Volume 1 — Thompson's Ohio Reports

In this case in the Circuit Court of Grainger, May Term, 1846, a motion iras made by the defendant for a judgment of non pros for want of replication. At the •January Term, 1847, the defendant amended his plea. At the September Term, 1847, on Saturday, the 28th of August, a general continuance of all cases on the Civil Docket not litigated, was entered.

A Bill of Review was filed in tlie Chancery Court at Tazewell to review a decision of the Supreme Court. The Chancellor dismissed the hill for want of jurisdiction and the complainant appealed to this Court.

This was an action in the Circuit Court of Roane County brought .by the plaintiff against the defendants, upon a sealed instrument originally executed for the sum of Eight Hundred and-Dollars.

This was an action of ejectment. At the return term, Huff, whose tenants were jointly sued • with one Gibson, was admitted to plead separately in the room and stead of his tenants. Gibson also pleaded for himself. The Clerk entered them as separate causes, and Campbell, the plaintiff, took out separate subpoenas in each case. Afterwards Huff compromised and confessed judgment for the costs of his case. He was charged with all the costs of witnesses- summoned in his ease.

This was a hill filed in-Chancery, at Madisonville, to enforce the redemption of land sold at execution sale and purchased by respondent Spilman.' After the sale, Spilman, by contract with Hamilton, the execution debtor, obtained an. absolute deed to the land for a valuable consideration.

<p>Ejectment by Stephenson’s Lessee in the Circuit Court of Monroe County. Judgment below for the plaintiff, and appeal in error to this Court by the- defendant. Peck.</p>

The plaintiff in error, in September, 1839, executed an instrument not under, seal, in which he agreed ■ to receive of the defendant in error five hundred dollars’ worth of morus multicaulis roots and cuttings, to he delivered at the house of the defendant in error, in Jonesborough, at the market price, on the 15th of March, 1840.

It appears from the record in this cause, ■ that at the January term, 1845, an order was made giving both parties leave to take depositions generally. At the January term, 1847, an order was made reviving, all orders previously made. Between the said terms several special orders were made.

This was an action of covenant brought in the name of Smith, for the use of Prince, against Russel. The declaration stated that the said covenant was in the possession of a third person, with whom it had been agreed by the .parties that it should be left, and who refused to deliver it into the possession of the plaintiff. (1) Because profert to the covenant sued on was not made, the declaration was demurred to, which demurrer was overruled.

This was a motion made in the circuit court of Sevier county, to allow the sheriff to amend his return upon an execution levied upon land. The return is as follows, viz: “No goods and chattels of the defendant found in my county ; but levied this Fi. Fa. on four hundred and. seventy one acres of land lying in 5th district, adjoining the land of C. Cannon, H. M. Thomas and others ; levied on as the property of James P. H. Porter, sr., this 14th of May, 1848.

<p>PRACTICE AT LAW. — Misjoinder.</p> <p>Two causes of action arising out of the same transaction, on one of which a husband must sue alone, andón the other must join with his wife, cannot be united in one suit.</p>

The plaintiff, Julian E. Scott, had a cause pending in the Circuit Court, and sued out an attachment in aid of the same before a justice of the peace. In doing so, he omitted by mistake to sign the affidavit on which the attachment was based, although the same was sworn to; and he requested permission to amend this defect in the Circuit Court, which the Circuit Judge refused, and thereupon discharged the attachment. Erom this order the plaintiff appealed.

This was a motion against the Sheriff of Sevier County for an insufficient return to an execution. Judgment below was refused, and the plaintiff appealed to this Court. The return showed that the Sheriff had levied on certain property and taken a delivery bond. From the face of the bond it appeared that the property levied on was not of sufficient value to satisfy the judgment and the return failed to show why a further levy was not made.

Id this case the clerk and master had allowed the complainant to prove various items of charge by his own oath. The Supreme Court on exceptions, G-reen, J., delivering the opinion, stated the rule as follows i A complainant seeking an account cannot charge the /respondent under'the rule allowing the accounting party to prove by his own oath to the amount of five hundred dollars in items no,t exceeding twenty dollars.

In this cause a motion was made in the Supreme Court to dismiss the appeal; and it appeared that Morris prayed an appeal from the decree of the chancellor, which was allowed on his filing a sufficient appeal bond; and to enable him to do so, he was allowed a limited time after the adjournment of the Term, the bond to be given before the Clerk and Master.

<p>SUPREME COURT PRACTICE. — Dismissal of appeal as to one of three joint Appellants.</p> <p>'When several defendants in ejectment appeal to the Supreme Court, one of whom fails to perfect his appeal by giving bond or taking the pauper oath, the Supreme Court will dismiss the appeal and award execution as to him.</p> <p>Sams. — Judgment in such cases. — The judgment in such a case is that the plaintiff be put in possession in the same manner and to the same extent as the same was held at the commencement of the suit by the defendant whose appeal was dismissed.</p>

<p>SUPREME COURT PRACTICE. — Appeal granted, upon condition. WEen tlie grant of an appeal to the Supreme Court is upon a condition it must appear that the condition has been strictly complied with; otherwise the Supreme Court will not entertain jurisdiction of the ap.peal.</p> <p>CHANCERY PRACTICE. — Appeal Bonds executed in vacation before Glerh and Master.</p> <p>•The practice of allowing time to the appellant to execute the bond for his appeal before the Clerk and Master in vacation is an abuse, but has been too long sanctioned by the Courts to be changed except by the Legislature. McKinney, J., Obiter.</p>

This cause was tried in tbe Circuit Court of Claiborne County in 1845; and from tbe judgment then and there rendered, an appeal was prayed and granted to tbe Supreme Court. Five years elapsed, during which time no transcript of the record was forwarded to .the Supreme Court, nor did the appellant take any steps toward prosecuting his appeal.

