Page:Federal Reporter, 1st Series, Volume 5.djvu/257

 JACKSON V, WALDRON. 245^ �verdict for the. plaintiffs, on the instrucfiiona I have given you,t is that the premium has been in fact paid by the taking of this draft; but that question is out of the way, by the consent of the plaintiffs that you may deduet the draft and interest on it from any verdict in their favor. If you find for the plaintiffs, they are entitled to interest on tha policy from 90 days after date of the notice of death ���Jackson, Eeceiver, ». Waldron. �{Circuit Court, W. B. Tennessee. December 18, 1880.; �1. Fbacticb— SBTTma Asidb Nonsuit — If no injury results to tie de- �fendant the court will set aside a nonsuit where it appears thitt the suit is meritorious and the plaintilï has been surprised by some defect which he did not discover in time to remedy. �2. Bame — Case m Judgmbnt — The aifldavit of plaintiŒ's attorney stated �that he mistook a seal to a deposition for the seal of the treasury department, and supposing he had competent proof to sustain hia case went to trial, and was surprised to discover his mistake. Held, that under the Tennessee practice, the case being obvioualy merito- rious, the nonsuit would be set'aside notwithstandins the negligence of the attorney �B. B. Barnes, for plaintiff. �George Gillham, for defendant. �Hammond, D. J. This case was tried by stipulation with- out a jury. It was a suit by the receiver of a national bank upon a note for |8,000, to which, among other defences, by special plea, the defendant pleaded that the plaintiff was not receiver as alleged. The plaintiff offered his own deposition, to which was attached what purported to be a copy of his appointaient, verified only by his own sworn statement that it was a true copy. This proof was rejected on objection by defendant as incompetent, because the appointment could only be authenticated by a proper certificate from the treasury de- partment at Washington, as.provided in the Eevised Statutes. Rev. St. § 882 et seq. Thereupon the plaintiff voluntarily took a nonsuit, which he now moves to set aside on payment of ����