Volume 39 — Tennessee Reports

PROM LINCOLN. This cause was heard before Chancellor Ridley, at the August Term, 1858. The facts are stated in the opinion of the Court. 1. The bequest in David Baggerly’s will, to Rebecca during life, with power -of disposition to the whole, or. any one or more of his children, was a power coupled with a trust, which she was required to execute in good faith. Hill on Trustees, 85, 86, top pages. . 2.

EROM DAVIDSON. This cause was tried upon appeal from the County Court, at the September Term, 1858, of the Circuit Court, BaxtbR, J., presiding. The decision of the County Court was reversed, and the petitioners appealed to this Court.

PROM DAVIDSON. At the May Term, 1858, Chancellor Eeierson dismissed complainant’s hill. She appealed.

Tried at the February Term, 1858, before Judge Baxtek. Defendant appealed. FROM DAVIDSON. 1. We contend that the subscription of Cartwright was a condition precedent to the taking of stock by Cunningham. That is clear. Cunningham avers in his plea that he would not take stock unless Cartwright did first, and then he would take the same number of shares. Now it is clear that if the subscription of Cunningham was a verbal contract, not reduced to writing, he would not be bound.

<p>1. Summaby Pkoceediku. Motion against Sheriff and securities. Revi-vor hy motion. Act of 1858, oh. 89. Prior to the act of 1858, the remedy hy motion did not extend to the personal representative of a deceased officer, or of his security, and could not he maintained against either. By that act, if the officer, or either of his securities, shall die during the pendency of a suit hy motion, against them, it may he revived against the personal representative of such officer, or security, in tho same way that suits aro revived against personal representatives in other eases.*</p> <p>2 Same. Same. Same. Act of 1858 does not have a retrospective operation. If the Legislature could have given tho act of 1858 a retrospective operation, it is manifest that it was not done; and is, therefore, to be construed as applicable, only, to cases arising afterdts passage.</p> <p>3. Same. Same. Same. Death of the principal abates the motion as to the securities. It is only through their principal, and jointly with him, that the securities can be reached by motion. And the abatement of the motion as to the principal, of necessity, works an abatement as to tho securities. Even under tho act of 1858, no step can bo taken against tho securities until the motion is revived against the personal representative of the principal.</p>

FROM JACKSON. Yerdict and judgment for the plaintiff, at the July Term, 1857; Goodall, J., presiding. The defendant appealed. cited and commented upon, 2 Kent’s Com., side page, 239; 9 John. R. 141; 2 Paige’s Ch. R. 419. referred to 2 Kent’s Com. 192-218; 2 Greenl. on Ey. §§ 365, 366.

PROM OVERTON. The prisoner was convicted at the June Term, 1858, Gardenhire, J., presiding. Motions in arrest and for a new trial having been- overruled, an appeal in error was taken to the Supreme Court. argued that there was no time fixed for the Code to go into effect, and, therefore, it took effect forty days after the adjournment of the Legislature. This -would be about the first day of May, 1858.

<p>FROM BEDFORD.</p> <p>Upon the hearing, at the November Term, 1858, Chancellor Ridley, dismissed complainants’ hills. They appealed.</p>

<p>Practice and Pleading. Suit prematurely instituted. Abatement. Demurrer. The fact that a suit has been prematurely brought is, properly, matter for ivhat is termed a plea in abatement to the action of the writ, unless the objection is apparent upon the face of the record ; and then it is ground of demurrer, or may be taken advantage of on the trial. But, if not so apparent, it must bo pleaded in abatement. And if this be not done, the defendant loses the benefit of the defence.</p>

PROM SUMNER. The petition of the defendant below for writs of certiorari and supersedeas, was dismissed upon motion at the June Term, 1858. TURNER, J., presiding. The petitioner appealed.

FROM DAVIDSON. At the September Term, 1858, BaxteR, J., presiding, there were verdict and judgment for the plaintiff. The ■ defendants appealed.

EROM DAVIDSON. This cause was heard at the January Term, 1858, BAXTER, J., presiding. Verdict and judgment for the plaintiff. The defendant appealed.

FROM DAVIDSON. This cause was beard before Chancellor Emerson, at the November Term, 1858, Decree for the complainant. The defendant, Singleton, appealed. There is a clear and full statement of the facts in the opinion of the Court. 1. It was insisted in the Court below that Caroline Hagan was not a party to the bill filed by Henry Hagan under the act of 1837-8. That under that act the administrator could not file the bill in his own name and in behalf of the heirs.

<p>1. Lien. Equality amona partners. Partners in lands have an equity against each other, for the purpose of producing equality among them-selvqs; and this equity fastens itself, and is a lien, upon their respective interests in the partnership lands, of which neither can be deprived by the other, or a creditor of his, or purchaser from him with notice.</p> <p>2. Same. Same. Death of the partner having the lien. It is immaterial whether the amount of the inequality is ascertained at vhe death of the partner in whose favor this inequality exists. If the indebtedness arise from transactions occurring in the lifetime of such partner, the lien may be enforced by his personal representative.</p> <p>3. Same. For indebtedness to person holding the legal title to land. If two persons are the joint owners of lands, but the legal title is in one of them, and the other, who has a mere equity in the land, is indebted to the one who has the legal title, the latter cannot be forced to part with the legal title, until the discharge of his indebtedness to him, and until he is freed from liability for him.</p> <p>4. Same. Same. Rights of purchasers and creditors. A purchaser of an equitable title must always abide by the case of the person from whom he buys. And if the person thus having an equitable interest in land, sell or mortgage the same, or his interest is attached by a creditor, the purchaser', mortgagee, or creditor, takes it incumbered with the equity existing against him.</p> <p>5. Same. Same. Rights of the personal representative. If the party thus holding the legal title, and an equitable lien on the land for satisfaction of indebtedness to him, dies before the enforcement of such equitable lien, the same right exists in favor of his personal representative, heirs and devisees.</p> <p>6. Same. Same. When mortgagee becomes indebted to theperson holding the legal title. If a person who has an equity in land, mortgages the same to a third person, and the mortgagee becomes indebted to the person holding the legal title to the land, and then assigns his claim upon the mortgagor, together with his lien, the land, by reason of the indebtedness of the mortgagee, becomes subjected to an additional equity against him, and his assignee occupies no higher ground, and must yield to the superior equity of the person holding the legal title.</p>

EEOM DAVIDSON. On the 22d of May, 1856, one A. G. Henderson shipped by the defendant 128 casks of bacon, consigned to the plaintiff. Bj mistake of the agent of the defendant, the bacon was directed to Charleston, to the care of MeCreery & Hook, at Chattanooga, Hook haying been interested in some of the previous purchases of Henderson.' Hook, considering himself interested in the bacon, sold it at Chattanooga.

J?ROM DAVIDSON. This cause was tried at the May Term, 1858, BAXTER, J., presiding. Verdict and judgment for the plaintiff. There was no hill of exceptions filed, and the cause was brought up by writ of error.

PROM DAyiDSOK. The bill of the complainant was dismissed by Chancellor ERiERSOür, at the November Term, 1858. He appealed. 1st. As to the validity and operation of the assignment, the lex loei eontraetus governs.

PROM WILLIAMSON. Verdict and judgment for plaintiff, at the March Term, 1858, Baxter, J. presiding. The defendants appealed. It is insisted that' the Circnit Judge should have granted a new trial, because the charge was erroneous in both branches of the charge.

EROM DAYIDSON. This cause was tried at the May Term, 1858, BAXTER, J., presiding. Yerdict and judgment for the plaintiff.

