The defendant then filed the following reasons in arrest of judgment.

1st. "That there is no averment, that the parties agreed on the land to be conveyed, or any proof of what land was agreed on, although the covenant states the same, and makes such an agreement necessary."

2d. "No offer to submit to arbitration; no proof that plaintiffs made any offer, although it is proved to be a part of their bargain, and not contradicted."

3d. "That there is no such covenant as that set out in the declaration, viz. that a deed should be made unconditionally."

4th, "No averment of a demand of a deed."

5th. "It is set forth that the land should be so much as the parties might agree on-no agreement averred."

Gazlay, in support of the motion.

Opinion of the court by judge Burnet.

The second, third and fourth reasons do not require to be particularly noticed. They either relate to matters not presented by the pleadings, or to such as should have been noticed at an earlier stage of the proceedings, and in a different form. The first and fifth reasons assign the omission of an averment, that the line, and the quantity of land to be conveyed, had been agreed on by the parties. These objections resolve themselves into one; for as the course and distance of all the lines are given, except one, which is to terminate at Lawrence's line, it follows, that fixing the course of that line must settle the quantity of land to be conveyed; but a reference to the record will show, that the defendant has supplied the omission by his second plea, which puts that matter distinctly, though informally, in issue, and as that issue was found for the plaintiffs, the facts must have been proved to the satisfaction of the jury.

The contract is drawn with a want of technical precision, though the meaning of the parties can be sufficiently ascertained. The pleadings are informal throughout, as well on the part of the defendant, as of the plaintiff. The title set out in the declaration appears to be a good one, but it is defectively stated. The substance of the contract is given correctly. The difficulty arises from the want of proper averments in the declaration. The defendant might have demurred, but he did not see proper to take that course. He chose rather to supply the defect, and rest on the evidence. After having traversed the pay. ment and tender, he has informally put the agreement, as to the lien, in issue; the whole of that subject was therefore before the jury. It is true, that the defendant could not convey till it was ascertained what he was bound to convey but it is equally true, that the second issue could not have been found for plaintiff, unless that matter had been ascertained by the evidence at the trial. The defect, therefore, was supplied by the plea, or cured by the verdict. Whatever might have been the result of a demurrer, we do not feel at liberty, under existing circumstances, to arrest the judgment.

VANCLEVE v. WILSON.

In cases certified to the Court of Common pleas upon attachment from justices of the peace, the jurisdiction of the common Pleas is original, not appellate and an appeal lies to the Supreme Court.

This case was commenced by attachment before a justice of the peace, for the sum of 64 dollars 91 cents. A garnishee was summoned, in whose hands 11 dollars 31 1-2 cents were secured. Afterwards, an affidavit was made, and the justice issued an attachment against lands and tenements. The officer returned a levy upon lands, and the justice certified his proceedings, with the return of the officer, to the court of Common Pleas. The defendant appeared in the court of Common Pleas, and entered bail, pleaded to the action, and went to trial. The jury gave a verdict of 56 dollars for the plaintiff, and the defendant appealed to the Supreme Court of Montgomery county, where the procee dings were all had. The plaintiff moved to quash the appeal, and the decision of the motion was adjourned to this court.

Munger and Fales, in support of the motion. Stoddart, contra.

By the COURT.

The 17th sec. of the act regulating attachments before justices of the peace, passed in 1816, under which these proceedings were had, gives jurisdiction of the cause to the court of Common Pleas. This jurisdiction cannot be appellate, for nothing is appealed from; no judgment is rendered to be revised, and the cause does not come into the court of Common Pleas, by any act of either party, but in consequence of a legal duty imposed upon the justice. The proceedings in the court of Common Pleas, in taking bail, filing declaration and other proceedings, and in the trial of the cause, are all essentially of the original character, The jurisdiction, therefore, must be original, and the motion to quash the appeal is overruled.

MAXFIELD v. JOHNSTON ET AL.

Where there is a general verdict for the Plaintiff upon a declaration containing several counts, and one of the counts is defective, judgment will be arrested.

But a count, founded upon a receipt for money without alledging that the money was received for the use of the plaintiff is not so defective that judgment will be arrested after verdict

This case was adjourned from the county of Portage, upon a motion made by the defendants, in arrest of judgment.

It was an action of assumpsit. The declaration contained two counts-the first was as follows:

"For that whereas the said Charles and Adamson heretofore, to wit, on the 21st day of August, 1818, at Nelson, in said county of Portage, made their cer

tain memorandum in writing, commonly called a receipt, bearing date on the day and year aforesaid, their own proper hands and names being thereto subscribed, and then and there delivered said memorandum, or receipt, to the plaintiff, and thereby then and there acknowledged to have received on that day, of the said plaintiff, two hundred dollars. By means whereof, the said Charles and Adamson then and there became liable to pay to said plaintiff the said sum of money, in said receipt specified, according to the tenor and effect thereof: and being so liable," &c. charging the assumption and consideration in the usual form.

Second count, for four hundred dollars, for work and labour, four hundred for wares and merchandise, money lent, received, and advanced in the common form.

The jury found a general verdict for the plaintiff. The defendants moved in arrest of judgment, and assigned the following reasons.

The verdict is general upon all the counts in the declaration, and the first count therein is insufficient in law to authorize the court to render judgment in this: that it is not alleged in said count that the said sum of money, therein mentioned, was had and received, or otherwise possessed by defendant, to the use or on account of the plaintiff, or other than for the defendant's own use.

Wright in support of the motion. Sloane and Newton, contra.

Opinion of the court, by Judge HITCHCOCK.

