The transcript having been filed by the appellee, we are now asked to inspect it and to withhold an affirmance of the judgment, if such errors appear upon the face of the record as would be sufficient to reverse it. The Court is of opinion, for the reasons that will be given by my brother-Henderson, that under the circumstances of this case, it is proper to look into the record. We, therefore, have considered the errors pointed out, and will now give an opinion on them.
The first is, that the husband and wife both come by their attorney ; whereas, being but one person in Law, they could not do so. In support of the objection is cited the case of Maddox v. Wynne ; * but the error assigned there, was that the husband and wife came by their* at-. *237 tornies — per attornatos suos — in the plural. The princi-pie to be extracted from the case is, that as they are but one person in law, the wife cannot appoint an attorney. Therefore, if an action be brought against husband ami wife, if the husband appear by attorney, he shall enter an appearance for both.* Nor is it error for them to appear by attorney, though the wife be'under age ; because the husband may by law make an attorney, and appear both for himself and wife.† The doctrine is further illustrated by the form of defence.given in the precedents — " and the said C. D. and E. F. his wife, by G. H. their attorney, come and defend the wrong and injury,” &c.‡ In the case before us, the husband was obliged to join in the plea with his wife;§ and the attorney employed by him, necessarily became the attorney of both, and must have pleaded for both. For these reasons, I think the objection untenable.
It is further objected, that as the words themselves contained in the writing, do not impute any offence, but are. libellous only by being understood to imply something, it is necessary that the design in using the words should be first averred by way of introduction, and then their meaning stated by inuendo ; and although an inu-endo is stated here, yet the office of an inuendo is not to charge, but merely to act as a videledt to what has been stated.
Without pausing to consider whether the words charged in this declaration are so written, by way of allusion and reference, as to require explanatory allegations— whether it was necessary for the Jury to find that they meant to convey the imputation of the Plaintiff’s being a sot and a drunkard, in order to enable the Court to understand them in that sense ; but admitting, for the purpose of this argument, that such technicalities were neces*238sary, I will proceed at once to enquire whether the ne« cessary averments are put upon the record.
The first count in the declaration charges, that the Defendants combined to cause it to be believed, that the Plaintiff was a common sot and habitual drunkard. The second count, upon which alone the judgment' was rendered, charges them with “ further contriving and intending, as aforesaid.” This further combination and contrivance relate to the same object, viz. to cause it to be believed that the Plaintiff is a common sot and habitual drunkard. Thé-introductory averments in the first count are thus connected with the second count, which then proceeds to state the libel, and concludes with an inuendo, that its meaning and intention was, to lmve it believed that the Plaintiff w7as a sot and drunkard. The inuendo, therefore, does not enlarge or change the sense of the previous words, but is only explanatory of the matter previously expressed, by applying the libel to it. Nor is it of any consequence, whether the extrinsic matter is introduced on the record by averment, recital or general inference; for if the introductory matters and inuendos appear upon the record, they amount to sufficient aver-menls.* Upon the whole case, therefore, I think the judgment must be affirmed.
The appellee, upon the failure-of the appellant, has filed the record here; but he now prays nothing from the Court, and only demands a certificate from the clerk. I am of opinion, that he is not entitled^© it", and that we are bound to look into the record and pronounce such judgment as the Court below' should.' Upon the failure of the appellant to file the papers in time, two modes of proceeding are given to the appellee by the act establishing this Court. The first is, to obtain a certificate of the clerk of such failure, and to proceed to enforce his judgment in the Court below by pro*239cess from that Court. For an appeal to this Court does not, like one from the County to the Superior Court, entirely annul the judgment of the Inferior Court, but only sul) modo, that is to say, provided the record is received, and the appeal entertained hy this Court. It is otherwise with appeals from the County Court. Before the judgment can ever he acted on, it must be affirmed by the Superior Court. The other mode is, for the appellee to file the transcript himself at any time within the first or second term of this Court after the appeal was granted, and mo\e for judgment of confirmation. By the act of filing the record, the appellee moves for judgment of affirmance. It is the only legal construction which can be put upon his act; for he can have no other legal object in view. And his act points with so much certainty to this object, that he shall not at the time of doing it, nor at any other time, aver a contrary design. The words can neither qualify nor give to the Set an explanation, contrary to the legal intent. We must, therefore, reject the appellee’s declarations, made at the time of filing the transcript, and view the appeal as here. Suppose he had not filed the record at this term, but had taken a certificate, on which he had acted ; but could not obtain satisfaction by execution from the Court below, against the appellants. He could not at the next term bring up the record, for the sake of his chance for an affirmance, that he might have execution against the sureties also. No more can he have a certificate after once asking for an affirmance j which he does by filing the transcript. He must take one course or the other from the beginning, and abide,by his choice.
The appellant’s counsel has urged as a reason whj the judgment should be reversed and a new trial granted, that the Judge omitted to make up a case. He contends that an appeal pre-supposes a case; and as none appears, the remedy must be by new' trial, for otherwise, «irreparable mischief would be don©; and non© will arise *240from it, because if the merits be with the Plaintiff, the result will be the same upon %'second trial. This reasoning would be unanswerable, were the premises correct. jju^. tj)0y are n{)^ -_4n appeal does not necessarily presuppose a case to bo stated by the Judge, from whose opinion, on the case, the appeal was taken. For the ap - peal can as well be from a judgment on what is called emphatically the record, that is to say, the writ, declaration, pleas, replication, &c. to the issues, verdict and judgment, as from any opinion of the Judge given on points arising in the progress of the cause. This matter is verified in the very case now before us ; for the appellant now urges that this judgment ought to be reversed for alleged defects in the declaration, and other errors appearing on the face of the proceedings. For these, and the reasons given by the Chief-Justice, I am of opinion, that there ought not to be a new trial, and that the judgment must be affirmed.
IIaie, Judge, concurred upon all the points : so that,
By the iVhoxe Court, the judgment was affirmed.