McColgan vs. McKay.

On the trial plaintiff offered in evidence an account, stating items particularly, signed by the defendant. The part of this bill of exceptions giving a copy of this account is written so badly as not to be readable. Defendant's counsel objected to the account upon the ground that there was no sufficient evidence to authorize the plaintiff to recover; upon which motion the Court remarked that he would allow it to go to the jury, to which the plaintiff excepted.

Plaintiff closed his case and defendant moved for a nonsuit, which the Court granted. The plaintiff moved to be allowed to open his case and prove that the paper which was admitted to be signed by defendant was given in 1853, after a full and final settlement of the partnership, set out in the declaration, and was an acknowledgment of an indebtedness of $520, from the defendant to the plaintiff, which the Court refused, holding that when the plaintiff closed his case, he closed taking all the responsibility of what the Court would decide, and the case could not be opened, especially when the plaintiff had notice of the previous rulings of the Court in the case; whereupon plaintiff excepted, and assigns the same as error.

HAWKINS, for plaintiff in error.

MCCAY, for defendant in error.

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

We think, that the motion of McColgan, the plaintiff, for leave "to open his case, and prove that the paper" "was an acknowledgment of an indebtedness for the amount of five hundred and twenty dollars," should have been granted; especially, as McColgan resisted the nonsuit, insisting that Courts have no power to grant a nonsuit against the consent of the plaintiff, and it is, at least, a very doubtful question whether he was not right in this position. See 1. Pet. R

469.

Cottle vs. Dodson

It is almost a matter of course, to let in evidence upon a point, to save a non-suit. The practice is commended by every consideration of expediency.

We think, then, that the Court below erred in refusing this motion.

Judgment reversed and case reinstated.

THOMAS D. COTTLE, plaintiff in error, vs. JOEL DODSON, defendant in error.

A claim of slave levied on to satisfy an execution issued from a Justices Court, must be returned to the Superior or Inferior Court whichever may be first held.

Claim, from Marion county. Tried before Judge WORRILL, March Term, 1858.

When said cause came to be tried, it was moved to dismiss the claim, on the ground that the same was interposed on a Justice Court fi. fa., to a levy on a negro slave made before the November Term of the Inferior Court, and should have been returned to said Court. Whereas it was returned to the March Term of the Superior Court. Whereupon the Court refused to entertain jurisdiction and dismissed the case.

This motion was on the part of claimant, and the plaintiff in fi. fa. excepted and assigns error.

DAVIS & HUDSON, for plaintiff in error.

ELAM & OLIVER, for defendants in error.

Brooks vs. Colby, adm'r &o.

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

The statute requires that claims of slaves, levied on by virtue of a writ of fi. fa. issued from a Justices Court, shall be returned to the next Term of the Superior or Inferior Court, which ever may first happen, there to be tried. The law regulating thus, the time and place of trial, the parties are bound to take notice of it, and we must presume that the parties will respectively prepare for trial in the proper form. If the Sheriff fail to make a return as the law directs, the plaintiff in execution or claimant, may move a rule against him for the return of the claim.

The Court below ought to have stricken the case from his docket. It had no more authority to dismiss the claim than to try it, and I suppose all it did was to strike it.

Judgment affirmed

SAMUEL W. BROOKS, plaintiff in error, vs. FRANCIS S. COLBY, adm'r, &c., defendant in error.

No error for the Court to allow a complainant to rescind an order, to amend the bill, passed on his own application and for his own benefit, the bill having not been amended.

In Equity, from Randolph county. Decision by Judge KIDDOO, November, adjourned Term, 1857.

A bill filed by the administrator of J. M. Colby against

Brooks vs. Colby, adm'r &c.

Brooks, as the surviving partner of J. M. Colby & Co., for account and settlement.

On the trial, while the complainant's attorney was reading the bill to the jury, the defendant's attorney called his attention to an order, passed, October Term, 1855, on motion of complainant's counsel, striking out that part of said bill, relative to two specified notes. Complainant's attorney moved to rescind the order, and the defendant's attorney objected; Court allowed the motion, the order was drawn and put upon the minutes, reciting, moreover, that the bill had not really been amended under the first order; defendant excepted and assigns error.

W. C. PERKINS, for plaintiff in error.

TUCKER & BEALL, for defendant in error.

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

The order to amend the bill which was put on the minutes, and which it was now proposed to rescind, was moved by complainant, and can be considered nothing more than leave to amend. After obtaining the order the complainant did not amend, and the bill of complaint remained as it

was.

The order to amend was no amendment, when moved by the party, at whose instance it was granted, for his own benefit, it was not compulsory. The bill was, in fact, not amended. A bill is amended by either striking out or inserting matter, or engrossing the bill anew, adding the new matter, and so marking it as to distinguish it from the original matter. This is the mode of amendment in England. We follow it, except that we seldom engross the bill anew. There was no error allowing the order to amend to be rescinded, although that was not necessary to entitle the complainant to rely on the bill as it stood unamended.

Judgment affirmed.

Shelton et al. vs. Wright, adm'r.

JOSEPH T. SHELTON, et al., plaintiffs in error, vs. JOHN B WRIGHT, administrator of MARY M. SHELTON, deceased, defendant in error.

An illegitimate child fully legitimated by an Act of the Legislature, passed by the procurement of the putative father, becomes his lawful child, and such child and his lawful children, upon the death of either, intestate, inherit from each other.

Equity, from Taylor. Decision on demurrer to bill, and demurrer to plea to bill, by Judge LAMAR, April Term, 1858.

This bill was filed by the children and heirs at law of David Shelton, deceased, against John B. Wright, administrator of Mary Martha Shelton, deceased.

The bill alleges that David Shelton, was the father of a girl child called Mary Martha Nix; that said child was born out of lawful wedlock; that she was recognized and claimed by said David as his child, and that in 1854, he procured an Act of the Legislature to be passed, changing her name from Nix to that of Shelton, and fully legitimating her, and making her one of his heirs at law. That said David, in life, made a will by which, among other things, he bequeathed to said Mary Martha three thousand dollars; and afterwards said David departed this life, and said will was proven and recorded, and letters testamentary granted to E. H. Worrill. That afterwards the said Mary Martha died intestate, leaving next of kin, the complainants; that after her death, letters of administration were granted to Robert H. Dixon and John B. Wright, on her estate; that R. H. Dixon has since died, and that since his death the executor, Worrill, has paid over to the surviving administrator, the three thousand dollars by said will bequeathed to said Mary M., and that said sum is in the hands of said administrator, to be divided between her next of kin; that said Mary M. dying at the age of six years, owing no debts, the administrator has waived his right of delaying this suit twelve months after letters of administration granted him; and that they have requested said