The declaration in the present case contains several counts, and for a supposed defect in the first, it is moved to arrest the judgment. Where there is a general verdict for the plaintiff upon a declaration containing several counts, and one of the counts are defective, the judgment will be arrested. It is not however for every defect that such consequences shall follow. Mere formal defects are cured by verdict. Such defects too as arise from the manner in which the title of the plaintiff is set forth, are cured by the verdict, provided sufficient appears to satisfy the court that the plaintiff had good cause of action. If, however, it appears that the plaintiff has no cause of action, or in other words, that the title itself, upon which he claims to recover is defective, such defect is not cured by verdict. After a jury has passed upon a case, every thing is to be presumed to sustain their verdict.

The first count of the plaintiff's declaration sets out that the defendants re ceived of the plaintiff a specific sum of money which they promised to pay, &c. It is defective in this particular, that it does not state that the money was received to the plaintiff's use. Had the declaration contained but a single count for money had and received by the defendants, to the use of the plaintiff, the receipt which is referred to in the present case, would have been good evidence under such declaration to authorize the plaintiff to recover. It is manifest then that the count objected to sets out a good title, although it is done defectively. After verdict the court must presume that it was proven on the trial that the money was received to the use of the plaintiff, otherwise the jury would not have found as they have done. The omission to state that the money was received to the use of the plaintiff is cured by the verdict. Whatever might

have been the opinion of the court upon a demurrer to the declaration, it is now too late to take exception to it.

If the receipt of the money had been accompanied with an express promise to pay, it would have been equivalent to a promissory note. The consideration would have been sufficient to support the promise. After verdict every prom. ise laid in the declaration is to be considered as an express promise. It is too late to say that it is no other promise than such as is implied in law. This case then is presented to the court as it would have been had there been an express promise to pay. Such promise would have been a sufficient consideration to support it, and would be obligatory on the party. For this reason, therefore, the judgment cannot be arrested.

Let judgment be entered for the plaintiff.

LITLER v. HORSEY.

One of several sureties, against whom judgment has been obtained, cannot sustain a separate action against the principal, under the 5th section of the act for the relief of sureties. But in such case, where there is a joint judgment against several sureties, all must join in the action.

This was a writ of error to a judgment of the court of Common Pleas of Pickaway county, reserved in the Supreme Court of that county for decision here. The original action was a special assumpsit, and the facts, upon which the opinion of the court was founded, were as follows:

On the 21st of April, 1818, Litler the defendant, and one Heath made a note for 2,200 dollars negotiable at the office of the bank of the United States at Chilicothe. It was endorsed by the plaintiff, Horsey, John White, and James Moore, and discounted and the proceeds received by the drawers. This dis count was an accommodation for the drawers, and the note drawn and endorsed by the same parties, was renewed until the 27th October, 1818, when Asael Heath's note, endorsed by the plaintiff, John White, James Moore, the previous endorsees, and Job Radcliffe, an additional endorser, was discounted, and th proceeds applied to take up the note of Litler and Heath. Litler's name was

thus withdrawn from the paper, and the note was renewed and reduced by the same parties until June 1, 1819, when Asael Heath's note was discounted, endorsed by the plaintiff, and by James Moore, Job Radcliffe, and Jonathan Heath, instead of John White. The note thus endorsed was renewed once, and not being paid, suit was brought against the plaintiff and the other endorsers, and judgment rendered against them. Horsey had not paid the money; and it was agreed that there was no proof that Horsey endorsed the first note at the request of Litler, other than the presumption arising from the fact, that Litler was one of the drawers of that note; and there was no proof that Litler had any information or knowledge that Horsey had endorsed the note in ques

tion.

These facts appeared upon the pleadings, and upon a bill of exceptions, made part of the record. The jury found a verdict for the plaintiff, and judg

ment was given upon the verdict, to reverse which the writ of error was brought.

Irwin, for plaintiff in error. Ewing, contra.

By the COURT.

At the common law a surety has no action against his principal, until such surety has paid the money; and the remedy extends no further than to recover back the amount paid, as in any other case of money paid for the defendant, at his request. This being the rule, the action of every surety must be for his own advances, and must be in its nature separate. For although two or more joined as sureties in the writing, that act gave them no right, even if it could be considered a joint act. Each surety could recover the amount he had paid, and no more, and the principal, though subject to the expense of separate suits, could not be subjected to a judgment for any greater sum than his own original debt.

Our statute gives to the surety a totally different remedy. It authorizes the surety to sue a severe process, and obtain a summary judgment against his principal, so soon as the creditor shall have obtained judgment against the surety. The judgment is to be rendered for the "proper amount," which of course must be the amount of the judgment against the security. The foundation of this proceeding in favor of the surety is totally different in principle from the proceeding at common law. It is not the amount paid by the surety, but the whole amount of the judgment, for which the surety may proceed against the principal. Where there are, as in this case, four sureties, upon the doctrine contended for by the defendant in error, each is entitled to a separate judgment against the principal for the whole amount. And each, upon the hypothesis that he might be compelled to pay, would claim to proceed and collect the whole amount of his judgment. Thus a necessity might be created for more litigation, to settle and adjust all the rights of the parties. The court conceive that this would not be a reasonable construction of the statute. The judgment which gives the right of the surety to sue, is an entire and single judgment against all; the right it confers upon them must also be entire. Such being the opinion of the court, it is unnecessary to enquire whether the plaintiff could, upon the facts stated, be considered a surety for the defendant. Were that fact fully admitted, he could not, in this case sustain his separate action. The judgment must be reversed.

LESSEE OF ATKINSON v. DAILEY.

A lease for school lands is not valid unless it be acknowledged by the grantors before a judge or justice.

At the trial of this cause, which was an ejectment, in the Supreme Court of Monroe county, the plaintiff offered in evidence a lease executed by William Kent and Robert Carpenter, trustees of the original surveyed township, No. 7, in range 7, Monroe county, for section sixteen, in said township, the premises