commenced. The defendant had a right to a verdict on his plea of ne unques administrator, under which it might well have been shown that the plaintiff's letters had been revoked. 1 Saund. Pl. 1130. The plaintiff might have entered a non-suit, but it was an abuse of discretion for the court to discharge the jury without the consent of the defendant after the plaintiff had introduced testimony. During the progress of a trial a juror can be withdrawn only by consent. 2 Tidd's Pr. 785; 1

Arch. Pr. 195.

Under the statute (Dig., sec. 7, p. 92,) the administrator can become a party only by an order of court substituting him as such. In this case there is no record entry suggesting the death of the original plaintiff, or showing the appearance of the administrator.

The account sued upon is, in effect, for the use and services of horses, etc., and no evidence whatever was introduced to support such an account.

Mr. Chief Justice ENGLISH delivered the opinion of the court. Jacob W. Clark sued George W. Moore before a justice of the peace, upon an account, obtained judgment, and Moore appealed to the circuit court of Fulton county.

Clark died, his wife, Sarah, administered upon his estate, and the cause progressed in her name.

At the May term, 1859, the case was submitted to a jnry, the defendant's attorney notified the plaintiff's attorney that he would rely on the plea of ne unques administrator upon the trial. A witness was introduced by the plaintiff, who, after testifying in relation to the demand in controversy, stated that Mrs. Clark had recently intermarried with Archibald Estes, and that no one had been appointed administrator of her former husband in her stead. Whereupon, on motion of the plaintiff's attorney, the court permitted a juror to be withdrawn, and continued the case in order that an administrator de bonis non might be appointed and substituted as plaintiff.

At the November term following, Archibald Estes having in

the mean time been appointed administrator de bonis non of Clark's estate, appeared and prosecuted the case, and by consent of parties it was submitted to a jury, and verdict and judgment in his favor, as such administrator, for $81.

The defendant moved for a new trial, which was refused, and he excepted and appealed.

1. It is insisted for appellant that the account sued on was for horse hire; and that there was a total want of evidence to sustain it.

The account was evidently made out by an illiterate person, and very inartistically drawn. It is as follows:

"April 2d, 1857. George W. Moore Dr.

In account with Jacob W. Clark,

To the use and sarvis of 2 Horses and wagon and Horses from the 2. day of April to-till the first of October in said. year to Haul on my farm and to go to mill, and to go to Batesville, Haul Lumber, wood and do what riding I might want to do, for what I have paid to said George W. Moore for the work and use of said team, sum of eighty dollars, for which I claim judgment for the sum of eighty dollars, and damages to the amount of twenty dollars for onperformants of contract, damages at the discression of said court.

JACOB CLARK."

It was proven on the trial that in the spring of the year 1857, Clark purchased of Moore a tract of land, for which he gave him $400 in money, and a wagon and two horses; and Moore was to let him have the use and services of the wagon and horses from the 1st of April to the 1st of October, of the same year. At the time of the trade the wagon and horses were delivered to Moore, and afterwards Clark made a demand upon him for them, and he refused to let him have them. The services of the wagon and horses from the 1st of April to the 1st of October, 1857, were worth between $80 and $100.

It is manifest that the account sued on was not made out for horse hire merely, but for the value of the use and services of

the wagon and horses, for which Clark had contracted in the sale of the land to Moore, and of which he had been deprived, in violation of the contract. His right to recover was very well made out on the trial, and the objection to the account goes to its form rather than its substance. No doubt but Moore understood the nature of the demand, on seeing the account, and was not misled in preparing his defence.

2. It is assigned as a ground for a new trial, that the court erred in permitting a juror to be withdrawn, and the case continued, etc., at the May term, 1859.

To say nothing of the novelty of making an alleged irregularity, which occurred at a term of the court previous to that at which the trial was had, ground of the motion for a new trial, there was no error in the action of the court in the matter complained of.

Upon the trial it was made to appear that Mrs. Clark, in whose name the cause was progressing as administratrix of her deceased husband, the original plaintiff, had recently intermarried with Estes, and thereby ceased to be administratrix; whereupon, the court discharged the jury, and continued the cause, in order that an administrator de bonis non might be appointed, and substituted as plaintiff. It would have been irregular for the court to permit the trial to progress after it was made to appear that there was no one legally representing the estate of the deceased plaintiff. No judgment could properly have been given for or against the estate.

3. It is objected that there was no order of court substituting Estes as plaintiff.

It appears that after taking out letters of administration de bonis non, upon the estate of Clark, he appeared, at the term following, to prosecute the suit, it was entitled upon the record in his name, submitted to a jury, by consent of parties, admitted upon the trial that he was administrator de bonis non of Clark, and there was a judgment in his favor, as such, for the sum found by the jury to be due his estate.

Regularly, Estes should have produced his letters before the

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trial, and been substituted as plaintiff, by an order of court, (Gould's Dig. ch. 1, sec.) But we think the want of such formal order is no ground of reversal, after trial without objection, and judgment, etc., in his name as administrator, etc., as above stated.

The judgment must be affirmed.

Absent Mr. Justice FAIRCHILD.

THE STATE Vs. RHODA.

Cases may occur in which a crime may be committed on the boundary line between two counties; and it would be a narrow construction of the bill of rights, in relation to venue, to hold that the offender would not be subject to indictment at all. Where the boundary line between two counties has been surveyed and marked, and the proof in a criminal prosecution fails to establish in which county the offence was committed, no question is presented upon the provision of the statute in reference to uncertainty of boundaries: and the venue as charged, not been proven, no cause is shown for granting the state a new trial.

Appeal from Johnson Circuit Court.

Hon. J. M. WILSON, Circuit Judge.

HOLLOWELL, attorney general for the state.

Mr. Chief Justice ENGLISH delivered the opinion of the court.

Rhoda, and others, were indicted in the Circuit Court of Johnson county, for gaming. On the trial of Rhoda, Frazier, a witness for the state, testified that on the day charged in the indictment, he, Rhoda, and others, being together in Johnson county, went up to the head waters of Shoal creek, and under the mountain there, in the woods, played pocre for money, etc. That the place where they played cards was right about where the line runs, dividing the counties of Yell and Johnson. Witness had never helped survey the line, but that was where it was reputed to run-where he understood from the citizens it rin. That he was not certain whether the place where the parties played cards was in Johnson or in Yell county. He believed it uncertain in which county it was.

A. M. Ward, witness for defence, stated that he helped to survey the line between the counties of Yell and Johnson. That the line commenced at the mouth of Big Piney, and run due south until it struck the main divide between Shoal creek and Schikeilic, and thence in a westerly direction, with said. main diride, to the county line of Franklin county. Ilis impression was that all the waters of Shoal creek were in Johnson county, but he was not certain of that fact. The first named line may have run across below some of the head waters of shoal creek.

The attorney for the state asked the court to charge the jury: "1st. That if they believe from the evidence that defendant played a game of pocre at cards, and bet money on the game, etc., etc., and that said playing and betting were done and committed on the boundaries of the counties of Johnson and Yell, they should find the defendant guilty.

"2. That if the jury believed from the evidence that the defendant bet money on a game of pocre, which game was played at cards, etc., etc., and that it is uncertain where the boundary line between the counties of Johnson and Yell is, and if from the evidence, and from that cause, it is uncertain in which county the playing and betting were done, if done at all, they should find the defendant guilty.