1. Opening. See CHANCERY SALE. Newland v. Gaines, 720.
1. When to be made. A bill of exceptions not made and signed at the
term when the cause is tried, is a nullity, and can not be looked to as
part of the record. Girdner v. Stephens, 280.
2. Not signed. A bill of exceptions which is not signed can not be treated
as part of the record, though the record recite that it was signed and
sealed, &c. Garrett v. Rogers, 321.
3. Where the bill of exceptions does not purport to contain all the evi-
dence, no insufficiency of proof, however great, will authorize a
reversal. Heatherly v. Bridges, 220.
4. Exhibit lost. Remand to supply. Where a paper, the loss of which can
be supplied in the inferior court, under the Code, is shown by the
bill of exceptions to be lost, the cause may be remanded to supply the
loss. Mynatt v. Hubbs, 323.
5. No charge. Judgment affirmed. Where the bill of exceptions is de-
fective in a material particular, by reason of which no error appears
in the record, the judgment below must be affirmed, as where there is
no charge, and a proper charge would sustain the judgment below.
Nave v. Nave,
324.
6. Affidavit of loss. An affidavit of the loss of primary evidence is no part
of the evidence submitted to the jury, and the failure to make it part
of the bill of exceptions does not negative its existence, though the
bill purport to contain all the evidence. The Southern Express Co. v.
Womack, 256.
7. Facts in a bill of exceptions cannot aid a defective judgment by mo-
tion. Stuart v. MeCuistion, 428.
8. Petition for discovery. An answer to a petition for discovery can only
be made part of the record by bill of exceptions. Hays v. Craw-
ford, 86.
1. Error apparent. Error apparent in a decree is such error of law as ap-
pears, assuming the facts to be such as are stated in the decree, not
errors of fact apparent from the proofs. Burson v. Dosser, 754.
2. Waiver by taking security. Whether a vendor intends to waive his lien
by taking personal security is a question of fact. The law presumes
the waiver, but this may be rebutted by proof. Ib.
3. Error in decision as to. Error in deciding upon the fact of waiver is not
error apparent on the face of a decree. Ib.
4. For error of fact. Leave. It seems that the propriety of the leave
BILL OF REVIEW-Continued.
granted to file a bill of review for errors of fact can only be tested
here after a motion to dismiss in the court below, and by having
made the evidence on which the leave is based, part of the record.
Ib.
How stated. New matter must be so stated in a bill of re-
view, so as to enable the court to determine upon demurrer, whether
or not, when produced, it will be controlling in the cause, or be merely
cumulative, not necessarily changing the result; and whether the
party has been guilty of any negligence in failing to discover and
produce it before. Ib.
6. Cumulative Evidence. Cumulative evidence, upon matters to which
proof has been taken on the former trial, is not sufficient ground to
sustain a bill of review. Ib.
1. Indorsement. With recourse. The surrender of notes, and the conse-
quent release of the liability of the assignor, implied from an in-
dorsement, with recourse, was a valid and sufficient consideration for a
Torbett v. Worthy, 107.
1. Signed by one member in name of firm, good.
man, 36.
2. In replevin. Evidence of amount in controversy, on question of juris-
diction. Cline v. Gaut, 399.
See CHANCERY PRACTICE-Injunction.
1. The legality of a capture of private property in time of war, is not to
be presumed, but must be proved. Branner v. Felkner, 228.
2. Who may make. A private soldier, without orders, can not make a
capture of property in the hands of a citizen, in time of war. Ib.
3. Proof. Evidence that parties, dressed as soldiers, and claiming to be
such, took out of the possession of a citizen, a horse, which had pre-
viously been used in the Confederate service, will not protect from
the claim of the owner, a person afterward found in possession of the
horse, claiming to have received him from the soldiers. Ib
4. Title of United States. The title of the Government of the United
States to personal property, is subject to be contested by a citizen who
has a claim to the property. Dawson v. Susong. 243.
5. Government brand. United States brand on stock, and a sale of it at a
public sale, will not preclude the true owner of the stock from the
recovery of it. Government brands on stock are evidence that the
United States has had the property in possession as a claimant, but
does not prove a title. Ib.
6. Rights of war. Public enemy. See McAdams v. McChristian, in note
to p. 245. Ib.
7. Facts to prove title under. Proof that a horse was captured during the
civil war, by a few Federal soldiers, from two to three persons dressed
as rebel soldiers, said to belong to Morgan's command; turned over
to a County Provost Marshal; and that afterward, it came into the
defendant's possession, he claiming to have obtained it by military
order, is not sufficient evidence to defeat the right of the owner, from
whom it had been taken by theft or unlawful force. Chesney v.
Rodgers, 239. McAdams v. McChristian, 245, n.
1. Evidence to make question of restricted liability, A printed form of re-
ceipt, generally used by carrier, but not used in the particular case,
and not shown to have been known to the employer, does not raise
the question of the power of a carrier to restrict his liability by con-
tract. Southern Express Company v. Womack, 256.
2. Freighter. Concealment by. A person omitting, without fraud, to state
the character and contents of packages, fully, may be precluded from
recovering the value of the articles so omitted; but his right to recover
for articles enumerated will not be affected, Ib.
3. Want of transportation. Want of means of transportation to carry
articles received for transportation, is no defense to a suit for failure
or delay to carry them. It is questionable whether this liability can
be limited by contract. Ib.
4. Public enemy. United States was. In the late civil war, the troops of the
United States were a "public enemy," against whose act a common
carrier within the Confederate lines, did not insure. Ib.
