grant a new trial, unless the fine is so excessive, as to evince partiality or corruption in the jury. The evidence in this case proves that the offence was highly atrocious and aggravated. The circumstances attending the assault, and the weapons used, leave no doubt of the intention of the defendants. It must ever be a consolation to them, that that intention was not carried into effect. The court do not think the fine in this case so excessive as to demand their interference.

Motion for new trial overruled and judgment to be executed in Claiborne county.-Turner, Reed and Davis, for defendants.—Attorney General Harding and Rankin, for state.

SUSANNAH LINDSAY vs. FRANCIS HERD.

Upon an appeal from a judgment of a justice of the peace, for a sum exceeding twen ty dollars, it is error, for which the supreme court will reverse the judgment of the circuit court, if either party proceed to trial there, without making up an issue.

THIS suit was originally brought by the defendant in error, before a justice of the peace, and a judgment rendered in his favor, for more than twenty dollars. From that judgment, the plaintiff took an appeal to the Superior Court of Amite county. In that court, "there being no formal issue made up by and between the parties," a jury was sworn, "well and truly to try the appeal aforesaid," who found a verdict for the present defendant, for twenty-four dollars, and costs; upon which verdict, judgment was rendered. To reverse that judgment, the plaintiff brought this writ of error, and assigned the following reasons for the reversal.

1. The declaration is insufficient to maintain the action.

2. There was no issue between the parties made up in said cause at or before the trial.

3. The general error.

The defendant pleaded substantially in nullo est erratum.

Rankin for plaintiff.-The second error assigned must be fatal. The judgment is for more than twenty dollars, and no issue was made up at or before the trial. The act of 1814 provides, that "in cases where the sum

The statute

claimed exceeds twenty dollars, the said (superior) court shall try such appeal de novo, as any other cause in said court is tried at the first term, on an issue to be made up at or before the trial." Dig. 317, S. 3. McGee for defendant.-It does not appear from the record, that there was no issue made up, but that there was no formal issue. does not require that the issue should be technically formal. was not such an issue made up as the statute requires, it is not an error, of which the plaintiff can avail herself. It was her own fault, that she did not plead to the action in the superior court, and she cannot take advantage of her own wrong.

But if there

Rankin in reply.—The record ought to shew, not only that there was an issue, but also, what the issue was, that the court may be able to judge of its materiality. The error was the defendant's, in putting the cause to the jury, before it was prepared for trial. Curia.-The judgment must be reversed.

JOSEPH HOLT, FOR THE USE OF JOHN NORTON, VS. PARMENAS BRISCOE. QUESTION REFERRED FROM CLAIBORNE COUNTY.

The death of the person for whose use the suit is brought does not abate the suit. THIS was an action of covenant, brought in the Superior Court of Claiborne county, in the name of Joseph Holt, for the use of John Norton, against Parmenas Briscoe. At the September term, 1815, the death of Norton, for whose use the suit was brought, was suggested by defendant's counsel, and security for costs required. The plaintiff's attorney gave security for costs, and at his instance, the court ordered the cause to be carried on for the use and benefit of John W. Hamilton. At the March term 1817, it was urged by the defendant's counsel, that the suit was abated by the death of Norton; and the question, "whether this suit does abate thereby," was referred to the supreme court for their decision. Turner for plaintiff-Clarke for defendant.

Curia-The death of Norton does not abate the suit.

PETER WILTBURGER vs. EDWARD RANDOLPH.

Interest may be allowed by the jury, on an open account, though there be no proof that interest was agreed to be paid by the defendant.

THIS was an action of assumpsit, upon an account, brought in the Superior Court of Wilkinson county, by the plaintiff, a merchant of Philadelphia. It appeared in evidence on the trial, that the plaintiff had sold and delivered to the defendant, sundry goods, wares and merchandise, at the usual credit. Some time having elapsed after the expiration of the credit, agreed upon between the parties, and the defendant having failed to pay, the plaintiff made out his account for the goods, wares, &c. sold and delivered; to which he added interest upon the account of the price, for which the goods were sold, from and after the day that payment should have been made, according to the agreement; that this account was presented to the defendant, who acknowledged the correctness of it, and promised to pay it. It was also proved, that it was the custom of the merchants of Philadelphia to charge and receive interest upon the price of goods, &c. sold and delivered, if payment were not made when it became due. Upon this evidence the learned judge instructed the jury, that they were at liberty, if they thought proper, to allow interest on the account, as claimed by the plaintiff. The jury gave interest, and found a verdict for thirteen hundred and twenty six dollars and eighty-two cents, for the plaintiff. A motion for a new trial was made, and the following reasons assigned by the defendant's counsel.

