Clements vs. Henderson.

recital in the deed of the requisitions imposed by the statute, would be prima facie evidence of the facts so recited. An administrator is an officer of the law, acting under the obligations of his oath of office. The law presumes, that every man in his private and official character, does his duty, and obeys the mandates of the law, until the contrary is proved. 1 Greenl. Er. 89. Bank U. S.

rs. Dandridge, 12 Wheat. Rep. 64.

In Hartwell vs. Root, 19 John. Rep. 347, the general rule is stated to be, that when a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended that he has duly performed it, unless the contrary can be shown.

It being a duty imposed on the administrator by law, to advertise the land sixty days previous to the sale, and to sell it between the lawful hours of sale, on the first Tuesday in the month, the law will presume that he has done so when recited in the deed of conveyance, until the contrary is shown. But it may be asked, if the law presumes the administrator has done his duty, why not presume he has done so without the particular acts being recited in the deed? The deed is the muniment of title delivered to the purchaser by the administrator, as the agent of the law, and should show upon its face that the requisitions of the law have been complied with, which would divest the heirs of their title, and transfer the same to the purchaser. The statute authorizes the administrator to make the sale, on certain terms and conditions, and, as the agent of the law, he ought to state on the face of his conveyance that the terms and conditions required by the law have been performed-to show on the face of his conveyance, that he conveys as administrator, and that he is acting under the authority of, and in obedience to, the law, from which he derives all his power to make it. We think too, that the presumption is strengthened by a written recital of the administrator in his official capacity, when making the deed. It is his official declaration, in writing, that the requisitions of the law have been complied with. In this case, the administrators have recited a part of the acts enjoined by the law to be done, in their deed; but it is silent as to the others. What is the legal presumption? We must presume that they stated the truth as far as they pretended to state, and that they omitted to state the land had been advertised and sold between the lawful hours of sale, because the facts would not

Smith vs. The Inferior Court of Randolph Co.

authorize them so to state. Our conclusion, then, is, that where a party derives his title to land under an administrator's sale, he must show the order of the Court of Ordinary granting the administrator a license to sell, and when it is shown he had the authority of the Court of Ordinary to make sale of the land, it must be further shown to the Court, that the administrator, in making such sale, pursued the directions of the statute, before the title of the heirs of the ancestor will be divested. That the recital in the deed of conveyance made by the administrator to the purchaser, of the acts required to be done by the statute, in making the sale by the administrator, will be considered as prima facie evidence of their having been done, as therein recited, until the contrary is shown. There being no evidence before the Court below, either in the administrator's deed, or otherwise, showing the land had been advertised and was sold between the lawful hours of sale, the judgment of the Court below must be reversed, and a new trial granted.

No. 16.-SEABORN A. SMITH, and others, plaintiffs in error, vs. THE JUSTICES OF THE INFERIOR COURT of Randolph county.

This cause was called in its order upon the second day of the Term, and no assignments of error having been filed, and there being no appearance for either plaintiff or defendant, and no motion made, by order of the Court it was stricken from the Docket, and the writ of error dismissed.

Johnson vs. Bemis.

No. 17. SAMUEL JOHNSON, plaintiff in error, vs. CHARLES F. BEMIS, defendant in error.

[1.] An entry on the motion docket is no part of the record.

[2.] The Judges may make rules for new trials, returnable in vacation, in cases where the application has first been made in Term, and recorded, and where the record shows that such rule is so made returnable in vacation.

Motion for a new trial, decided by Judge WARREN, Early Superior Court, April Term, 1848.

At February Term, 1840, Charles F. Bemis recovered of Samuel Johnson, in the Superior Court of Early county, a judgment for $2538 74, principal, with interest and costs. At the same Term a rule nisi was granted for a new trial at the instance of the defendant, to be heard at the next Term, on the ground “that “the defendant is unable to give security to enter an appeal, and "that he has a valid and bona fide defence to said action, as set "forth in his affidavit, viz: that he expects to plead and prove "payment of said pretended debts, if he can have a new trial; and "that such plea was not filed before trial through mistake or over"sight of his counsel," which rule was ordered to operate as a supersedeas.

At the August Term, 1840, the presiding Judge entered on the motion docket opposite this rule, "Time taken to decide the point, and the decision to be written out by Christmas."

The minutes of the Court showed no further action, but on the 18th May, 1841, at Chambers, the presiding Judge made the following order:

"Charles F. Bemis,

vs.

Samuel Johnson.

Assumpsit and attachment in Early Superior Court, Aug. Term, 1838.

Rule nisi for a new trial.

The rule nisi having been refused in the foregoing case, it is ordered that execution issue instanter for the principal, interest and cost due upon said judgment.

WILLIAM TAYLOR, J. S. C., S. W. C."

On the 2d June, 1841, the Clerk of said Court issued an execution accordingly.

At April Term, 1847, Samuel Johnson moved a rule against Bemis, the plaintiff below, upon the foregoing facts, to set aside

Johnson vs. Bemis.

and annul the execution and judgment, on the ground that the judgment was entered up and the execution issued pending the supersedeas.

The Court below refused the motion, and ordered the entry on the motion docket, and the order of the Judge at Chambers entered on the minutes nunc pro tunc, which decisions are now complained of as erroneous.

STURGIS, for plaintiff in error.

CARITHERS, for defendant.

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

sue.

1. The motion in the Court below was to set aside the judgment and execution against the plaintiff in error, because, after granting a rule nisi for a new trial, returnable to the next Term with a supersedeas, the presiding Judge had, in vacation, when there was no order to that effect taken and entered on the minutes, considered and dismissed the rule, and directed the execution to isThis motion was refused by Judge Warren, and hence this writ of error. We think the motion to set aside the judgment and execution, ought to have prevailed. The order at Chambers to dismiss the rule, and directing the execution to proceed, was irregular and void, and the supersedeas was not for that reason thereby dissolved. The supersedeas was operative until the rule for a new trial was legally disposed of. We have already decided this question.

[2.] We have held, and now hold, that applications for new trials must be made at the Term when the judgment is rendered and entered upon the minutes of the Court. And that rules for new trials may be made returnable in vacation, and then heard and determined, when an order to that effect is taken at the judgment Term and entered upon the minutes, and then only. Grady vs. Hightower, et al., 1 Kelly, 252. In this case there was no order entered on the minutes to hear and determine the rule in vacation on the contrary, the rule was made returnable in Term. It is true that there was an entry on the bench docket, made at the return Term of the rule, to the effect that the Judge would take time to consider of it, and write out his opinion by Christ

mas.

Johnson vs. Bemis.

[1.] An entry on the bench docket is no part of the record— that docket we view in the light of a memorandum for the convenience of the Judge and nothing more. So determined by this Court in Bryant, guardian, rs. Owen and wife, 1 Kelly, 355.

It appears, further, from this record, that at the time when application was made to set aside this judgment and execution, an order was passed directing the order of the Judge (Taylor) at Chambers, dismissing the rule nisi, and also the entry on the motion docket before referred to, to be entered on the minutes, nunc pro tunc. This order could not cure the irregularity. Judge Taylor had no authority in this case to pass the order in vacation dismissing the rule and directing the execution to issue. It was illegal and void. It could not be made legal and valid by an ex post facto amendment of the record. And as the entry on the motion docket was no part of the record, at any time, it could not be made so by an order nunc pro tunc. An act, wholly without authority, cannot be sanctified by subsequently doing what, being done antecedent to it, would have given authority for that act. Let the judgment be reversed.