defence to the suit at law, but it is admitted by the bill, that they were all submitted to, and decided on by the jury, and the amount of the verdict shows, that the claim was allowed, as far as the jury believed it to be correct. If injustice was done, the remedy was by moving for a new trial, or by an appeal. Bill dismissed. BLISS v. ENSLOW. JUDGES BURNET AND SHERMAN. An application to set aside the levy of an execution is addressed to the sound discretion of the court and is subject to revision in the Supreme Court. It appears from a bill of exceptions attached to the record, that a motion had been made to set aside a levy made by a constable, on a horse, saddle, and bri. dle, the property of Bliss, on the ground that he was a private in a company of cavalry, organized under the laws of the state, and that the articles levied on, were by law exempt from execution. The court below, refused the motion, and allowed a bill of exceptions. BRUSH, for the plaintiff, insisted, that the decision of the Common Pleas was erroneous, and relied on the act regulating the militia, particularly the 14, 15, 16, 19, and 23d sections. By the COURT. The motion to set aside the levy, was addressed to the sound discretion of the court below. They were at liberty to grant or reject it. If they were satisfied that the property was protected from execution, they had power to set the levy aside, but if they entertained doubts on that question, or on any connected with the subject, it was their prudent course to overrule the motion, and leave the party to his remedy by suit. If the court had been satisfied, which seems to have been the case, that the property was exempt, yet they might have believ. ed, from other circumstances, that it was not prudent to decide the case in a summary way, on exparte testimony. If the applicant was injured, he had a remedy by suit and it was discretionary with the court under all the circumstances of the case, whether they would leave him to that remedy, or relieve him on his motion. Other persons were also concerned, whose rights the court were bound to respect, and whose safety might have required time, and an investigation before a jury. But we disclaim the right of controlling the discretion of the court of Common Pleas, in a case like this. Independent of these considerations, it does not appear, that the Common Pleas have done any act of which the plaintiff complains, and which this court can reverse. They have refused to make an order. If they were bound to make that order, the remedy of the party injured is not by certiorari. WILSON v. APPLE. JUDGES BURNET AND SHERMAN. 1827. In slander the defendants may give in evidence in mitigation of damages, facts which do not amount to a justification. This was an action of slander. The words laid in the declaration are: you are a thief: you have stolen geese. The defendant pleaded] the general issue, and at the trial, offered to prove, in mitigation of damage, that the plaintiff had driven away from one Benjamin Wilson, a flock of geese belonging to the said Wilson. This evidence was objected to, and overruled. A bill of exceptions was taken, and a writ of error brought to reverse the judgment. Moorhead, for plaintiff. By the COURT. Although the evidence rejected, does dot seem to be very material, yet, as the fact offered to be proved, might, at the time of the speaking of the words, have had some influence in misleading the defendant, he had a right to prove it, for the purpose of reducing the malice. The one goes There is a difference between a justification and an excuse. to the right of recovery, the other, to the amount to be recovered. For the purpose of showing malice, the plaintiff may prove the speaking of words not charged, if they be not actionable, and with a view of extenuating malice, the defendant may prove, under the general issue, any circumstances connected with the transaction, tending to show, that he had probable ground for believing the truth of the words. In estimating the damage, the degree of malice is always to be considered. Any circumstance, therefore, tending to show, that the defendant spoke the words, under a mistake, or that he had some reason to believe they were true, is entitled to consideration, and is proper evidence to be received in mitigation. What effect this evidence might have, we know not, nor is it necessary to know. We are satisfied it was legal, and that the defendant had a right to use it, for the purpose for which it was offered. The judgment, therefore, must be reversed, and the cause remanded for fur. ther proceedings. INMAN v. JENKINS. JUDGES HITCHCOCK AND BURNET. 1827. A former recovery cannot be proved by parol. A former recovery cannot be given in evidence under the general issue of non-assumpsit. This case was brought up by writ of error. It appeared, from the record, that the plaintiff below, commenced his action as assignee of a promissory note, before a justice of the peace. The cause was appealed to the Common Pleas. The plaintiff declared in the common form, and the defendant pleaded the general issue, without notice. At the trial, the defendant attempted to prove a former recovery, and for that purpose, offered parol testimony to establish the following facts: that before the commencement of the present suit, an action had been brought before a justice of the peace, and a judgment rendered on the same note, and that the docket of the magistrate containing the judgment, had been lost or mislaid. The evidence was objected to, overruled, and a bill of exceptions taken. The error relied on, was the rejection of the evidence, stated in the bill. Thomas, on the part of the plaintiff. By the COURT. sons. The evidence offered in the court below, was properly rejected, for two rea. First: it was not competent for the defendant to prove a former recovery by parol. The circumstance stated, in relation to the loss of the docket, does not take the case out of the general rule. The objection to that kind of testimony, and the uncertainty and danger to be apprehended from it, is still the The docket might have been lost or mislaid by accident; or, it might have been put out of the way, by design, to lay the foundation for parol testimony. In either case, the consequences are the same. same. The evidence is not