Volume 1 — Tennessee Chancery Reports

<p>Practice — Continuance, how obtained — A continuance will not be granted except upon affidavit showing good cause, and then only upon terms.</p> <p>Same,' waiver os’ aejhdavit. — A waiver of affidavit by tbe other side would be considered by the court as a withdrawal of objection to the application.</p>

<p>Peacticb — Extending- time to answer. — The court has no power to extend the time within which to make defense, except upon good cause .shown hy affidavit.</p>

<p>Practice — Order pro .coneesso, before whom taken. — Orders pro oon-fesso appertain to the duties of the clerk, and should he made at the Rules, and not in court.</p>

<p>Husband and wife — Wife’s eight of suevivoeship, in notes. — Promissory notes taken by a husband payable to bimself and wife, upon a consideration passing from bim alone, in tbe absence of evidence showing a different intent, survive, on bis death, to tbe wife.</p>

<p>Contribution amono tort eeasors. — Equal contribution among tort feasors is not inequitable, and, although the law may not support an action to enforce contribution where the payments have been unequal, neither will equity lend its aid to prevent the- execution of a legal arrangement which secures equality of contribution.</p> <p>Same. — Where a joint judgment has been recovered by the party injured, against the employer and employee for a tort committed by the latter, and where the former was held liable only because of his relation to the latter, the employer may sustain an action against the employee for so much of the judgment as he may be compelled to pay.</p> <p>Case in judgment. — Complainants entered into a contract with the defendant railroad companies to build the stone piers for a bridge over the Cumberland river, and, in doing the work, stretched a rope across the river by which the chimneys of a steamboat were knocked down, and for the damages occasioned by which the owners of the boat recovered a joint judgment against complainants and said defendants. The L. & N. R. Co. paid the judgment, causing the same to be assigned to its president in his individual name, and execution to be issued thereon, which was levied on complainants’ property. Upon bill filed by the latter to enjoin the execution as extinguished, and by the company to recover the amount of the judgment. Held:</p> <p>1. That equity would not, under the circumstances, deprive the company of any legal advantage acquired by the assignment of the judgment.</p> <p>2. The company is entitled, on the cross-bill, to recover from the complainants any money paid by it in satisfaction of the judgment, and this though one of the complainants was, by clerical misprision, not named in the judgment.</p>

<p>Dower estate, buildings erected thereon, during the tenancy by dower, pass TO remainder-men, when. — Buildings erected on a dower estate hy the dowress, or person claiming under her, if designed as additions to the freehold or to enhance its convenience or income, pass, on the death of the tenant for life, to the remainder-men.</p> <p>Fixtures and improvements, how right to determined. — The tendency of modern decisions is to make the rights of the parties to fixtures and buildings depend, not on the maimer in which they are attached to the freehold, but upon the relation of the parties, the intention in erecting the improvements, and the uses to which they are put.</p> <p>Tenant por life, right op his representative to fixtures, etc. — Consequently, a tenant for life, or his representative, is not entitled to remove buildings of a permanent character erected during the life estate, and permanency may be predicated of ail buildings which appear, either by the intention of the party erecting them, Hie manner of attachment to the soil, or the uses to which they are put, to have been designed as additions to the freehold, or to enhance its convenience or income.</p> <p>Case in judgment. — The lessee of a dowress erected on a city lot a row of buildings framed in the shop, each part marked for its particular position, and raised 'without framing, on a brick foundation-wall, with brick chimneys and composition roof entire, and rented the lower rooms for stores, and the upper for bed-rooms. Held, that these buildings passed, on the death of the dowress, to the remainder-men, and that the lessee was neither entitled to remove them, nor to compensation for their value.</p>

<p>Well, construction of. — The testator directed tire executors of Ms will to sell all Ms estates, the amount realized to he equally divided among his children, share and share alike, and “ earnestly directs ” that the shares of his daughters he invested in productive real estate or mortgages, to their sole and separate use, and, at the decease of any of his daughters, “ that portion which said daughter possessed to be shared among her children, lawful issue, share and share alike,” and should any of the daughters “ die without having lawful issue,” then the daughter might, by instrument in writing purporting to be a last will and testament, give and bequeath her “ proportion of the estate ” to whom she might think proper. Seld, that the daughters took absolute estate in their respective shares, subject to be divested by leaving children surviving, and that the daughters, during coverture, had no power of disposition of their shares except in the mode pointed out by the will.</p>

<p>Bill and cross-bill.</p>

<p>Chancery sale, when complete. — A sale of land, made by tbe master, is not complete and binding upon tbe purchaser until confirmation.</p> <p>Same, doty op the court. — And it is tbe duty of tbe court, while securing the rights of tbe successful litigants, to see that the property be sold for the best price that can be had.</p> <p>Same, opening biddings opon an advance on bid. — It is allowable, therefore, to open the biddings alone upon the offer of a higher price, if the advance be so considerable as to furnish a sufficient inducement, under all the circumstances, to a resale of the property.</p> <p>Same, amount op advance to open biddings. — The advance which ought to be deemed sufficient to open the biddings must be left to depend on the circumstances of the given case. An advance of sixteen hundred dollars is sufficient.</p> <p>Same, peactice on opening the biddings. — The better practice, upon opening the biddings, is to authorize the master, upon notice in the usual way, to receive bids for a limited time, commencing with the advance offered, and requiring the bidders to mate payments, and give notes as of the date of the original sale, and the highest bidder at the end of the prescribed time to be declared the purchaser.</p>

<p>Pbactice — Order op iusferbnce when made. — The court has no power, except hy consent of parties, to make an order of reference in a cause which involves the rights of parties, until the cause has been prepared and set for hearing, and regularly reached on the Trial docket.</p>

<p>PRACTICE — Pro confesso on publication, when it may be taken.— Under Rule XI of the New Chancery Rules, upon publication commenced five days before the commencement of the term, requiring the defendant to appear by a given day during the term, the bill may be taken for confessed, prepared and set for hearing during that term, if no defense be made within three days after the day at which the defendant is required to appear.</p> <p>Practice, when dependant is required to depend under old practice and new rules. — The old practice, the provisions of the Code, and the New Rules, considered in respect to the time at which the defendant is required to make defense.</p>

<p>Practice — Motion to dismiss a bill :itor want of equity on its face, when it lies. — A motion, to dismiss a bill for want of equity on its face will not lie if there he any equity in the hill although defectively stated.</p>

<p>Practice — Effect oír pro coneesso. — Upon bills against non-residents, without attachment of property, and without personal service of process, if the defendant fail to appear, the complainant must, in addition to taking the hill for confessed, prove his case, as if the allegations of the bill had been put in issue by answer not sworn to.</p> <p>Decebe nr such case. — Such a decree is not absolute for three years from the decree, unless a copy of the decree is served upon the defendant, which service, it seems, may be made in another state.</p> <p>Same. — Before the execution of such a decree, the court may require the complainant to give security to abide by and perform such order touching the restitution of the property, or repayment of the money as the court may make.</p>

<p>Chancery jurisdiction in personam. — The original jurisdiction of the Court of Chancery, depending upon the power to compel discovery and to act upon the conscience of the defendant, was in personam. The departures from this rule depend upon positive statute, and have always been strictly construed.</p> <p>Same — Publication in lieu of service. — Under our statutes before the Code, publication, in lieu of personal service of process, could not be made until the defendant, against whom process issued, had the opportunity to enter his appearance, as the same ought to have been entered in case such person had been duly served; and the statutes are all substantially embodied in the Code.</p> <p>Case in judgment. — Where, therefore, the bill alleged that the defendant was a citizen of Davidson county, and subpoena to answer issued on the 22d of April, 1872, returnable to the first Monday of the ensuing October, and was returned by the sheriff on the 2ttb of June, 1872, “not to be found in my county, I am informed he is not in the state,” and publication was at once made requiring the defendant to appear on the same first Monday of October; Held, that the publication was premature, and a pro eonfesso order taken at the October term was set aside, and the cause remanded to the Rules.</p>

Buies, No. 7282 — M. Burns and others, ex parte petition. Buies, No. 7283 — M. Burns and others, ex parte petition. Buies, No. 9349 — John Lumsden and others, ex parte petition.

