Volume 3 — Tennessee Chancery Reports

<p>INJUNCTION OP MORTGAGE OR TRUST SALE UNDER 1873, 10 — PRACTICE.— Under 1873,10, which forbids the granting of an injunction to stay the sale of real estate in foreclosure of a mortgage or trust deed, unless twenty days’ notice of the application be given, a preliminary order to postpone the sale for the twenty days may be granted upon bill filed; but the mortgage creditor may bring the application to a hearing within the twenty days, if he sees proper.</p> <p>Same — Grounds op application. — It is no ground for an injunction to stay a mortgage sale that the complainant alleges that he has made payments on the mortgage debt, and has an account against the holders thereof which is unliquidated, and that the holder is claiming ten per cent interest, when complainant is advised he is only entitled to six per cent, without stating facts from which the judge can see that the allegations are well founded, and can determine the amount of credit with reasonable certainty.</p> <p>Trustee — Qualification under the code, sec. 1974. — A trust sale ought not to be enjoined if, before the hearing, but after the filing of the bill, the trustee has qualified under the Code, sec. 1974.</p> <p>Same — Question reserved. — Qucsre, whether the provisions of the Code,, sec. 1974, apply to a trustee or mortgagee under a deed made to secure money loaned at the time.,</p>

<p>Lost records — Application to supply. — The affidavit of the solicitor of the complainant, and of a deputy clerk of the court, of the loss of papers constituting the record of a cause, are not sufficient to sustain an application to supply such papers.</p> <p>Same. — Suggestions made as to the preliminary proof to sustain an application to supply lost records, and the mode of proceeding in such cases.</p>

<p>Attachment bills — Execution on nestal decree. — The complainant who obtains a final decree upon an attachment of property, without personal service of process, is entitled to execute the same at the expiration of the stay which may he ordered by the court under the Code, secs. 3527, 3528, and the court is not authorized to impose other terms in such cases.</p>

<p>Pledge oe goods need not be registered. —"Where the owners of a stock of drugs bought at a chancery sale, by instrument of writing agreed, in order to indemnify their sureties in the purchase note, and in consideration of the payment, by such sureties, of the rent of the premises in which the stock was being retailed, that a person named should, as the receiver of the j sureties, take and hold possession of drugs, furniture, and fixtures, keep the books, superintend the business, receive the money, and pay at the end of each week, to one of the sureties, all the moneys received, until they are indemnified, and possession was taken accordingly, it was held that the transaction was a pledge, not a mortgage, and required no registration to render the agreement valid as to the creditors of the pledgeors.</p> <p>Equality is equity. — Where the several claimants of a fund in this court are without any lien on the property in controversy, and the circumstances are such as to deprive their respective debtors of any priority of rights as between themselves, the rule that equality is equity will prevail, and the fund will be divided pro rata.</p>

<p>Judgment taken in violation oe injunction will be peepetually enjoined on petition. — “Where, pending an appeal by an administrator from the judgment of a justice on scire facias to revive a judgment against the intestate, the administrator filed his bill in this court for the administration of the estate, and obtained an injunction enjoining the appellee from further prosecuting his suit against the administrator, which was duly served, but tbe appellee proceeded to have the justice’s judgment affirmed, the judgment was perpetually enjoined on petition.</p> <p>Injunction— Common and special. — The common injunction, which formerly issued as of course upon the failure of the defendant to answer, no longer exists in this state, every injunction being special.</p> <p>Same — Release of errors. — -The suing out of an injunction is, under the Code, sec. 3107, only a release of errors in the legal proceedings which might be taken advantage of in an appellate court, but does not affect the remedy of the party, if he have any, in equity.</p> <p>Appeal bond — -Judgment of eeviyor — Surety. — An administrator is entitled to appeal from a judgment against him upon a bond for costs, and a bond given in such case, which is conditioned for the payment of the debt, is to that extent not binding on the surety, and a judgment thereon erroneous as to him.</p>

<p>Dower not allowable in remainder or reversion where the husband dies bending libe estate. — 'Where the husband, during coverture, conveyed land to a trustee, for the sole and separate use of a feme for her life, and at her death “ to revert ” to the grantor and his heirs, and died pending the life estate, the widow is not entitled to dower in the remainder or reversion.</p> <p>Dower — Conveyance by husband in eraud oe rights. — An allegation, in a petition for dower, that a particular conveyance of land was made by the husband in fraud of the petitioner’s rights is insufficient, unless accompanied by a statement of facts which sustains it. .</p> <p>Dower — .Limitation oe action — Heirs. — Qucere, whether the bar of the statute of limitations would run in favor of the heirs of the husband against the widow’s right to dower, where the heirs take a remainder after a trust in favor of another for life, upon a provision that, at the death of the tenant for life, the land revert to the grantor and his heirs.</p>

<p>Husbahd and tob — Bilí, by both dismissed 'without prejudice to bights oe "wive. —A bill by husband and wife for the specific performance of a contract, in consideration of a release by both of a claim on land, will he dismissed unless the release, defective for want of a proper certificate of probate as to the wife, is made effectual as to both; but, the bill being in legal effect the bill of the husband, without prejudice to the rights of the wife.</p>

<p>Vendor and vendee —Conventional interest — Contract. — The complainant, haying mortgaged certain realty, with power of sale for cash, free from redemption, to secure his note for borrowed money, payable two years after date, with interest at the rate of ten per cent per annum from date, reciting that “said interest” was “evidenced” by four notes, at intervals of six months, with like interest, after the payment of the first of these interest notes, sold the realty t& the defendant’s testator, in consideration of his assuming and paying the debt evidenced by the mortgage note, then paid the mortgage debt, and filed this bill to sell the land. Heidi that the vendee only bound himself to pay the principal of the mortgage note, and that the note carried legal interest after maturity. Held, also, that the payment of the mortgage debt by the complainant extinguished the mortgage, leaving in him only the vendor’s equity which he was entitled to enforce.</p> <p>Note. — The conclusion announced in the last paragraph of the foregoing opinion, upon the effect of a general stipulation for interest at a higher rate than the usual legal rate, was in accord with the rulings of the Court of Arbitration at Nashville, a court appointed hy the Legislature, of which the chief justice of the state was a member, to dispose of cases in the Supreme Court, submitted to it by consent of parties. The question afterwards came before the Supreme Court at Jackson, and was decided otherwise, the opinion being delivered hy Sneed, J., and the authorities carefully reviewed. Overton v. Bolton, 9 Heisk. 762. The .exact point ruled was that a note for money, payable at a future day, with interest from date, at a conventional rate above the legal rate, will hear the rate agreed upon after maturity as well as before. In the present case, the language of the note seems expressly to limit the conventional rate of interest to the period before maturity, hy saying, “ said interest ” * * * evidenced by,” etc.</p>

<p>Receiver — Possession or propekty. — A receiver will not be appointed where the person in possession is no party to the suit, or claims under the party who moves for the appointment.</p>

<p>NEGOTIABLE PAPER TAKEN BEFORE MATURITY — RIGHTS OF HOLDER. — The holder of negotiable paper by indorsement before maturity, in consideration of new credit then given, takes it free from all equitable defences between the original parties, and a payment made by the maker to the payee afterwards will be no defence to a suit by such holder.</p> <p>Note. —Affirmed on appeal.</p>

<p>Executor — Power to contract nor repairs or realty. — An executor, under a will which gives him no power in relation to lands devised to the testator’s widow and children, can make no contract for the repair of a building on the land which will bind the estate or the infant devisees.</p> <p>Same — Limitation oe actions. — If the executor makes a contract for the repair of realty devised, with the knowledge and acquiesence of an adult devisee, an action against the devisee will be barred in six years from the completion of the work; and this, though the mechanic may have received from the executor, as collateral security, notes on third persons, the litigation on which had only recently terminated, the evidence showing that such notes fell due more than six years before suit brought, and that the mechanic agreed to 'wait for payment until these notes fell due, and no longer.</p>

<p>Deed — Delivery—Registration. — Delivery of a deed is essential to its validity, though, it need not he formal or manual, if the intention to deliver and accept be made to appear; but registration alone is not sufficient.</p> <p>Tax title acquired by mortgagee. — A mortgagee of realty, even if the conveyance contain provisions which render it void as to other creditors of the grantor, cannot, by purchasing the property at a tax sale, acquire any title inconsistent with that held under his deed.</p>

<p>Attachment where debtor and creditor are non-residents. — The-act of January 25, 1871, eh. 122, which limits the right to an attachment, where both the debtor and creditor are non-residents of the state, to property fraudulently removed to this state to evade the process of law in the-state of domicile or residence, does not apply to an attachment granteck under the Code, sec. 4289.</p>

<p>ÜQTIITY DEFECTIVELY STATED SUFFICIENT ON MOTION TO DISMISS. — A till stating that the complainant’s name appears on a justice’s docket as stayor of a judgment rendered eight years ago; that he was not in fact stayor; and when he first learned that it was on the docket he caused the question to be tested before the justice, who, upon full investigation, decided that he was not bound, and complainant supposed the matter settled; but that the defendant recently, claiming to be the owner of the judgment, has caused execution to issue and to be levied on complainant’s land, and the papers to be returned to court, and the land condemned, — contains equity, although defectively stated, and a motion to dismiss for want of equity will not lie.</p>

<p>INJUNCTION — Motion to dissolve upon answdk. — Upon a motion to dissolve an injunction on the coming in of the answer, the rule is that every allegation positively sworn to in the bill, which is neither admitted nor denied, nor, if denied, denied on the defendant’s own knowledge, will be taken as true.</p>

<p>JURISDICTION DEPENDENT UPON MATERIAL DEPENDANTS POUND IN THE: county. —Upon till filed in this court by a wife against her husband and; the personal representatives and devisees of the husband’s father, to set. aside a sale of land lying in another county, by the husband and wife, to the husband’s father, or, if this cannot be done, to charge the father’s estate with the purchase-money, and have the same declared a lien on the land, the fact that the husband resides in this county and the further fact that process was served upon the father’s personal representative in this county, are sufficient to give this court jurisdiction, although the father’s representative and devisees live in the other county.</p>

<p>Tax sales under 1873, 118 — Mode of sellins mandatory. — Under the act of 1873,118, 65, each lot or parcel of land sold for taxes must he offered publicly to that bidder who will pay the taxes for the least quantity of the land, “to he run off from the beginning corner, and running with at least one line of the tract; ” and if the certificate of sale, which the statute requires the collector to make to the Circuit Court, to he entered of record and form the basis of a judgment and writs of possession, shows upon its face that the sale was not made in this mode, the sale is void.</p> <p>Same — Day of sale. — The sale is also void'if the certificate fail to show on what day the particular sale was made.</p> <p>Same — “Writ of possession. — The act contemplates the suing out of a writ of possession within the year, and a writ subsequently issued is void.</p> <p>Same — Relief. — The complainant, having come into equity, must, upon being restored to the property, reimburse the defendant the taxes, costs, and penalties paid at the sale or subsequently, with six per cent interest, and pay all of the costs of the cause.</p> <p>Note. — The Legislature, hy the subsequent act of 1875, 80, 1, forbid the issuance of the writ of possession for two years from the sale, — a change in. the law by no means for the better. At the April term; 1878, at Jackson, in The Sank of Kentucky v. Gay, 1 Memph. L. J. 811, the Supreme Court reached the conclusions embodied in the first and last of the head-notes to this-case.</p>

