was convicted on an indictment at the court of sessions for poisoning a cow. On certiorari to the Supreme Court the counsel on both sides admitted that it was a common law offence, and the only question was, whether the sessions had jurisdiction. The court were of opinion that the sessions had jurisdiction. No one of the court expressed the least doubt of its being an indictable offence; and Strong, J. observed, 'justices of the peace have exercised this authority for a long time, certainly as far back as the memory of any of us reaches, probably much farther, which affords a strong presumption that the statutes of Edward III.' (which are above cited) 'have been considered as common law here.'

Though the point was not directly before the court, yet it is obvious that the court entertained no doubt that the offence was indictable or the conviction would have been quashed. 1810.

S.

DIGEST OF RECENT DECISIONS.

Principal Cases in

2 GILL & JOHNSON'S Reports of Cases in the Court of Appeals in Maryland.

2 LEIGH'S Reports of Cases in the Court of Appeals and the General Court of Virginia.

1 HALL'S Reports of Cases in the Superior Court of the City of New York.

ABATEMENT.

1. In a suit against two defendants, founded upon a joint cause of action against both, one of the defendants cannot defeat the action by pleading in abatement, matters which are applicable to himself alone. To make a plea in abatement effectual in such a case, all the defendants must unite in the plea, and it cannot be interposed by one alone. De Forest v. Jewett, 1 Hall, 137. 2. In an action of assumpsit against the defendants for money had and received, one appeared by his own attorney and pleaded the general issue; while the other by a separate attorney appeared and pleaded in abatement of the whole suit, the pendency of certain foreign attachments in the State of Connecticut, which had been issued against himself alone. Upon demurrer to this plea, it was held to be bad, the cause of action not being covered by the plea. 1b.

1. An agreement by the distributees of the personal estate, to refund to the administrator the amount paid by him, to the creditors of the deceased, beyond assets, is the subject of a special action on the case at law, not of a bill in equity. Gibbs v. Clagett, 1 Gill & Johnson, 14.

2. D. gave a note to W. for his accommodation, who endorsed it to S., for the full value. At the time S. advanced the money, R. was present and pledged his word to S., that if the note was

not paid at maturity he would pay it. The note not being paid, S. brought suit against D.; pending the suit R. made S. several payments on account of the note, and at the last payment received from S. a receipt, concluding as follows: 'which is in full of a note held by me against D., now in suit, and proceeds of the same properly belonging to said R.' A few days before the trial of the cause and some months after the last payment, the suit was entered on the docket for the use of R. It appeared that R. was entitled to the beneficial interest in the note, and that S. had no other interest, than what arose from an obligation to prosecute the suit to final judgment, for R.'s use. Held, that as the payment to S. was not made by D., or on his behalf, that the suit could be carried on for R.'s benefit as the equitable assignee. Williamson v. Allen, 2 Gill & Johnson, 344. 3. An action instituted by L., upon a single bill payable to 'L., executor of B.,' is an action in his own right, to which a debt due from him may be pleaded, and proved as a set-off; and he cannot go into evidence of the consideration of the bill, to show that it was given for a debt due B., in order to exclude the setoff as due in another right. Turner v. Plowden, 2 Gill & Johnson, 455.

ASSIGNMENT.

1. The common law restrains the assignment of an entry for a condition broken, where, after the forfeiture incurred, the estate may continue; but it allows it, where the violation of the condition puts an end to the estate of the particular tenant. Gwynn v. Jones, 2 Gill & Johnson, 173.

2. It is a case of constant occurrence, where a grantor, having a right of entry on land, conveys it to another, and therewith, necessarily, the power to maintain an ejectment for it. 1b. 3. A. holding a bond of B., places it in C.'s hands, to collect the money for him when due, and if not paid to put it in an attorney's hands, to collect by suit: the money was not paid when due, and C. put the bond in the attorney's hands for collection : then A. addressed a letter to C., telling him he owed D. about $200 out of the money B. owed him; and desiring C., when he collected the money from B., if A. himself should not happen to be present, to pay the whole to D.; and this letter being presented by D. to C., C., without accepting the order therein contained, only told him that B.'s bond was in the attorney's hands: the amount of B.'s bond to A. exceeded the amount due from A. to D.: Held, the letter of A. to C. was neither an equitable assignment by A. to D. of so much of B.'s debt to A.,

nor a security given by A. to D. for the debt he owed him. Clayton v. Fawcett's Adm'ors. 2 Leigh, 19.

