Mitchell and Savill vs. Watson.-Opinion of Court. MILTON, July 14, 1856. "On the first day of September next, we or either of us, promise to pay to E. Watson five hundred dollars, for value received, with eight per cent. interest from date. "(Signed,) JOSEPH MITCHELL, At spring term, 1857, defendants pleaded, first, the general issue; second, that on 13th April, 1857, before the commencement of this suit, said Mitchell had been served with a writ of garnishment, at the instance of Savill, in a suit by attachment which Savill then had pending against Watson, and that at June term, 1857, Mitchell answered that he was indebted to Watson in the amount of this note, (except eight or ten dollars,) and that this note was then in possession of John P. Lee, agent of Watson, who was also garnisheed in said attachment suit, and that the court on said answer of said Mitchell gave judgment against him in favor of said Savill. To the second plea the plaintiff demurred, and the demurrer was overruled. The plaintiff then replied to the second plea, that “after the service of said writ of garnishment upon the said Joseph Mitchell, the attachment on which said writ of garnishment was issued and founded was dissolved, as appears by the record, on 9th June, 1859." To this replication the defendant demurred, but the court overruled the demurrer and held the replication good. By consent a jury was waived and the case was submitted to the court. On June 10th, 1859, the court gave judgment for plaintiff for $611 08. Defendant then appealed to this court. The question presented by the record is, whether a judg Mitchell and Savill vs. Watson.-Opinion of Court. ment against a garnishee in attachment is annulled by a dissolution of the attachment after plea pleaded? Our statute (see Thompson's Digest, page 375,) provides, "that when judgment shall be rendered in such cases (attachment cases) against any garnishee or garnishees on his or her confession, or after trial by jury, as hereinbefore provided, such judgment shall not be enforced until after judgment shall be rendered against the defendant or defendants in the attachment suit; and in no case shall execution be issued against any garnishee or garnishees for more than the amount of the judgment against said defendant or defendants in said attachment suit. And if the plaintiff shall discontinue his suit by attachment, or be non-suited, or have a verdict against him on the trial in said suit, then said judgment against said garnishee shall become null and void," &c. We are of opinion that the dissolution of the plaintiff's attachment is equivalent to his being non-suited in his attachment suit. It is true, that, if his attachment is dissolved afer plea pleaded, he may "still proceed in said suit and prosecute his demand to final judgment, (Thomp. Dig., 375,) but he is enabled so to proceed, not by virtue of his attachment, but by reason of the fact that the defendant has appeared in court and pleaded to the declaration. The suit is no longer an attachment suit, but stands upon the same footing as an ordinary suit commenced by præcipe and summons. The judgment against the garnishee, growing out of the attachment and being a mere incident of it, must necessarily fall with the attachment on which it is based. After it has been adjudged that a party has wrongfully and illegally sued out his attachment, it would be inconsistent to say that he shall nevertheless hold on to all the fruits he may have attempted to secure by such wrongful and illegal act. Counsel for appellee asks for damages under the 13th section of the act of February 10th, 1832, but, as the point in Cato a Slave, vs. The State.-Statement of Case. ་ this case has never before, as we are aware, been adjudicated, and, as it does not appear that this appeal was taken merely for delay, damages are refused. Let the judgment of the court below be affirmed with costs. Per curiam. CATO, A SLAVE, PLAINTIFF IN ERROR, VS. THE STATE. 1. It is not indispensable that the jury, in a capital case,should be committed to the charge of a bailiff specially sworn for the occasion. It is sufficient if they be put in charge of the sheriff, or his deputy, who has taken the oath of office. 2. The "bill of exceptions" is a privilege accorded to a party to cause that to be made a matter of record which would not otherwise appear in the history of the trial; he must therefore incorporate in his bill whatever fact he may desire to rely upon as a matter of error. Unless so incorporated, the Supreme Court will not assume its existence,nor will it be induced to enter the field of mere conjecture. 3. If the court assumes to charge the jury,it ought to charge on the whole law, but if a party desires to avail himself of any failure or omission in this respect, he must call the particular point to the attention of the court, otherwise he will not be permitted to assign the omission for error. 