The counsel for the defence moved in this Court, to dismiss the appeal upon the ground, that there is no case stated as required by the C. C. P., sec. 301. In 1 he case made out by His Honor, he says, “ the statement of the case by plaintiff’s attorney, accompanied by four specific objections thereto, proposed by defendant’s attorney, are first transmitted to me by mail out of the District, with transcript of the record, etc., and that no request from the appellant has been made to me in accordance with C. O. P., sec. 301, to fix a time and place for settling the case.” The proceeding, is certainly very irregular, but this Court has heretofore been liberal to counsel in Buch matters, as the transcripts which we see from every part oí the State, show that the profession have not yet become familiar with the new system of legal procedure, and are somewhat disposed to follow the loose practice heretofore in use.
The statement of the case made by the appellant, and the defendants’ specific objections, together with the notes of TTis Honor, enabled him to make out a case containing the substantial merits, of the controversy. As there was no request from the counsel of either party to be present, when the case was settled, His Honor might well infer, that they were willing that he should, in their absence, make out the case for the Supreme Court.
If it had appeared that the defendant’s counsel desired to be present, and the rights of their clients had been prejudiced by the irregular proceeding, this Court would order a certiorari to have a new, and more formal case, prepared.
A Judge who holds a Special Court out of his regular district, must necessarily have jurisdiction to settle a case tried before him when there is an appeal, and this must be done in the district where tbe case is tried, unless the provision of law *144wbicb is made for the convenience of parties, is waived, expressly or by implication.
As the case made out by His Honor, shows error in the rejection of material and competent evidence on the trial in the Court below; we think that justice requires that the case should be submitted to another jury.
The plaintiffs offered for sale, at public auction, a vested remainder in certain slaves, as the property of their intestate. The title to said remainder was claimed by M. H. Whitesides, who forbade the sale. In order to make the property bring a fair price, a public announcement was made to the bidders, that if the purchaser did not get the negroes, they were not to be paid fox*. The defendant Williams, became the pui'chaser, executed the note sued on for the purchase money, and received a conveyance of the interest in remainder in accordance with the terms of the sale.
A vested remainder in slaves was a subject of sale, and a purchaser of such interest acquired a property and was entitled to the possession of the slaves on the termination of the pro-cedent life estate. — Knight v. Leake, 2 Dev. & Bat., 133.
The slaves sold, remained in the possession of the owner of the life estate, until they were emancipated. Emancipation, was not contemplated by the parties at the time of sale, and the pxibliq announcement made by the plaintiffs, and acted upon by the defendant, was in reference to the legal title of such remainder, which was in dispute. This is clearly manifested by the express terms of the bill of sale which embraced the contract between the parties, and is not materially contradicted by any of the testimony.
If the legal title was in the intestate, it passed by the sale to the defendant, and was bound for the purchase money. The plaintiffs took no risk, but “ the title of said negroes as to the interest expressed,” and if the slaves had died, the loss would have fallen on the purchaser, as they were his property, subject to the life estate, and emancipation was their artificial death —Woodfin v. Sluder, 8 Phil., 200.
*145No one disputed the title of the intestate but M. H. White-sides, and it was material for the plaintiffs to show that the title of this claimant had passed to their intestate.
The evidence, therefore, which the plaintiffs offered to introduce, was admissible, and was improperly rejected by His Honor.
Eor this error there will be a venire de novo.
Let this be certified.