This was a prosecution for malicious trespass, commenced, in the Common Pleas Court. Trial and conviction. Appeal to the Circuit Court.

The prosecution was begun in January, 1853; the appeal taken in May, 1853; and the cause dismissed in September, 1853, by the Circuit Court. It appears, by a bill of exceptions, that at the latter date the prosecuting attorney moved to dismiss the appeal, which motion the Circuit Court overruled, and, upon the prosecutor’s refusal to try the case in any other manner than as upon error, on motion of defendant, dismissed the case.

The appeal should have been dismissed. Langdon v. Applegate, 5 Ind. R. 328.—Kennon v. Shull, 9 id. 154.

The judgment is reversed, &c.