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advantage of by pleading the pendency of the first suit in bar, to those subsequently pleaded. De Sylva v. Henry, 3 P, 21.

41. Writ must be executed and returned in the name of the sheriff. Land v. Patterson, A. R. 14.) Greenlee v. Briggs & McClure, A. R. 123. (

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42. Appearance may be made by entry of name of defendant's attorney on docket. Cain v. Sullivan & Co., A. R. 31. 43. Plea in abatement, verified by indorsement of writ.

Colliers v. Crawford, A. R. 100.

*44. Plea in abatement stricken out as frivolous, judgment should not be final, but that defendant answer over immediately.

Gibson v. Laughlin, A. R. 182.

45. Plea in abatement before default claimed is in time, and time of filing not to be determined by date of affidavit.

46. So of plea in bar.

Ellis v. Hickman, A. R. 394.
Malone v. Stud, A. R. 360.

47. Plea and demurrer to same count, demurrer disregarded.

Gayle v. Smith, A. R. 83. Taylor v. Rhea, A. R. 414.)

48. Demurrer though not sustainable must be disposed of.

Flournoy v. Childress & Hickman, A. R. 93. 49. Demurrer to plea in bar sustained-defendant not entitled to amend, or plead over without leave granted. Greening v. Brown, A. R. 353. 50. Filing the general issue is a waiver of a plea in abatement.

Wilson v. Oliver, 1 S. 46. 51. After the return term no exception can be taken for the want of an indorsement of the cause of action on a writ.

Tankersley v. Richardson, 2 S. 130. 52. A plea which states matter going to the gist of the action, though not formally and specifically stated, cannot be stricken out.

Morgan v. Rhodes, 1 S. 70. 53. A plea may be amended by leave of the court at any time before final trial, and after verdict and new trial granted.

Ibid.

Webster & Smith v. Wyser, et al. 1 S. 164. 54. Though it be a plea puis darrien continuance. 55. A plea appearing in the record, proper in form and substance, and regularly filed, must be disposed of legally, and if judgment be taken for want of a plea, when such an one appears, it is error, though the record recites that the defendant saith nothing in bar. Thomas v. Brown, 1 S. 412. 56. Imposing terms on granting leave to withdraw a demurrer and to plead, is matter of discretion, and it is not error to grant such leave without Morris, adm'r. v. Dortch, 1 S. 479.

costs.

ment.

57. To an original attachment, the defendant may plead in abatement, traversing the grounds of complaint relied on for the issuance of the attachBrown v. Massey, 3 S. 226. 58. Courts of law in the exercise of ligitimate and incidental powers, have authority to allow the set-off of one judgment against another, existing between the same parties in the same court.

Scott v. Rivers, 1 S. & P. 24. 59. A dismissal, as the term is used in modern practice, does not amount to a retraxit at common law. Bullock v. Perry, adm'r. 2 S. & P. 319. 60. The permission or refusal of leave to withdraw the general issue to plead in abatement, or demur, is discretionary with the court even in criminal cases. State v Williams, 3 S. 454. 61. Where a party appears and pleads to a declaration filed against him and another, jointly, it is immaterial whether or not it appears that the writ was served on him. Chapman v. Arrington, 3 S. 480.

62. A dismissal and a non suit are not equivalent to two non suits under the statute. Bullock v. Perry, ad'mr 2 S. & P. 319. 63. The principle which gives the right of demurrer to each of several counts, authorizes also a demurrer to each of several assignments of breaches upon a bond. Botts et al. v. Bridges, 4 P. 274. 64. Omission to make profert of a bond can only be reached by special demurrer. Ibid.

65. Under the rules of practice in this State the right of a defendant to crave oyer subsists whether profert be made or not.

Ibid,

II. Proceedings on the Trial, and subsequent thereto; Judgment, Verdict,

Execution, &c.

66. In an action of indorsee against indorser, if demand and notice be not proved, the court is bound if required, to non suit the plaintiff.

Ward v. Gifford, A. R. 5.

67. It is too late after verdict to take advantage of any want of technicality in setting out the contract, or of the want of damage in the declaration when the amount stated in the writ is sufficient to cover the amount of the verdict. Malone v. Donally, A. R. 13. Henry v. Whitlow, A. R. 16. J

68. Nor can a defendant after verdict take advantage of a defect in his own plea. 1bid. 69. Final judgment by default cannot be taken until after the expiration of six days. Rather v. Owen, 1 S. 38. Į Gwynn v. Weaver, 1 S. 219.

tion.

70. On complaint in the county court against guardian after plea to the merits and verdict and judgment against him, he cannot question the jurisdicRipitoe v. Hall, 1 S. 166. 71. After verdict and judgment, on the plea of not guilty, to the whole complaint, defendant cannot object that matters were tried by the jury which should have been determined by the court..

Ibid.

72. In rendering judgment nunc pro tunc, the court cannot resort to the record in a distinct suit, though referred to by the clerk to supply omissions. Draughan v. Tombecbee Bank, 1 S. 66. 73. When the pleadings are taken in short by consent, no advantage can be taken for informality in them after verdict. Words "replication and issue," will be held to apply to all the pleas.