PROM DAVIDSON. This cause was beard at the September Term, 1858, before Judge BAXTER; and judgment final, by default, entered against the defendants, from which they appealed.

<p>1. Summary Proceedings. Sheriff. Amendment of return. The motion, and not the notice that it will be made, is the commencement of the suit; and the sheriff may he permitted to amend his return upon a summons at any time before the motion is made, even after service of the notice, that it will bo made.</p> <p>2. Same. Same. Evidence. Return of summons. In a summary proceeding against the sheriff for the non-return of a summons, the en-quiry is confined to the face of the return. Extrinsic evidence is not admissible.</p> <p>3. Same. Same. Process. Non-return of. Act of 1777, ch. 8, § 6. Code, l 3603. J3y the 3603 ¡Í of the Code, taken with some modifications from the act oí 1777, a penalty of $ 125 is recoverable by motion of the party aggrieved against any sheriff or other officer who fails to execute and make return of any process issued from any Court of Record, and delivered to him twenty days before the return day. This means that he shall, not only hand in the writ, hut return that he has executed it, or state a sufficient reason why he has not done so.</p> <p>4. Same. Same. What sufficient return. The return “not to he found in my county,” would he more perfect and proper, but great strictness is not required when a motion is made for a penalty. Hence, the return “not found,” although informal, is sufficient.</p>

<p>EROM ERANKLIN.</p> <p>The bill of review was dismissed by Chancellor Rid-LY, at the November Term, 1858. The complainant, in said bill, appealed.</p>

<p>Evidence. Partner not a competent witness. One of the copartners of a firm, in a contest between third persons and the firm, is not a competent witness to prove the existence of the partnership, or that the debt sued for was created for or on account of the firm.</p>

<p>Criminal Law. Slaves. Parchase of liquor from. Aider and abettor. The sale of liquor by a slave is a criminal offence, and a white man who tempts him to commit the offence, by purchasing liquor from him, is an aider and abettor, and as much guilty, as a principal offender, of a misdemeanor, as if the seller had been of his own color.</p>

<p>ER0M MAURY.</p> <p>The plaintiff in error was convicted at the May Term, 1858, before Judge Marohbanks, and appealed, in error, to this Court.</p>

FROM DAVIDSON. A demurrer to the bill was sustained by Chancellor FRIERSON, at the May Term, 1858, and the bill dismissed. The complainant appealed.

FROM BEDFORD. This cause was tried at the August Term, 1858, Baxter, J., presiding, hy interchange with Judge Davidson. Yerdict and judgment for the defendant. The plaintiff appealed.

<p>1. Attachment. Verbal sale of real estate. Equitable interest. Creditor and debtor. A creditor can be on no higher ground than his debtor, in attaching equitable interests of the latter. And if the debtor has done any act, or entered into any agreement which would preclude him from asserting an equity that he once had, his creditor would, likewise, be precluded from so doing.</p> <p>2. Same. Same. Case in judgment A. and B. entered into an agreement for the sale and purchase of real estate. The contract was in parol. A. paid B. $200, and executed his notes for the remainder of the purchase money, B. verbally agreeing to make him a title to the land when the purchase money should be paid. Subsequent to this agreement, the trade between A. and B. was cancelled, and the land sold to 0., who refunded to A. the $200 paid by him, and executed his notes to B., in the place of the notes previously given by A., which notes were delivered up to A. After this latter agreement a creditor of A.’s attached his interest in the lar.d and the fund. It was held that A. had parted with his equitable interest both in the land and fund, and it could not be attached at the instance of his creditors.</p>

<p>EROM BEDEORD.</p> <p>The issue was found in favor of the will, at the August Term, 1858, Davidson, J., presiding. The defendants appealed.</p>

<p>1. Sale oe Real Estate. Jurisdiction. Covenant of warranty. Fraud. If there be no fraud in the sale of real estate, the purchaser, on failure of title, must rely, alone, on .his covenants of 'warranty. And if there be no covenants of warranty, he has no remedy, either in law or equity, for his money.' .</p> <p>2. Same. Same. Eviction. Breach of warranty. The purchaser of real estate has no remedy on his covenants of warranty, either in a Court of Taw or Equity, until there is a breach of the warranty; and there is no breach until eviction. But if there be a breach of the covenant, the remedy at law is plain'and adequate, and a Court of Equity has no jurisdiction. • . .</p> <p>3. Same. Eviction. Question reserved. Is the payment of a judgment which is an incumbrance upon the land, by a purchaser with covenants of warranty, an eviction pro' tanto?</p>

FROM DAVIDSON. This cause was tried upon demurrer, at the May Term, 1858, Baxtbe, J., presiding. The demurrer being sustained, the plaintiff appealed. The plaintiff’s right to compensation is admitted by the argument. The question is how it is to be enforced. If the act of incorporation had provided for the assessment of damages, it is admitted, that under our decisions, the mode pointed out by the State must be followed to the exclusion of the common law remedy.

FROM DAVIDSON. This cause was heard before Chancellor Frierson, at the November Term, 1857. A transcript of the record was filed with the Clerk of the Supreme Court, and a writ of error obtained by. Dorter.

<p>1. Criminal Law. Selling liquor to a slave. Code, § 4865. By section 4865 of the Code, any person who sells liquor to a slave except in the master’s presence, or upon his written order, is guilty of a misdemeanor. The law contemplates a visible presence of the master; such a presence as, necessarily, implies a knowledge of, and assent to the act of selling the liquor to the slave. If the master watch at a short distance, with a view to detect the party in the violation of the law, he is not present within the meaning of this provision of the law.</p> <p>2. Same. Same. Presentment. Incapacity to obtain license. It is not necessary to aver in the presentment or indictment, that the defendant is a licensed grocery keeper, to authorize the court to pronounce judgment of incapacity to obtain a license in future. It is sufficient to warrant such judgment if the fact appears in evidence on the trial, or is otherwise satisfactorily established, before rendition of the judgment.</p> <p>3. Same. Same. Code 4865 and 2678. The offences defined in sees, 4865 and 2678 of the Code, however similar, are not the same, and the conviction, whether upon the one section or the other, must he followed hy the prescribed punishment.</p>

<p>PROM HUMPHREYS.</p> <p>This cause was heard before Chancellor Pavatt, at the March Term, 1858. Both parties appealed.</p>

FROM DAVIDSON. This cause was heard at the September Term, 1858, BasteR, J., presiding. He refused the application for a mandamus, and the applicant appealed.

<p>"Will. Construction. Persons taking as a class.. The fifth clause of the will is as follows: “ I give all the balance of my land to my brother Hiram during his natural life ; and, at his death, my will is, that all my lands be sold — except what I have given above to my two nephews —and the proceeds of said lands to be equally divided between all my brothers’ and sisters’ children.” Held, that the fund vests in the described class, as a class, as it exists at the time fixed for distribution of the same; and, under this -clause, it goes to the children of the brothers and sisters of the testator, as a class, living,at the termination of the life estate.</p>

FROM FRANKLIN. This cause was heard at the February Term, 1858, before Chancellor Ridley, who dismissed the bill. The complainant appealed. said: Brooks insists that the decree of the Chancellor should be affirmed— 1. Because there is no evidence whatever sustaining the allegations of fraud; and, that in the absence of this, the Chancery Court had no jurisdiction, and complainant’s bill must be dismissed. 2.

FROM DAVIDSON. This cause was heard before Judge Baxter, at the January Term, 1858. Verdict and judgment for the defendant. The plaintiff appealed.

