Volume 40 — Tennessee Reports

TROM JEEEERSOKT. This cause was tried before Welcker, J., and a jury. There was a verdict, and judgment against the will. To reverse said judgment, an appeal in error, was prosecuted. The facts are stated in the opinion of the Court.

FROM GREENE. This cause was tried at the June Term, 1859, of the Circuit Court, Patterson, J., presiding. Verdict and judgment, for the plaintiffs. The defendants appealed.

EROM GREEWE. This cause was heard at the June Term, 1859, of the Circuit Court, Judge Patterson presiding. The jury returned a verdict in favor of tbe plaintiff. Tbe defendant appealed.

EROM KNOX. The lot mentioned in the pleadings belonged to Mrs. Margaret Ramsey. On the 8th day of March, 1841, she made a will, in wbicb she devised the tract of land to E. A. Ramsey. In 1847, the said Margaret Ramsey tore her name, and the names of the witnesses, from the will. After her death the instrument was found in that condition.

EROM SCOTT. This cause was tried before Judge Gakbenhirb, upon a plea of not guilty and issue. The property claimed by the plaintiff, was levied on as the property of John Smith. • The defence relied on was, that it was fraudulently held by the plaintiff. The defendants below did not produce on the trial the judgment and execution under which the officer acted. The jury returned a verdict for $65 ; and the motion for a new trial having been overruled, the defendants appealed.

EROM HANCOCK. This canse was tried before Patterson, Judge, who was of the opinion that the brothers and sisters of a bastard dying intestate, without children, did not inherit his estate. The plaintiffs appealed. The facts are stated in the opinion of the Court.

EROM SULLIVAN. On the 23d of March, 1859, the plaintiff in error filed a transcript of the record with the Clerk of the Supreme Court, and demanded a writ of error. The Clerk granted the writ, and issued a notice to the defendant in error, of the application. The judgment was rendered on the 26th of A'arch, 1858.

EROM WASHINGTON. The plaintiff in error was indicted and convicted in the Circuit Court of Washington county. He appealed, in error, to this Court. The facts, touching the questions raised, are stated in the opinion of the Court.

EROM COCKE. This cause was heard at the March Term, 1858, of the Chancery Court, before Chancellor Lucky. His Honor being of the opinion that the Court had no jurisdiction of the cause., dismissed the bill. The complainant appealed.

PROM GRAINGER. This bill was filed for the reasons stated in the opinion of the Court. At the appearance term, the defendants put in •an answer, and entered a motion for a dissolution of the injunction. Upon the hearing of said motion, his Honor, Chancellor Lucky, dismissed the bill. The complainant appealed.

FROM SULLIVAN. The case made out by the original and amended bill, is, that William Hicks died intestate, in 1848, seized and possessed of two tracts of land. He left several heirs, the complainant, Sarah, being one. She intermarried with Nathan Almony previous to the death of her father. Her husband is still living.

FROM JOHNSON. At the March Term, 1859, of the Circuit Court of Johnson county, Judge Pattekson quashed the presentment, upon the ground that the venue was not sufficiently laid; and the 5025 section of the Code did not dispense with the same in presentments. The State appealed.

B'ROM BRADLEY. On the 10th of March, 1856, the defendant, who kept a public hotel, hired the slave of the plaintiff upon the express agreement that he was to be employed as a servant in the hotel. On the first of May the defendant sub-hired said slave to the Messrs. Cowan, to work in a brick-yard. At the time he hired the slave from the plaintiff, he was informed that the plaintiff would not suffer the slave to work in a brick-yard.

FROM CLAIBORNE. This was an action of ejectment, instituted in the Circuit Court of Claiborne county. At the May Term, 1859, the cause was tried before Judge Tueley, and the jury returned a verdict in favor of the defendants. A motion for a new trial having been overruled, the plaintiffs appealed in error to this Court.

PROM WASHINGTON. The defendant was summoned as a garnishee. He appeared and filed his answer in writing, which is set out in the opinion, of the Court. The Court below rendered judgment, discharging the garnishee, and the execution creditor appealed.

EROM MONROE. This cause was tried upon an appeal, at the May Tena, 1858, Welckee, J., presiding. Yerdict and judgment for the defendant. The plaintiff appealed.

<p>1. Advancements. Presumption, when debt of child paid by the father. If a father pay a debt for a child, in the absence of proof to the contrary, the law presumes such payment to be an advancement. This presumption, however, may be rebutted by proof that it was intended to be holden as a debt against the child.</p> <p>2. Same. Creditors. Attachment. Advancements to be first accounted for. If a distributee or heir has been advanced, the advancements are to be collated and accounted for before an attaching creditor of such distributee or heir can have satisfaction of his debt.</p> <p>S Same. Question reserved. Can the attaching creditor sue within six months after the qualification of the personal representative?</p> <p>4. Same. Same. If a distributee or heir is indebted to the estate, will such debt have priority over an attaching creditor ?</p>

FROM hawkins. This cause was heard at the May Term, 1859. Chancellor Lucky pronounced a decree against the complainants. They appealed to this Court.

PROM WASHINGTON. This cause was heard before Judge Patterson, upon an appeal from the report of the Commissioners. Said report was affirmed, and the defendant appealed.