In this cause the defendant obtained a rule on the plaintiff at the July Term, 1849, of the Circuit Court of Carter County, to justify his present security or give other and better security, on or before ■ the second day of the next term, or his cause would stand dismissed. At the time of holding the next term the Judge failed to attend, and no court was held.

The plaintiff in error was indicted and tried in' the county of Knox on a charge of an assault with intent to kill. The bill of indictment charged the assault to have been committed by presenting a gun, but did not charge that it was done within shooting distance. The jury found the plaintiff in error not guilty of the felonious intent, but guilty of an assault.

This was an indictment against the defendant, for malicious mischiefs in the circuit court of Anderson county.

On the 9th of January, 1844, Attorney General D. H. Cummings, moved in the circuit court of Monroe county for a judgment against “Martin Henderson, Sheriff of Monroe, and Street Lane, R. R. Cloudis and J. J. Hum-phreys, his securities,” for the State revenue collected by the defendant as Sheriff for the year 1842. In this motion the name of William Burris, one of the defendant’s securities, was not recited.

This was a motion against an officer and the sureties in Ms official bond. A nolle prosequi was entered as to one of the sureties, and the motion was sought to be prosecuted against the principal and the remaining sureties. Could this be done? >-

I. In this cause at which final judgment was rendered at the September Term, 1849, of the Supreme Court, (1) affirming the judgment of the Circuit Court of Claiborne County, on motion of Sneed a certiorari was awarded directing the Clerk of the Court below to certify to the Supreme Court the record and proofs in regard to the cost of a witness. [2] II.

This cause was brought in the county court of Knox county in the usual manner, on the application of Mary Ault against John L. Stanley, charging him with being the father of her illegitimate child. The affidavit and warrant did not show that the child was horn in Knox county, and a motion was made in the county court to amend them so as to show that fact, which was allowed hv the court.

<p>EXECUTION upon Justices Judgment. Limitation.</p> <p>An officer cannot protect himself in making a levy under a justice’s execution which has been issued more than thirty'days previous to the levy.</p>

<p>SUPREME COURT JURISDICTION. Motion for Judgment by Security against Principal.</p> <p>Tbe Supreme Court cannot entertain amotion for judgment in favor of a security against bis principal, this being an incident of original jurisdiction. ■ '</p>

The defendant in this case was indicted in the county of Hamilton for passing counterfeit money* was tried, and convicted upon a count in the indictment which stated that the defendants “fraudulently, feloniously, &c., passed counterfeit money to one---” hut which omitted to state .that the defendants thereby intended to defraud the said - -.

<p>ASSIGNMENT of Chose in Action and Right to sue upon same.</p> <p>A widow may sue upon a debt due ber husband which has been assigned to her by commissioners appointed by the County Court to lay off a years support.</p>

This .was a certiorari to a justice of the peace. The reasoa stated in the petition for not appealing was, that the plaintiff agreed after judgment to arbitrate the matter, and thereby prevented the defendant from appealing. It appeared that the plaintiff was an infant, and it was hence insisted that the agreement was void. The circuit judge held the reason for not appealing insufficient, and dismissed the petition; whereupon the defendant appealed to this court.

<p>BREACH OE WARRANTY. — Right of Action.</p> <p>Where a sale or exchange of personal property was made with warranty, and with the condition that the vendor might return the same within a specified time in ease it failed to fulfill the condition of the-warranty, held, that this condition did not vary the right to sue upon the warranty, the vendor having refused to receive the property back within the specified time.</p>

A motion was made to amend a judgment entered at a former term of the Supreme Court, in am action of -as-sumpsit for use and occupation which had been brought-here by appeal on the part of the defendant. The judgment here was entered against the defendant and his sureties in the appeal bond, for costs and damages.

<p>CHANCERT PRACTICE. — Parties defendant, how created.</p> <p>Creditors defending in chancery who have not been made parties by the bill, must be made parties by an order of record, or they will not be regarded as such, and an appeal by them to the Supreme Court will be dismissed.</p>

A garnishee answered before a Justice of the Peace that he had three hundred pounds of pork in his hands belonging to the defendant; whereupon the Justice rendered judgment against the defendant for the value of the pork. The garnishee did not appeal from this judgment within the time prescribed by law; but brought the case into the Circuit Court by cetiorari, where the judgment of the justice was quashed.

<p>EVIDENCE. — Competency, Sufficiency.</p> <p>A. and B. were second and third endorsers on a note in bank, B. was also surety in three separate notes drawn by other parties in favor of A. A. said to B. “relieve me from my liability on the note in bank, and I will cancel your suretyship on the three notes of which I am payee. • Upon a bill in chancery alleging the above agreement, and a sworn answer denying it, held, that the maker of the note in bank was a competent witness to prove the same and that without other evidence his testimony was sufficient.</p>

<p>EVIDENCE. — Competency of witness, Interest.</p> <p>1. A vendor of the land in dispute who conveyed without convenants of general warranty, is a competent witness.</p> <p>CHANCERY PRACTICE, Clerk and Master cannot decide questions of competency.</p> <p>2. It is not the province of the Clerk and Master to rule in regard to the competency of a witness nor will the Oourt reverse his decisions in that respect: they are a nullity.</p> <p>MISTAKE IN CONVEYANCE OE LAND — Relief inEguity denied when.</p> <p>3. Where on a sale of land the true boundary of the land was shown, but in drawing the deed, more was included by mistake, the vendee was not held entitled to any compensation in equity.</p>

<p>GBAUT 03? LAITD. Sow far conclusive.</p> <p>Where a party purchased land at an execution sale, upon a judgment against a person who held the same hy virtue of a certificate of entry, and entered into possession of the land, and after he had been in possession more than twelve months, the holders of the certificate of entry to whom it had in the mean time been assigned by the judgment debtor, transferred the same to a third party, who afterwards by virtue of the same, obtained a grant of the land from the State ; held, that these facts existing anterior to the grant cannot be looked into to invalidate the grant.</p>

