Petty and others vs. Mabaffy.

was rendered, and unless the testimony be briefed, approved, and entered on the minutes at the same term. Graddy vs. Hightower, 1 Kelly 254, 255.

3. Petty was incompetent as a witness from interest. 3. Phil. Ev. 82; Hall vs. Rex, 6 Bing. 181; 3 Phil. Er. 266; 18 Johns. R. 459; Penny vs. Martin, 4 Johns. Ch. R. 566; 1 Stew. R. 139; 1 McCord 552; Ransom vs. Keyes, 9 Cowen, 128.

4. Petty being proved interested by the plaintiff, by Jordan's interrogatories, was no more competent to disprove that interest than any other fact in issue. Phil. Ev. notes 260, 261.

5. And even if competent for that purpose, he shows that the sub-contract on which he was liable (as it is contended,) to a greater extent than on the principal contract, was at the time of his deposing, barred by the act of limitations.

6. The question of competency is one for the Court, and if the Court chose to believe Jordan rather than Petty as to Petty's interest, it was not error.

By the Court-WARNER, J., delivering the opinion.

In this case, it appears from the record, that a motion was made in the Court below to arrest the judgment, which motion was allowed by the Court; exceptions were taken thereto, and the case was brought before this Court by writ of error, and the judgment of the Court below arresting the judgment, was reversed. It also appears, that at the May Term of the Superior Court of the County of Muscogee, in the year 1846, when the motion was first made to arrest the judgment, notice was also given to the adverse party, that in the event the motion in arrest of judgment should be overruled, a motion for a new trial in the cause would be made. After the judgment of the Court below had been reversed by this Court, a motion was made, at November Term, 1846, for a new trial, in pursuance of the notice originally given, on the ground that the Court had improperly rejected the testimony of two witnesses, Petty and Jordan. At the term of the Court when the case was tried on the appeal, and when the notice that a new trial would be moved for in the event the judgment should not be arrested, there was no brief of the evidence filed, by the party seeking the new trial, ás required by the 61st rule of practice. [1.] By the act of the 7th of December, 1821, the judges of the Superior courts in this State were required to convene at the seat

Petty and others vs. Mahaffy.

of government, and establish uniform rules of practice for the several circuits. Hotchk. Dig. 500. In pursuance of this act, the judges, in convention, established the following rule: "A motion for a new trial shall not operate as a supersedeas, unless an order to that effect be entered on the minutes; and in every application for a new trial, a brief of the testimony in the cause shall be filed by the party applying for such new trial, under the revision and approval of the Court." Hotchk. 951.

This rule was intended to guard the parties against surprise, by having the facts of the case settled while the same were fresh in the recollection of the court and the counsel.

The facts of the case, on which the court should be required to pronounce the judgment of the law, were not to depend on the vague recollection of parties, their counsel, or witnesses, but on the statement made in the brief, sanctioned by the approval of the Court. The wisdom of this rule, in a practical point of view, commends itself to our hearty approbation. We have already had occasion to review it, in Graddy vs. Hightower, 1 Kelly R. 255. One of the grounds of error assigned in that case was," Because there was no brief of the testimony, approved by the Court or agreed upon by counsel, filed in the cause at the time the rule nisi was moved." In that case we said, "that nothing short of a brief of the testimony approved by the Court, and such approval entered on the minutes or agreed upon by the parties or their counsel, and such agreement entered on the minutes at the term at which the rule for a new trial is applied for, will be a compliance with the 61st rule of court;" and that ground of error was sustained in that case by this Court.

This is said to be a hard case, and it is insisted the Court ought to have permitted the introduction of the affidavits, to show what facts were proved on the trial. To do this would be to introduce the very mischief which the rule was intended to prevent; and although it might not be productive of mischief in this particular case, yet we are not willing to multiply or create exceptions to a rule which in our judgment is a wise one in its general application. Nothing is of more importance to society, governed by municipal regulations, than that their laws should be uniform, and uniformly administered.

Let the judgment of the Court below be affirmed.

Hopkins vs. Burch.

No. 36.-TILMAN HOPKINS, plaintiff in error, vs. ROBERT S. BURCH, defendant in error.

[1.] Before a constable can levy on lands and negroes, and to the validity of sales of land and negroes under magistrates' court exccutions, it is necessary that it appear by the entries on the execution, that there was no other personal property, or that the defendant being in possession, pointed out the land and negroes. [2.] Such entries can be made nunc pro tunc by the officer who made the levy.

This was a claim case. Tried before Judge WARREN. In Macon Superior Court. At the April adjourned Term, 1847.

Robert S. Burch, the defendant in error, was the plaintiff in execution, and William F. Hopkins and Isaac Hopkins were defendants, and Tilman Hopkins, the plaintiff in error, was the claimant.