<p>Sunday — Common avocation — Executed contract. — Where a contract on Sunday is executed, each party is in pari delicto, and no relief can be granted because it was made by one of them in the exercise of his common avocation.</p> <p>Contract — Receipt oe money under protest. — A protest against the character of money received, where the contract is voluntarily made, amounts to nothing.</p> <p>Contract — Executed without being read. — The mere fact that a party did not read the contract signed by him is not a sufficient ground for coming into equity to be relieved from its obligations.</p>

<p>Invotctioit — Motion to dissolve. — Upon a motion to dissolve an injunction, the allegations of the bill not met by the answer are to be taken as. true, and the injunction will be retained if the equity of the bill be not. fully answered.</p>

<p>StJBROGATION BY CONTRACT — DEFICIENCY OP ASSETS — PRO RATA DIVISION. —Land, having been sold by decree of this court on time, and the purchaser being unable to meet his first note promptly, the parties agreed of record that a third person might, upon payment of said first note, be substituted to the rights of those for whom the said land had been sold, “to the extent that he shall have their lien pro tanto upon the said land for the-money thus paid by him.” Held, upon a deficiency of assets to pay all the notes, that the person thus advancing his money was entitled to share in the proceeds of the land, in the proportion of the note so paid to the: amount of all the notes.</p>

<p>Chancery jurisdiction to set aside satisfaction of a judsment — Effect. — Equity lias jurisdiction to set aside the satisfaction of a judgment where the satisfaction was had by the sale of land thereunder, and the sale was afterwards judicially declared to be void because the sheriff sold the property, and other realty also levied on, in block; the effect of which, under the statute, will be to revive the judgment, not the levy of the execution on which the void sale was made.</p> <p>Estoppel in pais — What is not. — Mere knowledge by the owner of land that the purchaser at a void execution sale has sold to a third person, and silence, without any declaration or act, with knowledge of his rights, intended to influence, and actually influencing, the conduct of the other parties, will not estop the owner to assert his rights.</p> <p>Lis pendens — Bill to set aside satisfaction of judgment and sell land. — The pendency of the bill of a creditor to set aside the satisfaction of his judgment by a sale of land, and to subject the same land by the decree, 'will give the complainant a lien superior .to that of a subsequent judgment creditor of the common debtor, although the land may have been previously sold and conveyed under the execution of a third creditor.</p>

<p>Master’s report should hollow order. — It is the duty of the master to make his report conform to the directions of the decree, and an exception based upon his failure so to do is well taken.</p> <p>Executors — Liability eor each other’s acts — Trusts. —As a general rule, all the executors are held liable for the execution of directory trusts, while each is liable only for his own exercise of discretion .where the trusts are discretionary; but, even in the latter class of trusts, an executor who permits another to retain funds for a long time, without seeing to their proper investment, may be held liable for a loss.</p> <p>Executor — Compensation—Order oh reference.— Where the parties have agreed to an order of reference to take an administration account, in which the master is directed to allow the executors reasonable compensation, they are estopped to dispute the right to compensation.</p>

<p>Mortgage to secure acceptances within a given period wild cover renewals BEYOND that period. — A mortgage recited that the mortgagees had agreed, for the accommodation of the mortgageors, to accept a certain draft, “and any renewal or renewals of the same, if necessary;” and that the mortgagees had also agreed to accept, for the like accommodation of the mortgageors, any other drafts drawn by said firm on them, to a given amount, either as renewals or originals, “within a period of one ye^r from the date hereof;” and that the conveyance was intended to secure and indemnify the mortgagees upon any acceptances, renewals or originals, made for the mortgageors “ as aforesaid.” Held, that the mort- • gage covered all liabilities by acceptances within the year prescribed, although renewed afterwards.</p>

<p>Construction or contract between insurance company and its agents. — The complainants became the agents of the defendant in certain states, under a contract in writing, by which their compensation was fixed at a given per cent on first premiums and a different rate per cent on renewals, the contract to remain in force for three years, unless sooner terminated by mutual agreement, in which event the renewal interest was to continue “ as long after termination as the same shall remain in force;” the contract was terminated by mutual consent at the end of eight months, and it was agreed that it should be referred to an actuary to make a valuation of the business on the basis of the contract, and the complainants were to sell and the defendant to buy “ said rights and interests ” at such valuation. The actuary made his estimate for the eight months ensuing the termination of the contract. Held, correct.</p>

<p>Benevolent associations — Secession on members — Eights oe property. — Where two benevolent societies, one of males and the other of females, having separate organizations but the same objects, united in purchasing a cemetery, each society contributing a moiety of the purchase-money, and for a time mutually participating in the use and profit of the property, although the title -was taken to the officers of one of them, a subsequent going over of a majority of the members of the other society to that one will not deprive such other society of its rights of property resulting from the payment of half the price, and the same will be declared and enforced by decree of this court.</p>

<p>BENEFIT FUM'D OF DECEASED MEMBERS OF KNIGHTS OF HONOR PASSES BT will. — The testator was a member of an incorporated order known as the Knights of Honor, whose charter and constitution declared its object to be “to establish a benefit fund, from which a sum, not to exceed $2,000, shall be paid, at the death of each member, to his family, or to be disposed of as he may direct,” and whose certificate to each beneficiary member provided “that, in accordance with and under the provisions of the laws governing the order, the sum of $2,000 shall be paid” * * * “ as a benefit, upon due notice of his death, to such person or persons as he may by will, or entry in record-book of this lodge, or on the face of this, certificate, direct.” Held, that testator’s share of this fund passed under the residuary clause of his will, disposing of “ the balance of all my property of every kind.”</p>

<p>Specific execution of contract for the sale of land. — Time is not usually deemed in equity to be of the essence of a contract for the sale of land, and if the vendee has been in possession and a title can be made, and there are reciprocal covenants and mutual forbearance, it is of course to execute thó contract at the instance of either party, although the deed: and notes were, by the contract, to have been executed “in a short time,” the delay being explained.</p> <p>Rescission — Sale of land and personalty toqether. — A contract for the sale of an undivided interest in land and the furniture of a hotel thereon, at a lumping price, on time, the deed and notes to be executed “in a short time,” will not be rescinded as to the land, at the instance of the representatives of the vendee, when it appears that the vendee went into possession at once, and formed and carried on for several years a partnership with the vendors and other co-owners of the property in “ conducting the premises as a watering-place,” the vendors being able to make a good title to the land sold, and the delay in executing the deed and the notes being explained.</p>

<p>■Chancery JURISDICTION apter judgment. — Where the trial of a cause by a justice was continued indefinitely, upon the application of the complainant, then the defendant, to find l'eceipts, and he was afterwards notified by the justice that judgment would be entered, and he sent a receipt, which was allowed, it was held that complainant had no status in equity to interfere with the judgment.</p> <p>Evidence must be confined to the issue. — The court cannot notice matter, however clearly proved, of which there is no allegation in the pleading, nor any issue justifying its introduction; so held, where the bill did not impeach the validity of a judgment, but only sought a retrial, and the evidence tended to show that the judgment was void.</p> <p>Justice’s judgment — Antedating.—A justice’s judgment, rendered, after a continuance for an indefinite period at the instance of the defendant, upon notice to the defendant of the day when it would be rendered, is not void merely because antedated as of the day first set for the trial.</p> <p>Mistake in an answer corrected by the record. — The defendant will not be prejudiced by a mistake made in his answer as to the date of his judgment, which is corrected by the record of the judgment itself.</p>

<p>Trust-deed— Construction — Mortgage. — Under a deed'conveying land to a trustee in trust for the joint use of husband and wife during their lives, and for the separate use for life of the survivor, and after the death of both the. “remainder” to be equally divided between the children of the husband and wife, and with powers in the trustee, the husband and wife or the survivor concurring, “to sell, exchange, or otherwise dispose: of” the property, the means to be used, as far as they may go, for the support of the husband, wife, and children, and at their death, “ if any thing-is then left,” to be divided between the children, a mortgage by the-trustee, with the concurrence of the husband and wife, foreclosed by decree of sale against them, and acquiesced in by them, was held good upon a bill-by the children, alleging that the debt secured by the mortgage was the-debt of a third person, and not contracted for the support of the husband, and wife.</p>

<p>Chancery practice — Setting aside a decree by default.— Under a statute which, authorizes the defendant in a suit by attachment, sued out against him because he resides out of the state, to set aside the decree by default upon his application, “and good cause shown,” within twelve months thereafter, the “good cause” must, it seems, go to the merits; and, at any rate, if the matter relied on be in abatement, it must be distinctly and unequivocally stated, and negative the ground of attachment.</p> <p>Note. — This decision was, upon appeal, affirmed. 2 Leg. Rep. 108.</p>

<p>Amehbment oe becree at A SUBSEQUENT term. — A decree for money cannot be amended at a term subsequent to its rendition, by the addition that it shall hear interest at the rate agreed by the parties in the original contract, which was higher than the legal rate of interest on judgments, where there is nothing apparent in the record, papers, or entries to show that the court had so adjudged when the decree was rendered. •</p>

<p>Plea of former suit pending and issue taken. — TJpon issue taken, on a plea of former suit pending, the plea is a good defence so far as the two suits may be found to be for the same matters and the same object, but the dismissal of the bill to that extent will be without prejudice, and with leave, if the former suit should be discontinued before decree, to file a supplemental bill to bring the fact before the court, and for the same relief.</p> <p>Plea of former suit pending —Sufficiency. — Semble, the plea of former suit pending in another Chancery Court of this state, where the complainants are not the same in both suits, would not be sufficient without showing that the former suit had proceeded to a decree.</p>

<p>.Replication to pljja op pormer suit depending. — Under our practice, the complainant may join issue on the plea of former suit pending, and, whether a formal replication is required or not, a general replication, if filed, can do no harm, and a motion to take it from the files will be disallowed.</p>

<p>Plea — Must state pacts — And ip AiroMADous, must be accompanied with an answer..— A plea in equity must state facts, not conclusions; and, if it rely on. matter in tlie bill, must, in addition to the averment of such matter, negative the material facts stated in avoidance, and be accompanied by an answer giving the discovery to which the complainant may be entitled in regard to those material facts.</p>

<p>Amended and supplemental bill — "When it poems part op orisinal record. — An amended and supplemental bill which merely introduces supplemental matter and new parties to sustain the relief sought by the original bill, incorporates itself with such bill, and the two form one record; and, therefore, where a bill had been filed by the policy-holders and creditors of a foreign insurance company on the ground of insolvency, under which property was attached, and afterwards two amended and supplemental bills were filed, to all which answers were put in by the defendants, and then a third amended and supplemental bill was added, partly to bring in new policy-holders as complainants, and partly to bring before the court another defendant as an assignee from the other defendants pendente lite, it was held that a demurrer to the last bill would not lie.</p>