<p>Corporation, organization op. — The Court of Chancery has no power to organize a corporation for any purpose not authorized by general law. Appeal does not lie erom refusal to incorporate. — An appeal cannot be taken from the refusal to organize a corporation.</p>

<p>CORPORA.™ name, OBJECTION to. — The court may, upon objection made to tbe organization of a corporation by a specific name, upon tbe ground that tbe name has already been adopted by a pre-existing corporation, or is so nearly the same as to lead to confusion, require a modification of tbe name sufficient to obviate objection.</p>

<p>State comity — Transfer of funds from the court of one state to the courts of another. — Funds settled in trust upon a married woman and her children, in the custody and control of the Chancery Court of this State, may be transferred to the custody and control of the Chancery Court of another State where the married woman and her children are domiciled, upon its being shown that-such transfer is manifestly for the interest of the beneficiaries.</p> <p>Same — Mode of proceeding. — The mode of procedure in the two courts to effectuate the transfer, considered.</p>

<p>Attachment cp bonds in hands on state officer. — State bonds deposited, under a statute, in the office of the Comptroller of the state, by an insurance company, as security for rislrs taken by citizens of this state, are not attachable under our general attachment law.</p> <p>Insurance companies, bonds deposited by.-1The law, under which such bonds are deposited, is equivalent to a statutory mortgage for the benefit of all the citizens of the state having risks equally, and no one of the persons thus secured can acquire, by legal proceedings, a prior right of satisfaction out of the fund.</p> <p>Same — Butt of comptroller. — 1The Comptroller for the time being would have the right to come into this court for the administration of the trust fund; and, in the event of the insolvency of the insurance company, to compel the claimants to come in and have their rights to the fund determined.</p>

<p>Demurrer — Effect or overruling. — 1The court may, on 'final Rearing, reverse its rulings upon an overruled demurrer; and if the order overruling the demurrer give the defendant leave to rely upon its matters “ in his answer,” it will he construed to mean “ on final hearing,” and the defendant may insist upon them, although he has not relied upon them in his answer.</p> <p>Legal suit in equity. — A hill hy a trustee on the naked legal title, without joining the beneficiary, is a legal suit, which will not he entertained in equity if it appear that the enforcement of the legal right would he inequitable between the defendant and beneficiary.</p> <p>Lease — Covenant—Assigns.—If a covenant in a lease concern a thing not in esse at the demise, hut to he built thereafter, and assigns he not expressly mentioned, the covenant does not run with the land, and its benefit will not pass to the assignee of the lessee.</p> <p>Lease — Assignment.—The assignment of the lessee’s interest and rights in the lease carries to the assignee the personal covenant of the lessor with the lessee, hut this is a chose in action not embraced in our registration laws, and the assignment thereof is not complete until actual notice to the debtor, and a previous settlement with the lessee would be good.</p> <p>Same — Case in judgment. — A lease provided that improvements made by the lessee during the term might be removed, or sold to the lessor upon valuation, and they were valued at tlie expiration of the lease and the valuation paid to the lessee by the lessor, without notice of a previous assignment of the lease by the lessee to the complainant for the benefit of the lessee’s wife. Meld, that a bill by the complainant for the value of the improvements, filed more than a year after the expiration of the lease, could not be maintained.</p>

<p>Writ or error cobam nobis, otad practice. — Previous to tlie Code, application for a writ of error ooram nobis was made in open court by petition stating tbe reason wby defense was not made when tbe judgment was rendered, and showing a meritorious defense, and tbe sufficiency of tbe reason given was tested by motion to dismiss tbe petition or demurrer thereto, and tbe sufficiency of tbe assignment of errors by a plea of in nulla est erratum; and if tbe sufficiency of tbe errors was conceded or adjudged, issue might be taken upon then truth, and tried as in other cases.</p> <p>Same, new practice. — Since tbe Code, the rulings seems to be that tbe assignment of errors should embrace tbe reasons for tbe application, as well as tbe grounds of defense, and that a general demurrer to the whole assignment will be good if tbe reasons assigned are insufficient; and, a fortiori, if both tbe reasons for tbe application and tbe errors assigned are insufficient.</p> <p>Same, grounds por. — The falsity of tbe sheriff’s return of the service of a writ, or notice, is not a ground for a writ of error coram nobis.</p> <p>Same, deeense. — It is no defense to a judgment final upon a garnishment on a firm, that the garnishee was not a member of tbe firm when .notice of judgment nisi was served; nor, that neither the defendant nor tbe firm were indebted to tbe judgment-debtor at tbe time of tbe service of tbe garnishment notice; nor that the garnishment notice was directed to tbe firm, if actually served on tbe defendant.</p> <p>Same, irregularities. — The irregularities in the garnishment proceedings, such as the misspelling of names, are, it seems, not the subjects of a writ of error coram nobis.</p> <p>Same, in chancery. — Semble the writ of error coram nobis lies in chancery only upon proceedings of a legal character, conducted in legal form.</p>

<p>Motion to dismiss for want of equity. — A motion to dismiss a bill for want of equity on its face is limited, as a mode of defense, to eases where it appears, from tbe bill itself, that tbe court has no jurisdiction, or that there is no matter of equity whatever, and will not reach a case proper for equitable relief but defectively stated.</p> <p>Lost papers, effect. — Although papers filed in a cause may be lost, they are still parts of the record, and the litigants are entitled to the benefit of them as-such, to be proved by the best evidence attainable, and a decree justified by such papers is not subject to be reviewed solely upon the ground of their loss at the time of its rendition.</p> <p>Bun of review, decree not warranted by the bill. — A decree not warranted by the allegations of the bill may be corrected by bill of review. Same, same. — Thus, where a bill was filed to enforce a lien retained upon certain lots conveyed by complainant to indemnify him against loss by reason of a specific vendor’s lien debt reserved on land conveyed to him, and the decree was for the whole purchase-money of the land which far exceeded the vendor’s lien debt, it was held error of law apparent, for which a bill of review would lie.</p> <p>Same, error apparent. — An original and cross-bill constitute one suit, and a failure in the final decree to dispose of the questions raised by the cross-bill, would be error apparent to be corrected by bill of review.</p> <p>Same. — Semble, it is no ground for a bill of review that the cause was taken up and decided in the absence of counsel, though the absence was unavoidable, and the fact unknown to the party, nor will irregularities in the proceedings sustain a bill of review.</p> <p>Original bill for fraud. — Quaere, what averments will sustain an original bill for fraud?</p>

<p>Clerk and master, money in hands of at his death. — Moneys in the hands of a clerk and master of the Chancery Court at his death, held hy him virtute officii, or by order of the court, as Receiver, Commissioner, Trustee, or in any other fiduciary capacity, are not assets of his estate, in the ordinary sense, for the payment of debts and for distribution, but belong to the court and are subject to its orders.</p> <p>Same. — It seems, that it was the duty of the successor in office to demand said moneys, and of the personal representative to pay the same to him.</p> <p>Same, duty oe court. — And the court will, upon the application of the personal representative, order the money to he so paid, and fully protect the personal representative.</p> <p>Unclaimed funds in hands of clerk and master. — The disposition of unclaimed funds in the hands of clerks is provided for by the Code, §§ 521 to 524, not by § 2282, nor by the act of 1860,71,3.</p>

<p>Sale of property op persons under disability. — The provision of the Code, § 3338, which makes it the duty of the court to see that the proceeds of the sale of property of persons under disability, sold under its orders, are reinvested, and held in the same manner, and subject to the same rules of descent and distribution as the property sold, is mandatory, and cannot be complied with unless the proceeds of sale are paid into court to be held subject to its orders.</p> <p>Same. — where, therefore, a lather has sold the realty of his infant children without a previous order of court, and files his bill to have the sale confirmed upon the ground that it is manifestly for the interest of the children, the court will not entertain the application until the proceeds of sale are first brought into court.</p>

<p>Trust, reforming deed. — Under decree of the supreme court declaring S. 0. H. and her children entitled to certain land subject to a specific lien, and ordering a sale to satisfy the lien debt, the land wa^ sold and bought by W., at tho amount of the encumbrance, for S. C. H. and her children, and the encumbrance was afterwards paid by N., who had married a daughter of S. C. H., and W. conveyed the land to N., in trust for S. C. H. and her husband, T. C. H., for their joint lives, and the life of the survivor, then for the sole use of a daughter of S. C. H. (who afterwards married N., and the children of a deceased daughter by N.) Upon bill filed by H. and wife and the children, except N.’s wife, against N., his wife and children, it was held that the deed must be reformed so as to vest the property in S. C. H. and all her children, subject to a lien for the money paid by N., which money should be subject to the trusts of the deed to ÍT. Held, also, that on a sale of the land to satisfy this lien N. might bid the debt on the land.</p>

<p>Attachment under Code, $ 3455, denial of ground. — An attachment by bill, which simply seeks to subject certain realty of the debtor, upon the ground that the defendant is about to convey away his property fraudulently, is an attachment under the Code, section 3455, subs. 6, where the jurisdiction of the court depends upon the attachment, and a denial of the ground alleged can, perhaps, only be made by plea in abatement.</p> <p>Same, under Code, $ 4289, how denied. — But a bill filed to set aside a conveyance made, at the instance of the debtor, by a third person to the debtor’s wife, on the ground that it was fraudulent in law because voluntary, or fraudu•lent in fact, is a proceeding under the Code, § 4288, and an attachment of the property under § 4289, is not essential to the jurisdiction, and a denial of its ground may he made by answer, and a plea in abatement is unnecessary.</p> <p>Husband and wife — Husband’s possession of money derived from: sale of wife’s land. — The temporary possession by the husband of money derived from the sale of his wife’s lands, if the money were actually invested in other land'and the title taken to the wife, would not be sufficient to induce the court to divest that title at the instance of the creditors of the husband.</p>

<p>CROSS-BILL, when improper. — A cross-bill which seeks no discovery, and makes no defense not equally available by way of answer to the original bill, will be dismissed on motion.</p> <p>Same, aeter hearing. — A fortiori, such a bill cannot be filed after the hearing of the original bill, without leave of the court.</p> <p>Bill op review, person not aggrieved. — No person can claim a reversal of a decree by bill of review unless he is aggrieved by it.</p> <p>Original bill to set tjp defense not made in previous suit. — An original bill will not lie to set up a defense which might have been made available by answer in a previous suit.</p>

<p>Parties, sherute. — The sheriff is not a necessary party to a hill to have a homestead in lands ordered to be sold by this court, and seeking to enjoin the sale,' and the bill will be dismissed as.to him on demurrer.</p> <p>Practice, INJUNCTION, decree. — The practice of the Chancery Court of this state has been to enjoin, upon sufficient cause shown, the execution of its own decrees, in the same way and upon the same terms as it enjoins the execution of judgments of other courts, and the court, upon examination, sees no reason to change the practice.</p>