EROM ERANKLIN. This cause ivas heard at the November Term, 1858, before Chancellor Ridley, who pronounced a decree for the complainant. The defendants appealed.

PROM DAVIDSON. At the November Term, 1858, Chancellor Frierson pronounced a decree in favor of the complainants. The defendants appealed. cited and commented upon Story on Con., § 95; 1 Story’s Eq., § 243; Jones v. Perry, 10-Yer., 80; Bird v. Pollard, 4 Hum., 362; Alston v. Boyd, 6 Hum., 504; Code, §§ 2869, 3229, 3236, 2481.

EROM MONTGOMERY. The prisoner was convicted of manslaughter and sentenced to imprisonment for three years, at the January Term, 1858, Turner, J., presiding. He appealed in error to this Court.

<p>1. Obimimal Law. Homicide. Self-defence. To excuse homicide on the ground of self-defence, the danger to life, or of great bodily harm, must bo either real, or honestly believed to be so, at the time of the killing, and such belief of danger must be founded on reasonable grounds. There must, not only, bo sufficient cause to authorize the fear of death or great bodily harm, but such fear must be really entertained, and the killing done under an honest and well founded belief that it is absolutely necessary in self-defence.</p> <p>2. Same. Same. Same. Antecedent menaces. The danger must bo present and imminent. There must be some words or overt act at the time clearly indicative of a present purpose to do the injury. Previous threats, or oven hostile acts, how violent soever they may be, will not, of themselves, excuso a homicide.</p> <p>8. Same. Same. Same. Same. Evidence. The character of the deceased for violence, as well as his animosity to the defendant as indicated by his words and actions, then and before, are proper matters for the consideration of the jury in ascertaining whether the defendant had reasonable cause to fear, and did fear, that his life would be taken, or great bodily harm done him.</p>

<p>FROM WILLIAMSON,</p> <p>Decree for the complainants' át the October Term, 1858, before Chancellor Erierson. The defendants appealed.</p>

FROM GIL JES. Judgment final was rendered at the August Term, 1857, Martin, J., presiding. The sureties sued out a writ of error. It is contended that the judgment in this cause is erroneous, and should he reversed for the following reasons: The magistrates who tried the defendant, Pugh, when he was arrested, do not say, in their judgment or decision that the said Pugh has committed any crime or offence whatever.

FROM DAVIDSON. This cause was heard at the November Term, 1858, before Chancellor EMERSON, who pronounced a decree for the complainants. The defendants appealed.

<p>EROM BEDEORD.</p> <p>Verdict and judgment for tbe defendant, at the December Term, 1868, Davidson, J., presiding. The plaintiff app ealed.</p>

EROM BEDFORD. The final decree, in this cause, was made by Chancellor Ridley, at the August Term, 1857. For the reasons stated in the opinion of the Court, the surety of the complainant appealed.

FROM DEKALB. This cause was heard before his honor, Judge Goodall, at the April Term, 1858. A transcript of the record^of partition, from the Chancery Court at McMinn-ville, was offered as evidence. It was objected to upon the grounds stated in the opinion of the Court, and the objection overruled. Verdict, and judgment for the plaintiff.

<p>1. Chancery' Jurisdiction. Innocent purchaser. When protected. II a deed is procured from a feme covert by fraud and coercion, and tlie conveyee sells and conveys the land to another person, for a valuable consideration, who has no notice of the circumstances under which the deed was procured from such feme covert, he is, in contemplation of law, an innocent purchaser, and will be protected in his right.</p> <p>2. Same. Husband and wife. Fraud in sale of wife’s land. Although, in such a case, the wife is not entitled to relief against such third person, yet she is entitled to a decree against the party who fraudulently procured the deed from her, for the value of the land; for, in consequence of his wrong, the estate is irrecoverably lost to her.</p> <p>3. Husband and 'Wife. Husband’s rigid to the real estate of the wife. By the common law the husband, by marriage, gains an estate of freehold in the lands of his wife, which he may convey by his own deed to another, and the wife can take no step, either at law or in equity, to regain the possession of the land, so long as the coverture lasts. But her ultimate fee simple interest is not affected by her disability, and on its termination she will be remitted to her right of action to recover the possession.</p> <p>4. Same. Same. When wife may sue. Cloud upon her title. Chancery jurisdiction. Although the husband, by his own act may, by the principles of the common law, defeat the wife’s enjoyment of the possession and profits of her land, yet he has no power over her title or interest in fee; of this she can, alone, be divested by her own voluntary act, in the form prescribed by law. And the attempt to deprive her of it by fraud, force, or undue influence, either on the part of her husband or a stranger, furnishes her in a suit by next friend, a clear ground for redress in equity, by having said deed declared null, and the cloud removed from her title, although she may not be entitled to the present possession of the land.</p> <p>5. Same. Same. Same. Rights of the wife under the act of 1849-50. The act of 1849-50 materially changes the common law. It not only protects the husband’s interest in the lands of his wife from seizure and sale by his creditors during her life, but it likewise disables the husband to sell or dispose of such interest, without her joining in the conveyance. And if a conveyance has been procured from her by fraud, or other improper means, whether by her husband or a stranger, she may maintain a bill, by next friend; to have it set aside, and to have the possession restored to her — making the husband a defendant.*</p>

<p>EROM WILLIAMSON.</p> <p>The bill was dismissed upon the hearing at the October Term, 1868, EeieRSON, Chancellor, presiding. The complainants appealed.</p>

<p>FROM BEDFORD.</p> <p>This cause was heard before Ridley, Chancellor, at the November Term, 1858. Decree for the complainant. The defendants appealed.</p>

FROM BEDFORD. This cause was heard, and the bill dismissed, at the November Term, 1858, Ridley, Chancellor, presiding. said: As to tbe' act of 1856; complainants insist it is unconstitutional and void. 2 Yer., 260, 554, 599. As to tbe statute of limitations of three years, it cannot apply to this case. When all are under disabilities at the time the action accrued, then none are barred until the disability is removed as to all.

FROM MADISON. This cause was heard at the August Term, 1858, before Chancellor Williams, who dismissed the hill. Both parties appealed — the defendants upon the ground that the Court below excluded certain depositions taken by them.

PROM WEAKLEY. The venue in this cause was changed from Obion to Weakley county, and a trial had at the October Term, 1858, Fitzgerald, J., presiding. Verdict and judgment against the will. The plaintiffs appealed. relied upon the following-authorities : Act of 1784, ch. 10, § 5; Crutcher v. Crutcher, 11 Hum., 385; 1 Greenl. Ev., § 200; 3 Yer., 25; Allen v. Huff, l Yer., 409; Toung v. Crowder, 2 Sneed, 156; Tate y. Tate, 11 Hum., 465; 1 Swan, 119 ; 1 Sneed 1.

<p>EROM WEAKLEY.</p> <p>The motion was made, and disallowed, at the June Term, 1858, FitzseRALD, J., presiding. The plaintiff appealed.</p>

<p>PROM DECATUR.</p> <p>This cause was heard at the July Term, 1858, Walker, J., presiding. Yerdict and Judgment for the plaintiff. The defendant appealed.</p>

FROM OBION. The hill was dismissed upon demurrer, by Chancellor Williams, at the February Term, 1858.

