2. Courts have complete power over their
own judginents and proceedings in term,
during which they may alter or correct
them; and whether they may set aside
judgment by default, to receive other plea
than one to the merits, is also matter of
discretion. Acre v. Ross, Adm'r.
288
3. The act of 1819 does not divest the courts
of law and equity in this State, of a gen-
eral superintending control over the plead-
ings and proceedings therein; they may
set aside office judgments, whether of de-
fault or non-suit, upon good cause shewn
at the succeeding term, even after such
judgments have been perfected.
1. The authority conferred by the statute on
judges of the county courts, to grant writs
of certiorari and supersedeas, is given only
for the purpose of removing a cause from
a justice's jurisdiction, that the party com-
plaining, may have a trial de novo.-Boyd
v. Woodfin.
1. Where a lesse purchases the fee and ob-
tains a conveyance, which is silent as to
the rent, it operates an extinguishment of
the rent, for the remainder of the term.-
Martin, Bradly & Co. v. Searcy. 50 2. And such authority to supersede execu-
2. And the case is the same, where the ven-
dor had himself, pending the lease, pur-
chased the fee of the lessor, who was the
tions from their own courts, cannot be ex-
tended to supersede perpetually, those is-
sued by a justice of the peace.
original owner; and with it, a note given 3. If a decree or order be made unadvisedly
by the lessee, for the rent, and afterwards
sold the fee to the lessee.
by the county court, it will continue opera-
tive, until vacated by a higher tribunal;
but it does not necessarily follow, from
such order or decree being a record, that
execution may issue to compel its satisfac-
tion; this depending upon the extent of
powers and manner of organization of the
court rendering it.-Morrison, Adm'r v.
Morrison.
1. In a suit by garnishment, judgment can-
not be rendered against a garnishee for
1. The Circuit court has exclusive jurisdic-
tion as to the sale of real property, levied
on in virtue of executions, granted by a
justice of the peace. -M'Daniel v. Moody.
314
with the addition of interest it amounts to
more than fifty dollars, the Circ it court
has jurisdiction of the demand.-Hogan v.
Odam and Odam.
the costs of the original suit. - Witherspoon 2. Where a debt is under fisty dollars, but
v. Barber.
335
2. The certificate of the clerk, below, au-
thenticating the record, is sufficient for
this purpose, bat the plaintiff cannot be
allowed the costs of the record. - Thacker
v. Myriek.
1. A court may lawfully alter or correct a
2. Where A., under covenant, sold land to B. for a sum cercain, and B. agreed to pay one half thereof on the first day of Janu
property might be redeemed, and when redeemed it should belong to the son, as a gift from his father: Held. that the delivery to the creditor, was a sufficient delivery to the son, to constitute a valid gift by parol, and that when redeemed, the property belonged to the son.-Smith v. Wig
ary thereafter, on or before which day A. 2. That the father, having no interest, was
covenanted to give him possession, and the other half thereof on the subsequent January, at which time A. further covenanted to make B. valid titles.-Held, that these are mutual and independent covenants. Weaver, Adm'or v. Childress.
a competent witness to establish the agreement in an action by the son against the ib.
3. That a sufficient amount of hire received by the creditor, redeemed the slave under the contract.
3. And, in a suit brought by A.. after the time he was to make titles had elapsed, to recover the purchase money of B. who is presumed to be in possession, an aver
4. Where a conveyance is made to hinder or delay a creditor in the collection of his debt, it is void as against the creditor, although on valuable consideration.-Bozman et al v. Draughan, Ex'r.
readiness to convey is surplusage.
lien on the defendants property by suing out executions, returnable to successive terms, he cannot complain of another, more vigilant creditor, who, by an attachment, under circumstances warranting it, may acquire a preference, -Cary v. Gregg.
See Principal and surety, 1. Tities to land, 2. 3. 4.
ment in the declaration, of A's ability and 5. If a judgment creditor fail to continue his
4. In an action of covenant a plea of payment or of covenants performed, does not admit the deed, but the plaintiff must prove his cause of action, as if no plea, or negative pleas only were filed.-Bryant v. J. & T. Simpson.
DECLARATION.
See I, Pleading.
Practice, 29.
DELIVERY OF POSSESSION. 1. A debtor agreed with a creditor, that a slaye should be sold at a constable's sale, and purchased by the creditor; that the property might be redeemed, and when redeemed, it should belong to the son, as a gift from his father: -Held, that the delivery to the creditor was a sufficient delivery to the son, to constitute a valid gift by parol, and that, when redeemed, the property belonged to the son.-Smith v. Wiggins. 221
2. Delivery of possession to the purchaser of land, is deemed an act equivalent to registration of the title deed, and should put every person upon the enquiry as to the title.-Morgan et al. v. Morgan et al. 383
DEMURRER.
Sce Chancery, &c. 5.
Practice, 5. 18. 22. 23. 24. 31.
Appeal from Justice. 3.
Replication, 2.
public lands, transmitted by the surveyor
general to the several land offices in the
districts where the lands are sold, are not
admissible, as evidence. Hamner v. Ed-
dins.
192
6. A statute of another State may be proved
by an exemplification under the great seal
of the State. - Wilson v. Walker.
7. The seal should be affixed by the pe son to
whom the custody or use of it has been le-
gally confided, expressive of the object for
which it is used.
See Certificate, 4.
Authentication, 1. 2.
II. PUBLIC WRITINGS NOT RE-
CORDS.
