#### HALL *v.*BLAKE.

Special contract — common counts — non suit — judgment reserving rights as in case oFnon suit* is erroneous — division of costs on error — court giving such judgment as the court below ought to have done.

Where the plaintiff declared on the money counts in assumpsit, and proved that he purchased of the defendant his improvements on two quarters of congress land, held by entry and certificate, and paid for them, and afterwards the defendant refused to deliver the certificate, held that he could not recover on the common counts because of the special contract, part performed, and no attempt to put an end to it.

Where the court instruct the jury to find against the plaintiff as in case of non suit, the court of eiror will hold it a non suit.

Where judgment is rendered for the defendant for costs *i*saving and reserving by consent of parties, his rights as in case of non suit,’ such judgment is erroneous and will be reversed, but the court will render a judgment of non suit and leave each party to pay half of the costs on error.

Error to the Court of Common Pleas. The record shows that the plaintiff originally brought suit before a justice of the peace, which was brought by appeal into the Common Pleas. The plaintiff declared in assumpsit on the common money counts. Issue was taken upon non assumpsit, and also upon non assumpsit infra sex annos. The bill of exceptions sets forth that on trial, one witness *testified*that in 1816 or 17, Blake sold to Hale an improvement on *490two quarters of land, one of which he had entered at the land office, paid the *entrance*money, and obtained his certificate, but the land had been forfeited by lapse of time. The other quarter remained in the United States. Blake gave his note for three hundred bushels of corn, the agreed price for the improvements, which had been paid. Another witness testified that Hale went into possession of the improvement. The certificate from the United States was * not delivered, but Blake said Hale could have it when he called for it. He afterwards called, and Blake said it had been sent to Chillicotho and lost, but if found again, he might have it, or the land should be laid on,for itwould be hard he shouldlose the whole, &c. The defendant then moved the court to instruct the jury the evidence was *insufficient*to sustain the action, which was done. That is now assigned for error. Tjie *record*showed that the defendant moved the court to instruct the jury *to find for the defendant, as in case of non suit,*which was done, and the jury found so, on which judgment was rendered for the defendant for costs,4 *saving and reserving by consent of parties, his rights as in case of non*suit.’

*Johnson*and Brazee, for the plaintiff in error.

*Clough,*contra.

By the Court.

If it was a *non suit*that was moved for and ordered, it was properly moved and ordered, because of the failure of the proof. The declaration contains only the common counts— the contract was special, and had been *part performed.*No step had been taken to *abandon*or put an end to it, and recover back the money paid; so far from it, the plaintiff held on to the contract, and the suif was to recover damages for its non performance. It was, in fact, a suit on the contract, which was a subsisting one, and conferred no right to recover on the common counts. The record leaves it doubtful whether a non suit was ordered. We incline to construe it a *non suit.*The finding of the jury was improper; they should have been discharged. We reverse the proceedings as to all after the motion, but the costs; and under the law give judgment of non suit, leaving each party to pay half the costs on error.