<p>FROM HAYWOOD.</p> <p>A decree was pronounced for the complainant at the February Term, 1859, by Chancellor Williams. The defendants appealed.</p>

<p>1. Pabtnekship. Sale, by one partner, of his interest in the firm. Lien. "Where a partner sells his interest'in the partnership concern, either to his co-partners or strangers, he has no lien on the partnership property for the payment of partnership debts for which he is liable. He cannot pursue specifically, or have an account of the effects of the late firm of which he was a partner, to the end that they may be subject to the satisfaction of claims existing against the firm.</p> <p>2. Same. Same. Same. Cantraet to pay the debts of the firm. The fact that when such partner retired, his co-partners stipulated to pay the debts of the concern, and indemnify him, can make no difference, he having trusted to the personal covenants of his assignees ; unless he retains an interest in, or lien upon, the effects transferred, or stipulates that they shall be applied in payment of the partnership debts.</p> <p>3_. Chanceby JukisbictioN. ’When surety entitled to relief. A surety has a right to bring his principal and the creditor into a Court of Chancery, to compel the payment of the debt for which he is bound.</p> <p>4. Same. Same. Partnership. Qitestion reserved'. If one partner, who is bound for the firm debts, sells his interest in the firm to his co-partners, who agree to pay the debts and release him, can ho be regarded in the light of a surety for them, and come into a Court of Chancery to compel payment of the debts ?</p> <p>5. Same. Fraudulent conveyances, may be attached without judgment. Code, | 4288. Under section 4288 of the Code, a creditor may, without first having obtained a judgment at law, come into Chancery to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering and delaying creditors, and subject the property, by sale, or otherwise, to the satisfaction of his debt.</p>

EKOM hatwood. At- tbe September Term, 1858, the execution issued by the justice was quashed, Read, J., presiding. The plaintiffs appealed. cited: Atkinson v. Rhea, 7 Hum., 59; Roberts v. Cross, 1 Sneed, 233; Carmichael v. Hawkins, 2 Sneed, 405; Hennegar v. Mee, 4 Sneed, 33; Newman y. Rogers, 9 Hum., 121; Winchester v. Beardin, 10 Hum., 247; Johnson v. Billingsley, 3 Hum., 152. said: The defendant contends that he is not liable as ' stayor: 1.

<p>1. Dbbd ov trust. Not void if creditors are required to present their claims within a specified time. A deed of trust was executed on the 12th of May, 1857, providing for the payment of the “home creditors,” by name, of the bargainors, and then directed that the remainder of the fund in the hands of the trustee be divided pro rata among their New York and Philadelphia creditors, to whom they owed $21,000; but said creditors were not otherwise referred to than by this general description. The benefit of this provision was confined to such of those creditors as would present their claims to the trustee on or before the 25th day of December, 1858, and they were'to be notified by him. Held, that this was a just and prudent provision, and did not render the deed void.</p> <p>2. Same. Assignment of choses in action. Prolate. Registration. An assignment of choses vn action is not embraced by the registry acts, and such assignment is as good without as with registration. If made to a third person, as trustee, for the benefit of creditors, it is good against subsequent attaching creditors without probate and registration.</p>

<p>1. Parthbrship. Agency of each-partner. Bach partner is the agent of the partnership, and, therefore, the act of each in transactions properly relating to the partnership business, is regarded as the act of all, and binds all. But it is only in the capacity of an authorized agent of his co-par.tners, that he has power to bind them. Hence, in order to bind the firm the act must, ordinarily, be done in the name of the firm, otherwise, it will only bind the individual partner as his own private act.</p> <p>2. Same. Same. Sale of goods to one partner presumed to be for the firm. A sale of goods to one partner within the scope and course of the partnership business, is in judgment of law, a sale to the partnership, and the seller of the goods will not be affected by any fraudulent intention of the purchasing partner in buying them, or by his subsequent misapplication of them, if the seller be clear of the imputation of collusion.</p> <p>3. Same. Same. Same. Negotiable securities. The same principle applies to negotiable securities drawn, endorsed, accepted or negotiated by one partner within the scope and course of dealing of the partnership in the absence of fraud on the part of the person receiving such securities.</p> <p>4. Same. Same. Same. . Same. When the -firm not bound. Fraud. Constructive knowledge. But if goods be sold to one partner on his private account, and for his individual benefit, or, if partnership security be taken from him for a debt which the creditor knew at the time was the private or individual debt of the particular partner, without the previous knowledge or consent of the other partners, it would be a fraudulent transaction as to them, and clearly void. So, if from the subject matter of the contract, or the course of dealing, or the circumstances of the transaction, the creditor was chargeable with constructive knowledge of the fraudulent purpose, or intended misapplication on the part of the particular partner, the partnership cannot be made liable.</p> <p>5. Same. When a fraud for a person to take a partnership engagement without the authority of the firm. If the public have the usual means of knowledge given them in regard to the existence and business of a partnership, and no acts have been done or suffered by the partnership to mislead or deceive, every one is presumed to know the nature and extent of the partnership with whose members he deals; and where a person takes a partnership engagement without the knowledge or authority of the firm, for a matter that has no reference to the business of the firm, and is not within the scope of its authority, or its regular course of dealing, he is, in judgment of law, guilty of a fraud, and cannot enforce such engagement.</p>

EROM PERRY. At the June Term, 1858, Walker, J., presiding, the judgment of the justices wa.s held to be void, and the execution quashed. The State appealed.

<p>FROM OBION.</p> <p>Decree for tlie complainants, at the July Term, 1858, Williams, Chancellor, presiding. The defendants appealed.</p>

<p>1. Constitutional Law. Art. 2, 28, 29. Taxation. An important and fundamental distinction is made- by the Constitution, between •property and privileges, in regard to the power of taxation delegated to the Legislature. The rule laid down as to the former, is, that “all property shall be taxed according to its valueand “ no one species of property from which a tax may bo collected, shall be taxed higher than any other species of property of equal value.” But the rule as to privileges, is the discretion of the Legislature: the latter are to be (axed in such manner as may, from time to time, be directed by the Legislature.</p> <p>2. Same. Same. Same. Corporations. Act of 1854, ch. 17, $ 6. Negro traders. Hence, the act of 1854, ch. 17, ?¿ 6, incorporating the town of Somerville, and conferring power on the Mayor and Aider-men, by Ordinance, “ to license, tax, and regulate auctioneers, grocers, merchants, retailers, brokers, coffee houses, confectioneries, retailers of liquors, hawkers, pedlers, negro traders, and tavern keepers,” is constitutional. And an ordinance passed by the Mayor and Aider-men, by virtue of said charter, requiring, “That all negro traders who shall expose negroes for sale within the corporate limits of the town of Somerville, he or they shall pay a yearly license tax of twenty dollars,” is not in conflict with the Constitution, and may be enforced.</p>

FROM WEAKLEY. This cause was tried at the October Term, 1858, Eitzgerald, J., presiding. Yerdict and judgment for the defendant. The plaintiff appealed.

EROM GIBSON. At the June Term, 1858, Chancellor Williams pronounced a decree, from which the defendants appealed. argued— The course of decision, both in England and in this country, has established the rule, beyond doubt, that when the statute of limitation has commenced running, it runs over all subsequent disabilities and intermediate acts and events, 2 Greenl. Ev., § 439; Angel on Lim., ch. 36, and page 520.

PROM SHELBY. At the November Term, 1858, there were verdict and judgment for the defendant, Caruthers, J., presiding. The plaintiff appealed. referred to Smith-wide Co. v. Anderson, 2 Swan, 573; Bailey v. Cooper, 5 Hum., 401-2; 2 Greenl. Ev., §§ 206-7; Hutchins v. Turner, 8 Hum., 415.

