words descriptive of the offence are disjunctively connec ted in the statute, they should be conjunctively united in the indictment. In a word, the "or" of the statute should be changed to the "and" of the indictment. In disregard of this rule, Bechtol is charged in the count under consideration with "purchasing or receiving" timber and shingles which had been "cut or removed" from the lands of others.

It is possible that criticisms so minute as these ought not to prevail to the arresting of judgment in a case of misdemeanor for cutting timber trees, and I should be less inclined to give them effect if there was the substance of the statutory offence contained in this count. If it alleged a cutting and removing of timber trees from the land of Mr. Gratz by Fye, and others unknown, and that Bechtol purchased and received the same, knowing them to have been so cut and removed, it would be a good indictment. It would be an easy matter to overlook informalities in the pursuit of substantial justice; but here the substance of the offence is not charged, and we cannot therefore impose the prescribed penalty.

The judgment is arrested.

Petriken & Curtin for Commonwealth. Burnside for defendant.

Supreme Court of Tennessee--At Knoxville.

SEPTEMBER TERM, 1848..

Reported for the Knoxville Tribune, by O. P. Temple and R. H. Armstrong, Esqrs.

JAMES KELLY v. JAMES CRAIG.

This was an action of slander commenced in Greene county. The slanderous words as charged were, in substance, that Craig had charged Kelly with stealing six

hundred dollars of his money while they were in the State of Alabama together. The jury found a verdict in favor of Craig, the defendant.

TURLEY, J., delivered the opinion.

Judgment is sought to be arrested on the ground that the verdict is contradictory and inconsistent. There is, it is true, an apparent inconsistency in the verdict, but it is not such an inconsistency as vitiates it. It arises out of the double pleading allowed by our statute; under which the defendant pleaded :—1. That he was not guilty of speaking the slanderous words. 2. That he was not guilty of speaking them within six months. 3. That he was justified in speaking them. Upon all these pleas there were issues, and the jury found them all for the defendant. Now, the finding of either of the issues for the defendant, would have warranted a judgment for him, and shall the finding of all of them for him, place him in a worse condition than if one had been found for him, and the others against him? Surely not. If the jury had found a part in favor of the defendant, which could not stand in connection with a part found for the plaintiff, or if they had found two facts contradictory to each other, then the verdict would be inconsistent and a nullity, because there would be nothing upon which judgment could be given. But such is not this case, for though it be true, in accurate expression, that words which have not been spoken, cannot be said to have been truly spoken; yet it is equally true, that it may be said that words which have not been spoken, if they had been would have been truly spoken. This is the light in which this finding is to be understood. The defendant relies upon the defence that he never spoke the words, but for greater precaution extends his ground so as to embrace his case, provided he had spoken them, and they were true. The plaintiff replies, you did speak them, and they are not true. The

defendant proves that he did not speak them, and that they are true if he had spoken them, and the jury so find. This is no contradictory verdict.

If the judgment were arrested and a new trial awarded, upon what issue would it be had? Neither of the inconsistent pleas, not guilty and justification, can be stricken out; and both must be submitted again to a jury, who may find as before. The proof would warrant it, and there is no way of preventing such a finding. The fact that two such inconsistent pleas may be submitted to a jury at the same time, warrants a verdict upon both of them, and prohibits an arrest of judgment therefor. Judgment of the circuit court affirmed,

Supreme Court of Ohio.

Reported by H. Griswold.

DECEMBER 27th, 1848.

Luke Thayer v. James Brooks.-Error. Ashtabula.Birchard, C. J., held: 1. That suit may be maintained in Ohio, to recover damages for an injury to property in Ohio, occasioned by the diversion of water, though the act which occasioned the diversion may have been committed in Pennsylvania. 2. That the rule of damages in an action for a nuisance, is the injury actually sustained. 3. Whether an action will lie for draining a swamp, for the purpose of cultivation, and thereby diminishing the volume of water which had previously run past, and supplied a mill with water: quere.

DECEMBER 28, 1848. Francis Henry, et. al. v. The Vermillion & Ashland Rail

Road Company.-Huron. Avery, J., held: 1. That a bill in Chancery in the form of a creditor's bill will lie against the stockholders of an incorporated company to subject unpaid subscriptions of stock. 2. That the stockholders may be proceeded against in this way, though they omitted to pay at the time of subscription the five per cent. required by the charter. 3. That an agreement attempting to secure to any stockholder the privilege of paying up subscriptions in store goods or otherwise, except in money, will be treated as a fraud upon other stockholders, and payment in money enforced.

James Frazer v. John Fulcher.-Certiorari. Washington. Hitchcock, J., held: That a man sentenced to imprisonment for life, in punishment for a crime, is not civilly dead, and letters of administration cannot be granted on his estate. Judgment reversed.

Alexander M'Laughlin v. John Russell. Error. Columbiana. Birchard, C. J., held: 1. That where a person has admitted that he was the author of a libel in a certain newspaper, any other newspaper of the same impression. may be read to the jury, and is not secondary evidence. 2. That in actions of libel, witnesses who know the parties and circumstances, may be called to state their opinion and judgment, as to the person intended, where the libel is ambiguous. Judgment affirmed,

Supreme Court of Pennsylvania, Eastern District, Phila.

ABSTRACTS OF DECISIONS.

JANUARY 22, 1849.

The transfer of a ship, before delivery of the cargo, passes the right to sue for the freight, and the law implies a promise to pay by the consignee receiving the goods. Pelayo v. Fox.

Where one of the executors settled a separate account prior to the act of 1834, showing a balance in his hands. the next of kin may sue for his share of the undisposed surplus, since that act, though the co-executor was then living. Richardson v. Richardson.

A settlement in the Orphans' Court of a distribution account is not necessary before the common law action can be maintained, nor is a discharge from a citation to settle such an account a bar to the action. Ib. In such action there being no account of the disposition of the funds, or proof as to the receipt of interest, the Court directed the jury to charge "interest on the balance of the administration account up to the time when the first legacy was due. After deducting that, to charge interest up to the maturity of the second legacy and so on, and the judgment was affirmed, (the legacies in this case always exceeded the amount of the interest.) lb.

Where an administration account was settled in 1818, an action by next of kin brought in 1844, is not barred by lapse of time, where all the legacies were not paid or payable until 1827. Įb.

JAN. 26.

The party by whose orders a house is erected is the first builder, and liable for the value of the party wall, although the house was erected under a contract for a gross sum "including party walls" and which had been paid. Davids v. Harris.

An execution issued by a justice and returned levied, but not sold for want of time; an alias stayed and a pluries issued nine years afterwards returned no goods, is evidence for defendant of payment of the debt. Ib,

The right to compensation for a party wall is personal to the first builder; hence where a house was erected on land conveyed to husband and wife, and the heirs of the wife, the husband and his creditors are entitled to the compensation. 1b.

By proceeding before arbitrators an objection to the illegality of their appointment is waived even if there was an express agreement there should be no waiver. Christman v. Moran.