Sloan vs. Sloan. [JANUARY which were sufficiently ancient to have been barred by the statute of limitations some years before. There was no evidence at all of any new consideration to support the alleged stated account as a new and independent contract. Whatever may have been the decisions of the English courts before the passage of Lord Tenterdon's act, of which our statute is very nearly a literal copy, since that time, it is beyond cavil that no stated account, short of one amounting to a written promise or acknowledgement will take a case out of the operation of the statute unless there be evidence of a new consideration sufficient to support it as an independent contract. To hold otherwise would be to permit the provisions of the statute requiring the new promise to be in writing to be evaded and the policy of the act to be defeated, (Turbuck vs. Bispham, 2 Mees. & Welb 2. Angell on Lim. ch. 15, scc. 5, p. 302, 2 ed. Chit. on Con. 6 Amer. Ed. p. 808, and the authorities cited in these two works.) This is a very different case from the actual settlement of mutual accounts and the striking a balance. Such a process converts the set-off into payment. But the mere going through an account where there are items on one side only does not alter the situation of the parties at all or constitute any new consideration. Ashby vs. James, 11 Mees. & Welb. 543. The verdict and judgment being unsupported by the evidence the court erred in overruling the motion for a new trial. Let the judgment be reversed and the cause remanded. TERM, 1850.] Hynson et al. vs. Ruddell et al. HYNSON ET AL. VS. RUDDELL ET AL. Where there are two counts in a declaration upon two notes, profert of both notes at the conclusion of the last count is sufficient. Writ of Error to the Independence Circuit Court. Debt, by Ruddell & McGuire, against Hynson & Zollicoffer, determined in the Independence Circuit Court, in September, 1849, before the Hon. Wм. C. Scorr, Judge. The facts appear in the opinion of this Court. FAIRCHILD, for the plaintiffs. The two counts are for different causes of action, and each must contain all allegations necessary to a recovery: and, as in the first count, there was no profert, the demurrer should have been sustained. FOWLER, also for the plaintiffs, contended that there was a misjoinder of debt and assumpsit, which might have been taken advantage of on demurrer, arrest of judgment or error, (1 Chit. Pl. ed. of 1809, 206, 394): that, in an action of debt, to allege that the defendant promised to pay, is bad. (2 McLean's Cir. Ct. R. 364. 5 Eng. Com. Law R. 264. 1 Chit. Pl. 345.) The counts are as distinct as if in separate declarations, and each must contain all the allegations necessary to its validity. 1 Chit. Pl. 397. BYERS & PATTERSON, contra, contended that sufficient profert of the notes sued upon was made in the declaration; that it is not important in what part of the declaration profert is made; and though the declaration is not drawn according to approved precedents, it is sufficient under sec. 60, ch. 126, Dig. Mr. Justice WALKER delivered the opinion of the Court. There are two counts in the declaration, each averring an in Hynson et al. vs. Ruddell et al. [JANUARY debtedness by note. In the first, no profert is made of the note declared on in the second, after describing the instrument and averring an indebtedness, there is the following averment: "And the said plaintiff produces here in court the several promissory notes, upon which this suit is founded, as evidence of the averments aforesaid." The defendants demurred to the first count in the declaration, assigning, for special cause of demurrer, that profert had not been made of the note in that count declared on. The necessity for making profert, is not controverted, and the only question is one of fact, was this independent averment of profert, although not made in the same count, sufficient? We think it was, and that the demurrer was correctly overruled. It is true that each count must contain within itself a distinct cause of action, yet we apprehend that the cause of action is as perfectly stated without as with a profert. Profert is designed to furnish the court and defendant an opportunity to inspect the instrument declared on, not to add to a cause of action, otherwise imperfectly stated. It never becomes part of the pleading unless the defendant makes it such by craving oyer, and setting it out. Therefore, if oyer be tendered by an averment in any part of the declaration, we hold it to be sufficient. The second objection, that there is a misjoinder of counts, is, we think, not sustained by the facts. The counts, though carelessly drawn, are substantially in debt. The judgment of the Independence circuit court is, therefore, in all things, affirmed, with costs. TERM, 1850.] Ramsey vs. The State. RAMSEY VS. THE STATE. To constitute the offence prohibited by sec. 2, ch. 159, Dig., it is not sufficient that defendant sold ardent spirits in quantities less than one quart, without license; but it is necessary that he should have kept a grocery for that purpose. It is not the mere act of keeping a grocery, but the further act of selling spirits in quantities less than one quart, without license, that constitutes the offence. (a) It is not sufficient that defendant kept a grocery without license, but he must have kept it for the purpose of selling ardent spirits. To constitute the offence, the party must keep a grocery, &c.; keeping spirits for sale in private houses, is not within the prohibition. Appeal from the Newton Circuit Court. Ramsey was indicted in the Newton Circuit Court, as follows: "The Grand Jurors, &c., &c., present that Benjamin Ramsey, on the first day of April, A.D. 1848, at, &c., did then and there keep a grocery for the retail of ardent spirits by quantities less than one quart, without first having obtained a license from the county court of said county, authorizing him to exercise the privilege of grocery-keeper, contrary to the form of the statute," &c., &c. The defendant was tried on the plea of not guilty, at September term, 1849, before the Hon. Wм. W. FLOYD, Judge, convicted and fined one dollar. He moved for a new trial, which was overruled, and he excepted, took a bill of exceptions, setting out the evidence, &c. On the trial, plaintiff proved, by John Cecil, that he saw defendant sell spirituous liquors in quantities less than one quart, and receive pay therefor. That he purchased liquor himself of defendant, but did not know whose liquor it was-did not know whether defendant ever kept a grocery or not, he had goods and also whiskey in the house, but witness did not know for (a)NOTE-But see Hensley vs. State, 1 Eng. R. 252. REPORTER. Ramsey vs. The State. [JANUARY what purpose, nor by whom the house was kept. He purchased said liquor about the last of March or first of April, 1848, at Martin Tackett's store-house in Newton county, and that defendant seemed to have entire control of the house. The clerk of the court, introduced by defendant, testified that he did not know whether defendant had license or not-that he was not about the office during the time when the defendant was charged to have sold liquor, but was, at the time of the trial, clerk and keeper of the record. Martin Tackett, witness for defendant, testified that he knew defendant's occupation about the time alleged in the indictment: that he was about home all the time defendant was doing busi ness at his house, and that he never did keep a grocery. That defendant was selling goods at that time, and did not own a drop of liquor, and did not keep a grocery, to his knowledge. Defendant's business was selling goods; and that the house where defendant was charged to have committed the offence, belonged to witness, and was on his premises-that there was liquor in the house, but that it belonged to witness. He never saw defendant sell liquor in any quantities whatever. Two other witnesses testified that defendant kept a store, and not a grocery, at the house of Martin Tackett. Defendant asked the court to charge the jury as follows: "1. That, unless they find, from the testimony, that defendant did keep a grocery, they must find for the defendant. "2. That the offence consisted in keeping the grocery, and not in selling liquors in less quantities than a quart. "3. That, before the plaintiff can recover, she must prove that defendant did keep a grocery without first having obtained a license from the county court for that purpose. "4. If the jury find, from the proof, that Ramsey kept a house for a store for the retail of dry goods, and not a grocery for the retail of liquor in quantities less than a quart, they must acquit." Which instructions the court refused to give. The State's Attorney asked the following instructions: "1. That if the jury believe, from the evidence before them, |