<p>EROM SULLIVAN.</p> <p>The bill was dismissed, upon demurrer, by Chancellor Lucky. The complainants appealed.</p>

<p>1. Roads. Appeal. Final judgment. An appeal will not lie, except from a final judgment. Upon the return of the report of a jury of view, to which exceptions were filed, the County Court disallowed the exceptions, and “ confirmed said report in all things, except that part assessing the damages, which question of damages the Court left open.” o judgment was rendered, upon the confirmation of the report, establishing the road. Held, that this is not a final j udgment in the County Court from which an appeal will lie.</p> <p>2. Same. Parties. In all contests about roads, the Justices, on the one side, and the party injured or aggrieved in the premises, on the other, are the proper and necessary parties. The County Court cannot devolve the power and trust confided in it, on behalf of the public, to a private and irresponsible individual; and thus in effect, leave the important matter of the establishment and regulation of the public roads-of the county, tobe controlled by the interests, prejudices, or resentments of private individuals.</p> <p>3 Same. Jurisdiction. Trial by jury. The jurisdiction of the roads and other matters of county police, is conferred by statute exclusively upon the County Court; and the Court has no power to refer the determination of facts to a jury. The jurisdiction of the Circuit Court is merely appellate, and the County Court having no power to submit issues of fact to a jury, it cannot be done by the Circuit Court.</p> <p>4. Same. Judgment for costs. In contests about roads, if private individuals are the parties to the record, no judgment for costs can be rendered, for want of the proper parties. Witnesses and officers of the Court, in such cases, are left to their remedies at law against those by whom they were summoned, or ior whom they may have, rendered seryice.</p>

FROM GRAINGER. This cause was tried before Chancellor Lucey, upon the bill and an order pro. confesso. No proof was taken in the case. The Chancellor decreed for the complainant, and the defendant appealed.

FROM SCOTT. The plaintiff in error was indicted in the Circuit Court, for obscenity.

EROM MOR&AN. This cause was tried in the Circuit Court of Morgan ■county, G-ardeNHIRE, J., presiding. Verdict and judgment for the defendant. The plaintiff appealed. The facts are ■stated in the opinion of the Court.

PROM HAWKINS. In the summer of 1856, Grigsby, as the agent of a company, sold a safe to Winstead, upon condition that the title was to remain in the company until the purchase money was paid. The safe was delivered to Winstead, who afterwards sold it to one Willis. Willis sold the safe to Price, and Price sold it to Jones. Jones paid Price the purchase money.

<p>FROM POLK.</p> <p>The bill was dismissed by Chancellor Van Dyke, and the '• complainants appealed.</p>

<p>PROM COCKE.</p> <p>At tbe March Term, 1859, the presiding Chancellor, LuCKY, dismissed complainants’ bill. They appealed.</p>

<p>1, Hoads. Jurisdiction. County Court. Jury. Appeal. The determination of all questions connected with public roads, including both matters of law and fact, belongs exclusively to the County Court, with which a jury can have nothing to do. And an appeal lies from the action of said Court, which may operate .as a broad appeal, or an appeal in error, according to the necessity of the case.</p> <p>2. Samis. Same. Appeal. Circuit Court. On the removal of a cause, involving a contest about a road, from the County, to the Circuit Court, the whole proceedings are open to investigation upon the face of the record, or upon proof, without the intervention of a jury, just as they were in the County Court. The jurisdiction of the Circuit Judge, in such a case, is appellate, only, and if no extraneous evidence is oifered, the Court must hear and determine the cause, as if it were before him on a writ of error.</p> <p>8. Same. Parties. Costs. In suits about roads, the Justices of the County Court, and the person or persons aggrieved, are the proper parties ; and no private individual ean be permitted, or compelled to» enter into bond, and bo substituted in the place of the Justices. Ñor, is the party aggrieved liable for the whole costs. He is only liable for such costs as accrue after he becomes a party to the proceedings.</p>

EROM GREENE. ■On the trial, at the May Term, 1858, Chancellor Lucky •dismissed the original bill, and decreed for the complainants in the cross-bill.

EROM HAWKINS. On the 6th day of June, 1853, Jane Epperson conveyed a-tract of land to McOoy and wife, for the consideration (as expressed in the deed) of five hundred dollars.

EROM GRAINGER. This was an application to the County Court to change a road from a second to a first-class road. The Court refused the application. The petitioner appealed to the Circuit Court, where his appeal was dismissed, Patterson, J., presiding, and he appealed to this Court.

FROM JEEEERSON. This cause was tried at the April Term, 1859, of the Circuit Court, before Judge Gaut. The jury returned a verdict for $3 damages. The plaintiff moved for a new trial, which was overruled, and he appealed.

PROM HAMILTON. This was an agreed case, before his Honor, Judge G-aut, who, at the March Term, 1859, rendered judgment in favor of the plaintiffs. The Attorney General, Bridges, on behalf of the State, appealed.

EROM JEEEERS’ON. This cause was heard, upon appeal from a Justice, at the April Term, 1859, GrAUT, J., presiding. Judgment for the •plaintiff. The defendant appealed.

PROM SCOTT. The indictment was quashed in the Court below, GARDEN-HIRE, J., presiding, because the word “wilfully” was omitted. The State appealed.