<p>Pleading — Plea oe eormer suit pending. — The provision of the Code, § 4393, which requires the complainant to set down for argument any plea which he conceives to he naught either for the matter or the manner of it, or to take issue upon it if he thinks it good, applies to a plea of a former suit pending.</p> <p>Practice — Pleas.—The setting a plea for hearing on its sufficiency, or taking issue upon it, is a step necessary to the progress of a cause, and a rule may he made on the complainant to take the necessary step, under the Code, § 4390, during the term.</p> <p>Practice — Plea oe eormer suit. — By rule of court in England, upon the filing of a plea of former suit pending, the complainant, and by a rule in New York the defendant was required to procure a reference to the master to look into the two suits and report whether they are for the same matter. In the absence of any rule in this state, perhaps the court might make a special order in the particular case.</p>

<p>Pleading — Flea bad in pakt. — A plea in equity may, as to tlie extent of the bill covered by it, though not as to the matter of defense, be held good in part and bad in part.</p> <p>Same — Case in judgment. — Where, therefore, upon the issue of former suit pending, it appeared that the complainants and defendants were the same in both suits, but the object of the first bill was to set aside a deed of trust made by a corporation, and subject the property of the corporation, and also unpaid stock of the defendants as stockholders, to the satisfaction of complainants' claims as creditors of the corporation, and the object of this bill was to reach the same unpaid stock and to hold the defendants individually liable for the claims, the plea was allowed to stand as a defense to so much of the bill as sought to subject unpaid stock, but held insufficient in other respects.</p> <p>Same — Plea in abatement. — Where a plea in abatement is triable by record the judgment is respondeat ouster.</p>

<p>Next friend — Pauper oath. — A person ought not to he permitted to file a hill as next friend of an infant without giving security for costs.</p> <p>GUARDIAN, wHEN ARROWED TO TRENCH ON THE CAPITAL OF HIS WARD.— A guardian w!i'. not be permitted to bréale in upon the capital of his ward without, upon proper proceedings, showing the necessity, and obtaining the sanction of the court either in advance, or in ratification.</p> <p>Same, same. — And the better opinion is that such expenditures will not he allowed after they are made unless good reason is shown why the court was not applied to for its sanction in advance.</p>

<p>Surety — Release after judgment. — A release by the judgment-creditor of a levy upon the real estate of the principal, will operate as a release of the surety pro tanto.</p>

<p>Costs, extra — Power oe court. — The court has no power to burden adult parties, without their consent, with commissions of real estate agents, by ordering them to be employed to assist in the sale of land sold under its decrees.</p> <p>Same, same. — But the court may, with the consent of adult parties, and mero motu, or with consent of guardian, for infants, if satisfied that it is for their interest, order in advance the employment of real estate agents, or sanction their employment afterwards, and direct the expense incurred to be taxed as costs.</p> <p>Sams. — A sale will be considered as satisfactory to tbe parties where it is confirmed without objection, and the proceeds received, even if the party, to whom it is to be satisfactory, is induced to assent by the payment of an extra bonus.</p>

<p>Chose in action — Assignment.—The assignment of a cliose in action is not complete until notice to tlie debtor, and registration of tbe assignment is not notice witliin tbe requirement of tbe law.</p> <p>Same — Assignable by statute. — If the chose in action be assignable by statute, tbe assignment may be good without notice, but only when accompanied by actual delivery</p> <p>Same — Equity jurisdiction. — A court of equity will not lend its aid to tbe assignee of a judgment, or of tbe chose in action on which the judgment is founded, against the judgmenbdebtor who has paid the judgment to the nominal plaintiff, or otherwise incurred loss or acquired rights on the faith of the ownership being in such plaintiff, without notice of the assignment.</p>

<p>Co-purchasers — Lien on land. — Partners in the purchase of land have an equity against each other for the purpose of producing equality, which fastens itself upon the land, and of which neither can he deprived by the other, or by a creditor of the other, or a purchaser from him.</p>

<p>Piuea — Former recovery. — A plea of former judgment which fails to state that the judgment was rendered on the merits is had.</p>

<p>Surety— Supersedeas. — If the object of a surety be to supersede an execution upon the ground that the sheriff has not exhausted the property of the principal, the remedy is by petition showing property, not by original bill.</p> <p>Same — Creditor—Subrogation.—A surety is not entitled to come into this court to enjoin the creditor who is actively pursuing his legal rights, and compel him to exhaust liens and collaterals before going on the surety; he can only be subrogated to such securities as he may show actually exist, or be relieved to the extent of securities impaired by the act of the creditor.</p> <p>Same — Former suit. — If the surety has already had his day in court in the matter of the security in controversy, equity will decline to hear him.</p>

<p>Depositions — Certificate.—A certificate to depositions which fails to state, as required by the Code, § 3848, that the person who tafees them is not interested in the cause, nor of tdn or counsel to either of the parties, is fatally defective, and the deposition, on exception, must be excluded.</p> <p>Same, same. — Where the person who takes a deposition appears to sustain the . necessary official character required by law, the court will give credence to all he certifies within the line of his duty; but, semble, it is not within his duty to certify to an agreement between the parties touching the deposition, unless he state how the agreement was made, and attach the evidence thereof.</p> <p>Same — Notary public. — A notary public of another state is not authorized by our laws to tafee depositions to be read as evidence in this state.</p>

<p>SURETY — Notes eor land. — M. bought land at a public sale, tbe notice stating that the terms of sale were on a certain credit, the purchaser to give notes with good security, and “• a lien retained” on the land for their payment; complainant became surety on M’s. notes, not having been at the sale, seen the advertisement, or had an interview with the vendor, and, on the same day, the land bought by M. was, at his request, conveyed to a third person by deed reciting the execution of the notes, but retaining no lien. M. paid two of the purchase notes, and judgment was recovered against the complainant on the last note. Held, in the absence of evidence of any other contract than that shown by the deed and notes, that the complainant was entitled to no relief, and his bill was dismissed with costs.</p>

<p>Set-off. — Claims held by a debtor against bis creditor at tbe death of the latter, may be set off against claims in the hands of the personal representative, either on suit brought upon such debts, or upon bill filed in equity in a proper case of equitable cognizance.</p> <p>Same — Jukisdiction of equity. — Equity will give effect to a set-off against a judgment at law where the judgment-creditor is insolvent, or has removed from the state.</p> <p>Same, same. — The complainant who seelcs such relief will not be repelled because he has had the opportunity of pleading his set-off as a defense to a suit at law, if in fact he made no such defense at law.</p>

<p>Interpleader — Title to land. — A person claiming to hold the legal title to land cannot file a hill to compel third persons to interplead in this court in relation to such land for his benefit, the jurisdiction of equity where there are conflicting entries and grants being exercised only in favor of the younger grantee, unless there is some other equitable ground shown.</p> <p>Latent ambiguity. — An ambiguity in an entry which is not patent on its face, but brought out by extrinsic evidence, may be explained by similar proof. Constructive possession op land — If neither party be in actual possession of land, the constructive possession is with the better title, and such possession will enable the holder of the better title to maintain trespass for an injury to the freehold, or to bring his suit at law to test the title.</p>

<p>Teak’s allowance to widow and children. — The year’s allowance given by law to the widow and children of a decedent should he set apart out of specific property to be designated by the commissioners, and cannot be claimed out of the assets of a partnership of which the deceased was a member, until the partnership debts are paid.</p> <p>Resulting trust, perishable property, when. — A resulting trust will not arise in property of a perishable nature, nor upon other than the state of facts existing at the time of the purchase, and will not be implied unless, taking all the circumstances together, that is the fair and reasonable interpretation of the acts and transactions of the parties.</p> <p>Same, case in judgment. — Where, therefore, an administratrix entrusted her son with the settlement of the estate, and he took possession of a stock of goods belonging to the intestate, and carried on the business for several years, selling out the goods, and buying others, and forming a partnership with a third person. Seld, that the administratrix could not follow the proceeds of the goods, nor, by attachment, acquire any right except in the interest of her son in the surplus assets, after payment of the partnership debts.</p> <p>Election of forum. — A creditor-who first sues his debtor at law cannot transfer the litigation to this court except upon the terms of dismissing his suit at law.</p>

<p>Bill and cross-bill for specific performance of a contract and damages for non-performance.</p>

<p>Contract — 'Effect of new on old contract. — The complainants entered into a contract with defendants for the erection by the latter of a hotel building by a given day, and, after that day, entered into a new contract with the defendants by which, in consideration of the delivery to them of the unfinished building “ as it stands.” they agreed to pay defendants the original contract price less a stipulated deduction. SM, that complainants could not go behind the new agreement, and claim damages for the failure of the defendants to finish the work within the time originally fixed.</p> <p>Same, same. — Held, also, that the new contract precluded the complainants from claiming damages for the quality of the materials used hy defendants, and character of the workmanship, unless they had alleged in the hill, and shown by proof, that they were not aware of such defects when the new contract was entered into.</p> <p>Same, same. — The new contract stipulated that the complainants were “ to take possession of said hotel building in its unfinished state ” on that day. Held, that whatever formed a part of the building on that day became the property of the complainants, even to the doors, shutters, and other appurtenances ready to be put in place, although not actually hung; but that glass in boxes, and shutters, or other materials, at the railroad depot in transit, and not being used at the date of the contract, would not go with the building.</p> <p>Same, same. — The new contract stipulated that defendants should “ in no wise claim a larger amount for the construction of the building than originally agreed,” less the deduction as aforesaid; but it also provided that compdainants were to pay defendants “ whatever amount any extra work they have put upon said building is worth as agreed upon by the parties.” Held, that defendants were not to charge for any changes in the original plans, whether they led to extra work or not, unless the extra work had been agreed upon by the parties.</p>

