Volume 2 — Tennessee Chancery Reports

<p>Divorce — Alimony pendente lite — Counsel pees. — The wife in a divorce suit, if she have no adequate means of her own, and, being complainant, if she show a prima facie case for relief, is entitled to have allowed her, out of the estate of her husband, alimony pendente lite, and the reasonable expenses of suit, including counsel fees, to he proportioned to the husband’s property and income.</p>

<p>"Wife’s separate estate — Income received by husband. — If the husband and wife, living together, have for a long time so dealt with the separate income of the wife as to show they must have agreed that the husband, who was himself the trustee, should use it for family purposes, equity will not require him to account therefor until her consent is revoked.</p> <p>Same — Husband trustee — Change of property. — Where the husband is trustee for the wife, either expressly or by implication' of law, a change in the form of the trust property made by him will not, without clear evidence of intention on the part of the wife to that effect, destroy the trust.</p>

<p>Trust by receipt of stock bequeathed by will. — A widow who dissents, from her husband’s will, and receives from the executor, in part satisfaction, of her distributive share of the personal estate, stock of a gas company bequeathed by the will to another, with full knowledge of the trust, and under-a written agreement to hold the executor harmless from liability by reason of the transfer, becomes herself an express trustee for the party beneficially entitled, and is liable accordingly, with the executor, for the stock itself, its dividends and profits; or, if she has converted the same by sale, at the option of the beneficiary, for the value of the stock at the time of the conversion, or-for an amount of money sufficient to replace the same, with its dividends and profits, at the date of the decree.</p> <p>Acceleration of legacies. — The dissent of a widow, to whom the husband, has bequeathed property for life with remainder over, from the will enures to. the benefit of the legatees in remainder by accelerating the time of enjoyment, but without otherwise affecting the limitations of the will.</p> <p>Case in judgment. — A testator bequeathed certain shares of gas stock to trustees, in trust for the widow for life, then to his negro man, Henry, and, if he be then dead, to Henry’s wife, with power in her to dispose of the same-by will or gift, as she sees proper; and, if she fails to dispose thereof, then, at her death, to her daughter, Mary. The widow dissented from the will, and received the stock in part of her distributive share; then Henry died; then his wife, without disposing of the stock; then the widow. It was held that-the daughter was entitled to the stock and its proceeds, and to hold the executor and widow liable as trustees therefor, subject to such deduction, if' any, as the specific legacy may be liable for in order to pay the debts and the. wife’s distributive interest.</p>

<p>Pleading — Irregularity—Waiver.—In pleading, a positive step on the basis of the regularity of a previous pleading waives any irregularity therein.</p> <p>Same — General replication to plea. — The actual filing of a general replication to a plea is probably dispensed with by our statutes, hut such a replication would he matter of form — not substance — and the court would permit it to be filed at any time, upon objection raised, or intend it under the statutes of jeofails.</p> <p>Case in judgment. — "Where the defendant to an attachment hill filed a plea in abatement, the oath to which was defective, and also an answer, and the cause, after remaining the usual time for proof, was regularly transferred to the trial docket, called, and tried, it was held that the complainant had waived the irregularity, and the defendant was entitled to the benefit of both plea and answer.</p> <p>Statute of frauds — 'Trust deed — Description of land. — It seems that a deed of assignment for the benefit of creditors, which conveys “all the lands, tenements, etc., of every nature and description, belonging to” the grantor, a bank, is sufficient to pass all the bank’s realty.</p>

<p>Practice — Plea of former suit pending — Sufficiency.—The sufficiency of the plea of a former suit pending may be tested by setting it for hearing, ' like other pleas.</p> <p>Plea of former suit pending — Nature and form. — The plea of former suit pending is so far in the nature of a plea in abatement that it must be accurate in form, and positive in statement.</p> <p>Same — Identity of former suit. — It is not sufficient to the validity of the plea of former suit pending that the subject-matter and issue in the two suits are the same, but the purpose and object must be identical, and where the parties are not the same the plea must show that the first suit has progressed to a decree.</p> <p>Same — Trust deed — Suit by maker and new trustee, and suit by the beneficiaries. — The maker of a trust deed, and a new trustee appointed to execute the trust, have not the same rights of action against the original trustee as the creditors secured by the deed, and a pending suit by the former is not a good plea to a bill by the latter.</p> <p>Pormer account in another cause — Power of court. — The court may order an account taken in one cause to be made use of in another, or may stay-further proceedings therein, if necessary to the protection of parties.</p>

<p>"Will — Construction—'Vusted interest. — Under a -will by which the testator devises his property to his widow for life, then to be sold and the proceeds equally divided among his children, each child taking an equal share, after deducting specified advancements, the children living at the death of the testator take vested and transmissible interests.</p> <p>JTamilt settlement — Deed acted toon. — A trust deed, intended as a family settlement, executed by all parties in interest, except an infant child of a deceased married woman whose husband (the father of the child) joined in .it, and duly proved and registered as to all save two of the adult bargainors, under which, the trustee took possession and acted for years, and was called’ to account by a hill in chancery, to which all persons interested were parties,' including the infant, will not be disturbed upon another bill filed after the, death of the trustee; but executed so far as it remains unexecuted, the-infant not being prejudiced.</p>

<p>Homestead — Head oe a eamily. — A widow who is keeping house upon land allotted to her in dower, without any children of her own, but with five orphan children of a deceased sister, who had been members of the family during her husband’s life, and with two other orphan children of a sister of her late husband, is the head of a family, within the meaning of the Constitution and the homestead laws passed in accordance therewith, and entitled to the homestead exemption in the dower estate.</p>

<p>Mistake as a ground or relief. — Mutual mistake is a well-established ground of equitable relief; and so is the mistake of one party only, even of the party applying for relief, if clearly proved.</p> <p>Practice — Demurrer in an answer. — Under the Code, g 4319, a demurrer may be embodied in an answer, but such demurrer should be set for hearing by the defendant at the earliest opportunity, under the penalty of costs, and, it may be, of losing its benefits.</p>

<p>Escheated property — Jurisdiction- op chancery. — It is Do sufficient ground of demurrer to a bill filed in this court by the state, under the act of 1866, 46, -which gives the court jurisdiction of suits instituted by the state for the-recovery of escheated property, that the litigation involves the validity of a. will, and that, the jurisdiction of the circuit court in such cases is exclusive.</p> <p>Will — Probate in common norm — Jurisdiction.—Equity has jurisdiction to set aside the probate of a will in common form for fraud, or upon other-equitable grounds, and may order an issue to test the validity of the will, and. send it to the circuit court for trial.</p>

<p>WlLL — CONSTRUCTION—DEVISE EOR LITE WITHOUT ACCOUNTABILITY. — The-testator devised the residue of his estate to his wife, for life, ‘ ‘ with the power-to sell all or any portion thereof, and to reinvest the proceeds in any way or-manner that to her seems meet and proper, and generally to act in all things pertaining to said estate and its management as she deems best, without, accountability to any person or legal tribunal,” and with authority to appoint, by any instrument in the nature of a last will, the person or persons amongst, the testator’s children and grandchildren to whom, and in what proportion, the estate should pass in fee simple. Held, that the life estate given to the wife is not enlarged into a fee by implication.</p> <p>"Will — Construction—Charge upon share oe appointees. — Held, also, under the power of appointment in the last clause, the widow might by will charge the persons appointed by her with advancements made to them by the testator or by her.</p> <p>Same — Same.—The widow had become a co-maker of a note with one of the appointees, and for his accommodation, and provided, by a codicil to her will, that, if the same should be paid by her or her estate, it should be charged as an advancement to the appointee. Held, that this provision gave the holder of the note no lien upon the share of the appointee in the testator’s estate for its payment.</p> <p>Lis pendens — Mortgage—Sale.—The mention, in a bill by a creditor to reach the interest of his debtor as devisee of an estate, of an existing mortgage on that interest, and the making of the mortgagee a party defendant, without putting in issue the validity of the mortgage, or asking any relief in regard to it, does not create such a lis pendens as to effect the validity of a sale under the mortgage.</p>

<p>Jurisdiction — Judgment—Satisfaction.—Chancery has jurisdiction to set. aside the satisfaction of a judgment against the personal representative of a decedent, where the execution was levied upon the right, title, and interest, of the personal representative in certain realty belonging to the decedent’s estate, and the plaintiff in the execution bid the amount of the judgment at. the sale.</p>

<p>!Next FRIEND — Neglect of duty. — Upon bill filed by an infant, by next friend, and injunction obtained to enjoin a testamentary trustee from making any disposition of the assets in Ms hands, or collecting any money belonging to the trust estate, it is the duty of the next friend to apply promptly for a receiver, and he will be liable for any loss to the trust estate occasioned by his neglect so to do ; and his failure is, moreover, ground for a motion to dissolve the injunction.</p> <p>'Testamentary guardian — Removal.—Where a testator thinks fit to repose a trust without security, the court will not interfere until a breach of trust, or a tendency thereto.</p> <p>-Receiver in case of testamentary trust. — Although poverty is no ground to deprive a man of a trust thrown upon him by a testator with full knowledge, yet the fact that the testamentary trustee is a man of limited means, and has, since the testator’s death, embarked in alarge and hazardous business, is sufficient to authorize the appointment of a receiver until the hearing of the case on its merits.</p>

<p>Ybkhor’s equity — ■"Waiver.—A father, by deed, gave a tract of land to his son for life, “for Ms support and his only — not to pay any debts he has contracted or may hereafter contract,” and, after his death, to his children forever, etc.; the land was intended as an advancement to the son, and was estimated at the time by the father as worth $300 more than his son’s share of his •estate, for which he took his notes, reciting on their face that they were given for land “which he now lives on,” being the land in controversy. Held, that the vendor’s equity or lien on the land was waived by the form of the deed, and that, if the parol testimony introduced was admissible, it preponderated strongly in favor of a waiver also.</p>

<p>Legislative transfer of property. — A transfer of property from an unincorporated association to a corporation composed of the same members maybe worked by legislative enactment, accepted, sanctioned, and given effect to-by the parties between whom the transfer is made.</p> <p>In-junction — Motion to dissolve upon answer. — An injunction will not be-, dissolved upon an answer which, while denying the equity of the bill in. terms, leaves it in doubt how much of the answer is fact, and how much opinion.</p> <p>Injunction to inhibit the restraint of existing user — Motion to dissolve. — An injunction restraining the defendant from preventing the complainant from using a cemetery upon the same terms and in the same manner as it had been in the habit of doing, will not be dissolved upon an answer which admits that the persons constituting the complainant corporation did contribute to the purchase of the cemetery, any damages arising; from such user being capable of pecuniary compensation, and covered by the injunction bond.</p>