<p>FROM HAYWOOD.</p> <p>The petition was dismissed by the County Court, and Bond, the purchaser, appealed.</p>

EROM DYER. Judgment was rendered against the sheriff and his securities, at the October Term, 1856, Read, J., presiding. They appealed. cited and relied upon the following authorities: Act of 1794, ch. 1, § 23; Orowder v. Sims, 7 Hum., 257 — 260; Trigg v. McDonald, 2 Hum., 386; Miller v. Moore, 2 Hum., 421; 1 Tenn., 228.

EROM SHELBY. At the November Term, 1858, OaRUTiiers, J., presiding, the bill was dismissed on demurrer. The complainant appealed. The demurrer admits the truth of the several allegations of complainant’s bill.

<p>1. L and Law. Words of inheritance. “ Heirs ” necessary to create a fee. At common law, the word “heirs” is indispensable to convey an estate of inheritance. Without the use of that term in deeds an estate for life only, is created. But this rule has been changed in Tennessee, by statutory enactment.</p> <p>2. Oham-ceky Jukisdictioit. Mistake. Correction of. If, by mistake, a writing contains less or more, or something different from the intention of the parties, and this is made to appear by clear and satisfactory proof, a Court of Equity will reform the writing, so as to make it conform to what the parties intended.</p> <p>3. Same. Same. Same. Case in judgment. A lot in Memphis was convoyed, in 1843, to a trustee, for Mrs. Elizabeth Armour and “her children forever.” In addition to the intrinsic evidence in the deed, parol evidence was introduced to show that it was the intention of the convej'or to create an estate in foe. Held, that it was a proper case for the interposition of a Court of Equity, to reform the deed, so as to make it convey an estate of inheritance, and thereby carry out the intention of the parties.</p>

ESOM SHELBY. The defendant having failed to put in his defence under oath, as required by the plaintiff, judgment by default was' rendered up against him at the January Term, 1859, Humpeeeys, J., presiding. He appealed.

<p>TJsuby. When it may he recoveved baeh in equity. The rule in equity is to apply the excess of interest to the satisfaction of the principal, and when that is paid in this way, all that is paid afterwards may be recovered by the borrower as so much money had and received by the lender to his use. And this may be done although the party has been sued at law, and failed to make the defence.</p>

PROM HENDERSON. At the July Term, 1858, before Judge Williams, there were verdict and judgment for the plaintiff. The defendant appealed.

<p>EROM TIPTON.</p> <p>This cause was heard before Judge Humphreys, at the January Term, 1858. The defendant appealed.</p>

<p>1. Payment. Presumption of, after the lapse of sixteen years. If a tiond or note under seal, be suffered to lie dormant for the space of sixteen years, without demand being made, or payment of interest, or other explanatory circumstances to show that it is still in force, payment will be presumed upon the mere fact of lapse of time.</p> <p>2. Same. Same. Effect of. This presumption of payment, like other legal or artificial presumptions, derives from the law a certain technical force and effect, which courts and juries cannot disregard. Until rebutted, or displaced by evidence, it has all the force and effect of plenary proof of the fact of payment, and the jury are bound so to regard it.</p> <p>3. Same. Less than sixteen years. The fact of payment may be inferred by the jury from the circumstances of the particular case, in a shorter period than sixteen years, but the presumption of law does not attach until the full expiration of that time.</p>

FROM 0BI0ÍT. The bill was dismissed by Chancellor Williams, at the July Term, 1857. The complainant appealed. It is insisted: First. That Tipton, by his failure and neglect to procure a grant upon his entry, No. 95, prior to the 1st of September, 1851, forfeited his right to the land, and that the same was then vacant, and subject to general entry.

RROM HAYWOOD. This cause was heard before Chancellor Williams, at the February Term, 1859.

FROM MADISON. This cause was tried at the September Term, 1868, before Judge Read. Verdict and judgment for the defendant. The plaintiff appealed.

PROM DYER. This cause was heard before Judge Williams, at the February Term, 1859. Yerdict and judgment for the plaintiff. The defendant appealed.

<p>EROM MEMPHIS.</p> <p>"Verdict and judgment for the plaintiff; at the November Term, 1858, Caruthees, J., presiding. The defendant appealed.</p>

ERQM WEAKLEY. Yerdict and judgment for the plaintiff, at the October Term, 1858. Fitzgerald, J., presiding. The defendant appealed. The charge of the Court is manifestly erroneous in more than one particular. It is nearly all wrong. An estate for years is a contract for the possession of land for some determinate period, and the lessee is tenant for years, although the lease he for less than a year. 2 Bh, C., 99.

PROM HENRY. On motion of the plaintiff’s counsel the plea that the note sued on was executed in Tennessee and not in Missouri, was stricken out, and judgment rendered at the September Term, 1858, for the plaintiffs, Fitzgerald, J., presiding. The defendant appealed. Where a contract is made in one place to be executed in another, it is to be governed, as to usury, by the law of the place of performance, and not by the law of the place where it is made.

<p>1. Contract. Recoupment. Damages. Act of 185&, ch. 71, l 1. In a suit upon a contract, if the defendant has sustained damages hy reason of the plaintiff’s non-performance of his part of the agreement sued on, such defendant has the right to abate the'plaintiff’s recovery hy the amount of such damages, and have judgment over against him for any amount or balance for which he may he found liable.</p> <p>2. Same. Same. Measure of damages. The amount of damages to which the defendant is entitled, in abatement of the claim against him in such case, is the damages which he would he entitled to recover in a cross-action hy him against the plaintiff for the nonperformance of his part of the contract.</p> <p>3. Warranty. When implied. When goods are ordered and supplied, or manufactured for a particular purpose, there is an implied warranty that they are reasonably fit and proper for that purpose. And this rule especially applies in a contest between the manufacturer and purchaser of the articles.</p> <p>4. Evidiojtoh. Settlement. Receipt. The fact that the defenclant.had paid, in part, for articles or work, and taken a receipt therefor, or taken receipts from the plaintiif and another person, before the same were found to be defective, does not-change the rule as to damages, or lesson the plaintiif’s liability, or preclude the defendant from showing that the plaintiff is the person really liable to him.</p>

<p>EROM HENRY.</p> <p>The plaintiff failed in his suit, which was tried at the January Term, 1859, before Judge Fitzgerald. He appealed.</p>

<p>PROM MEMPHIS.</p> <p>There were verdict and judgmeiit for the defendant;, at the November Term, 1858, Caruthers, J., presiding. The plaintiff appealed.</p>

<p>PROM HARDEMAN.</p> <p>This cause was tried before Judge Humphreys, at tbe October Term, 1858. Tbe defendant appealed.</p>

<p>Criminal Law. Juror. Power of the Court when juror refuses to he sworn. The Court has the power, in a criminal case, before the jurors are sworn, to discharge one of the number upon his persistent refusal to take the oath; but after the juror has been actually discharged for this cause, the court has no power to recall him and force him upon tb.e prisoner without his consent.</p>

PROM HENRY. This was an agreed case, submitted to the Court at the January Term, 1859, Fitzgerald, J., presiding. Judgment was rendered for the defendants. The State appealed.