<p>Practice — PARTNERSHIP account. — Upon a reference to the master to take a general partnership account, each party should furnish the master with a statement of the account as he insists it should be, and, upon these statements, the master should ascertain the points of difference, and settle with the parties the items on which proof should be taken.</p> <p>Partnership account. — No partnership account can he properly taken without first ascertaining the profit or loss, and then finding out, by separate accounts between each of the partners and the firm, how this profit or loss is to he shared.</p> <p>Same — Partnership books. — In taking such accounts, the partnership hooks must, if not successfully impeached by the pleadings and proof, be taken as •grima facie correct; and, if lost or destroyed, the best evidence is proof of their contents.</p>

<p>Divorce, petition. — A petition for divorce sliould set forth the causes of complaint, in the words of the statute or equivalent words, and the circumstances of time and place with reasonable certainty.</p> <p>Same, same. — An allegation that the husband’s “ treatment has been cruel and inhuman in the extreme,” without averring that it is such as “renders it unsafe and improper to cohabit with him and be under his dominion and control,” is not sufficient, especially where the acts relied on to sustain the charge are detailed without any “ circumstances of time and place,” and scattered over a married life of seventeen years.</p> <p>Same, adultery. — But a charge that the defendant “has lately and repeatedly been guilty of adultery” with a person named, will be sufficient if the evidence establish the adultery with all the “ circumstances of time and place.”</p>

<p>DIVORCE — Alimony pendente lite. — Ah application for alimony pendente lite cannot be entertained upon a petition which fails to show a sufficient cause for divorce.</p> <p>Divorce — Petition—An averment that the conduct of the defendant has been so cruel as to be no longer bearable is not sufficient.</p> <p>Alimony — Delay in prosecution. — Although the wife, who is applying for a divorce, may be entitled to alimony during the necessary law’s delay, if the delay be occasioned by her, and not by the defendant, or the law, the application for alimony will not be entertained.</p>

<p>Divorce — Abandonment.—A charge of “ wilful and malicious abandonment ” for more than two years, is not sustained by proof that the defendant did not seem to like complainant as much as he ought, and had left her for the period mentioned.</p> <p>Divorce — Non-resident defendant. — "Where the jurisdiction of the court depends upon the fact of the non-residence of the defendant within the state, the fact must be clearly established by the evidence.</p>

<p>Divorce — Petition.—It is not a sufficient compliance with the provision of the Code, § 2452, requiring the causes of divorce to be set forth particularly and specially, with all the circumstances of time and place with reasonable certainty, to allege that “ on the — day of 1872 and 1873 the defendant committed adultery with one A. H., and divers other persons to the petitioner unknown, as petitioner is informed and believes.”</p> <p>Same, same. — An allegation that “the defendant is now a common prostitute,” would be sufficient if sustained by proof.</p> <p>Same, evidence. — Before the court can grant a divorce for adultery, it must affirmatively appear, by satisfactory proof of good character or otherwise, that the plaintiff has not been guilty of the like crime, or of any of the acts mentioned in the Code, section 2460, suhsec. 2, 3, 4.</p>

<p>Motion to dismiss bilí, tiled against administrator within six months. — Where the object of the hill against an administrator is not to obtain a preference oyer other creditors by recovering a judgment on the complainant’s claim, but to prevent irreparable injury to the complainant by subjecting his property to execution sale under a judgment'in favor of the . administrator against which he has an equitable set-off, the fact that complainant cannot sue at law within six months, and that the estate is insolvent, are sufficient grounds for coming into equity, and are no grounds for moving to dismiss the bill tor want of equity on its face,</p>

<p>Motion to dissolve injunction for want of equity on the face of the bill.</p>

<p>Lunatic — Inquisition pendente lite. — Pending a bill by tbe guardian of a lunatic to set aside conveyances upon tbe ground that tbey were made by bis ward when of unsound mind, tbe -court will, at any stage of tbe cause, even after argument, upon application of parties to tbe suit, properly verified, and security given for costs, order a writ of inquisition to issue, to ascertain in tbe mode prescribed by law whether tbe supposed lunatic is still of unsound mind.</p>

<p>Husbaud and wife — Wife’s eunds in COURT. — 'Under the Code funds in court belonging absolutely to a married woman cannot be paid to any person except by her consent, upon privy examination by the court, or a commissioner appointed by the court; or by deed, or power of attorney executed by husband and wife, with her privy examination taken as in other cases.</p>

<p>Revivor against heirs binding on personal representative. — The personal representative of a decedent cannot come into a cause, hy petitions to set aside or review proceedings had previous to his appointment, hy revivor against the heirs of the decedent under the Code, § 2849.</p>

<p>Jurisdiction — Relief after judgment at law. — The maker of a promissory-note may, after judgment against him at law thereon, come into this court for relief upon a defense only available in equity.</p> <p>Case in judgment. — Thus, a person who becomes surety for a husband and wife, upon a bond executed to the county court to enable them to borrow a fund belonging to the wife, upon a parol agreement that the money is to be held by him, the surety, subject to the call of the court and the payment of in? terest to the wife, and gives his own note to the husband and wife merely as evidence that the money is in his hands, may come into this court for relief against a judgment recovered on said note by an assignee of the husband who received it after maturity.</p>

<p>Jurisdiction to believe against judicial admissions — Equity will relieve a party from tlie consequences of admissions made inconsiderately, or liy mistake, under tlie sanction of an oath, in the course of judicial proceedings.</p>

<p>Jurisdiction— Sale op property op persons under disability. — Land was conveyed to a trustee in trust for the grantor’s wife, and, at her death in the event which has happened, for his own use during life, and at his death for the useof such child or children, or the children of such child or children as may he then living; the wife died leaving the grantor surviving, and one daughter, who has married and has one child. Upon application, under the provision of the Co.de, for the sale of this land, and re-investment of the proceeds for the benefit of the daughter and child, the grantor being a party and consenting, the court, upon demurrer of infant by guardian ad litem, held that it had jurisdiction to order the sale.</p> <p>Jurisdiction — Persons under disability or not in being — The jurisdiction of the Court of Chancery over the property of persons under disability, or in which persons not in esse may have an interest, considered.</p>

<p>WXLL — CONSTRUCTION—CODE, §§ 2008, 2009. — A devise of land to tbe testator’s grandson during life, and then to tbe heirs of bis body by a legal marriage, and, in tbe event of his death without such heirs, to tbe testator’s residuary legatee, gives tbe grandson an estate for life with a contingent remainder in fee, under tbe Code, § 2008, to such persons as, at bis death, might answer tbe description of beb-s of bis body, and, if be left no heirs of bis body then living, in fee, by way of executory devise, under tbe Code, § 2009, to tbe residuary legatee, and a conveyance by tbe residuary legatee of this interest to the grandson would vest tbe latter with tbe fee subject to tbe contingent remainder in fee to tbe heirs of bis body living at bis death.</p> <p>Sale of property of persons under disability. — Property thus held may be sold, under tbe provisions of tbe Code, by decree of tbis court, upon proper application, if manifestly for the interest of tbe infant heirs of tbe body of tbe grandson living at tbe time, tbe grandson being a party arid consenting; and such sale is manifestly for their interest where they are entirely dependent upon tbe income of tbe father for their support, maintenance, and education, and tbe income of tbe property is scarcely sufficient to pay taxes and repaus, and tbe father has no means to improve tbe property.</p>

<p>Bankruptcy — Assignee—Revivoe.—The bankruptcy of a complainant does not abate a suit in chancery, and, therefore, technically a revivor in such case is not necessary, the appropriate proceeding by the assignee being an original bill in the nature of a supplemental bill.</p> <p>Pleading — Substance.—If the bill filed by the assignee in such case be, in substance, an original bill in the nature of a supplemental bill, the fact that it is called on its face a bill of revivor and amended bill will not change its character, and a motion to dismiss based upon grounds applicable alone to a bill of revivor will be disallowed.</p>

<p>Bankruptcy — Assignee—Supplemental bill. — An assignee in bankruptcy is entitled, by an original bill in tbe nature of a supplemental bill, to have tbe benefit of a bill previously commenced in this court by tbe bankrupt against non-resident insurance companies upon policies on a stock of goods destroyed by fire, and to have the loss charged upon bonds deposited in the hands of the comptroller of the state, under statute, for the security of such policy-holders, and a demurrer both to the original and supplemental matter of the bill was overruled.</p>

<p>At'ptcat. — Discretion oe judge. — The discretion given a judge, by the Code,§ 3157, to allow an appeal on overruling a demurrer, is not an arbitrary discretion, but a discretion regulated by a sound exercise of judgment according to settled principles.</p> <p>Same, same. — Am appeal in such case ought not to be allowed, where no part of the causes of demurrer assigned goes to the whole bill; where the matters of demurrer to the bill as original are not to the merits, and the matters of demurrer to the bill as supplemental are of no consequence if sustained.</p>

<p>PRACTICE — Exceptions to answer not under oath. — Exceptions will not lie to the sufficiency of an answer where the oath is expressly waived under the statute.</p>

