
    FINE’S LESSEE vs. PITNER.
    Appeal. The lessor of the plaintiff purchased under a sheriff's sale the right of the defendant.
    For the plaintiff were produced copies of a grant, dated November the 10th, 1784, No. 514, upon a county warrant, for 300 acres, to William Thornton, on Cherokee creek. A deed from Thornton to Robert Rogers, and a deed from R. Rogers, by his attorney in fact, to the defendant.
    Kennedy for the defendant,
    objected to the reading of the last deed, unless the power of attorney were shewn, 1 Esp. Rep. 89, 90. He also shewed a record of the proceedings of the county court, front which it appeared that Nathaniel Taylor was a co-defendant there, having been admitted to defend with Pitner, the present defendant that he pleaded; judgement below for the plaintiff. An appeal was granted to the defendant upon his application, but not as to Taylor, who having applied by his attorney to the court for an appeal, was refused on the ground of not being present.
    
      How far it is competent to a defendantin ejectment, under whose title the plaintiff claims as a purchaser at sheriff's sale, to except to the vidence of of that title. A party not presentmay appeal by attorney, on giving security.
    Williams for the plaintiff,
    insisted that Taylor was no party there, and that it did not lay in Pitner’s mouth, to object to the want of a power of attorney, which is recited in his own deed. Tillery’s lessee vs. Wilson. A release which had been recorded from Taylor to the lessor of the plaintiff was produced. It relinquished claim to all the lands within the plaintiff’s line.
    
      
       Vide 2 Strange 1064. Honeycomb vs. Waldrow.
    
   Per Curiam.

Absent Campbell, j.

It is necessary to determine whether Taylor ought to be considered so far a party here, as to be competent to take any exception. The county court were Wrong in not permitting his name in the appeal, on account of not being present. An absent man may appeal by his attorney, upon giving good security; no injury however can arise to Taylor, by not considering him a party—having given a release to the lessor of the plaintiff, he is no longer interested in this dispute.

Agreeably to the case of Tillery’s lessee vs. Wilson, the defendant cannot object the want of a power of attorney.

Let the deed, without producing the power of attorney, go to the jury, and if necessary, it may hereafter be moved, when the opinion of the judges can be had.

Verdict for the plaintiff. 
      
       2 Caine's C. E. 326. 2 Bay. 141 3 Binney, 179.
     
      
       It seems to have been correct, to read the deed on the evidence of the recital. See 2 Caine’s C. E. 325.
     