<p>RECESSION OE CONTRACT EOR SALE OE LAND on the ground of gross inadequacy of consideration.</p> <p>A contract was made for the sale of land, where without any fraud on .the part of the purchaser, the consideration paid was so grossly and glaringly inadequate that relief was granted in equity. The Supreme Court, not being able to rest the case on any satisfactory legal principles, adjudged “accordingto the very right of the case,” and affirmed the decree. •</p>

<p>CONTRACT. Quantum valebat. Damages.</p> <p>Where A. agreed for $100 to put a water-wheel into B’.s mill which would, with a certain, head of water, cut 1500 feet per day, held,</p> <p>1. That if the wheel benefited the mill, but not to the extent agreed upon, the plaintiff would be entitled to recover in proportion to the extent of the benefit conferred as compared, with that promised.</p> <p>2. That if the wheel was a positive injury to the mill, the defendant would be entitled to recover in a cross action to the extent of the injury.</p>

<p>LAND LAW. Occupant Right not inheritable.</p> <p>An occupant enterer under the laws of Tennessee prior to the act of 1840, ch. 62, acquired no right in the soil, hut merely a personal privilege which was not inheritable.</p>

Maynard moved tbe Court for a writ of error. An ap - peal bad been granted before tbe last term of this Court, and tbe record bad been sent up by some person wbo bad neglected to file it, and it was not to ¿late to procure it in order to file it for a writ of error in tbe customary way 3 befor, tbe statute would bar.

<p>The case is stated in the opinion of: the Court.</p>

Sneed moved to remand this cause to the Circuit' Court, to the end that an entry of record disposing of a motion to dismiss for champtrey might be suplied. He stated that the record below did not show the fact, but that the rough minutes of the Court did.

<p>EXECUTOR de son tori. Question, of Law and Fact.</p> <p>1. Whether a person is executor de son tori, is partly a question of law, and partly of fact: the Court determines what state of facts will fix the character, and the jury determine- whether such facts exist in the given case.</p> <p>SAME; who is.</p> <p>2. If a person innocently receive the goods of a decedent from a third person who has wrongfully intermeddled with them, he is not liable as executor de son tort. — Secus, if he act in collusion with such third person.</p> <p>SAME, CONFLICT OF LAWS. Goods of Decedent in another State.</p> <p>3. A party who has wrongfully intermeddled with the goods of a decedent in another State, and brings them into this State, is liable as executor de son tort in this State.</p> <p>SAME, SAME. Foreign Administrator.</p> <p>4. Semble. — -That a foreign administrator collecting assets where such administration was granted, and bringing them into this State, is not liable to be sued here as executor de son tort.</p>

Ejectmment from the Circuit Court of Claiborne County. In this case there was a verdict for the plaintiff for a greater amount of land than, according to his own admissions, he had a right to recover.. Whereupon, it seems, the defendant moved the court for a new trial, which upon the proposal of the plaintiff not to take possession of the part of said land to which he was not entitled, was refused.

<p>MARRIAGE.</p> <p>1. A marriage procured by one of the parties to it for the sole purpose of defrauding the other, is voidable but not void. (Totten, J. dissenting.)</p> <p>MARRIAGE, fraudulent. Relief against. Divorce. Alimony. • Account.</p> <p>2. A. recovered a judgment against B. for breach of promise of marriage; to avoid payment of which, B. transferred his property to C. A- filed a bill in chancery to set aside the fraudulent conveyance, and subject the property to the satisfaction of her judgment against B. Bor the secret purpose of defeating this suit, B. proposed marriage to A. who accepted; and immediately after the solemnization of the marriage, B. eloped with a strumpet. Held, that A. before the marriage, being a creditor, could maintain a bill to set aside the fraudulent conveyance, but that by the marriage she became a party to it, and her only relief was divorce and alimony, or an account for the recovery of the unpaid purchase money against the fraudulent vendee.</p> <p>EVIDENCE. Fva/iidulenl conveyance. Barden of Proof.</p> <p>3. Where there is much in a ease to attack a conveyance indirectly and cast suspicion upon it, the purchaser will be required to show the pay. ment of the purchase money by clear proof.</p>

This was an injunction bill filed in .the Chancery Side o£ the Common Law and Chancery Court of Memphis, by the Mayor and Aldermen of the Town of South Memphis, claiming as public- ground a parcel of land ■lying adjacent to the Mississippi river and West of Clinton Street, and extending south from Union Street to Beale Street, in what was then the town of South Memphis, on a portion of which the defendant had erected a cotton shed, which erection the hill sought to have…

This is an action o£ trespass, quare clausam fregit, from the Circuit Court of Grainger county, determined at the April term of said court, 1.854. Judgment for plaintiff, and defendant appealed in error to this court.

This was a motion in the Circuit Court of Greene county, made by Harrison Self, as security, against Jacob Harmon, as principal. On tbe trial the record of the proceedings in the case of C. Haun vs. Thomas Self and Jacob Harmon, and on which that suit was founded, were read to the jury. This note showed upon its face that Harrison was surety for Thomas Self.

