dice of the prisoner. Woodfall's celebrated case ( 5 Burrows, 2661) is not applicable. Woodfall was indicted for libel in publishing Junius' letter. The jury found him "guilty of printing and publishing only." The verdict was received in this form, and the jury discharged. The question was what judgment could be entered on the verdict. Could the court pronounce on said verdict judgment for maliciously publishing, etc.? "Only" was the controlling word, and the court held that judgment for maliciously doing the act could not be entered on the verdict.

It is also assigned as error that the court refused to set aside the verdict, because it was contrary to the evidence. The law is firmly settled that, upon a writ of error to a judgment overruling a motion to set aside a verdict, and to grant a new trial, on the ground that the verdict was contrary to the evidence, and the evidence, and not the facts proved, is certified in the bill of exceptions, the appellate court will not reverse the judgment, unless, after rejecting all the conflicting parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial court still appears to be wrong. This rule has often been affirmed in this state. State v. Flanagan, 26 W. Va. 116. Tested by this rule, how stands this exception? It appears that on the 5th of December, 1887, the teacher had, with a hickory withe, whipped the prisoner and three other boys for violating a rule of the school against whispering. The withe was about a half inch in diameter at the butt, and terminated at a point at the other end, and was between three and four feet long. That evening the prisoner told Miss Kate Wells, one of the scholars, if Creed Wilson, the teacher, “ever went to whip him again he would kill him." On the next morning, while the teacher, Wilson, was ringing the bell to call the school, the prisoner came to him, and said, if he did not whip a boy by the name of Ellifritz, he would kick him, (the boy) The teacher told Davis that, if he and Mr. Ellifritz had any trouble to settle, it would be better to settle it somewhere else. Davis told the teacher the reason he was going to kick Ellifritz was that he had sent him a message calling him a bad name. The teacher told him he would see about it when school took up. He (the teacher) then went to Ellifritz, and asked him if he had sent Davis that message, and he said he had. He asked him why he did it; and he said because Davis, the evening before, in school, had called him the same bad name. Then the teacher asked Davis if he had done that, and he said he had not, but had called him a d――d snipe, or something similar. The teacher then sent out for a couple of withes, and he put them by He then went on with the recitations until time for recess, and then called the two boys out on the floor. Ellifritz came, and Davis still sat in his seat. The teacher told Davis the second time to come, and he answered that "he would not that any one knew of." He then, with a withe similar to the one used the day before, walked to Davis, and took hold of his left shoulder with his right hand; and, just as he took hold of him, he (Davis) raised, with a knife in his hand, and struck the teacher with the knife near one eye, and drew the knife across his forehead, to the opposite side of the head, and almost severed an ear, inflicting a fearful wound. The teacher tried to evade the blow by stooping, and it struck him higher than it otherwise would. He then inflicted a wound with the knife on the top of the teacher's head. This is all the evidence necessary to state. The jury were certainly well warranted in finding as severe a verdict as they did. If it had been for maliciously cutting with intent to kill, under the rules we have laid down, we could not disturb it. The last error assigned is that section 22 of chapter 152 of the Code, as amended in 1882, authorizing the court to fix the punishment when a jury has found the prisoner guilty of felony, is unconstitutional, and in contravention of that time-honored declaration in the bill of rights, that "no person shall be deprived of life, liberty, or property without due process of law and the judgment of his peers." This is a provision taken from magna charta v.7s. E.no.1-3

