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126. When a citation has been issued but not served
upon defendant, a scire facias ad aud, is the proper process to coerce an appearance.
Lecut v. Sallee, 1 P. 287. 127. A motion to dismiss, for want of service of a citation, when made at the third term from the filing of the record, no scire facias having issued, will be sustained, unless the plaintiff make the requisite shewing of surprise.
Ibid. 128. This court has no authority to amend the decrees or judgment of inferior courts—they being such as should have been rendered by authorizing their immediate execution.
Sadler et ux, et al. v. Houston & Gillespie, 4 P. 208. 129. Or, to consider the instructions made by an inferior court in relation to a deed, which is not set out in the record, nor its provisions stated.
Bank of the State v. McDade et al. 4 P. 252. 130. Or, to consider errors assigned on the transcript of a record, without such transcript is properly attested by the clerk.
Kennedy v. Spencer, 4 P. 272. 131. The court will not refuse to render a judgment on certificate, where the transcript has not been filed within the first three days of the term, merely on affidavit that the case is not brought up for delay, and that the clerk below is interested and has not sent up the transcript, it not appearing that any diligence has been used to obtain the transcript from the clerk; the court, however, will grant relief, when it can be shewn that the record could not be procured, or, when it shall be produced at a subsequent day in term.
Arrington v. Howell, 4P. 317. 132. When the death of a plaintiff in error is suggested, and no personal representative afterwards appears, the suit will be abated; but judgment cannot in such case be rendered against the sureties to the writ of error
English v. Andrews, 4 P. 319. 133. This court will not set aside a judgment obtained on certificate, on motion to file a complete transcript of the record and proceedings thereonno return being made to a certiorari previously issued to complete the record, and the transcript sought to be filed, appearing to have been certified from the court below, upon a writ of error sued out tu a previous term of this court and not prosecuted.
Hayden & Everett v. United States, 4 P. 393. 134. This court will not amend a judgment of affirmance at a subsequent term to that at which rendered, and award damages on the production of a copy of the writ of error bond, and the suggestion that the bond or a copy was not in court when the judgment was affirmed.
Gayle v. Agee, 4 P. 439. 135. A motion to strike a cause from the docket on suggestion that the transcript had been improperly' filed comes too late after the court has
Perryman v Burgster, 4 P. 505. 136. The practice of bringing before this court voluminous books or papers, by attaching them to a bill of exceptions, or as references, is irregular and improper; such parts of them as are pertinent should be inserted in the bill of exceptions.
Chamberlain v. Darrington, 4 P. 515. 137. The certificate of a clerk below appended to a transcript in this court as to an indictment in a cause which is subjoined, must be taken as true.
State y. Greenwood, 5 P. 474. 138. So when papers in a cause are sent from one county to another, on change of venue, and afterwards removed into this court, it will be presumed
from the clerk's certificate in the absence of any contest as to their verity below, that the clerk has transmitted the proper papers.
Ibid. 139. Questions that address themselves to the sound discretion of the court, being deductions from facts and not involving matters of law, cannot be reviewed in this court.
Harrison v. Marshall, 6 P.66. 140. Where the transcript of a record is on file, though imperfect as to the attestation of the clerk, the judgment will not be affirmed on certificate, at the first term—the practice in such cases authorizing a certiorari.
Kennedy v. Spencer, 4 P. 272. 141. A writ of error not shewing the term to which returnable, may be amended by its teste, or the bond or citation.
Lyon v. Malone, 4 P. 414. 142. It is good cause for the dismissal of a writ of error, that it recites the names of persons not parties to a suit, as shewn by the transcript.
Roberts v. Taylor, et al. 4 P. 421. 143. After joinder in error, additional assignment not permitted, unless obvious justice requires it.
Myrick v. Chamblain, et al. A. R. 357. 144. Error amended in court below after writ of error brought, judgment affirmed at costs of defendant in error.
Brown & Parsons v. Torver, A. R. 370. 145. The appellate court will not consider the propriety of a decision of an inferior court, in respect to a motion proposed to such court, without any proof to sustain it.
Dickson v. 'Wayne 8. Toulmin, 2 S. & P. 52. 146. Motion for judgment on certificate, two'writs of error appear to have issued on the same judgment, the transcript filed and cause pending on the first-motion denied.
Bruhun et al. v. Johnson, A. R. 382. 147Certificate on judgment produced-plaintiff in error shows transcript in same cause in which there is no entry of judgment-judgment on the certificate.
Kennedy v. Harris, A. R. 135. 148. Indorsement of writ will not be looked to to sustain errors.
Flant et al v. Malone, A. R. 92.
Lee v. Adkins, A. R. 187.