<p>TENANTS IN COMMON.</p> <p>Where parties occupy towards each other the relation of tenants in common with reference to certain land, neither party by buying up an outstanding title, can under it, appropriate the land to his exclusive use. Such purchase enures to their common benefit, and there must be an equal contribution. (Tisdale v. Tisdale, 2 Sneed, 596.)</p>

<p>LARCENY. EVIDENCE. Possession of the Goods stolen.</p> <p>1. Evidence of the possession of the stolen goods, whether resent or remote, is always admissible to prove the larceny.</p> <p>The Samis. Sufficiency of sueh proof.</p> <p>2. If the possession be recent, it is, unexplained, sufficient evidence ofguilt, per; se if remote additional circumstances must be shown.</p>

<p>DIVISION OB ESTATE. Lapse of Time.</p> <p>A division of an Estate acquiesced in for thirty years, will not be disturbed, though made without authority of law, and while some of the parties were under disabilities.</p>

<p>SUPREME COURT. Judical Notice.</p> <p>1. The Supreme Court cannot judicially know the rules of practice of the Circuit Courts, and will not consider them unless proved on the trial below and incorporated into the bill of exceptions.</p> <p>NOTICE TO TAKE HEP O SITION. Presumption in favor of.</p> <p>2'. "Where a deposition is excepted to for want of notice, unless it appear from the record, or by proof incorporated into the bill of exceptions, that therejwas no notice, the Supreme Court will presume that n&tice was regularly given.</p>

<p>LIBEL. — SLANDER. Defence. Mitigation of damages. Evidence,</p> <p>The defendant in an action for a libel or Blander, cannot’show by way. of defence that the plaintiff had previously libelled or slandered him j hut such evidence may be heard in mitigation of damages.</p>

<p>WHITTEN CONTRACT. Subsequent parol agreement.</p> <p>j. The parties to a written contract may vary its terms by a subsequent parol agreement. (1)</p> <p>SAME. Assignment of, with notice of parol agreement.</p> <p>2. The assignee of a written contract having received it with notice of a subsequent parol agreement, whereby its terms were varied, - cannot in the absence of fraud, be heard to complain. He is bound by the parol agreement, as a part of the contract.</p>

<p>RECESSION OF CONTRACT — Mis-description.</p> <p>The mere clerical error in the number of a lot sold, by which no one is mislead, and where the description is otherwise certain, will not afford ground for releasing the purchaser from his contract; but it is proper for a Court of Chancery on the proper application, to correct the error.</p>

<p>MASTER & SERVANT. — Liability of Master for injuries to Servant.</p> <p>1. A master is not answerable to one of Ms servants for an injury received by Mm in consequence of the carelessness of another servant, while both are engaged in the same service. (1)</p> <p>2. Sam. But it seems that the rule could he otherwise, if the in- ^ my arose from the negligence of the master in selecting his servants, or in making proper provision for their safety. (2)</p>

<p>ADVANCEMENT, what Ü,</p> <p>1. The purchaser of land at Sheriffs sale, assigned his interest in the same, before redemption, to the daughter of the judgment debtor with his assent and direction, and the judgment debtor, failed to redeem. Held, that this was an advancement by the judgment debtor to his •daughter and that his other heirs were thereby precluded from setting up any interest in the land. (1)</p> <p>ESTOPPEL.</p> <p>2. Where a party denies upon oath, whether in an answer in chancery oras a witness, that he has any interest inland, he is thereby estopped from setting up any title to the same. (2)</p>

<p>LAWS .EXEMPTING INDIVIDUALS FROM PUBLIC DUTIES. Construction of.</p> <p>1. Statutes exempting individuals from those public burdens imposed upon citizens generally, are to be strictly construed.</p> <p>Same. The provision of a railroad charter exempting the “President, Directors, Clerk’s, Officers and Servants” of the company from military duty, serving on juries and working on public roads, does not apply to contractors building such railroad, or to their hired servants.</p>

<p>LICENSE LAW Gods, Article s, Chapter 6, Title 8, Part 1; Evasion of.</p> <p>Under a license to sell liquor regularly issued in pursuance of Article 6, Chapter 6, Title 8, part 1 of the Code, a party has no right to remove Ms liquors from the usual place of selling them to another place for the sale of them temporarily; although during such removal he does not sell them at his usual place of business. Such an act is a palpable violation of the statute.</p>

<p>RECESSION OP CONTRACT. Lunacy.</p> <p>A conveyance made in a lucid interval, and in the presence of several adult members of his family, by a person subject to oeeasional- , fits of mental derangement, and at a fair price, will not be set aside especially when long acquiesced in, and where by reason of lapse of years and subsequent conveyances, it is impossible to place the par i. statu quo.</p>

<p>Partnership. — Accomt. So far as the business of a partnership is carried on in a manner different from that contemplated in the articles of copartnership, the ordinary rule of equal participation in the profits or losses must govern, and a clerk and master taking an account, must snake this diserimation.</p>

<p>PldSADIHG-. — Malicious Prosecution. Declaration, when demurra-ble.</p> <p>1. A declaration in an action for malicious prosecution, containing no averment that the previous suit is at an end, or that it was prosecuted maliciously and without probable cause, is bad.</p> <p>2. The Same. Slander. A declaration in an action for slander which does not impute the speaking of any words, is had.</p>

<p>MISTAKE. MEASURE OF PROOF.</p> <p>1. A settlement of a contract, and a note given in pursuance of the same, will not bs set aside except upon clear and satisfactory proof.</p> <p>PBAUD. — Abatement of purchase money.</p> <p>2. ‘Where the vendor of real estate represented that a well on the premises had a never failing supply of water, whereas in fact it went dry every summer and fall, which fact the vendor knew, [ held that the unpaid purchase money should he abated to the extort of the injury the vendee had thereby sustained.</p>

