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AMENDMENTS, ERRORS, JEOFAILS,-APPEALS.

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15. Judgment for damages sustained, although no damage claimed in the writ, the defect being amendable, will be considered as amended.

Boddie v. Ely, 3 S. 182. 16. Clerical mistakes apparent on the record, may be amended in the court below on motion, and the supreme court will correct such mistakes at the costs of plaintiff in error. Wade v. Kelly & Hutchinson, 2 S. 443. 17. The record recited that C. was security on an appeal, but the bond on file showed that one P. was the security. The mistake may be corrected by reference to the bond and judgment rendered against the party.

Grant & Connor v. Petty Bone, 2 S. 445. 18. The omission to set forth the record and judgment upon which scire *facias is founded prout patet per recordium is cured by statute 1824. Toulmin & Bennett v. Laidlaw, 3 S. & P. 220.

19. A declaration appearing in a record which shews an order for amendment, and a judgment, the declaration will be presumed to have been amended although it purported to be the original filed, and in such case defendant cannot object that a new declaration has not been drawn out.

Watkins v. Canterberry, 4 P. 415. Kennedy v. Dear, 4 P. 423. 20. Judgment below being rendered by nil decit for a less sum than is shown to be due by the record, on a writ of error it may be corrected and rendered for the proper amount at the costs of the appellant, by reference to the indorsement of the writ. Mason v. Smith, et al. 1 S. 275.

See Costs. Errors. Appeals. Scire Facias.

APPEALS.

I. WHEN AN APPEAL WILL LIE.

II. APPEALS FROM JUSTICES-HOW TRIED.

III. WHO MAY TAKE AN APPEAL, TIME, NOTICE, BOND AND JUDGMENT.
IV. DAMAGES ON APPEAL, RETURN OF CONSTABLE.

I. When an Appeal will lie.

1. Appeal will not lie to the supreme court in a criminal case.

Humphrey v. State, A. R. 64.

2. Nor from an order dissolving an injunction.

Glover v. Robinson, A. R. 101.

II. Appeals from Justices-how tried.

3. On appeals from Justices, cases shall be tried de novo according to their justice and equity, without any regard to any defect in the warrant, capias, or other proceedings. Technical nicety and formal declarations are not required. Perry v. Brown, A. Ř. 57. Gayle v. Turner, A. R. 204. Harrison v. Dannully, 5 P. 213.

Spann v. Boyd, 2 S. 480.
Murf v. Harding, 6 P. 121.

Rutledge v. Rutledge, 2 S. 400.

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4. On appeals from justices, the same strictness is not necessary as in other cases; a party should not be driven to his demurrer, it being the duty of the court to expunge any plea not presenting issuable matter, and to direct proper issues. Morrison, admr. v. Morrison, 3 S. 444. 5. Cases carried from justices into the circuit or county court by certiorari or appeal, are triable de novo on their merits and equity, and a payment made after rendition of judgment, may be pleaded without a special plea puis darrein Hagen v. Thompson, 2 P. 48.

continuance.

6. The statute requiring appeals to be tried on their justice and equity, does not authorize the appellate court in overlooking assumptions of power by the justice, or a total departure from the ordinary course of proceedings as prescribed by law. Hemphill et al. v. Coates, 4 S. & P. 125.

7. Nor can appellate court amend the proceedings so as to cure a misjoinder of parties. Smith & Hill v. Cobb, 1 S. 62.

3. Nor can parties be changed or others substituted. Bettis v. Nicholson, 1 S. 349. Moffit & Singleton v. Woolridge 3 S. 322.

9. A discontinuance may be entered after an appeal, as to a joint defendant not served with process; but a discontinuance as to one who is served will operate a discontinuance as to all. Wade et al. v. Robinson, 1 S. 423.

10. Whenever the court below would amend upon motion, the court will consider it as done, if matter sufficient to amend by, appear upon the record. Thompson v. Pierce, 3 S. 427.

11. On judgment in debt under the statute 1811, for marking hogs, it cannot be objected that the justice did not record a formal conviction and certify the evidence, as the trial is de novo. Reagh v. Spann, 3 S. 100.