<p>FROM SULLIVAN.</p> <p>At the May Term, 1858, Chancellor Yan Dyke presiding, a decree was pronounced in favor of the complainant. The defendants appealed.</p>

FROM ANDERSON. The plaintiffs in error were indicted and found guilty of murder in the first degree, before Judge Brown. Held: was error. “ The evidence had no relation to the charge against the prisoner.

<p>FROM CAMPBELL.</p> <p>Judgment was rendered at the September Term, 1859, Turly, J., presiding, against Kincaid, the surety. He appealed.</p>

<p>EROM CLAIBORNE.</p> <p>The indictment was quashed at the September Term, 1859, Patterson, J., presiding. The State appealed.</p>

FROM POLK. This cause was brought up to the Circuit Court by a writ of certiorari. The presiding Judge, Gaut, being of opinion that the stayor was liable, refused the motion to quash the execution, as to him. He appealed.

FROM HAWKINS. In 1845, the defendants took possession of the land in controversy, under an assurance of title purporting to convey an estate in fee. Thos. Harmon, the ancestor of the plaintiffs, commenced an action of forcible entry and detainer against the defendants, in Angust, 1845. Pending said action, Harmon died. An application was made to revive the suit in the name of his administrators; hut the Court refused the application.

<p>FROM KNOX.</p> <p>This cause was heard upon appeal from the County Court, Bkown, J., presiding.</p>

FROM SEVIER. This cause was tried in the Circuit Court of Sevier county, Judge Turley presiding. The defendant ivas acquitted, and the State appealed.

<p>I. Witness. Evidence. When a party to the record competent. Code, § 3810. Prior to the adoption of the Code, a party to the record, although not interested, was an incompetent witness. This general principle is so far changed hy section 3810 of the Code, as to render a person a competent -witness, although his name is used as a party on the record, if he has no legal interest in the subject matter of the suit. But if he is interested in the subject matter, he is incompetent, not only upon general principles, but under the- provisions of the Code.</p> <p>2. Same. Same. Same. Bills and notes. Transfer by delivery. Liability of payee. If the payee of a note transfer the same by delivery, •without indorsement, there is an implied warranty that the note is not forged or fictitious ; and if its genuineness is put in issue by the plea of non est factum, the payee and his wife are incompetent witnesses. In the absence of fraud or a special undertaking, the payee is not liable, if the maker of the note prove to bo insolvent.</p> <p>3. Depositions. Exceptions to. Practice. A general objection, to the-competency of evidence in a deposition, made on the trial, will be available, although no exception is taken to the evidence at the time the deposition is taken.</p>

EROM GREENE. The Court below, Judge Patterson presiding, pronounced a decree in favor of the husband; and the cause was brought up by appeal. The facts are stated in the opinion of the Court.

<p>1. OnANCBRY Practice. When the answer simply makes up an issue. If an answer in. Chancery is founded, merely on information, it has no other effect than to make up an issue between the parties ; and, in such case, the weight of evidence controls the determination of the issue.</p> <p>2. Sale or Real Estate. Registration. Execution. As between the parties to a deed the title passes without registration ; and the vendee of land under an unregistered deed, has _such an inchoate legal title as subjects the land to execution at law for his debts.</p> <p>3. Same. Same. Recognizance. Lien. This being so, the lien of a recognizance entered into by the vendee would bind the land, and a sale made under a judgment upon the recogniznce would vest a valid legal title in the purchaser.</p> <p>4. Estoppel. What amounts to. When it operates upon heirs. If the owner of land has knowledge of the fact, that another assumes to be owner of the same, and as such enters into a recognizance, creating a lien on the land in favor of the State; and makes no objection thereto, both parties, as well as their heirs, would be estopped, as against the purchaser who acquired the title under such lien.</p>

PROM KNOX. The complainant purchased from Williams an unimproved lot, in Knoxville, at the price of $400. She paid $60 in cash. The purchase was by parol; but the complainant took possession of the lot, and proceeded to make valuable improvements thereon. Williams afterwards conveyed the same lot to Allison, who instituted an action of ejectment against the complainant to recover the premises.

<p>Watercouese. Nuisance. Mill-dam. Spring. Actual possession, by enclosure, not necessary to sustain suit for damages. Bor an injury, by overflow, to the spring and ford of another, it is not necessary, in order to a recovery by the plaintiff, to show a title to the land, or possession by enclosure. An actual possession by the plaintiff, for the ordinary purposes of useby his family and hands, is all that is necessary.</p>

<p>EROM GRAINGER.</p> <p>This cause was heard before Chancellor Luoky, who dismissed the hill. The complainant appealed.</p>

<p>FROM CAMPBELL.</p> <p>Verdict and judgment for the defendants, before TURLEY, J. The plaintiff appealed.</p>

<p> FROM BLOUNT. </p> <p>Verdict and judgment, under the charge of Judge BrowN, for the plaintiffs. The defendant appealed.</p>