<p>1. Sale oi? Real Estate. Frauds, Statute of. By whom agreement to he signed. To make a contract for the 'sale of real estate valid, it must he in writing and signed by all the owners, by themselves or by some person lawfully authorized to sign their namesy</p> <p>2. Same. Same. Same. Must be binding upon all. ' The language in the statute of frauds, “the party to be charged therewith,” means the persons who sell the land. The filing of a bill by all the owners, in the absence of a memorandum or writing as required; with an express ratification of the contract and a tender of title,, will not remedy the defect and compel the purchaser to take the land. To make the contract obligatory it must be mutual.</p>

FROM SHELBY. This cause was tried before Judge Humphreys at the September Term, 1858. Under the charge of the Court the jury sustained the plea of set-off, .and the plaintiff appealed.

PROM MADISON. A plea in abatement was filed and demurred to bj the plaintiff. The demurrer was overruled, and the writ abated, at the January Term, 1859, W. H. Stephens, S. J., presiding. The plaintiff appealed. cited and commented upon the Code, § 3814; Act of - 1794, ch. 1, § 28; 31artin v. Ramsey, 7 Hum., 260. •

FROM DYER. At the July Term, 1858, Chancellor Williams dismissed the bill of _the complainants, and they appealed. said: The Cession Act, the Compact, the acts of Congress from 1818 to 1846, our Constitution of 1884, all recognize the validity of North Carolina land claims, and provide for their satisfaction. § 2, Meigs’ Digest, pp. 689-691, § 1212.

FROM PAYETTE.. At the February Term, 1859, HUMPHREYS, J., presi-' ding, judgment was rendered for the plaintiff. The defendants appealed. The first point contended for by the plaintiffs in error is, that the notice does not sufficiently state the grounds' of the motion, that is, whether for the non-return of the execution, or for collecting money and not paying it over.

<p>1 Oabrieb. Common-. Delivery of goods-. Notice. Carriers by railroads, or steamboats engaged in the internal coasting and river trade, in tlie absence of a contract for a particular mode of delivery, must deliver freight received by them to the owner, consignee, or some an-" thorized agent, or safely land it upon the wharf at the place of desti-" nation, or deposit it in their depot houses, and promptly notify the-' consignee. If delivered to a drayman, cartman, or any other person not authorized by the consignee, to receive it, it is at the risk of the' carrier,</p> <p>2. Bame. Same. Same. Same. Effect of usage or custom. The usage' or custom of a port cannot dispense with delivery, or notice of the' landing of the goods. Nor will the fact, that the consignee and others, had submitted to a delivery of goods to a drayman, before, when no' loss occurred, bind him. to yield his legal right to notice when it is to his interest to assert it'.</p> <p>3. Same. Same. Measure of damages if goods not delivered. Tlpon failure to deliver goods, by a carrier, as required by law, the net value of the goods at the place of delivery is the measure of damages;.</p>

EROM MEMPHIS. The bill was dismissed by his Honor, Judge Carutii-krs, at the May Term, 1858. The complainant appealed. Eraud being originally and properly cognizable in equity, is a ground for coming into a Court of Equity for relief against a judgment, although the complainant attempted, unsuccessfully, to avail himself of it in the trial at law.

FROM MEMPHIS. Upon the hearing, at the November Term, 1858, Cabuthebs, J., presiding, the bill of complainant was dismissed. She appealed.

<p>1. Criminal Law. False pretence. Code, § 4701. The Code, § 4701, provides that “ every person who by any false pretence, or by any false token, or counterfeit letter, with intent to defraud another, obtains from any person any personal property on the signature of any person to any written instrument, the false making of which is forgery, shall, on conviction,” &c. The word on, in the third line, after “ property,” is, by misprint, or clerical error, substituted for or, and it should read, “ or the signature of any person to any written instrument,” &e.</p> <p>2. Same. Same. Passing counterfeit coin. The offence of passing counterfeit coin is a distinct, substantive felony, of higher grade from that of obtaining goods by false pretences, created by the act of 1842 ; and if the false pretence be the passing of counterfeit coin, the indictment cannot be sustained.</p> <p>3. Same. Same. Same. To constitute the offence of passing counterfeit coin, l he spurious coin passed must be a representation of genuine coin on both sides. If it be a piece of spurious metal, about the size of current coin, representing it on one side, but merely an advertisement on the other, and not purporting to be coin, the passing of it (the other requisites existing) is a false pretence, under the statute.</p>

<p>Criminal Law. Passing a counterfeit Banlc note. Pule as to resemblance. If a party is indicted, for passing a counterfeit resemblance or imitation of a genuine bank note, to authorize a conviction, the imitation or resemblance must be such as to be capable of imposing on persons of ordinary observation.</p>

FROM MEMPHIS. At the July Term, 1858, a judgment was rendered against the defendant, Oaruthers, J., presiding, and be filed a transcript of tbe record with the clerk of the Supreme Court, who, upon a bond being executed for costs, issued a writ of error.

BTtOM MEMPHIS. The bill was dismissed by his Honor, Judge Caruth-ERS, upon demurrer, at the May Term, 1858.

EROM HENDERSON. This cause was beard before bis Honor Judge Fitz-•-Gerald, at tbe April Term, 1858. Yerdict and judgment for tbe defendant. Tbe plaintiff appealed.

<p>BTtOM PAYETTE.</p> <p>This cause was tiled at the October Term, 1858, before Judge Humphreys. Yerdict for the plaintiff. The «defendant appealed.</p>

<p>EROM HARDEMAN.</p> <p>The plaintiff in error was tried and convicted at tbe February Term, 1859, HUMPHREYS, J., presiding. He appealed.</p>

PROM WEAKLEY. At the February Term, 1859, application was made to his Honor, Judge Fitzgerald, for a writ of super-sedeas, which being refused, the applicant appealed.

<p>FROM MADISON.</p> <p>At the September Term, 1858, Read, J., presiding, a verdict was rendered in fav.or of the plaintiff. The defendant appealed.</p>

<p>Vi. Land Law. Act of 1861, ch. 326. Occupant claim. Time toperfec title. By the act of 1851, ch. 326, it is unlawful for any person to enter land on which another resides, or which is cultivated, or has been previously entered by him, until such person gives at least thirty days notice in writing to the person residing on or cultivating .said land, or to the previous enterer or his assignee, of his intention to enter the same. Any entry made, or grant obtained contrary to the provisions of said act, are void. And time is given until the first of March, 1854, to have surveys made and grants issued.</p> <p>2. Same. Same. Same. The language of the act of 1851 is general, and embraces all land which had been previously entered under authority of law, no matter when, and without any distinction as to the origin or nature of the right of entry. It applies to an occupant enterer, and protects Mm as fully as it does the general enterer.</p> <p>3. Same. Descent. An occupant right descends to heirs. Upon the relinquishment of the pulic lands, by Congress, to the State, the occupant laws previously enacted, conferred upon those who complied with their provisions, an inheritable interest in the lands. And upon the death of any person having an occupant right, or of his assignee, such right is cast by descent upon his heirs:</p> <p>4 Same. Act of 1851, ah. 326. Assignee protected. The right of the assignee of an original occupant claim is protected by the act of 1851, without an actual residence on the land by such assignee, or his heirs.</p>

<p>1. Patrols. Pleading. What a general replication to a plea justifying an act upon the ground of being a patrol puts in issue. All matters which confess and avoid, whether alleged "by the plaintiff or defendant, must he specially pleaded. Therefore, if a person justify a battery upon a slave upon the ground that he was a patrol, and acting in discharge of his duty, the plaintiff must, if he wishes to rely upon excessive punishment, plead it specially : It is not admissible under a general replication to the plea of the defendant.</p> <p>2. Same. Public officers. What prima facie evidence of appointment. Proof that a person has notoriously acted as a public officer, is prima facie evidence of his official character, without producing his commission or appointment.</p> <p>3. Same. Same. Pleading. Stave. What replication of excess admits. If . a party justify a trespass upon a slave upon the ground that he was a patrol, and the plaintiff replies that the punishment was excessive, the replication admits the justification as alleged, and precludes the plaintiff from offering any evidence to disprove it.</p>

EROM HAYWOOD. This cause was heard upon demurrer to the seire facias, before W. H. Loving, S. J., at the July Term, 1858. The demurrer was allowed, and the plaintiff appealed.

