57. Refusal by the court below to non pros a plaintiff, is an exercise of discretion not revisable in this court. 1bid. 58. A party can have no hearing in the appellate court upon the overruling of his demurrer, where it was afterwards withdrawn, and an issue formed to the country; the case then stands as if no demurrer had been filed.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. 3 S. 288. 59. 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. 60. 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. 61. Where no step is made below to take advantage of any defects in the declaration, if any there be, this court will not under the statute examine Chapman v. Arrington, 3 S. 480. 62. Scire facias, to the representatives of an estate, to make them parties to a suit, must be directed to them as such.

into them.

Heirs of Culler v. Malone, et al. 1 S. & P. 305. 63. 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.

64. 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. 65. 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 appellate court 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.

66. 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. 263.

67. Writ of error lies on motion to retax costs.

Smith v. Donaldson, 3 S. & P. 393.

68. 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.

69. 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.

Rives & Mather v. McClosky & Hagan, 5 S. & P. 330. 70. 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 tem at which judgment was rendered-is insufficient to show to this court, that an appeal was applied for or granted.

Hoin v. McIlvain & Collier, 1 P. 285.

71. 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.

Ibid.

72. When a citation has been issued but not served upon defendant, a scire facias ad aud, is the proper process to coerce an appearance. Lecat v. Sallee, 1 P. 287.

73. 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 facius having issued, will be sustained, unless the plaintiff make the requisite shewing of surprise. Ibid.

74. 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. 75. 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. 76. 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.

77. 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 Arrington v. Howell, 4 P. 317.

term.

78. 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 bond. English v. Andrews, 4 P. 319.

79. This court will not set aside a judgment obtained on certificate, on motion to file a complete transcript of the record and proceedings thereon— no 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 to a previous term of this court and not prosecuted. Hayden & Everett v. United States, 4 P. 393.

80. 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. 81. 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 permitted Perryman v. Burgster, 4 P. 505.

it.

82. 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. 83. When 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.

84. 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. 85. 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. 86. 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 v. Greenwood, 5 P. 474.

87. 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. 88. 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. Marshall, 6 P. 66.

Harrison v.

See Errors.

TENDER.

1. Plea of tender of bank notes must be accompanied with profert.

Booth & Bell v. Comcygs & Perhouse, A. R. 201.

2. When a creditor receives from his debtor certain notes in discharge of a debt not indorsed by the debtor, and it afterwards turn out that the signature to one of them is a forgery, the creditor cannot sustain an action on the original consideration, unless as soon as he discovers the forgery, he tenders a return of the note, or unless with due diligence he has exhausted all the liabilities on it. Pope & Hickman v. Nance & Co. A. R. 299.

3. In payment of an order in favor of an executor, the acceptor tenders a note made by the deceased to a third person, and not indorsed to himthis is not a good tender. Gayle v. Randle, 1 S. 529.

TIME.

1. A note dated 4th December, 1820, payable 25th December, next, not due until 25th December, 1821. Wallace v. Hill, A. R. 70.

2. Capias executed 2d September, 1822, returnable "to 1st Monday after 4th Monday in September next," by reference to its date and time of service, is to be understood as designating the 1st Monday after 4th Monday in September, 1822. Gibson v. Laughlin, A. R. 182.

3. Notice returned "received 9th January, 1822, and executed," was executed on the day of its receipt. Wheat v. State, A. R. 199.

4. Notice of motion to be made on the 4th Monday in February, an act of assembly changes the term of the court to the 3d Monday in March, and requires all proceedings &c. to be then returned-good notice to 3d Monday in March.

Ibid.

5. Notice dated 6th March, 1824, of motion to be made on 2d Monday after 4th Monday in March next, does not refer to 2d Monday after 4th Monday in March, 1824. Bank of Mobile v. State, A. R. 290.

6. The purchaser of a diseased slave, under an agreement, that if she did not recover she was not to be paid for-held that this contract was to be determined by the jury, as to what would be reasonable time for a recovery. Traver v. Richardson & Rice, 2 S. & P. 331.

See Capias-Writ of Error-Bills of Exchange and Promissory Note.

1. As to what constitutes a town within the meaning of the statute con

cerning ferries.

Gates v. McDaniel & Spurlin, 2 S. 211.

See Nuisance.

TRESPASS.

1. In declaration trespass "vi et armis" for maliciously searching plaintiff's house, he may aver an injury to his reputation, and give the same in evidence. Anonymous, A. R. 52. 2. Trespass for cutting timber trees, judgment by default final for penalty under statute, 1802, cannot be rendered without intervention of jury. Ryrne v. Haynes, A. R. 286. 3. The master of a steamboat is liable in trespass for an injury done to the person of another by the discharge of a gun from his boat, in his presence and by his command, and although it proceeded from want of due care merely. Rhodes v. Roberts, 1 S. 145. 4. An injury, thus done, smart money or exemplary damages may be recovered. Ibid. 5. In trespass on the case, defendant may show that the damage was occasioned equally by the negligence of the plaintiff or the want of the exercise of a due care. Bethea v. Taylor, 3 S. 482. 6. Trespass quare clausum fregit, for taking away a house, evidence that the same was taken away with the plaintiff's consent, is not admissible under the general issue. Finch's ex'rs v. Alston, 2 S. & P. 83. 7. An averment that defendant broke and entered plaintiff's close, is a sufficient averment of possession to authorize the admission of testimony to show that the plaintiff was in possession at the time of the trespass committed.

Ibid.

8. In this action, evidence of an outstanding title is not admissible on the part of defendant, to justify a trespass to lands in possession of the plaintiff the presumption of law is, that he who has the possession of land has also Ibid.

the title.

9. Where A's close has been entered and a house is removed, which house is found on the premises occupied by B, in an action of trespass under the plea of not guilty, it is presumptive evidence against B.

Ibid

10. Trespass quare clausum fregit, may be maintained by an occupant of the public lands of the United States, against a stranger, such occupancy of the public domain forms, so far at least as strangers are concerned, a tenancy at will, and not a mere tenancy from year to year.

Duncan v. Potts, 5 S. & P. 82. 11. In trespass for killing a slave, it is necessary to aver in the declaration that the party killing, has been tried under an indictment for the felony. Middleton v. Holmes, 3 P. 424.

12. It is no defence in an action of trespass for killing a slave, that the slave fled from the party killing, who, as constable, was by warrant endeavoring to arrest the slave on a charge of having committed misdemeanors.

Ibid.

13. In trespass for breaking a close and taking a chattle therefrom, it is no justification or plea that the defendant was tenant in common with plaintiff of the chattle; that the plaintiff had appropriated it to his own use exclusively, and that he broke the close and took the chattle as he lawfully might, doing as little injury as possible.

Herndon v. Bartlett, 4 P. 481. 14. In such action, the plea of liberum tenementum only, not justifying the asportation of the chattle, is sufficient. Ibid.