<p>1. Parties. At law the suit must be in the name of the person who has the legal interest. In the legal forum, whether the contract be express or implied; or whether it be by parol, or under seal, or of record, suit must be brought in the name of the person in whom the legal interest is vested, notwithstanding, by the terms of the contract > the beneficial interest may be vested in another person.</p> <p>2. Sale of Beal Estate. Contraet. Fraud. Election. Case. Deed. In the absence of all fraud, the rule of law is, that the entire agreement of the parties is presumed to have been incorporated in the deed, or written contract; and if the purchaser has failed to provide for his own security, by appropriate covenants, he is remediless. Fraud constitutes an exception to this rule. It vitiates the contract: and the injured party may elect to treat the deed, or contract, as a nullity, and resort to an action on the case for the deceit.</p> <p>S. Same. Same. Same. The rule is the same, whether the contract is executed, or executory; or whether the deceit is in relation to a thing included in the deed, or something extrinsic; or whether the subject is real or personal property. Hence, an action on the case will lie, for a fraudulent representation, as to the title, in the sale of land.</p> <p>4. Same. Same. Same. Case. Damages. An action on the ease is of an equitable nature, in which all the circumstances of the case may be looked to by the jury, in estimating the damages.*</p>

FROM CLAIBORNE. A final decree was pronounced by Lucky, Chancellor, in favor of the complainant, for $1,000, and the same declared to be a lien on the land. The administrator of Cantwell appealed.

<p>1. Railroad Company. Election. Notice of. Acts of 1852 and 1854. By the second section of the act of 1852, before the County Courts are permitted to take stock in any railroad company, the question of subscription shall be submitted to the qualified voters of the county, and receive a majority of the votes cast, in the affirmative. The act of 1852 is so amended by the act of 1854, as to require a majority of the qualified voters of the county, taking the preceding Governor’s election as the basis. This being so, the failure to give the notice of the election required by this act, will not operate to the prejudice, but in favor of the negative voters; and they cannot be heard to complain thereof. Said provision, also, is directory; and a failure to give the notice required by the act will not vitiate the election and the subscription of stock in pursuance thereof.</p> <p>2. Same. Sams. Same. Means used to carry the election. If, pending such election, prominent citizens of the county enter into an agreement with the citizens of a civil district to subscribe an amount equal to the tax of that district, to improve the public road leading from that district to the terminus of the railroad, upon condition that the proposition to take slock receives a majority of the votes of such district, such agreement is not in the nature of a hribo, does not contravene public policj', and will not vitiate the election and the subscription of stock in pursuance of the vote.</p>

<p>1. Freedom. Contract of. Master and slave. A contract entered into, directly, between the master and slave, for the freedom of the latter, upon a consideration moving from the slave, or from a stranger on behalf of the slave, is valid and obligatory. But an agreement without any consideration, imposes no obligations upon the master; nor confers any rights upon the slave. Whatever may be the obligations of such an agreement, in foro conscientim, it is, in contemplation of law, a nudum pactum, and cannot be enforced.</p> <p>2. Same. Same. Trust. Will. Revocation. After the execution of his will, the testator can dispose of a slave therein bequeathed, by sale, or otherwise. So, he can confer by parol declaration, a present right of freedom upon the slave; or stipulate with his wife that the slave should be free at her death; or she should set him free, and in this xvay create a parol trust in favor of the slave. In either case, there would be a revocation of the will, ■pro ianto, and the contract for freedom would be enforced.</p>

<p>FROM KNOX.</p> <p>The bill was dismissed by Chancell orLucisr, upon demurrer. The complainants appealed.</p>

EROM KNOX. The complainant filed a bill against her husband, for a divorce and alimony. Chancellor Lucky pronounced a decree for the complainant. » The defendant brought up the cause by writ of error. A motion was entered, by the counsel of the complainant, to dismiss the writ, upon the ground that an aft-peal was the only remedy, in such cases, for the revisal of errors.

<p>1. Factor amd Peiscipal. Factor has a special property and lien. A factor has a special property in the goods intrusted to him for sale; and a lien on them for his factorage or commission, and may sell the goods in his own name.</p> <p>2. Same. Same. Factor cannot delegate Ms authority. In general, a factor has no power to delegate his authority to another person; it must be executed by him personally, unless authority to substitute another in his stead is expressly or impliedly conferred upon him by his principal.</p> <p>3. Same. Effect of a delegation of his power, by a factor. Conversion. Assumpsit. If a factor dispose of the goods of his principal, by a delegation of his power to a third person, without the sanction of his principal, or, of a usage of trade, it is a conversion of the goods by' the factor, and the principal would have an election either to sue in trover, grounding liis'aetion on the tort; or to waive the tort, and recover the value of the goods in an action of assumpsit, based upon the breach of the implied contract.</p> <p>4. Same. Sub-agent. Liability of, "Whenever the authority to appoint a sub-agent exists, a privity is created between the principal and such sub-agent, and the latter will be held directly responsible to the principal. But if no such privity exists, the sub-agent would be responsible to his immediate employer, and the remedy of the principal would be against his agent.</p>

FROM BLEDSOE. Judgment was confessed by an attorney in fact for the plaintiff in error, before Judge G-ARDEnhiee. The cause was brought up by Rankin.

<p>EROM SCOTT.</p> <p>The defendant was discharged upon a demurrer to the plea in abatement, GakdeNHIRE, J., presiding. The State appealed.</p>

EROM MONROE. A wager was made between tbe plaintiff in error and tbe defendant upon tbe last Presidential election. Held: and before the result was known, the defendant in error notified Taylor not to pay over the money, on tbe ground that tbe watcb was not such as was represented. After the result was ascertained, the plaintiff in error applied to the stakeholder for the money, when he was informed that notice had been given not to pay the money over.