<p>CONTRACT TO DISCHARGE DEBT BY LABOR. Condition precedent.</p> <p>1. Upon a contract to preform labor to a certain value in discharge of an obligation, the covenantor cannot insist ás a conditi on precedent, that the covenantee seek him, and notify him where the work is to be done; but it must appear that the covenantor sought the covenantee on the day fixed in the contract for the commencement of the work, expressed his willingness to perform the work, and his desire to be shown, where it was to be (Lohe and that , he has continued ready to perform the work • whenever the place should be pointed out. (Massey v. Shields, Meigs 78.)</p> <p>2. Samb. Breach of. Unless the covenantor saves his.contract by such a tender and continued readiness,- his right is gone, and the right in the covenantee to demand the money value ot the services becomes absolute.</p> <p>8. Same. Statute construed.' The Act of 1807, ch. 95, does not apply to a contract in the following words: “One day after date I promise to pay R. B. Cartteman or bearer Rive Hundred and Ten Dollars] in Masonary work, at customaryTprices, value received, etc.’ Such a contract is governed by common law principles. ’</p>

<p>HUSBAND AND WIFE. Survivorship.</p> <p>1. Where, by a decree m Chancery the personal property of a wife is vested without restriction or limitation in her husband and herself and the same is reduced into possession by him, he becomes absolute owner of the same, and in the event of his death, his personal repre, sentative succeeds to the same, and there is no survivorship to his wife.</p> <p>2. Same. But, smile, that the rule would be different, if the husband died after the decree, and before reducing the property into possession.</p>

<p>BAILEE. — Liability for neglect.</p> <p>1. The bailee of a hired slave neglected to have him vaccinated, after it had come to his knowledge that the small pox had broken out among his other slaves; held, the proof being that vaccination is a preventive of small pox, that this was -such gross neglect as, in the event of the slaves death from small pox, would make the bailee liable for his value.</p> <p>2. Same. Previous neglect of Bailor no excuse. — The fact that the slave was an adult, and that the owner had never had him vaccinated, will not excuse the bailee or change Kis liability.</p> <p>3. Supreme Court will not reverse, when. — When it appears that the Circuit Judge refused to charge the law upon a point which the record does not show to be material.</p> <p>4. Same. Presumptions in support of Circuit Court.</p> <p>5. Same. New trial, when refused. When a witness disclosed affidavit that he was mistaken in certain statements made at the trial, it not appearing that such mis-statements corrected, would, upon a subsequent trial, affect the merits of the case.</p> <p>6. Same. Arrest of judgment. Guardian and Ward. Where a suit was commenced by a guardian for his ward, and after several years was reduced to judgment in favor of the ward in his proper name, held, no ground for arresting judgment. Such an informality is cured by the act of 1852, ch. 157, J g 4 and 5.</p> <p>7. Same. Plea in abatement. Presumption. If no guardian or next friend continue to interpose, such fact should have been pleaded in abatement before trial on the merits; otherwise it is to be presumed that the ward became of age before judgment.</p>

<p>SHERIEE’S RETURN. — A Record.</p> <p>1. A Sheriff's return is a record' and cannot be averred against; and if false, the remedy is by an action on the case for a false return, or a bill in equity to enjoin the judgment. (1)</p> <p>3. .Same. — Writ of Error Coram Nobis. Where a'Sheriff falsely returns original process served and thereupon judgment is rendered against one of the defendants by default, the writ of error' coram nobis is not his proper remedy. (Ridgway v. Bank of Tenn. 11 Humph. 223.)</p> <p>3. Pleading at Law. — Declaration. Endorsers. A declaration in a suit upon a promissory note which does not aver demand upon the .maker, and notice to the endorser of non payment, is bad as to the endorser. (2)</p>

<p>TRUST FRAUD. Securities. Creditors.</p> <p>Where a deed of trust is given to secure certain sureties and creditors, the discharge of one of the sureties will not affect the right of a creditor to a ratable distribution of the trust fund.</p>

<p>MOTION AGAINST CONSTABLE. — Judmgent.</p> <p>1. Upon a motion against a constable for failure to pay over money collected, the objection that several distinct claims are embraced in the same judgment has nothing in it. (Hobson v. Hoge, 8 Yerg. 153.)</p> <p>2. Same. Though amotion will not lie against the sureties of an officer without being made also against the officer; yet it will lie against the officer without the sureties being joined with him. (1.) (Williamson v. Webb. 2 Humph. 133.)</p>

<p>GABMSHKENT. — Right of Appeal.</p> <p>1. A defendant has no right of appeal from a judgment rendered against a garnishee, on the ground that the judgment is wrongful as against the garnishee. In such a case the Supreme Court will dismiss the appeal.</p> <p>Same. Statute construed.</p> <p>2. Section 3492 of the Code, which gives the right of appeal in all cases, at the instance of the plaintiff, the defendant, or the garnishee, only contemplates an appeal by the parties respectively, who may lie aggrieved.</p> <p>PRINCIPAL and Stayor. Statute construed.</p> <p>3. Sections 3028 and 3029 of the Code, making it the duty of an officer having an oxcution, to exhaust the property of the principal before attaching that of the surety or stayor, has no application, where, from the death of the principal or other cause, his estate has ceased tobe subject to the execution in the hands of the officer.</p>

<p>WILL CONSTRUED. — Advancements.'</p> <p>A will directed that the testator’s property should he reduced to money and divided as follows : to Miss Margaret Watldns, the testator’s daughter, one half the money, less the previous value of the slaves heretofore given her; the other half to her grand-daughters &e. Sold, that the slaves are to he computed as advancements their value added to the fund, and the whole divided as directed in the will, giving the daughter one half of the aggregate fund.</p>

<p>TRUST CONSTRUED.— Wife’s trust estate. What it includes.</p> <p>By the terms of a marriage settlement a wife's interest in certain real estate was conveyed.to a trustee to be used in common by herself and husband during their natural lives, for the support and comfort of themselves and her heirs; to go to her heirs at the death of herself and husband, and at no time to be subject to his control or management, or to the payment of his debts. Upon this estate, a crop of tobacco was raised, principally by the labor of her children by a former husband, and entirely under her direction, the present husband being sick and unable to labor. Held: that the crop of tobacco was included in the wife’s trust estate, and not liable for the husband’s debts.</p>