1. The certificate of the clerk of the Su-
preme court, transmitted to the court be-
low, certifying the reversal of a judgment-
of the Circuit court, is not sufficient evi-
dence to prove an averment in a plea that
a judgment has been reversed. A trans-
cript of the proceedings in the supreme
court, duly certified must be produced.-
Draughan v. Tombeckbee Bank.
2. Where a plaintiff relies on documentary
proof of title, a complete title must be
shewn, and if a material link be wanting
his documentary proof should be exclud-
ed from the jury. -Jinkins v. Nod.
3. Where the sheriff gives an official receipt
to the defendant, it is good evidence of
payment, though he fail to make return of
it, and although a writ of error be sued out
before the amount is paid over to the plain-
tiff. Sanders and Fenwick v. Rires. 109
IV, PAROL EVIDENCE.
1. The statements of an agent, made sub-
sequently to the contract, are not evidence
against the principal: He must be exam-
ined as a witness. - Betts v. Huntsv. Bk. 18
2 Where a note has been executed, payable
to certain commissioners, parol evidence
is admissible to shew, that the plaintiffs
were the persons to whom the promise
was made, and it is not necessary to pro-
duce the minutes of the company for
whom the commissioners act, to shew
that they are duly elected such commis-
sioners, where no fraud is alleged.-Mun-
dine v. Crenshare.
V. PROOF IN PARTICULAR ISSUES.
1. No previous conviction is necessary to re-
cover the penalty given by the statute of
1811, for marking unmarked bogs, &c.;
proof of the commission of the offence up-
on the tuial is sufficient.-Reigh v. Spann.
100
2. The delivery of an execution to the sher-
iff, may be proved by a memorandum, on
the execution docket, and the oath of
the clerk, that it was delivered in conform-
ity thereto, without the production of the
writ, or notice to produce it.-Neale et al. v.
3. The court will presume the proper evi-
dence was given in the court below, unless
the bill of exceptions shows the reverse.
ib.
4. Wlere a plaintiff fails in proving a spe-
cial contract, as laid, but proves the per-
formance of one different, he may still re-
cover. under the common counts in cer-
tain cases.-M.Millian v. Wallace. 185
5. The certificate of the clerk of the Su-
preme court, transmitted to the court be-
low, certifying the reversal of a judgment
of the Circuit court, is not sufficient evi-
dence to prove an averment in a plea that
a judgment has been reversed. Atrans-
cript of the proceedings in the Supreme
court, duly certified must be produced.-
Draughan v. Tombeckbee Bank.
See Scieri facias, 1.
IV, Parol Evidence, 5.
Executors and Administrators, 6.
See Indorser, 11.
II, Pleas 4.
Construction of statutes, 9.
VI. COMPETENCY OF WITNESS.
1. The father, having no interest, is a com-
petent witness to establish the agreement
in an action by the son against the credit-
or.-Smith v. Wiggins.
1. A certified copy of a deed of conveyance
is not admissible evidence, without first
satisfactorily accounting for the absence
of the original.-Sommervile v. Stephenson
& Johnson.
2. A copy of a contract for the sale of lands,
certified by the Secretary of the Treasury,
under his hand, and the seal of the depart-
ment, as being a true copy from the records
of his office, is admissible as evidence.-
Jinkins v. Noel.
3 Evidence of a parol agreement to extend
the day of payment of a promissory note,
when made after the making of the note,
is admissible.-Ferguson v. Hill. 485
Sec Authentication, 1. 2.
Records, 2.
Parol Evidence, 6.
Indorser, 11.
VIII. LEGAL PRESUMPTION.
1. The common law will be presumed to go-
vern in our sister States, unless the contra-
ry be shewn.-Goodman v. Griffin. 160
V. Proof in particular issues, 3.
1. Where a term is permitted to elapse he-
tween the terms, to which an original
and alias execution are returnable, the is-
suance of a ca sa to the intervening term,
will not continue a lien on property creat-
ed by the former execution.-Caryv. Gregg.
433
2. A plaintiff may sue out an alias fi. fa.
without obstructing his right to a ca. sa.
during the time the former may be in the
hands of the officer.
See Construction of statutes, 6.
V, Proof in particular issues, 3.
County court, 3.
EXECUTORS & ADMINISTRATORS-
1. Where there are two executors, to make
them parties defendant to a cause, process
1. A. received cotton of B., made an ad-
vance on it, and agreed to ship it to New
Orleans or New York, and have it sold
for the best price it would bring; A. to
have the entire control of it, and the pro-
ceeds to be applied to refund the advance.
In New Orleans, when there, it would
have produced enough to pay the debt.-
A. did not sell it there, but reshipped it to
New York, where it produced less: Held,
that A. was not bound for the loss, having
acted fairly, Betts v. Huntsville Bank. 18
See Agent, 1.
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1. On an attachment against a non-resident,
a garnishee failed to auswer at the return
term, and no proceedings were then had
as to him, but an order of publication was
made as to the defendant in attachment.
At the next term, a judgment by default
nisi was taken against the garnishee:
held, that this was regular, and that there
was no discontinuance as to the garnishee.
Robinson and Davenport v. Starr.
2. A proceeding by garnishment is a suit,
and a justice cannot render judgment
therein, against the garnishee, for a sum
beyond his jurisdiction, although it may
be founded on several judgments against
the original defendant.-Witherspoon v.
Barber.
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