The property levied on and claimed, was a lot of land in the County of Macon. At the said adjourned term of the Court below, this cause came on to be tried, when the plaintiff in execution, Burch, introduced Green Barrow as a witness, who testified that as sheriff he levied the execution upon said land, and that at the time of said levy the said William F. Hopkins, one of the defendants in execution, and who was claimant's father, together with the claimant, resided on the said land, and that said William F. seemed to be proprietor; and thereupon the said Burch closed his

case.

The claimant then offered in evidence a deed made by the sheriff to one Andrew Shealy, which by virtue of a sheriff's sale of said land, as the property of said William F. Hopkins, under a justice's court fi. fa. issued in the said County of Macon, conveyed said land to the said Shealy, and which said justice's court fi. fa. was also offered in evidence. The counsel of Burch objected to said fi. fa. because there was no entry thereon of "no personal property to be found," made by the levying officer. The Court below sustained the objection, and refused to admit said fi. fa, in evidence without such entry.

The claimant's counsel then offered to introduce the constable who levied said justice's court fi. fa., to show that at the time of said levy the defendants in the fi. fa. had no personal property, and also to evidence that fact by a return to that effect, to be entered on said fi. fa. nunc pro tunc by said constable, under oath.

Hopkins vs. Burch.

The court below refused to allow either the oral testimony of the constable for the purpose aforesaid, or a return of “ no personal property" to be made by him under oath or otherwise.

The claimant then offered to prove by the said constable that the said land was pointed out to him for levy by the said William F. Hopkins. This also the Court below refused. The case was then submitted to the jury, who rendered a verdict finding the said land subject.

To all which decisions of the Court below, the counsel for the claimant excepted.

WM. H. ROBINSON and WM. P. GREENE, for plaintiff in error, contended:

1. That the act of 1811 does not require the constable to make a return of "no personal property," before levying upon land or negroes. Prince 506; Dud. R. 3.

And that if such return were made, it would be no evidence of the fact, the same not being required by statute.. 1 Greenl, Ev. 498; 3 Phil. Ev. 1083, 1046.

The constable having levied on the land, the Court should presume that he had discharged his duty by first looking to the personal estate, and finding that insufficient, had then made his levy. 2 Phil. Er. 297; 19 Johns. R. 345; 11 id. 517.

2. Admitting, for sake of argument, that the legislature intended that the authority of the officer to levy should appear by proof of the insufficiency of personal estate, the levying officer would be a competent witness to prove the fact.

3. The courts have given a liberal construction to the statute of amendments, and gone far in allowing such returns to be made nunc pro tunc.

4. The act of 1811 was passed for the benefit of the debtor, and that he only can take advantage of it. 13 Johns. R. 97; 8 id. 361; 4 Kent 430. And that even previous to the act of 1842, the defendant had the right to point out such property to the officer as he might deem proper.

5. That the neglect of the officer does not affect the purchaser, he depending alone upon the judgment, the levy, and the sale; all other irregularities being between the officer and the parties to the process. 4 Conn. R. 521; 3 Phil. Ev. 1094.

WARREN, for the defendant in error..

Hopkins rs. Burch.

By the Court.-NISBET, J., delivering the opinion.

The claimant introduced in evidence a deed for the land in question, from the sheriff, being a purchaser at sheriff's sale. The levy was made by a constable, and the magistrate's fi. fa. was tendered in evidence by the claimant as part of his title. It was demurred to upon the ground that it had not the constable's official entry of "no personal property to be found," and rejected. The claimant then brought the constable into court who made the levy, and proposed that he should amend his entries, and make the required entry "nunc pro tunc," which the Court refused to permit to be done. He also offered evidence to prove that the defendant in execution pointed out the land to be levied on, which was also rejected. To all these decisions he excepted.

[1] By the act of 1811, "No constable shall be authorized to levy on any negro or negroes, or real estate, unless there is no other personal estate to be found sufficient to satisfy the debt, and then and in that case, they are hereby authorized to levy on the same whereever to be found, &c." Prince 506. It is true, as counsel contended, that this act does not make it the duty of the constable, in terms, to make the entry of "no personal property to be found." It prohibits the constable from levying on lands and negroes, unless there is no personal estate (besides negroes) to be found sufficient to satisfy the debt. The entry, therefore, is not made necessary by a positive enactment of the legislature. We think notwithstanding it is necessary. The argument is within a nutshell. The act of 1811 is for the benefit of the defendant in execution, to protect his negroes and lands, being property of great value, from vexations levy and sale for small amounts—a plantation, for example, worth $5,000, or a slave worth $1,000, for thirty dollars-particularly nonresident defendants-from these petty, and it might be dangerous aunoyances. To afford him the protection which this act intends to afford him, it is necessary to give it a liberal construction, as it is not in derogation of common right; for it does not exempt lands and negroes from payment of debts, but only protects them until other property has been exhausted. A fair construction of it would make all sales of lands and negroes, under a magistrate's court execution, illegal, unless there was no other personal property sufficient to satisfy the debt. The severity of this rule upon pur-. chasers is the guarantee of protection to the defendant. Anything