State 7. Hawkins.

certificates and representations, upon an agreement and understanding that he was to receive a pecuniary compensation out of the fund to be derived thereby. The bills sought decrees against Smith and Hawkins, and McMahon and Hawkins for the sums thus obtained. The issues of fact submitted to the jury involved the truth or falsity of every question of fact presented by the issues made in the pleadings. Upon evidence submitted the jury found that the applications and accompanying affidavits were true; that the certificate made by Defendant Hawkins was true; that the affidavits presented by said Hawkins to the Comptrollor were true, and not false as charged. They also found that said Hawkins had received nothing to influence him to sign the certificates or procure the pensions. A decree in the cause recites in full the findings of fact by the jury, and then proceeds as follows: "When the Court is of opinion that the findings of the jury upon the facts are correct. The Court is of further opinion that the allegations of the bill are met and denied by the answer and not sustained by the proof." The bills in the two cases were therefore dismissed. From this decree the relator has for the State prayed and obtained an appeal. From what we have stated it must be manifest that unless the evidence heard by the jury and the charge of the Court are properly parts of the transcript that this appeal must prove ineffectual. Section 3872 (M. & V.) provides for a broad appeal "from the judgment or decree of the Circuit

State 7. Hawkins.

or Chancery Court, in a matter of equity tried according to the forms of the Chancery Court," and that in such case the appellant shall "have a re-examination" in this Court of "the whole matter of law and fact appearing in the record."

By the next section the following provision is made: "Issues of fact in Chancery, made up on demand of either party, and tried by jury according to the forms of a Court of Law, are not embraced in the foregoing section, and errors in the proceedings therein can only be corrected as errors are corrected in actions at law."

This provision has been construed as requiring that the verdict of a jury on issues of fact submitted to them in Chancery shall be given the same weight as in a Court of Law, and that until set aside it is equally conclusive. It has also been construed as requiring the dissatisfied party who seeks a correction of errors, either in the admission or exclusion of evidence or in the charge or in the refusal of a new trial, to make up a bill of exceptions as at law. at law. James v. Brooks, 6 Heis., 150; Bank v. Oldham, 6 Lea, 729.

Neither the evidence nor the charge nor the rulings on evidence have been made a part of the record by bill of exceptions. The decree granting appeal does recite that the appellant tendered his bill of exceptions, which was ordered to be made part of the record. This is the usual judgment entry, but in fact no bill of exceptions appears to have been signed by the Chancellor. An enormous

State v. Hawkins.

mass of evidence, consisting in part of depositions and in part of what purports to have been oral evidence, is embraced within the transcript.

On page 49, preceding this evidence, is such a recital as usually precedes a bill of exceptions, being a recital that "on the trial of the issues submitted to the jury in this cause, the following issues of fact and oral proof was introduced by the complainant." Then follow indiscriminately depositions, interlocutory rulings, affidavits, and oral

evidence.

On page 367 this evidence concludes without any statement that this was the whole of the evidence submitted to the jury, or any signing of the same as a bill of exceptions, or statement that it is intended as such. This is immediately followed by the caption of the. Court, and then by a decree setting the causes for trial on a particular day of the term. This is followed by a decree ordering an attachment to issue for a derelict witness, and this by an affidavit of counsel asking for an attachment, and this by the writ of attachment and return thereon. Next comes a paper styled "charge of the Court." This charge is signed "B. M. Webb, Chancellor." But nothing here purports to make it, nor the evidence preceding, a part of a bill of exceptions.

We are therefore constrained to hold that neither the evidence nor the charge nor the action of the Court upon the motion to discharge a juror, are properly parts of the record.

State v. Hawkins.

Merely copying a charge into a transcript has been repeatedly held as not making it a part of the record. It must be made so by bill of exceptions. Railroad v. Foster, 88 Tenn., 671, and cases cited.

We have no authentication by the Judge of what the Clerk has inserted as evidence heard by the jury. A bill of exceptions, not signed by the Judge as a bill of exceptions, cannot be treated as a part of the record, though there be record recital that one was signed and made a part of the record. Garrett v. Rogers, 1 Heis., 320; Wynne v. Edwards, 7 Hum., 419.

Decree affirmed. State will pay all costs of

cause.

Davis, Adm'r, v. Garrett.

DAVIS, Adm'r, v. GARRETT.

(Nashville. January 21, 1892.)

I. GIFT. Of slave by deed valid without delivery.

The gift of a slave or other chattel made by deed duly executed and delivered is valid and effectual between the parties without delivery of the thing given-e. g., a father's deed of gift of a slave to his infant daughter passes title to the daughter without actual delivery of the slave, the daughter and slave being members of the donor's household and remaining in his family until the latter was emanci pated.

Cases cited and approved: Caines v. Marley, 2 Yer., 582; McEwen v. Troost, I Sneed, 186.

2. DEED. Proof of delivery.

Proof of delivery of deed is prima facie sufficient, where it is shown that the grantor procured registration of the deed and left it in the register's office during the remainder of his life-the instrument being a deed of gift from a father to his daughter, an infant of tender years residing in his family.

Cases cited and approved: Martin v. Ramsey, 5 Hum., 350; Corley v. Corley, 2 Cold., 524; Thompson v. Jones, 1 Head, 576; Tompkins v. Bamberger, 3 Lea, 576.

Cited and distinguished: Mason v. Holman, 10 Lea, 315.

And from the unexplained fact of registration it will be presumed that it was done by the grantor's procurement and authority.

4. INFANT. Acceptance of deed.

Infant's acceptance of deed will be presumed, if, viewing the transaction as of the date of the deed, it clearly appears to have then been for his benefit that it should be accepted.