
    Supreme Court of Errors and Appeals. Rogersville.
    1824.
    CHESTER, for Gann’s Use, v. E. AND E. EMBREE.
    In Error.
    Parties may, by consent, transfer a cause from the County Court to the Circuit Court for trial, where the cause is one which could have been brought in the Circuit Court by original writ. [Acc. Elkins v. Sams, 3 Hay. 44, which see. And see Greer v. Williford, Peck, 290.]
   Peck, J.

Cause commenced by writ in the County Court of Sullivan ; declaration filed ; an issue made up; the cause submitted to a jury ; juror withdrawn, and an agreement of the parties entered of record transferring the cause for trial into the Circuit Court of said county ; whereupon the Court order the transmissal of the cause; in the Circuit Court the parties appear to the action, and the Court hearing the cause order it to be stricken from the docket, as being improperly in that Court.

The inquiry here is, would the Circuit Court have had jurisdiction of the subject matter ? It is an action on the case, founded on contract, sounding in damages for about $ 400, and is such a case as could well have been brought in the Circuit Court by original writ; and as the parties could waive process, appear and plead to issue, so, we think, having appeared in a court competent to hear and determine the subject matter, the Court should have remained open and have done right and justice between the parties, without denial or delay. Bill of Rights, § 17; Elkins v. Sams and Jones, 3 Haywood’s Reports, 44; Cooper v. Butler, Rogersville, May term, 1823, MS. case.

Cause remanded to the Circuit Court to be proceeded on.  