<p>Demurrers to several parts or a bill. — A demurrer must be founded on some point of law wtiicb. goes to the entirety of the facts on which particular relief is properly sought, not to separate facts constituting connected parts of a case; and, therefore, where the ground of the bill, as well as the relief sought, is single, separate demurrers to separate paragraphs of the bill are necessarily bad.</p> <p>.’Demurrer to prayer op bill. —A demurrer to a prayer for incidental relief is bad.</p> <p>Demurrer eor misjoinder. — Although the person who is improperly made a defendant may demur for misjoinder, a proper defendant cannot demur for such misjoinder.</p> <p>’Demurrer to discovery. — A demurrer will not lie to the bill, so far as it seeks discovery, because the oath is waived.</p> <p>Demurrer bad eor uncertainty. — A demurrer to all that part of a bill not pleaded or demurred to is bad for uncertainty.</p>

<p>3ÍMPERTINENT MATTER IN AN ANSWER WILL BE STRICKEN OUT ON EXCEPTION.— To a bill for the enforcement of a vendor’s lien on land for the unpaid purchase-money, the defendant answered that complainant did not deliver possession at the time agreed on, and, when he did remove, carried off' articles of value which of right were attached to the freehold and purchased by him, and asked for rent for the detention, and the value of the-articles carried off. Held, that so much of the answer was impertinent, and should have been stricken out on motion.</p>

<p>Bill to declare this forfeiture of a charter of incorporation must be filed by the attorney-general. — The attorney-general, as the representative of the state, is a necessary party to a bill filed in the name of the state, on the relation of third persons, to have the franchises of a corporation declared forfeited for a failure to comply with the provisions of its charter.</p>

<p>Aand contract — Conditions. — A person having subscribed a large amount to the capital stock of a railroad company, entered into a written contract with the company, hy which it was agreed that the subscription might be paid in fifteen acres of land, to he laid off in an oblong square along the road, according to boundaries given, a deed to be made by the subscriber to the railroad company “whenever the land is run oif and its boundaries definitely located,” the contract adding that “ it is understood” the company “are to locate” their depot on the land; after-wards, a plat of the land having been made, a deed was executed by the ■subscriber, and left, with the plat, in the hands of a third person, “not to "be delivered until the depot was located and its erection so substantially ■commenced as would ensure its completion;” no depot was built, and the road has passed into the hands of another company. Held, that the location and building of a depot was not a condition precedent or subsequent, and that the creditors of the company with whom the contract was made could subject the land, as the land of the company, to the satisfaction of their debts, but that the heirs of the subscriber, he having died, were entitled to damages for the failure to locate the depot on the land, to be recompensed out of the proceeds of the land.</p>

<p>School directors — Removal.—A bill cannot be sustained against school directors to remove them from office, and to have their appointee as schoolteacher removed in favor of the relator, where the acts cif the directors of which the relator complained were done by them as individuals, not officially, and where the official acts set out in the bill were in strict conformity with their duty.</p> <p>Same— Qüíere, whether such a bill can be eiled by ah individual. — A bill to remove school directors, who are public officers can perhaps only be filed by the attorney-general as representing the state,</p>

<p>Taxes out land sold on the day on assessment. — “Where land was sold at public auction, for cash, on the day when lands were by law assessed for taxes, both parties being then ready to complete the sale, although no tender was made either of the money or land, but the sale was carried into effect by the payment of the money and conveyance of the land within the next two days, the burden of the taxes must be borne by the vendor and vendee equally.</p>

<p>GUARDIAN bonds — Liability of SURETIES. — The sureties upon the bonds of a guardian, given every two years as required by statute, are all liable to the ward for the guardian’s official delinquencies, even though, as between themselves, their liability be in the inverse order of the execution of the bonds.</p> <p>Joint decree against several, one of whom was then dead. — Although a decree or judgment taken against a person by name, then dead, jointly with others, may be void as to the dead man, it would primú, fads be good as to the other defendants.</p> <p>Bill with inconsistent parts. — A complainant may, in certain cases, frame his bill with a double aspect, but he cannot, with full knowledge of the facts, seek alternative relief on inconsistent grounds.</p> <p>Fraud. — A party cannot be held guilty of fraud by merely taking such a judgment as he was entitled to against a defendant who makes default, nor because the defendant may have been misled by the clerk or the sheriff in some particular.</p>

<p>Paetnership — Effect of dissolution — Eights of paetneks. — Upon the dissolution of a partnership, each partner is entitled to have the business wound up as speedily as possible, the assets applied to the payment of the partnership debts, and the partners equalized as between themselves as of the date of the dissolution, and to'this end to have the dividends as made applied to the debts of the partners. And, therefore, a partner who has drawn out more than he put in is not entitled to receive any thing until his copartners, who have drawn out less than they put in, are reimbursed their excess of advances, with interest.</p>

<p>Practice — Deeewce before service of process. — A defendant may appear gratis and demur to a bill, -without waiting until other defendants are served.</p> <p>Defect of title no defence to enforcement of vendor’s lien, but is to A personal decree. — A defect of title is no defence to a bill to enforce the vendor’s lien on land, and is, consequently, no ground for a cross-bill to rescind the sale; aliter, as to a personal decree for any surplus of purchase-money unsatisfied by a sale of the land.</p> <p>Defect of title — Registered mortgages —Lapse of time. — The mere existence of registered mortgages on land, made by persons under -whom the vendor claims, or by the vendor himself, is not sufficient to show a defect of title, where the lapse of time between the date of registration and the filing of the bill is sufficient to raise the presumption of a reconveyance.</p> <p>Defect of title — Purchaser m possession under an executed contract. — A defect in the vendor’s title is, in the absence of fraud, no-sufficient ground for coming into equity, where the purchaser has not been disturbed in his possession, and no suit has been brought by the rightful owner.</p> <p>Discretionary trust never executed cannot be aided. — Under his-will, the testator authorized his executor named, “if and whenever he may think it advisable for the interest and benefit of my children,” to sell any or all of his real estate, and vest the proceeds, “or such part thereof as he may think right,” in other real estate, for the joint benefit of the testator’s-wife and children, “the part coming to my wife to revert to my children at her death.” JSeld, that the wife took no title to the lands of which the testator died possessed, and that the power was personal and discretionary in< the executor named, and, upon his refusal to qualify, could never be executed.</p>

<p>Executed trust — Partition. — The testator having given his personal' property to his widow, with power to make advancements to his unmarried daughters to the value of the advancements made by him to his married daughters, and having devised his land to his widow for life, and then to his sons, the latter, shortly after the testator’s death, by writing under seal, reciting that they were entitled under the will to a larger share of their father’s estate than their sisters, conveyed to the latter such an interest in the land devised as might be necessary to make all the shares of' the children equal, taking into consideration all prior advancements, and reserving the right to designate that part of the land to be allotted to the-sisters in a body. Held, that the conveyance by the sons was an executed trust, and binding; that the intention was to secure equality among the children in the father’s estate, and the advancements by the father by the will, and by the mother, should be taken into consideration; and that the' shares of the daughters in the land should be set off in a body, as the surviving sons had directed.</p>

<p>Bill oe review eor New matter — Discretion.—The granting of leave to file a hill of review for new matter rests in discretion, and ought not to-be granted to the injury of innocent parties; and, therefore, where a wife had joined her husband in mortgaging her separate property for his debt.s, in which mortgage was included certain choses in action of the husband and in a suit to adjust the equities between the wife and the mortgagee the latter had been charged with these notes, shown to have been collected by him, the court refused to grant leave to the mortgagee to file a bill of review, upon subsequently found receipts of the husband showing that-the proceeds of these notes had been paid by the mortgagee to him.</p> <p>Same — Due diligence. — To sustain an application for leave to file a bill of review for new matter, it must appear that it could not have been produced on the former hearing, by the exercise of reasonable diligence; but it seems that this rule would be complied with by showing that a personal representative, having no knowledge of the facts, had twice examined the books and papers of the deceased, without success, to find evidence on the subject, and afterwards, and after the rendition of the decree, had accidentally fallen upon the evidences in searching among the same papers for another purpose.</p>

<p>Chancery jurisdiction aeter judgment at law. — The court of chancery has no power to supervise the proceedings of the courts of law, and to allow a party to retry a cause because of irregularities in its proceedings, and laches in the assertion of his legal rights will clearly repel him; nor will the negligence, or even fraud, of his own counsel, with which the plaintiff at law is not connected, entitle him to come into equity.</p>

<p>TRehearing— When granted.— A rehearing is, ordinarily, nothing more than hearing over again the case as it was before: and, although admissible for the purpose of introducing new proof, it must be evidence which the party could not, by reasonable diligence, have previously procured, and the application must be sustained by the affidavits of the witnesses relied on.</p>

<p>PaEtueeship account. — Buedkct op peoop. — Under a bill for the settlemenc. of a partnership, and a reference to the master to take the account, made by consent, without adjudication by the court, the burden of proof is on the complainant, and if he cannot furnish sufficient evidence to enable the’ master to state a partnership account, his suit necessarily fails.</p>

<p>Master’s sale — Opening- bikdirgs after coottrmatioit. — After the confirmation of a master’s sale of land, it is not of course to open the bid-dings during the term, on the offer of a higher price alone; hut they will he opened upon the offer hy the owner, whose land has heen sold in foreclosure of a mortgage and bought hy the mortgagee, of an advance of over 300 per cent, and a reasonable excuse for failing to attend the sale.</p> <p>Same. — Under the usual practice of the courts in this state, their orders and decrees being completely in the judge’s control, the ends of justice require that applications to advance the biddings, made at any reasonable time during the term, should he considered as made before confirmation; and this should be so, even under a stricter practice, if a sufficient excuse be given for the delay in making the application until after confirmation.</p> <p>Sam. — To entitle an offer to open the biddings to any attention, it must be accompanied with the money and securities required by the original decree of sale.</p>

<p>■Master’s sale — Opening biddings after a resale. — The record being completely under the control of the court during the term, the biddings at a master’s sale of land may be, on sufficient cause shown, opened again after having been once opened, and the resale confirmed.</p> <p>•Case in judgment. — Thus, where the separate realty of a married woman was sold to satisfy a decree, and the purchaser allowed the married woman, through her next friend, to take the property upon an advance sufficient to pay the decree, with interest and costs, which ended the power of the court in the particular case, a resale at which a third person became the purchaser was set aside after confirmation.</p> <p>Order coram non judice. — The court has no power to make any order in a cause, or give any directions in it for the disposition of funds, not justified by the pleadings; and, therefore, an order in one cause to hold the surplus funds subject to the orders of the court in another cause would be, except by consent of the party entitled, coram non judice, and void.</p>

<p>Married ■woman' — Cannot bind hersble bt title-bond. — A title-bond executed by busband and wife will not sustain, an action against tbe latter, or her heir, at any rate in tbe absence of proof showing its execution by tbe feme under a power given to her in tbe deed under which she held the land.</p>

<p>Amendment oe petition eor writ op error coram: nobis. — A petition for a writ of error coram nobis may be amended on good cause shown, although leave to amend should he guardedly awarded; and, as a precaution, the amendment, if based on information and belief, should be sustained by the affidavits of persons acquainted with the facts.</p>

