[*] DEAN vs. WHITMORE.

ON CERTIORARI.

THE action before the justice, was an action of trespass, brought by Whitmore against Dean. The plaintiff below filed before the justice, two certificates of appraisement of damages done in the plaintiff's corn and other grain, by sheep said to belong to Jacob Dean. The insufficiency of the state of demand was assigned for error.

BY THE COURT.-We have often determined that the evidence of a demand cannot be delivered to the justice as the state of demand. But even if this was proper, the certificates contain no cause of action; the most that can be collected from them is, that such damage was done; the certificates do not say that the damage was done by the sheep of the defendant below, but said to be done by his sheep. There ought to be a direct charge. Judgment reversed.

AYRES vs. BURT.

Demand need not be filed, if the cause be referred.

No state of demand was filed before the justice, and this was assigned for error. But it appeared that the cause had been by agreement submitted to referees.

BY THE COURT.-In such case the state of demand has not been required. It would however be convenient.

[*] It was then contended, that a state of demand had been delivered the referees instead of the justice; and that this was error.

BY THE COURT.-Merely delivering a state of demand, or an account to the referees in the presence of both parties, can do no injury; it may be proper. It further appeared, that after the first rule of reference had been made, referring all matters in controversy in the suit below; that the parties had again met before the justice, and by consent had an additional rule of reference made, thereby referring all matters in controversy between the parties to the same referees. This proceeding was set up as erroneous.

BY THE COURT.-It is every day's practice to enlarge by consent, rules of reference; there is nothing irregular or improper in it. Judgment affirmed.

[*739] [*740]

STEVENSON vs. STILES.

ON CERTIORARI.

On the appearance of the parties before the justice, the plaintiff filed his state of demand; on which, the defendant delivered to the justice, the following plea:

To James Ludlum, justice, my state of demand and plea is, that I demand a nonsuit, for which I plead relationship, and wish you to dismiss the action. From your friend, ENOCH STEVENSON.

The justice took no notice of this plea. It was contended by the counsel for the plaintiff in error, who was the defendant below, that the justice ought to have tried this plea: That it amounted to a challenge.

BY THE COURT.-It is true, that under our act of [*] Assembly, a challenge of relationship must be tried; but the challenge must state how related, and to whom. It is impossible to tell from this challenge, between whom this relationship was. The justice did right. Judgment affirmed.

ADAMS vs. SCULL.

ON CERTIORARI.

THE action below was brought for twelve penalties, under the timber act. The matter was submitted to referees; the referees reported in favor of the plaintiff below, $15 80 debt, and 86 40 costs. Sundry errors were assigned, but the Court took notice of one only, to wit, that no specific penalty was awarded, but fractional parts of two penalties. No judgment being rendered, the Court declared the proceedings Null and void.

COMBS vs. MURPHY.

ON CERTIORARI.

THE reason relied on for the reversal of the judgment of the justice, was, that the justice had allowed in the rendering judgment for the costs, for four witnesses, contrary to the provisions of the act of Assembly on the subject. But it appeared that there had [*] been two trials before a verdict was had, and that two witnesses had been sworn on the part of the plaintiff below, in whose favor the judgment was rendered, at each trial.

BY THE COURT.-The plaintiff was entitled to the costs of two witnesses at each trial. Judgment affirmed.

Wall, for the plaintiff. Boggs, for defendant.

SEWARD vs. CHAMBERLAIN.

ON CERTIORARI.

IT did not appear by the justice's record that the jury had been sworn.

BY THE COURT.-It is essentially requisite that it should appear on the record that the jury were sworn.

Judgment reversed.

SAYRE vs. ROSE,

ON CERTIORARI,

ROSE brought an action against Sayre, on the following state of demand, to wit:

The plaintiff comes into court, and pleads that Stephen Sayre is indebted to him for $55, for not paying me the freedom due [*] in his indenture.

This state of demand was now objected to as unintelligible, and containing no cause of action.

BY THE COURT.-The state of demand is defective in substance; no cause of action is set out; who made the indenture; how Mr. Sayre is liable on it; and to whom; does not appear. Judgment reversed.

SAYRE vs. ROSE,

ON CERTIORARI.

THE action before the justice, was an action on the case, brought on an indenture; and a breach assigned for not schooling the plaintiff's son. 'The cause of action in the state of demand was very vaguely set out; there was not sufficient matter contained in the state of demand, to show the liability of Mr. Sayre to the action of the father.