<p>EROM KNOX.</p> <p>Decree in the Court below for the complainant, Lucky, C., presiding. The defendant appealed.</p>

EltOM ANDERSON. This cause was tried before Judge BroWN, and a verdict and judgment were rendered for the plaintiff. The defendant appealed.

<p>FROM GREENE.</p> <p>The defendant was convicted in the Court below, Patterson, J., presiding. He appealed in error.</p>

FROM KNOX. This cause was tried before Judge BROWN, upon an appeal from a Justice’s judgment. Yerdict and judgment for the plaintiff. The defendant appealed

<p>PROM SCOTT.</p> <p>The defendant was found guilty before Judge GardenhiRE, and appealed.</p>

FROM KNOX. This cause was tried before Judge Turley. Yerdict and judgment for the plaintiff. Swan, the endorser, appealed.

<p>Cbrttouabi aud Supersedeas. Constable. Attachment. Effect of ser~ vice of a writ of supersedeas on an officer. Forma pauperis. The issuance and service of a writ of supersedeas upon an officer having property in his hands under an attachment or ft fa, has the effect to release the property, and authorise the officer to return it to the debtor without bond for its forthcoming-at the end of the suit. And this is so, although the writ is sued out in forma pauperis.</p>

<p>1, Scire facias. Bail. Recognizance, or bond. Immaterial statements rejected. If unnecessary, immaterial, or irrelevant matter be stated in a bail bond or recognizance, it will not vitiate the same, but be rejected as surplusage. Hence, if a recognizance or bond recite that the defendant is to answer the charge of •“ negro stealing, the slave of John G. Gawtin the State of South Carolina,” such recital is surplus-age, and will not render the same void. The bond to appear, must be enforced without regard to what it may show on its face on the question of jurisdiction.</p> <p>2. Same. Same. Same. Construction. Case in judgment. In tlie construction of writings, the whole contest must be looked to; and words may be rejected, supplied or transposed, to carry out the evident meaning of the parties. The bond was for the appearance of the accused before the Court, “ then and there to answer a charge of the State, exhibited against him by indictment, for negro stealing, the slave of John G. Gaut, in the Stale of South Carolina, and m case of failure, then this obligation is void, otherwise to be in full force and effect.” All the words requisite to make this a valid bond are inserted, but they are improperly located; and the Court will reform the mal-collocation of them so as to give the bond its proper force and effect.</p> <p>3. Same. Plea of surrender of the defendant, by the Governor, upon the requisition of the Executive of another State. The principle, that the surrender of a defendant, in a criminal case, by the Governor, upon the requisition of the Executive of another Slate, discharges his bail, settled in the case of The State v. Allen, 2 Hum., 258, is referred to and approved.</p>

<p>Criminal Law. Railroads. Ooerseers of roads. Signboards. Corporation. Code, $ 1160. To prevent railroad accidents, among other things, it is required by $1166 of the Code, that the overseers of every public road crossed by a railroad, shall place at each crossing a sign marked, “Look out for the cars when you hear the whistle or bell,” and the County Court shall appropriate money to defray the expenses of said signs. And when a public county road passes through a town, and is used in common by the public and the inhabitants of the town, both as a public road and a street of the town, the corporation is regarded as the “ overseer ” of such road, within the limits of the town, and, as such, must perform the duties enjoined by law upon the overseers of public roads. The corporation is subject to a criminal prosecution on fai'ure to do so.</p>

<p>FROM KNOX.</p> <p>Decree for the complainants, Chancellor Lucky presiding. The defendants appealed.</p>

<p>EROM MONROE.</p> <p>The defendant was convicted before BrowN, J., and appealed.</p>

<p>1. Trust and Trustee. Liability of trustee for negligeuce. Will. Statute of limitations. Interest. The will of the testator contained the following clause: “The debt due me from William Lowry and my son, Alexander, and for which I have their note, I hereby assign and transfer to my son, John McGee, to be held by him in ti~ust, to permit the said "William Lowry and Alexander McGee to use and employ said sum of money in whatever manner may be profitable to them, the said William and Alexander. But in case any accident or calamity is likely to befall them, then it is my will and desire that my son John, as trustee for that purpose, should receive said sum of money, and apply it. in such manner as in his judgment should be most useful and beneficial'to Polly Lowry, wife of said William, and her children, and to said Alexander and his children.” John McGee qualified as executor. Held:</p> <p>1. By qualifying as executor, John McGee assumed the trust imposed upon him by the will, and he was bound to act faithfully and with vigilance for the interest of the beneficiaries.</p> <p>2. Upon the happening of the contingency contemplated by the will, it was the duty of the trustee to use all proper and necessary means to secure and collect the fund, to be held and used by him for the purposes and trusts specified; and upon failure to do so, he was personally liable for the fund, with interest thereon.</p> <p>3. Until the happening of the contingency provided for, Lowry and Alexander McGee had the right to use and employ the fund as they deemed proper, and the same could not, until then, have been collected by the trustee. And until he had a right to collect the fund, he is not chargeable with interest.</p> <p>4. Lowry failed in 1843, and no effort was made by the trustee to collect or secure the note, although the trustee was apprized of his failing condition; and the complainant is entitled to recover the one-half of the note, $5,000, with interest from that date.</p> <p>5. Even if the debt had been barred by the statute of limitations, the trustee is not relieved from liability, thereby, because no steps had been taken by him, by renewals, or otherwise, to guard against that defence; and because the debtor might not have seen fit to rely upon the statute, even if, by law, he could have done so.</p> <p>2. Same. When implied. If a son, under the injunction of his father to purchase a farm for his sister, buys a tract of land and places her upon it, taking the legal title to himself, there being no consideration passing from or for her to the son — it constitutes a voluntary unexe-cuted trust, binding only in foro conscientice of the son and his heirs, and cannot be enforced in favor of the sister.</p>

