10. Covenant by A with B that he will pay an execution against B-A pleads that before the return day of the execution, B paid it himself, and that he had tendered the money to the sheriff before the return day, who refused to receive it. B replied that A having failed promptly to pay up the execution, he had been urged and compelled to do so, before A's tender to the sheriff-replication held good on demurrer.

Sommerville v. Jones, 1 S. 345. 11. Covenant is the proper remedy to enforce the liability on an indorsement under seal of a specialty.*

Sommerville & Stephenson v. Johnston, 3 S. 271. 12. In the action of covenant the plea of payment, or covenant performed,

does not admit the deed, but the plaintiff must if no plea, or negative pleas only, were filed.

prove his cause of action as

Bryant v. Simpson, 3 S. 339. 13. A covenant to pay a certain sum of money for rent of land for one year, the covenant is dependent, and the permission to enjoy the land is a condition precedent. Thompson v. Gury, 2 S. & P. 60.

14. When there is a general averment of performance on the part of the plaintiff, and defendant pleads that plaintiff had not performed the covenant on his part, upon which issue is joined, and a verdict had in favor of plaintiff, the want of a special averment of performance will be cured by the statute of Jeofails. Ibid.

15. A covenant dated at an improper time may be submitted to a jury without proof that it was dated by mistake, notwithstanding an averment of the mistake, no plea having been filed putting in issue the execution of the instrument. Richards v. Varnur, 1 S. & P. 64.

16. When there are several covenants, promises, or agreements, which are independent of each other, one party may bring an action against the other for a breach of his covenants, without averring a performance of covenants on his, the plaintiffs part, and it is no excuse for the defendant to alledge in his plea a breach of the covenants on the part of plaintiff. But where the covenants are dependent, it is necessary for the plaintiff to aver and prove a performance of the covenants on his part, to entitle him to an action for a breach of the covenants on the part of the defendant.

Jones v. Sommerville, 1 P. 437. Į
Greene v. Linton, 7 P. 133.

17. A and W entered into a covenant, whereby A after acknowledging himself indebted to W, asssigned to him certain bonds. T signed the covenant as attorney for W. In an action upon the covenant, held that the negligence of W in collecting the assigned bonds was not an issue under the plea of " covenants performed." Aldridge v. Warner, ex'r. 2 P. 92.

18. When parties enter into covenants which contemplate a future copartnership, an action for a breach may be maintained at law by either of the parties for a breach committed by one before the co-partnership has commenced-and semble-that in case of co-partnership covenant may be maintained for breach of articles covenanted to be performed.

Stone v. Dennis, 3 P. 231.

19. A party covenanting on sufficient consideration to perform certain acts not on their face impossible, illegal, or immoral, and no showing be made that these results have accrued, will be held to their performance, notwithstanding the difficulty attending them, or the hardship of the particular act.

Ibid.

20. One sued for a breach of covenant, cannot under the plea of covenant performed, avail himself of the difficulty of performing his covenant in ex

cuse.

This case subsequently overruled.

Ibid.

21. Two covenanting with another by distinct and seperate writings, the one for the performance of several duties, and the other to become the security of the other to the performance of his covenants, cannot be joined in the same action brought to recover for a breach.

Childress v. McCullough & Richards, 5 P. 54. 22. Covenant can only be maintained upon a writing under seal.

Mc Voy v. Wheeler, et al. 6 P. 201. 23. Where a contract under seal is materially varied by a subsequent parol agreement, covenant on the contract will not lie, the remedy must be on the subsequent agreement. Ibid.

24. If new terms be introduced into a contract under seal, other duties imposed, or another day provided for its consummation, an action will not lie for a breach of its stipulations. 1bid.

25. To excuse the performance of an express covenant it must be shewn either that it is prohibited by law, or that its performance has become impossible by the intervention of causes which human agency could not prevent. Morrow v. Campbell, 7 P. 41.

26. And when one had covenanted to return a deed on a day certain, or pay a sum of money, and alledged that he casually lost the deed before the day-it was held that this could not relieve him, it not being shown that the loss could not have been prevented by care and prudence. Ibid. 27. A party cannot be allowed as a witness to give evidence furnishing an excuse for not returning a paper which he had covenanted to return on a certain day, or in case of failure to pay a sum of money. Ibid.

