, 764, 766.)

The next ground of error is, that the court refused to allow N. Bell, a witness for the prosecution, to answer this question, to wit: "Did you state to Robbins and Hamilton, that if Goodall met Potts, he (Goodall) would be the worst-whipped man he ever saw?" This question was asked to lay a foundation to impeach the witness; and, as I think the evidence sought, by this question, was irrelevant to the issue, I am of opinion it was properly excluded.

The next question in this case arises on the several instruc