
    
      REYNOLDS vs. THOMAS.
    
    West'n Dis'ct
    October, 1826.
    Appeal from the court of the sixth district.
    Where the motion for a new trial is not shewn by the record to have been made before the judgment was signed, the cause will not be remanded, because that notice does not appear to have been acted on.
   Porter, J.

delivered the opinion of the court. The defendant is sued on his promissory note, which has been endorsed by the payee to the plaintiff. The defence set up was, that the note which, on the face of it, purported to be due at sight, was by an agreement between the payee and the maker, payable several months after; and that the petitioner had notice of this agreement.

The endorser was by an order of the court made a party to the suit, and in answer to an interrogatory propounded to him, he categorically denied that any such agreement had been entered into as that stated in the answer.

On this proof, the judge below necessarily gave judgment for the plaintiff: the defendant appealed.

In this court he has moved to have the cause remanded, on the ground that he made a motion for a new trial, which was not passed on by the judge below, and the district court was adjourned improperly, before that motion could be heard.

Nothing on the record enables us to say there is the least foundation for this application. The judgment which it is alleged was rendered out of court, is shewn by the transcript to have been given in open court. The motion for a new trial, does not appear to have been made within the time prescribed by law. The judgment is signed and dated of November term, and the motion is of the, 4th December, we cannot therefore judicially know it was made within the time prescribed by the statute, which regulated our practice antecedent to the passage of the code. Every legal presumption is against it, for the judgment is signed, and the judge was prohibited from doing so, until the three days had elapsed for making a motion for a new trial. We must presume he did his duty, until the contrary is shewn. Acts of 1817, 32, 11.

Baldwin for the plaintiff, Thomas for the defendant.

We are unable to find any grounds to refuse the application of the plaintiff, that the judgment below should be affirmed with damages.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs, and ten per cent. damages on the amount of said judgment.  