1. For the misdirection of the judge in instructing the jury, that they might allow interest on an open account, for goods, wares and merchandise, sold and delivered.

2. Because the jury did allow interest on an open account for goods, wares and merchandise, sold and delivered, although no interest was agreed to be paid.

3. Because the court left the question, whether interest should be allowed on an open account for goods, wares, &c. to the jury when the same was a question of law, and proper only for the discretion of the court. 4. Because the verdict is contrary to law and evidence. The question whether there ought or ought not to be a new trial in this case was by con

sent of parties and the direction of the judge, referred to the Supreme Court for decision.

By the Conrt.-Let the motion for a new trial be overruled. The in terest was properly allowed by the jury in this case.

EDWIN LEWIS vs. JONATHAN SULCER.

ON WRIT OF ERROR.

It appears from a copy certified by the clerk of the Superior Court of Jackson county, to be a full and true transcript of all the papers in his office, and of all the orders and proceedings in the court, in the suit of Jonathan Sulcer against Edwin Lewis; that the said Sulcer drew his petition, not directed to any particular person, complaining, that while he was possessed and had the right of possession of a tract of land in Jackson county, on the west side of the Pascagoula river, commonly called Sulcer's Bluff, the said Lewis made an unlawful and forcible entry upon the premises, and unlawfully and forcibly detained the same from said Sulcer; and praying that process might issue, to compel the said Lewis to appear and answer the complaint of said Sulcer, &c. and that a jury might be surnmoned &c. Upon this petition, George Davis, a justice of the peace for Jackson county, issued a precept, commanding the sheriff to summon the said Lewis to appear and answer the said Sulcer, &c. and also a venire facias, for a jury. The summons was returned duly executed, but there was no return of the sheriff upon the venire facias. On the return day of said process Lewis appeared before the justice, and moved to quash the complaint of Sulcer, for sundry reasons, which the justice deemed insufficient, and overruled the motion.

The defendant then pleaded he was not guilty of the forcible entry and detainer, as set forth by the plaintiff in his complaint. A jury of twelve men was then empannelled and sworn, but one of the men returned on the original panel by the sheriff, being deemed by the justice an improper

juror, was discharged, and a talesman was returned and sworn in his place. During the progress of the trial, Sulcer offered to prove by several witnesses, that one Alexander Durant was in possession of the premises in the spring of the year 1810, and then and there sold all his right and title thereto, to the said Sulcer, for three hundred dollars; that the conveyance from Durant to Sulcer was in writing, which conveyance was not produced, and Sulcer was put into possession of the premises, by Durant, and continued in the possession, until the fall of the year 1810. Lewis objected to the admission of this testimony, as irrelevant to the issue, and wholly incompetent, as being an attempt to prove a sale and conveyance of land by parol. The justice overruled. Lewis's objections, and permitted the testimony to go to the jury. To which opinion of the justice, Lewis filed his bill of exceptions, which was signed and sealed by the justice. The jury found Lewis guilty. The verdict was given June 20th, 1814. Lewis thereupon applied to the Hon. H. Toulmin, judge of the Superior Court of said county of Jackson, for a writ of certiorari, to the justice, which was granted, returnable to the August term of said court.. It does not appear that the justice certified the judgment &c. as commanded by the said writ of certiorari; but Sulcer, on the 24th of August, 1814, moved the Superior Court of Jackson county, to quash the said writ of certiorari, which motion was on argument sustained, and the writ of certiorari quashed. On the same day, Lewis filed a petition for another writ of certiorari, which, upon argument in open court, was granted. It does not appear that a second writ of certiorari was issued, except by the bond which was executed by Lewis and his security, on the 25th of August, to pay and satisfy all such damages, &c. as the said Sulcer might sustain from the wrongful suing out of said writ of certiorari. On the 25th of August, 1814, a jury was empannelled and sworn, in the Superior Court of Jackson county, who found the said Lewis guilty of a forcible entry and detainer; upon which verdict, the court rendered judgment, and awarded a writ of restitution. In a list of the witnesses sworn and examined for Sulcer on the last trial, annexed to the copy of the record, is found the name of Jonathan Sulcer.

To reverse the judgment of the Jackson Superior Court, Lewis applied for and obtained a writ of error, with supersedeas, and assigned the following errors, to wit: