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III. Bond und Securities.
49. Where appeal bond omits the penalty, appeal will be dismissed.
Harris v. Gamble, A. R. 6. 50. Writ of error bond conditioned for payment of “all damages and costs which may be awarded,” security not bound for original debt or principal judgment of the court below.
La Tourette v. Baird, A. R. 325. 51. If the condition of a bond for writ of error substantially conforms to the requisitions of the statute, it is sufficient, though the language be different, and the duties minutely detailed.
Saunders f. Fenwick v. Rives, 3 S. 109. 52. Where judgment is reversed and a corrected judgment is rendered in the appellate court, the secureties in the bond are liable for the amount of such corrected judgment.
Ibid. 53. Sureties to a writ of error bond executed on removing a case from one court to another, are discharged by the execution of a new writ of error bond by new surețies, taking the case from the latter to a higher tribunal.
Winston & Fenwick v. Rives, 4 S. & P. 269. 54. Where an injunction has been dissolved and bill dismissed, a writ of error bond on appeal from such decree does not revive or continue the injunction so as to supersede the execution at law; for the bond thus required by statute does not bind the security for the amount of the judgment enjoined in the event of an affirmance of the decree.
Garrow v. Carpenter & Hanrick, 4 S. & P. 336. 55. Statute 1815, authorizes supreme court to render judgment against the principal and surety in a writ of error bond in ase of a dismissal or discontinuance of a cause, but such judgment can only be rendered when the bond is given in conformity with the act, and when the directions of the statute have been departed from in setting out the proper obligees in the bond, there can be no judgment rendered against the sureties.
Brown et al. v. Lewis sur., et al. 6 P. 414. 56. By the term "adverse party,” contained in the statute 1814, is to be understood all who are made defendants in the supreme court: and therefore when the bond was executed in favor of one only of several defendants, no judgment could be rendered against the sureties.
Ibid. 57. It would seem that such bond is not void, but as it did not conform to the statute, could not be subjected to the statutory remedy, but must depend upon the action at common law.
IV. When the Writ Lies to what Judgment, and what Courts, and in
58. Writ of error will not be on order dissolving an injunction.
Russel, et al. v. Pierce, 7 P. 277. Adm'r. Johnson, v. Ex'r. Henry, A. R. 13, 101, 117, 184.) 59. A charge to the jury must apply to an issue to be subject to revision on writ of error.
Campbell v. Green, A. R. 30. 60. Refusal of new trial upon the ground that the verdict was contrary to the evidence, cannot be assigned as error, or reversed in the supreme court.
Phleming v. State, A. R. 43. 61. When no issue is made up, and verdict obtained, the court upon error assigned, reversed the judgment. Woods Adm'r. v. Wood, A. R. 45.
62. Motion to withdraw and substitute a plea in abatement is matter of discretio.?, and not assignable as error.
Gaines et al. v. Tombecbee Bank, A. R. 50.
Phleming v. State, A. R. 43. 63. It is error to render judgment nil dicit without disposing of a plea in abatement.
Collier v. Crawford for Bright, A. R. 360. 64. On non suit not voluntarily taken, a writ of error lies.
Smith Adm'r. Taylor v. Seaton, A. R. 75. 65. Writ of error on judgment confessed, judgment will be confirmed with damages.
McConneći v. White, A. R. 112. 66. Writ of error sued out before final judgment, dismissed.
Harris & Leland v. Kreps, A. R. 184.
. . } 67. Judgment by default, without declaration, is error.
Rankin v Crowell, A.R. 125. 68. Defendant in error produces a certificate which sets out a judgment below, plaintiff in error shows a transcript in the same cause in which there is an award but no judgment, the transcript disregarded, and judgment on the certificate affirmed.
Kennedy v. Harris, A. R. 135. 69. Writ of error lies on motion to quash an execution, and the appellate court will look back to the original judgment and quash the execution if not supported by it.
Creighton v. Denby, A. R. 250. 70. In assumpsit judgment by default, writ of enquiry, verdict as on a plea of not guilty, is not error, but cured by statute of Jeofails.
Kelly v. Owen, A. R. 252, 71. Writ of error lies on a judgment on suit commenced by original attachment.
Harris & Farrow v. Clapp, A. R. 528. 72. On writ of error from county to circuit court, unless the record show matter requiring trial by jury, circuit court may give final judgment-certiorari may be awarded returnable instanter and trial same term.
Lane v. Hickman, A. R. 411. 73. In assumpsit, when there was general issue and two special pleas, plaintiff cannot after verdict assign as error that the special pleas were not replied to
Malone v. Donally, A. R. 12.
Dade v. Adm’r. Buchanan, et al. A. R. 415. 74. Judgment as on demurrer, when the record shews no demurrer, is
Olds v. Sargent, 1 S. 37. 75. The imposing terms or granting leave to withdraw a demurrer and plea, is matter of discretion, and it is not error to grant such leave without
Martin, Adm'r v. Dortch, 1 S. 477. 76. A verdict finding damages on a count on the penalty of bond, there being no damages suggested on the roll, is erroneous.