the best the nature of the case admits of; nor is it such as the law requires. Salutary rules must not be dispensed with, because cases may arise in which they are found to be inconvenient. But, independent of this ground, we are of opinion, that by our practice act, this defence could not be set up, under the general issue, without a notice. Although it has been considered by this court, that the act does not require a notice of every matter, which, if specially pleaded, would be a good bar; yet we think the defence attempted in this case, does require it. Such has been the practice, and we do not recollect a case, in which a former recovery has been proved, under the general issue, without a notice. Judgment affirmed. LESSEE OF MATTHEWS v. THOMPSON, ET AL. The Five Points. The defendants relied on a title derived from a sheriff's deed. It appeared, that in the year Matthews voluntarily confessed a judgment, in good faith on the appearance docket of the court of Common Pleas, for the county of Belmont, which referred to a prior judgment against the plaintiffs, in the Supreme Court, for a debt for which they were bound as the sureties of Matthews. The judgment so confessed, was entered without process, or pleadings, and it was made a question, whether it had been entered in term time, or in vacation. The execution on this judgment, referred also to the judgment in the Supreme Court. The levy returned by the sheriff, was on one hundred acres of land, in section four, town. seven, range four, without further description. The deed purported to convey to the purchaser, all the right of the defendant, in a particular tract, within the section, which it was insisted, contained more than a hundred acres. There was also, a want of formality in the proceedings gene rally. The deed offered in evidence by the defendant, was objected to, on the ground, that the judgment, execution, levy, and deed, were all illegal and void. The following points were resolved by the court, and the cause was sent back to the county of Belmont, for trial, at the next term: First: These proceedings took place at an early period; before any system of practice had been established by statute, or by rules adopted for that purpose. The court that ordered the judgment, had jurisdiction of the subject matter, and the officers had power to perform the acts which they did. It would, therefore, be unreasonable, to expect the same regularity and technical precision, which would be required at the present day, and the proceedings ought to be viewed with an indulgent eye. Second: The objection to the want of process and pleadings, cannot be sustained. Judgments confessed in person, or by power of attorney, in open court, are valid without process; and as an issue is not required in such cases, the pleadings may be dispensed with. It is, however, necessary that the judgment should be entered in term time, which fact may be ascertained, by inspecting the docket and the entry. Third: The execution is certainly informal. It ought not to have referred to the judgment in the Supreme Court; but we are of opinion, that the words Supreme Court, may be stricken out, as surplussage, and the writ will then contain the substance of a good execution. Fourth: The levy endorsed on the execution, is defective. It is stated to have been made on one hundred acres of land, in section, four, town. seven, range four, with no further description. The return ought to have been so specific, as to enable the purchaser to ascertain the land which he purchased, with certainty. This defect, however, may be supplied by parol testimony. Fifth The variance between the levy and the description in the deed, may also be explained by parol. If the levy was actually made on the tract contained within the boundaries set out by the deed, and that fact was known and understood, at the time of the sale, no injustice has been done. An innocent purchaser, under such circumstances, ought not to suffer, by the careless manner in which the officer has stated his proceeding, if in point of fact, they have been substantially correct. NOTE. At the next term of the court in Belmont, the cause stood for trial, but the counsel for the plaintiff entered a discontinuance. LONG v. HITCHCOCK. JUDGES BURNET AND SHERMAN. 1827. In slander, the death of the defendant, abates the suit. This was an action of slander, in which the plaintiff obtained a verdict and judgment in the Common Pleas. The defendant gave notice of an appeal, and perfected the appeal bond within the time directed by the statute, and died before the return of the transcript to this Court. Tracy, for the plaintiff. By the COURT. The cases cited in support of the motion are not applicable. There is no similarity between the appeals to which they refer, and the appeal given by our statute. The defendant, in this case, had perfected his appeal, before his death. When that was done, the verdict and judgment were vacated, and the cause was considered as transferred to this court, for trial on its merits. The death of the party, under these circumstances, produced the same effect, as if the verdict had been set aside, on motion in the court below, and a new trial granted; in which case there is no doubt, but that the suit must have abated by the subsequent death of the defendant. If the defendant had died after the notice, and before the appeal was perfected; or if the appeal had been irregularly taken, the verdict and judgment would have remained in force, and if a transcript, in such a case, had been sent here, the motion might have been proper. But the case now stands, as if there had been no trial, and as the cause of action does not survive, at common law, and is not saved by the statute to prevent the abatement of suits, the motion cannot be granted Suit abated. BROWN v. BRABHAM, ET AL. JUDGES HITCHCOCK AND BURNET. 1827. Payment. This bill was filed for the purpose of compelling payment of a balance claimed to be due, on the partnership accounts between the late firms of Sutherland and Brown, and of McCullom, Butler and Landon. The account of Sutherland and Brown, on the dissolution of their partnership, had been assigned to Brown. A settlement was afterwards had between Brown and McCullom, by which the balance due to the former, from the firm of |