<p>WILL CONSTRUED. Charge upon devisee.</p> <p>A testator gave his property to Ms wife during her life or widowhood on condition that she take care of and rear their two grand children» until they respectively marry, or arrive at the age of twenty one years, with remainder over to a son and certain other provisions, on condition that he assist the wife in taking care of and rearing the two grand children. The wife dying, and one of the grand daughters being unmarried and less than twenty one years of age, held, that the charge upon the son continues.</p> <p>SAME. Quaere.</p> <p>2. Whether this is a charge upon the estate, or personal money.</p>

<p>CRIMINAL PRACTICE. Continuance, affidavit for, insufficien when.</p> <p>A prisoner was jointly indicted with one Wilson for malicious shooting. At the trial he read his affidavit for a continuance, setting forth that his co-defcndant was a material witness for him; that he could not safely go to trial without his testimony, that he could not prove the facts so fully by any other witness; that a subpran had been served out for him and returned not found; that he was not in attendance; that he resided in the country as a steamboat, man ; that affidavit believed he could have him at the next term of court; that he would have had the subpoena issued sooner, but he believed that he could ^be at court; that it was low water, and witness remained home at low water; and the continuance was not asked for delay, but that justice might be done. Held, that in refusing a continuance upon his affidavit, the court below committed no error</p> <p>2. HAUTE. Application for continuance are addressed to the discretion of the inferior courts, and the Supreme Court will never interfere with their judgments in this and other matters of practice without reluctance, except in cases where without suchinterferance injustice must necessarily be done.</p>

<p>CHANCERY, FRAUD. Attachment.</p> <p>1. “When goods are purchased on credit with the original purpose on the part of the purchaser of defrauding the owners, and by him sold to a third person, who purchases with knowledge of the fraud on the part of the original purchaser, and for the purpose of assisting in it, an attachment in chancery will hold such of the goods as may be found in the hands of the second purchaser.</p> <p>SAME. PROCEEDS RECO VERABLE. Case overruled.</p> <p>2. The second fraudulent|purchaser will also be compelled to account to the o riginal owners for the value of the good s sold by him to innocent purchasers without notice of the fraud. So much of the dictum in Tubb v. Williams, 7 Humph. 371 as decides otherwise, is expressly overruled.</p> <p>SAME. No indemnity to fraudulent purchasers.</p> <p>3. On such a case, the sale being absolutely void for fraud, no indemnity will be allowed the fraudulent vendee for payments made in pursuance of the bargain to the creditors of the fraudulent vendor. He must account fully, to the extent of the property fraudulently sold to him.</p> <p>SAME. Dictu/m, general rule stated.</p> <p>Í. The correct doctrine in all such cases where there Í3 actual fraud must be that the defrauded creditors are entitled to the full value of their debtor’s property, thus fraudulently conveyed, without regard to the loss which may fall upon those who have conspired to defeat them.</p> <p>SAME, 'Dictum innocent purchasers not liable.</p> <p>5. Though the complainants had parted with their goods through the actual fraud of another, they could not, it seems, reach them in the hands of innocent purchasers, as in case of felonious possession.</p> <p>SAME. Character of relief.</p> <p>6. The fraudulent vendor having at the same time conveyed to the fraudulent vendee, his interest in certain real estate for an inadequate price, such conveyance will be set aside, and the property s© conveyed held subject to the claims of the defrauded creditors, and the notes given for the purchase money cancelled.</p> <p>7. SAME. A conveyance of land made by the fraudulent vendee to the fraudulent vendor in pretended payment of the goods sold, .as well as the notes given in part payment for the same, will he can-celled.</p>

<p>PARENT AND CHILD.</p> <p>1. A parent cannot recover damages for the death of his child.</p> <p>SAME. Personal represntative.</p> <p>2. An action for damages sustained in the death of another does not He at common law, and is given by statute only to the personal representative of the deceased person for the benefit of his widow and next of kin. Code 2291, 2292, from the Act of 1851, ch. 17.</p> <p>MERGER OP CIVIL REMEDY IN FELONY. Said.</p> <p>3. Upon the authority of Ballew v. Alexander, 6 Humph. 433, that the doctrine that the civil remedy is merged in a felony has never prevailed in this State.</p>

<p>SALE OS’ LAND BY THE ACBE. v. D efficiency, abatement of purchase money.</p> <p>(1) 'When land is purchased by the acre, and notes given for the payment of the purchase money, the amount of which is estimated from the number of acres contained in the tract as shown by a plat of the same exhibited at the sale, and it afterwards turns out that through a mistake in the survey upon which such plat is founded, there is a deficiency in the number of acres in the tract sold, equity will decree an abatement of the purchase money to the extent of the deficiency.</p> <p>SAME. Contract of Sale Deed.</p> <p>(2) Whether the sale was by the acre or in gross is to be determined by the contract of sale, and not by the deed. (Miller v. Bentty, 5 Sneed, 671.)</p>

<p>DECISION CONFIRMED.</p> <p>1. • The decision of the Supreme Court in Huddleston v. Garratt, S . Humph. 629, relating to the land in controversy in the present case, is concurred in.</p> <p>STATUTE OE LIMITATIONS. Trespassers.</p> <p>2. If the vendor is a trespasser, his vendee is also a trespasser, and their possession cannot be connected, so as to make a continuous possession under the statute of limitations.</p> <p>SAME. Adverse possession under Color of Title.</p> <p>3. Seven years adverse possession by a defendant under a deed, of a portion of the lands conveyed in the deed, outside the limits of the plaintiff’s grant, will not perfect the defendant’s title to that portion of the land included in the"bounds of the plaintiff’s grant. Such possession to be available must be of some portion of the land covered by both titles.</p> <p>ESTOPPEL. Parol. Disclaimer.</p> <p>4. A party, and all claiming under him, are estopped by his parol disclaimer of title, where third persons act and expend their money on the faith of such disclaimer.</p>