ASSUMPSIT.

1. In an action to recover the price of a pew, sold at public auction, against the purchaser thereof, the plaintiff having established the sale, is not obliged to prove his title to enable him to Stoddert v. Vestry of P. T. Parish, 2 Gill & John

recover.

son, 227. 2. Where one gets possession of chattels tortiously, and converts them into money, the real owner may waive the tort, and sue in assumpsit for the proceeds; and that action has been sustained in some instances where the trespasser has not parted with the chattels. Where they have been returned to the owner, he may still waive the tort, and then recover their value, for the time of their detention, in assumpsit. Stockett v. Watkins' Adm'r. 2 Gill & Johnson, 326.

3. The plaintiffs sold the defendant a quantity of timber, and having presented their account for the same to the defendant, on the 28th day of May, 1828, at 5 o'clock P. M., received his check on the Franklin Bank in the city of New York. At half past 10 A. M. the next day, the bank was prohibited from making any payments by an injunction out of chancery, and the check was consequently never presented. In an action by the holders against the drawer of the check, it was held that the plaintiffs might, under these circumstances, waive the check altogether, and recover the value of the timber in an action of indebitatus assumpsit. Cromwell v. Lovett, 1 Hall, 56. 4. A better, who has deposited money in the hands of a stakeholder, upon the event of a trotting match, cannot recover it back by an action of indebitatus assumpsit. The transaction being illegal, no action can be sustained, by the common law, for any cause growing out of it. McKeon v. Caherty, 1 Hall, 300.

5. But by the fifth section of the act to prevent horse racing (1 R. L. p. 222.) any person who has paid money upon the event of a race, may recover the same, 'in like manner as is provided in the second and third sections of the act to prevent excessive and deceitful gaming.' (1 R. L. 153.) By the second section of this act, any person losing at any game any sum above $25, and paying the same, may at any time, within three months, recover it back of the winner, by an action of debt, founded on the act. As the remedy afforded to the loser is provided by statute, in pursuing that remedy, the forms and limitations

prescribed must be observed; and a general action of assumpsit will not lie. lb.

6. A. is prosecuting debt against B. the surety of C., and C.'s father agrees in writing to pay the debt with interest, if A. will dismiss his suit against B. at A.'s own costs; A. dismissed his suit, generally in assumpsit by A. against the father upon his conditional promise to pay the debt: Held A. was bound to perform the condition strictly, in order to entitle himself to enforce the promise, and having dismissed his suit generally instead of at his own costs, he cannot recover upon the promise. Couch v. Hooper, 2 Leigh, 557.

7. And though the father subsequently approved A.'s dismission of his suit against the son's surety, generally, yet A. not having averred such subsequent ratification in his declaration on the father's promise, that fact cannot avail him. lb.

8. A constable levies sundry executions sued out by A. on property of the debtors; the removal and sale of the property is forbidden by the landlords of the debtors, claiming that it was liable for the rents; and A. the creditor, and B. enter into a written agreement, to indemnify the constable agreeably to law;' which agreement is signed by A. and B. and by C. also, though C.'s name is not in the body of the instrument; and this agreement is delivered to the officer, on the day and at the place of sale; A. B. and C. all acknowledging it as their act, and B. and C. declaring verbally, that they are A.'s sureties. Held, this is the joint assumpsit of A. B. and C. to indemnify the constable, for removing and selling the property under A.'s executions and paying the proceeds to him, and the sale of it by the constable is a consideration to support the assumpsit as to them all. Crawford v. Jarett's Adm'or. 2 Leigh, 630. AWARD.

The parties to a suit in the Superior Court of the city of New York, and to another also, in the Supreme Court, for the purpose of bringing the matters in controversy to a speedy decision, and save costs, referred the same to disinterested persons, of their own selection, for a decision, under a stipulation, that if the issue was found in favor of the defendants, the said several suits were to be discontinued; but if in favor of the plaintiff, that then a relicta for a given sum should be delivered to the real party in interest, on which a judgment was to be entered up, for the amount, together with costs, to be taxed, including the expense of the reference. Upon a motion by the defendants, to set aside the award of these referees or arbitrators, upon the