motion, he cited Sayer on damages, page 126. This was opposed by Leake, Sergeant, on the ground, that where issue is joined in a cause, a writ of inquiry cannot be awarded; in support of which, he cited, 5 Comy. Dig. Title Pleader, Z. 2. 2 Bac. 12, 2. Comy. Title Damages, E. 2, 2 Blac. Com. 397, from which he argued, that the remedy in this case, was to order a new trial; and contended that Sayer on damages, was not an authority to be relied on in this case. This question was argued in September term; the Court took time to look into the authorities-and in this term, Pennington Justice, delivered the following opinion; in which the Chief Justice, and Rossell Justice concurred.

PENNINGTON, J.-The jury in this case, having found for the demandant, and omitting to assess the damages, a motion is made on the return of the postea, for a writ of inquiry to assess the damages. This motion is objected to, on the ground, that the jury who tried the cause, ought to have assessed the damages, and that a writ of inquiry cannot go in this case, it being a mere inquest of office, on which no attaint lies. The rule of law on this subject, appears to me to be, that where the jury who try the cause, omit to assess the damages, in case the matter omitted to be enquired by the jury is such as goes to the very point of the issue, and constitutes the gist of the action, as in assumpsit and trespass-and upon which, if a false verdict be found by the jury, an attaint will lie against them; there, such matter cannot be supplied by a writ of inquiry; for there, the party injured, may loose his action of attaint, [*] which will not lie upon an inquest of office. But where the matter omitted to be inquired of by the principal jury, doth not go to the point in issue, nor constitute the gist of the action, but is collateral, there, such matter may be supplied by a writ of inquiry. I take the latter, to be the case under consideration; the issues tried by the principal jury, were the marriage of the demandant, and the scisen of the husband; the damages were not the point in issue, nor did it constitute the gist of action. The demandant may have judgment for a third part of the land, without damages, which shows, that the damages was not the point at issue, but arise collaterally, and therefore, proper to be supplied by a writ of inquiry. Whether Sayer on damages, cited by the council for the plaintiff, be a book of authority or not, I will not undertake to determine it appears to me to be an essay of considerable merit, and his opinion on this point, page 126, to correspond with analogous cases to be found in the books on this subject, and to be within the reason and principle of the law.-Besides which, the punishment by attaint has become obsolete,

and the remedy in case of a false verdict, is now by way of new trial; a writ of inquiry, as I apprehend, may be set aside for the same cause. At common law, where the reason of the law ceases, the law also ceases. But if the doctrine and practice of attaint were in full vigour, I apprehend a writ of inquiry in this case might issue. It is true, that the jury who tried the cause, might have assessed the damages, and in all ordinary cases, it is the most convenient and less expensive manner of doing it, and therefore to be recommended; but in case they omit to do it, a writ of inquiry is the most safe and convenient mode; a venire de novo would put in hazard, an important right already found. I am, for these reasons of opinion, that a writ of inquiry be awarded. BY THE COURT.-Let a writ of inquiry issue.

Leake, Sergeant, then moved that the writ of inquiry be executed in the presence of one of the justices of this Court; but the Court considering it a plain matter of inquiry, refused the motion.

[*]SUTTON vs. COLEMAN and OTHERS.

ON CERTIORARI.

Justice cannot issue venire until appearance of defendant.

THE reason assigned for reversing the judgment below, was that the justice, on the motion of the plaintiff, issued a venire for a jury, before the defendant appeared, and this fact being supported by the record:—

BY THE COURT.-It must be reversed for that cause; by the act of Assembly, the justice cannot award jury process, until the appearance of the defendant. Pat. 316, s. 20. (a) R. Stockton, Attorney for plaintiff.

JOHNSON vs. HOLMES.
CERTIORARI.

Summons may omit township of the justice's office.

THE reason relied on for reversing this judgment, was, that the summons was defective in not naming the town in

(a) Vid. South. 501, Rev. 544.-Ed.

which the defendant was to appear, but only mentioned to appear at the house of the justice, leaving out the town in which the justice's house was situated. It appeared by the record, that the defendant below, appeared at the time appointed in the summons, and craved a non-suit for the above defect in the summons; and the justice refusing to non-suit for that cause, the defendant then disappeared; when the justice proceeded to try the cause in his absence. Mr. Crane, for the plaintiff in certiorari, who was the defendant below, insisted, [*] that this was a fatal error, and that judgment ought to be reversed.