<p>Bill op interpleader — Complainant's rights. — A Bill of interpleader which so states the complainant’s rights as thereby to negative any interest in the thing in controversy, does sufficiently set forth those rights.</p> <p>Same — Dependants’ rights. — A hill of interpleader which contains such a statement of the rights of the defendants as to show a doubtful question between them, about which the complainant should not be compelled to act at his peril, does sufficiently set forth those rights.</p> <p>Same. — The allegation in a bill of interpleader that the complainant is “informed” of a certain claim of right by one of the defendants, “but complainant is uncertain as to the point,” is fatally defective.</p>

<p>Bill or review — New proof — Practice.—The application for leave to file a bill of review should be made by petition or affidavit separate from the bill, but may be made by bill so drafted as to embody all the requirements of the preliminary petition.</p> <p>©ame — Statement of new matter. — The petition or bill must state the new matter so as to enable the court, as upon demurrer, to determine its relevancy, materiality, and controlling character, and that it is new and could not have been produced on the original hearing.</p> <p>•Same — New proof — The new proof to sustain the application for leave to file a bill of review should be of so clear and decisive a character, whether written or oral, as to leave no doubt that it would, without reference to the evidence in the original cause, unless successfully met, compel a reversal of the former decree.</p> <p>©ame — Counter-affidavits.—Counter-affidavits are admissible on an application for leave to file a bill of review, not for the purpose of denying the new matter relied on, but to throw light on the character of the new proof, so as to enable the court the better to judge of its relevancy and materiality.</p> <p>©ame — Witness.—It is no ground for a bill of review for newly-discovered evidence that the complainants are informed and believe that a witness, supposed to be dead at the former hearing, is now living somewhere in Texas, whose testimony may hereafter be had,. and may be important, without showing what the testimony will be.</p> <p>■Same — Evidence of character. — New evidence to sustain the character of a witness examined on the former hearing is not “new proof” to sustain a bill of review.</p>

<p>Interpleader — Practice.—If the defendants to a hill of interpleader agree that the bill is properly filed, the complainant is entitled to he dismissed with costs, and, if the case is ripe for decision between the defendants, a final decision will be made; if not, the court will direct an action, an issue, or a reference to ascertain contested facts, as may be best suited to the nature of the case, or leave to the defendants the preparation of the case between them.</p> <p>Stock — Assignment—Attachment.—The assignee of stock in an insurance company, by assignment and delivery of the certificate of stock, and notice to the company, has a superior right to that of a subsequent attaching creditor of the assignor, although there be a valid by-law of the company, embodied in the certificate, that the stock is only transferable on the books of the company, at their office, on surrender of the certificate, the charter containing no provision on the subject of the assignment of the stock.</p>

<p>Eeceiver — Partnership—One partner. — Upon a bill filed by one of three-partners for a dissolution of tbe partnership and the appointment of a receiver, if the defendants, who own three-fourths of the partnership, agree, upon the partner having the largest interest to act as receiver, and he is-willing to act without compensation, and the firm creditors concur in asking his appointment, the court will appoint such partner the receiver unless the-bill disclose a sufficient reason why he should not be appointed.</p>

<p>.Accommodation endorser mat be released bt abandonment .on levy on realty op a prior endorser. — Defendant’s intestate recovered a judgment against the makers and endorsers on a note endorsed for the accommodation of the makers, who became insolvent; the judgment was enjoined by the first endorser by bill, which was dismissed, and defendant’s intestate took judgment on the injunction bond, issued execution, had it levied on realty of the first endorser, and then abandoned the levy. Held, that these facts constituted no defence to a scire facias to revive the original j udgment against the second endorser, but would entitle the latter to relief in equity.</p> <p>Endorser — Bfpect op injunction by a prior endorser. — It is no defence to a scire facias to revive a judgment at law against the second endorser of a note, that the first endorser had enjoined the execution of the judgment by bill, afterwards dismissed, and that the j udgment creditor recovered j udgment on the injunction bond, nor would these facts alone entitle the prior endorser to any relief in equity.</p> <p>^Injunction — Dissolution por want op equity. — An injunction will not be dissolved for want of equity on the face of the bill when the bill discloses a case proper for equitable relief, though defectively stated.</p>

<p>Assignment op judgment — Notice to agent. — The assignment of a judgment recovered in this state against a foreign corporation will he made complete by notice to the lawyer who appeared for the corporation in the suit in which the judgment was recovered, and was a member of the firm of lawyers who were the general agents of the corporation in all its legal business, where it is not shown that any other more appropriate agent could be found in the state.</p>

<p>CORPORATION CREATED BY CONGRESS — FREEDMAN’S SAVING AND TRUST COMPANY. — The corporation, by the act of Congress of the 3d of March, 1865, “ constituted a body corporate in the city of Washington, in the District of Columbia, by the name of the Freedman's Saving and Trust Company, ” was a local corporation of the District, but, as such, might do business in-this state.</p> <p>Same — Depositors.—The depositors had the right to come into the state courts for the enforcement of contracts made with the corporation, and to proceed against it as a non-resident corporation; but could, after its insolvency, acquire no priority of satisfaction over other creditors of like grade.</p> <p>Same — Statutory Assignment. — An assignment, by act of congress, of all the assets of the corporation' to commissioners would not, until duly registered under the laws of this state, prevent the depositors from proceeding against the corporation in this court, and reaching the property in this state..</p>

<p>Practice — Entering appearance. — The filing of a pleading or agreement by a defendant, duly signed by Ms solicitor, and making an application thereon, is the entering of an appearance, •within the act of congress of 1789, 20,12.</p> <p>Removal op cause to united states court. — The right of the defendants to remove a cause from the state to the United States court, under 1789, 20, ' 12, is gone after one of the material defendants has taken the opinion of the state court upon a question which goes to the merits of the litigation,</p>

<p>.^Practice — Defendant—Petition.—Except by statute, no sueb practice is known in equity as making a person a defendant upon his own application, without the consent of the complainant.</p> <p>íSame — Code, $ 2799. — A person who applies to be made a defendant to a suit in equity for the recovery of property, under the Code, § 2799, must show an interest in the property sued for.</p>

<p>County Court — Jurisdiction—Year’s support. — The jurisdiction of the county court, under the Code, \ 2285, to set apart to the widow, out of the estate of her deceased husband, a year’s support for herself and family, is ex parte and m rem, and the facts necessary to give jurisdiction must appear on the face of the record; otherwise, the proceedings are void.</p> <p>Same, same — ■Where widow has railed to dissent. — The county court has no jurisdiction to relieve a widow, who has failed to dissent from her husband’s will within the time prescribed by law, from the consequences of such failure.</p>

<p>Keceiver — Mortgage or personal property. — Upon bill filed by tbe mortgagee to foreclose a mortgage of personal property by sale, a receiver will not be appointed at bis instance, where the property is adequate to meet the debt, if the mortgagor will give bond, with good security, for the forthcoming of the property to answer the decree.</p> <p>Receiver — Under bills to foreclose mortgages. — The subject of the appointment of a receiver of mortgaged property, under a bill to foreclose the mortgage, considered.</p>

<p>Plea in answer — Soteiciency—A plea embodied in an answer cannot be set-forbearing on its sufficiency.</p>

<p>^LIMITATION or ACTIONS — VOLUNTARY ORANTE® — CREDITOR ON ORANTOR.— Continuous adverse possession of land by a voluntary grantee for seven years, under a deed made before, but registered within seven years, is a good defence to a bill by a creditor of the grantor, whose debt was in existence at the date, of the voluntary conveyance and the commencement of possession by the grantee, but not reduced to judgment until within seven years before the filing of the bill.</p>

<p>Pleading — ^MultipaRiousness.—A bill is not multifarious which is filed by the complainant as the agent and attorney of some of the defendants all the time, and of all the defendants for a portion of the time, in the matter of the same estate, in which the defendants had each an undivided interest, claiming compensation for services, and to subject to the satisfaction of his claim a fund in this court secured by his exertions.</p> <p>Demdkrer — Remedy at law. — A demurrer to the whole bill, on the ground that the remedy is at law, is too broad, and therefore bad, if the bill shows that as to some of the demurrants there is no remedy at law whatever.</p>

<p>MOTION TO DISMISS FOR "WANT OF EQUITY — IiEGAD DEFENCES. — Where a hill is-filed to enjoin a judgment at law upon purely legal defences, the objection of the want of jurisdiction may be made by motion to dismiss the bill for want, of equity on its face.</p> <p>¡Same — Effect of overruling. — The overruling of a motion to dismiss a bill for want of equity on its face will not preclude the court, on final hearing, from giving the defendant the benefit of the motion.</p> <p>¡Sheriff and deputy sheriff — Oase in judgment. — A deputy sheriff, against whom the sheriff has taken judgment over by motion, after a recovery against himself for the default of the deputy, has no equity to he relieved upon a defence which might have protected the sheriff from the original recovery, unless he avers and shows that the sheriff was notified of the defence and neglected to make it, or failed to give the deputy sheriff an opportunity to defend the original suit.</p> <p>'Evidence on issue not raised by the pleadings. — Evidence in relation to matters not put in issue between the parties by the pleadings is irrelevant, and furnishes no ground for a decree.</p>

<p>Statute or frauds — Corporation—Officers.—Where goods are sold, and credit given to a corporation, an officer and stockholder cannot he held personally liable for the debts thus created, upon a promise to pay or see them paid, unless such promise be in writing.</p> <p>'Corporation — Liability or stockholder. — An officer and stockholder of a corporation who states to a creditor that the corporation is, in his opinion, solvent, does not thereby make himself liable to the creditors, if the statement was made in good faith, although the corporation was, in fact, at that time insolvent.</p> <p>•Corporation — Ultra vires — Stockholder.—The purchase of goods by a corporation for the use of its employés, being within its charter, the fact that it sells these goods by retail to third persons is no ground for holding • the stockholders liable as partners, even if such sales he ultra vires.</p>

<p>Contempt oe court by violating ah injunction. — Where two of the defendants had violated an injunction by using funds contrary to its inhibition, but principally to pay off encumbrances on realty assigned in trust to secure the demand for which the funds were impounded, and the solicitor of the creditors had sanctioned the use of a portion of the funds for that purpose, and neither the extent of the actual loss nor the ability of the defendants to make it good appeared, the court declined, before final hearing, to extend the punishment beyond the limits prescribed by the Code, \ 4107.</p>