Peters v. Johnson et al. A. R. 100. 149. But will be looked to sustain judgment.
Davis v. Chester, A. R. 385. 150. Bill of exceptions must be taken and sealed during the trial.
Powers v. Wright, A. R. 66. 151. And the points must arise on the evidence, and be applicable to the issue.
Wilson v. Jackson, A.R. 399.
} 152. Paper therein referred to and not copied at time of sealing, must be so described and identified by marks, &c., that another paper cannot be copied in lieu of it.
Loony v. Bush, A. R, 413. 153. Continuance, or matter from which it is to be inferred, should
arpear in the record.
Kennon v. Bell, A. R. 98.
Mendenhall v. Smith, A. R. 380.
McRory v. Vinzant, A.R. 401. 154. With the transcript of the proceedings at law, the clerk certifiés a copy
of a release of errors as written on a bill in chancery, filed in the same court, to obtain an injunction. The release is a part of the record, and judgment must be affirmed.
Thompson v. Ayres, 1 S. 171.
155. No error will be considered which is not specially assigned.
Stebbins v. Fitch, 1 S. 180. 156. To two writs of error one record was returned, containing two judgments; the record being applicable to neither, the writs should be dismissed.
Smith v. Heurne, 2 S. 169. 157. The clerk of the court below, cannot, after a party to a judgment is dead, issue a writ of error against the representatives of the deceased.
Seawall v. Bates, admrs. 2 S. 462. 158. It seems that in such case, application must be made to this court for a sci.fa. to the representatives, or certiorari on proof of the death of the
Ibid. 159. Judgment of affirmance may be rendered in this court on certificate, in cases of appeal as well as of writs of error.
Adums v. Adums, 3 S. 57. 160. It is only the plaintiff in error who can file the record in this court,
Thacker v. Myrick, 3 S. 184. 161. If he omit to do so, the defendant can have the judgment affirmed on certificate.
Ibid. 162. The certificate authenticating the record is sufficient for this purpose; but he cannot be allowed the costs of the record.
Ibid. 163. Where a defendant dies after judgment; to prosecute a writ of error against his representatives, the proper course is to apply to this court for a certiorari, to bring up the record, and for a scire facias against his administrators, to make them defendants. Seawall v. Bates' adm’rs. 3 S. 199.
164. Refusal by the court below to non pros a plaintiff, is an exercise of discretion not revisable in this court.
Ibid. 165. A party can have no hearing in the appellate court upon the overruling of his demurrer, where it was afterwards withdrawn, and an issue formed to the country; the case then stands as if no demurrer had been filed.
Acre v. Ross, adm’r. 3 S. 288. 166. Where, in an action on a bond, a special plea in bar alone is pleaded, a demurrer to which is overruled in the court below, and on writ of error the judgment on demurrer is reversed and the plea holden radically bad, this court will render the proper judgment.
M'Causeland v. Drake, 3 S. 344. 167. A refusal of the court below to permit an amendment of a plea, after the overruling of a demurrer, will not be revised by this court, unless it is shewn in the record, in what the proposed amendment consisted.
Craig v. Blow, 3 S. 448. 168. Where no step is made below to take advantage of any defects in the declartion, if any there be, this court will not under the statute examine into them.
Chapman v. Arrington, 3 S. 480. 169. Scire facias to the representatives of an estate, to make them parties to a suit, must be directed to them as such.
Heirs of Caller v. Malone, et al, 1 S. & P. 305. 170. The supreme court will not entertain an exparte motion to make individuals parties to a suit, on the return of a general scire facias only served on them, without evidence of their representative character. Ibid.
See Amendment — Appearance-Errors and Jeofails—Certiorari—Attach
ment~ Capias-Jury and Juror-Discontinuance-Parties to Actions Pleadings_Court-Scire Facias-Record-Verdict.
PRINCIPAL AND AGENT.
1. G, as agent of B, sells a land certificate to himself, B brings an action against G for the purchase money, and his attorney receives it, he thereby confirms the sale.
Gaines v. Acre, A. R. 141. 2. A parol authority to insert the name of the payee in a bond, with a blank left for it, is sufficient,
Boardman v. Gore f Williams, 1 S. 517. 3. A power of attorney under seal to make and indorse bills, is not void though executed by one only of a firm
Lucas v. Bank Darien, 2 S. 280. 4. When a party, with a full knowledge of the alledged fraudulent circumstances, recognizes or confirms a contract made in his name by an agent, he cannot afterwards set up the fraud or want of authority as to the transaction.
McGowen v. Garrard & Morgun, 2 S. 479. 5. The statements of an agent made subsequently to a contract, are not evidence against the principal; the agent must be examined as a witness.