<p>Rescission- for fraud of one joint contractor. — A rescission by one of four contractors and partners of a joint contract for the purchase of mill property, improving and running the same, cannot he had for the fraud; of one of the contractors, the other two not being implicated, especially after the partnership had been carried on for two years.</p>

<p>Decbee mat be made upon equities reserved. — "Where the decree in a cause, rendered upon the merits, does not sufficiently settle the rights of the parties, and the directions in the reference are, consequently, not definite enough, the court may, upon the equities reserved in the former decree, make the proper decree on the merits, not in conflict with the previous rulings, and the proper reference.</p>

<p>Trust to a son nor his wote and children. —Under a devise of land to a son for his wife and children, with power in the son “to manage, cultivate, and enjoy the same so long as he may live, and appropriate its benefits to the use of his family,” a crop of wheat raised on the land cannot be subjected by execution to the satisfaction of the son’s debts.</p>

<p>Vendor who has retained the title has a right to rents and damages for waste. — A vendor by title-bond is, after a decree ascertaining his demand and enforcing his lien, on the land sold, entitled to reach, for the satisfaction of his debt, rents not reduced to possession by the heirs of the vendee, and the liability of third persons for waste committed after the rendition of his decree.</p>

<p>CHANCERY PRACTICE — SETTING ASIDE A PRO CONPESSO ORDER. — To justify the court in setting aside an order taking a bill for confessed in conformity with the law, there should be an affidavit of the party himself showing active diligence, the affidavit of the solicitor alone being, ordinarily, insufficient, and an answer showing, in unequivocal language, a meritorious defence.</p>

<p>Infant— Election of rights. — The court cannot elect, for an infant, between a right to land and the following of the purchase-money into other-land, without having such a case before it as will enable it to make an. intelligent and effectual election, and a next friend has no power to make-an election by filing a bill in one aspect alone.</p> <p>Conflicting equities on legal title. — Neither a resulting trust, nor an implied trust growing out of the relation of the parties and use of funds, will' be enforced in equity against the holder of the legal title with an equal equity, even in favor of an infant; and a mortgagee for money advanced at. the time may be such holder.</p>

<p>Contract dependent on rebuilding or selling. — Under a contract between two owners of adjacent lots in a city, by which, one, who is about to-rebuild on his lot, undertakes to build a foundation partly on his land and partly on the land of the other, and wait with the latter for repayment for the part on his land until he “ rebuilds his house and uses said one foot of' said foundation, or until he sells the lot,” an action cannot be sustained by the former, or his personal representatives, against the latter, until he-does actually rebuild or sell; and the extension of the frame house then standing on the lot, and which was rested on the foundation-wall when completed, a few feet to the pavement in front, would not be a rebuilding; within the meaning of the contract.</p> <p>Cross-bill bt answer. — An answer filed as a cross-bill, under the statute,, can only be treated as a cross-bill proper, and, being defensive, will go with the original bill; and the court cannot be required to notice original matter set up therein, at any rate if the original matter be a cause of action against the heir, when the original bill is by the personal representative^ of a decedent.</p>

<p>TSlectioN oe eights. — The complainant, who, as assignee of one of the defendants, was the owner of certain notes entitled to the benefit of a mechanic’s lien on realty, in common with the claims of the other defendants, filed this bill to hold the defendants personally liable to him for his demands, and to have the same paid first out of the proceeds of the sale of the realty, but was, under the peculiar circumstances developed by the record, required to elect to ratify the contract of his assignor with the co-defendants touching the assigned debt, or to repudiate the contract, and take his strict legal rights, under the penalty, in case of refusal, of having his bill dismissed with costs.</p>

<p>Judgment-creditor and prior mortgagee — Their relative rights.— Mortgaged land was sold for taxes, tut, upon bill filed by tlie mortgageor, the tax-sale was set aside, from which decree the purchaser appealed. Pending these proceedings, the mortgagees undertook to sell the land under the power reserved in the deed, and a junior judgment-creditor of the-mortgageor enjoined the sale by the first of these bills, and sought to have-the tax-title declared void, and the property sold under decree of this court. The mortgagees filed the second bill to foreclose the mortgage by sale, and' the two bills were heard at the same time, each on its own record. JSeid, first, that the mortgagees were entitled to a decree to sell the land upon the terms of the mortgage-deed, in satisfaction of the mortgage-deht and costs,, and to the first lien on land and rents; second, the judgment-creditor must pay the costs of contesting the tax-title, and of advertising the sale enjoined, by him, and was entitled to a decree authorizing him to redeem from the mortgagees, and then to a sale of the land to pay hoth debts, or to a sale of the equity of redemption, or to the surplus proceeds of the sale underthe decree of the mortgagees; third, that the court had no power to suspend the execution of these decrees because of the pendency of the suit, touching the tax-title.</p>

<p>DemthiREK — Presumption, when against the pleader. — Although iro this state the rule upoa a demurrer is, contrary to the' English rule, that every reasonable presumption is to be made in favor of the bill, yet it will be otherwise in the ease of an obviously stale demand, barred both by the-statute of limitations and lapse of time.</p> <p>Vendor’s lien — Independent note. — Although the lien reserved by a vendor on the face of his deed for unpaid purchase-money, or notes given therefor, will continue, even if thex-e be a change in the form of these-notes, yet it will not attach to a note forming no part of the original consideration, nor given in novation or renewal of the original security.</p>

<p>ReCONVBYANCB OB LAND —EBBBCT ON THB CHAKACTBB OB THB HOLDING. — Whether a reconveyance of land to a person who held it originally by descent from the father amounts to a new purchase, or a reinvestiture as-of the former estate, must depend on all the facts and circumstances of the-particular case, and a demurrer to a bill for partition on one view will be overruled, in order that the facts may be fully brought before the court.</p>

<p>Executory trusts — Extinguished by merger and bapse oe time. — The testator, who died in 1823, by his will authorized his executor named, whensoever he might think it advisable for the interest of the testator’s, children, to sell any or all of his real estate, and vest the proceeds, or such part thereof as he might think right, in other real estate for the joint benefit of his wife and children, with power to apply any part of the proceeds-in the support of the widow, and in the support and education of the children. The executor renounced, and the widow became administratrix with the will annexed, but executed none of these directions. The land was afterwards partitioned, the share of two of the heirs being set apart to them, and the residue of the shares left in common. On October 10,1876, one-of the children, and the heirs of another, filed the bill against the widow, and two persons in possession of the land claiming under the other heirs, for a construction of the will, and a sale of the land to raise money for the payment of legacies charged thereon in favor of complainants. Held, on demurrer, that the bill could not be maintained.</p> <p>Note. — Affirmed on appeal.</p>

<p>Dower and wear’s allowance — Void allotment. — An allotment by the-County Court of land in dower, in excess of the value of the dower interest, the excess to he set off by the year’s allowance and debts of the estate to-be paid by the widow, is without authority, and void.</p>

<p>PRIORITY OF EQUITIES BETWEEN A SURETY AND AN ASSIGNEE FOR CREDITORS. — In a contest over a fund between the surety of the creditor who had borrowed the fund pending the litigation instituted by him to subject it to the satisfaction of his debt, which litigation was prosecuted to a successful end, and an assignee under a general assignment afterwards made by the creditor, pending the same litigation, for the benefit of creditors, the surety was held to have the better right.</p>

<p>Will — Acceptance oe besteeit — Burden. — In 1855, the testator conveyed to his brother, in fee, his undivided interest in certain realty, as heir of his sister Penelope. In 1857, the brother died, leaving one son his only heir, and devising all his property, specially mentioning this interest, to his wife absolutely. In 1861, the testator made his ■will, devising the residuum of his estate to the heirs of his sisters and of his brother, but charging his, brother, “or his heirs,” with $1,000, without interest, “ being the balance' in the settlement of my portion of my sister Penelope’s estate.” Said, that the son of the brother must take his share of the residuum, subject, to the charge of $1,000 in favor of the other devisees.</p> <p>Will — Charge on share — Mode oe making. — A charge upon a legacy or devise should, like an advancement, be added to the corpus of the fund. for division, and deducted from the share of the legatee charged in the fund thus created; and if, for any reason, the division has been postponed beyond the proper period, and in the meantime the corpus has produced interest or profits, such interest or profits should be divided between the-legatees, in the proportion of their respective shares in the original corpus..</p>

<p>Rent op land improperly placed nr charge op a receiver. — "Where-a receiver has been appointed, at the instance of a party, improperly, hut. on a correct statement of facts, that party will he charged with the cost, of the receivership, and with such rents as the receiver himself would he properly chargeable with.</p> <p>Rent — Apportionment.—"When land has been in the custody of the court, and rented out under its orders, the rents will he apportioned according to. the justice of the case.</p>

<p>PRIORITY Or LIABILITY AS BETWEEN SECOND INDORSER AND SURETY OE appeal or eirst indorser. — A judgment having "been rendered by a justice of the peace against both the first and second indorser of a note, the former appealed, signing the name of the latter to the appeal-bond without authority, and procured defendant to become surety of appeal, and the judgment was afterwards affirmed by the appellate court. Held, upon bill filed 'by the second indorser against the surety of appeal, who had paid the judgment, to enjoin him from taking legal steps to recover over against the complainant, that the bill contained equity.</p>

<p>Injunction — Dissolution. — A preliminary injunction ought not to he dissolved upon a question of law, unless plain- beyond a reasonable doubt, nor because the equity of the bill is defectively stated, if it contain equity.</p>

<p>Security for costs — 'When a rule to justify or give other security-comes too late. — Under a statute which provides that a party may be-ruled to justify or give new security for costs “ at any stage of the cause,” the motion comes too late in a case where the hill was filed for a partnership account, a final decree rendered which was affirmed with modification by the Supreme Court, and the account retaken after the remand.</p>

<p>¡Master's sale — Opening beddings after a resale confirmed. — After the biddings at a master’s sale have once been opened, a resale had, and the sale confirmed without objection, the biddings will not again be opened at the instance of the owner of the property, who was present at the resale, upon a mere offer of an advance of ten per cent on the previous bid.</p> <p>Noth. — Affirmed on appeal.</p>

<p>DEMURRER BY AN OFFICER MADE A DEFENDANT. — Although an officer -who. is made a defendant to a hill merely because he has in his hands process-issued by his co-defondants, may successfully demur on the ground that he is not a necessary party, yet it is otherwise where he has the personal, property in controversy in his possession, by virtue of the levy of an execution, which vests him with a title.</p> <p>Demurrer by officers and owners of a corporation. — The officers- and owners of a hanking corporation may he made defendants for purposes of discovery, and, therefore, a demurrer will not lie by them to a bilí on. the ground that they are not necessary parties.</p> <p>Demurrer to an uncertain part of a bill. — A demurrer to part of a-bill which does not designate with sufficient certainty the specific portions to which it is addressed is had for uncertainty.</p>

<p>.Hemov.ax ov catjse from state to federal court — Supplemental bill. — An application to remove from the state court to the Circuit Court of the United. States a supplemental hill filed to "bring before the court newly discovered property of the defendant, after a decision of the original bill on its merits, cannot be entertained.</p>

