
    A. J. White & Co. v. Bettis & Capps.
    1. Motion to Dismiss Writ op Error. Practice in Supreme Court. The record shows application in open Court was made to the Supreme Court for writ of error, but the record does not show the writ was granted and bond given for costs, but the Court being satisfied by affidavit of the former clerk that the writ was granted and bond given and that they are now lost, Held, this is sufficient to authorize the Court to supply the lost bond, and refuse to dismiss for want of it.
    2.Same. Same. Notice of application for writ of error. The “hearing" mentioned in sec. 4515 of the Code has been uniformly construed to refer to the regular hearing of the cause and not of the application for the writ of error.
    FROM SHELBY.
    MOTION TO DISMISS.
    This cause came before the Court upon motion to dismiss. The following affidavit was filed before the Supreme Court:
    The State oe TenNessee,
    John L. Brown, former clerk of the Supreme Court of the Western Division of said State, makes oath in due form of law, that the order for a writ of error in the case of A. J. White & Co. et al. v. Tillman C. Bettis, et al., was on the 12th day of June, 1868, made by said Supreme Court, then being in session at Brownsville; that the entry of such order was made by affiant as such clerk, and that upon the filing of the record with affiant, as he now remembers and believes, he caused a bond to be executed in the sum of two hundred and fifty dollars, with Thomas W. Brown as surety.
    Affiant states further, that it was not his habit to issue writs of error or supersedeas without a previous execution of bond; indeed, he is satisfied that in no instance did he ever issue such writs without the prerequisite of a bond, and if the bond in the present instance has been mislaid or lost, it has been by a frequent handling of the record in which it was filed, by counsel, and not by his, affiant’s, procurement.
    JOHN L. Beown.
    Sworn to and subscribed before me this 6th day of June, 1871. D. M. Wisdoh, C. & M.
    T. W. Brown, Esq., made the following statement in writing: “My recollection is that the bond was executed and that I was the security on it.
    “T. W. Beown.”
    
      T. W. BrowN and J. G. FiNNiE for complainants.
    T. B. MicoN and J. O. Pieece for defendants.
   NicholsON, C. J.,

delivered the opinion of the Court.

This is a motion to dismiss the cause, which is here by writ of error.

It appears that the decree below was made in August, 1866. In June, 1868, the record of this Court shows, that an application was made in open Court for writ of error. It does not appear, by the record, that the writ was granted and bond for costs given — but it is shown to our .satisfaction, that the writ was granted and the bond given, and that they are now lost. 'This is sufficient to authorize us now to remedy the omission by taking bond. This cause for dismissal, therefore, is not well assigned.

Next it is argued, that the opposite party was entitled to. five days notice before the application was made in Court in June, 1868, for the writ of error; that the giving of the notice is a condition precedent to the making of the application. For this position section 4515 of the Code is relied on. This section provides that “a writ of error may be prosecuted from any final judgment or decree rendered in an inferior Court, during the Term of the Supreme Court, the record being filed in Court, and the opposite party, or his counsel, notified five days before the hearing.”

It is assumed, that the notice here required, is intended to be required to be given five days before the application for the writ in Court. The uniform practice on this subject has been, to construe the hearing spoken of in tbe section, as the regular hearing of the cause, and not that of the application.

It is true, as argued, that in Spurgin v. Spurgin, 8 Head, 23, Judge McKinney confined his opinion to the construction of section 3183 of the Code, for the reason that the case then before him was a writ of error granted by the clerk in vacation, and section 3183 makes provision specifically for that case. In section 3183 it is provided that “the five days notice in writing shall be given to the adverse party of the intention to apply for the writ.” It might be well argued, that according to the literal reading of this section, the giving of the notice was a condition precedent to the application to the clerk for the writ; yet, Judge McKinney held,, that it was not essential that the notice should be given five days before the application for the writ, but that it was enough that the notice be given five days before the hearing in the Supreme Court. This construction of the section has been uniformly followed in practice, and it is in strict harmony with the express provisions in section 4515, which makes five days notice before the hearing of the cause sufficient.

This ground for the motion, therefore, is not well taken. The other causes of error alluded to in the argument will be properly considered on the hearing.

The motion to dismiss is disallowed, and the party now allowed to supply the lost bond.  