<p>Resulting trust, when and how created. — A resulting trust arises from the acts of the parties, whether accompanied by a parol agreement or not, and at the instant the deed is taken and the legal title vests, and no oral agreement, and no payments before or after, will otherwise create it.</p> <p>Pleading — Answer.—A reference in an answer to another answer in a diifer-ent cause, adopting its statements without repeating them, does not make such statements a part of the answer.</p> <p>Evidence — Answer.—The answer of one defendant in another case, cannot, any more than his answer in the ease on trial, he used as evidence against a co-defendant; it can only be used against the defendant himself, or to discredit him as a witness, after having given him an opportunity to explain.</p> <p>Equities, equal, prior. — The equity of a person who claims, upon a valuable consideration, under a partner in whom is the legal title, is fully equal to the equity of the creditor of a firm who is seeking to set up a resulting trust through the other partner, and if first in point of time must prevail.</p>

<p>Pro confesso order, effect of. — A complainant, under a pro confesso order, is bound by tbe concessions of bis bill, even if put in tbe form of supposition upon certain facts, wbicb facts are established by tbe evidence.</p> <p>Order of reference, construction of. — Tbe general language of an order of reference must be construed in connection with tbe pleadings, and, therefore, a requh-ement on tbe master to report debts due from certain persons for tbe land in controversy, “ or from any other person,” will embrace only such persons as are parties to the suit.</p> <p>Lien — Effect of recital in a deed. — A recital in a deed that certain persons named “ bold a lien wbicb is not impaired by this deed,” only gives notice of tbe lien, without changing it in any way, or giving a new lien.</p> <p>Payments, application of. — C. W. & Co. sold lands to certain persons, who afterwards united in forming tbe Oak Yale Company, to each person one undivided share in severalty, reserving a lien on tbe share thus conveyed for tbe purchase-money agreed to be paid for it; tbe Oak Yale Company sold to third persons, reserving a lien for tbe purchase-money on tbe whole tract, and these persons paid to "Y., who was a member of C. W. & Go. and of tbe Oak Vale Company, a sufficiency of tbe purchase-money due from them to the Oak Yale Company to satisfy tbe original purchase-money due from tbe latter company to C. W. & Co. Held, that tbe law would not, without more, apply tbe payments to tbe satisfaction of tbe last named debt.</p>

<p>Agency — Acts of sub-agents. — A general, or supervising agent is not ordinarily responsible for tbe negligence or misconduct of sub-agents appointed by him with the sanction of the principal, or by the principal upon his recommendation, if he has used reasonable diligence in his choice of the sub-agents.</p> <p>Same — Case in judgment. — The defendant was station master of the complainant at Nashville, having under him a collector and cashier, whose duties were to collect all moneys due the complainant, keep regular accounts, and make statements of the business at fixed times to the principal office at Louisville, and such accounts were kept and statements made, and balances were permitted to run up against the Nashville station without notice to the defendant. Meld, that he, and the sureties on his official bond, were not liable for such balances, there being nothing to connect him with the defalcation or neglect.</p>

<p>Administration — Sale or realty. — A sale of realty descended for the payment of the debts of the deceased cannot be had until it has been shown, by a settlement with the personal representative, that the personal assets are exhausted or insufficient, and the excess of debt ascertained; and a sale of the share of infant heirs without these pre-requisites would be void.</p> <p>Practice — Order or reference. — No order of reference ought to be made in cases involving the sale of the realty of infants, nor as a general rule in any case, until there has been a decree settling the rights of the parties, and the principles upon which the reference should be executed.</p> <p>Infant’s realty — Sale for division. — The realty of infant heirs may be sold upon bill filed by the adult heirs against the infants for a sale thereof for division, if the land cannot be partitioned.</p>

<p>Execution — Levies by different officers. — Where a constable has seized property by the levy of a justice’s execution, the sheriff may, by agreement with the constable, make a valid levy of a court execution against the common debtor on the same property, in subordination to the first.</p>

<p>Trustee — Compensation eor professional services. — A trustee, who is also a solicitor or attorney, will, in this state, be allowed compensation for professional services, as such, in matters touching the trust estate.</p> <p>Trustee — Accounts.—The proper mode of taking the account of a trustee, unless the court order otherwise, is to treat the income of the current year as unproductive, charging against it all the disbursements of the year, including the trustee’s compensation, and to strike a balance, upon which, as a general rule, interest should be allowed, but in such way as not to compound it.</p> <p>Trustee — Sale of notes. — If the trustee sell negotiable paper, received for trust property sold, at a heavy discount, the burden is upon him to show that the sacrifice was demanded by the exigencies of the trust.</p> <p>Trustee — Rents.—A trustee, under a general assignment for the benefit of creditors, which authorizes him on default to taire possession and sell the realty conveyed, is liable only for such rents of the realty as he may have received, or by actual interference with the realty made himself liable for.</p> <p>Trustee’s bond, who may sue on. — The bond of a trustee for creditors is required by law to be conditioned to “faithfully perform all the duties imposed upon him by law and the terms of the trust deed.” Held, that the grantor could not sue upon this bond without averring and showing that the trustee is chargeable with a surplus of assets after the payment of the debts secured and all the expenses of the trust, and that a new trustee could not sue at all.</p> <p>Trustee, consent or to decree eor' account. — A trustee, who, upon a bill filed by the grantor and the new trustee, consents to the taking of the trust account by decree of record, is bound for the amount found, but is entitled to be protected from liability to the trust beneficiaries by having the amount recovered applied to the satisfaction of the trust debts, and in the order of their priority, and the court will impound the fund for this purpose. [See note at end of case.]</p>

<p>Assignment fob creditors — By whom may be sustained in part. — The principle, that where there is no fraud in fact nor in law an assignment for creditors may be good to the extent of the debt really due, can have no application to a case where there is fraud in fact on the part of those insisting upon the validity of the deed; it can only be asserted by a creditor who can bring himself within the exception.</p> <p>Evidence — Confidential communications. — An attorney retained by the husband to aid in having land, bought by the husband at chancery sale, conveyed to the wife, cannot be heard to disclose any communication made pending the relation touching the purposes of the conveyance.</p> <p>Witness, attorney’s competency as. — The fact that a [witness is retained as an attorney in the cause in which he is called to testify, goes to his credibility not his competency.</p> <p>Husband and wife — Improvements of wife’s realty by husband.— Money of the husband fraudulently used by him, with intent to hinder and delay his creditors, in putting valuable improvements on his wife’s land, may be reached by the creditors to the extent that the improvements have permanently enhanced the value of the land, under the Code, §§ 4282, 4288. [See note at end of case.J</p>

<p>Pleading — Refebeítce by one bill to allegations of another. — A bill must be complete in itself by proper averments and exhibits attached, and cannot, by a general reference to the charges of another bill in a different cause, though in the same court, make such charges a part thereof.</p> <p>Same, form, substance. — A bill, in form and filed as an original hill by some of the defendants in a cause against the complainants and co-defendants in the same cause, may, in order to attain the ends of justice, he treated as, what it is in substance, apetition to become co-complainants in the original cause, or asa cross-bill in that cause.</p>

<p>Chancery sale — Deficiency in land. — A purchaser at a chancery sale, who receives a deed correctly reciting the boundaries of the land bought, is not entitled to compensation for a deficiency in the number of acres called for within those boundaries.</p> <p>Same — Petition—Adverse possession. — A petition by a purchaser at a chancery sale, who has received a deed for the land bought, alleging that within the limits of the land thus conveyed, “ as he is informed,” there is a certain number of acres in adverse possession of another and in litigation, and which does not aver that the title acquired is invalid, shows no ground of relief, and will be dismissed on demurrer.</p> <p>Same — Creditors bill in invitüm. — Semble, the rule at a chancery sale under a creditor’s bill in invitum is ordinarily, caveat emptor.</p>

<p>Cross-bill before answer. — It is no ground of demurrer to a cross-bill that it has been filed before answering the original bill.</p> <p>Cross-bill — New parties. — It is a good ground of demurrer to a cross-bill that it undertakes to bring in as defendants new parties who are neither complainants nor defendants to the original bill. [See note at end of case.]</p>

<p>Will — Construction—Power oí? disposition. — The testator gave, by his will, the residue of his estate to his wife, “ to be used and enjoyed by her during her natural life, hereby authorizing her to sell or dispose of the same in any way she may deem necessary for the convenience and support of herself and our two daughters, and if at the death of my said wife any part or portion of my property or effects shall remain, the same to be equally divided between our said daughters or them representatives.” Held,, that the limitation over was good, and that the devisees in remainder were entitled to any property of the estate remaining in kind, and such part of the proceeds of sale of any of said property as they may be able to trace and show was not used for the “ convenience and support” of the tenant for life and the daughters.</p>

<p>Special judge — Oath oe office. — A special judge appointed hy the governor is not required to qualify hy taking the oath of office before the clerk and master of the court under 1871, 73,2, and an injunction against his acting as judge upon this ground is unwarranted.</p> <p>Injunction — Special judge. — An injunction, granted at the instance of a private citizen, restraining a judge, duly commissioned hy the governor of the state, from discharging his judicial functions, is wholly unwarranted.</p> <p>Same — Order punishing an officer for contempt. — The judge of any court, proceeding according to law, has authority to control the officers of court and punish them for contempt, and no other judge has any authority to enjoin the execution of the order made for this purpose.</p> <p>Same — Commissioners oe county court. — The chancery court lias no authority to enjoin commissioners appointed by the county court to carry out its order for the removal of the county-seat, especially if the county court is not made a party to the suit.</p> <p>Queue. — "Whether the court of chancery has any jurisdiction, at the suit of an individual, to revise the action of the county court upon the question of the removal of the county seat under the act of 1873,103, 1.</p>