<p>Istjuitctios- took- patjpek. oath. — A complainant who comes into this court-for equitable relief against a legal demand ought not to be allowed to-interfere with that legal demand, ordinarily, unless he is able to secure the opposite party against the consequences of the delay; and, therefore, where the injunction is against a judgment-creditor who has proceeded to the levy of an execution on personalty,-and the injunction is under the oath prescribed for poor persons, the injunction should, as a general rule, be-dissolved upon the defendant giving- a bond with security to refund, if so-required, on a final hearing.</p>

<p>•Cross-bill — New parties — Demurrer.—It is good ground of demurrer to an answer filed as a cross-bill, by the complainant to the original bill, that it brings in new parties, and that the cross-bill is, in effect, an original bill, with the subject-matter of which the demurrant has nothing to do.</p>

<p>Tax-title — Purchaser pendente lite. — A purchaser of land from one of the litigants in a pending suit is hound to keep down taxes as was the party under whom he claims, and any title he may acquire at a sale made for such taxes would enure to the benefit of the successful litigant.</p> <p>Receiver — Death op one and appointment op another. — Neither the remand of a cause after a decree by the Supreme Court, nor the death of the receiver appointed by that court, will take the property out of the custody of the court, acquired by the appointment, and a purchaser from one of the litigants pending the litigation will not he allowed to interfere-with the possession of a new receiver by independent suit, without leave of the court first obtained by permission pro inter esse suo.</p>

<p>Scire vacias to revive A sett. — A scire facias to revive a suit against the personal representative or heir of a party is, under our statutes, in the nature of a notice or summons, and, if issued upon suggestion and proof of death, at the rules, will he good, if it give the name of the parties to' the suit, the filing of the hill, the pendency of the proceedings, and the death of the party, although the latter he in the form of suggestion.</p>

<p>Jurisdiction can only be taken away by express words. — The provision of a tax-act, which, while saying that nothing therein shall restrict, the power of the County Court to hear and determine applications in regard to. alleged erroneous assessments, provides that the application shall he made at the first quarterly term of that court occurring more than thirty days after the return of the assessors, “and never thereafter,” is. merely directory, and will not take away the general jurisdiction of the-court over the subject of erroneous assessments.</p>

<p>'Tender or baste-notes on benewed SECURITY. — A tender of the banknotes of an insolvent bank, which would have been good if made upon the original instrument of liability, will be equally good upon a note given in renewal to the assignee of the bank.</p>

<p>Amendment oh answer at the hearing. — An application to file an. amended answer so as to set up a discharge in bankruptcy refused where-the discharge was obtained before the filing of the original answer, and-. the application was only made at the hearing, after an agreement of the defendant, in writing, that the cause should be heard at that term, “upon the pleadings and evidence already and to he taken.’’</p>

<p>Reopening biddings at master’s sale. — After the biddings at a master’s, sale have once been opened, they may be again opened before confirmation, at the instance of the original purchaser, upon an advance of ten-per cent, and a satisfactory excuse for not bidding before the master.</p>

<p>RESCISSION OE CONTRACT IN A PATENT-RIGHT ROST BY DELAY. — A party will lose his right to rescind a contract for an interest in a worthless patented invention if, after full knowledge of the facts, he acts upon the contract, or delays unreasonably to institute legal proceedings for the purpose.</p>

<p>Relief where the parties are hot oh equal terms. — “Where one of two parties to a transaction is, from ignorance, incapacity, or other circumstances, such as absence of professional or impartial advice, not on equal terms with the other party, the burden is upon the latter to show that the former entered into it voluntarily, with full knowledge of the nature and effect of what was being done.' So held where an illiterate old woman was induced, under peculiar circumstances, by the defendants, intelligent business men, to execute two mortgages on her homestead, drawn up by the clerk of the defendants, according to a form furnished by a lawyer, by which the property was authorized to be sold free from the homestead right and the equity of redemption.</p>

<p>Compromise — Emect on suit. — A payment, with full knowledge of the facts, in compromise of a pending litigation, is binding, and the court will not inquire into the question of right between the parties.</p> <p>Demurrer — Extent. — A demurrer which starts out hy saying that the demurrants are advised that the hill, “ in so far as it seeks relief against them,” is demurrable, and concludes by asking that the grounds of demurrer be applied “ to the parts of the bill and relief prayed to which they point and are intended to apply,” and prays the judgment of the court whether they shall make any further defence to said bill, “and, if so, to what portion thereof,” must he treated as a demurrer to the whole bill.</p> <p>Demurrer — Erroneous decree therein — Review.—A decree sustaining a general demurrer to an original bill, 'and an amended and supplemental hill bringing forward new matter in addition to the old matter and supplemental matter relating thereto, upon causes of demurrer which go only to the new matter, is erroneous, and will he reversed on a hill of review.</p>

<p>■Shot-pike — Injunction — Intention. — It having been settled in this state that the Chancery Court should, through its inj unctive process, perpetually enjoin the opening of a road by the County Court, the object and end of -which would be to evade the payment of tolls on a chartered turnpike road, a temporary injunction granted upon the filing of the bill will not be dissolved on an answer by the County Court denying that the road was intended merely as a shun-pike, the quo animo being immaterial if the fact exist; and this although the proposed road do not intersect the turnpike at all.</p> <p>'Corporation— Legislative recognition. — After repeated recognitions of the existence of a turnpike corporation up to and inclusive of the last session of the Legislature, a collateral impeachment of its existence based on preexisting facts cannot be entertained.</p> <p>■Constitutional law — Obligation on a charter. — An act of the Legislature which undertakes, “by virtue of the police power of the state,” to require an incorporated turnpike company, whose gates have keen located! in accordance with the terms of its charter, to set hack its first gate at least, two miles from the corporate limits of a town which has grown up at one-of the termini of the road, and the second gate at least five miles from the-first, under the penalty, on failure, of forfeiting all right to demand or-receive tolls on said road, is unconstitutional and void.</p>

<p>Consolidation on causes in chancery.— The Court of Chancery has, ordinarily, no power to interfere with the rights of parties, in inmium, by an order directing the consolidation of independent suits of purely equitable cognizance.</p>

<p>GARNISHMENT BILI. — FEES ON A FORMER CLERK IN THE HANDS OF THE PRESENT clerk. — A judgment-creditor may, upon the return of an execution, nothing found, file a hill in chancery to reach, for the satisfaction of his. judgment, money in tlie hands of the present clerk of the Supreme Court, collected for the judgment-debtor, being fees due to him for services as former clerk of the Supreme Court.</p>

<p>■CHANCERY HAS NO JURISDICTION TO REVISE THE JUDGMENT OH A COURT OH law. — Equity has no power to revise the proceedings or judgment of a court of law merely upon the ground of supposed or even actual error; and, therefore, if a bill filed after judgment at law, to obtain the benefit of legal defences to the legal demand, show on its face that the complainant had the opportunity of making these defences in the suit at law, and, a fortiori, if it shows that he did actually make them, it is demurrable.</p>

<p>Deed — CONSTRUCTION — Exception nsr habendum. — Under a deed conveying to the grantee “ all the right, title, interest, and claim ” of the grantors to a city lot described by metes and bounds, one-third of -which lot at one end was held by a widow in dower, habendum, to the grantee, his heirs and assigns forever, “ except such part and parcel thereof” as has been allotted to the widow as her dower-right in the premises, with a warranty by the grantors of the title “of said described and bargained premises, subject to the dower-right aforesaid,” the grantee takes the interest of the grantors in that part of the lot covered by the dower.</p>

<p>MARRIED -WOMAN — BILL TO HAVE RIGHTS IN LAND DECLARED. — A married' •woman may, by next friend, file a bill in chancery against her husband, and a third person, the last of whom has entered upon and ejected her-from land owned by her in fee at time of her marriage, to have her rights in the land set up and declared, although the wrongful possessor ma}' have-adversely held the land long enough to bar a joint action by husband and wife to recover the possession, and she may not be entitled to possession until her husband’s death, and although the husband, in anticipation of the-marriage, had executed an instrument, duly proved and registered at the-time, by -which he, after reciting the intended marriage, and his desire that the land should remain with the wife to her separate use during coverture’ and her life, undertook to convey to his wife all the right, title, and interest, which he might acquire hy the marriage, subject to the limitation that if she died before him the land should vest in him for life, with remainder in fee to the children of the marriage, and, in default of children or the-representatives of children, to him in fee.</p>

<p>Mechanic's usar — Improvement on the land op a married woman.— A mechanic cannot acquire a lien on the land of a married woman, held in her own right, hut not as separate estate, for work done and materials furnished in erecting a house thereon, although under a contract made with the wife, with the knowledge and approbation of the husband.</p>

<p>Sight ot wat — Equitable estoppel — Parol contract. — Equity will interfere, upon the ground of fraud and equitable estoppel, to prevent parties, by the assertion of a legal right, from interfering with the enjoy-xnent of a right of way over their lands, and of a ferry at the end thereof, connecting with a way on the other side of the river, purchased by the complainants and defendants, in pursuance of a parol agreement relating to the entire way, and as part of the common enterprise, and, by contract in writing between them, made a permanent way “from and beyond the river,” appurtenant to their several tracts of land and every part thereof, into whosoever hands the same might come, large sums of money having been spent by the complainants in the common enterprise, and the whole way, including the ferry, having been used six years before the interference of the defendants.</p>

<p>Agreed decree — Construction. — Under an agreed decree in another cause, by which the complainant in this cause agrees that a sufficiency of the amount which may be found due him by the defendant in this suit shall be applied to the payment of the recovery of a creditor in the other cause,, a first and specific lien being declared on the debt due him from the date of the filing of the creditor’s bill in which the recovery was had, the creditor will have a lien only on the money recovery finally had by the complainant-against the defendant in this cause, and not upon property acquired by the extinguishment, previous to the filing of the creditor’s bill, of so much of the debt of the complainant against the defendant as was equal to the price-of the land, and the title to which land had by decree in this cause, before-the filing of the creditor’s bill, been vested in the complainant.</p> <p>Tax-sale — Purchaser inter vesting pro inteuesse stjo.— A purchaser at tax-sale pending litigation of the property in controversy, in the custody of the court, may come in by petition pro interésse suo, to have his rights declared, or for leave to institute the proper legal proceedings for their assertion; but if the purchaser, or one of two joint purchasers at such tax-sale, be the solicitor and counsel of the defendant in the litigation, all he-is entitled to will be-the reimbursement of money paid in extinguishment, of taxes, with interest.</p>

<p>Legacy — Caknot be sued eor by hext oe egst oe legatee. — The next, of kin of a decendent cannot sue in their own names for a legacy to the deceased, the right of action being in the personal representative; nor is the-rule changed by the fact that from lapse of time the right to take out letters-of administration is barred by statutory limitation.</p> <p>Demurrer will be overruled ie the action can possibly be sustained. — If, upon a critical examination of the facts stated in a bill, there is a possibility that the action may be sustained, though upon a different, ground from that assumed, a demurrer to the whole bill will be overruled; as where the bill was sought to be rested upon the right of distributees to-sue for a legacy bequeathed their intestate, when it might, by possibility, be maintained upon the existence of a trust relation between the parties.</p>