Garrard v. Zachariah, 2 S. 410. 74. In debt, the pleadings being in short, the verdict found the issue for the plaintiff, and found damages, only omitting to mention the debt-held that this was sufficient.

Ibid.

75. The court will not scrutinize the record in cases of appeal so closely as in other cases; therefore when the declaration appeared to be as well against the security in the appeal as against the original debtor after verdict, both being in fact liable, the judgment will not be reversed for that cause. McGrew v. Adams & Elliott, 2 S. & P. 502. 76. The judgment of non pros is an exercise of discretion not reversible. McCrory v. Boyd, 3 S. 279. 77. Motions to set aside judgment during term in which they were perfected are addressed to the discretion of the court.

Wilson v. Torbert, 3 S. 296.

78. And whether they may set aside judgment to receive a plea not to the merits, is also discretionary.

Ibid.

79. Motions in court to credit an execution or enter satisfaction on judg ment must be preceded by notice to the opposite party.

Baylor v. McGregor & Darling, 1 S. & P. 158. 80. Held not error that counsel with the consent of the court, had a jury recalled, and an erroneous charge of the court retracted which was in favor of said counsel. Smith v. Maxwell, 1 S. & P. 221. 81. The time and manner of introducing and closing the evidence in a suit are necessarily within the judicial discretion of the presiding judge.

Hutchins v. Childress & Baker, 4 S. & P. 34.

82. Where a plea in abatement and demurrer thereto appear on the record, and a plea of not guilty and issue, to the same count; after verdict the plea in abatement and demurrer are to be considered as nullities.

Robertson v. Lea & Wife, 1 S. 141.

83. It is error to take judgment by default before filing declaration.

M'Elroy v. Dwight, 1 S. 149.

84. A judge presiding at a trial cannot be challenged for interest or bias. Lyon v. State Bank, 1 S. 442.

85. Under a consent made in open court, a judgment rendered by the judge as of the preceding term, and recorded, is sufficient to support a writ of error. King v. Green et al. 2 S. 133. 86. An execution cannot be quashed because more costs are charged than are due. The error can be corrected on motion to retax.

Anonymous, 2 S. 228. 87. The court may lawfully sum up the evidence to the jury, and instruct them hypothetically. Brandon v, Snows & Cunningham, 2 S. 255. 88. When a cause is on trial before the jury, the whole record is before them, whether read on the trial or not. Collier v. the State, 2 S. 388.

89. Where pleadings are taken in short, by consent, after verdict, no exception can be taken. The words "replication" and "issue," will be held to apply to all the pleas filed: Garrard v. Zachariah, 2 S. 410. 90. It is for the judge to determine on the admissibility of evidence, and for the jury to determine if it proves the facts charged.

Clifton v. Grayson, 2 S. 412. 91. A court may alter or correct a judgment during the same term when rendered. Neil et al v. Caldwell, 3 S. 134.

92. To a plea the plaintiff replied, and issue was joined at an after term; and while the issue was before the jury, but before their retirement, the court allowed the plaintiff to withdraw his replication, and to demur to the plea : held that the court might exercise such discretion.

Brown v Massey, 3 S. 226. 93. Where parties proceed to trial without a replication to a special plea in bar, and the matter of the replication is available under the general issue, the informality is presumed to have been waived by mutual assent, and the trial to have gone on to the merits. Bond v. Hills & Fay, 3 S. 283.

94. In setting aside a judgment by default any time during the term in which it is rendered, on good cause shewn, and permitting the defendant to plead the statute of limitations, there is no error.

Wilson v. Torbert, 3 S. 296. 95. Where the defendant demurs and pleads to the same part of the declaration, and the issues of fact are tried, he is presumed to have waived his demurrer. Morrison adm'r v. Morrison, 3 S. 444.

96. But the same strictness is not necsssary in cases of appeal, or certioruri from justices' judgments; nor is it correct practice to drive a party to his demurrer, it being the duty of the court in such cases, to expunge any plea not presenting issuable matter, and to direct proper issues.

Ibid.

97. If in entering a judgment, the clerk omits to insert the amount recovered, the judgment may be afterwards amended, and the amount inserted nunc pro tunc. Wilkerson v. Goldthwaite, I S. & P. 159.

98. It is in the power of a party applying for the charge of a court, to have it specifically applied to every point arising on the evidence; and where the charge is asked in such general manner, as that when given it may not be as explicit as the testimony would authorize: it is not a ground of reversal that the charge was too general.

Hunt & Norris v. Toulmin, 1 S. & P. 178. 99. Where the clerk in entering a judgment makes the entry in short, referring to another judgment, the entry of which is full and in proper form, such judgment will not be deemed perfect, so as to authorize issuance of execution thereon. Tombecbee Bank v. Strong's ex'rs. 1 S. & P. 187.