4. Where a slave is indicted for the crime of rape, he cannot be convicted of a simple assault, the Circuit Court having no jurisdiction of that office when committed by a negro or mulatto. Whether such conviction can be had in the case of a white man-quaere? 5. On a trial for the crime of rape,it is not sufficient to charge the jury that "if a man have carnal knowledge of a woman against her will, he may be convicted." The charge swhould be "forcibly and against her will." 6. Although in a strict legal point of view, force may be implied from a want of consent, yet in common parlance such identity does not exist, and juries ought to receive their instructions on the law in language that they can understand. This case was decided at Marianna. Appeal from Jackson Circuit Court. The plaintiff in error was indicted for the offence of rape, Cato a Slave, vs. The State.-Statement of Case. alleged to have been committed upon Susan Leonard, was tried at the October term, 1859, convicted and sentenced to be hanged on the 16th day of December, 1859. At the trial, Susan Leonard was introduced as a witness on behalf of the prosecution, who testified as follows: Cato came to my house on Friday morning, about one hour and a half before day; I was confined so I could not help myself; I looked up and he had one hand on each of my arms; I told him to go and he ordered me to hush; I said, who is this, and he said it is one of Dr. Ely's black men; by this time I waked up so that I knew him; the moon was shining very bright; I told him to go away; he said, “hush, hush, I tell you, or I'll kill you;" then he bore down on my shoulder and reached with his hand and got his knife and put his hand on my forehead and bore my head back against the pillow, and drew the knife across my throat, and I was compelled to give up; was afraid if I spoke or made any noise he would kill me; he then went through with what he came to do; he had a connextion with me then; I am certain that prisoner was the man; there was no one in my house to assist me; lady in the adjoining room; this is the reason witness did not hallo out; Mrs. Alsobrook lived in next room, only a partition between; saw Cato's eye by moonshine; room a small bed-room; room next to the road was mine; window five or six feet from the bed; never saw Cato at that house before. Sarah A. Alsobrook, also sworn for the prosecution, testified that she knows the negro named Cato; identified the prisoner; knows Susan Leonard; I know that some person went there, but cannot say who; he was in the house and on the bed; looked like a negro; saw through the crack; heard Mrs. Leonard say, Lord-a-mercy, is this you Cato? he heard me coming and jumped off the window; about one and a half hours before day; on Friday night before day; this year; last summer past; before last court; a light moon Cato a Slave, vs. The State.--Statement of Case, shiney night; lived in a house over the bridge; Mrs. Leonard said she was almost willing to swear it was Cato; I have seen Mrs. Leonard and Cato speak when he was about the house; I believe, to my certain knowledge, it was a negro; his head looked mighty kinky; he said it was one of Mr. Ely's negroes; he said it was Bill who lived at the hotel; he said something about coffee or flour; she told him there was a white man there and she would call him; he told her to hush or he would kill her; heard no scuffling; was close to the parties; she did not cry out; if she had I should have heard her. For the defence there were twelve witnesses, who testified that both the witnesses for the prosecution were common prostitutes. There being no other evidence, the court below charged the jury as follows: "Cato, a slave, has been solemnly arraigned at the bar of this court upon the charge of committing a rape upon the body of Susan Leonard. He plead to the indictment in which his offence is alleged against him that he is not guilty, and you have been sworn and empanelled as a jury of the country to determine the question of his guilt or innocence. It is a solemn duty which now devolves upon you. It is a grave and important task which now demands your labors. You now hold in your hands, under God and the laws of the country, the issue of life and death, and you will not fail seriously to contemplate the grave and momentous consequences which will result from the verdict which you shall render in this case. Upon the one hand, if the laws of the land have been violated by the perpetration of a crime of a horrible and revolting character, and it has been proven to your satisfaction, by the evidence submitted, that the prisoner at the bar is the guilty person, then the commonwealth demands his conviction. But, upon the other hand, if it is not proven to your satisfaction that he is guilty, then the |