<p>Estoppel — Persons holdin» themselves out as partners — Joint and* separate creditors. —If two persons, who are not in fact partners, hold themselves out to certain creditors as partners of a stock in trade, so as to-become liable to them as such, although the stock belongs exclusively to one,, the rights of these creditors would rest upon estoppel which would be personal to the parties bound, or their privies, not upon a lien on or equity in the stock, to be worked out through the parties; and, therefore, in a controversy between such creditors and a purchaser of the stock at execution sale, under a judgment against the actual owner of the goods as the sole' proprietor, the purchaser would have the better right.</p> <p>Execution — Levy on boors, notes, and accounts.— A direct levy of an-execution against a person in business, on his books, notes, and accounts, is-a nullity, and a sale thereunder would communicate no title to the purchaser.</p>

<p>Mortgage — Rights or junior mortgager or personalty. — A junior mortgagee of personalty may foreclose by sale without making a prior mortgagee a party; but where the prior mortgage is to secure rent for several:, years, falling due quarterly, some of the instalments being past due, he' may make the prior mortgagee a party, to ascertain the status of his mortgage, to redeem as to past-due instalments, and to sell to meet the debt, redeemed, in which event the whole property would be sold, a sufficiency of the proceeds being held to meet subsequent instalments of the first mortgage; and, if there are no past-due instalments, to sell subject to the prior mortgage, reasonable time to be given to the mortgageor to pay the debt, before actual sale.</p>

<p>Homestead — Widowed with childbed- — Time add mode op occupation-. — A widower, who with two children, one of them under age, takes possession of and occupies as a residence the upper story of a house in at city, the lower part of which is rented to others, and the equity of redemption in which house belongs to him, acquires at once a homestead-right in the premises superior to that of a judgment-creditor, who only fixed a lien thereon six days thereafter, by the filing of this bill-</p> <p>Homestead — Sale, and investment oe proceeds — Rights qe creditor.— "Where the property in which a party has acquired a homestead-right is sold, either under a previous mortgage, or because indivisible and worth more than the amount of homestead-exemption, the proceeds, to which the homestead-right attaches, must he invested in another homestead for the debtor; but the creditor’s lien will follow the money into the new investment, and he may sell the same, subject to the homestead, the purchaser being entitled to possession whenever the'homestead-right terminates in any way.</p>

<p>¡Election between law akd equity — Special election. — Upon the motion of the defendants, after the filing of their answers, to require the complainant to elect between this suit and a prior action at law, it appeared that the defendants, four in number, had conveyed in mortgage, to secure a note of even date for a specified amount, at six months, a stock of dry goods, with fixtures, and a stock of fruits, confectioneries, etc., with fixtures, with power in the mortgagéors to remain in possession and carry on the business, provided the stocks were kept up, and that the bill was filed to foreclose these mortgages, and that the action pending at law was against two of the defendants for a balance of debt due by note and account. Held, that the complainant might make a special election to proceed at law fo try his legal right, and in this court to establish his equitable lien, in which event the trial of this suit would be suspended until the legal right was ascertained; or the complainant might elect to proceed altogether in this court, in which event the action at law would he enjoined until th& hearing of this cause.</p>

<p>‘Chancbet JURISDICTION — Act ob 1877. — A court of chancery "will not entertain jurisdiction, under the act of March 26, 1877, of a purely legal demand brought before it in the mode prescribed for the assertion of equitable rights.</p>

<p>■Taxation — Injunctive power op the chancery court. — Where a board of railroad-tax assessors, acting under appointment by the state, was proceeding, under an imperative statute, which left them no discretion, to assess for state, county, and municipal taxation the property of several railroad companies, whose roads severally extended through a number of counties and county towns,, and whose charters contained exemptions of the corporate property through some or all of the years for which the assessments were made, it was held that the companies were entitled to a temporary injunction, until the questions involved could be heard and determined, enjoining the assessors from reporting the assessment to the comptroller, and the latter officer from certifying the valuations to the counties and towns through which the roads ran, upon each company giving bond in the penalty of $5,000, conditioned as required by law in injunction cases before judgment.</p>

<p>Chancery practice — Where the husband piles a bill against the ■wipe, she answers as A peme sole. —If a husband as complainant make Ms wife a defendant, he treats her as a feme sole, and she answers separately without an order of court for the purpose, and without a guardian ad litem, or next friend.</p>

<p>hli OF FORMER SUIT DEFENDING — ISSUE THEREON — EFFECT OF A FINDING against the FLEA. — To a bill in. this court, by the holder of the notes of a firm of which one of the defendants was a partner, which notes were given for a stock of goods to another firm, since made bankrupt, to set aside as fraudulent a conveyance of realty by that defendant to his co-defendant, and to subject the property to the satisfaction of the debt •evidenced by tbe note, a plea of former suit depending, on which issue is joined, is not sustained by a record of the United States Circuit Court for the Middle District of Tennessee, on its equity side, showing a suit by the assignee in bankruptcy of the firm to whom the notes were made payable, against the present complainant, the makers of the notes, and the holders •of other of the notes than those held by the complainant, attacking the validity of the sale of the goods, and seeking to test the good faith of the assignment of the notes by the bankrupt firm; but the judgment of the court on this finding is respondeat mister.</p>

<p>.Insolvent estate — Administrator may pile a bile to remove a cloud prom the title and to sell land. — ■ Where the insolvency of an estate has been suggested in the County Court, the administrator may file a bill in this court to remove a cloud from the title to land held by the intestate, and to sell the same for the payment of debts.</p> <p>^Fraudulent conveyance — Presumption aqainst its delivery erom possession. —A possession of land by an intestate for forty years after the execution by him of a deed to a third person, made to defraud creditors, is sufficient, in the absence of proof of a delivery of the deed, to raise a presumption either that the deed had not been delivered to and accepted by the grantee, or that he had relinquished any claim thereby acquired.</p>

<p>Insolvent esta — To a bill by the administrator to sell land, the: heir is A necessary party. -'Toa bill by the administrator of a decedent, upon a suggestion of the insolvency of the estate, to sell lands descended, for the payment of debts, the heir is a necessary party; and, if no heir, the state.</p> <p>Nominal slaves —Marriage—"Will. —About 1840, a colored man and complainant’s intestate, both negro slaves, intermarried according to the then custom of slaves, and lived together as man and wife until his death, in 1860; in 1852, the husband bought part of the lot in controversy, and in 1854 the other part, and, with the knowledge and consent of the owners of' himself and wife, caused the title to be made to white persons, in trust for-him; in 1860, shortly before his death, the husband made and published a last will, attested by two witnesses, by which he devised the land to his-wife, who continued in possession of the land, claiming it under the will, until her death, in 1877; the will was never proved, and was lost unintentionally. Held, upon bill filed by her administrator, after suggesting the-insolvency of the estate, to sell the land for the payment of debts, and to remove a cloud from the title, created by a deed executed, two months before the intestate’s death, by a third person to two other persons made defendants, and under which the latter took possession after the intestate’s death, that a sufficient title was shown in the intestate to sustain the bill against a. demurrer by the parties in possession.</p>

<p>•C/HANGERY jurisdiction oyer property, in this state, of a foreign corporation. — The Chancery Courts of this state have jurisdiction to wind up the business of a foreign corporation because of its insolvency and non-user of its franchises, and declare its property in this state a trust-fund for creditors, and to distribute it among the creditors as they may be entitled; and, for this purpose, one Chancery Court having jurisdiction of a bill embracing the most matters of litigation, having control of a large portion of the property of the corporation, and primary jurisdiction of the subject by having before it the necessary parties, may enjoin separate creditors from prosecuting independent suits against the common fund, either in the same or other chancery districts, especially upon a supplemental bill after a decree between the parties, although the decree be appealed from.</p> <p>«Chancery practice — Supplemental bill to reach other property.— After an original bill filed by the creditors of an insolvent corporation to • impound and administer its assets, in which specific property was attached, and after a decree upon the merits, from which an appeal is taken, a supplemental bill may be filed to attach and bring into court other property of the corporation, and to bring before the court other creditors of the corporation who are seeking to reach the property of the corporation by independent suits.</p>

<p>Husband and wive — Ekfect oe coercion oe husband on the rights ov-an innocent purchaser. —Although the probate by privy examination, of a wife’s deed may be impeached for fraud, or undue influence of the husband, and the conveyance set aside therefor as against the husband, or-any person participating therein, or having knowledge thereof, or claiming exclusively through the husband, yet, whatever be the wrongful influence of the husband, if the grantee, dealing directly with the wife, has conducted himself in good faith, without suspicion of the wrong perpetrated, and has paid a substantial consideration, the transaction will be binding on her, and the grantee’s rights protected, even if a part of the-price be an antecedent debt of the husband.</p>

<p>Infants — Investment of funds. — The court may, if shown to be manifestly for their interest, invest the money of infants in land owned by the mother, which constitutes the common home of mother and' children, or in the notes of the mother given for the land, but only when it is shown that the fund will extinguish the last payments, or purchase all of the notes which are a lien on the land.</p>

<p>Cloud upon title — Bill to prevent — Rights op a creditor. — As this court has the jurisdiction, to remove a cloud from the complainant’s title to land, so it may, in a proper case, interpose its authority to prevent an act which would create the cloud; but this should he done as against a judgment-creditor, seeking to exhaust his remedy by execution, with great-caution, if at all.</p> <p>Same — Title bt statute op limitations — Demurrer. — Complainant bought land by parol contract, immediately taking possession and inclosing it, and afterwards, from time to time, took receipts for payments, which receipts were signed by the vendor, specified the land by a designation which identified it, and mentioned the vendee as the person from whom the payment was received, and that the payment was for the land sold by the person receiving to the person paying, and the complainant remained in possession for nine years, when he took a formal deed, but, before the deed was registered, the defendant levied a justice’s execution against the vendor on the land, whereupon this bill was filed to enjoin the sale. Held, that a demurrer would not lie to the bill, based on the ground that the complainant had failed to show that, at the date of the levy, he had acquired any title to the land by deed duly registered, or by the Statute of Limitations.</p>

<p>RECEIVER — Not appointed against co-tenant rightettllv in possession. — 'Equity will not, pending a suit for a sale of land for division among-co-tenants, interfere, by tbe appointment of a receiver, witb the lawful possession of one of the tenants, it not appearing that he disputes the title, or interferes with the possession of his co-tenants, especially if there is no-sufficient averment of insolvency.</p>

<p>COUNSEL-EEES IN’ A STJIT BY ONE PERSON POR HIMSELP AND OTHERS.A person who institutes legal proceedings for himself and others who may-come in and make themselves parties, and succeeds in securing a fund for-the common benefit of all, will be entitled to an allowance for all expenses, and costs incurred, including reasonable counsel-fees.</p>

<p>CHANCERY PRACTICE — PUBLICATION UPON A RETURN OP NOT POUND.Where, upon a bill averring that all of the defendants were citizens of Davidson County, the subpoena issued to that county was returned by the-sheriff four days before the return-day, indorsed as to one of the defendants, “Not to be found in my county,” whereupon publication was made for that defendant, commencing and being completed within the term, it was held that a final decree could not be taken at that term.</p>