<p>-¿Partial performance op special agreement. — It is the settled law of this state that a person who performs work and furnishes material under a special agreement may recover compensation for a partial performance, equal to and limited by the value of the benefit conferred, in estimating which the damages sustained by the failure to perform according to contract must he taken into consideration.</p> <p>íSame — Damages por failure to perform. — The measure of damages, in cases of partial performance of a special agreement, is, ordinarily, the difference between the contract price and the value of the work as done, estimating the latter upon the basis of the contract price for the class of work contracted for, and allowing for inferior work accordingly; if special damage, the cost of replacing the work according to contract.</p> <p>?Same — Evidence.—Here opinions of witnesses, except of experts, are not evidence.</p>

<p>Entry by consent — Effect.—An entry upon the minutes of the court by consent of parties hinds only those who have consented to it, and, if not justified by the pleadings, is only efficacious as an agreement.-</p> <p>Same — Practice.—"When such an entry purports to be made in a pending cause, the parties to that cause not consenting thereto are entitled to be protected against it by a proper order.</p>

<p>Decree by consent — Effect.—A decree by consent of parties ordering an account in accordance with the pleadings is binding, and a waiver of all objections to the jurisdiction of the court to order the account, although it reserves until the coming in of the report all questions of dispute in the cause between the parties.</p> <p>Foreign administrator — Liability in this state. — A foreign administrator who comes within the jurisdiction of our courts, bringing with him the property of the estate he represents, or its proceeds, will, it seems, be held to account here, not in the character of administrator, but as trustee for those entitled to the effects in his hands, and a settlement in the forum of administration is not a prerequisite to the exercise of this jurisdiction.</p>

<p>-Attachment — Partnership hbbt — Defence by answer. — To .an attachment sued out on a debt alleged to be due by two defendants as partners, it is a good defence by one of them, -which he may make by answer, that he was not a partner.</p> <p>“Créditos claiming under execution by garnishment must show judgment. — In a contest between an attaching creditor and a creditor claiming the same property of the common debtor, under a prior execution by garnishment, the latter must show a valid judgment.</p> <p>■Judgment by confession before a justice beyond jurisdiction void.— A judgment by confession before a justice on an open account, for an amount over the magistrate’s jurisdiction, is void.</p> <p>"Waiver of defence by debtor. — Where, in a contest in this court between creditors over property of a common debtor, the debtor makes no defence against either claim, the surplus after satisfying the prior debt will be applied to the payment of the other.</p>

<p>Injunction — Dissolution—Answer.—The general rule is that, where the equity of the bill is admitted by the answer, an injunction will not be dissolved upon new matter set up in avoidance.</p> <p>Same — Third party — Petition.—A third person, no party to the suit, whose rights are affected by an injunction, may come in by petition to have the injunction construed, or modified so as to preclude all risk of violation in the pursuit of rights acquired previous to its issuance.</p> <p>Practice — Answer — Lunatic defendant.— Semble, an answer cannot be filed for a person of unsound mind, even with the consent of the complainant, without special leave of the court.</p>

<p>Lunatic mseudabt — GUARDIAN ad litem. — A defendant of unsound mind must appear by guardian ad litem before tbe complainant can proceed, and it is a motion of course to appoint such, guardian if the fact of unsoundriesa of mind be averred in the bill; and, if not, the appointment will be made upon the fact being satisfactorily shown.</p> <p>Lunatic — When service op process dispensed with. — The actual service of process on a lunatic defendant, found to be such by inquisition of the court, may be dispensed with, as a prerequisite to the appointment of a guardian ad litem, where it is shown that the service would be dangerous to the health of the lunatic.</p>

<p>Resulting trust arises at the time of conveyance upon consideration and intent. — A resulting trust arises at the time the conveyance is made, and, if there be no valuable consideration at that time, or if he who pays the consideration manifests an intention that the title shall abide beneficially in the grantee, the resulting trust does not arise.</p> <p>Gift in consideration of wrong done. — If a gift be in consideration of wrong done, such as seduction or past illicit cohabitation, equity will not interfere to deprive the donee of the legal title.</p> <p>Marriage prohibited by statute void. — A marriage between a white person and a person of mixed blood to the third generation, inclusive, being prohibited by statute, is void at initio.</p> <p>Evidence of hearsay in pedigree. — Hearsay from other than members of the family, and public repute, is admissible to prove the body of the tradition touching pedigree, but not to establish a specific fact, such as place of birth, or death, or shade of color.</p>

<p>Sale or wood in the tree must be in writing, and certain as to the band. — A sale of so many cords of wood now standing in the tree is within the statute of frauds, and must be in writing, and the writing must so describe the land that it can be identified without extrinsic proof.</p>

<p>INJUNCTION — GROUND OP APPLICATION — DISCRETION OP judge. — Upon the preliminary application for an injunction, all that the judge should, as a general rule, require is a case of probable right, and probable danger to that right without the interposition of the court, and his discretion should then be regulated by the balance of inconvenience qr injury to the one party or the other.</p> <p>:-'Same — Case in judgment. — Thus, where the complainants sought to enjoin a judgment at law upon the ground that the note on which it was recovered had been given in consideration of the sale to them, by the defendant, of the right to manufacture a particular medicine, composed of certain ingredients in certain proportions, and that they had been induced to buy the right by the false representation of the vendor that he was the discoverer of the active agent in the compound, and alleged that the defendant was insolvent, the Chancellor, although of opinion that the complainants were not injured by the representation complained of, if false, yet granted the injunction because of the irreparable loss which might follow the collection of the Judgment before the point could be adjudged.</p>

<p>Practice — Exceptions to an answer for insufficiency and impertinence. — By the English practice, scandal and impertinence in. an answer must he disposed of before its sufficiency can he considered; but, in this state, exceptions for insufficiency and impertinence may be filed and acted on together.</p> <p>Impertinence — Summary of deductions, reasons, and authorities. — It is impertinence in an answer, after stating the facts in response„and relied on, to give a summary of several pages of supposed conclusions and errors in previous proceedings, with the reasons and authorities relied on; and a conclusion couched in reproachful language may also be scandalous.</p> <p>Same — Petition for rehearing. — "Where the bill is filed to subject property to the satisfaction of a judgment of the supreme court, it is impertinence in the answer to embody a petition for a rehearing in the supreme court which that court refused to receive.</p> <p>Practice as to impertinent matter. — In this state, where an interlocutory order can only be revised upon appeal after a decree upon the merits, the better practice is to designate the matter declared impertinent, without actually striking it out, unless it be also plainly scandalous.</p>

<p>Order by consent will not prejudice those not consenting. — An. order made by consent of one of tbe parties to a suit will not prejudice tbe rights-of other parties not consenting.</p> <p>Answer cannot be filed as an original bill. — Under the provision of the-Code which authorizes an answer to be filed as a cross-bill, an answer cannot, be filed as an original bill.</p> <p>Case in judgment. — Where a bill was filed by a judgment creditor to reach' realty alleged to have been fraudulently conveyed by the judgment debtor to-his wife, and other judgment creditors of the same debtor were, by consent of the complainant, made defendants, and thereupon filed an answer and prayed that it be taken as a cross-bill against their co-defendants to subject the same land to the satisfaction of their debts, a demurrer thereto, as unknown to the forms of the court and as in effect an original bill, was-sustained with' costs.</p>

<p>Settlement upon a married woman op her own realty by decree op court. — Where lands owned absolutely by a married woman are, by decree of the court, with her consent, settled to her sole and separate use, without any power of disposition except by order of the court, the lands become again subject to her absolute disposition upon the death of her husband, and a subsequent conveyance thereof to a trustee, upon new trusts, by her in anticipation of a second marriage afterwards consummated, would be good; and the lands, during the second coverture, would be subject to the provisions of the new settlement.</p> <p>Marriage settlement — Power op disposition. — Where a marriage settlement of lands in trust to the separate use of a married woman provided that the trustee should convey the lands, “ or any part of the same,” in any manner the married woman “may direct by will, or deed, or writing under her hand,” and in case she makes no such direction, then to and for the use of the heirs of the married woman in fee, it was held that the power of disposition was not limited to the death of the feme, but that the trustee might, under her direction, in the mode prescribed, sell any part of the property, and use the proceeds, if necessary, for her support.</p>

<p>Attachment bond — Condition beyond requirement oe law. — The clerk has no authority to take an attachment bond conditioned otherwise than as required by law, or the flat of the judge, and any condition beyond such requirement would be void, and would be treated as surplusage, the bond being valid to the extent of its legal conditions.</p> <p>Case in judgment. — Thus, -where the flat of the judge directed the hond to he conditioned as in attachment cases, and the hond taken hy the clerk was, in. addition, conditioned to abide hy and perform such orders and decrees as the court may make, it was held that this condition, if its legal effect was to hind the obligors to pay any decree which might he rendered in favor of the defendant against the complainant upon the merits of the controversy, was void.</p> <p>Attachment bond — Damages.—Upon a reference to the master to ascertain and report the damages sustained hy the defendant by the wrongful suing out of the attachment, the burden of proof is upon the defendant to show the damages.</p>

<p>Life polict — May be disposed of bt will.— A husband and father who hasi taken out a policy of insurance on his own life, payable to him, his executors, administrators, and assigns, may dispose of the same by will.</p> <p>Same — Statutes exempting proceeds from debts. — The provisions of the-Code, §1 2294 and 2478, directing that any insurance effected by a husband on his own life shall enure to the benefit of his widow and children, free-from the claims of his creditors, only apply when the policy remains undis-posed of by the husband in his life-time.</p>

<p>Limitation of real actions — Time runs against heirs of land subject to unallotted dower. — The existence of a widow’s unallotted right to dower in land will not prevent the running of the statute of limitations against the heirs who have conveyed in fee their undivided shares of the land subject to the dower, especially where the dower right has been conveyed to the same purchaser.</p> <p>Same — Adverse holding under a deed from: one whose title was doubtful. — Where land descended to seven heirs, five of whom conveyed their shares, each describing his share as one-seventh, and a sixth undertook to convey two shares, claiming, with the knowledge of the others, one share under an informal will of the seventh heir, these facts being conceded in the bill and .established by the complainant’s evidence, it was held that the statute would run in favor of the purchaser as to this share.</p> <p>Deed under bower of attorney — Construction.—Where an attorney in fact, who is authorized by three heirs by separate powers of attorney to sell land, two of them describing the share of each as one-seventh, and the other describing his interest as consisting of two shares of one-seventh each, one as his own share, and the other as the share of a deceased heir devised to him by will, conveys by one deed the land described as “ being the distributive shares” of the three heirs, naming them, it was held that the deed passed the title to the two shares thus claimed by one heir.</p> <p>Same — Same.—A power of attorney to make “ all such deeds of conveyance and of partition” to such lands as I am entitled to, authorizes a deed of sale as well as a deed of partition. 4</p> <p>Deed — False description. — A false description in a deed, when there is enough otherwise to show the intention, will be treated as surplusage; as •where the grantors describe themselves as heirs of the father, when they were in fact heirs of the son who died after the father.</p> <p>Husband and wife — Conveyance by power of attorney. — A conveyance, under a power of attorney by husband and wife, of all the right, title, and interest of the husband and wife in land, will pass the estate by curtesy of the husband, and the children of the wife cannot sue for the land, after the death of the wife, if the husband be still alive.</p>

