D

Taylor et al. vs. Kelly.

[ JANUARY mons, and that the same may be quashed, because he says that said writ was issued without the said petitioners' having first filed a petition, and this, the said petitioner is ready to verifywhereupon he prays judgment, that said writ may be quashed.” Verified by affidavit.

Complainants filed a motion to strike out this last plea, on the ground that defendant "before the filing of said plea in abatement, filed in said court, his plea to the merits of this case."

The court overruled the motion, complainants declined to respond to the plea, and the court quashed the writ, and discharged the defendant. Complainants appealed.

F. W. & P. TRAPNALL, for the appellants. It was in violation of the settled order of pleading, to suffer the appellee, who had entered his appearance to the action by pleading in bar, to plead a matter after the withdrawal of said plea, of which he could avail himself, if at all, only previous to entering his appearance to the action. Tidd's Pr. 630. Beane's Pleas, in Eq. 55, 63. Stephen Pl. 484. 4 Serg. & R. 238. 4 Serg. & R. 238. 14 Mass. 409.

Mr. Justice SCOTT delivered the opinion of the Court.

This case is within the principle enforced in the case of Denning v. Kelly, 4 Eng. 435. The defendant having pleaded a plea of a subsequent order or division, lost the privilege of all pleas comprehended in any prior order or division. The motion to strike it out ought to have been granted.

The judgment must be reversed, and the cause remanded.

TERM, 1852.]

Pulaski County vs. Lincoln.

PULASKI COUNTY VS. LINCOLN.

The decision of this court in a case, whether right or wrong, is the law of the case, and the mandate upon the circuit court is obligatory.

Appeal from the Chancery side of Pulaski Circuit Court.

THIS was a bill brought by Pulaski county against Lincoln and others, to rescind a contract made by county commissioners with Lincoln, for the purchase of a tract of land as a site for a poor house. The bill prayed a rescision of the contract of purchase, and that Lincoln produce and bring into court a county warrant for $400, which had been issued to him for the land, to be canceled, &c.

The court dismissed the bill for want of equity, the county appealed, and this court reversed the decision, and remanded the case with instructions to the court below to render a decree for the complainant in accordance with the prayer of the bill. See Pulaski County v. Lincoln et al., 4 Eng. R. 320.

After the cause was remanded, the court below decreed a cancellation of the deed from Lincoln to the county for the land, "and that Lincoln do forthwith produce and bring into court here, the said scrip or warrant so illegally issued and delivered to him, if in his possession, and that the same is hereby canceled." Complainant insisted that the decree should require Lincoln to produce and bring into court the scrip absolutely and unconditionally to be canceled, as prayed by the bill, and objected to the insertion of the words in the decree "if in his possession," and the court refusing to make the decree absolute in this respect, the complainant excepted and appealed.

WATKINS & CURRAN, for the appellant, contended that the decree of the court, that the defendant bring the scrip into court,

Pulaski County vs. Lincoln.

[JANUARY

"if in his possession," is a violation of the mandate and decision rendered in the case, (4 Eng. 320,) which is conclusive of the question and imperative upon the court below. (Porter v. Hanly, 5 Eng. 187. Boyce's hrs. v. Grundy, 9 Pet. 290. 12 Pet. 339, 488.

S. H. HEMPSTEAD, contra.

Mr. Justice WALKER delivered the opinion of the Court.

The earlier history of this case will be found reported in 4 Eng. 320. Upon consideration of the case then this court decided that the case be remanded, and a decree rendered therein in accordance with the prayer of the bill. Whether right or wrong, that decision is the law of the case, and the mandate upon the circuit court obligatory. Porter et al. v. Hanly, 5 Eng. 187.

So far as the defendant's interests were involved, from the state of the issue, and the admissions by the defendant that the bill was true, there is no perceivable error. If there were rents and profits to be accounted for, he should have set them up and made an issue in the pleadings, which would have warranted a decree in regard to them. The only material departure from the prayer of the bill was in making the order to deliver up the scrip conditional. From the state of the pleadings, it was a point conceded that Lincoln had the scrip, and the prayer of the bill was that he should deliver it up to be canceled. The decree should have been rendered accordingly with such further decretal order as might be necessary to enforce its observance. For this error, the decree must be set aside, and the cause remanded for further proceedings to be had according to the equitable rights of the parties, in accordance with the opinion herein delivered.

The plaintiff in error having been convicted of larceny, this court awards a new trial, on the grounds that the testimony utterly failed to identify the property charged to have been stolen, or to establish the venue as laid in the indictment. A new trial will not be granted on the ground of newly discovered testimony, where it appears that the testimony was known to the party long before the trial, and no sufficient excuse is shown for not procuring it-or where it appears that the evidence would be incompetent if produced.

Where a female is convicted of a Penitentiary offence, her pregnancy is no cause for a new trial.

Writ of Error to White Circuit Court.

Nathaniel Holeman and his wife, Polly, were indicted, at the October term, 1848, of the White circuit court, for stealing three pieces of calico and seventeen hanks of spun cotton, the property of Marion Carmack.

The larceny was alleged to have been committed on the 27th of March, 1848, in White county.

The defendants pleaded not guilty, severed, and Polly Holeman, the wife, was put on her trial first.

Marion Carmack, testified that, in the morning of some day in March, 1848, he and his wife left home to go over White River, but being unable to cross the river, on account of high water, they returned home, about one o'clock of the same day, and found their dwelling, an old log cabin, on fire and nearly consumed. In some fifteen minutes after they reached home, Polly Holeman, who lived a few hundred yards off, came to the burning house. She said she had been out skinning a cow, and seeing the smoke, started over immediately. There was in the house a piece of calico mostly of red color, and another piece of blue, with yellow stripes in it—about eight yards in each piece. The NOTE (a.)-This case was decided at January Term, 1849.

calico was in a trunk, and in the same trunk was some bleached factory cotton. There was some spun cotton hanks hanging on the wall. Witness and defendants were on friendly terms. the month of May following, witness caused the house of defendants to be searched, and found in a bed spread some calico which he believed to be his--it was like his, but the colors had been changed by dying, he supposed. He also found, in the bottom of a box, some spun cotton, which he took to be his-it resembled his, though he was not certain it was his.

Mrs. Carmack testified substantially to the same facts stated by her husband-and, in addition thereto, that some time after the house was burned, she saw Polly Holeman at a burial, and she had on a petticoat that looked like it was made of the bleached cotton that was in the trunk with the calico. She also saw Margaret Webb working up some calico, which she took to be part of that that was in the house, except that its color had been changed, as she supposed, by dying. When the house of Holeman was searched, witness was present, and saw some towels which she thought was made of the bleached cotton that was in the trunk with the calico.

Seeing the resemblance between the petticoat that Polly Holeman had on at the burial, and the bleached cotton goods that was in the house before it was burned, awakened her suspicions, and led to the search of Holeman's house.

When the search was made, Mrs. Holeman concealed nothing, but freely exhibited her house-hold goods for inspection. On the day the house was burned, witness and her husband dined at Holeman's-they then saw nothing about the house of Holeman that was in their house before it was burned.

Several other witnesses, on the part of the State, testified that the calico in Mrs. Holeman's bed-spread resembled some that they had seen at Carmack's house before it was burned, but they thought the colors had been changed.

Marcus Holeman, the son of Polly Holeman, testified that, on the forenoon of the day that Carmack's house was burned, he went out with his mother to skin the cow. When she had fin