This word

except in that instrument it reads "or the judgment of his peers." "and," instead of "or," was evidently put in our constitution of 1872 by inadvertence; and, to make it harmonize with other portions of the same instrument, must be construed as meaning "or." If this were not so, courts of chancery would, in effect, be abolished. So construing it, then the provision means just what it did in magna charta, and it was put into our constitution with the same meaning it had there. Its meaning has been firmly settled in England, and the constitutions of the states adopted it with the construction there put upon it. In criminal trials in England, no court, in felony cases, after the great charter was signed, ever attempted to pronounce a prisoner guilty without the intervention of a jury. In 2 Hawk. P. C 623, we find "that it had been adjudged that, where the jury find a man not guilty of an indictment or appeal of murder, they are not bound to make any inquiry whether he be guilty of manslaughter, etc.; but, if they will, they may, according to the nature of the evidence, find him guilty of manslaughter or homicide se defendo or per infortunium; for the killing is the substance, and the malice but a circumstance,-a variance as to which hurts not the verdict. Yet the books seem to make this difference: that, where the jury find the defendant guilty of manslaughter on an indictment for murder, they may give their verdict generally, without setting out any of the circumstances of the fact; but that they shall not be received to find him guilty generally of homicide se defendo or per infortunium, but must set out the whole circumstances of the fact, and in the conclusion show of what crime they find the defendant guilty; wherein, if they be mistaken, it is said that the court may, notwithstanding, give such judgment as shall appear to be proper from the circumstances of the fact specially set forth.” The following among other old authorities are cited: Wroth v. Wiggs, Cro. Eliz. 276; Turner v. Musgrave, Dyer, 261; Hudson v. Lee, 4 Coke, 43; Gore's Case, 9 Coke, 81; Bold v Molineux, Dyer, 14; Matters of the Crown, Plow. 101; 2 Hale, P. C. 302. Hawkins, (2 P C. c. 48, § 3) further says: The settled judgment at this day against a man for high treason, not relating to the coin, seems to be that he shall be carried back to the place from whence he came, and from thence be drawn to the place of execution, and there be hanged by the neck, and cut down alive, and his entrails be taken out, and burnt before his face, and his head cut off, and his body be divided into four quarters, and his head and quarters disposed of at the king's pleasure." Hawkins also says: "As to judgments by express sentence, which are discretionary and variable according to different circumstances, I shall observe, in general, that for crimes of an infamous nature, such as petit larceny, perjury, or forgery at common law, gross cheats, conspiracy not requiring a villainous judgment, keeping a bawdy-house, bribing witnesses to stifle their evidence, and offenses of like nature against the first principles of natural justice and common honesty, it seems to be, in a great measure, left to the prudence of the court to inflict such corporal punishment, and also such fine, and lien to the good behavior for a certain time, etc., as shall seem most proper and adequate to the offense, from the consideration of the baseness, enormity, and dangerous tendency of it; the malice, deliberation, and willfulness, or the inconsideration, suddenness, and surprise, with which it was committed; the age, quality, and degree of the offender; and all other circumstances which may in any way aggravate or extenuate the guilt." 2 P. C. c. 48, § 14. Among other authorities, citing Ramsey's Case, 3 State Tr. 487; Spicer v. Read, Hob. 62; Lady Newman's Case, 3 Leon. 170; Leefer's Case, Cro. Jac. 498. Says Chitty: "It may be laid down as a general rule that all those offenses which exist at common law, and have not been regulated by any particular statute, are within the discretion of the court to punish." 1 Chit. Crim. Law, 710. Mr. Chitty further says: "Another large class of offenses in the punishment of which much is left to the wisdom of the court, arise from clergyable felonies. We have already shown

how the ceremony of purgation was abolished, how that by burning in the hand was substituted in its room, and how other penalties of imprisonment, transportation and corporal punishment have been established in the place of the latter. At the present day, the judge, by the provisions of several statutes, may order the offender to be publicly or privately whipped, exposed in the stocks, fined, imprisoned for two or transported for seven years to his majesty's colonies. And by 53 Geo. III., c. 162, it shall be lawful for any court to pass upon any person convicted, before such court, of felony with benefit of clergy, or of any grand or petit larceny, the sentence of imprisonment to hard labor, either simply and alone, or, in addition, to any other sentence which such court shall be authorized by law to pass," etc. Chit. Crim. Law, 709, 710. Thus it is clear that in England, after magna charta, it never was supposed that that instrument, in securing a right to jury trial, affected the punishment to be inflicted. It was the province of the jury to find the guilt or innocence of the accused of the offense charged in the indictment. The judges, in many cases, merely pronounced the sentence the law imposed, upon the jury rendering a verdict of guilty; and in many cases the statute gave a discretion, as the common law did in others, to impose a penalty, within certain limits, commensurate with the offense. Then there, as here now, the jury should convict of the offense, and the court impose the penalty or punishment. It is true that in Virginia the general assembly, in 1786, authorized the jury to assess a fine in misdemeanor cases; and in 1796 passed the act authorizing the jury to fix the term of imprisonment in the penitentiary. 1 Rev. Code, 1819, § 48, c. 169, p. 612n; Id. note to section 12, p. 619. The bill of rights in the constitution of Virginia of 1776 declared that "no man shall be deprived of his liberty except by the law of the land, or the judgment of his peers. Under this bill of rights, the jury convicted of the offense, and the court fixed the punishment, until afterwards changed by statute. The punishment, after a conviction of the offense by a jury, has always been within the power of the legislature, under the constitution securing right of trial by jury. The act of 1882, taking away the right of the jury to fix the punishment, is clearly constitutional. There is no error in the judgment of the circuit court, and it is affirmed.