5. Freight paid in illegal currency. Effect. If a common carrier accepts
goods to be carried for hire, the fact that the freight was paid and
accepted in an illegal currency, would not affect his liability for the
loss of the goods by negligence. Ib.
1. Reviewed. Yarborough v. Abernathy, Meigs' R., 418; Angus
v. Dickerson, Ib., 459; Dodge v. Britain, Meigs' R., 85; Eng-
land v. Burt, 4 Hum., 401; Petitt v. Petitt, 4 Hum., 191;
Jones v. Jennings, 10 Hum., 428; Walker v. Galbreath, 3
Head, 315......
Turner v. Carter, 1 Head, 525...........
Williams v. Tipton, 5 Hum., 66; Henry v. Compton, 2 Head,
552; Decherd v. Edwards, 2 Sneed, 102; McNairy v. East-
land, 10 Yerg., 316, 320....
Turney v. Wilson, 7 Yerg., 310; Walker v. Skipwith, Meigs' R.,
502; Johnson v. Friar, 4 Yerg., 48; E. T. & Ga. R. R v.
Nelson, 1 Cold., 272......
Trott v. West, 9 Yerg., 335; Puckett v. James, 2 Hum., 566;
F. & M. Bank v. Leath, 11 Hum., 517; McKizzack & Co.
v. Smith, 1 Sneed, 472; Birdsong v. Birdsong, 2 Head, 603;
Byrn v. Fleming, 3 Head, 663; State v. Crutcher, 2 Swan,
514..........
2. Cited and approved. Seay & Sheppard v. Hughes, 5 Sneed, 155
Reynolds v. Baker, 6 Cold., 221..
Turner v. Ireland, 11 Hum., 447.
Hammond v. State, 3 Cold., 236..
Fottrell v. German, 5 Cold., 580.....................................
Hurley v. Coleman, 3 Head, 265......
3. Approved and distinguished. Coleman v. Raynor, 3 Cold., 26...
4. Cited and distinguished. Satterfield v. Mays, 11 Hum., 58;
Bridgewater v. Gordon, 5 Sneed, 5....
5. Modifiel. Hopkins v. Webb & Hayes, 9 Hum., 519; Chester
v. Greer, 5 Hum., 34, 35; Williams v. Tipton, 5 Hum., 66...
Hudson v. State, 9 Yerg., 408; Ewell v. State, 6 Yerg., 364,
374........
6. Explained. Smith v. Vanbibber 1 Swan, 110.........
Cave & Schaffer v. Baskett, 3 Hum., 340...
Smith v. Brazelton, 44........
8. Overruled. Norwood v. Stephens, 7 Cold., 1........... ..... ...
Yost v. Stout, 4 Cold., 205......
9. Partially overruled. Davidson v. Manlove, 2 Cold., 346.......................
Wood v. Stone, 2 Cold., 370........
Wright v. Overall, 2 Cold., 336...
Thornburg v. Harris, 3 Cold., 157..
Hale v. Sharp, 4 Cold., 275.....
Fain v. Headerick, Ib., 337.....
1. Ercuse for delay. A statement in a petition for certiorari, that the exe-
cution gave to the defendant "the first reliable knowledge" of the
judgment, is equivocal, and is not sufficient to excuse delay in apply-
ing for a certiorari. Gillam v. Looney, 319.
2. Excuse for not appealing. So, it is not a sufficient excuse for not ap-
realing, that the defendant had the same question pending in the
Circuit Court, and understood that the Justice would postpone the
judgment until that was decided, the certiorari being applied for two
years after judgment, and several months after the decision of the
court case. Mc Dowell v. Keller, 419.
3. So, that petitioner "has no recollection of ever having been notified of
the trial or judgment, although the warrant appears to have been
returned executed;" that he "was taken completely by surprise
when the execution issued; and that "he would have seen to his
interest long since, but for his want of knowledge of the existence of
said liability," and praying relief, "as he never was cited to trial, as
he now best recollects," the application being made more than five
years after judgment; and it being admitted in the Court below that
the return of service was made, and was true; this was held to be no
sufficient cause for not appealing. Smith v. Brown, 320.
4. Fiat. A certiorari issued without a fiat is subject to be dismissed.
Mc Dowell v. Keller, 449.
5. Motion to dismiss. A party is not bound to move to dismiss a petition
for certiorari, until the first term after he is served with process; and
the service within five days before the term, will leave him at liberty
to make the motion at the next term. Ib.
6. Same. Where appearance is the only evidence of service, the motion
may be made at the term at which the party appears. Ib.
7. In Supreme Court. See SUPREME COURT.
1. Assignment of a bid at Chancery sale, after sale set aside and re-sale
made, is void for. Newland v. Gaines, 720.
1. Legal remedy embarrassed. A note deposited as security, being deliv-
ered up and renewed by the payor delivering to the holder a new
note payable to the owner, the new note was collected in Confederate
money by the holder and delivered up, after the liability for which
he held it had ceased. Held to be a proper case for equity jurisdic-
tion. Scruggs v. Luster, 150.
2. Remedy at law. Purchaser at Chancery sale. If purchasers of personal
property, attached and sold under a Chancery decree, in a case in
which they were complainants, are sued at law by the defendant in
that suit, for the value of the property, their defense at law is plain
and unembarrassed, if their decree is valid, and they can not sustain
a bill to enjoin the suit at law. Huddleston v. Williams, 579.
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