Betts v. Planters' and Merchants' Bank, Huntsville, 3 S. 18. 6. When A received cotton from B, which he had advanced on, with the condition that he should have the control of it, and apply the proceeds to the advance, A is not liable for loss on a sale of the cotton in New York, although the cotton would have brought more in New Orleans when he received it.
Ibid. 7. An agent who has a note of his principal to negotiate, with the view of discharging a bond due by principal to a third person, cannot, after indorsing such bill, take an assignment of the bond as indemnity, so as to authorize him to maintain an action on the bond, especially before he has discharged the bill as indorser thereof.
Cox & Cox v. Robinson, 2 S. & P. 91. 8. The situation of the agent under these circumstances contemplates a discharge not a purchase of the bond, and any redress he is entitled to is on the bill so indorsed by him, when paid, and not on the bond. Ibid.
9. An agent will be held tu act strictly within the scope of his authority, and any acts of the agent not sanctioned by his authority, are void, even if for the benefit of the principal, if not adopted by the latter. Ibid.
10. An agent may sue in his own name on an obligation or promise to him as such. His styling himself as such in writ and declaration is necessary only to make the count correspond with the evidence.
Newbold ex'r. v. Wilson, A. R. 12. 11. A party contracting with an agent is bound to look to his authority.
Gullett v. Lewis, 3 S. 23. 12. Where a planter employs a merchant to ship his crop to a particular house, the account of sales of such house in relation to the subject of the shipment, if established by proof, is good evidence in a suit between the merchant and planter against the latter, that the shipment was made according to contract.
Black v. Richards, 2 S. & P. 338. 13. All that is required in the conduct of an agent is to pursue the instructions of his principal; but if his powers are discretionary, then he will be held to act to the best of his judgment for the advantage of his principal, and in the honest exercise of such discretion, he is not liable for loss.
McLuughlin v. Simpson, 3 S. & P. 85.
14. But when business has been assumed by one without the consent, and in violation of the rights of another, he will be held to a strict account, and be made liable for as much as might have been made by the best judgment.
Ibid. 15. Possession of a letter of attorney by the proper person, is prima facie evidence of its delivery, and the authentication of a notary public as to its signing and sealing is sufficient, though it does not state its delivery.
Ward v. Ross, 1 S. 136. 16. Generally, a factor, not restrained by instructions to the contrary, may sell the goods of his principal on credit, and take a note for payment in his own name, without personal responsibility—and the exception to this rule must be shewn by the party seeking to charge him. The taking of a note in his own name by a factor, is not a circumstance tending to show his intention to make the debt his own.
Goldthwaite f. Tarleton v. Mc Whorter, 5 S. & P. 284. 17. When a power of attorney is depended on in a cause, it must be produced (or its absence accounted for,) in the usual mode in which the contents of written papers are admitted to be proved.
May v. May, 1 P. 229. 18. When a covenant had been executed by A as agent of W, in an action on the covenant, the agent is a good witness.
Aldridge v. Warner's ex'rs. 2 P. 92. 19. When the seller of cotton agreed that part thereof, when it arrived at a certain port should be weighed by his agent, and any deficiency, either in quantity or quality, exchanged by the agent for other cotton of his in the agents hands, and the agent found it impossible to supply the deficiency in the quality: In an action brought to recover the deficiency it was held: 1. That the agent acting bona fide had a right to supply the deficiency in
quantity by the selection of the quality in their possession.
the deficiency III. That the agent had a right to call in the aid of a broker in ascertaining the value of the cotton supplied.
Pattison v. 'Moore, 3 P. 270. 20. It is a general rule in relation to all agents who collect money
under a lawful authority, that until a demand or request is made for the same, they are not liable to a suit.
McBroom, et al. v. Governor, 6 P. 32. 21. It is also a general rule in all cases of joint contract, the extinction of the liability of the surety extinguishes that of the principal, but an exception obtains when it is caused by an operation of law.
Ibid. 22. When one undertakes to contract as an agent, and so contracts as to impose no legal obligation upon his principal, the agent is personally responsible.
Gillaspie et al. v. Wesson, 7 P.454. 23. In order to relieve one acting as agent from personal responsibility, it is necessary that he should have been authorized to act, and that the credits should have been given to the principal; and there is no difference between the agent of the government and an individual.
lbid. 24. The signature of persons so contracting without authority, as officers of the militia in the public service, is merely descriptio persona.
Ibid. 25. An agent when sued upon a contract made by himself, can only exonerate himself from personal liability, by shewing his authority to bind his principal; and it is not for plaintiff to show the want of authority of the assumed agent.
1bid. See Bills and Notes--Sherif - Evidence.