<p>Execution — Levy—Land with lien Reserved. — Land held under an absolute deed, upon the face of which a lien is reserved for a balance of unpaid purchase-money, is subject to levy and sale by execution against the grantee, the purchaser taking the land cum onere.</p> <p>Probate of deed — Clerk’s certificate. — A certificate of probate reciting that the bargainor appeared “before me, E. R. C., clerk,” and signed “E. R. C., clerk, by P. L. N., L>. C.,” is good.</p> <p>Estoppel — Statement in bill. — The purchaser is not estopped to set up the deed by the fact that he stated in his original bill that there was no such deed, the proof showing that both the vendor and vendee supposed, at the time, that such was the fact, and all parties agreeing that the pleadings may be treated as corrected in this regard.</p> <p>Execution sale, lot or lots. — The title papers of the judgment-debtor must determine the fact whether, for the purpose of execution sale, realty shall be treated as one lot, or several lots.</p>

<p>Void sale — Slave.—A sale of a house and lot to a slave was void, and will be so declared upon bill filed by the slave since his emancipation, although the consideration had been partly paid, and improvements made on the lot by the purchaser.</p> <p>Same — PuRCHase-money—Improvements.—Although the money of a slave in legal contemplation belonged to the master, yet, as the master recognized the right of the slave at the time, his freedom will be held, by relation, to go bach to the date when the right accrued, and he-will be entitled to a decree for the money paid, and for the permanent enhancement in the value of the land by improvements made by him, and for taxes, subject to account for reasonable rent, and a lien will be declared on the land for the balance, if any, found due him.</p>

<p>Execution — Levy on land — Teste.—The levy of an execution on land gives a specific lien, independent of the lien of the judgment, and relates back to the teste of the execution so as to override intermediate conveyances between the teste and the levy.</p> <p>Same — Delay.—A delay to sell, under the levy, at the instance of the judgment-debtors, will not prejudice the lien thus acquired as between the creditor and the debtors, or the assignees of notes given by one of those debtors to the other for the land, the notes having been assigned as collateral security or in part payment of a pre-existing debt.</p> <p>He who asks equity must do equity. — But the judgment-creditor having come into this court for equity must do equity, and will only be entitled to the land to the extent of his debt, the assignee taking the surplus.</p>

<p>Execution sale — prooe op. — A purchaser at execution sale must show that a legal sale was made, either hy the return of the officer, or other competent proof.</p> <p>Same — Purchase by co-debtor. — A co-dehtor in the judgment, who, after an arrangement between the creditor and principal debtor, with his knowledge, subsequently carried out, for the settlement of the judgment, buys land of the principal debtor sold under a previous levy, without the knowledge of the principal debtor, and merely for the costs, will hold the title as security for the costs, and, beyond that, as trustee for the principal debtor.</p> <p>Same — Redeeming- creditor — A creditor, who, with full knowledge of the facts, redeems the land thus sold, will take no better title than the purchaser.</p> <p>Redemption — Receipt.—The receipt of a redeeming creditor filed with the clerk, without notice to the debtor, must contain on its face sufficient to operate as notice in law that the credit is given to him, and to enable him to redeem, otherwise the redemption will be void.</p>

<p>Bill of review — Answer.—An answer to a bill of review which admits that llie pleadings and decrees in the original cause are substantially stated in the bill of review, is equivalent to a demurrer, or to a plea of the former decree, and a demurrer to the opening of the enrollment, and the cause may be heard as if the usual and formal mode of defense had been resorted to.</p> <p>Same — Error of law apparent. — A decree which goes beyond the allegations of the bill, and fails to dispose of matters of equity in the cross-bill, is .erroneous for error of law apparent, and will he reviewed and annulled.</p>

<p>PARTNERSHIP — SETTLEMENT—'OPENIN'G ACCOUNTS. — Upon a bill filed to Open partnership accounts after a settlement by the parties, and note given for the balance as found, the burden of proof is upon the complainant, and the accounts will not be opened unless the proof clearly shows the existence of errors.</p>

<p>Usury — Purchaser.—A privy in estate may impeach a contract between Ms vendor and a prior encumbrancer for usury, or other illegality; and in this class would fall a general purchaser of the realty, but not a purchaser of the equity of redemption, who buys subject to the prior encumbrance.</p>

<p>PASTNERSHm — Dissolution.—The impossibility of carrying on a joint business profitably upon the basis of the articles of agreement, is sufiicient to authorize either party to demand a dissolution or rescission.</p> <p>Same — Case in judgment. — Where, therefore, the agreement between complainant and defendants was that the latter should wort the farm of the former for five years, but expressly limited the contributions of each to the business below what, in the event, was absolutely necessary to its successful prosecution, equity will decree a dissolution at the instance of either.</p> <p>Same — Damages.—In such case, neither party is entitled to damages for the personal derelictions of duty by the other, so long as the business is allowed to continue.</p> <p>Receiver — Partner.—A partner, or co-owner, who is appointed receiver upon his own ex parte application, is not entitled to compensation for his services as such.</p>

<p>Set-oot — Dbeense.—It is no defense to a bill filed by an administrator to enforce a vendor’s lien retained to secure a debt due to bis intestate’s esi ate, that be, as an attorney at law, bad received from tbe defendant a note to collect and apply the proceeds to the payment of tbe debt secured by tbe vendor’s lien, even if there were a failure (which is neither alleged nor shown) to collect under such circumstances as to charge him as attorney with tbe loss, especially if the contract to collect was made with the defendant as an individual, and tbe debt sought to be'enforced by the bill is against an estate of which the defendant is the personal representative.</p>

<p>Trust — Receipt or confederate money — Investment thereof. — G., being indebted to S. as administratrix, for borrowed money, paid tbe debt in Confederate treasury notes to T. as ber agent. Afterwards, S., as administratrix, sued G. at law on tbe original debt, and recovered judgment upon tbe ground that T. was not ber agent to collect tbe debt, and tbe payment bad never been ratified by her. G. paid tbe judgment, and filed this bill against S., and the distributees of the estate of which she was administratrix, to recover tbe value of tbe Confederate money. Seld:</p> <p>1. That tbe complainant was entitled to recover of S. the value of so much of the Confederate money, or its proceeds, as came to ber possession, and was invested or used by ber, or ber direction, the same being a trust fund in ber hands for his benefit.</p> <p>2d. That tlie complainant was entitled to recover from tlie guardian of the infant distributees the proceeds of the Confederate money which came to his hands as guardian, he receiving the same with full knowledge of the facts, and never having paid the same over to his wards.</p> <p>8d. That the complainant was also entitled to any notes, judgments, or other evidences of debt based upon such Confederate money in the hands or under the control of the defendants, but must bear the expenses of collection, and any loss incurred without any fault of the defendants.</p> <p>Exceptions — Master’s report. — It is no sufficient ground of exception to the master’s report that it was not made to the next term as required by the order of reference.</p>

<p>Cancellation — Deed permitted to stand as security. — Upon bill filed by a widow to set aside a conveyance of land by ber husband and herself as colorable, and the proof showing the payment of a consideration in money, and failing to show fraud in fact on the part of the purchaser, the conveyance sought to be set aside was permitted to stand as security for the money actually paid, and to the extent of the sales made previous to the filing of the bill, and the title to the residue divested out of the defendant and vested in the complainant.</p>

<p>Oebtcer’s return, evidence to impeach. — Upon bill filed to enjoin tbe execution of a judgment at law on tbe ground that tbe judgment-debtor was not summoned to defend tbe suit, tbe officer's return that be bad executed tbe summons is prima facie evidence of its truth, and tbe burden of proof is on tbe compiainant to show tbe contrary, and one witness alone is not sufficient successfully to impeach it.</p>

<p>Pleading — dates and amounts may be given in figures. — Dates and amounts may be stated in equity pleading in figures, and need not be written in words at length.</p> <p>Equitable remedy aeter enforcement oe legal right. — A person who has a legal demand, and also a lien on property for its security to be enforced in equity, may pursue both remedies.</p> <p>Constitutional law. — The act of the General Assembly of the 27th of March, 1872, ch. 3, to enforce the collection of certain unpaid taxes in this court, is constitutional.</p>

<p>Plea — Only one allowed in equity without leave. — In equity, a defendant cannot put in more than one plea to the bill without leave of the court.</p> <p>Pleas — Pure and not dure — Pleas in equity are pure and not pure, the former consisting of matte]- dehors the bill, the latter of matter, either by way of affirmance or denial, already in the bill, and must be supported by answer. Same — Denials oe charges in the bill. — A simple denial of an averment of the bill is the province of an answer not of a plea, and if resorted to by plea constitutes a plea not pure, and must be supported by an answer.</p>

<p>Bilí, to declare future rights.- — Upon a bill by a mother against her children, infants, for a declaration of her rights in land under a conveyance to her “ for the separate use and enjoyment of her and her family,” Held:</p> <p>1st. That it was doubtful whether the Court could declare the future rights of the children so as to ensure purchasers a good title.</p> <p>2d. That the children probably had an interest in the property.</p> <p>3d. And in that view, that no sale could be made under this bill, it not being filed in conformity with the provisions of the Code, § 3,324, et seq.</p>

