Amos vs. Campbell.-Opinion of Court.

or her executorship or administratorship, it shall be competent for him or her to receive the same upon application to the Judge of Probate or other person charged with the duties of ordinary: Provided, That six months notice of such intended application be given in one or more of the gazettes nearest the place where the letters were granted: And provided, also, That it shall appear that the said applicant has faithfully and honestly discharged the trust and confidence reposed in him or her; and the discharge so obtained shall be taken to operate as a release from the duties of executor or executrix, administrator or administratrix, and shall furthermore operate as a bar to any suit against the person so having acted as executor or executrix, administrator or administratrix, unless the same be commenced within five years from the date of said discharge, saving," &c.-Thomp. Dig., 211, sec. 11, § 1.

Now if the bar of the two years contained in the nonclaim act was designed and intended to reach to all demands that could be made against the executor or administrator, it is difficult to perceive the necessity for this provision which was enacted some six years subsequent to the date of that act. It is evident that at the period when this latter act was passed, the Legislature conceived that they could be called to account at any time, notwithstanding the existence of the non-claim act, and that this provision was made for their protection by enabling them to disconnect themselves from the trust and confidence attaching to their respective offices. The claim of the creditor, being strictly a debt cgainst the estate, was fully provided for in the non-claim act; but the demand of the distributee, being rather against the executor or administrator holding as trustee than against the estate, it was deemed proper to afford them this statute of repose as a shield against the enforcement of stale demands from that quarter. We can give no other interpretation to the design of the Legislature in the passing of this act.

14

Amos vs. Campbell.-Opinion of Court.

But again, if the position assumed by the counsel for the appellant is correct, what becomes of the statute regulating escheats? By reference to the provisions of the act, it will be seen that where no person appears to take the estate, the proceeds thereof are directed to be paid into the State treasury for the benefit of the public. But if the statute of nonclaim is to receive the construction contended for, then this act becomes wholly nugatory and of none effect; for under that construction, if no demand be made within the two years by one entitled to the distribution, the administrator I will retain the estate to his own benefit. A construction which would lead to such a result is evidently incorrect. The object and design of the statute was, doubtless, three fold: first, to facilitate the settlement of estates by prescribing a limit of time within which creditors and other persons having any interests should be compelled to exhibit their several claims preparatory to a final distribution; second, to protect the executor or administrator in all payments which he might make bona fide, after the expiration of the two years, and, third, to quiet the title of the legatees and distributees to the property which they may have received as such legatees or distributees. This we conceive to have been the whole scope, intent, meaning and design of the Legislature in the enactment of this provision of the statute. It never could have been their intention to invest the executor or administrator with the title to the whole estate upon the failure or neglect of the legatees or distributees to present their claims within the prescribed limit of two years.

It will be thus seen that we sustain the right of the complainant to have an account from the representative of the administrator on the estate of Charles Campbell, deceased; but in the taking of the account the Master must be directed to allow simple interest only on the amount that may be found to be due the estate.

It is therefore ordered and adjudged that the decree of the

Hall vs. The State.-Statement of Case.

Chancellor, rendered on the 3d day of January, A. D. 1859, whereby this cause was referred to the Master, with directions to take an account (except so much thereof as directs the mode of calculating interest on the same,) be affirmed; and as to so much of the decree as is above excepted that the same be reversed and set aside and the cause be remanded, with directions to the Chancellor to reform his decree by directing the allowance of simple interest only in making up the account to be taken by the Master.

It is further ordered, that the cost of this appeal be equally apportioned between the parties appellant and appellee.

HENRY HALL, PLAINTIFF IN ERROR, VS. THE STATE.

1. An assault with intent to kill is not an offence known to the common law, but by statute of this State is made a misdemeanor.

2. There is a difference between an assault with intent to kill and an assault with intent to murder. An assault with intent to kill may exist where the party intends only such killing as amounts to manslaughter.

3. Whether a person indicted for an assault with intent to kill,had such intentat the time of the alleged assault, is a question of fact for the jury to decide, and in deciding that question the jury ought to act upon those presumptions which are recognized by the law so far as they are applicable, and the intent, like malice, may be either expressed, or implied and presumed where facts authorizing the presumption are proven.

4. The charge of the court shall be confined to matters in issue. The court is not bound to instruct the jury, at the defendant's request, 'that if H. had killed W., and the homicide would have been manslaughter and not murder, that they ought not to find him guilty of the assault with intent to kill."

This case was decided at Mariana.

Writ of error to Santa Rosa Circuit Court.

For a statement of the facts, reference is made to the opinion of the Court.

Hall vs. The State.-Opinion of Court.

C. W. Jones for plaintiff in error.

W. D. Barnes, for Attorney-General, for State.

FORWARD, J., delivered the opinion of the Court.

Henry Hall was indicted under the statute of February 10th, 1832, for an assault on Jesse Williams, with intent to kill him. The bill of exceptions states the following facts:

"The State introduced a witness, who, being sworn, testified that some time in January, A. D. 1859, one Jesse Williams was at his house in said county; that shortly after the arrival of said Williams there the defendant also came to his house; that shortly after these two parties had met, the defendant commenced a conversation with Williams, in the course of which the defendant accused two parties with stealing his money, but did not name them; that Williams became very angry with the prisoner, pulled off his coat and shook his fist at him, at the same time telling the prisoner that if he would go out of doors, he, Williams, could whip him; that the prisoner, after Williams had told him several times that he could whip him, finally observed to Williams that if nothing but a fight would satisfy him that he would accommodate him, and followed Williams out of doors; that shortly after the parties went out the witness heard a report from a pistol, and, on seeing Williams, discovered that he had been shot in the left arm, a little below the elbow, and that he, Hall, had fled.

A witness was then introduced on the part of the prisoner, who testified that he was present when the difficulty between Hall and Williams occurred; that Hall was at the house referred to by the other witness before Williams arrived; that Williams, on his first entering the house, began to threaten and abuse Hall and dared him to come out of doors with his coat off; that Hall, after some hesitation, went out, and that shortly afterwards the witness heard a

Hall vs. The State.-Opinion of Court.

pistol go off, and saw the prisoner run away; that Williams was shot in the arm but did not fall.

After argument, the prisoner's counsel asked the court to charge the jury, "that if Hall had killed Williams, and that the homicide would have been manslaughter and not murder, that they ought not to find him guilty of the assault with intent to kill;" which charge the court refused to give.

The Judge, on the contrary, charged the jury, "that it was not necessary that the shooting, if it had proved fatal, would have been murder in order to convict the prisoner of an assault with intent to kill, but that if from all the circumstances in evidence they were satisfied that if Williams had died from the pistol wound inflicted by Hall, although the killing would have been manslaughter, that they ought to find the prisoner guilty."

The defendant was found guilty, and his punishment assessed to three months imprisonment.

The errors assigned are, that the Judge erred in refusing to give the instructions asked by defendant's counsel, and in charging them as he did.

The statute under which this indictment is found is in the following words:

"Any person convicted of false imprisonment, mayhem, an assault and battery or an assault with intent to kill, shall be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding six months, at the discretion of the jury; and any person convicted of a bare assault shall be punished by a fine not exceeding one hundred dollars, at the discretion of the jury.-Thomp. Dig., 490.

And the Legislature of the State have made the following general provisions for the trial and punishment of crimes, viz: That "the common law of England in relation to crimes and misdemeanors, except so far as the same relates to the modes and degrees of punishment, shall be and the