
    Heydon vs. Lockhart's administrator.
    
      December 10th.
    
    The prefumption is, that tne have done'ri^ght until the contrary appears
    a fide, Mill be prefumed to have been, fet afide for fufE-cienc caufe un-lefs the contrary appears from the record.
    
      Judge Bibb did not fit in the caufe.
   OPINION of the Court, by

Judge Trimble.

— In the former opinion given by this court in this cause, the legal principle, that what is done in a court of justice shall be presumed to be rightly done, is admitted ; but this case, as to the point noticed in the former opinion, was then supposed not to come within the influence of the princi-P^e* This idea was then entertained because it was supposed to be a general rule that a nonsuit cannot be set aside; and that from this general rule there were but very few exceptions, and those depending upon special circumstances. Upon further examination it appears that there are such a variety of cases in which nonsuits may be set aside, (it is true, upon special circumstances,) that the rule relied upon in the former opinion seems entitled to much less weight than was then apprehended. That in order to authorise the setting aside a nonsuit, special reasons for so doing should be shewn to the court setting it aside, cannot be denied. But the question is, must those special circumstances be shewn (upon the record) to this court to prevent a reversal of the order setting the nonsuit aside ?

After much reflection,'we are satisfied this is not necessary ; and that if the defendant below be dissatisfied with the opinion of the court, it is his duty to except thereto, and to exhibit in his bill of exceptions such a case as will enable this court to see the inferior court has erred ; for in this case, as in the case of a new trial granted, and many others which might be named, the legal principle must hold, that the inferior court must be presumed to have done right until the contrary appears. The application of this principle to the present case can produce no hardship upon the party who complains of the proceeding of the inferior court, because the record proves he was present and opposed the setting aside the nonsuit, and consequently _ might have excepted if he would, but failed to do so.

We are therefore of opinion the former opinion and judgment of this court was erroneous.

The other errors alleged in the record, not particularly noticed in this and the former opinion of this court, have no weight in them, and must be overruled.

Former opinion and judgment of this court set aside, and judgment of the circuit court of Jessamine affirmed,  