<p>CONSTRUCTION — Deed to a woman And her family. — Under a deed of conveyance to a woman “ for the separate use and enjoyment of her' and her family,” her children are entitled to a share or benefit so long as they remain at home constituting part of the family.</p> <p>Sale of such property. — Property so held may be sold under the provisions of the Code, § 3.324 et seq., upon a proper case being made.</p> <p>Same — The proceeds of sale, and any property in which they are re-invested, must be held subject to the terms of the settlement, and to the same rules of descent and distribution as the property sold.</p>

<p>Supersedeas oe moneyed decree. — Chancery will not supersede the execution of its own decree for money except upon bond, with good security, sufficient to secure the debt sought to he enjoined.</p>

<p>AGENT -WHO ACTS FOR HIMSELF IN' THE MATTER OF THE AGENCY. — 'Who ever undertakes to act for another in any matter shall not, in the same matter, act for himself, and this without regard to the fact whether he has or has not made a profit by the act.</p>

<p>RECEIVER — BETWEEN ADVERSE CLAIMANTS OR LEGAL TITLE. — The COUTt IS slow to appoint a receiver of realty in the peaceable possession of one party under a claim of right, when the contest is between claimants of the legal title; but this rule does not apply where the property is already in the custody of a receiver in suits between adverse claimants, and a third party, claiming adversely to all the other litigants, asks that the receivership be continued.</p>

<p>Receiver — Duty to account. — It is the duty of a receiver,- as an officer of the court, to mate a full report and pass his accounts at least once a year, and any party to the cause in which he is appointed, and interested in the property or its incomes, is entitled upon motion to have an order for such report, and a reference for an account.</p>

<p>Supplemental bill — When proper — To entitle a person to file a supplemental bill to obtain tlie benefit of the previous proceedings, fie must come in in respect of the same title, in the same person, as stated in the original hill.</p> <p>Same — Demurrer.—And it is a good ground of demurrer to a bill filed as supplemental for the purpose of obtaining the benefit of the previous proceedings, that it is not supplemental but original.</p>

<p>Multifariousness — Motion to dismiss hor. — Since the provision of the Code, § 4,327, that the uniting in one bill of several matters of equity, distinct and independent, against one defendant is not multifariousness, it is impossi-' ble for a bill to be multifarious where there is only one defendant; and a prayer that, in a certain contingency which has not happened, another person be made a defendant does not make that person a party.</p>

<p>PARTIES TO A BILL IMPEACHING- A DECREE POR ERATJD. — All parties to the original suit whose rights may be affected by the relief sought are necessary parties to a bill filed to set aside a decretal order as procured by the fraud of one particular defendant, or altered by him after the adjournment of the court, and it is no sufficient cause of demurrer to the whole bill by any of these defendants that they are not directly charged with the fraud, or connected with the unauthorized alteration, especially if the bill allege that these defendants knew by whom and when the alterations were made.</p>

<p>Bankruptcy — Notice to assignee op suit. — 1The provision of the 14th section of the Bankrupt Act (Rev. Stat. U. S., § 5,056), which requires a preliminary notice to the assignee to entitle a person to maintain an action against him, has no application to a hill to enjoin a judgment recovered by the bankrupt on the ground of fraud committed by him; nor will the failure to give such notice sustain a motion to dismiss a bill for want of equity on its face.</p> <p>Bankrupt not a necessary party. — The bankrupt, after the assignment of his eflects to the assignee, is not a necessary party to a suit to enjoin a judgment in his favor, on the ground of fraud committed by him in its recovery.</p> <p>Discovery in the suit at law. — The filing of a petition for discovery in the suit at law is not required as a pre-requisite to enable the judgment-debtor to impeach the judgment for fraud.</p>

<p>Bill filed to recover for material shipped from Cincinnati in 1861, under a written contract, to be used in building the Maxwell House, in Nashville.</p>

<p>Dedication oe street to the public. — To constitute a dedication of a street or way to the public, so as to preclude a revocation by the owner, there must be acceptance of the easement, either by formal act of the public authorities, or by common use of the public.</p>

<p>Husband and wife — Settlement on wife — Consideration.—Prior advances to a husband out of the wife’s property will not constitute a consideration for a subsequent settlement on the wife, when not mentioned therein, unless there was an agreement at the time they were made to secure her a settlement.</p> <p>Same — Same.—But such advances may be looted to to explain the execution of the settlement, and as evidence of the good faith of the parties.</p> <p>Voluntaby settlement by i-tskson in debt. — A voluntary settlement by a husband upon his wife and children is not void per se as to existing creditors.</p>

<p>DOWER — IMPROVEMENTS BY DOWRESS BEFORE ASSIGNMENT. — A widow Who, before assignment of dower, mates improvements on land assigned to ber in dower, cannot claim compensation for the improvements thus made.</p> <p>Infants bands — Improvements by mother. — A mother who, without authority, mates valuable improvements on the land of her infant children, with full tno wledge of their title, is not entitled to compensation therefor.</p> <p>CONVERSION OF INFANT’S PBRSONAETY INTO RBAETY — DEATH OF INFANT.— The personal estate of an infant, converted into realty, upon bill filedfor the purpose, by decree which omits the direction that the realty shall be held in the same manner and subject to the same rules of descent and distribution as the personalty, -will nevertheless, upon the death of the infant under age, descend as personalty, and the fact that the conversion was made at the instance of the mother, as the next friend of the infant, will not prejudice her right to have it so distributed.</p>

<p>Will — Construction—Rule of ejusdem: generis. — A testatrix, after mentioning and giving a specific bequest to each of her heirs and next of Mn, concluded her will as follows: “ I give to my neace Jane Perkins Edmondson all the balance of my property of every description, two J'ether beds and bed-steds and fumature, one soffa, one wardrobe, one washstand, and all the money and notes that may be on hand at my death.” Held, that a remainder interest in land subject to the dower of the testatrix’ mother, then living, passed under this will to the residuary devisee.</p>

<p>Answer, when evidence oe facts in avoidance. — An answer which, while admitting or denying the facts in the hill, sets up other facts in defense or avoidance, is not evidence of the latter facts unless they are a direct and proper reply to an express charge or interrogatory; or unless the transaction is a continuous one, and the matters of charge and discharge occur at the same time.</p> <p>Answer — Admissions.—The rule which considers an admission as binding, and as throwing upon the defendant the burden of proving the matter in avoidance, applies only to admissions which are responsive to the charges of the bill; and if the complainant read an admission not thus responsive he reads it as evidence, not as pleading, and must read the whole.</p> <p>Same. — The complainant may limit the charges of his bill and interrogatories so as to confine the responsive part of the answer, and, in that case, may use admissions which would be responsive except for the limitation, without being required to give the defendant the benefit of the matters of avoidance stated in connection therewith.</p> <p>Case in judgment. — Thus, where a bill is filed to charge defendant with cotton bought by him with the money of complainants, and as their agent, and with the proceeds of the sale of such cotton charged as having been sold by the defendant at a fixed price, and calls upon the defendant to disclose when, where, and from whom he purchased the cotton, and when, where, and to whom he sold it, and expressly limits the discovery to these points, and the defendant admits the contract, purchase, and sale of cotton as charged, but states, in avoidance, that the contract, which was made in the Eederal lines, was to purchase cotton in the Confederate lines, that at least one-fourth of the cotton was lost by stealage, or otherwise and that out of the proceeds of sale certain expenses, set out in a schedule annexed, were paid, the complainants were held entitled to use the matters of charge, without being required to give the defendant the benefit of the matters of discharge.</p>

<p>Lease — Removal oe buildings. — Under astipulation in a lease of the right of the lessee at the end of the lease to remove buildings erected during the term, the lessee is entitled to a reasonable time to remove them; and if the removal be prevented by act of the lessor, or by a provision of the lease itself, or by an independent contract with the lessor, the right would only be suspended, and would revive whenever the obstruction is removed.</p> <p>Lease — Poeeeituke.—A right of re-entry and forfeiture upon failure to pay rent, must be enforced during the term, otherwise the forfeiture will be waived.</p> <p>Lease — Eorfeiture.—Where by a lease the buildings erected were subject to forfeiture for a failure to pay rent, and a new lease made such conditions of the prior lease binding as were not changed by the “ terms or express words” of the new lease, and one of these terms mortgaged the buildings to secure the rent, it was held that the right of forfeiture did not exist under the new lease.</p>

<p>Will — Construction—Class doctrine. — By the English common law the vesting of legacies and devises is favored, and a will speaks as of the death of the testator unless it disclose a clear intention to the contrary, and, consequently, in gifts to a class the general rule is that the class must he ascertained at the death of the testator.</p> <p>Same. — In this state, it is an exception to the general rule, that, when the devise is to a fluctuating class, and the time of distribution is fixed at a subsequent period, or on the happening of a future event, the class must be ascertained at the latter date, unless the will disclose a contrary intent.</p> <p>Case in judgment. — Where, therefore, the will gave the property to the testator’s wife for life, and at her death “ to be distributed equally between my lawful heirs,” those persons were held entitled to take the property in equal shares who, at the death of the wife, would have taken the testator’s realty had he then died intestate.</p>

<p>■VTill — Construction—Class doctrine. — A. devise in remainder after a life estate to persons not in the same degree of relationship, with the intention that one or moi-e of the devisees shall enjoy a several interest, does not fall within the class rule of this state, hut clothes the persons who answer the description at the testator’s death, with a vested and transmissible interest in the property devised.</p> <p>Case in judgment. — The testator devised certain real and personal property to his wife for life, and at her death to be sold and the proceeds equally divided “ among my children, share and share alike, one share to go to my grandson, C. H. W., and one share to go and be vested in my two grandsons, M. J. and J. J., and the lawful issues of their bodies,” with a provision that if either of these last named grandsons died without issue living at his death, then his share should go to the survivor, and if both died without such issue, the whole share should descend to the testator’s heirs, JZeld, that the testator’s children at his death took vested and transmissible interests in the property devised.</p>