<p>VENDOR’S LIEN. Waiver of.</p> <p>A vendor’s lien is waived by taking the notes of á third person endorsed to him by the vendee.</p>

<p>CONFLICT OF LAWS — NEGOTIABLE PAPER. Foreign Endorsee Lex Loci Contractus.</p> <p>1. When a promissory note is made4 in one State and is payable there, and is afterwards endorsed in another State; and by a statute of the former State, equitable defences are let in favor of the maker and against innocent endorsees in due course of trade, to the same extent that they would be available against the original payee, such a defence may be set up against the foreign endorsee. The law of the place of the original contract governs, and determines the obligation, duty and rights of the maker of the note, and is not affected by the subsequent endorsement in a foreign State.</p> <p>PROMMISSORY NDTE. Failure of Consideration, Defective Title, Fraud, Eviction, Insolvency, Rule in Mississippi.</p> <p>2. Where a note is given as security for the purchase money of reaj estate, and the consideration of the note has failed by reason of an incumbrance on the property of which the purchaser had no knowledge, he may resist the payment of the note on the ground of failure of consideration, although he received a deed with covenants of general warranty, entered into possession and has not been evicted; if he can show that fraud was practiced upon him in concealing the in-cumbrance, or that the vendor is insolvent.</p>

<p>' COVENANTS RUNNING WITH LAND. Statute, 32 Sin. 8.</p> <p>1. Between the assignee of a lease and the purchaser of the reversion there is no privity; and an action upon the covenants contained in the lease does not lie in favor of the one against the other, except under the Statute, 32 Hinny 8, giving such actions ; and this statute by construction embraces only those covenants which “touch and concern” the thing devised.</p> <p>WHAT COVENANTS RUN WITH LAND.</p> <p>2. A covenant to surrender up the premises in good condition at the expiration of the lease. '(Shelly v. Hearn, 6 Yerg. 512, 515.)</p> <p>3. SAME. So also a covenant not to cut certain timber growing upon the land except for a certain specified purpose.</p> <p>SAME. Assignee liable, when.</p> <p>4. As to covenants in a lease running with the land, the assignee of the lease can only be held liable for such damages as can be shown to have resulted from his act or neglect subsequent to the assignment of the lease to him.</p> <p>WHAT COVENANTS AKB PERSONAL, MERELY.</p> <p>5. A covenant on the part of the lessee to build a shop and houses upon the land.</p> <p>6. SAME. To set up certain machinery in the shop.</p> <p>7. SAME. To do certain work of the lessor at the shop so to be built.</p> <p>SAME. Assignees bound, when.</p> <p>8. The assignees of a lease are not bound by covenants in the lease which do not run with the land, unless they are expressly included in the covenants.</p> <p>PLEADING AT LAW. Demurrer.</p> <p>9.. A demurrer to the whole declaration cannot be sustained in part.</p> <p>SAME. Genei'al demurrer.</p> <p>10. The general demurrer, having been abolished by Section 2934 of the Code, can only operate as a motion to dismiss.</p>

<p>ERAUD. Sale of personalty, ffomicide.</p> <p>1. A person guilty of liomicide being liable for the costs of conviction and for damages at tbe suit of the personal representative of the deceased, (1) a sale of his personalty made immediately after the homicide, to avoid such liability is void for fraud.</p> <p>STATUTE OE ERAUDS. Creditor. Purchaser.</p> <p>2. The title to personal property sold to evade liability, can, under the statute of frauds of 1801 (Code, 1759,) only be attached, (1) Hall v. Nashville & Chattanooga, R. R. Co., supra p. 201, by a creditor or subsequent purchaser. A bailee for safe keeping cannot attack the</p> <p>, plaintiff’s title under this statute by way of a defence to trover.</p> <p>QUA5RE.</p> <p>3. Whether the fact that property was taken by creditors would be a defence to trover.</p> <p>BAILEE EOR SAEE KEEPING. Conversion.</p> <p>i. If a bailee for safe keeping warrant the property to others, he is guilty of a conversion.</p>