28. When a contract is absolute that the plaintiff is to serve twelve months as a condition to the payment of a sum certain, he cannot recover on the contract without averring and proving an entire performance on his part-and sickness forms no sufficient excuse for the non-performance of it for any space of time. Greene v. Linton, 7 P. 133.

29. Whether covenants are dependent or independent, modern cases, without pretending to lay down fixed or arbitrary rules, admit that the construction is best arrived at by seeking the intention of the parties.*

Ibid.

30. When upon material covenants there has been a partial performance only by plaintiff, and the defence does not go to the whole consideration, it will be a much safer rule, to permit the defendant to reduce the damages by showing what loss he has sustained by such failure of the plaintiff, instead of compelling the party to resort to a cross action. 1bid.

See Agreements and Contracts.-Master and Slave.-Pleading.

CRIMINAL LAW.

I. OF THE INDICTMENT, MOTION TO QUASH, &c.

II. of the TRIAL, ARREST OF JUDGMENT, DISCHARGE.
III. CHANGE of venue.

IV. VENIRE FACIAS, AND ITS SERVICE UPON PRISONER.

V. PLEADING AND EVIDENCE.

VI. OF APPEALS AND POINTS REFERRED.

VII. TRIAL OF SLAVES.

VIII. ASSAULT AND BATTERY, and assault wITH INTENT TO KILL.

IX, MURDER AND MANSLAUGhter.

1. The caption is no part of the indictment. What properly belongs to the caption is unnecessary in the body of the indictment. Whatsoever is immaterial in the indictment, whether inconsistent with the caption or not, is surplusage and may be rejected. Rose v. State, A. R. 28.

2. If one count in an indictment be quashed, the whole is vitiated.

Ibid. 3. If a conviction be had on an indictment, containing a good and bad count, it will be presumed to be had on the good count, and judgment will not be arrested. Ibid. See State v. Coleman 5 P. 32.

4. The judgment will be arrested on an indictment for assault and battery, the time of the commission of the offence having been left in blank. State v. Beckwith, 1 S. 318.

5. When a statute uses a general word, and afterwards more special terms in defining the offence, an indictment framed under it must use the more specific terms, and the use of the general word, though it embrace the special term would be bad. State v. Raiford, 7 P. 101. State v. Plunket, 2 S.11.}

6. To sustain an indictment, it is not necessary that the record should show the mode in which the jurors are drawn, the venire will be presumed legal until the contrary appears. Collier v. State, 2 S. 388. State v. Lussley, 7 P. 526. (

7. It is sufficient if it appears that the grand jurors were selected as the statute requires, and it is not necessary that it be stated that they were drawn by lot.

Ibid.

8. An indictment under the statute for stealing goods in another State, and bringing them into this, must charge the possession as felonious, for nothing can be taken by intendment. State v. Seay, 3 S. 123.

9. After verdict it will be presumed that the names of the jurors specified in the venire facias, have been drawn according to law, particularly when the writ expresses that they were good and lawful jurors duly appointed as the statute requires. State v. Williams. 3 S. 454.

10. The time of committing an offence, except when the time enters into the nature of the offence, may be laid on any day previous to the finding of the bill during the period within which it may be prosecuted.

Shelton v. State, 1 S. & P. 208. 11. Indictments for misdemeanors may well charge in several counts different offences, when the judgment on each would be the same.

Covy v. State, 4 P. 186.

12. When a statute adopts a common law offence, all the common law requirements in defining the offence, should be followed in the indictment; but when the statute describes an act as a crime or misdemeanor of a particular grade, the indictment need not state the legal conclusion.

State v. Absence, 4 P. 397.

13. Indictments framed under statute must conform strictly to the words of the enactment :-thus under statute for stealing slaves, omitting to alledge that they were stolen out of the possession of the master or overseer—held bad. State v. Broom, 4 P. 410, 14. If one of several counts be defective, it can be reached by motion to quash or by demurrer; but an objection to the whole indictment will not prevail, if there be one good count. State v. Coleman, 5 P. 32.