SNYDER and WOODS, JJ., concur. GREEN, J., absent.

(29 S. C. 84)

ARIAIL et al. v. ARIAIL et al.

(Supreme Court of South Carolina. June 30, 1888.)

1. LIMITATION OF ACTIONS-WHEN STATUTE BEGINS TO RUN-ADMINISTRATORS.

The statute of limitations commences to run, on a demand against an administrator for errors in his settlement, at the time when he files in the probate court a return which purports to be final, and the court grants final discharge thereon, although there remained outstanding notes and accounts which it was the administrator's duty to collect.1

2. SAME.

It is unnecessary to show that those interested had actual notice of such proceedings, as acts done in a public office are notice to interested parties. 8. SAME SUSPENSION OF Statute.

The bringing of an action by heirs against the personal representative of their ancestor's administrator on account of errors in such administrator's settlement does not arrest the running of the statute of limitations on such cause of action as against the heirs and devisees of such administrator, to whom his real property has descended; such heirs and devisees being neither parties nor privies to such

action.

'For an exhaustive note on the running of the statute of limitations, and its suspension, see Society v. Hutchinson, (Cal.) 8 Pac. Rep. 627, and note. See, also, Cheney v. Woodruff, (Neb.) 29 N. W. Rep. 277, and note.

4. EXECUTORS AND ADMINISTRATORS-ACTION AGAINST.

It is unnecessary to have a return of nulla bona on a judgment recovered against the personal representative of the administrator in such action before commencing action against such heirs and devisees on the demand.

5. APPEAL-REVIEW-MATTERS NOT APPARENT ON RECORD.

In an action by heirs against the heirs and devisees of their ancestor's administrator on account of errors in such administrator's settlement, where the complaint does not raise the question of fraudulent conduct in such administrator, nor that said fraud was discovered within the statutory period, and no ruling was had upon the question below, such question is not before the court on appeal.

Appeal from common pleas circuit court of Pickens county; T. B. FRAZER, Judge.

Action by Lou P. Ariail, Robert F Ariail, Sarah J. Lesley, and Éliza C. Ariail, heirs at law of John H. Ariail, against William H. H. Ariail and others, heirs at law and devisees of John Ariail, formerly administrator of the estate of said John H. Ariail, on account of errors alleged to have occurred in the settlement of said administrator. From a judgment dismissing the complaint as against all the plaintiffs except Eliza C. Ariail, and rendering judgment in her favor against defendants, the other plaintiffs and the defendants appeal.

Keith & Hollingsworth, for plaintiffs Lou and Robert F. Ariail and Sarah J. Lesley. Child & Boggs, for defendants. Ansel & Newton, for guardian ad litem of George Hendricks, a minor defendant.

SIMPSON, C. J. The facts of this case will be found stated in the decree of his honor, the presiding judge, T. B. FRASER, hereto appended. Also see exceptions appended.

DECREE.

"This cause came before me at the regular term of the court held in January, 1887, on the report of the referee, and exceptions by plaintiffs and defendants. The action has been brought to subject the real assets of the testator, John Ariail, in the hands of the devisees under his will, to the payment of an amount alleged to have come to his hands, and unaccounted for by him, as administrator of John H. Ariail, deceased, the father of the plaintiffs. I am inclined to the opinion that an administrator de bonis non of John H. Ariail ought to have been made a party to this action, and also a personal representative of Eliza M. Hendricks, the residuary devisee and légatee under the will of John Ariail. No objection as to want of proper parties has been raised either by demurrer or answer, and I will not in this case raise the objections on that account. Without answering the exceptions seriatim, I will take up the questions raised by them in what seems to me to be the most natural order.