ER0M GREENE. A decree was pronounced in the Court below, Chancellor Lucky presiding, in favor of the complainant. The defendants appealed. The facts are stated by the Court.

<p>FROM KNOX.</p> <p>This cause was heard before Judge BROWN. Verdict and judgment for the defendant. The plaintiffs appealed.</p>

PROM CLAIBORNE. This cause was heard upon hill and cross-bill before Chancellor Lucky, who pronounced a decree for the complainant in the original bill. Thomas appealed.

<p>¡FBOM KNOX.</p> <p>Decree by Chancellor Lucks", declaring the sale void. The «defendants appealed.</p>

FROM HAMILTON. This cause was determined by Chancellor Van Dyke, who pronounced a decree for the complainant, in the cross-bill. The complainants in the original bill appealed.

<p>Contract. Illegal. Fraudulent. The fraud may he shown ly the defendant. It is well settled that an action will not lie to enforce a contract made in violation of a statute, or of the common law, or which is criminal in its character, or against public policy. The defendant, not because of any favor to him, but because he is such, can allege and show the invalidity of the contract, and thereby defeat the action.</p>

<p>1. Cbimiítal Law, Eaves-dropping. Eaves-dropping is the nuisance of listening under walls or windows, or the eaves of houses, to hearken after discourse, and thereupon to frame slanderous and mischievous tales.</p> <p>6. Same. Same. Eaves-dropping the grand jury. A person who secretly and stealthily approaches near to the room occupied hy the grand jury, while they are engaged in the performance of their duties for the purpose of overhearing what is there said and done hy the grand jury, is guilty of eaves-dropping.</p>

<p>PROM KNOX.</p> <p>This cause was tried before Judge Gaut. The complainant appealed.</p>

<p>EROM JEEEERSON.</p> <p>Chancellor LtCKY, pronounced a decree for the defendants. 'The complainants appealed.</p>

<p>EROM BLOUNT.</p> <p>The bill was dismissed bj Van Dyke, Chancellor. The complainant appealed.</p>

EROM HAMILTON. The plaintiff in error ivas sued in debt, in the Law Court of Chattanooga, on an open account. At the March Term, 1859, G-aut, J., presiding, judgment final, by default, tras rendered against him, for $466.92 and costs. He appealed in error.

<p>BROM HANCOCK.</p> <p>Yerdict and judgment for the plaintiffs, Patterson, J., presiding. The defendant appealed.</p>

<p>1. Corporation. Municipal. Contract. Taxation. Legislative power. The extension of the corporate limits of a town or city, by the Legislature, is an exercise of governmental power of which the persons newly taken in cannot be heard to complain: they have no voice in the matter; no power to resist, nor is any legal right of theirs impinged thereby. An act of the Legislature, therefore, for that purpose, is not in the nature of a contract; and may be changed at the pleasure of the law-making power.</p> <p>2. Same. Same. Same. Same. The Legislature may surrender the power of taxation, in respect to particular lands, in favor of an individual. But the surrender of this, or any of the rightful powers of government, is not to be presumed: nor is the bestowal of a privilege for a limited time and without consideration, to be taken as obligatory on the Legislature, against a repeal of the privilege.</p> <p>3. Contract. Inviolability of. Constitutional law. State. The provision of the Constitution securing the inviolability of contracts, extends as much to contracts with a State as to contracts between individuals.</p> <p>4. Taxation. Legislative power. Corporation purpose — what. Constitutional law. It is impracticable to lay down an exact general rule by which to determine what is a “ corporation purpose.” The question must, necessarily, be decided in view of the facts of each particular case. The judgment of the local government of a municipal corporation may, in general, be safely taken as pri/na fade evidence, as to whether the object proposed be a legitimate “ corporation purpose.”</p> <p>6. Same. Same. Sams. Same. Not necessary that the object be within the corporate limits. It is not necessary that the object for which a tax is imposed by the corporate authorities should bo within the corporate limits to make it a corporate purpose. It is sufficient if it be a matter of vital importance to the permanent interests of the corporation, although situated beyond the limits thereof. The appropriation of the money may, oven, be made to the construction of a part of a public work lying beyond the limits of the State.</p> <p>6. Same. Proposition submitted to a vote, when. If the Legislature confers the power, directly and exclusively upon the mayor and aldermen to subscribe stock, &c., it is not necessary that the proposition to do so be submitted to a vote of the inhabitants of the town or city.</p>

