Tennessee Superior Court for Law and Equity, 1808

Napier v. Wells

Tennessee Superior Court for Law and Equity · Decided November 6, 1808 · POWEL and HUMPHREYS, JJ.,

1 Tenn. 350

Counsel

WHITESIDE, for plaintiff. ORIGINAL NOTE. — It cannot be perceived in this case why an affidavit should be necessary, other than the usual one, showing that the witnesses of the defendant lived abroad. The defendant as well as the plaintiff is entitled as of course, to all the means which this court can afford, to enable him to make his defence, and this he cannot do without the bond, where the witnesses live out of the State, and so it was considered in the case alluded to above.

Addendum

thought there should be an affidavit to authorize it.

Opinion of the Court

This was an action of covenant, in which the plaintiff had taken out the bond for the purpose of proving it by the subscribing witness abroad. The deposition was returned with the bond annexed; and now GRUNDY moved that he might have the bond for the purpose of sending it to another State, where his witness lived, in order that he might prove it was not his deed. said the motion was proper, but must be allowed on terms, as was done in the case of Hendrick v. Hendrick, on the equity side of this court. The clerk must take a copy, and if the bond is not returned at the next term it shall operate as a confession of the plaintiff's declaration, or if *Page 351 returned, and it should be defaced, obliterated, or altered in any manner it should have the same effect.

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