<p>Dower under the code, sec. 2404, stjbsrc. 1. — A widow who has not dissented from her husband’s will, making provision for her, within the time prescribed by law, cannot claim dower under the Code, sec. 2404; subsec. 1, as if she had dissented, unless she can show that she was prevented from dissenting by fraud.</p> <p>Dower under the code, sec. 2404, subsec. 2. — Where a provision im personal estate is made for the widow, by the husband’s will, whether it be exclusively of personalty or be coupled with a provision in real estate also, and the whole of the husband’s property, including the bequest, is taken for the payment of the husband’s debts, the widow may sue for dower-under the Code, sec. 2404, subsec. 2.</p>

<p>County — How sued — Service oe process. — A. county is a public corporation, and may be sued as such, by service of process on the county judge, or chairman of the County Court.</p> <p>Bond op indemnity — Mechanic’s lien. — Under a bond to secure the obligees “against all claims, or suits at law, or both,” the obligors are bound to indemnify against claims of mechanics for work and materials, enforced by bill in equity by virtue of the mechanic’s lien law.</p> <p>'Bond of indemnity — Jurisdiction of equity. — The court of chancery will decree the performance of a general covenant to indemnify “ against all claims, or suits at law, or both.”</p> <p>Multifariousness and misjoinder — Assignors and assignees. — A bill to enforce a covenant of indemnity will not be demurrable for multifariousness or misjoinder of parties merely because it is filed in the names of a succession of assignors and assignees, the assignments having been made in connection with the transfer of a railroad, and under such a commingling of the parties, and their respective rights as corporators, copartners, and •co-owners, as to leave the exact interest of each in some doubt, and the bill, by its frame, conceding a scintilla, juris, at least, in each.</p>

<p>Deed — Delivery—Intention or parties. — Actual possession or acceptance of a deed is not essential to its efficacy, but the intention of the grantor that what was done should operate as a delivery, and the intent of the grantee to accept the benefit, will suffice; and the intent of either or both may be implied from subsequent admissions, conduct, or circumstances.</p> <p>Homestead denied under the circumstances. — On April 2, 1870, before the adoption of the Constitution of 1870, the husband conveyed his homestead property to his wife, to her separate use during their joint lives, and to himself in fee if he survived her, and if she survived him, to her for life with remainder to their children, with power “ to sell, lease, mortgage, exchange, or otherwise dispose of the property,” the proceeds, when sold and disposed of, to be invested on the same trusts; on July 23, 1870, the husband and wife joined in executing a mortgage of the property, and on. September 21, 1870, a second mortgage, and on May 4, 1872, a conveyance in trust to secure a surety on a debt to the defendant, originating before the adoption of the Constitution of 1870, but in the same year; afterwards, in a suit in this court, and upon a cross-bill by the present defendant, the deed. of April 2, 1870, was set aside as fraudulent, and the property was sold to» satisfy the debt mentioned above, and bought by the defendant, to whom, the husband and wife surrendered the possession. SM, that this bill by husband and wife, claiming a homestead-right, could not be maintained.</p>

<p>'OommoN-schooIí distkicts —Liabilities. — A debt of a common-school district, legally created by an existing directory or board of education, for a lot on which to erect a school-building, will, in the absence of any legislative intent to the contrary, continue binding on the district, and enforceable against a subsequent set of officers, although the Legislature may have repeatedly changed the organization of the directory or board by repealing old laws and reenacting new ones, the district itself continuing to occupy the same territorial limits.</p>

<p>GUARDIAN AND WARD — EMOTION OT WARD BETWEEN LAND AND MONEY."Where a guardian, in the collection of notes belonging to Ms wards, secured by lien on realty, becomes the purchaser of the realty at the judicial sale, taldng title to himself as guardian, the wards may elect to take the land,, or the money bid, and if the guardian resells at an advance, may ratify the-sale, the court acting for the infant wards.</p>

<p>-Receiver — Duty to account annually. — It is the duty of a receiver in chancery to make a full report, and pass his accounts at least once a year, and a failure will subject him to the risk of having his claim for compensation excepted to and disallowed.</p> <p>Receivers— Compensation — • Evidence. — Receivers are entitled to such, compensation as is usually allowed by law, or by contract between individuals for similar services, to be ascertained by proof of facts, not by the opinions of witnesses; and the burden of the usual compensation should ■he borne, ordinarily, by the income, and five per cent on the amount, received and disbursed seems to be the customary allowance.</p>

<p>ATaBEIED 'WOMAN' — SEP ABATE ESTATE — NOTE FOE BENT. — A note signed by a husband and wife for the rent of land, with the words “I bind my separate estate ” written below the wife’s signature, will not bind the wife personally, and cannot be enforced against land conveyed by deed to her, “and such children as she now has, or may hereafter have,” to their sole and separate use, with power of sale in her for the purpose of reinvestment in other property on the same uses and trusts, the land “in no event to pass out of the hands of her and her children” unless thus invested.</p>

<p>•Chancery practice — Motion to suspend the progress op a suit.— A complainant who has filed a hill to correct a will by making it conform to the intention of the testator, and also instituted proceedings at law to test the validity of the will by an issue of devisavit vel non, is not entitled to a suspension of his suit in this court until the action at law is disposed of.</p> <p>¡Same — Amended bird — Demurrer.—A supplemental bill which merely introduces supplemental matter to sustain the relief sought by the original bill is not a supplemental suit, but grafts the new matter into the original suit, and both records are treated as one record; and, in such case, the defendant who has demurred to the original bill may demur to the bill as supplemented.</p> <p>"Wire — Paroe evidence — Parse reason given por a devise. — Parol evidence is not admissible either to contradict, add to, or explain a will, nor can the positive provisions of a will be controlled by inference from other parts of the will, or by erroneous and false reasons assigned for such positive bequests.</p> <p>"Wire — Ibeegab provisions — Devise void por remoteness. — A co-devisee who is also an heir cannot, either under the will or on the ground of partial intestacy, derive any benefit from the fact that the will undertakes to throw illegal restrictions around some of the other devises, with a view to protect the property against the claims of the creditors of the particular devisees, or adds on executory devises void for remoteness.</p> <p>Note. —Affirmed on appeal.</p>

<p>MBOHANia’S LOT* — SCENERY AND FIXTURES OF A THEATRE. — Under R statute which gives a lien on the land upon which a house has been built or repaired, improvements made, or fixtures or machinery furnished, to all persons doing any portion of the work, or furnishing any portion of the materials, or putting thereon any fixtures, machinery, or materials, either of wood or metal, persons are entitled to the lien who, in the repair, renovation, and refitting of a theatre, furnished and put up balusters and railings in front of the boxes, rollers, pulleys, etc., for shifting scenery, and -other stage-properties, painted the scenery, and furnished chairs to seat the audience, which chairs were intended to be and were fastened to the floor.</p>

<p>Taxation — Privilege-tax on sleeping-cars. — A privilege-tax on the-running and using of sleeping-cars on railroads in this state, not owned by the railroads, is constitutional and valid, although the owner may be a foreign corporation, and the cars may be used for the' accommodation of passengers travelling through the state.</p>

<p>"EXEMPTION THOM TAXATION IN ONE CHARTER "WILL NOT PASS BY THE GRANT OP ITS RIGHTS AND PRIVILEGES TO ANOTHER. —In this State, where the Constitution makes a distinction between rights and privileges, and immunities and exemptions, the legislative grant to one railroad company of all the “rights, powers, and privileges” conferred upon another company by the act incorporating it will not carry an exemption from taxation included in the latter act.</p> <p>^Exemption prom taxation personal, and not transmitted by sale. — The sale of a railroad, together with all its property and franchises, will not carry an exemption from taxation contained in its charter, unless authorized by legislative act.</p>

<p>‘Constitutional law — Exemption ekom taxation. — The State Constitution of 1870 having expressly provided that “all property shall be taxed,” an act of the Legislature exempting from all other taxation, lor a limited period, any railroad company which would accept certain amendments of its charter, and pay annually to the treasurer of the state one and one-half per-cent of its gross receipts, is beyond the competency of that body, unconstitutional, and void; and this, although one of the accepted amendments of the charter provided for the relinquishment, after the period of exemption, of all exemptions from taxation contained in the original charter of the company.</p> <p>'Taxation — Chaster exemption. — The charter of a railroad company contained the following provision: “The capital stock of said company shall be forever exempt from taxation, and the road, with all its fixtures and appui’tenanees, including workshops, warehouses, and vehicles of transportation, shall be exempt from taxation for the period of twenty years from the completion of the road, and no longer.” Held, that whatever meaning may be given to the words “capital stock,” which is forever exempted from taxation, “ the road, with all its fixtures and appurtenances, including workshops, warehouses, and vehicles of transportation,” became liable to taxation, like other similar property, upon the expiration of the limitation of twenty years.</p> <p>Note. — Affirmed, on appeal, by the Supreme Oourt of the state, and the= Supreme Oourt of the United States.</p>

<p>Lawyer’s lien on land — Priority over other creditors. —The lien of a-, lawyer on land for professional services, declared by order of the court in the case in which the services were rendered, is entitled to priority of" satisfaction over the lien of a judgment-ci-editor of the client, acquired by subsequent decree of the Chancery Oourt, sale thereunder, and purchase of the land, where the bill to enforce the lawyer’s lien is filed before the? sale is confirmed.</p>

<p>Pavement — Liability or property-owner under a town ordinance.— Under an act of tlie Legislature which gives a municipal corporation a lien on lots for the construction of a sidewalk or pavement, and an ordinance of the corporation making it the duty of the owners of the lots to construct “a good and substantial sidewalk or foot-pavement,” and, in case of failure, making it the duty of a city officer to construct such sidewalk, the corporation is entitled to a lien for the cost of a sidewalk and curbing, but not for the cost of an embankment or fill to bring the grade of the sidewalk to the established grade of the street, nor for the cost of lowering a fence and repairing a porch on the lot.</p>

<p>^Emancipation — Land held in trust por a nominal slave. — A conveyance of land to a white man by deed which recites that the conveyance is received for the benefit of a colored man “ and a slave,” and in trust for him, coupled with proof that the consideration for the land was paid exclusively by the colored man, would be a conclusive and continuous recognition of a trust in favor of the colored man, which would enure to him and his heir, and, upon the subsequent emancipation of the latter, relate back to -the accrual of the trust, so as to vest him with title under the act of 1870, •eh. 75, and this title could not be affected by the will of the white man, made after the death of the original beneficiary, and which itself only be■came operative by the death of the testator after the amendment of the Constitution of this state abolishing slavery.</p>

<p>'Mültifario'dsness amo misjoinder oe parties. — An attachment till by a creditor to subject to the satisfaction of Ms debt property conveyed by the debtor in distinct portions, at different times and independently, to several persons, and to set aside the conveyances as fraudulent, is not liable to the objection of multifariousness or the misjoinder of parties.</p> <p>Attachment — Excessive levy — Property claimed by several persons. — The court is authorized, upon the answer or petition of defendants, to reduce an excessive levy of an attachment by a release of property in excess of the complainant’s demand and costs, the complainant being allowed to elect on which property he would retain the levy, and, in the absence of such election, by proportioning the burden of the debt upon the defendants, where there are several claiming in different rights, and each defendant may replevy the property claimed by him, or become the receiver upon, proper bond.</p>