<p>FROM GIBSON.</p> <p>At the December Term, 1858, Chancellor Williams* dismissed the bill. The complainant appealed.</p>

<p>Si Sureties. Entitled to substitution before payment of the debt. Sureties are entitled to the benefit of all securities which the creditor obtains against the principal debtor; and this is so, whether the debt ' has been paid by the surety, or not, if the principal has become insolvent.*</p> <p>2. Same. Same. Case in judgment. A slave was sold under a decree of court, which decree retained alien on the slave for the payment of the purchase money. The purchaser gave bond and security for the price. He became insolvent, and the slave was levied on by his creditors. The surety of the purchaser, not having paid the debt, filed a bill to enjoin the sale of the slave by the creditors, and to be substituted to the lien retained by the decree. It is held that the surety is entitled to the relief asked for.</p>

<p>EROM DERRY.</p> <p>This Cause was tried at the Jun'e Term,' 1858, before Judge Walker. Yerdict and judgment for the' State'. The defendant appealed.</p>

EROM GIBSON. The court below, Williams, J. presiding, refused to tax the witness fees of Oaks, a witness summoned by Tucker, who was tried and acquitted, to the State. Tucker and Oaks appealed.

FROM MEMPHIS. This was an agreed case in the Court below. At the July Term, 1858, CaRütheRS, J., presiding, judgment was rendered in favor of the parties according to the priority of their respective judgments. Relfe & Co., appealed.

FROM HENRY. This cause was heard by his Honor, Judge Fitzgerald, sitting as Chancellor, at the March Term, 1859. A decree was pronounced for the complainants. The defendant appealed.

<p>EROM HAYWOOD.</p> <p>Verdict and judgment for the plaintiff, at the September Term, 1858, Read, J., presiding. The defendants appealed.</p>

FROM MEMPHIS. A motion was made by Wells, at the July Term, 1858, CaRUTheRS, J., presiding, to quash an execution issued against him as surety in a replevin bond. The motion was disallowed, and Wells appealed.

<p>FROM MADISON.</p> <p>A decree was pronounced at tire December Term, 1858, by Chancellor Williams, in favor of the complainants. The defendants appealed.</p>

<p>1. Partnership. Death of a partner. Remedy of Creditors. Act of 1789, ch. 57, | 5. By the act of 1789, ch. 57, $ 6, modifying the common law doctrine, all “ obligations or assumptions of co-partners ” are declared to be joint and several, and to survive against the personal representative of a deceased partner, as well as against the surviving partner. The effect of which is to give the joint creditors the same-remedies at law against the estate of the deceased partner which they were entitled to in equity.</p> <p>2. Same. Same. Same. Judgment. Creditors may, therefore, ob'ain judgment against the survivor and the representative of the deceased partner, jointly; or, at their election, against either, separately; an proceed to enforce satisfaction against either. Of this, neither the-representative of the deceased partner, nor the survivor can complain,, but they have their remedy over against each other.</p> <p>3. Shaves. Pass to the distributees. Sale of, by execution. Act of 1827. Slaves pass to distributees in like manner as lands go to the heirs, aná. cannot be seized and sold upon an execution, at law against the personal representative. The representative, or creditors, must, to subject them to the payment of debts, proceed under the act of 1827.''</p>

EROM HENRY. A writ of error was prosecuted to reverse the judgment rendered at the May Term, 1858, FITZGERALD, J.. presiding. said: It is insisted under the law as it existed, that the Court had no jurisdiction. If it needed authority to sustain this position, the case of Gregg v. Goolce, Peck’s Reports, 82, directly decides the principle.

EROM HAYWOOD. This case was heard at the January Term, 1859, before W. H. Stephens, Special Judge, who rendered judgment in favor of the defendants. The plaintiff appealed. cited STierrell v. Goodrum, 3 Hum., 419; Pate v. Parks, 4 Sneed, 330; State v. Gilmore, 3 Sneed, 503.

<p>1. .Crimina!, Law. Evidence. Parol, to establish the existence of Free Banks. A.ct of 1851 — 2, eh. 113. Upon an indictment for fraudulently keeping in possession the counterfeit resemblance or imitation of the note of a Free Bank, created by the act of 1851-2, ch. 118, parol evidence is not admissible to establish the existence of said Bank. The ■memorandum required by said act, or a copy thereof, duly certified, either by the Begister or Secretary of State, must be produced.</p> <p>2. Same. Fraudulently keeping in possession the counterfeit note of a Free Bank. When note described of a different denomination from any issued by the Bank. By the 3d section of the act of 1851-2, ch. 113, the Banks organized under its provisions are empowered to issue and circulate notes of the different denominations authorized to be issued by the incorporated Banks of the State. And, therefore, the fact that the counterfeit note, for having possession of which a party is indicted, is of a denomination different from any issued hy the Bank, will not defeat the prosecution. It is sufficient that the Bank had lawful authority to issue notes of the denomination of that described in the indictment.</p>

FROM HARDEMAN. This cause was heard at the October Term, 1858, before HUMPHREYS, J., when there were verdict arid judgment for the plaintiffs. Neely, the indorser, brought the cause up by writ of error.

<p>FROM MADISON.</p> <p>At the August Term, 1858, Chancellor Williams dismissed the bill as to the defendant, Grates- The complainant appealed.</p>

EROM MADISON. This cause was heard, upon an appeal from a magistrate’s judgment, at the September Term, 1858, Read, J., presiding. Verdict and judgment for the defendant. The plaintiff appealed.

EROM WEAKLEY. Decree for the complainant, by. Chancellor Williams, at the July Term, 1858. The defendants appealed. argued: 1. The bill should have been dismissed on demurrer, because it shows that, at the time of the death of the tenant for life, Sarah Wells, the defendants were in possession of the slaves. Caplinger v. Sullivan, 2 Hum., 548; Bugg v. Franklin, 4 Sneed, 130. 2.

EROM MEMPHIS. Verdict and judgment, upon the facts stated in the-opinion, for the plaintiffs, at the November Term, 1858,, Caruthers, J., presiding. The defendants appealed.

FROM DVER. The presiding Judge, Williams, being incompetent to try the cause, the parties selected R. P. Rains, who presided; and the cause was submitted to a jury at the June Term, 1858. Verdict and judgment for the plain-iffs, against Bradford, the principal obligor, but in favor of the other defendants. The plaintiffs appealed as to the sureties. assumed that, the covenant was never altered in any respect after Sampson and Burton had signed it.

<p>Chancery Jurisdiction. 6-aming securities. Aet of 1789, eh. 8 | 1. The act of 1789 makes all gaming contracts, and all gaming securities, absolutely void, at law, as well as in equity; and it provides a new remedy in the legal forum for the recovery of “moneyor goods” lost at gaming, and paid or delivered. This act was not designed, nor does it interfere with the previously well established jurisdiction of Courts of Equity to compel gaming securities to he delivered up and cancelled. In transactions contravening public policy, relief may be given in equity to a particeps criminis; but the relief is given, always, in aid, not in subversion, of the public policy.</p>

EROM MADISON. The petition for a writ of error coram nobis was dismissed upon demurrer- by Judge Read, at the September Term, 1858. The petitioner appealed.