<p>E. Construction. Eeed reserving an occupancy Awing life. If a deed is executed reserving an occupancy during life to the donor or bar-gainor, the entire estate passes, as between the parties to the deed-No right would remain in. the denor or bargainor except, merely, the right to possess, and, perhaps, to enjoy the profits during life.</p> <p>2. Evidence. Estoppel. Admissions. All persons, being sm juris, are required to speak out when, an assertion is made, or an act done, in their presence, or with knowledge on their part incompatible with their legal rights; and the failure to do so is taken as a tacit admission ef 'the truth of the feet so asserted, or of the right of the person to do the act.</p> <p>3. Same. Same. Same. As between relatives. This principle applies as much between relatives as it does to strangers; and if a statement is made by a mother in reference to-a conveyance made to a son, in the presence of the son, which is not controverted by him, such -tacit admission has the same effect as if made to a stranger.</p>

<p>&. Sale on Beat, Estate. Effect of sale by sheriff. If land is sold at sheriff’s sale, and no deed is executed by the sheriff to the purchaser, he is vested with nothing more than a mere equity; and the legal title remains in the .debitor.</p> <p>% Same. Agreement — construction of'. In the construction of an agreement or conveyance, substance rather than form is to be regarded. And if a debtor, whose land has been sold at execution sale, executes an instrument of writing by which he sells and conveys to another, his right to redeem the land sold; and agrees when it is so redeemed, the same is bargainee!, sold- and conveyed to such party; such instrument possesses all the indispensable requisites of a deed of bargain) and sale, and its legal effect, although informal, is to invest the party to whom it is executed with a present title in fee simple.</p> <p>3. Redemption. Effect of the pwclmser1 & death. Administrators cundí executors. Upon tlie death of the purchaser of real estate at execution sale, no conveyance having been made to, him for the land by the sheriff, if the land is redeemed by the debtor or his assignee the redemption money would properly go, to the personal representative p and constitute a fund in his hands for the payment of debts, and for-distribution under the statute.</p> <p>4. Same. Same. Same. Money to be paid to the personal representative. This being so, upon the redemption of the land, the money should he paid to the personal representative, and not to. the- heirs.</p> <p>&.Same. Same. When title made to the purchaser. If the purchaser-had been vested with the legal title to the land, hy a deed from the? sheriff, it would he a conversion of the money bid for the land, into. Tealty; and would go to the heir, in. ease of intestacy, and from bins the redemption would have to be made.</p> <p>6. Ejectment. Equitable title. In an aetion of ejectment, in a Court; of Law, the legal title, only, can he looked to p and, in general, the-plaintiff’s recovery cannot be resisted on the ground of an outstanding equitable tiile, in a third person, or even in the defendant.</p> <p>7. Evidence. Exceptions to. Practice. If an objection to evidence be a formal rather than substantial one — to he available la the Supreme Court, it must have been specially taken in the Court below.</p> <p>8. Same. Parol. Pax books. In an action of ejectment, if the statute of limitations is relied on, it is competent to prove, by the tax books, in whose name the land was listed, as a circumstance proper to bc-looked to hy the jury in determining the question, whether the defendant claimed to he the owner of the land. The record evidence-must he produced: Parol evidence of the fact is not admissible.</p>

<p>1. Bills and Notes. Notice of dishonor. Endorser. No particular form of notice to an endorser is required by law. The notice, if it is sufficient to put the endorser upon inquiry and to prepare to pay the note, and the jury is satisfied it refers to the note in suit, and no other note is shown to have been endorsed, to which it could refer, will bind the endorser.</p> <p>2. Same. Same. Same. The question as to notice must be left to the jury. The question as to the identity of the note mentioned in the notice, with the note sued on; and, also, the question whether, notwithstanding the mistake, the endorser had substantial notice as to what note it was intended to fix his liability upon, by the notarial protest, are to be left to the jury.</p>

FROM BRADLEY. This cause was heard at the August Term, 1859, before Chancellor Van Dyke, who pronounced a decree for the complainants. The defendants appealed.

<p>1. CORPORATION-. Powers are controlled Toy its charter. Foreign corporation. A corporation may sue or be sued, or malre contracts in other States, or in reference to property there situated, as well as in the State of its creation, if its charter confers such power. Whenever a corporation makes a contract, it is the contract of the artificial being created by the charter, and not the contract of the individual members. The only rights it can claim, are the rights given to it in its charter, and not the rights which belong to its members as citizens of a State.</p> <p>2. Same. Same. Same. By whom its contracts to he made, or acts done. A corporation is what the incorporating act has made it, and it can do no acts either within or without the .State which creates it, except such as are authorized by its charter; and those acts must, also, be done by the officers or agents, and in such manner as the charter authorizes.</p> <p>3. Same. Same. Effect of 'limitation in the charter of a foreign corporation. Mortgage. A foreign corporation can claim no legal existence in this State, except in the recognition, by our Courts, of the charter granted to it by the State in which it exists; and if there is any prohibition in said charter against mortgaging the real and personal estate of the corporation, there is nothing in the policy of our law that would authorize tho Courts to relieve it of that restriction.</p> <p>4. Same. Rule as to construction of charters. A grant of privileges, hy the State, to persons as a body corporate, must be construed in favor of the public and against the grantees; and a prohibition, reservation, or exception in the charter of a corporation will stand in full force, though it destroy or make nugatory all the powers given to the company.</p> <p>5. Conelist OE Laws. Effect to be given to the laws of another State. Effect will be given to the laws of another State whenever the rights of a litigant before our tribunals are derived from, or are dependent on those laws; and when such recognition is not prejudicial to our interests or the rights of our citizens.</p>

