Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-02-01
4tniun and gispatth.
DECISIONS OF THE SUPREME
COURT.
Knoxville. Tenn. September Term



Joln Boslcr, IN Error, rs. i. Huddiesion.
Shackelford, J., delivered the opinion as
follows:
The suit was commenced in the Circuit
Court Of Union county, by the defendant in
error, by an original attachment sued cut
against the plaintiff ID error, as an abscond-
ing debtor.
The process was issued by the Clerk OF the /
Circuit Court, on The 18th Of April, return
able b that SQUIRT at Maynardsyille, TO be !
held the lst Monday after the % Monday I
Of Nav, 1868, and tested the 2d Monday Of \
February Of that year.
The property of the defendant was at
tached and returned By the sheriff on the
18th Of April, 1865. On the Both Of May
thereafter, the declsration Of the defendant
in error with his account, which is an I'M
iquidated one for goods, wares and mer-
chandise, was filed. Al the October term,
1865, a Judgment by default was taken, and
final Judgment rendered without the inter
yention OF Jury, and relduiOHi eIp0n0s
ordered 30 issue. The record has been filed
for error. The time fixed by law for hold
ing the court at Maynardsville, is the lst
Monday ailer the 4th Monday in May,
September and January, in each year. 1t
is assigned for error the attachment being
returnable 10 time different from that
liked by law for holding the court, the
Judgment is void, the plaintiff in error
having no notice Of the proceedings OF the
suit. Such is not our opinion Of the law
governing this case.
The leyying Of the attachment and no
tee by publication is in lieu Of the per
r. H. Ara-larrf
of the defendant in error was hled al
the regular term, afterthe levying Of the al
tachment, with the account.
AT the October term following iadg-
meut by default was taken that Judgment
recites publication was duly made.
The record does not show any amend
ment was made. Sections 1853, 1886 and
2.sC7 Of the Code authorize all material
amendments 10 be made. These sections
Of the Code are substantially the proyis-
ions Of the act Of 1852, authorizing amend
ments in civil suits. This court, in the
construction Of this act, say, the general
rule in respect 10 the statutes Of amend
ment and jeofails Is that amendment
in point Of fact, need not be made" The
benefit OF statute j. obtained by the courts
overlooking the exception, or considering
the amendment as made. lst Sneed, 4l8 ;
Sd Black. Com, 407 lst Saund, 228, note !,
No bills Of exception were fled in this
cause we are therefore bound, under the
principle settled, 10 regard the amendment
as having been made. BY section 4,5lG Of
the Code, " No Judgment, decision or de-
cree ofthe inferior court shall be reversed
in the Supreme Court, except for errors
which affect the merit Of the judgment
complained Of" This assignment Of error
falls within the principle provided by the
section aforesaid, and Is not such error
which this court can reverse.
The Judgment fnai rendered without Che
Intervention of q jury upon the papers
filed was error Section 1852 Of the Code
provides, a judgment is final if the
amount of the plaintiffs claim can be as
certained from the papers. When the
amount cannot be ascertained thus readily,
the damages shall be obtained by a jury,
empanneled az the same term for the pur-
pose" This court held, Sd Head, 3l3,
" The term papers in this section refers 70
written or other evidences upon which the
action is founded, and not 10 the pleading"
Il was intended 90 apply to notes, bonds
bills, unliquidated accounts, etc, any other
construction would open a door 10 fragd,
30 permit judgments 10 be rendered on &C.
counts without proof We approve of the
construction given Of this section OF the
Code: il is founded in reason and sound
policy. The Judgment will be reversed
and the cause remanded 10 the end that a
Jury may be empanneled 10 ascertain the
amount due the defendant in error.
Br0Dn, IN Error, e. Woods.
HAWKINS, j., delivered the opinion ~
follows:
Brown, through his agent, sold to
Woods two mules aud one horse colt for
S75 90, and gave 10 the purchaser a
written bin of sale Afterwards another
party instituted an action of repleyin
against Woods aud recovered the colt
upon the ground Of superior title.
Thereupon Woods instituted this suit
against Brown 10 recover damages conse-
quent upon the failure Of this title to the
colt. The suit was instituted before a Jus
tice of the Peace for Hamilton county, and
taken bv appeal % the law court Of Chat
tanooga. In which a trial was had which
resulted in a verdict and judgment in favor
Of the plaintiff. from which the defendant
has appealed 70 this court.
The only question in the case arises
upon the charge Of the court, who, as ap-
pears from the bill Of exceptions, among
other things not excepted 70, charged the
Jury that should they believe from the
proof that defendant, Brown, sold the
plaintiff two mules and h colt as alleged
snd afterwards the colt only was replevied
and taken away from him by the true
owner Won will then ascertain from Tia,
r q. l.. L.
was replevied, and returned a verdict IN
favor Of the plaintiff for the sum.
Upon this charge two grounds Of errol
are assigned in argument by counsel iol
plaintiff in error.
lst. Inasmuch as the proof shows tina
the mules and colt were sold II together
for the sum Of $500, without any speci
fed value being agreed upon ~ 10 either
the vendee cannot recover against the ven
dor because Of the failure OF title 10 the
colt alone Il is true the bin Of exceptions
shove that the sale was as insisted upon
but we do net think the legal proposition
insisted upon, can be maintained upon any
principle Of law or reason whatever.
"a. It's insisted the court erred in In
struciing the jury that the measure Of dam
ages was the value Of the colt 81 the time
il was repleyied from the purchaser IL i
insisted tie true measure Of damages wa
the price paid ior the colt by defendant in
error with interest, and IN support Of thi
proposition, counsel have cited the cases o
Blosdale vs.. BabcoCk, lat Johnson's report
5l7, and Armstrong vs.. Perry, 5th Wend
525. In note 9sl in Philips on Evidence
vol. 8. il is said these cases were implied
warranties as 10 the title Of q horse sold
and in which il was holden that the pric,
paid. interest thereon, and the cost reccv-
cred against the purchasers, were the meas
IRE Of damages
But il is stated by Mr. Sedgewick, in hi
work on Damages, page 1913, IN speaking o
this case: "In an action on the warranty
oftitle implied In the sale Of horse, Bios
dale bought the horse Of Rabcock, but wal
aherward sued by Snow in trover for th,
animal. he gave notice 10 the defendant o.
the suit, and Judgment was obtained agains
him Cor the value Of the horse with costs
ID was held az the trial that the judgment
was strong but not conclusive evidence o.
SHOWS title, and that if not rebutted, IN,
measure of damages was The amount o.
the recovery in the other action, (verdic
and costs) and this was held right by the
the supreme Court Of New York.
And in reference tosnother case in which
the plaintiff only claimed Of the defendant
the ORIGINAL amount pafd by him and somf