
    George G. M’Call v. Daniel Boatwright.
    
      Before Mr. Justice Evans, at Marion, Spring Term, 1834.
    Court oñthó oS-of the aínoumof decree and costs, ev5en<»u<of0"a judgcmcntwhere title sale” tho'emi-'3 of the judgement °2 the only judge-tíesí cáse™ “ A statement by
    Trespass to try titles. The plaintiff claimed under a purchase at sheriff’s sale, and as evidence of the judgement under which the sale was made, he produced an original summary process against the defendant, on the back of which the clerk hM made a statement of the decree and costs. The execution under which the land was sold recited a judgement, and the sheriff’s deed conformed to the execution ; but no judgement aPPeal’e<J t0 be registered or entered on the journals of the Court.
    defendant moved for a nonsuit, on the ground that there was not sufficient evidence of the existence of a judgement to authorize the sale. The presiding judge overruled the motion, and the jury found for the plaintiff.
    The defendant now renews his motion before this Court on the same grounds.
    
      Moses, for the motion,
    cited 1 N. & M’C. 408 ; 4 M’C. 291; 1 Faust, 290 ; 1 Bailey, 188.
    
      Ervin, contra.
   Johnson, J.

The judgement is the substratum of the execution and all subsequent proceedings thereon, and hence the necessity of producing it in evidence in all cases where rights acquired under it are called in question; and in Barkley v. Scriven, 1 N. & M’C. 408, it is said that the production of it is indispensable in cases where the party claims title to I and under a sheriff’s sale on fi. fa. The question then is, what is it which constitutes evidence of a judgement on sum. pro ?

It is not now, nor from what I can learn never was, the practice to enter up formal judgements in cases within the summary jurisdiction of the Court. They are usually tried by the judge, without the intervention of the jury, and the judgement pronounced ote tenus, which it is the duty of the clerk to enter on the journals of the Court. This is the universal practice, and I know of no other judgement in these cases. The judge usually enters on his docket the result of the case, as “Decree for plaintiff,” or “Decree for defendant,” and sometimes the sum is expressed, but this is not usual. The entry in the journal is in the form of an order or'decree, expressing the sum, and this is considered the judgement. The recital which accompanies the execution is not a judgement, but, as the term expresses, is a mere recital of the judgment, (see Foster v. Chapman, 4 M’Cord, 291,) nor is the memorandum endorsed on the back of the process in the handwriting of the clerk ; for that is the act of the clerk, unattended by any circumstance to shew that it had received the sanction of the Court; and it would be subversive of every thing like order and regularity to permit these loose memoranda to be substituted in the place of the regular and formal proceedings of the Court, the great excellence of which consists in their certainty. On this ground, therefore, the motion for a nonsuit must be granted.

O’Neall, J. concurred.

Harper, J. absent.  