<p>Practice — Unknown parties — Publication".—In a suit for the partition of land, "where the names and residence of some of the defendants are unknown, in order to give the court jurisdiction as to such parties, it must be stated tinder oath in the bill, or by separate affidavit, that the names and residences are unknown, and cannot be ascertained on diligent enquiry, and the order of publication must describe such unknown parties by the character in which they are sued, and by reference to the title, interest, or subject-matter of the suit.</p>

<p>Injunction — Motion to dissolve — Merits.—Upon a motion to dissolve an injunction on the coming in of an answer, it is neither necessary nor proper to decide the case on its merits, especially where the merits turn on grave questions of law arising on conceded facts. .</p> <p>Same — Same—Control of Property. — Where the effect of dissolving an injunction would he to put the property which is the subject of litigation beyond the control of the court, a dissolution would be a decision on the merits, and, if the court is satisfied that there is a probable right which would be endangered without its interposition, the dissolution should be refused.</p> <p>•Case in judgment. — Where, therefore, the bill was filed to enjoin the execution of a writ to put the purchaser of realty at tax sale in possession, under the recent tax law, on the ground of the unconstitutionality of the act and of various defects in the proceedings, and making out a case of probable right, which would be lost except for the interposition of the court, and the answer admitted the material facts but took issue on the law, a dissolution was refused.</p>

<p>•Jurisdiction to subject equitable interests in realty to satisfaction of judgments. — Equity has jurisdiction to subject the equity of redemption of a judgment debtor in mortgaged lands to the satisfaction of the judgment, upon the return of nulla bona on an execution issued to the county of the judgment debtor’s residence, although the judgment was recovered in another county, and it is not shown that execution was sued out in that county.</p> <p>©ame — Extent of relief. — Upon a bill to subject the equity of redemption of a judgment debtor in mortgaged land to the satisfaction of a judgment, the judgment creditor is only entitled to a sale of the equity of redemption, not of the entire property, unless with the assent, and upon the application, of the mortgagee, and then only upon condition that the proceeds of sale be first applied to the satisfaction of the mortgage debt.</p>

<p>Factor and customer — Agreement eor a loan on produce. — "When an agreement is entered into between a factor and a bolder of produce for an advance of money on the produce as part of an entire contract, embracing: the storage, safe keeping, and sale of the produce, and the compensation stipulated is greater than the legal rate of interest on the advance, it is a question of fact whether usury was intended, and if relief is sought on the. ground of usury the fact must be averred in the bill and established by proof.</p> <p>Case in judgment. — Thus, where the complainants, as manufacturers of whisky, made a contract with the defendants, factors and commission merchants, for the storage of their whisky and an advance of money thereon, upon certain terms and conditions, the commissions and charges agreed to-be paid being more than the legal rate of interest on the advance, it was held, upon a bill filed stating a contract which was not usurious and not established by proof, that the complainants were not entitled to relief, although the agreement proved was for a rate of compensation greater thau legal interest on the money advanced.</p>

<p>Debtor’s right to redeem land sold by execution mat be reached in equity. — A creditor who has sold his debtor’s land by execution, and become the purchaser, may, by bill under the Code, § 4282, et seq., subject to the satisfaction of the residue of his judgment the equitable interest of the debtor in the land by virtue of his right to redeem.</p> <p>-Same — Question reserved. — The question is reserved whether the lien upon the debtor’s right to redeem land sold by execution, acquired by the filing of a bill in equity, affects the right of other judgment creditors to redeem.</p>

<p>RECEIVER COT DELINQUENT BAILROAD — PUBLIC AGENT — IjIABILITY.— The receiver of a delinquent railroad, appointed by the governor of the state, under 1852, 151, 5, is a public agent, and, as such, not liable for the wrong3 or negligence of his employés, but only for his own wrongful acts or delinquencies.</p> <p>Same — Issues and profits op the road. — To reach the issues and profits of a railroad in the hands of a receiver appointed by the governor, the claimant must be able to show that his claim falls within the “costs and expenses” incident to the receivership, and which are alone authorized to he deducted by 1852,151, 5.</p> <p>Same — Evidence—Recovery against the railroad company. — A judgment recovered against the railroad company is no evidence against the public receiver of the railroad.</p>

<p>Testamentary guardian cannot be appointed by a mother. — A mother has no power to appoint a testamentary guardian for her children.</p>

<p>INFANT CANNOT BIND HIMSBLF FOR NECESSARIES IF FURNISHED BY GUARDIAN. —An infant cannot bind himself or his estate for necessaries if properly supplied by the guardian with whom the infant is living, and this, although the person dealing with him was ignorant of the fact that he was an infant and had a guardian, and no matter how ample the estate of the ward may be.</p> <p>Infant.not liable for goods sold as necessaries if consumed or disposed of. — If the infant has consumed or parted with the goods sold to him as necessaries, the other party cannot recover their value against the infant or his estate,; hut if the property be in the possession of the ward or his guardian, it would he held in trust for the vendor, and might be recovered or ordered to be delivered up.</p>

<p>Administration — Personal assets must be exhausted to reach realty. — Upon bill filed by an administrator de bonis non to subject real estate descended to the payment of debts, the realty cannot be reached until it has been shown by settlements with the previous and present administrator - that the personal assets have been legally administered, and if the administrator de bonis non has neglected to bring his predecessor before the court, for this purpose, it may be done by any of the creditors.</p> <p>Same — Heirs—Infant heir. — The heirs to whom land has descended may, each for himself, make any defence to a claim filed against the estate, upon a bill to subject the realty, which either the ancestor or the administrator could have made, as well as any defence given by law to the heir himself, although, the claim may have been established by judgment or otherwise against the, administrator; and if the adult heirs make no defence, the infant heir may-contest the liability of his inheritance for its proportion of the debt.</p> <p>Same — Limitation of actions. — The running of the statute of limitations of two years and six months is not prevented by the administrator taking the creditor to his attorney and directing the latter to pay the claim out of certain moneys due the estate, when collected, nor by writing on the back of the claim: “I request that no suit shall be brought on this note, and agree that the statute shall not run against it; I will pay it soon.”</p> <p>Same — Same.—The specific mention of a claim, without disputing its validity, in the bill of an administrator to reach realty, may save the bar of the statute as against the administrator, and the adult heirs who make no issue by-answer or cross-bill, but not against an infant defendant.</p> <p>Exceptions to report. — Exceptions to a master’s report, which, if sustained, would require the master to go beyond the order under which he is acting, are bad.</p>

<p>LUNATIC — NON-RESIDENT—Transfer OF funds to another state. — The-funds of a non-resident lunatic, in the custody of this court, may be transferred to the state of the lunatic’s residence, upon the production of a certified transcript of the proceedings in lunacy, including the appointment of the applicant as guardian or committee of the person and estate of the lunatic, and the execution of a bond with good security, in a penalty sufficient to cover the fund in this court, with special reference to such fund, and properly conditioned.</p>

<p>Practice — Application to amend answer — Oath op defendant. — The oath of the defendant to the affidavit in support of an application to amend his answer is, except under special circumstances, indispensable; and this although the oath to the answer is expressly waived by the bill.</p> <p>AnsweR — Amendment where oath waived by the bill. — The amendment of an answer, the oath to which is dispensed with, will, as a general rule, only be allowed where a similar amendment to an answer under oath would prevail.</p> <p>Case in judgment. — Where, to a bill alleging that the complainant and defendant were partners in the purchase and running of certain mill property, and asking for a partnership account, but waiving an answer under oath, the defendant filed an answer denying the existence of the partnership, and afterwards, and after the taking of proof tending to show an actual contract of partnership by parol, the defendant applied for leave to amend his answer so as to rely on the statute of frauds, the application was refused.</p>

<p>Sale ov partnership business and good-wild — Eppect.—The sale of a, business stand and the good-will of the business will not prevent the vendors from carrying on the same business in the same neighborhood.</p> <p>Same — Rower op one partner to bind another not to go into the same, business. — While it may be competent for one partner to bind the other-by a sale of the good-will of the business, he has no power to bind him not. to go into the same business.</p> <p>Amendment op written contract. — To amend a written contract requires-clear evidence, and the burden of proof is on the party seeking such relief..</p>

<p>Deep ow husband to wiee and children — Construction—Limitation ov actions. — A deed of a husband and father, by which, in consideration of love, he conveys to his wife and her issue by him then living, with a provision letting in “any further issue,” certain realty, the title to which he warrants, and reserves the right to dispose of the property by the joint consent and signature of the wife, and, in case of her death, “as the trustee” .■of his children, is, in legal effect, a deed of gift to the wife and the children then living, subject to open and let in after-born children, with a limited power of sale for the purposes of the trust, and is on its face valid; and even if the deed was fraudulent in fact, or fraudulent in law by reason of the insolvency of the grantor at the time, adverse possession under it for seven years would vest the wife and children with a good title as against all persons whose right of action accrued prior to the commencement of the running of • the statute.</p>

<p>Injunction bond — Conditions.—A clerk has no power to insert in an injunction bond conditions not prescribed by law or the fiat of a judge, and any condition not thus authorized is void.</p> <p>Same — Judgment—Motion.—A judgment entered upon an injunction bond in the cause in which it was taken is, in legal effect, a judgment by motion, and void unless it contain on its face a sufficient recital of facts to show that the court had jurisdiction to render it.</p> <p>Same — Condition—Damages on dismissing bill. — To subject the obligors in an injunction bond, given under the Code, ji 4439, subsec. 2, to costs and damages “ on dismissing the bill,” a formal dismissal is not necessary; it is sufficient if the court refuse to grant the relief sought upon the matter to which the injunction relates.</p> <p>Yoid judgment — Execution—Supersedeas.—The court may, on petition, supersede and quash an execution on a void judgment.</p> <p>Error coram nobis — Error oe law. — A writ of error coram. nohis will not lie to correct an error of the court in construing a bond, or in erroneously holding the parties liable upon facts before it.</p>