<p>Eeme COVERT— Contracts. — 'The general rule is that a married woman is incapable of binding herself by contract, and a negotiable security given by her is void.</p> <p>Same. — But where a married woman has lived for years in this state, separate and apart from her husband who has lived in another state, and has carried on business as a feme sole, contracting and being contracted with, suing and being sued, and has incurred a debt for goods necessary to the business she is engaged in, neither a note given for such goods, nor a judgment recovered thereon at law, is void, and satisfaction of the latter may be enforced in equity.</p>

<p>INSURANCE Companies — Bonds deposited — Beneficiaries.—Under the act of the Legislature requiring Insurance Companies to deposit bonds with the Comptroller “ as security for risks taken by citizens of this state,” the beneficiaries are such citizens of the state as, haying taken out policies to cover risks, have suffered loss within the policy, or have become entitled to be repaid the premium, or any part thereof, in any of the contingencies in which such re-payment is demandable as of right, and insolvency of the company would be such a contingency; and all the beneficiaries are entitled to share the funds pro rata.</p> <p>Same — Lawyer’s ebbs. — Counsel who have rendered professional services for the Insurance Company are not beneficiaries within the law, but may be entitled to priority of satisfaction to the extent of services rendered for the benefit of the trust, and to secure the fund.</p>

<p>Policy of fire insurance — Stipulation against assignment. — A stipulation in a policy of insurance against loss by fire, that tlie risk shall cease, and the policy be void if the policy be assigned either before or after a loss without consent of the company endorsed thereon, has no application to an assignment of the demand against the company after the loss has occurred.</p> <p>Same — TERMINATION oe risk by levy oe execution. — The stipulation of a fire policy that the levy of an execution shall he deemed an alienation of the property, and the policy thereupon terminate, only applies to such a levy as divests the title to the property out of the assured.</p> <p>Insurance eund. — Risk under the statute. — Under the statute which malíes the bonds deposited by insurance companies a security for risks taken by citizens of the state, it is the risk which secures the lien, and the lien will not be lost by assignment after the loss.</p>

<p>Account — Mode of proceeding in cases op. — 'The only correct mode of proceeding in cases in wMcli an account must be taken between the parties, is to first prepare the case for hearing, and have the legal rights of the parties determined, and the principles of the reference settled, upon which the master should-act in taking the account.</p> <p>Same — Duty of court and clerk. — In matters of account, it is the exclusive duty of the court to adjudge rights, while the duty of the clerk is principally ministerial and to ascertain facts, and scrutinize details, and these duties are confounded whenever a general reference is made without the preliminary hearing on the merits.</p> <p>Account under a contract for the erection of a house. — General form of a decree of reference upon a bill by a mechanic for an account under a building contract, and a cross-bill of the employer for damages by way of recoupment.</p>

<p>Conditional sale op personalty — When title passes. — If personal chattels he sold upon the express condition that they are to be paid for on delivery, and they are delivered upon the faith that the condition will be immediately performed, and performance is refused upon demand in a reasonable time, no title passes to the buyer; and, this, though the property be grain delivered by instalments, and upon delivery mixed by the buyer with similar grain, and the buyer continues to use grain from the mixture for the purposes of his business.</p> <p>Case in judgment. — H. sold to S. & 3?. 1,000 bushels, of barley to be paid for on delivery, and delivered the same by the wagon load in about two weeks, receiving one payment on account before, and one after the last delivery, the barley as delivered being mixed by the buyers, without the knowledge of H., with other barley, and the mixture used for making malt. Five days after the last delivery, and four days after the last payment on account, the buyers made a general assignment of all their property for the benefit of creditors, including the barley on hand, which was sufficient to cover H.’s barley not paid fox-, whereupon II. demanded his barley from the assignee. Held, that H. was entitled to recover from the assignee the barley, or its value if converted by him.</p>

<p>Counsel fees — Power of court. — Tiie Chancery Courts, in this State, are authorized, either at the instance of the suitor, or, in proper eases and upon proper proceedings, of the counsel, to ascertain the reasonable compensation of counsel for professional, services in pending cases.</p> <p>Same — Doty of trustee, guardian, etc. — It is the duty of Trustees, guardians, and next friends of persons under disability, to make a contract with counsel for professional services, or agree with Rim as to his compensation, and such expenses fall under the head of the just allowances to which such fiduciaries are entitled, and properly come up on the settlement of their accounts.</p> <p>Sam®, where there are no eunds or the ward — If there is no fund belonging to the ward, the costs which can be awarded a fiduciary are ordinarily only the taxable costs, but this court may provide reasonable compensation for guardians ad litem in the nature of a tax fee.</p> <p>Same. — Where the litigation grew out of an exchange of property by a lunatic, who caused the property given in exchange tobe conveyed to a trustee in trust for his wife and children, and the insanity was brought about by habits of intoxication, and was not so obvious as to justify the trustee in surrendering, the property without a struggle, the expenses of the trustee, including reasonable compensation of his counsel, were held to be a just allowance, and proper charge on the property of the lunatic, upon a recission at his instance after restoration to his senses.</p>

<p>SOLICITOR — Compensation—toPANT.—The measure of compensation for professional services rendered for an infant Raving property, should, ordinarily, he determined by the same considerations which regulate the compensation for similar services on behalf of an adult in like circumstances.</p> <p>samb — Samb—Jurisdiction.—The right of a solicitor, who has rendered professional services for an infant, to come into the Chancery Court for the ascertainment of his compensation, depends upon his having acquired a lien on property for its payment.</p> <p>Samb — Practice.—The proceeding to enforce a solicitor’s lien is by reference in the cause in which the services were rendered, or by bill, to which the client is made a defendant, stating the nature and particulars of his services, and the compensation claimed.</p>

<p>Will — Costktjction—ffra.—A devise by a husband to his “ dear wife,” not mentioning her name, applies exclusively to the individual who answers the description at the date of the will, and not to an after-taken wife.</p>

<p>Pleas, though insufficient, allowed to stand for an answer. — Pleas, insufficient as such hut containing matter of defense to the hill, held sufficient to sustain a motion to dissolve an injunction, and ordered to stand for an answer, with permission to the complainant to move for leave to except, and to the defendant to move for leave to file a more formal answer.</p> <p>Tax title — inadequacy of consideration. — A court of equity will scrutinize a title derived under a tax sale, and, ordinarily, refuse to aid it on account of the gross inadequacy of consideration.</p> <p>Tax title. — Semble, a person in whose name land is listed for taxes, or who is in possession claiming title when the taxes are a lien, or who occupies such a fiduciary relation as to mahe it his duty to pay the taxes, can acquire no additional title hy purchasing at the tax sale.</p>

<p>Ajdmiotstration — Loss 03? assets — Sale oe realty. — Realty descended may be subjected to the satisfaction of tbe debts of tbe decedent, where tbe goods and chattels of tbe estate which came to tbe bands of tbe personal representative, or the notes taken upon sale thereof, and good when received, are lost without fault on bis part.</p>

<p>Specific execution — Unequal contract. — A court of equity will not lend its aid to the enforcement of a contract which is manifestly unequal.</p> <p>Case in judgment. — Thus, where the instrument sought to be enforced recites that the parties have mutually agreed to enter into the bond in the penalty of |500, with the condition for securing the defendant, his heirs and assigns, in the quiet enjoyment of the property free from all encumbrance, and possession on a given day, hut the condition is only to secure the purchase-money, $2,800, and obligatory on the defendant alone, and there is no covenant on the part of the complainant for a warranty of title, or for the execution of a deed or assurance of title of any kind, the court refused to entertain a bill by the vendor against the vendee, and dismissed it with costs.</p>

<p>Assignee's sale — Right or purchaser to enquire into usury. — A purchaser of land, at the sale of an assignee in bankruptcy, who buys subject to a prior mortgage, is entitled to enquire into the usury included in the debt secured by the prior mortgage.</p> <p>Usury — Jurisdiction—Judgment at law. — In this state, the jurisdiction of courts of law and equity ft matters of usury is concurrent, and after a judgment at law equity will not entertain a bill for relief except in special eases where the remedy at law was inadequate; and this whether any defense on the ground of usury was made at law or not.</p> <p>Usury — Judgment a mere security. — But in order to bar relief in equity, the judgment at law must be the result of a litigation in invitum, not of a proceeding in form a litigation, while in reality only a mode of securing the usurious loan.</p>

<p>Pro-coneesso — Decree xhereoN. — No relief can be granted upon a bill taken for confessed against the defendant, beyond the fair scope of the allegations and prayers of the bill.</p> <p>Case in judgment. — Thus, where the bill was fiied to foreclose a mortgage on realty made by the defendant while a feme covert, jointly with her husband, to secure a note of the husband and wife, and the property mortgaged was held by the wife to the separate use of herself and family, without any power to sell or mortgage, and, consequently, both the note and mortgage were void, it was held that no relief could be granted upon the bill taken for confessed, although the note and mortgage were given to secure money loaned to pay taxes due upon the land, and for the support of thefeme and her children. But the court gave the complainant leave to amend, upon paying the costs of the amendment.</p>