XVII. At the hearing of every cause, the complainant's Counsel shall furnish to the Court a brief containing a succinct statement of the material facts stated in the bill, answer, exhibits and testimony; the points, raised, and the authorities on which he intends to rely. If he fail to furnish such brief, he shall not be heard in argument. XVIII. A final decree shall be called in question before the Court rendering it by bill of review only; and shall never be impeached by original bill, unless on the ground of fraud. XIX. The Clerk shall keep a rule book, in which the Solicitors shall respectively enter all motions for re-hearing, and motions to set aside orders or decrees made for want of answer. The entry shall be sufficient notice of any such motion. The motion for re-hearing must be made at the same term at which the decree is rendered. A defendant must, at the time of entering a motion to set aside an order or decree made on his default, file with the Clerk a full and sufficient answer. XX. Any bill for discovery, in aid of a claim or defence at law, being ancillary to the common law proceeding, shall be filed therewith, and disposed of when the case at law is called. XXI. Where a suit at law and a bill in chancery are instituted for the same claim or demand, the defendant, on suggestion supported by affidavit, may move the Court to inspect the records, and if it appear that the two suits are for one and the same cause of action, it shall be ordered that the plaintiff elect in which he will proceed, and that he dismiss the other. XXII. In cases which may be revived by Scire Facias, on suggestion of the adverse party to the Clerk in vacation, he may issue a Scire Facias to bring in as parties, the representatives of such as may have died pending the suit. XXIII. The sessions of the Clerk as Master in Chancery, shall be held at his office, unless by consent of parties he appoint a different place. He shall determine as to the time and duration thereof, and issue all notices to the parties interested in his investigations. XXIV. Exceptions to testimony admitted by the master, must be taken before him, and certified in his report. If not so taken, the exception is waived. XXV. The Clerk shall conduct all sales made under decree of the Court, unless the decree otherwise direct, and the Court shall fix his compensation therefor. XXVI. The rules of practice in Chancery in England, so far as consistent with the laws of this State and the rules made under them, shall be in force in cases not provided for by these rules. SUPREME COURT, JULY TERM, 1830. Ordered, that the feregoing rules be recorded, that they become operative after the first day of January 1831,and supersede all the rules of practice heretofore adopted by this Court. A Copy of the Rules and of the order relating thereto. December 1, 1830. Test, HENRY MINOR, FOOTE V. LAWRENCE. (See page 483.) In this cause, which is reported in page 483 of this work, a dissenting opinicn was filed, which was omitted, and is therefore here inscrted. It is as follows: By JUDGE WHITE. IN the opionion just delivered, it is conceded, that every fact must be found in a court of law by a jury consisting of twelve men; but it is contended, that in making out the record for revision in this Court, it is only necessary it should appear that there was a competent jury, and that this may be done without stating the names of the jurors individually. This I admit, and yet say that this very fact, of there having been a legal jury who passed upon this case, does not appear, and therefore, that the judgement should be reversed. Had the record stated that there was a jury of good and lawful men, to wit, A. B. and eleven others, or even that there was a jury of good and lawful men elected, &c. without any reference to the number, then perhaps, inasmuch as every legal jury consists of twelve men, the inference might be fair, that that number were empannelled. But such an inference or implication cannot arise, when it appears from the record itself, that there were but eleven. In the present case, it is true, the clerk states in the record, that there was a jury of good and lawful men. But he does not stop here, he proceeds to name them, and that too, at full length. He says nothing from which it can be fairly inferred, as I think, that there were any sworn whose names were not recorded. And from his shewing, it appears there were but eleven jurors sworn to try the issue. The sum and substance of the record then is manifestly this, that there was a jury of good and lawful men, consisting of eleven; or if you please, a lawful jury composed of less number than the law requires. This is a contradiction in terms, and all will admit that such a jury would be incompetent. But the dispute lies in this, whether such be the necessary inference to be drawn from the record. To my mind, it appears plainly that it is. For the expression that there was a good and lawful jury, is contradicted by the statement, shewing that an insufficient number composed it. Where there is an express statement, there can be no implication drawn from general expressions contray to it. This principle exists in the very nature of things, and applies to records as well as to contracts. As there is no legitimate way in which we can come to the conclusion that there were other jurors in this case who are not named, the very language of the record excludes such a conclusion. In my opinion then, there is error, and the judgement should be reversed. As to the supposition that the defendant below stood by and consented to be tried by an incompetent number of jurors, it could be as well applied to any other error that could arise; besides, I question whether so important a privilege as the trial by jury should be taken away by mere inference. It is the duty of every plaintiff to conduct his suit in conformity to the wholesome and substantial requirements of the law, and not to rely on the inferences to be drawn from the neglect of the defendant, INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. ABATEMENT. 22 1. The statute protecting freeholders from 46 379 4. Where a plea in abatement, and a demur See Practice. "General issue 1. ACCEPTOR. See Demand 3. 141 ACCORD AND SATISFACTION. 3. A mere acknowledgement of satisfaction ACTION. 476 1. On a note payable to trustees appointed 2. One partner can maintain an action at 7. 8. 70 And if the plaintiff has procured an ac- An action lies by the plaintiff in attach- 133 A vendee of land after special request to Assignment 1. 3. 19 Principal and Agent 1.2. 1. An amendment made in the Court below, pending a writ of error, does not affect the costs. Pace v. Dossey, 20 66 184 2. On an appeal from a justice of peace, a misjoinder of parties cannot be amended. Smith & Hill v. Cobb, 62 3. A judgement cannot be amended nunc pro tune by resorting to the record of a distinct suit, though referred to by the clerk in his entry. Draughan et al. v. Tombeckbee Bank, 4. A plea may be amended by leave of the court, after a verdict and new trial. Webstor & Smith v. Wyser et al. 5. A plea puis durrien continuance may be amended, and entitled as of the term when the original plea was filed. Ibid. 6. Judgement below being rendered by nil dicit for a less sum than is shewn to be due by the record; on a writ of error, it may be corrected and rendered for the proper amount, at the costs of appellant, by reference to the endorsement on the writ. Mason v. Smith et al. 275 7. Since the statute of jeofails of 1824, if there are good and bad counts in a declaration, and a general verdict, judgement' will be given. Thirman v. Matthews, 384 8. By pleading to an amended declaration. defendant waives the right to revise the decisions made on the original declaration and on his pleas thereto. Caldwell & Bennett v. May, 425 10. Though it cannot, as to one who is in Court, without a discontinuance as to all. Smith & Hill v. Cobb, 62 When the sum in controversy is more than $20, a declaration or statement must be filed in the appellate court. Roland et al. v. Roden, 266 A judgement of non pros. against the appellee. when he has no notice of the appeal, is error. Bettis v. Nicholson, 349 See Certiorari 1. 2. ARBITRATORS. See Award. ARREST OF JUDGEMENT. 1. When a prisoner is found guilty on an indictment for felony, and the judgement is arrested, it does not prevent his being reindicted. The State v. Phil, 2. 3. 31 A change of venue having been ordered, on the motion of a prisoner by his counsel, the judgement will not be arrested because the grounds of it are not shewn by the record. The State v. M Lendon, 195 The judgement will be arrested on an indictment for assault and battery, the time of the commission of the offence being in blank. The State v. Beckwith, 318 4. In a declaration on a covenant to pay money for the hire of slaves, the want of an averment that they served the defendant, is fatal in arrest of judgement. Ex'a v. Jordan, Bassett's 352 ASSAULT AND BATTERY. 1. In an action for assault and battery, provocation not immediately preceding and connected with the assault, cannot be given in evidence by the defendant. Terry et al. v. Eastland, 156 |