<p>Trust Etnro — Limitation or action — Cestuis que trust. — Where a conveyance of goods in trust for creditors was made in December, 1866, and the trustee qualified according to law, but before he could take possession of the goods, they were attached by the defendants, sold under the orders of the court in the attachment cases, and the money loaned to the defendants on the. 4th of March, 1867, who executed notes with security, payable to the clerk, for the amount, and the attachments were afterwards, in January, 1873, declared void, and the suits dismissed, and this bill was filed on the 10th of' February, 1873, by the beneficiaries in the trust deed, to have the notes, collected and the proceeds distributed under the deed; it was held, on. demurrer, that the action was not barred by the statute of limitations, and. was maintainable.</p>

<p>Husband and wife — Gifts to wife of chattels, or money vested in-chattels. — A bill by a wife which seeks to enjoin the sale of chattels levied on by execution against her husband, upon the ground that they were either-given to her, or bought with money given her by her father for her own use, to be disposed of and used as she might see proper, shows no equity, and will be dismissed on motion.</p>

<p>Fuheeal expenses — Stjit of clothes. — The value of a suit of clothes in, which to bury the deceased, will, in the absence of testimony showing its impropriety, be allowed as a funeral expense, under the Code, J 2350.</p> <p>Same — Aix claims -for should be heard tooether. —In oases of insolvency it is the duty of the personal representative of the deceased, and the creditors have the right, to see that all the items of expenditure for funeral expenses are brought before the court at the same time, and, if this be not done, each item of expense must be determined on its own merits.</p> <p>Clerk’s fees — Sureties—Lieu.—The official fees of a clerk belong to his estate, like other property, and the sureties upon his official bond have no lien upon them for their indemnity, or right of priority over other creditors.</p>

<p>Xessee’s libít for improvbmbnts. — Under a lease for a term of years, which contains a provision that the lessor agrees, at the expiration of the term, to take the improvements at valuation, and a stipulation that the lessee will deliver possession at the end of the term, without more, the lessee has no lien upon the land leased for the value of his improvements.</p>

<p>Attachment proceedings in another state against a citizen of, and stock in, this state. — A creditor of a citizen of this state can acquire no' lien upon the interest of the debtor in stock of an insurance company chartered by, and located in, this state, by proceedings commenced in New York by attachment or garnishment process, served there upon another creditor of the same debtor who holds a certificate of the stock as collateral security, or in pledge, and bj' summons personally executed on the debtor in this state, as against an attaching creditor of the same stock by proceedings commenced in this state.</p>

<p>Assignee in bankruptcy must sue within two years for stock held-under defective attachment. — An assignee in bankruptcy who fails to-intervene in a pending attachment suit in the state court, in which the bankrupt had previously entered his appearance and made defence, or to institute separate proceedings for the assertion of his rights to the property attached (stock in an insurance company), until the expiration of two years after the assignment, is barred by the limitation of two years prescribed by the bankrupt act, even if the attachment proceedings might have been successfully impeached within the two years.</p>

<p>DECREE or DISMISSAL Oír MERITS — IMPEACHED BY ORIGINAL BILL — CONCLUsiveness. — A decree rendered upon a regular hearing in chancery is conclusive as to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have* brought forward at the time; and, therefore, a decree dismissing a hill on the merits cannot be set aside, nor can any relief he obtained against it on matter previously in existence, by an original bill, except for fraud.</p> <p>Bill of review — Filed without leave. — A hill of review for new matter, filed without leave of the court, will be taken off the file on motion, or dismissed on demurrer.</p> <p>Demurrer — Assignment of causes — Want of equity. — A bill clearly wanting in equity will he dismissed on demurrer, although the causes of demurrer assigned may not be technically sufficient to cover every ground of objection.</p>

<p>Descent of land — Deed of gift from father — Whole and half' blood. — Land held by a son under a deed of gift from the father descends, upon the death of the son -without children, to the son’s brothers and sisters-ex parte paterna of the whole and half blood, subject to the dower of the son’s widow.</p> <p>Dower — Valve may be assigned by lands in fee — Consent for infants.— The value of the widow’s dower may, with her consent, be set apart to her in land in fee, and the court may assent to such an arrangement for infant, heirs, if satisfied that it is manifestly for their interest.</p> <p>Bill to declare future rights. — The court cannot construe a deed and declare future rights where the parties who may be entitled in remainder are-not before it, and there is no trustee asking for instructions for his protection;, nor will it, as a general rule, declare future rights.</p>

<p>Behearing proper, and coupled with other reliee. — The province of a rehearing proper is to correct erroneous conclusions of the court from the evidence on file, and mistakes of law; and if the application is also to change the record, as by excluding a deposition, it must show that the applicant has been free from negligence in not making the corrections before the hearing.</p> <p>Same — Necessary absence of solicitor. — It is not a sufficient ground to sustain an application for rehearing, that the party, who was his owm solicitor, was compelled to go to another court.</p>

<p>! Receiver in beiiale op a judgment creditor. — A judgment creditor who has filed his hill to reach the equitable interest of his debtor in realty previously mortgaged is entitled to a receiver, if the rents are required for the payment of his debt, subject to the right of the prior mortgagee to take possession; hut the receiver will be dispensed with upon the owner of the property giving bond with security to account for the rents.</p> <p>IReoeiver — Failure to pay taxes. — The failure of the party in possession of land in litigation to pay the taxes accruing thereon is a sufficient ground for the appointment of a receiver.</p>

<p>Trust — Burden onr proof — Laches.—Upon bill filed to rectify a deed of certain land, on the ground that the land had been bought by the complainant’s father, and the title, after his death, wrongfully taken by his widow, the complainant’s step-mother, to herself, the burden of proof, after the lapse of fourteen years since he came of age, and six years after the death of the step-mother and the vendor, is clearly upon the complainant to make out his case beyond a reasonable doubt; and the hill necessarily fails if the proof shows that the original title bond was made to the husband and wife jointly.</p> <p>Cross-bill not admissible where not defensive. — An answer cannot properly be filed as a cross-bill, nor will a formal cross-bill lie, where the matter set up was no defence to the original bill, nor auxiliary to the defence, nor in any way connected with it; but if the parties make no objection, neither will the court.</p> <p>Trustee of specific property not authorized to enquire into previous transactions OF the grantor. — A trustee to whom specific property has been conveyed to be held and managed for the grantor is not authorized to enquire into previous transactions of the grantor, in the sale or exchange of other lands.</p> <p>Rescission of a land trade refused under circumstances. — Where a bill for rescission was not filed for over two years after an exchange of .lands, in which the complainant also received a money consideration in addition, and during the interval the complainant had used the money and sold the land received in exchange, permitted valuable improvements to be put upon the ’ land conveyed by him in exchange, and expressed no disapproval of the trade at any time up to his death, the court declined to rescind, although the proof disclosed the fact that he was barely of age when the exchange was made, dissipated and heedless, and that the other parties had encouraged him in throwing off parental control, and pandered to his vices.</p>

<p>.Assignee has nr equity only the bights on the assignor against innocent third persons. — Where, pending a litigation carried on in equity in the name oí the assignor, the fund to which the assignor is eventually found entitled is loaned to him, under order of court, upon note with good security, the assignee, who subsequently and after the insolvency of the assignor intervenes for the assertion of his rights, must stand in the shoes of the assignor, and as the latter would have no equity against his sureties, neither has the former.</p> <p>-Assignee asserts his rights by supplemental bill. — The assignee of a claim in litigation in chancery can only obtain the benefits of the suit as a party by an original bill in the nature of a supplemental bill, and his rights as against persons having no previous notice will date from thé filing of his bill.</p>

<p>JURISDICTION OP CHANCERY AFTER JUDGMENT TO SUBJECT PERSONA!, EFFECTS in the hands of the debtor. — The court of chancery has no power, without the aid of a statute, at the instance of a judgment creditor who has exhausted his legal remedy, to institute an inquisition into the circumstances of the defendant, and to compel him, under the penalty of imprisonment, to turn over to a receiver government bonds or personal chattels in his possession, in order to subject them to the satisfaction of the judgment; and no such statutory authority has been conferred upon the court in this state.</p>

<p>PROBATE OV DEED OF FEME COVERT GOOD ALTHOUGH THE word RESTRAINT1 be used instead of constraint. — A probate of the deed of a married, woman is good, where the certificate of privy examination follows the form prescribed by the statute, except that the word “restraint” is used instead’ of “constraint.”</p> <p>Trustee — Summary appointment of new trustee where-the original, trustee refuses to act. — Semble, an appointment by the county court of a new trustee, where the original trustee in open court refuses to act, made upon the application of the principal beneficiary in an assignment for creditors, is good, without notice to the maker of the assignment, although the deed provides that the surplus proceeds, after satisfying the purposes of the trust, shall be paid to the maker.</p>

<p>Parties — Bilí, by surety for indemnity — Misjoinder.—Creditors secured by a trust assignment, who have filed a bill against the trustee and his surety for an account, are neither necessary nor proper parties defendant to a bill by the surety against the maker of the trust upon an alleged promise of indemnity by him, and this although it be charged that the bill of the creditors was filed at the instance of the maker of the trust or his attorneys, or both, in order to throw the burden of the trustee’s default on the surety.</p> <p>Motives of parties to a bill. — It is no defence to a legal demand, instituted in the mode prescribed by law, that the plaintiff is actuated by improper ' motives.</p> <p>Statute of frauds — Objection by demurrer. — If the bill show on its face that the contract sued on is in parol, the objection of the statute of frauds may be made by demurrer.</p> <p>Promise of indemnity — Accrual of right of action. — If the promise be to indemnify against liability, the right of action accrues as soon as the party becomes liable to pay, and is not postponed until actual payment.</p> <p>Statute of frauds — Parol promise to indemnify. — A parol promise by the maker of a trust assignment for creditors to indemnify a person, who, at his request, becomes a surety for the trustee on his bond, given for the faithful performance of his duties, is, it seems, within the statute of frauds.</p> <p>Same — Character or promise. — But if a parol promise of indemnity can be valid, it must be express, and established beyond a reasonable doubt.</p>

<p>Guardian ad litem — Compensation when theke are no funds of infant. — Where the legal title to realty is in an infant, and the party beneficially interested is compelled to bring the infant into court in order to procure a divestiture of the title, the beneficiary must pay the necessary expense of the proceedings, including reasonable compensation to the guardian ad litem, in the nature of taxable costs, to be included in the bill of costs.</p>

