Mason v. Whitthorne

• Decision Date: 31 December 1865
• Citation: 42 Tenn. 242
• Parties: JAMES MASON et al. v. WM. J. WHITTHORNE.
• Court: Tennessee Supreme Court

42 Tenn. 242

JAMES MASON et al.

v.WM. J. WHITTHORNE.

Supreme Court of Tennessee.

December Term, 1865.

FROM BEDFORD.

At a special term of the chancery court, at Shelbyville, in November, 1865, Chancellor JOHN P. STEELE, presiding, a decree was pronounced in this cause. Both parties appealed.

THOMAS C. WHITESIDE, for Mason and others.

WM. H. WISENER AND HENRY COOPER, for Whitthorne.

HAWKINS, J., delivered the opinion of the court.

On the 5th of February, 1855, James Mason et al. filed their bill in the chancery court at Shelbyville, against Hulda Mason et al., asking, among other things, for the sale of lands, for the purpose of distribution among the complainants and defendants, as heirs at law of Thomas W. Mason, deceased. During the progress of the cause, Whitthorne, the then clerk and master of the court, was directed, by a decree in the cause, to sell lands, take notes from the purchasers, etc., which he did. After a portion of the purchase-money had been collected by him, he, by a subsequent decree pronounced in the cause, was directed to pay the same, together with such sums as he might thereafter collect, to complainants and defendant, as heirs at law of the said Thomas W. Mason, deceased; and at the September term, 1865, of said court, the present clerk and master was by decree directed to take and state an account, and report the amount of money still in the hands of the former clerk and master, arising from the sales of land in said cause, and upon the coming in of said report, it was ascertained, by a decree of said court, that, after allowing all proper credits for costs, disbursements, etc., there was still in the hands of said Whitthorne, of said fund, the sum of $3,194. The parties to said suit moved the court for judgment against him for the same, upon the suggestions made by Whitthorne, that he had, before that time, deposited $1,000 of said sum in the branch Bank of Tennessee, at Shelbyville, to recover which he had instituted a suit against said Bank, and that he was ready to pay the balance. The chancellor proceeded to render a decree in favor of the parties to said cause, for the balance of the sum still in the hands of Whitthorne, reserving the questions as to the said sum of $1,000.

Whitthorne himself, was examined upon interrogations touching said deposit, and states that he deposited all the funds of his own, and of other persons, in said Bank, for safe-keeping; that said deposits were made in his own name,...