Fuqua v. Stone, 1 S. 435. 77. Judgment taken for want of a plea, when one appears on the record is error, notwithstanding it recites that the defendant sayeth nothing in bar.
Thomas v. Brown, 1 S, 412. 78, Writ of error will not lie on a voluntary non-suit.
Cain v. Byrd, 1 P, 187. 79. Error to render judgment by default before declaration filed-judgment by default for want of a plea cannot be taken until three days after the time allowed for filing declaration, though the time may not continue so long.
McElroy v. Dwight
, 1 S. 149,
Rather v. Owen, 1 S. 38, 80. Judgment on demurrer, when record shews no demurrer, is error,
Olds v. Şargent, 1 S. 37.
81. Judgment for a sum greater than the damages laid, is error.
Derrik v, Jones, 1 S. 18.
Mc Whorter v. Sayre & Sayre, 2 S. 225., 82. In assumpsit, judgment by default for costs only and no damages, is
Pickens v. Hayden . Midiam, 2 S, 10. 83. When in open court it is consented that the papets shall be taken out by the judge, and a judgment rendered in vacation, it is a sufficient final judgment to sustain a writ of error.
King v. Greene, et al. 2 S. 133. 84. A defendant in a magistrate's court obtained an order for a writ of certiorari to remove the case into the county court, and filed the petition, fiat, and bond; the papers were handed in by the justice, but no writ of certiorari had issued after declaration; on motion of plaintiff the suit was dismissed because there was no writ of certiorari—held that this was error, and that a certiorari should issue if required by defendant in motion.
Farrar v. Foote, 2 S. 442. 85. Judgment on sci.fa. against obligor in an injunction bond will not be reversed for error, though the bond by statute, when forfeited, had of itself the form and effect of a judgment.
Boggs v. Bandy, 2 S. 459. 86. In the record there appeared a writ and a verdict, and judgment for plaintiff ;-clerk certified that at the trial the reading of the declaration was waived, and that afterwards it could not be found, no declaration, plea nor issue appeared in the transcript-held that the judgment was erroneous.
Oliver v. Judge, 2 S. 482. 87. A motion to strike out a plea is addressed to the discretion of the court, and cannot be assigned as error. Johnson, Adm'r. v. Wren, 2 S. 172.
88. When the court below has erred, but the record shows that on another ground the plaintiff is not entitled to recover, the court'will not reverse a judgment obtained by defendant below.
Ibid. 89. When an error was committed in the court below, but the appellant has suffered no injury thereby, the judgment will not be reversed.
McMillian v. Wallace, 3 S. 185. 90. Writ of error will lie on the overruling a motion to complete a judgment and have the amount, omitted by the clerk, inserted nunc pro tunc.
Wilkison v. Goldthwate, 1 S. & P. 159, 91. And also on the determination of a motion to quash an execution.
Tombecbee Bank v. Strong's Ex'r. 1 S. & P. 187. 92. Held not error that counsel, with the assent of the court, had a jury called back, and an erroneous charge in favor of such counsel retracted.
Smith v. Maxwell, I S. & P. 221. 93. Judgment by default before filing declaration, is error.
Masterton y. Beasely, 1 S. & P. 247. 94. Cases of a civil nature between the State and individuals, are removable of right into the supreme court by writ of error.
Callahan v. State, 2 S, & P. 379. 95. Writ of error lies upon the judgment of a circuit court dismissing a clerk from office.
1bid. 96. A judgment on demurrer will be sustained though the judge unnecessarily expresses an improper reason for the judgment.
Muson v. Craig, 2 S. & P. 389. 97. In cases where judgment and verdict are rendered against two defendants, only one having appeared and pled to the action, it is not error to have omitted the entry of judgment by default against the defendant who does not appear.
Brooks f. Brown v. Maltbie, 4 S. & P. 96. 98. Substantial defects in pleading are available in error though not ojected to in the court below, when declaration does not contain a substantial cause of action:
Rives & Mather v. McLosky & Hagan, 5 S. & P. 330. 99. No appeal or writ of error lies to the circuit court from a decision of the court of commissioners of revenue and roads on the establishment of a ferry.
Hicks v. Hall, 4 P. 178. 100. The submission of a legal question to a jury is error.
Pistole v. Street, 5 P. 64. 101. A writ of error will not lie to reverse the judgment of the court of commissioners of roads and revenue in relation to a refusal to lay out a road, although cases may arise in which an improper action of that court, working injury to an individual, might be controlled by a court of chancery.