<p>PARTNERSHIP books — Mode op using them As evidence. — Partnership hooks,, to which all .the partners have had access, ar& prima facie evidence for and against each partner; hut they cannot be made exhibits, except to identify them, nor can either the court or the master be required to examine them in detail; they should be examined by experts, to ascertain balances, and to make out schedules of such items as may be in dispute, or tend to elucidate the contested matters of charge and discharge.</p>

<p>Trust deed por the benefit of the grantor — Legad efeect. — A young man, of sound mind and of age, conveyed all his real estate to a trustee, the deed reciting a nominal consideration, that the grantor was inexperienced and subject to imposition, and that the conveyance was only in trust to secure the property so that it shall constitute a source of proper support for him, and, to this end, that the trustee is authorized to take charge of the property, manage, control, lease, sell, and convey such parts of the same as may be necessary for the purpose indicated. Held, 1. That the legal effect of the instrument was to clothe the grantor with the title and beneficial interest, and leave nothing in the trustee; and, at any rate, only a bare, naked legal title. 2. That, if construed as a power of attorney, the power to “lease, sell, and convey” is conditional upon its being necessary for the maintenance of the grantor. 3. That, in either view, the trustee had no authority to raise money by mortgage, unless necessary for the purpose of the trust.</p>

<p>^Partners — Rights where one contributes money, the other skill.— Where two persons enter into articles by which they agree to associate themselves “ as copartners ” in a designated business, one of them to contribute the capital, and the other skill and labor, and the profits to be divided in unequal proportions, a definite salary being guaranteed to the one who contributes his time, labor, and skill, they become partners in the property and business of the firm in the proportion fixed by the articles, and subject to the restoration to the other partner of the capital advanced.</p> <p>Partnership property — Execution against one partner. — The interest of the partner who contributes only time, labor, and skill, in the partnership property, may be levied on and sold by execution against him as an individual.</p> <p>Partnership property — Rights op purchaser at execution sale. — A purchaser of the interest of one partner in partnership property, at execution sale, becomes a tenant in common of the property so bought, and may come into this court for an adjustment of the partnership business, and the determination of the interest acquired as of the date of the sale.</p> <p>Same — Question reserved. — The point was reserved, whether, if it should be found that the purchaser had a definite interest, he might not hold the other partner to an accout for the use of his property in the subsequent business.</p>

<p>¡Set-off nr equity — Insolvency—Assignee of judgment with notice of equity. — The vendor of a chattel who, upon the theory that there was no valid sale, sues the vendee in replevin therefor, and loses the suit, so that a judgment is recovered against him for the value of the article, may after-wards file his bill in this court, and, on the ground of the insolvency of the vendee, set off his demand for the price of the chattel against the judgment in the hands of an assignee with notice of the equity.</p>

<p>Pbactice — Amended bill on deeence made. — It is of course to allow the-complainant to amend his bill without costs upon defence made, either by plea or answer, so as to enable him to shape his pleadings for the better-development of his case; amendments after replication, or the setting of a. demurrer or plea for hearing, will be upon terms.</p>

<p>MORTGAGE OR trust SECURITY NOT AFFECTED BY BAR OF THE LEGAL REMEDY on the debt skcured. — A judgment upon a note secured by mortgage or trust deed does not so merge the debt that a neglect by the creditor to revive the judgment against the personal representative of the debtor, or to proceed against the estate of the decedent within the time prescribed by law, will bar his right to enforce in equity the security of the trust deed.</p>

<p>Bankruptcy — Contribution between sureties. — The claim of one surety against a co-surety on an administration bond for contribution is provable, • and covered by the discharge of the co-surety in bankruptcy, if the liability of the principal had become fixed by judicial proceedings before the petition in bankruptcy, although the amount of the liability was not ascertained nor paid by the surety until several years afterwards.</p>

<p>Practice — Setting aside pro coneesso bt master. — The master is not: authorized to set aside an order tailing a bill for confessed, except upon an affidavit showing good cause why the answer was not sooner filed, and the tender of a sufficient answer; and the affidavit must be made by the party himself, unless the facts relied on are peculiarly within the knowledge of the person tendering an affidavit; and a pro confesso against several defendants cannot ordinarily be set aside as to all of them upon an answer sworn to-by only one of them.</p> <p>Practice — Answer—Several defendants. — An answer must be signed and, unless the oath be waived, sworn to by each of the defendants whose answer-it purports to be; otherwise, in strictness, it should not be received as the answer of any of them.</p> <p>Practice; — Affidavit—Good cause. — It is not a good cause for setting aside a pro confesso order to state generally that the counsel has been prevented from sooner preparing an answer by “ a press of other business.”</p>

<p>Guardian — Failure to make settlements — Compensation.—A guardian who has been removed because of his failure to make settlements as required by law is not entitled to any allowance for his services.</p> <p>Guardian — Parent—Allowance for maintenance of ward. — A father who is without the necessary means to maintain his children according to ' their future expectations, or whose income is smaller than that of his children, may be allowed for their future, and, under circumstances, for their past maintenance.</p> <p>Reference before hearing by consent — Effect.—Although the court has no power to make a reference for an account before the hearing of a cause, the parties may consent to such a reference, and will be bound by the concessions therein made.</p>

<p>Stock or a corporation — Assignment—Title or assignee. — In this state* the title of an' assignee to stock in a corporation is not complete as against, creditors of the assignor until notice to the corporation.</p> <p>Same — Case in judgment. — Thus, where the holder of stock in a corporation pledged the same for borrowed money, by delivering the certificate of shares, to the lender, and¡ at the same time, signing a printed form on the back of the certificate authorizing the assignee to transfer the stock on the books of the company, and afterwards, but before any notice of the assignment or pledge was given to the corporation, a creditor of th'e assignor levied his execution on the stock by notice to the proper officer of the corporation, it. was held that the creditor had the better right.</p>

<p>Receiver mat be appointed apter piñal decree. — After a final decree in a cause confirming a sale of land and awarding a writ of assistance to put the purchaser in possession, from which the defendant in possession of the land has prayed and obtained an appeal, the court may, upon the application of the purchaser, at the same term, and good cause shown, set aside the order granting the appeal and appoint a receiver to take possession of the land pending the appeal; and the insolvency of the party in possession is sufficient cause.</p> <p>Same — Practice op supreme court. — It seems the supreme court will, in such cases, if satisfied that the receiver was properly appointed, direct the inferior court to execute its order pending the appeal.</p>

<p>Receives — Cannot be proceeded against by original bill. — An origina} bill against a receiver, by a party to the suit in which the receiver was appointed, is unnecessary, unwarranted, and a contempt of court.</p> <p>Same — Effect of appointment on rights of party in possession. — The effect of the appointment of a receiver is to remove the party in possession of the property who is a party to the suit, no right remaining in him by virtue of such possession, and any application he may make for the purpose of interfering with the discretion of the receiver must show abuse of his authority to the prejudice of the applicant.</p>

<p>Demurrer must go to the relies- sought. — A demurrer must be founded' on some dry point of law which goes to the relief sought; and, therefore, several demurrers will not lie to separate parts of the hill, no one of which, parts constitutes hy itself the equity of the hill, or is the basis of the whole; relief sought, or of any particular relief sought.</p>

<p>Mortgage or advance or money. — A mortgage of land upon an advance of money is pro tanto a sale, and gives the mortgagee, to the extent of the money advanced, all the rights of a bonaf.de purchaser.</p> <p>Marriage settlement signed only by the husband will not affect the wife’s rights. — An instrument in the form of a marriage settlement, but executed only by the future husband, by which he renounces his marital rights in the property of his intended wife in favor of herself and her children, has no effect whatever on the rights of the wife.</p> <p>JBona fide purchaser for value of property subject to a trust. — A resulting trust, or a trust implied from the use of trust funds, will not avail against a bona fide purchaser for value and without notice of the trust.</p>

<p>Surety rtr judgment — Relief in equity against judgment créditos. — A surety whose property has been levied on by an execution against him and his principal is not entitled to come into equity because of the mere delay of the judgment creditor in pressing collection, nor beoause thé principal is good and the money could be made out of him, nor because the execution docket shows the levy of a previous execution on land, which complainant believes was the land of the principal.</p> <p>’ Surety — Relief must best on facts. — General charges of collusion and conspiracy to force a surety to pay a joint judgment against him and his principal, and of a concerted action of some kind to oppress him, without any statement of facts which, if proved, would show an unlawful conspiracy, are not sufficient to authorize a court of equity to interfere with the creditor’s legal rights.</p>

<p>Practice — Motion—Reference.—The court has no power, on mere motion, to make general references involving the rights of parties which ought to he determined at the regular hearings; nor is it the duty of the court or of the master to ascertain what orders have been made in a cause, or what is the condition of that cause at any one time.</p>

<p>Master’s sale — Risht oe purchaser to demand title. — A purchaser of" two lots at a master’s sale in an administration suit, who has received a title to and resold one of them before he had fully paid for it, cannot require the master to make him a title to the other lot, the purchase money of which, he has paid in full, until he has also paid the balance due on the first lot.</p>

<p>Tax titee acquired by one beneficiary enures to benefit of all. — A 'beneficiary under a trust assignment for creditors, who is a party to a suit-for the execution of the trust, consenting thereto and accepting its benefits, cannot acquire a title to any of the property under; a tax sale free from the-trust, and a person who joins with him in the purchase with knowledge of. his fiduciary relations will stand in no better position.</p>

<p>•Cross-bill mat be filed before answer to the original bill. — It is no ground of demurrer to a cross-bill that it has been filed before the complainant therein has answered the original bill.</p> <p>Pleading — Cross-bill—Answer.—A pleading which is in substance and form a cross-bill is not changed into an answer by a prayer that it be taken also as an answer to the original bill, and such a prayer the court has no power to grant.</p> <p>Principal and stjrett — Liability of former to latter originates with the relation. — The liability of the principal to his surety is an obligation ■ which dates from the creation of the relation, although contingent upon payment by the surety.</p> <p>Priority of claims against the estate of decedents. — Debts created by a testator in his life-time are entitled to bo first satisfied out of the assets of his estate, in preference to debts created after his death in carrying on a business under the provisions of his will, even where the will directs that all the property the testator may die possessed of shall be responsible for the debts thus incurred.</p>

<p>Trust assignment — Mutuab rights or beneficiaries. — "Where the holder of one of several notes secured by a trust assignment without preference has, under a hill filed by him against the grantor and trustee alone, had the property sold and the proceeds applied to the satisfaction of his note, the holders of the other notes may, by suit in this court, hold him liable for their proportion of the proceeds.</p> <p>Death of party renders subsequent proceedings void. — In this state the death of a defendant to a suit, although the fact be unknown to the other parties and unnoticed of record, renders void as to him and his representatives all proceedings in the cause taken thereafter; and, therefore, a subsequent appeal by a co-defendant, under which a decree rendered in his lifetime against both for fraud was reversed, will not enure to the benefit of his estate.</p>