<p>TITLE BOND. Equitable Estate. Life Estate. Descent. Devise. Right of Dower.</p> <p>1. A father executed to Ms son a bond in the penalty of $5,000, in which he agreed to convey to the son orto the son’s children, as the father might elect, certain real estate, in fee simple, with covenants of general warranty. If the father should elect to make the deed to the son’s children, then the son should have a life estate in the premises. If the father should die without making the deed to the son or his heirs, then his personal representatives were required to make it to the son. These stipulations, were subject to a life estate in the premises, which the father reserved to himself. The son entered into possession of the premises, and then died before the father had executed the deed either to him or his children. The father surviving the son, instead of conveying the premises to the son’s children by deed, demised it to the son’s “family” by will. Held,</p> <p>i. That the son took an equitable estate in fee simple in the premises, subject to the father’s life estate, and subject also to the right of the father to terminate it and leave the son only to life estate by executing a conveyance to his children according to the terms of the bond.</p> <p>ir. That upon the death of the son, his equitable estate passed by descent to his children, his heirs at law.</p> <p>nr. That the demise to the son’s “family” must be held a saisfaction of the bond, and that it united in the son’s heirs the legal estate in the premises with the equitable estate which had descended to them; the word “family” in th ewill not including the widow so as to entitle her todower.</p> <p>XV. That such could not be the effect of the will, since the equitable title having vested in the son’s heirs,'the grandfather can do nothing to impair it.</p> <p>v. That the son’s widow can have no right of dower in the premises for the further reason that the father’s life estate was subsisting at the time of the son’s death.</p> <p>TITLE BOND. Sale.</p> <p>2. A title bond is, prima facie evidenqe of a sale, and it devolves upon him who controverts it to rebut the presumption by proof.</p> <p>THE SAME. Consideration, 'Presumption of.</p> <p>3. A court will not presume from the absence of a price stated in a title bond, that there was none, but the contrary.</p> <p>THE SAME. Statute of Frauds.</p> <p>4. The presumption in favor of consideration in an instrument like this, remains as it existed at common law before the statute of frauds.</p> <p>HE SAME. Circumstances which support the Presumption of Consideration.</p> <p>5. i. That the writing is under seal.</p> <p>II. That there is no intimation on its face of a gift.</p> <p>III. That there is a penalty annexed on failure to convey.</p> <p>IV. That there is a stipulation to convey with covenants of warranty.</p> <p>v. That the obligor after tlie death of the obligee acknowledged the bond and had it registered.</p> <p>VI. That after the execution of the bond, neither the obligor nor his heirs ever asserted any claim to the land stipulated to be conveyed.</p> <p>BES JUDICATA. County Court, Chancery Court, Concurrent Jurisdiction in Partition.</p> <p>6. The County, Circuit, and Chancery Courts exercise concurrent jurisdiction in proceedings for the partition of estates; and when one court takes jurisdiction in such a proceeding, its jurisdiction is final and conclusive upon the others. The County Court having made decree for partition, it cannot be reviewed in the Chancer}’ Court, nor can that Court again adjudicate upon the same subject matter.</p> <p>PAKTITIOH. Disputed Title. — Uncertainty of shares, when adjudicated in equity, and when sent to law.</p> <p>7. It seems that when there is a dispute about title, applicants in chancery for a partition will be sent to law to settle the same in ejectment, hut if there is merely an uncertainty of shares, the respective portions of the parties will he ascertained by reference to a master, and the Court will direct the commissioners accordingly, dismissing from the case such as appear not to be entitled to any share.</p> <p>THE SAME. Contest about equitable title.</p> <p>8- So if there be a contest about an equitable title, as an unassigned dower, this will be decided in equity; since it cannot be sent to law. And upon a proceeding for partition, a party having such an equitable right, and being in court, and not assisting it, can not after-wards do so.</p>

<p>PUBLIC "WAYS. Title to soil in.</p> <p>1. "Where the calls of a deed are to a street, alley or public high-way, the purchaser takes the right of the soil to the center of the way, subject to the public easement; the medium filum via becomes his boundary, and as to that portion of the public way within the limits of his purchase, he may eject a trespasser, or recover damages for a trespass.</p> <p>CASE COMMENTED UPON. Elder vs. Burris, 6 Humph. S66.</p> <p>2. The decision in that case that the principle of the common law, that riparian owners above tide water take the fee in the soil to the centre of the stream is not in force in Tennessee; said, to have no application to streams not navigable.</p>

<p>ILLEGAL CONTE ACT. Usury.</p> <p>1. No recovery can he had upon a note usurious upon its face.</p>

<p>EVIDENCE. Written Instrument.</p> <p>1. A written instrument not sued on, need not "be denied on oath, and cannot he introduced in evidence until its execution is duly proved.</p> <p>SAME. Partnership settlement — Court of Law.</p> <p>2. A Court of law will not hear evidence of an error in a partnership settlement.</p>

<p>WJRIT 03? ERROK, CORAM NOBIS. Grounds of.</p> <p>1. To authorize a writ of error coram nobis, the error of fact complained of must he such as would have prevented the rendition of the judgment if it had fidicially appeared at the former trial. (Crawford v. Williams, 1 Swan, 341.)</p> <p>THE SAME. Newly discovered evidence.</p> <p>2. 3?urnishes no ground for this relief. (Bigham v. Brewer, 4 Sneed, 432.</p> <p>THE SAME.</p> <p>3,The fact that in an action of trespass on the case for false imprisonment against several defendants, a nolle prosequi was entered as to one of the defendants after the cause was called for trial and the jury selected is not such an error of fact as will warrant the granting of this writ.</p> <p>THE SAME.</p> <p>4.Nor the discovery since the trial of the fact that previous to the trial the plaintiff received from one of the defendants $150. in satisfaction of his damages.</p> <p>THE SAME.</p> <p>5. Nor the discovery since the trial of the fact that the plaintiff was a regularly mustered soldier of the United States army, and was captured by the defendants in regular warfare.</p> <p>THE SAME. Trying several causes together.</p> <p>6. Nor the fact that two other causes were consolidated with the cause in judgment and tried before the same jury at the same time. But this isa very loose, irregular and dangerous practice, calculated to destroy the unity and purity of the trial by jury, and is to be discouraged.</p> <p>THE SAME. Presumption in support of Circuit Court.</p> <p>7. "When a petition for writ of error coram nobis disclosed that two other causes were consolidated with, and tried at the same time with the cause in judgment, such fact not appearing in the record, the Supreme Court is bound from the record itself to treat the case as having been heard under an agreement' that the other two should abide the result of the verdict in this.</p> <p>THE SAME. Lack of Diligence at trial.</p> <p>8. Where all the parties were represented at the trial, yielded their assent to the manner in which it was conducted, took no exceptions to the ruling of the Court, and made no motion for a new trial, the term closing, a motion for new trial comes too late. (Ragsdale v. Buford, 5Hayw. 119, 120.)</p>

On the 18th August 1868, the Defendant borrowed of Complainant’s intestate, his brother, $305 in gold; and on the 1st, of September 1863, he borrowed from him $480 in gold ; in both instances he gave the intestate his note for the amount borrowed, payable on the 19th day of August 1865, stipulating on the face of the notes, for the payment of interest at the rate of 10 per cent per annum.