Hill v. Bridges, 6 P. 197. 102. An error committed by a court cannot place a party prejudiced by it, in a situation less favorable to the attainment of speedy justice than if there had been no interruption in the regular progress of the cause, and a party will not be allowed to profit by an error occasioned by his own motion.
Evans v. Mott, et al. 7 P. 92. 103. A writ of error will not lie to reverse a decree in chancery for costs only, though if the decree be opened for investigation on other points it may be reformed also in the matter of costs.
Randolph v. Rosser, 7 P. 249.
V. Assignment of Errors; and Release of Errors.
104. The Supreme Court, will not notice any but the errors assigned.
Ripley v. Coolidge f. Bright, A. R. 11.
Lewis, adm, v. Lewis, A. R. 35. 105. Defendant demurs to declaration, and is sustained; plaintiff has leave to amend, he cannot assign error on the judgment on demurrer.
Mullens v. Cabiniss, A. R. 21,
Burk, A, R. 178. 106. Writ of error on decree in Chancery, plaintiff contined as in other cases to the errors assigned. Lewis, adm. v. F. Lewis. A. R.35.
107. That the petition and summons are defective in substance, is too general an assignment to be noticed.
Braham v. McRae, adm. A. R. 169. 108. After joinder in error, the court will not, unless required by the obvious justice of the case, grant leave to file additional assignments.
Myrick v. Chamberlain & Darling, A. R. 357. 109. Errors must be assigned on writ of error, or appear from decree in Chancery.
Glover v, Robinson, A. R. 101. 110. Errors, which are merely technical, must be assigned within three days, allowed for filing them, or an affirmance will be granted.
McDonald v. Elliot, 1 S. 219. 111. A party who has replied to a plea cannot assign for error, that the court refused to strike it out. It is waived.
Johnson, adm. v. Wren, 3 S, 172. 112. The Supreme Court not confined to a revision of the errors assigned, when the court below had no jurisdiction of the cause.
McDaniel v. Moody, 3 S. 314.
113. Before joinder in error, additional assignments are allowable of course, but after joinder, only such will be permitted to be filed as go to the merits, and then by the leave of the court.
Stowe v. Sewall, 3 S. & P. 67. 114. Release of error must be under seal.
Cotton v. Wilson, A. R. 118.
VI. Of the Bill of Exceptions. 115. Bill of exceptions, not under seal, will not be regarded as such, though the judge certifies that the facts therein set forth, are true.
Powers v. Wright, A. R. 66. 116. If bill of exceptions refers to a paper, and does not set it out or so describe it, as to leave no room for the clerk to make a mistake on the record, the court will not consider such paper as spread upon the record, or award a certiorari to bring up a copy.
Loony v. Bush, A. R. 413. 117. A bill of exceptions was signed with a blank space left for insertion of
copy of the note sued on and its indorsement. There being but one count in the declaration, describing the note to which the plea of payment was filed, the exception was held. Richardson v. Farnsworth, 1 S.55.
118. Exceptions not certified by presiding judge or noted in writing at time of trial, cannot be considered as on the record.
Tombecbee Bank v. Malone f. Co. 1 S. 269. 1:19. Bill of exceptions must be explicit in setting out the necessary
facts to show the error; and the court will not intend that there were other facts proved than those stated.
Keath v. Patton, 2 S. 38, 120. Bill of exceptions signed by the presiding judge, was presented, but the certified record containing one, which the judge stated to be the same one, none other can be received.
Lecatt v. Strang, 2 S. 230. 121. When the court refuses to sign a bill of exceptions, and the party wishes to establish the exceptions by proof under the statute, it must be done within the trial term, and on notice to the opposite party.
Perkins v. Harper, 2 S. 477, 122. If an exception is taken to the refusal of the court to instruct the jury, the bill of exceptions must contain so much of the evidence as to show that the instructions asked for arose out of the cause: but if instructions actually given by the court are excepted to, as mistaking the law, then no part of the testimony need be stated. Peden v. Moore, 1 S. & P. 71.
123. It appearing that improper testimony is admitted to go to the jury, the court will not presume the proof of circumstances which do not appear in the bill of exceptions, which would render such testimony legal.
Smith v. Maxwell, i S. & P. 221. 124. Errors in the decision and direction of the inferior court, can only be brought to notice by bill of exceptions, signed and sealed in the cause.
Rives & Mather v. McLosky & Hagun, 5 S. & P. 330. 125. Bill of exceptions must show affirmatively the existence of the error of which a party complains, and the Appellate Court will not presume facts which do not appear.
Johnson, sur. v. Ballew, adm. 2 P. 29. 126. The judgment of an inferior court will not, on a matter submitted for its inspection be reviewed, unless the hill of exceptions making that matter part of the case and bringing it to the view of the Appellate Court, has been regularly taken.
Turk v. Smith f. Co. 2 P. 155. 127. Whenever a judgment is sought to be reversed or a writ of exceptions quashed, for matters which are intrinsic to the cause and which appear