et al. See the case Charleston Upon this ground the court, after argument, ordered a Levingsworth new trial, as fraud is never to be presumed, unless the circumstances are so strong as to leave no doubt to the contrary, as was determined in the case of Rutherford v. The Sheriff of Charleston District, in 1801; and also because one Rountree, a witness produced by the plaintiff on the trial, appeared, since the cause was tried, to be deeply in- Where it ap terested in the event of the suit, (having a claim to part of witness,sworn the same lands in dispute,) although in court he swore upon his voir dire, that he was not in the least interested in the case, one way or the other. Rule for new trial made absolute. pears that a andexamined, was deeply inevent terested in the of 2 cause after it is tried, (although upon his voir dire he swore he was not,) it is a good ground toorder a new Present, GRIMKE, WATIES, BAY, BREVARD and LEE, trial. Judges. HANE and BERCK against JOHN GOODWYN. Columbia, 1804. A CASE from Richland district. Motion to set aside where there the order of the circuit court of Richland district, in refusing to allow the defendant leave to plead double. has been a judgment by default, defendant has a right to set it aside on mo tion, on the call of thewrit of inquirydocket on thefirst This was an action on a note of hand, and plaintiffs had filed their declaration, posted their rule to plead, and obtained a judgment by default, and the case was duly placed upon the writ of inquiry docket; on the call of which, in its order, agreeable to the rule of court, the defendant's attorney, Mr. Starke, moved to have the order of judgment set any plea he the day of may think aside on payment of costs, with liberty to place it on the proper. Hane & Berck come prepared to contradict the latter plea, although he V. Goodwyn. was ready to prove the note; and that if the motion was granted, it would have the effect of putting the cause off till another court, which would be an unreasonable delay, contrary to the rules of court; that it was a surprise on the plaintiffs, who only came prepared to prove the note, and not to take the case out of the statute of limitations, which should have been pleaded in due time, that the plaintiffs might have had an opportunity of proving a subsequent assumption, so as to have taken the case out of the statute. Upon this ground the presiding judge (BAY) refused the motion to plead double, and upon the further ground also, that if this doctrine was once introduced, of permit ting defendants to put in pleas in bar instead of pleading issuably, on setting aside judgments by default, agreeably to the rules of court, it would almost in every such case, operate as a postponement of the cause till the next succeeding court, to the great delay of justice, and contrary to the uniform practice of our courts. The plaintiffs then went on, and proved their note to the jury, who gave a verdict for the amount, with interest and costs. This, therefore, was a motion to set aside this verdict, and to have the cause placed on the issue docket, with leave to plead double, as above mentioned. The Judges, after hearing counsel in this case, admitted that the practice had hitherto been, conformably to the English mode of proceedings, as laid down by the presiding See 2 Durnf. Judge on the circuit. But the alterations made by different & East, 390. acts of our legislature in this country, required a relaxation of that old practice, as indispensably necessary for the due administration of justice, more especially in the country districts; and unless the indulgence now claimed by the defendant was allowed, great advantages might be taken by the attorneys of each other, in the course of their practice, where those practitioners who resided near the v. court-houses, or in the villages where the courts were held, Hane & Berck were in the habits of posting their rules to plead on filing Goodwyn. their declarations, and taking judgment by default at the end of the time allowed for that purpose, before the practitioners at a distance, or in a neighbouring district, could know any thing about it, or be prepared to make the necessary defences for their clients. It therefore became the duty of the court to promote a liberality of practice at the bar, so as to prevent those advantages from being taken, and to allow an opportunity to every man, of putting in any defence which the law allows him; and this could only be done, by allowing them the opportunity of setting aside those interlocutory judgments, and permitting them to plead issuably, or to file any other plea the party thought proper ; and that the proper time for doing so was on the call of the writ of inquiry docket, on the first day of every court in each circuit. The verdict was therefore set aside, and the cause ordered to be placed to the issue docket, with leave to defendant to plead double. All the Judges present. N. B. The above decision may be considered as having altered the English practice, which was to allow the defendant liberty of setting aside a judgment by default, upon condition of paying the costs, putting in an issuable plea only, and going to trial instanter, i. e. the same term. But by the above decision, the defendant may have one court to prepare for his defence, with liberty of putting in any plea he may think proper. Columbia, 1804. Where . sheriff takes SIMS against RANDALL. TRESPASS to try title to land in Union district. Ver. upon him to dict for plaintiff. Motion for new trial. sell funds, by virtue of an The plaintiff in this action claimed under a deed made execution, af by one of the sheriffs of the former district of Ninety-Six. fixed for the The deed was in the usual form, and appeared to have been ter the time return has ex pired, and to duly executed. And the plaintiff had a verdict. give title deeds for the land, But upon comparing the date of the deed, which was such deedsare admitted to have been on the day the sale was made, with void, unless been duly renewed. the fi fa. had the execution or fi. fa. under which the land was sold, it appeared that the land was sold, and the deed executed, several months after the return day mentioned in the execution. This, therefore, was a motion for a new trial, on the ground that the sheriff had no authority to make this sale. For The Judges, after hearing argument, were all of opi nion, that a new trial should be granted in this case. although it is clear that the seizing and levying of goods and chattels by operation of law, vests the property in the sheriff, so that he may go on and sell them at any time afterwards, and raise the money mentioned in the execution, and pay it over to the plaintiff in the action, yet it is very different with respect to lands or real estates. It still remains the property of the defendant in the suit, till actually sold. It is not the execution which binds the land, but the judgment; and the execution, as to lands, is only the authority to the sheriff to go on and sell under the judg ment by which they had been previously bound. But this power, like all other delegated power or authority, has its bounds and limits. The execution itself fixes and limits this power, both as to the quantum of money to be raised by it, and the time within which it must be done; and it cannot be carried further, or extended beyond the time limited by law for the return of the execution. Every execution has a day certain for its return, and every sale under it must be within the period or time fixed for such return, as the authority under it then ceases; to revive which authority, the execution must be regularly renewed. Rule for new trial made absolute: All the judges present. Sims V. Randall. MARANE against CARROLL. TRESPASS to try title to land in Abbeville district. be Columbia, 1804. An affidavit of the loss of an original grant in order to permit an of ice copy of it to be given in evidence must be mage by the plaintiff in greeably the action, a to the act of 1803, and at byany the words of Nonsuit ordered. Motion to set aside the nonsuit. On the trial of this cause, the plaintiff's attorney offered to read the affidavit of the plaintiff's son, shewing the loss of the original grant under which his father claimed, in order that an office copy of it from the records might read in evidence to the jury, (the father being then so old and infirm as not to be able to attend at court, for the purpose of making it himself,) agreeably to the directions of the act passed in 1803. But the presiding Judge (GRIMKE) refused to admit the son's affidavit, as the act required that the affidavit to prove the loss of the original grant should be made by the plaintiff in the action, in order to admit the case up, an office in evidence. And therefore ordered a noncopy suit, on the ground that the plaintiff had failed in making out his title. This was a motion to set aside this nonsuit, and to have the cause reinstated on docket for trial at the next court, third person. Where the Judges are equally divided in opinion, the party bringing takes nothing by his motion. |