in vacation, who made an order that a writ of supersedeas be issued by the Clerk of the Supreme Court, upon the appellant's entering into recognizance. The appellee moved the court to quash the recognizance and recall the supersedeas.

PIKE & CUMMINS, for the motion.

F. W. & P. TRAPNALL, contra.

Mr. Justice SCOTT delivered the opinion of the Court.

This case was brought into this court by virtue of an appeal granted by the Circuit Court of Jefferson county. At a point of time before it was brought into this court, the Chief Justice, upon an inspection of the record in vacation, made an order staying the proceedings. This was not within the provisions of the statute, unless he had himself also granted an appeal, (Dig. p. 244, scc. 135,) which he might have done, notwithstanding one had already been granted by the Circuit Court.

We shall therefore grant the motion to quash the recognizance, and recall the supersedeas.

HORTON VS. THE STATE.

An indictment for betting money on a game of cards, is not sustained by proof of the betting of property.

Appeal from Prairie Circuit Court.

JOHN HORTON was indicted in the Prairie Circuit Court, for bet

ting a large sum of money, to wit: one dollar, one a game of cards commonly called seven-up.

Defendant pleaded not guilty, and the case was submitted to a jury. The evidence was, that the defendant bet a saddle on the game, against a pistol and a dollar put up, by one George A. Eagle, who was indicted with him. The jury found the defendant guilty, he moved for a new trial, which the court refused, and he excepted and appealed.

The cause was tried below, before the Hon. Wм. H. FEILD, Judge.

BERTRAND, for the appellant, relied upon the variance between the charge and the proof, and cited Arch. Cr. Pl. 120. Dig. 367, scc. 8. Hany v. The State, 4 Eng. 195.

CLENDENIN, Attorney General, contra.

Mr. Justice Scorr delivered the opinion of the Court.

In this case, the State having proceeded against the defendant for betting money, did not sustain the charge by proof that he bet property. To bet property, is a distinct offence under our statute. (Dig. p. 367, scc. 8.) The court below ought to have granted the motion for a new trial. Let the judgment be reversed, and the cause remanded.

LANE VS. FARMER.

Possession of an order by the maker of a note, drawn upon him by the payee of the note, is prima facie evidence that he has paid the order according to its tenor, but he must prove its execution before he can introduce it in evidence.

Lane vs. Farmer.

(JANUARY

Writ of Error to Marion Circuit Court.

THIS was a suit brought by Lane against Farmer, upon the following bond, before a Justice of the Peace:

"Twelve months after date, we or either of us promise to pay Josiah Lane, administrator of Baker Tyler, deceased the sum of sixteen dollars and 43 cents, without discount or defalcation, for value received of him; as witness our hands and seals, this July 18th day, 1844.

J. B. EVERETT, [Seal.]
JAMES FARMER, [Seal.]"

Farmer appeared before the Justice and filed the following paper as a set-off:

"Mr. J. B. Everett, Sir: Please let the bearer have what lumber he wants, and it will be good on the note I hold on you. I would send you the note but I hain't it with me, and by so doing you will oblige yours & so forth; this 3d day of May, 1848. JOSIAH LANE."

Judgment was entered by the justice against Lane, and he appealed to the Circuit Court.

In the Circuit Court the case was tried before a jury. Lane read the bond sued on as evidence, without objection, and rested his case.

The defendant offered to read the above paper, filed as an offset, to the jury as evidence in his behalf, to which the plaintiff objected, without the execution of it was first proved. The court overruled the objection and permitted it to be read to the jury as evidence to which the plaintiff excepted.

The said bond offered and read as evidence by the plaintiff and the said paper offered and read as evidence by the defendant, was all the evidence offered in the case.

The defendant then moved the court to instruct the jury: "The Court instructs the jury in this case that the order offered in evidence by the defendant in this case, is prima facie evidence of

the payment of the note sued upon, and is good until rebutted by the plaintiff.”

To the giving of which the plaintiff objected, but the court overruled the objection, and gave the instruction, and the plaintiff excepted.

The jury found for the defendant, and judgment was rendered against the plaintiff for costs.

The plaintiff moved for a new trial, and assigned as cause: 1st. The court erred in permitting the defendant to read as evidence the paper without proof of its execution:

2d. The court erred in permitting said instrument to be read as evidence to the jury:

3d. Because the court erred in instructing the jury:

4th. Because the jury found against the law and the evidence.

The motion was overruled by the court, and the plaintiff excepted.

BYERS & PATTERSON, for the plaintiff.

Mr. Justice SCOTT delivered the opinion of the Court. Proof of execution of the order in question was an indispensable pre-requisite to its being read in evidence. Had this been done, then its possession by the debtor on whom it was drawn, was prima facie evidence that he had paid it according to its tenor. (2 Greenl. Ev., p. 492, sec. 518.)

The judgment must be reversed, and the cause remanded.

B8

Houston vs. The State.

[JANUARY

HOUSTON VS. THE STATE.

In an indictment for stealing a horse, it is not necessary to prove by direct evidence that the horse was of some value, but this may be sufficiently established by proof of facts from which the jury may infer it. As where the prisoner said he borrowed the horse, and again that he stole it, it might be inferred that the animal was of some value, as no one would borrow or steal a horse totally valueless. So, evidence that a witness went a hundred miles to hunt the horse after he was stolen, would tend to prove that he was of some value, as one would hardly go so far for a worthless horse. So, proof that the horse possessed the power of locomotion, and traveled a hundred miles and back again, would go to establish the fact he was of some value. These facts appearing, this court refuse to award a new trial on the ground that the value of the horse was not proven.

Appeal from Sevier Circuit Court.

Peter E. Houston was indicted in the Sevier Circuit Court, for horse stealing. There were two counts in the indictment; the first charged that the said Peter, on the 21st June, 1851, one bay horse, of the value of $75, the property of Benjamin H. Layne, did steal, take and ride away. The second count charged that the animal stolen was a gelding. He was tried on the plea of not guilty, found guilty, and his punishment fixed at five years in the penitentiary. He moved for a new trial, on the ground that the value of horse was not proven, the court overruled the motion, he excepted, set out the evidence and appealed.

There was no direct evidence introduced as to the value of the horse; the testimony from which the jury might have inferred that he was of some value, is stated in the opinion of this court.

S. H. HEMPSTEAD, for the appellant. Although it is not essential to establish the precise value of the property as laid in an indictment for larceny, yet it is believed to be a rule in criminal jurisprudence as universal as it is inflexible, that the property stolen must be proved to be of some value. 2 Russ. on Cr. 148.