15. When several counts in an indictment charge offences to which the law affixes distinct punishments, it seems the indictment would be bad.

Ibid. 16. Words at length are more certain than figures, and should therefore be preferred, but the use of the latter in an indictment would not vitiate it. State v. Raiford, 7 P. 101.

17. The same strictness is not now required in indictments at common law, as in those under statute. State v. Stedman, 7 P. 495.

A

18. Whether it be necessary to set out in an indictment a day certain on which the offence charged was committed.-Quere?

State v. Lassley, 7 P. 526.

II. Of the Trial-Arrest of Judgment-Discharge.

19. When judgment is arrested on application of prisoner, or because it did not contain such a charge as would authorize a conviction, prisoner may be again indicted. State v. Phil, 1 S. 31.

20. When a renewal of judgment is had upon the ground that the judge had improperly discharged a juror after he had been accepted, for a cause in when he was sworn, accused may be tried again.

esse,

State v. Williams, 3 S. 454. 21. If prisoner is not tried at the next stated term, and the delay is not on his application, or with his consent, he must be discharged although the trial has been prevented by the unavoidable adjournment of the court. State v. Phil. 1 S. 31. 22. The statute 1826, restricting the prisoner's right to be discharged if not tried at the second term, does not extend to a case where the indictment had been found when the act passed. State v. McLendon, 1 S. 195.

23. The discharge of a jury empannelled and charged with a capital case, on account of the illness of a judge, does not protect him under the bill of rights from a second trial, nor would he be so discharged by the course of the

common law. The discharge of a jury, however, must always be founded on necessity. Nugent v. State, 4 S. & P. 72. 24. A man indicted for horse stealing cannot discharge himself, by showing that if committed at all, it was prior to a conviction against him for negro stealing, for which he has received a pardon.

Hawkins v. State, 1 P. 475. 25. Neither a conviction or pardon for a particular offence in this State, can operate as a discharge of any other distinct offence. Ibid, 26. The statute 1807, requiring that persons accused of criminal offences shall not be set at liberty for irregularity in the warrant, or on account of imperfection in the verdict, applies to all criminal prosecutions, whether for offences capital or otherwise. State v. Brown, 4 P. 410.

27. Cases exist in which a minor offence may be discharged by an acquittal on an indictment for a greater one, but they are when the jury trying the cause could lawfully have returned a verdict for the lesser crime. Thus, an acquittal for murder would bar an indictment for manslaughter:-so, of a burglary, where the same indictment contained a count for larceny.

State v. Standefer, 5 P. 523. 28. The discharge of a jury for no better cause than that the jury was not agreed, is irregular and unwarranted by law, and will be equivalent to an acquittal.* Ned v. State, 7 P. 187. 29. The provision in the bill of rights is declaratory of the common law, and in England it has never been decided to extend further than to cases of acquittal and conviction, Ibid.

30. When by reversal of judgment prisoner can be placed in the same position which he occupied when the error was committed, it seems that it might be considered that his life had never been in danger, and that he might be subjected to a new trial.

Ibid.

31. It is not error that in prosecution for offences, assistant counsel is assigned to the State. Shelton v. State, 1 S. & P. 208. 32. When a verdict of guilty is rendered, and the court adjourns without giving judgment, a succeeding judge has power to render the judgment, which the first should have given. Charles v State, 4 P. 107.

III. Change of Venue.

33. A change of venue having been ordered on motion of the prisoner by his counsel, the judgment will not be arrested because the reasons for the order are not set forth in the record. State v. McLendon, 1 S. 195.

34. Upon a change of venue, the court to which the case is removed is bound to presume all things regular before the change, as the existence of a good caption to the indictment; and it devolves upon the prisoner to show any fatal irregularity:-so it is presumable that the record has been duly transmitted and delivered. State v. Williams, 3 S. 454. 55. The statute 1819 suspended the statute 1818 upon the same subject, and courts have no authority to order a change of venue after the first trial Innerarity v. Hitchcock, 3 S. & P. 9.

term.

NOTE. In this case the jury returned that they had been empannelled forty-eight hours, and had been out considering their verdict thirty-six hours, upon which they were discharged, and the prisoner remanded, it appearing to the satisfaction of the court that they could not

agree.