12. When the sum is over $20 on appeal, a declaration or statement must be filed. Roden et al. v. Roland, 1 S. 266. Gayle v. Turner, A. R. 204. 13. But the declaration or statement is not subject to the technical rules of pleading; so that a venue need not be stated or any thing more than a cause of action in general terms. Hanks v. Hinson & Patterson, 4 P. 509.

III. Who may Appeal, Time, Notice, Bond and Judgment.

14. When an action is brought against several defendants in a justices court, one of them without the concurrence of the rest may prosecute an appeal. Craig et al. v. Atwood, I S. & P. 86. 15. The appellate court will not presume that an appeal on a judgment in attachment has been taken after five days, merely on its appearing that the appeal bond was executed after that period; and an appeal bond will be presumptive evidence that judgment was rendered.

Johnson v. Hale, 3 S. & P. 33. McAlpin & Read v. Pool, A. R. 316. 16. Appellant cannot at the first term take judgment without showing that there was notice of the appeal, and a judgment of non pros, when there was no notice, is error. Wiggins v. Perryman, 4 S. & P. 94. Bettis v. Nicholson, 1 S. 349.

17. When there is a deficient appeal bond, advantage must be taken of the defect at the return term. Jenkins v. McCauley, 1 S. 61. Payne v. Martin, 1 S. 407.

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18. If no sum be named as penalty in the appeal bond, the appeal will be dismissed. Henry v. Gamble, A. R. 6. 19. If improperly taken by justice without fault of the appellant, he may give a new bond in court; but if there be no bond the appeal may at any time be dismissed. Payne v. Martin, 1 S. 407.

20. Bond may be sufficient though not signed by the parties appellant; but if the party to whom it is payable dies, it is void, and no judgment can be rendered thereon. Roden v. Roland, 1 S. 266. Frierson & Shortridge v. Blakesley, 3 S. 267. 21: Bond may be executed at any time before the issuance of the execution, if appeal be taken within five days after the rendition of the judgment. Johnson v. Hale, 3 S. & P. 33.

22. Appeal on judgment founded on an unliquidated demand, judgment by default final cannot be rendered; but otherwise "on a writing ascertaining the sum sued for," as there the intervention of a jury is not necessary by the Martin v. Price, A. R. 68. Bevin v. Goodman, A. R. 90.

statute.

23. The statute 1826, by which the supreme court is authorised to render judgment against securities in an appeal bond, does not authorise the circuit courts to do so on appeals from the county court. The act does not alter the mode of proceeding in such cases.

Ward et al. v. Alexander & Bills, 1 S. 382. 24. Judgment on appeal will not be reversed because the pleadings are imperfect or in short. Clark v. Bostick, 2 S. & P. 266.

IV. Dumages on Appeal, Return of Constable.

25. On all appeals since the statute 1820, where judgment is affirmed, 10 per cent allowed as damages. Hart v. Judson, A. R. 135. 26. Objection to the return of the warrant cannot be made unless it has been taken before the justice, and on appeal the constable may be allowed to amend it. Needham v. Newsome, A. R. 407.

See Costs. Supreme Court.

APPEARANCE.

I. WHAT CONSTITUTES AN APPEARANCE.

II. THE EFFect of an apPEARANCE.

I. What constitutes an Appearance.

1. Entry of the name of defendant's attorney on the docket is an appearance, and subjects the party to a judgment.

Cain v. Sullivan, et al. A. R. 31. Bradford et al. v. Stewart, A. R. 44. 2. Writ issued against three, served on two, declaration and judgment against three-the record reciting that "the defendants by their attorney waived their plea," held that this was an appearance only for those who were served. Williams et al. v. Lewis, 2 S. 41. Brown v. Simpsons, surv. 3 S. 331.

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V.

Wm. Nabors

3. The following entry on the docket, is not a compliance with the rule of court; and is no appearance, nor is the giving of a replevy bond, in Detinue, nor the filing of a plea in

abatement.*

Mardis.

V.

Saml. Nabors.

Detinue.

Nabors v. Nabors, 2 P. 162.

4. When the leading process in a cause against several defendants did not appear to have been executed against all, but the record stated that all the defendants appeared by counsel, judgment against all was not error. Gilbert v. Lane, 3 P. 267.

II. The effect of an Appearance.

5. Appearing to move to quash, does not cure any defects in an attachment, nor will a motion to dismiss be construed into an appearance.