<p>Exceptions to a report are in the nature op a special demurrer.— Exceptions to the master’s report can only be made by the party aggrieved, and must be confined to the report itself and the evidence on which it is-based.</p> <p>Case in judgment. — Thus, an adult defendant cannot, by exceptions, raise-questions in which infant co-defendants are alone interested, nor review the validity of the previous proceedings in the cause.</p> <p>Decree bt consent — Inpant.—Semble, a decree by consent, even in the case-of an infant, cannot be set aside on that ground alone.</p>

<p>Municipal corporation cannot be made a dependant to a garnishment, bill. — A garnishment or creditor’s hill will not lie against a municipal corporation, to subject to the satisfaction of the complainant’s claim against a third person the supposed indebtedness of the corporation to that person.</p>

<p>Injunction — Motion to dissolve — Answer under oath where oath* waived. — Although, the hill waives an answer on oath, the defendant may swear to his answer for the purpose of obtaining the dissolution of ait injunction.</p> <p>Same — Drainage oe sewerage — Corruption oe springs and wells. — An*, injunction obtained, upon the filing of the bill, inhibiting the defendant from draining the sewerage of a university into a natural crevice in the rock on its own land, on the ground that there was danger that the springs and wells, of the complainants might be corrupted, was dissolved upon the coming in of an answer denying the danger, and showing facts incompatible with the-probable existence of the alleged danger, the statements of the bill being-vague and loose, disclosing no facts from which danger could be inferred,, nor a probability, but only a bare possibility, of danger.</p>

<p>Practice — Exceptions to master’s report — New rule. — It is the duty of" counsel, upon filing exceptions to a master’s report, where the exceptions, are based upon evidence in the cause, to bring such exceptions at once to the notice of the master, and the master shall, thereupon, consider such excep--tions imtanter, and, if he thinks them well taken, make a supplemental report to that effect, and, if not, sustain his report by referring hy page to the particular parts of the record upon which he bases each item excepted to.</p>

<p>Exceptions to an answer for insufficiency. — Exceptions to an answer for insufficiency, although, technically well taken, will be disallowed when, founded upon mere verbal criticism, slight defect, or omission in matter not material to the cause, and when it is evident the defendant has no intention to evade discovery, and the sustaining of the exceptions would be of no-benefit to the complainant.</p> <p>Exceptions to an answer for impertinence and scandal. — Exceptions to an answer for impertinence will not lie for a few unnecessary words, unless-the irrelevant passage would tend to the introduction of improper evidence, by putting facts in issue foreign to the cause, or embarrass the opposite, party in making out his case; nor for scandal, if the matter be pertinent.</p>

<p>Exceptions to the answer op a corporation por insuppiciency. — Exceptions to the answer of a corporation under its corporate seal will not lie to its sufficiency as a discovery, and would he a useless form to its sufficiency as a pleading.</p>

<p>.Homestead — Conveyance by husband — Joinder or wife. — Under a statute which exempts from legal process a homestead in the possession of the head of a family, and the improvements thereon, to the value in all of $1,000, to enure to the benefit of the widow, and provides that the property shall not be alienated without the joint consent of husband and wife, evidenced by conveyance duly executed as required by law for married women, a deed by the husband, in whom was the legal title, neither naming the wife nor mentioning the homestead right, will not pass the homestead right, nor estop the husband and wife from claiming the same, although signed by the wife and proved as required by law for married women.</p>

<p>FRAUDULENT ASSIGNMENT — RELATIVE RIGHTS OR CREDITORS OR GRANTOR AND grantee. — The creditors of a fraudulent grantor have no equity as against the innocent creditors of the fraudulent grantee ■which entitles them to priority of satisfaction out of personal property fraudulently conveyed, where such creditors of the grantee have acquired the first lien; it is a race of diligence, in which the parties are entitled to stand on their legal rights.</p>

<p>lira ant i-eme covert — Funhs nr cotot. — If a wife who has funds in this court be not of full age, she is incapable of giving consent to its disposition, and the court will not take her examination, nor suffer her to waive her equity, but will either settle the fund on her or preserve it until she comes of age; and there is no authority for the payment of such money to her husband upon the ground that he could more profitably use it in trade, or for any other reason.</p>

<p>-Administration of insolvent estates — Limitation of actions — Judgment against personal representative. — A creditor who has recovered judgment against an administrator on a liability of the intestate, before the administrator has suggested the insolvency of the estate, may file his claim in the insolvent suit at any time before the funds of the estate are paid out.</p>

<p>Practice — Answer—Signature of defendant — "Waiver of defect. Although the hill waive an answer under oath, the answer should be signed by the defendant, but the irregularity of omitting the signature will be waived by the filing of a replication, or what is equivalent under our statute dispensing with a replication.</p>

<p>Partnership Account — Delinquent paetner — Interest.—Under a general reference to take a partnership account, upon the basis of a partial settlement made between the partners on a given day after dissolution, and a promise by the delinquent partner to pay the balance with which he was chargeable in a reasonable time, the master properly charged the delinquent partner with interest from that date on sums shown to have been previously collected, although the decree of reference was silent as to interest; but a. like charge of interest was disallowed on sums not in fact collected, and for which the delinquent partner had agreed to become responsible in the event of failure to collect from the debtors.</p>

<p>INJUNCTION OF SALE UNDER MORTGAGE TO SECURE BORROWED MONEY. — III view of the act of 1873, 10, to entitle a party to enjoin the sale of property under a mortgage to secure borrowed- money, all the material facts upon which the application is based should be verified by the oath of a person having knowledge of them; and, therefore, the ordinary oath of the next friend of a married woman is insufficient, where the facts relied on are such as appear to rest in her knowledge, and are not shown to be in his knowledge.</p>

<p>Bankrupt — Judgment between petition and discharge. — A judgment ia only a security of a higher nature for the same debt, and does not extinguish the debt; and, therefore, a bankrupt, against-whom a judgment has beem recovered in the period between his application to be declared a bankrupt. and his final discharge, is entitled to come into this court to have the benefit. of the discharge as against the judgment.</p>

<p>Injunction to stay legal proceedings. — An injunction to stay proceedings-in a suit at law upon a note ought not to be granted at the instance of the defendant iñ the suit, unless after judgment or upon the terms of permitting judgment to go at law, where the bill seeks no discovery or particular relief to aid the legal defence, and shows no defence to the demand sued on other than that upon which the litigation is sought to be transferred into this court.</p>

<p>Discovery — Defendant may defend himself from by answer. — A defendant who answers is, in this state, entitled to protect himself from a discovery,. whenever he might have protected himself by demurrer or plea, by relying upon the matters of demurrer, or incorporating the matters of a plea in his answer, the answer in the latter case having all the requisites of a plea.</p> <p>Discovery where plaintiff’s right of suit is denied. — Where the objection to discovery is founded upon a denial of the complainant’s right of suit, the defendant is entitled by answer to protect himself from the discovery consequential to the relief sought, but not from the discovery which will aid the complainant in obtaining that relief.</p> <p>Discovery upon charge oe fraud. — A. general charge of fraud in a bill, if fully and unequivocally met by a denial in the answer, will not be a sufficient basis for a searching enquiry into, or a detailed disclosure of, matters of account.</p> <p>Discovery upon a decree for relief. — If the complainant show himself entitled to relief at the hearing, he may have an order to examine the defendant before the master as to the matters in relation to which discovery was sought by the bill, and successfully resisted because consequential to the relief.</p>

<p>REMOVAL OB' CAUSES FROM THE STATE TO THE UNITED STATES COURT. — To entitle any one or more of the defendants to remove a cause from this court to the United States court, under the act of 3d of March, 1875, all of the material defendants must have the necessary citizenship.</p> <p>Case in judgment. — Thus, where citizens of this state, holding policies of life-insurance in a foreign corporation, filed their bill in this court against that corporation and other foreign corporations for relief, and to subject to the satisfaction of their claims the property of that corporation, and, among other property, certain state bonds deposited by it with the treasurer of the state “ as security for risks taken by citizens of this state,” and, for this purpose, made the treasurer, a citizen of this state, a party defendant, it was held that the treasurer was a material party defendant, and the court refused, upon the application of the foreign corporations to remove the cause, to-accept the petition and bond of the applicants, and to authorize the removal.</p>

<p>Advancement — “What will constitute. — To constitute an advancement, there must he an intention on the part of the parent to make an advancement, and the gift must he to the child, or to a third person with the consent of the child.</p> <p>Advancement — Money paid as surety. — Money paid hy the father as surety-of his son-in-law is not chargeable to the daughter as an advancement.</p> <p>Advancement — Q-iet or land to a son-in-law. — The mere fact that a father . has conveyed land to his son-in-law for a nominal consideration will not, without more, he sufficient to charge the daughter, or, if she he dead, her son, with the value of the land as an advancement.</p>

<p>Married -woman — Separate estate — Mortgage to secure money uoaned to husband. — Under our decisions, a married woman who has a separate estate in land, “ with full power to dispose of it in her life-time by sale, or by last will and testament,” cannot validly mortgage it to secure money loaned -to her husband; and the law has not been changed by the act of 1870, 99 (T. & S. Rev. g 2486, a, et seq.), which gives married women, upon privy examination, the power “to sell, convey, devise, charge, or mortgage” their separate realty, as femes sole, “provided the power is not expressly withheld in the deed or will under which they hold the property.”</p>

<p>'Vendor's Linar — Defect of title — Personae decree. — A defect of title to land sold is no defence to a Ijill to enforce the vendor’s lien for unpaid purchase money, though it is to a personal decree against the vendee; and, therefore, a rescission of the contract because of the defect of title is matter for an original and not a cross-bill.</p> <p>.Xand — Description necessary to identify — Statute of limitations.— The vendor of land, and those under whom he claimed, had been in possession for many years, and long enough to extinguish adverse titles by the statute of limitations, under deeds describing the land thus: “Part of lot 'No. 24 in the college plan of lots, fronting thirty feet on Cherry street, and ^running back towards College street 180 feet, and being the same lot con-voyed to me by,” etc., by deed of record, etc. Held, that the description was sufficient to identify the land so as to create the bar of the statute, although lot No. 24 was shown to be much larger than the land described.</p>