BY THE COURT.-The exception is captious; let judgment be affirmed.

AUTEN vs, BRYAN.

ON CERTIORARI.

Justice cannot adjourn beyond fifteen days from the return of summons. THE reason relied on for reversing the judgment below, was, that the justice adjourned the cause beyond fifteen days from the return of the summons, on the motion of the plaintiff below, the defendant in this Court. It was contended, on the part of the plaintiff, that this was error; and on the part of the defendant, that if error, yet that it was cured by a subsequent trial, verdict and judgment.

BY THE COURT.-The act of Assembly limits the time to which the justice can adjourn, by expressly enacting, that it shall not exceed fifteen days, [Pat. 316, s. 17.] That there was in this case an intermediate adjournment, makes no difference; for if the justice can adjourn from time to time, not exceeding fifteen days at a time, the limitation in the act of Assembly, may be defeated altogether. It may be that fifteen days is too short a time, and that a convenience would arise from allowing the justice a greater latitude. If that is so, it is not in our power to help it. We do not sit here to make laws; the judgment must therefore, be reversed. (a)

(a) Act Nov, 19, 1820, (Rev, 796,) extends time of adjournment to 30 days.-ED.

[*] ELDRETH vs. HOFFMIRE.

ON CERTIORARI.

Action case, demand trespass, error.

THE action before the justice, was an action on the case. The state of demand was both in form and substance, an action for trespass on land. This variance being assigned for error:

BY THE COURT.-The judgment must be reversed.

SHOTWELL v8. THORNALL, and others.

ON CERTIORARI.

Overseers of the poor cannot maintain action in their own names, for township monies.

IT appeared by the transcript of the justice, that this was an action brought by the overseers of the poor, to recover the value of necessaries which they had furnished a negro man, who had become chargable to the township, who, they contended, belonged to the plaintiff in this Court, who was the defendant. The necessaries had been furnished, by the order of two justices. Various objections were taken to the proceedings of the justice.

BY THE COURT.-The action is wholly misconceived. The overseers expended the money of the township, they must account with the town for the money expended; and have no authority to demand the same of defendant below. If any action can be sustained, it must be by the township, in its corporate name. (a)

[*] BROADWELL v8. CONGAR.

ON CERTIORARI.

Tort and contract cannot be joined.

THIS was an action of debt, brought by the defendant in this court, against the plaintiff. The account rendered by Congar to the justice, contained sundry items, arising on simple contract, the proper subject of a book account; to which was added a charge-For taking 200 rails from his (a) Vide 7 Halst. 124.-ED.

fence, 4. 10s. The objection raised to the proceedings and judgment below, was, that it evidently appeared that demands arising on contract, and a demand for injury by reason of a trespass, was joined in one action; and the court being of that opinion, reversed the judgment.

CRANDALL vs. DENNY and COMPANY.
ON CERTIORARI.

Action brought in name of firm, error.

VARIOUS reasons were assigned for reversing the judgment of the justice; two of which were taken notice of by the court. First, that the action below was brought in the name of Francis Denny & Co. Second, that no judgment was ever rendered on the report of the referees, but execution issued without judgment. The proceedings, for these reasons, were by the court set aside, and rendered null and void. (a)

[*] CHATTIN vs. PAYDAY.

ON CERTIORARI.

Action on simple contract, for the payment of money, to be debt. THE action below was an action on the case. The state of demand was for a simple contract, to wit: board, nursing, clothing, &c., of the child of the defendant below. The act of Assembly, directing that actions arising on simple contract, shall be brought as action of debt and not otherwise, was relied on for the reversal of the judgment below.

BY THE COURT.-We cannot get over it; the judgment must be reversed.

JOHN A. JOHNSON vs. ABRAM JOHNSON.

ON CERTIorari.

State of demand insensible. No judgment, proceedings null.

THE reason relied on for the reversal of the judgment of the justice, is as follows, to wit: Because the state of the

(a) Vide ante. 75; post. 984. 5 Halst. 295,-ED.