Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-14
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph Ii. HeiskeII, Attorney-Gen.
eraI and Reporter.
No. 50.


VIM. H. Cheek, in his own right, and as admins
traitor of Ephraim Cheek, deceased, vs.. John r.
James, Chairman, etc, to the use of Isaac G. B.
Chapman.
An action of covenant was commenced
| in the Circuit Court of Smith county by
| the defendant in error against the plain
tiff upon Gas slleged in the declaration) a
| lost bond executed by the interstate,
Ephraim Cheek, with VIM. H. Cheek as
his security, to the Chairman of the
| County Court in consideration of the
apprenticeship by said court to the intes-
tate in his lifetime and in 1851 of Isaac
G. B. Chapman, minor orphan, about
six years old, the declaration makes per
fert of a copy of the bond. There was
verdict and judgment for the defendant
in error and an appeal in error to this
| court.
There are eight pleas fled to the de-
claration, among them a plea of non est
factum. Under this plea the burden was
upon the defendant in error to shew the
execution of the bond, its loss and con-
| tents.
Code S 1901 provides 'Any lost instru-
ment may be supplied by affidavit of any
person acquainted with the facts, stating
the contents as near as may be, and that
such instrument has been Internationally
lost or mislaid," etc.
S3,903 provides, eff the instrument is
one which the law requires should be de-
MED under oath, the affidavit produced
before or at the trial will be sufficient to
establish the claimants right, whether he
is plaintiff or defendant ard if denied
under oath, or otherwise put in issue,
may be established by competent evidence
of its contents"
In this case neither the rule prescribed
| by the Code nor that of the common law
| has been observed.
The affidavit of the loss and contents
of the bond is made by the defendant in
error, Isaac G. B. Chapman, who is
shown to have been between five and
eight years cid, at the time he was sp-
prenticed, and at the time the bond is
alleged to have been executed. He does
not show himself to have been there,
or to have afterwards become acquainted
with the facts, he does not in fact state
that such bond was ever executed, and
simply states that be 'Fbelieves the copy
herewith filed and referred 10 in the dec
laration is substantial copy"
1t would have been remarkable for q
boy between five and eight years of age
to have remembered anything of the con-
tents of bond executed under the cir
cumstances of this alleged one, and
there is no pretense that he ever saw it or
read 1t after that time. We must infer
he could not have read it, as he sub,
scribed the affidavit with his mark.
The testimony of John R. James is
taken; he proves he was chairman of the
County Court in 1851; that he was pres
ent some time in 1867, when Z. w. Tur.
ner, the clerk, was searching for the
bond, but that it was not found while be
was present in the clerks Office.
That he was present as chairman
when Chapman was appIenticed; don't
recOllect much about the circumstances.
With this for his premises, the witness i!
allowed by the court to suppose rathCI
extensively and to think very much al
will.
This witness totally fais to prove di
rectly or substantially any material fac
competent for consideration by jury
he arrives at the contents of the bond il
question from the usual form in suct
cases.
The Clerk of the County Court was in
troduced and proved that he had beer
Clerk month or two; that since the
case was called for trial he had examines
the papers labeled 1851 and did not flint
the bond. This clerk went into Office 1
or II years after the time the bond is sal
to have been executed.
Neither the Clerk who was in Office q
the time, nor the other members of tn
Court with James are examined.
The entire proof as to the execution
loss and contents of the bond is illegal
the testimony upon these subjects show
that if these facts exist at all, there i
better proof of them than that offeret
and relied on even by these witnesses
The search for the lost instrument con
templated by law has not been made.
There are other errors, both in the ad
mission of testimony and the charge o
the Court, unnecessary to be noticed, a
We suppose their recurrence upon anoth
er trial highly improbable.
Reverse the judgment. P. TURNEY.
A true copy:
| TEccp n Ep,zpp Cvark