<p>CHANCERY COURT — ■ LOCAL JURISDICTION BY SERVICE OE PROCESS. — Any Chancery Court, within whose territorial limits the defendant is served with process, has jurisdiction of a hill filed hy a distributee of an estate against the administrator, for a settlement of the administration and the recovery of the complainant’s distributive share, although the bill states on its face that the defendant was appointed administrator in another Chancery District by the County Court of the county in which the intestate resided at his death, and of which the defendant was at the filing of the bill a resident citizen, the bill further stating that the defendant had never made a full settlement of his administration in the court of his appointment, as required by law, but had settled with all the distributees except the complainant.</p>

<p>CHANCERY PRACTICE — AMENDED BILL — CONFLICTING RIGHTS. — An amended! "bill -will not be allowed -which asks alternative relief directly in conflict with the relief of the original bill, nor would the attachment and injunction sued out under the original bill enure to the benefit of the antagonistic-right under the new bill.</p> <p>Case in judgment. — A widow filed her bill to charge the defendant with a, fund alleged to have been intrusted to her for delivery to the complainant by the husband, on his death-bed, as a gift causa mortis ; and, upon its having been held by the Supreme Court that the personal representative of the husband was a necessary party to the suit, the complainant took out letters of administration on the husband’s estate, and asked leave to file an amended bill individually and as administratrix, praying relief either in, her own right or in her representative capacity, which was refused.</p>

<p>Chancery jurisdiction to supply lost record op a justice’s judgment. — The court of chancery has no jurisdiction, in the absence of' other equities, to supply the record of a justice’s judgment destroyed by; fire.</p>

<p>Pbivilesed communication — Date or act. — An attorney who is called to-testify against a party by whom he was employed to draw a deed cannot protect himself from answering the question whether the instrument was not written subsequent to the day of its date, and after the commencement, of the present suit, on the ground of privileged communication between attorney and client.</p>

<p>Judgment — Eeeeot as against third Persons. — The tontfide purchaser of land may successfully contest, by bill, the claim of a creditor of the vendor by virtue of a mechanic’s lien fixed by attachment and judgment before a justice of the peace, by showing that the lien-debt had been paid before the sale and judgment, that the lien was lost by a failure to register the judgment as required by statute, and, perhaps, by disproving a jurisdictional fact upon which the justice’s judgment depended for its validity.</p>

<p>Decree on peo coottesso. —A decree cannot be taken against a defendant upon an order pro eonfesso, unless tbe facts stated in tbe bill and shown by the evidence in the record will justify it.</p> <p>-Chancery jurisdiction as between co-debtoks after judgment at law. —Even after judgment at law, where there is nothing in the record adjudging the order of liability as between the defendants, equity may inquire into that order so as to fix the rights of the debtors as between themselves, and may readjust them, in a suit directed to that end.</p> <p>'Case in judgment.— The complainant became the surety of appeal from a justice’s judgment at the instance of one of two defendants, who appealed in the name of both, signing the name of the other to the appeal-bond by himself as agent, and the other repudiated the act and notified the surety of the fact. Held, upon payment by the surety of the judgment of affirmance, that he had no equity as against such other defendant to the original judgment.</p>

<p>Taxes — Bill by municipal corporation — Demurrer.—A demurrer will not lie to a bill by a municipal corporation to enforce its lien on land for taxes, although the land has been repeatedly sold and bought by the corporation for a portion of the taxes, the bill stating that the corporation has never taken a deed for the land under such sales, and that a perfect title was not acquired thereby by reason of irregularities in the proceedings of condemnation, advertisement, and sale.</p>

<p>Trusts — Special or active — Statute oe uses. — Special or active trusts, which require some act to he done or some duty to he performed, even if the act or duty he for the benefit of the cestui que trust, are not within the Statute of Uses, nor executed in the beneficiary, in this state, whether the statute be in force or not.</p> <p>Trusts — Rights oe creditors as limited by the proviso oe section 4283 oe the Code. — Under the exception embodied in section 4283 of the Code, a judgment-creditor whose execution has been returned unsatisfied cannot, by bill in chancery, subject to the satisfaction of his debt property, real or personal, held under a special or active trust created in. favor of the debtor by a third person, by will duly recorded or deed duly-registered.</p> <p>Case in judgment. — Real estate was devised by a mother, by will duly-recorded, to trustees in trust, to permit her son, during life, to receive from the rents and profits, for his maintenance, such sums of money as he may deem proper, in such manner, however, as that the same shall not be liable for his debts, or for contracts made by him; and to permit him to exercise such control over the realty, in the renting thereof for one year at a time, as he might deem proper; in such manner, however, that the same shall not be liable for his debts and contracts; and in trust, after the death of the son, to convey the property to any child of the son then living, and if he die without such issue, then to convey to the heirs-at-law of the devisor. Held, that neither the interest of the son in the land or in the rents or crops could be subjected by bill in chancery to the claims of his creditors.</p>

<p>Easement — Right on way — Only acquired by dedication or adverse use. — The public cannot acquire a right of way by mere use which is permissive, and not adverse, and without any intention on the part of the owner of the land to dedicate the way to the public.</p>

<p>Chancery jurisdiction over judgment at daw. — The court of chancery has no jurisdiction to revise a judgment at law for grave irregularities in the proceedings, where the record shows service of process on the defendant, appearance by counsel, and a judgment reciting that the parties appeared by attorneys, and containing a supplementary order purporting to be by consent.</p> <p>Surety — Abandonment oe levy. —One of two defendants to a judgment at law is not entitled to relief in equity merely upon the ground that an execution upon the judgment had been levied on real estate as the property of the co-defendant, who was primarily liable as between him and the complainant, the record showing that the realty was twice oifered for sale under the levy, and the execution returned with the indorsement that the land was not sold for want of bidders.</p> <p>Creditor’s bill to reach realty descended. — After the recovery of a judgment against the personal representative of the debtor on a debt of the decedent, the creditor cannot, upon a return of nulla bona alone, reach Tealty in the hands of the heirs or devisees, not even if the realty has been charged by the decedent by will with the pajmient of his debts.</p> <p>Creditor’s bill to charge the personal representative de bonis propriis. — A creditor who has recovered a judgment against a personal representative upon a debt of the decedent, may, on return of nulla bona, charge the representative de bonis propriis, if the defendant admit the reception of personal assets which have been used otherwise than in paying the judgment.</p> <p>Nora. — Affirmed on appeal.</p>

<p>LIMITATION Or ACTIONS — LAPSE OP TIME AS AEEECTINU AN IMPLICATION OP trust. —An express trust on specific funds in the hands of an administrator will not be raised by conjecture and suspicion in favor of the personal representatives of parties, after the lapse of over sixteen years from the death of such parties, and over a quaiter of a century from the accrual of the original cause of action, the right of action, independent of any trust, having been barred in seven years.</p>

<p>Fraudulent conveyance cor a consideration — Rights oe a creditor oir the grantor. • — A conveyance of land, void as to creditors, having been made in consideration of the note of a third person, which the fraudulent grantor handed back to the fraudulent grantee, to be delivered as a gift to their sister, a creditor of the grantor filed a bill, based on the fraud, and seeking to reach both the land and the note as the property of the grantor. Held, that the creditor might elect to take the land or the note, not both; that if he took the land, the note should be surrendered to the grantee; and if he took the note, the sale would be validated so far as he was concerned, and as to all persons to the extent of the consideration thus paid.</p>

<p>'Trust nr opposition to registered title — Evidence. — A trust in land held by a wife for over ten years, by a registered deed, cannot be established, after her death, in favor of the husband upon the evidence of a casual conversation with the wife, she having exercised the power of disposition given to her by the deed under which she held, first by a deed duly registered, and afterwards by a will duly proved and recorded.</p>

<p>Treasurer of the state — Receipts and payments — Breach oe official, duty. — Under the provisions of the Code regulating the payments out of' and into the state treasury, it is a violation of the treasurer’s duties and a. breach of his official bond to pay out funds in the state treasury without a warrant from the comptroller authorizing the payment, and to receive in exchange coupons of the bonds of the state, without a warrant from the-comptroller authorizing him to receive them.</p> <p>Same — Official bond — Release of sureties by loss of funds attached. —If the state, after having, in a suit against a late treasurer and. his sureties, attached funds, consisting of state coupons a:.d state bonds, in the hands of the treasurer as its property, take no steps to have the funds-brought into court, and sanction, though under a mistake of facts, the withdrawal of part of those funds by the principal, the sureties ought to be released to the extent of the funds abstracted; but if the funds have been used to pay off encumbrances on land conveyed by the principal in trust, for his sureties, the state will be entitled to follow the funds, and have-priority of satisfaction out of the lands to the extent of the funds thus used.</p> <p>Same — Same —Legislative settlement. — A settlement made by a committee of the Legislature with an outgoing treasurer will not release the-sureties, if the treasurer do not pay over to his successor, as required by his bond, the funds found in his hands; nor, á fortiori, if the settlement be-incomplete.</p> <p>Same —Same-—Joint legislative resolution to burn notes. — A joint, resolution of both houses of the Legislature, introduced before, but not passed until after, the expiration of the term of office of an outgoing-treasurer, providing that certain bank-notes in his hands shall be burned before they are turned over to his successor, and appointing a committee-for that purpose, will not release the sureties from liability for funds not. paid to his successor at the expiration of the term of office, as required by-the stipulations of the official bond.</p>

<p>Master’s sale — Opeiotg biddings aptkr a resale. — After the biddings-on property at a master’s sale have once been opened and a resale made, the biddings can again be opened only under extraordinary circumstances, upon petition to the court, stating the circumstances, by the party seeking - to advance the bid, and tendering money and notes in accordance with the terms of the sale for the advanced bid, or a bond with good security, in a sufficient penalty, to comply with such order as the court may make onu the subject; an application which falls short of these requirements wilt not be entertained.</p>

<p>"Will — Construction — Contingent mb upon a me. — The testatrix devised certain, realty to her daughter, to her separate use, free from the debts and control of a future husband, -with power to dispose of the same as a feme sole; afterwards, the daughter having married, she added that, should the daughter die before the husband, “said property shall be for the use of her children only, and a guardian shall be appointed for them.” H'eld, that the daughter took a fee subject to an executory devise in favor of her children, should she die before the husband, leaving children.</p> <p>Same — Restriction on power oe disposition — Dying without issue. — ' The testatrix devised certain realty to her son, with the condition that he was not to sell or dispose of it until he is thirty-five years old, adding that, should he sell or transfer this property, Ms title should become null and void, and the property shall become the property of his sister; after-wards, and after the marriage of the sister, the testatrix added: “And should he die without issue,” the sister and her children are “ to be made, as above stated, sole heirs.” Held, that the devise over would take effect upon the son dying without issue before he arrived at the age of thirty-five, and that after' that age he would take the property absolutely, free from, restriction on the power of disposition, and from the devise over.</p>