Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1867-10-30
SUPREME COURT OPINION.
KNOXVILLE TENNESSEE, SEPTEMBER TERN, 1881.
THOMAS h coLDwELL, ATTORNEY GENERAL AND RrFORTER.
ALFRED McPHATRIDGE AND WIFE, SARAH McPH

THOMAS Il. CoLDwELI, ATTORNEY GENERAL REFoRTER.
ALFRED McPHATRIDGE AND WIFE, SARAH McPHA-
FRIDGE, We. JAMES GREGG AND ROBERT SCOTT, Ex-
ecutors of Frances Hoges, deceased, eft al
This is motion to appeal to this Court from
the ohsneery Court at Blountvie, Cor want of appeal
The decree was pronounced in hi.
case at the November Term 1885, from which the complain
ant prayed an appeal which was granted and two months
allowed in which TO give bond.
After the adjournment the Term and before the expa
ton OF the time allowed by the Chancellor within which to
give bond of the compsnants Alfred McPhatridge who
as appears the husband of his joint con panant Sa
instead Of executing bond directed by the Chancellor
and filed with the Master the oath prescribed by statute
for poor persons and the defendants have
Court to dismiss the appeal for want of bond.
The ground of objection not that appeal writ
error may not be prosecuted in od pdDeTt but
pauper affidavit not in compliance with the order
months are allowed the compartments within which to i've
bond and the question is whether the pauper affidavit
substantial compliance with that order OF not
The affidavit in the record and it is strictly in
conformity to the provisions Of the statute, Cod section
The cath is made by only oomplanans but that
s sufficient When husband and wife joint parties
Is only necessary for the former TO take the oath but
where this relation does not exist between parties
But did the Clerk Master any authority under
the order of the Court to administer the OATH In the
Of Davis Dyer sneed So this Court held that the oath
The Of the parties inability to bear the expenses of the
provisions of the subject the taking Of
such bond judicial act of the COURT the taking
the oath also Hence the for its being taken in COURT
Yer. 277, IL Hum. 1876
But this case by the order of the Chancellor the Clerk
was constituted the agent of the Court judge of
rendered within the time LIMITED for its execution.
The appellant failed the bond attempted
substitute the paUPer oath in its stead The order Of the
Court it might have
Master to accept it, and he clearly had power
cePt it IN lieu Of the bond than be would have take
bond Cor the appeal after the adjournment without order
OF Court comforting on him the power TO do
The applicant for the appeal could have made the
any time during the Term which the final
dered and removed his under it to this Court
could have upon application to the Chancellor dcre
t0n have procured order authorizing the
executing bond otherwise complying with the law with
in the time limited by the appeal.
But failing either to make tho oath in open Court during
the term, to procure order Of Court authorizing
Clerk to accept such oath in lieu of the bond after the
ournment the affidavit taken without authority
follows matter Of course that the appeal which the Chan
cellor had power to grant without either bond
pauper OATH taken in due form and according to law
be dismissed.
true copy. MILLIGAN,
Test Judge.