"(1) As to the amount of the personal estate of John H. Ariail which has not been accounted for by John Ariail, deceased, the testator, administrator of John H. Ariail, deceased. By the return filed by John Ariail as administrator, January 1, 1864, it appears that with the amount of the sales-bill, with one year's interest, and a few collections, the administrator was chargeable with $6,179.34. The three returns, 1864, 1866, and 1868, show credits for payments, including commissions, of only $1,524.32, leaving a balance of $4,655.02 to be accounted for. Mrs. Pickle's purchases, amounting to $2,748.81, were not settled until February 18, 1868, and this cannot be the amount claimed to have been invested in Confederate securities in 1866, as shown by the return filed in that year. Now, that return shows a balance then to be accounted for, in notes and accounts in sale-bill, of $2,695.97, which on its face seems to show that it was not the purchase of Mrs. Pickle at the sale, and which would not have been described by words which precisely mean notes and accounts' due by several persons, and not by any one person, as Mrs. Pickle's indebtedness would have been. I therefore think that the invest

ments in Confederate securities were made by the administrator with his own money. There is something peculiar in the mode in which this balance of $2,695.97, was accounted for. It is not claimed that it was collected and paid out, nor that it was not collectible, but the claim of $2,748.81 against Mrs. Pickle was reduced, in 1868, to its value in good money, $901.28, and the difference, $1,847.53, and $129.29, interest on it, deducted from the full value of the other sale-bill, notes, and accounts, and without interest. If there has been any error, it has been in favor of the administrator, and these defendants have no just cause of complaint. The referee has charged against the estate of John Ariail, the administrator, only this sum of $901.28 and $30.55, the amount collected on a note, when there has been no account at all satisfactory to my mind of the $2,695.97, accounts' and 'notes' for the sale-bill. I therefore see no error in the finding of the referee as to the amount for which John Ariail, as administrator, was liable, which is prejudicial to the defendants. I concur with the referee, also, as to his other findings of fact. "(2) As to the statute of limitations. The return made by the administrator, John Ariail, February 18, 1868, to the ordinary of Pickens district, purports to be final, and the administrator was dismissed by him. This is such a final return as gave currency to the statute of limitations; and, if the parties had been adults, the case would have run out in four years and nine months, as John Ariail died in August, 1870. The plaintiffs in this case were all then minors, and came to the age of twenty-one years as follows: Lou P. Ariail, September, 1876; Robert F. Ariail, August 19, 1879; Sarah J. Lesley, August 7, 1880; and Elizabeth C. Ariail, September 25, 1882. As I understand the rule, when such an act is done, during infancy, as would give currency to the statute as to an adult, the statute is simply suspended during minority, and commences to run as soon as the minor comes of age. See Motes v. Madden, 14 S. C. 488, and the cases therein cited. If the statute commenced to run from this final return, February 18, 1868, the bar was complete, as to the several plaintiffs, as follows: Lou P. Ariail, June, 1881; Robert F. Ariail, May 19, 1884; Sarah J. Lesley, May 7, 1885; and Elizabeth C. Ariail, June 25, 1887,-even if the nine months be added to the four years after attaining their majority. On February 13, 1883, an action was commenced by the plaintiffs in this case against Samuel A. Gary, as executor of John Ariail, deceased, administrator, and on May 6, 1885, final judgment was rendered thereon in favor of all the plaintiffs for the amount above stated to be the balance unaccounted for, and interest thereon. Execution was issued thereon, and a return of nulla bona made July 6, 1885 It is admitted that there are no assets in the hands of Samuel A. Gary as executor. This action was commenced July 10, 1885. While it may be the rule that it is necessary to obtain a judgment, and have a return of nulla bona against the personal representative before the creditor can follow the personal estate into the hands of a legatee or distributee, no such rule prevails as to real assets devised or descended. The statute of limitations, therefore, is not suspended until there can be a return of nulla bona. When the statute commences to run either before or after the death of the decedent, it runs for the same time and in the same way in favor of the personal representative and of the heir or devisee. Neither has the right to waive it as against the other. It does not follow, if the personal representative fails to plead the statute, or in any way loses the benefit of it, that the heir or devisee cannot plead it in his own behalf, when sued for assets devised or descended, unimpaired by any act of or judgment against the personal representative. I therefore hold that, for the purposes of this action, the statute commenced to run, as to adults, February 18, 1868, and as to the minors was suspended until they severally attained majority; and continued to run until the commencement of this action, July 10, 1885; that, even if the nine months be added to the four years, the period of limitations in 1868, the claims of the plaintiffs Lou P. Ariail, Robert F. Ariail,