<p>Sale or land -with condition, on default or payment, that the contract be one or rental. — Where a sale of land was evidenced by an ordinary bond for title, with a condition that, if the vendee makes default of payment of any of his notes, the agreement may be considered a contract of rental at will at a fixed rent, and by a written obligation of the vendee to perform the contract, and on failure to pay any of his notes at maturity, to deliver possession of the land to the vendor upon demand, the condition is introduced only for the benefit of the vendor, and is subject to his election.</p> <p>Election between heir and next or ion. — If the heir upon whom descends the realty of an intestate, and the next of kin who takes the personalty, are different persons and have adverse interests, there can be no election, but the parties must take according to the character of the estate at the death of the intestate impressed upon it ,by his act, whatever may be its actual form.</p>

<p>Bill to eetey a cause will not lie. — If a party has once had his day in a. court of equity, either by personal service of process or what the law prescribes as equivalent, an original bill by him in the .same court will not lie to’ retry the cause, however erroneous or inequitable the decree may be.</p> <p>Joint bill by two paeties not sustainable as to one. — A joint bill by two> parties to set aside a decree'for fraud, the fraud consisting of want of notice, cannot be sustained if either did in fact have notice, or waived the "want o£ notice by appearance. . ,</p> <p>Bill op beview poe new evidence. — A bill of review for newly-discovered evidence is clearly bad which is not sworn to by either of the complainants, ' which does not contain the necessary allegations of diligence and want of knowledge, nor particularize a single fact as newly discovered which could have affected the decree.</p> <p>Bill op beview poe eeeoe appaeent. — If the court has declared the law eorrectly upon the pleadings and decree, and in conformity with the forms', and practice of the court, a bill of review for error apparent will not lie, however erroneous the decision may be upon the evidence, or upon evidence that might have been adduced, and although there may be irregularities in the course of the proceedings; nor can any errors be relied on which are not specifically pointed out.</p> <p>JoiNDEE OP BILL POE PEAUD AND BILL OP BEVIEW — Quasee.—"Whether am original bill for fraud and a bill of review can be joined together.</p>

<p>Bilí, of review — Proceedings in review. — A bill of review for error apparent is in the nature of a writ of error, and, upon opening the enrolment, the parties proceed as at a rehearing on a writ of error; and, if the review be for new matter, the original cause and the bill are heard together.</p> <p>Bill of review for error apparent — Discharge in bankruptcy. — After a decree has been set aside for error apparent, by the defendant, he may upon proper proceeding, rely, as a defence to a personal decree against him, upon a discharge in bankruptcy obtained after the filing of his answer in the original cause and before the rendition of the decree reviewed, but such discharge will not affect any lien on property acquired by the complainant.</p> <p>Pleading new matter arisen after bill filed. — New matter arising between the filing of the bill and defence made may be pleaded in analogy to the rule at law, but the remedy when such matter occurs after issue is by supplemental bill, or cross-bill.</p>

<p>Practice — Power or chancellor at chambers — Notice.—Under the Code, g 4451, a Chancellor at chambers has the authority to prescribe what shall be reasonable notice in a particular case to be given to the opposite party on a motion to dissolve an injunction.</p> <p>'Champerty — Original bill for discovery. — Under the Code, § 1784, an original bill for the discovery of champerty in a pending suit will not lie where the oath to the defendant’s answer is expressly waived.</p> <p>■Champerty is only a defence to a pending shit. — Champerty is only a defence in abatement of a pending suit, and the defence is lost as soon as the • suit progresses to a judgment or decree.</p>

<p>Parol evidence to change the mode of payment of a note. — Equity may-entertain a bill to rectify a written instrument drafted, by accident, mistake, or fraud, otherwise than according to the agreement of the parties; but, if a. person deliberately execute a particular instrument, such as a promissory-note, intending it to be what it is in reality, parol testimony is inadmissible, either at law or in equity, to change its terms or alter its legal effect.</p> <p>Misrepresentations op matters op opinion or inducement. — Egregious falsehood in matters of opinion, in which by the exercise of ordinary diligence the other party may form his own judgment, or in matters of inducement, which, while they might constitute a motive for entering into the contract, formed no part of the consideration, such as the advantages of the. locality in which a business is conducted, will not vitiate a contract.</p> <p>Misrepresentations oe title, quality, or quantity. — Misrepresentations fraudulently made as to the title, quality, or quantity of personal articles sold would be a ground for relief, ordinarily, at law, but where the vendor is insolvent and holds the negotiable notes of the purchaser, in equity also, through its injunctive process to prevent a multiplicity of suits.</p> <p>Injunction — "When it is the process which gives jurisdiction. — The injunction which is granted in such cases, especially if sued out under the pauper’s oath, should be rigidly limited to the ultimate protection of the complainant, without impairing the legal rights of the defendant, and ought; therefore, to be restricted to the prohibiting of the defendant from assigning the notes, or any judgment acquired thereon, and from selling under execution without giving a refunding bond.</p>

<p>Insurance company — Contract ultra viRRS. — An agreement by which one life insurance company transfers to another life insurance company all of its assets, of whatsoever name and nature, in consideration of the latter com-, pany undertaking to reinsure all the risks, and to assume and pay all the debts and liabilities of the former company, is ultra vires and void, although the vendor company may be authorized by its charter to reinsure its risks.</p> <p>Same — Failure to use franchise — Insolvency.—If the result of such a transaction is to induce the vendor company to cease to use its franchises, and to produce practical insolvency, the policy-holders and creditors of the corporation in this state may, under our laws, without first obtaining a judgment at law, attach the property of the corporation by a bill in chan-eery, and subject the same to the satisfaction of their debts, the rights of the policy-holders becoming fixed as of the date of the transaction, upon the ground of a determination of the contract by the company.</p> <p>Same — Extent of recovery by policy-holder. — Bach policy-holder — upon a determination of the contract by the insolvency of the company, or its voluntary cesser of the use of its franchises — whose policy is' in full force, either for the original or a commuted sum, is entitled to recover the equitable value of his policy — that is, the difference between the cost of a new policy and the present value of the premiums yet to be paid on the policy at the date of the breach, subject to a deduction from the sum thus found of any unpaid premium note of the assured, with interest. If the policy be only running out an extension under the temporary insurance clause, the equitable value would be the cost of a similar policy for a person of the age of the policy-holder at that day for the length of time the policy had to run.</p> <p>Premiums paid to the conveyee company. — A policy-holder in the vendor company who, after the attempted transfer, has paid premiums to the con-veyee company, without the issuance to him by the latter company of a new policy, and his acceptance thereof with full knowledge of the facts, is entitled to recover from said latter company the premiums thus paid, with interest.</p> <p>Loan note — Forfeiture for non-payment of interest in advance.— Where part of the premium is loaned to the insured upon his note at one year, the interest being paid in advance, and the policy expressly provides that, if the insured fail to pay annually in advance the interest on any unpaid note or loans, the policy shall cease and determine, the interest becomes practically a premium pa3'able annually in advance; and the policy lapses as • in other cases if the premiums be not promptly paid. But the company would be bound to apply the dividend to which the policy-holder might be then entitled in such a manner as to save the forfeiture — that is, first to the payment of the interest.</p> <p>Published rule — Temporary extension. — If an insurance company publicly advertise that it has made its annual life policies, “nowin force or hereafter to be issued,” non-forfeiting, by extending the full amount of the insurance over a definite period of time, to be ascertained in a particular mode, policy-holders may claim the benefit of the extension without any clause in the policy to that effect.</p>

<p>Mortgage of goods to include additions to stock and reserving power, of sale. — A mortgage, made to secure debts maturing at a future day, which conveys a stock of goods in. a particular store, and any other goods which may from time to time, during the existence of the mortgage, be purchased by the grantors and put into said store to replace any part of said stock which may have been disposed of, or to increase and enlarge the stock new on hand, is void per se.</p>

<p>.EDUCATIONAL CHARITY — CONSTRUCTION OP HERD — EVIDENCE ALIUNDE. — In the case of an educational charity, if the terms of the deed he clear, no evidence aliunde is admissible, and evidence is only admissible in any ease to enable the court to construe the terms of the deed.</p> <p>Cash in judgment. — In 1851 land was given to a municipal corporation, “in trust, to and for the use of a free public school for South Nashville forever.” Held, that these terms were clear and unambiguous, having precisely the same meaning now as in 1851, and that extrinsic evidence was inadmissible to show that the gift was intended to be limited to a class; for example, to white children to the exclusion of colored children.</p>

<p>Husband and wui-Post-nuptial conveyance by husband to -wife. — Im order to render advances of the wife’s property to the husband a consideration for a subsequent conveyance of the husband’s property to the wife, it is. essential that a connection should he shown between the previous advances' and the subsequent deed by an agreement enforceable in this court, and mere' parol promises, not based upon a consideration passing at the time, would be-wholly insufficient.</p>

<p>Married Woman- — Separate estate — Judgment.—A judgment against a. married woman will not bind her separate estate unless the claim or debt on which it is based would have been a charge on the estate if the judgment, had not been rendered.</p>

<p>■'Specific performance of continuous dtjtx. — A court of chancery will not enforce the specific performance of continuous duties which involve personal labor and care; as, for example, the running of the cars of a street railroad along a particular street daily, “at such regular intervals as maybe right and proper,” whether the obligation of the railroad company be rested on contract or the provisions of its charter.</p> <p>■Corporation — Enforcement of charter duties. — The remedy for the enforcement of a duty imposed upon a corporation by its charter is by mandamus, or by proceedings in the name of the state for a forfeiture of the •charter.</p>

<p>Impertinence in pleading — Waiver.—A bill cannot be referred for impertinence after answer, nor even after submitting to answer as by praying time; and, therefore, a motion to take exhibits to a bill from the file for imperti-noncy, made more than four years after the filing of the bill, is entirely too late.</p> <p>Impertinence in evidence — Time op making objections. — Objections to evidence on the ground of impertinence can only be made at the hearing of the cause.</p>

<p>Practice — Motion to remand — Unnecessary party. — An officer in whose-hands is a writ the execution of which is sought to be enjoined, is not a necessary party to the suit, and the complainant cannot be allowed to treat him as a party for the mere purpose of delay, and cannot, therefore, have the cause remanded to the rules because the bill has not been taken for-confessed against him.</p>

<p>1 Corporation — Suit by stockholders against the officers — Prerequisites. — A bill cannot be maintained by the stockholders of a corporation against its officers for conduct prejudicial to the corporation, to which the corporation is not made a party, and in which no reason is given why the relief sought might not be had through the machinery of the corporation, or in its name.</p> <p>Injunction — Concealment of facts — Dissolution.—If, on a motion to dissolve an ex •parte injunction, it appear that the plaintiff has misstated the case, either by the misrepresentation or suppression of material facts, the injunction will be dissolved on that ground alone.</p>