40 Tenn. 603 | Tenn. | 1859
delivered the opinion of the Court.
The bill of exceptions which was made up at the trial term in November, 1858, omitted to state that it contained all the evidence used in the case. To be relieved from the consequence of this omission the defendant below, who lost the cause and whose business it was to see that the bill of exceptions was properly made out, at the July term, 1859, moved the Court for leave to amend the bill of exceptions by stating that the same, as signed, sealed, and made part of the record at the November term, 1858, contained all the evidence that was before the jury at the trial of the cause at said November term, at the same time proposing to the attorney of the plaintiff that he might insert any evidence before the jury and not included in said bill of exceptions. No further evidence was inserted, and the Court being of opinion that said bill of exceptions contained all the evidence before the jury at the trial of the cause, the amendment was made. To this the plaintiff excepted. In support of this practice we have been referred to the case of The State v. Reid, 1 Dev. & Batt. R. 381, and other decisions in the State of North Carolina. These authorities are not directly upon a case like this, and appear to me, in principle, to differ from it. They seem to relate to amendments, nunc pro tunc, allowed in the inferior court, after appeal or writ of error and transcript in the superior court being made to conform to them, they arc not open to inquiry in another court, either as to their propriety, or as to the periods at which they are made. The rule as stated by Judge Ruffin in the The State v. Reid, is that after a case has been transferred from one court to another, whether by appeal or change of venue, the court from which it has gone cannot proceed further in it. Whatever purports to be posterior to the loss of jurisdiction is, therefore, erroneous, and probably void. But the princi-
But whatever may be the extent to which the decisions in North Carolina have gone, we understand our own adjudications to be decidedly against the exercise of the authority taken by the Circuit Judge. Staggs v. The State, 3 Hum., 372-375; Farrell v. Alder, Adm’r, 2 Swan, 77.
The bill of exceptions then, not being full, the chief part of the argument for the plaintiff in error loses its effect. It cannot be assumed that the plaintiff below had shown no title to the land in dispute, either by a regular chain of conveyances, or twenty years’ possession ; but, on the contrary, in support of the verdict, we will presume that there was evidence, other than that copied into the transcript, which established a perfect title in the plaintiff. 1 Meigs’ Dig. 124. And if need be, we must also presume that this evidence not only showed a valid paper title from the buckeye, north, as claimed by the plaintiff, but also that this line had been actually marked and established.
Wo understand, that for the purpose of ascertaining the true line of a disputed and uncertain boundary between adjacent tracts, the acts and declarations of the former owners and proprietors, which took place and were made during such ownership, especially if accompanied with possession, conducing to establish the common line, are admissible as original evidence. 1 Meigs’ Dig., 151, 152, 153. This is so,.whether they be dead or alive, admissible or inadmissible as witnesses in the controversy. They do not stand upon the same footing as the declarations of third persons. 2 Dev. & Batt., R., 241. Then there is no error as to this matter.
Neither are we able to see that the Circuit Judge erred in permitting the deposition of James R. Cheek to be read,
We therefore affirm the judgment of the Circuit Court, and do so the more cheerfully because, from the record before us, we are satisfied the merits of the case have been reached.