that the defendant kept ardent spirits, in any house, for retail by quantities less than one quart, without a license, they must find the defendant guilty.

"2. If the jury believe that the spirits was kept in the house of defendant, and retailed by him, it is wholly immaterial as to whose liquor it was."

Which instructions the court gave.

BYERS & PATTERSON, for the appellant. The court below erred in refusing to give the instructions asked by the defendant, in giving the instructions asked by the State, and in overruling the motion for a new trial. See Hensley'vs. The State, 1 Eng. Rep.

252.

CLENDENIN, Allo. Gen., contra.

Chief Justice JOHNSON delivered the opinion of the Court. The indictment is drawn with technical accuracy and in strict accordance with the statute. The testimony is wholly insufficient to support the verdict and judgment. The party is indicted for keeping 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 Newton county, authorizing him to exercise the privilege of a grocery-keeper. To constitute the offence charged, it is not sufficient that the defendant should have sold ardent spirits in quantities less than one quart, but it is equally necessary, and indeed indispensable, that he should have kept a grocery for that purpose. There is no evidence in the record to establish that essential point. The witness, who testified in relation to the sale of the spirits, expressly stated that he did not know whether the defendant ever kept a grocery or not.

The first instruction, asked by the defendant, was improperly refused. The instruction asked was, that, unless the jury should find, from the evidence, that the defendant did keep a grocery, they must find for the defendant. This was strictly appropriate, and consequently should have been given in charge to the jury.

Ramsey vs. The State.

(JANUARY The second was properly refused. This was, "That the offence consisted in keeping the grocery, and not in selling liquors in less quantities than a quart." It is not the mere act of keeping a grocery, but the further act of selling vinous or ardent spirits in quantities less than one quart, and that without having first obtained license for that purpose. The third is, that, before the plaintiff could recover, she must prove that the defendant did keep a grocery, without first having obtained a license from the county court for that purpose. It is not sufficient that the party kept a grocery without first having obtained a license for that purpose; but he must have kept it for the sale of ardent spirits. The instruction, therefore, was not co-extensive with the charge, and, consequently, should not have been given. The substance of the fourth is, that the jury could not convict, unless they were satisfied, from the evidence, that the defendant kept a grocery. This was essential to constitute the offence, and, consequently, should have been given.

The first instruction asked by the State is, that, if they believed, from the evidence, that the defendant kept ardent spirits in any house, for retail, by quantities less than one quart without a license, they must find him guilty. This was improperly given by the court. The term "grocery," is an essential part of the description of the offence, and, in the absence of proof upon that point, the charge is not made out, and consequently a conviction would be unauthorized. The second instruction asked by the State was improperly given for the same reason. The Legislature have not seen proper to prohibit the sale of spirits in private houses. The allegation is. that the defendant kept a grocery. This is an essential part of the description of the crime and must be established by the proof in order to warrant a conviction.

The judgment of the circuit court of Newton county, herein rendered, must, therefore, be reversed, and the cause remanded, with instructions to proceed therein according to law and not inconsistent with this opinion.

TERM 1850.]

Biscoe et al. vs. Stone et al.

BISCOE ET AL. VS. STONE ET AL.

Three years was the bar to a note falling due 1st January, 1844, as repeatedly held by this court.

Part payment does not create a new debt resting merely in parol, but revives the old one; and therefore the action must be brought upon the original instrument or cause of action; so too with a written acknowledgement, or new promise.

Writ of Error to Independence Circuit Court.

Debt on a note executed by Denton, and defendants, Tunstall and Stone, 22d Nov. 1842, payable 1st January, 1844, to Sam. C. Roane and others, original trustees of the Real Estate Bank, and endorsed to Biscoe and others, residuary trustees, plaintiffs, determined in the Independence circuit court, in March Term, 1849, before Hon. Wм. C. SCOTT, judge.

The note was for $500, made jointly and severally by the parties, Denton being principal. Suit commenced 30th October 1848. Plea by both defendants, severally, nil debit and actio. non accrevit within three years. Issue to first plea of each defendant, and three replications to each second plea:

Rep. 1st, payment by Denton, 1st March, 1845, of $135. Rep. 2nd, payment after note due, viz: March 1st, 1845, by all the parties of $135.

Rep. 3rd, payment by Denton 1st March, 1845, of $135, with averments that suit was commenced within five years thereafter, to wit: Oct. 30, 1848.

Demurrer to each replication sustained, and judgment thereon.

PIKE, for the plaintiffs.

Biscoe et al. vs. Stone et al.

[JANUARY

FOWLER, contra.

Mr. Justice ScoTT delivered the opinion of the court.

No question is presented in this case that has not been heretofore settled by this court. The cause of action having accrued the 1st January, 1844, three years were the limitation, as we have repeatedly held.

Part payment does not create a new debt resting merely in parol, but revives the old one, and therefore the action must be brought upon the original instrument or cause of action. Both part payment and an express written acknowledgement or promise being considered as merely removing out of the way the statute bar, so as to enable the creditor to recover notwithstanding, and are not regarded as creating a new substantial contract as the basis of the suit and judgment. Turkey vs. Hawkins, 4 Man. Grang. & Scott 664, p. Wilde C. J. Barn vs. Bolton, 2 ib. 476. Wainman vs. Rynman, 1 Wels. Har. & Gard. 118. Tripp vs. Davis, 12 Mecs. & Welb. 160. Biscoe et al. vs. Jenkins et al. 5 Eng. 117.

There was no error in the judgment, of the court below, and it must be affirmed.

In assumpsit for breach of warranty of the soundness of a horse, a material variance between the allegations in the declaration, and the proof as to the consideration paid for the horse by plaintiff, is fatal.

Appeal from the Johnson Circuit Court.

This was an action of assumpsit, for breach of warranty of the soundness of a horse, brought by Joseph Stuart against Absalom Penn, and determined in the Johnson circuit court, at the Sept. Term, 1849, before the Hon. Wм. W. FLOYD, judge. The case was tried on the general issue, verdict for plaintiff, motion for new trial by defendant overruled, and bill of exceptions.

The substance of the declaration, and the testimony as to the consideration paid by plaintiff for the horse, are stated in the opinion of the court. As to the warranty, plaintiff's daughter testified that she heard him and defendant talking about the sale and purchase of a horse, and that in the course of the conversation her father remarked that he was too poor to purchase the horse, and that the horse was as liable to die as any horse: to which defendant responded that he need not fear anything of that kind, he would warrant the horse to be as sound as any horse in the world. On cross-examination, she said she did not know whether any thing further was said, nor did she know when the sale, or bargain for the sale, was made and concluded.

In reference to the soundness of the horse, some half dozen witnesses testified in behalf of plaintiff that he had the big shoulder, and as many on the other side, that he appeared to them to be sound.

W. WALKER, for the appellant. A new trial should have been granted for the variance between the allegation and proof as to