BY THE COURT.-Without taking notice of the insufficiency of the state of demand, the action cannot be sustained. The plaintiff below has misconceived his action, as the action is brought for a breach of covenant in an indenture; it ought to have been an action of covenant.

Judgment reversed.

[*] DESPREAUX vs. SMOCK.

ON CERTIORARI.

In a suit for a malicious prosecution, special circumstances of malice, &c. must be precisely alledged.

THE action before the justice, was brought by Smock against Despreaux, on the following state of demand, to wit:

The plaintiff demands of the defendant, the sum of $76 50, for this, to wit: whereas the defendant, on the 30th day of January, 1808, and at sundry other times, commenced against the plaintiff sundry malicious and vexatious prosecutions to my damage, as above stated, as per account annexed.

Then followed sundry items of expenses and costs, in all, 876 50. The insufficiency of the state of demand was assigned for error.

BY THE COURT.-We have repeatedly determined this question. If the action is to be maintained at all in the case of vexatious and oppressive civil prosecutions carried on from malice, the special circumstances of oppression and malice must be set out with precision in the state of demand. Judgment reversed.

Hunter, for plaintiff.

AUTIN vs. TOWNSEND and others.

ON CERTIORARI.

THE action before the justice, was brought by Townsend and two others, on the following state of demand, to wit:Joseph Townsend, one of the plaintiffs in the above cause, comes into court and demands of Thomas Autin $100, which to him he [*] owes for damages sustained for detaining the Schooner Resolution thirty days from sailing on a voyage, after having cleared out for Richmond, State of Virginia; and this the said Townsend is ready to prove, and therefore prayeth judgment against the said Thomas Autin.

It was objected to this state of demand, that it did not set out a cause of action against any one. It was also contended, that even if the state of demand did show a cause of action in Joseph Townsend, that the other persons joined with him could not have a right of action for an injury done to him.

BY THE COURT.-It is probable that the persons joined with Townsend in the action below, were his partners, and that Townsend was the acting partner, and therefore appeared in court in behalf of himself and his partners, and that they three were the joint owners of the Schooner. But the Court cannot go on conjecture; it is better to have no state of demand at all, than to have one that does not disclose a right of action in those who sue. Judgment reversed. Neale, for the plaintiff.

ROBBINS 7's. EAKIN.

ON CERTIORARI.

Defendant without a set-off, can recover no sum except costs. THE action below, was brought by Robbins against Eakin, for violating an agreement. To this charge, Eakins plead not guilty; no off-set was set up before the justice; yet on

the trial by jury, Eakins, the defendant, recovered $16, for which sum the justice rendered [*] judgment against the plaintiff, who brought this certiorari to reverse the judgment.

BY THE COURT.-To enable a defendant to recover a sum of money against the plaintiff, there must be a set-off. The issue on the pleadings below, was, that the defendant had broke his agreement with the plaintiff. If he had, the plaintiff was entitled to damages; if he had not, the defendant ought to have judgment for his costs; but he could not recover a sum of money against the plaintiff.

Judgment revers ed.

Neale, for the plaintiff.

GULICK vs. The Executors of VAN ARSDALEN.

ON CERTIORARI.

THE first objection to the action below was, that the justice had not entered on his docket the name of the county. The name of the county appeared on the proceedings, particularly on the plea of Gulick, in whose behalf the objection was taken.

BY THE COURT.-The objection was not taken below; had the justice tried the cause out of his county, the fact could easily have been made to appear. The objection is founded on too much refinement, when applied to justice's

courts.

It was then contended that the judgment ought to be reversed on another ground, to wit: that the plaintiffs below did not produce on the trial, the probate of the will of their testator, although called on for that purpose. This fact appeared on the record; the justice stating that he did not consider it necessary, as [*] the defendant had, in his plea filed with him, acknowledged the plaintiffs as executors; he had treated them as such in his plea.

BY THE COURT.-This point was determined in the case of Brokaw, executor, v. Decker, State Reports, 231. (a) It was then contended, that the justice had rendered judgment in favor of the plaintiffs for the costs of the defendant; as to which, it appeared that the justice, in stating the sum found by the jury, adds these words: defendant's costs is six dollars and nine cents; and then proceeds to render judgment for the debt found by the jury, and six dollars and nine

cents costs.

(a) S. P. 2 Dal. 100. 3 Day's Rep. 303.