George W. Smith v. T. W. Large and H. Johnson.

plaintiffs below, this testimony, as to the carriage trade, was all excluded by the Court.

We think what Jones said to Large, should have been allowed to go to the jury, in order to enable them better to understand the reply of Large. And, in this case, it would be difficult to understand the purport of Large's reply, if the remarks of Jones, which elicited it, were excluded. We think therefore, that the Circuit Judge erred, in saying to the jury that they could not look, for any purpose, to anything said about the carriage trade.

The Court charged the jury, that, if they believed the plaintiffs, below, acted under duress or constraint in executing the bond, that duress would be presumed to have continued, in the absence of any proof to the contrary, and that the presumption would be, that the leather was delivered under the original and still continuing coercion.

While we are satisfied, that in this case, there is no proof in the record of any coercion, to execute the bond, amounting to legal duress, we do not think, that, if the duress had been shown in the execution of the bond, the law would raise any presumption of its continuance, in the absence of any proof that there was any further communication between the parties after the execution of the bond.

While the Court was charging the jury, as we infer from the record, the plaintiffs below were permitted to amend their warrant, changing the form of action from "debt on account" to "trespass," to which defendant excepted.

James Jennings v. Joseph E. Mercer.

The very liberal provisions contained in the Code for amendment of writs, pleadings and other proceedings in causes, are designed to promote the ends of justice, not to operate prejudicially to parties; and section 2869, amongst other amendments which it authorizes, provides that the Court shall have power "to change the form of action, etc., "upon such terms as to continuances, as the Court in its sound discretion, may see proper to impose."

This language strongly implies that the change of the form of action will only be allowed before trial is commenced; and such, we think, is a reasonable and proper construction of our statute of amendments.

From the principles laid down in this opinion, it follows that the judgment in the Circuit Court in this case must be reversed.

JAMES JENNINGS, in error, v. JOSEPH E. MERCER.

1. APPEAL. Pauper oath, Amendment. Certificate, of appeal prayed and of taking pauper oath, does not prove appeal granted. Amendment

necessary.

FROM GREENE.

Appeal in error from the Circuit Court of Greene County, R. R. BUTLER, J., presiding.

James Jennings v. Joseph E. Mercer.

R. M. BARTON, for plaintiff in error.

MCKEE & MCFARLAND, for defendant in error.

The certificate referred to in the opinion is as follows:

"In this case the defendant prays an appeal, and swears, that, owing to his poverty, he is not able to bear the expenses of the suit, to the next term of the Circuit Court for Greene County, and that he is entitled to a recovery in the case.

"This, October 30, 1866.

"Test: WILLIAM MCCOY, J. P. for G. C."

NICHOLSON, C. J., delivered the opinion of the Court.

Defendant in error recovered a judgment for $75 against plaintiff in error, before a Justice of the Peace of Greene County. He prayed an appeal to the Circuit Court, and the Justice of the Peace certifies that he took the pauper oath, but no such oath, subscribed by him, is found in the record, nor does it appear from the record, that the appeal was granted by the Justice of the Peace.

On motion, the Circuit Judge dismissed the appeal, no motion being made to amend, or file a proper oath. There is no error, and the judgment is affirmed.

John G. King v. Wm. Booker.

JOHN G. KING in error, v. Wм. BOOKER.

APPEAL. Amendment, Appeal bond is evidence of an appeal granted, and no amendment is necessary to show it. Code, ? 4178.

FROM SULLIVAN.

From the Circuit Court of Sullivan County. E. E. GILLENWATERS, J., presiding.

JAMES G. DEADERICK, for plaintiff in error.

NICHOLSON, C. J., delivered the opinion of the Court.

Defendant in error obtained a judgment before a Justice of the Peace, in Sullivan County, against plaintiff in error. The latter executed a bond for an appeal, which recited that an appeal was prayed and granted; but it was not stated in the judgment that any appeal had been prayed for or granted. On a motion in the Circuit Court, the Justice was allowed to amend his judgment, so as to show that an appeal had been prayed for and granted, on or before the second day of the next term. The amendment not being made within the time, the Circuit Judge refused to allow the amendment at a subsequent day of the term, but, on motion of the defendant in errorr, dismissed the appeal. This was error. As the appeal bond showed that an appeal had been prayed and granted, this was presumptive evidence of the fact, and until the presumption was rebutted,

Wm. Boon v. Mary Rahl, by her husband, A. Rahl.

there was no necessity for any amendment. Code, § 4178. But if the presumption had been rebutted, the Circuit Judge should have allowed the amendment. Code, § 2875; 7 Hum., 61.

The judgment will be reversed, and the cause remanded.

WM. BOON, in error, v. MARY RAHL, by her husband, A. RAHL.

1. ATTACHMENT. Plea in abatement not an appearance. Pleading in abatement to an attachment is not an appearance, by which the Court acquires jurisdiction, of the person.

2. SAME. Same. Conclusion. A plea in abatement, traversing the causes of attachment set out in the affidavit, properly concludes to the country.

FROM KNOX.

From the Circuit Court of Knox County. E. T. HALL, J., presiding.

JOHN BAXTER, for plaintiff in error. Cited Hearn v. Crutcher, 4 Yerg., 461; Code, § 4321; Kendrick v. Davis, 3 Cold., 524; Foster v. Hall, 4 Hum., 346; Isaacs v. Edwards, 7 Hum., 465; Harris v. Taylor, 3 Sneed, 536; Chambers v. Haley, Peek, 159; Friedlander v. Pollock, Ms. King's Dig., § 61. J. R. COCKE with him.

M. L. HALL, for defendant.

TURNEY, J., delivered the opinion of the Court.