Wilson v. Outlaw, A. R. 196.

Lecatt v. Sallee, 1 P. 287.

6. Omission of entry of continuance in the record is cured by subsequent appearance of the party. Myrick v. Chamberlain, A. R. 357.

7. So also is a defect in the writ.

Mc Rory v. Vinzunt, A. R. 401.) See Brown v. Simpson, surv. 3 S. 331. Hamner v. Eddings, 3 S. 192.

8. After appearance, appellee cannot claim a dismissal of writ of error for want of citation. Naylor v. Phillips, 3 S. 210.

9. If defendant in scire facias appear and make default, this will not preclude him from taking advantage in error of a defect in the ca sa against one for whom he was bail; but he will not be permitted to controvert the service on him of the sci.fa. in the mode prescribed by law.

Brown v Simpson, surv. 3 S. 331. 10. When a party appears and pleads to a declaration filed against him and another jointly, he waives the want of service.

Chapman v. Arrington, 3 S. 480. 11. In proceedings under the statute to subject real estate to sale by creditor-appearance and plea, by guardian ad litem for minors interested in the land, will cure the omission of service of scire facias.

Whitaker v. Patton, 1 P. 9. 12. After entering an appearance and joining in a writ of error, it is too late for a party defendant to object that an administrator or executor has been made a party plaintiff to a writ of error.

Admr. Booker v. Hunt & Condry, 1 P. 26. 13. An appearance by defendant's counsel on the docket, is not such a waiver of writ of error as cures the want of it.

Koin v. McIlvaine & Collier, 1 P. 285. 14. The appearance of a party by attorney, obviates the necessity of the service of process, and after a discontinuance as to a defendant he can be again introduced into court by an appearance.

Wheeler et al. v. Bullard, 6 P. 352.

See Partners and Joint Owners.

* The plea was offered to be filed, but rejected.

ASSIGNMENT.

1. Although note is assigned without recourse, assignor is liable for fraudulent representations as to the solvency of the maker.

Harton v. Admr. of Wutt, A. R. 166. 2. After notice of assignment of a judgment-if defendant pays to plaintiff, equity will not protect him against an execution in favor of assignee. Holland & Haines v. Dale, A. R. 265. 3. A witness' certificate is transferable by delivery, and the holder may sue in the name of the witness for his use.

Finlay, et al. v. Wyser, 1 S. 23.

4. A replevy bond taken by Sheriff on attachment, may be assigned by him to plaintiff in attachment. Adkins et al. v. Allen, 1 S. 130. 5. Assignee of a bond transferred after due, takes it subject to all the equities. Teague v. Russel & Moore, 2 S. 420. 6. Judgments are assignable, and equity will protect them when there has been a valuable consideration-whether it has been made by parol or in writing. Brahan & Atwood v. Ragland, 3 S. 247.

7. Assignments of judgments pass only equitable interests not authorizing actions at law in the name of the assignee. Thus a judgment obtained by one and assigned by him, can only be sued on after his death, in the name of the representative, and not in that of the assignee.

Black admr. v. Everett, 5 S. & P. 60. 8. An assignment of land certificates not under seal, conveys no title to Ansley et al. v. Nolan, 6 P. 579. Thrash v. Johnson, 6 P. 459.

the lands.

See Bills and Notes. Debtor and Creditor.

ASSUMPSIT.

1. WHEN AN ACTION OF ASSUMPSIT WILL LIE.

II. ON AN EXPRESS PROMISE.

III. ASSUMPSIT ON AN IMPLIED PROMISE, AND THE GENERAL INDEBITATUS

ASSUMPSIT; AND WHERE THE PARTY MAY RECOVER ON AN IMPLIED PRO-
MISE, NOTWITHSTANDING A SPECIAL AGREEMENT-MONEY PAID; GOODS
SOLD; WORK AND LABOR; MONEY HAD AND RECEIVED.

1. When an action of Assumpsit will lie.

1. Assumpsit is the proper remedy to recover back money collected upon an execution issued on a judgment entered irregularly:

Judson v. Eslava, A. R. 71. 2. Or for money paid and received by public officers, who by mistake, have receipted for money never paid to him:

Smith admr. Taylor v. Seaton, A. R. 75.

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