III. Practice in the Supreme Court-Assignment of Error-Bill of Excep tions-Transcript, &c.

100. Copy of bond inscribed in the transcript without oyer is no part of the record. Mullary v. Cuskaden, A. R. 21. 101. Assignment of mere technical errors made before motion for affirmance, but not within the three first days-judgment affirmed on motion. McDonald v. Elliot, 1 S. 219. 102. With the transcript of the proceedings at law, the clerk certifies a of a release of errors as written on a bill of chancery filed in the same court, for the purpose of obtaining an injunction; the release is part of the record, and judgment must be affirmed. Thompson v. Ayres, 1 S. 171. 103. Judgment by default, the transcript contains a bail bond but no writ. Judgment sustained. Guy v. Winston, 1 S. 149.

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104. The record contained three pleas, which were demurred to, but no disposition of them appeared, there was a trial on the merits, and motion in arrest of judgment. Held, that the motion in arrest, was an abandonment of the pleas. Davis v. Dickson 2 S. 370. 105. There being in the record a plea and demurrer thereto undisposed of, the cause must be remanded; and final judgment cannot be rendered in the Miller v. Pennington, 2 S. 399. supreme court. 106. By an agreement it was consented that the pleadings should be made up after trial, and a declaration appeared in the record which was insufficient. The court held, that the agreement cured all defects in the pleadings, and stood in lieu of the proper issue.

McGrew v. Adams & Elliot, 2 S. 502. 107. A judgment will be presumed to be in full force, though a writ of error be sued out, when the record shows no disposition of the writ. Gee, adm. v. Nicholson, 2 S. 512.

108. It will not be adjudged as a variance between a scire facias and a record that the record does not show the amount of costs recovered as averred in the scire facias. The allegation on the scire facias may be proved at the time of trial by the fee bill.

Sanders & Fenwick v. Reeves, 3 S. 109. 109. 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 below, obtained by defendant.

Johnson, udm. v. Wren, 3 S. 172.

110. Nor can appellee claim a dismissal of the writ of error, after offer

for writ of citation.

Naylor v. Phillips, 3 S. 210.

111. Exceptions not certified to by the presiding judge, or noted in the writing at the time of trial, cannot be considered as on the record.

Tombecbee Bank v. Malone & Co. 1 S. 269. 112. A variance in the name of plaintiff, as stated in the appellate court, from that stated in the judgment warrant or summons, apparent of record by oyer or otherwise, is fatal on demurrer.

Moffett & Singleton v. Woolridge, 3 S. 322. 113. The appellate court will not consider the propriety of a decision of an inferior court, made in respect to a motion proposed by such court without any proof having been offered to sustain it.

Dickerson & Waine v. Toulmin, 2 S. P. 52. 114. When a cause appears from the record to have been continued several terms by defendant, and the jury find a verdict as on issue joined—in the absence of any exceptions to the want of an issue in the court below, the pellate tribunal will presume such issue to have been joined.

Castleberry v. Pearce, 2 S. & P. 141.

Wheelock v. Fitch, 3 P. 389.
Copewood v. Taylor, 7 P. 33.

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115. If a party elect, the determination of a jury upon an issue properly belonging to the court, he will not be permitted to assign it as error.

Judge Limestone County v. French, 3 S. & P. 265.

116. A charge to the jury must apply to an issue in order to be the subject of revision in this court, Campbell v. Green, A. R. 30.

117. The appellate having prevented the writ of error from being properly prosecuted-his motion for affirmance upon certificate will be denied, and the appellee allowed to dismiss his writ, so as to prosecute another. Mitchell v. Russell, 3 S. 53.

118. Judgment on affirmance, may be rendered on certificate in cases of appeal as well as of writs of error. Adams v. Adams, 3 S. 57. 119. It is only plaintiff who can file the record in this court; and, if he omits to do so, defendant may have judgment affirmed on certificate. Thacker v. Myricto, 3 S. 184. 120. The certificate authenticating the record is sufficient for this purpose,

but he cannot be allowed the costs of the record.
121. Writ of error lies, on a motion to retax costs.

Ibid.

Smith v. Donaldson, 3 S. & P. 393. 122. This court will not encourage an omission to make out assignment of errors, by setting aside judgment taken for want of them. Under very peculiar circumstances the rule may be relaxed.

Waters v. Creagh, 4 S. & P. 81.

123. Points raised in this court relative to the testimony in a cause should appear to have been distinctly presented to the court below, otherwise all proof respecting such point, will not be presumed in the bill of exceptions; and the presumption will be indulged to sustain such judgment, that the evidence was in fact introduced but not spread upon the record.

Reves & Mather, v. McLosky & Hagan, 5 S. & P. 330.

124. An allusion in a bond of record in the case, made by way of recital, referring to the case as an appeal-the bond, bearing date subsequent to the term at which judgment was rendered-is insufficient to show to this court, that an appeal was applied for or granted.

Hoin v. McIlvane & Collier, I P. 285. 125. When three terms have intervened without any shewing to the court of the existence of any writ of error or appeal, and without the prosecution of a certiorari to obtain the writ of error, it is cause of dismissal.

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