FROM MEMPHIS. Decree for the complainants by Judge Carüthees, at the November Term, 1858. The defendants appealed. The facts are stated in the opinion of the Court.

<p>1 Innocent Purchaser. Notice. Chancerypleading. Registration. Case in judgment. If a party have either actual or constructive notice of title, he cannot avail himself of the plea of an innocent purchaser, for value, without notice. A hill of sale, evidencing the title oí the complainants, was registered in the county where the bargainor and bargainees resided. The bargainees, subsequently, removed to another county with the slaves, where they were sold by the trustee to the defendant. Held, that the defendant was bound to trace the residence of the parties and the history of the title of the slaves, by a search of the Register’s books. That the registration of the bill of sale was constructive notice to him, and if he failed to make such search, he was guilty of gross negligence, and could not rely upon the plea of being an innocent purchaser.</p> <p>2. Statute of Limitations. Trust and trustee. When the statute runs against the title of a trustee. Infants. The principle that when the trustee is barred all the beneficiaries are barred, whether under disability or not, applies, only, when the trustee can sue, but fails to do so. ,If the trustee estops himself from suing by a sale of the property. — thus uniting with the purchaser in a breach of trust — the wrong is to the beneficiaries, not to him. He cannot sue, and the beneficiaries, if under disability, are not affected by the statute.</p> <p>3. Sami. Same. Same. Time given persons, under disability, to sue. In such case, if the beneficiaries are all under disability at the time the adverse possession commences by the sale of the trustee, they are allowed the time, within which to sue, given in the statute, after the disability is removed as to all of them. If any one is capable of suing at the time of the sale, the bar will be perfected within the time allowed by the statute, from that date.</p>

FROM PAYETTE. At the June Term, 1858, Humphreys, J., presiding, there were verdict and judgment for the plaintiffs. The defendants appealed,

FROM SHELBY. A petition was filed by the sheriff of Shelby county, in the Circuit Court, at Raleigh, for a writ of man-damns, to be restored to the custody and control of the jail built by the Mayor and Aldermen of Memphis. At the January Term, 1857, HUMPHREYS, J., dismissed the petition. The sheriff appealed. The facts are stated in the opinion of the Court.

<p>"Will. Construction of. Power. Implied gift over, in default of appointment. When persmss take per capita. In the second clause of hi& will, the testator bequeathed seven slaves to his wife, during her life, or widowhood, and at her death, or marriage, to he disposed of as he-should afterwards direct in his will, unless she- died his widow; in which event he gave her the privilege of giving said slaves to whom she pleased, among his children or grandchildren. In the 'fourth clause he makes his four sons his residuary legatees. In- the fifth clause he directs that, in case of the marriage of his wife, said slaves shall be equally divided among his children, if living; and if any of them he dead, leaving- issue, that issue to receive the share of its parent. His wife died without having again married, 'and without disposing of said slaves under the power given her. Upon the construction of this will it is held:—</p> <p>1. That the testator d-id not intend to die intestate as to these-slaves. That the legal presumption is, that he did not so intend, and that presumption is not overturned by anything contained in the will.</p> <p>2. Shorn the co-ntext, it is apparent that said slaves were not intended to, nor do they pass to the four sons under the residuary clause. Nor do they go to his children under the fifth clause of the-will.</p> <p>3. Under the second clause of the will there is a gift, by implication, of the slaves to the children and grandchildren of the testator, subject to the power of appointment by the widow, at her death* among them. And the power not having been exercised by the widow, the shares go, under said clause, to the children and grandchildren.</p> <p>4. When the donee of a power has a life interest in the subject of the power v/hich is to be exercised by will, or at the death of the donee, or at or before that time, the objects will be considered to be those who answer the particular description at th.e time the power is to be exercised. And, therefore, the children and grandchildren of the testator, living at the death of his widow,'are entitled to the ■slaves.</p> <p>5 The -grandchildren of parents living at the death of the widow .are not embraced. Grandchildren are mentioned merely as substitutes for children, and to take only in the event of the parents being -dead. And the slaves go t© the children living, and the grandchildren whose parents are dead, living at the time of the death of the widow.</p> <p>6. The children and grandchildren, living at the death of the widow, take the slaves per capita, and not per stirpes.</p>

EROM 'SHELBY. Verdict and judgment for the defendants at the May Term, 1858, HUMPHREYS, J., presiding. Plaintiffs appealed. contended: That when a sale of goods is obtained by fraud, the title or right of property does not pass as between vendor and fraudulent vendee. • Ohitty on Con., 406; Low» on Sales, 167-8; 2 Green. Ev., § 638; Parsons Merc. Law, 56.

EROM WEAKLEY. This cause was heard at the October Term, 1858, Eitzgerald, J., presiding. Verdict for the defendant. The facts are, sufficiently, stated by the Court. cited; Act of 1823, ch. 31, § 1; 2 Green. Et., §§ 430, 557; Waterhouse v. Martin, Peck’s R., 392, 411; Angelí on Lim., 98; Gruion v. Anderson, 8 Hum., 298.

<p>1. Sale O'j? fersoealty. Judgment. Execution. • Trover. Replevin. Evidence. A purchaser of personal property at a sheriff’s or constable’s sale, cannot maintain an action of trover or replevin against a party who subsequently causes the same property to be sold by virtue of a judgment and execution in his favor, without producing in evidence the judgment, as well as the execution under which his purchase was made.</p> <p>2. Same. When made after the teste of an execution issued from the Circuit Court. The owner of personal property cannot sell and make a good title to the same after the teste of an execution issued from the Circuit Court.</p> <p>3. Same. Private sale of property after levy of an execution. Question reserved. Can an officer sell property levied on, at private sale with the consent of the debtor, especially after he has taken a delivery bond, and before the restoration of the property to him ?</p> <p>4. Same. Same. Same. If property is levied on by an officer, and is sold at private sale by him and the debtor, (the debtor conveying the title,) is it to be regarded, in a .contest with a thir.d person as to the validity of the title, as a sale made by the officer ?</p>

FROM MADISON. This cause tvas heard before Chancellor Williams,. at the February Term, 1859, who decreed for the defendants. The complainants appealed. contended that the proof clearly shows that the bequest of the property was made by the testator to his wife upon an express agreement that she would, at her death, divide the same, equally, between his and her relations.

.• FROM OBION. At the October Term, 1858, verdict and judgment tvere rendered for the defendants, Williams, J., presiding. The plaintiff appealed.

FROM SHELBY. This cause was heard before Judge HUMPHREYS, who instructed the jury that, upon the facts of the case, (which are stated in the opinion of the Court,) they might presume the issuance of a grant in favor of the defendants. Verdict and judgment for the defendants* The plaintiff appealed-.

PROM MEMPHIS. The bill was dismissed by Judge Caruthers, at the November Term, 1858. The complainants appealed. assumed that the bank, as the holder of the bills is not compelled to sue at law, but are entitled in equity to the benefit of the collateral security, given by drawers to acceptors of the bills. There a trust is created for the better security of the debts, and a Court of Equity will see that it is not defeated.

<p>FROM HENDERSON.</p> <p>"Verdict and judgment for the defendants, at the March Term, 1858, Read, J., presiding. The plaintiffs appealed.</p>