President of the Planters Bank v. Courtney

The right of the complainants to enforce the lien set up in this case, must depend upon whether the present notes were received in satisfaction and discharge of that lien or not. The answer states they were so received. But I incline to think that part of the answer is not evidence. It is true, that the only evidence by which the complainant is enabled to connect the vpresent notes, with the deed under which the lien is retained, is derived from the statement of the answer. I am satisfied that the merits of the case cannot be reached without some explanatory proof as to the intended effect of the new notes. I shall accordingly remand the case to the docket, and direct it to stqnd over for further proof upon this point, which the parties will be at liberty to take. Upon reference to the English practice, I find a discretion of this kind has been frequently exercised by the English Chancellors, where some point in the case is left unproved, or is not sufficiently explained. 1 Hoff. Pr. 498, and authorities there cited.