<p>Justice oe the Peace. Equity jurisdiction. Code, $ 4124. Interest. If a party tender the purchase money for a tract of land, and demand a deed in pursuance of the contract. — but the vendor is unable, at th.e time, to make the title, and, therefore, does not receive the money —he cannot charge the vendee with interest from the daté of the tender until the title is made. The amount being under fifty dollars, the justice of the peace or court trying the cause can hear and determine it upon principles of equity; and a court of equity would not tolerate such a demand.</p>

<p>FROM OVERTON.</p> <p>Verdict and judgment in favor of the stayor, at the January Term, 1859, Gardenhire, J., presiding. The plaintiffs appealed.</p>

<p>1. "Will. Construction. Issue of female slaves. Ho right to slaves bequeathed in a will vests in the legatees until the death of the testator; and the children of such slaves, born after the execution of the will, but before the testator’s death, do not pass under the will to the legatees owning their mothers, but remain the property of the estate.</p> <p>2. Same. Same. Same. Residuary clause. If, after the general words, “all the remainder of property,” in the residuary clause of a will, there is an enumeration of the property given, this enumeration qualifies the force of the general words, and restricts the residuary clause to the things specified.</p> <p>3. Advancements. Legacies to he accounted for. If a testator die intestate as to part of his estate, and his next of kin wish to share any part of the same, they are required to account for any advancements made them, by him, either in his lifetime, or by his will.</p>

<p>EROM OVERTON.</p> <p>Verdict and judgment in favor of the stayor, at the May Term, 1859, Gardenhire, J., presiding. The plaintiffs appealed.</p>

<p>Will. Construction. The testator gave to the children of his son certain lands and slaves. Said property and its increase, or the proceeds of the slaves and farm, were not to be subject to the debts of the son, but to go wholly to the support of said children and their mother. At the death of said son and his wife, said land and slaves and increase was to be equally divided between said children. Trustees wore appointed to take charge of and manage the property, with power to sell and re-invost. The testator gave his son $500 and a bed, as his full share of his estate. The testator, by a codicil to his will, revoked all of said provisions of his will, except the slaves, mentioning Peter in the codicil, who was not mentioned in the will; and also gave $3000 in lieu of the tract of land. Two of the slaves mentioned in the codicil were levied on by the creditor's of the son. Held:</p> <p>1. That the land and slaves mentioned in the will were given to the children of the son, subject to the use of the father and mother for life; but the same is not subj ect to the debts of the son.-</p> <p>‘J. That the interest of the son is not enlarged by the codicil. The dispositions and provisions of a will are not to be regarded as changed or disturbed by a codicil, any farther than is absolutely necessary to give proper effect to the latter.</p> <p>3. The only effect of the codicil is to substitute the slaves enumerated for those bequeathed in the will, and the sum of $3000 for the land. It does not change the character of the title, nor the trusts attached to the poperty.</p>

<p>EROM WHITE.</p> <p>Chancellor VAN Dyice dismissed the bill upon demurrer, at the March Term, 1858. The complainant appealed.</p>

<p>Insolvent Estates. Distribution of. Vendor'slien. Administrator. The statutes regulating the distribution of insolvent estates 'were not intended to affect liens upon any part of the property of the estate, acquired in the lifetime of the deceased. And if a tract of land belonging to an insolvent estate is sold to enforce the vendor’s lien, the proceeds of which do not satisfy the debt, such vendor stands upon an equal footing, as to the remainder of his debt, with the other creditors, and is entitled to his pro rata, on such balance, out of the assets.</p>

<p>Redemption. Equitable interest. Chancery sale. Although an equitable interest may be as much subject to redemption as a legal interest; yet, the purchaser of land at a Chancery sale acquires an equitable title, upon the implied condition that the purchase money should be paid at the time stipulated — the payment of the consideration is essential to complete the equity; and if the land is sold, under the decree of said Court, to enforce the payment of the purchase money the land is not subject to redemption.</p>

<p>1. Chancery Practice. Bill dismissed, upon motion, or by the Chancellor. A bill totally wanting in equity upon its face, or which shows that the complainant is entitled to no relief, may be dismissed upon the motion of the defendant, or by the Chancellor of his own accord. Such a bill requires no answer, and its dismissal can do no injury to the complainant.</p> <p>2. Statute or Limitations. Resulting trust. Act of 1715, ch. 48, l 9. Case in judgment. A resulting trust is barred by the act of 1715, ch. 48, l 9. If the purchase money to acquire title to land is paid by one person, but the title made to another, and the party in whom the legal title is vested dies, suit to establish a trust, if one exists, must be instituted within seven years after the death of such party, or the claim will be barred by the act of 1715. j</p>

PROM WHITE. At the September Term, 1858, GardenhiRE, J., presiding, there were verdict and judgment for the plaintiff. The defendant appealed.

<p>1. Pabtnekship. Dissolution. Notice to previous dealers. Persons wlio have had previous dealings with a firm must have actual notice of its dissolution before they are deprived of their right to hold all its members responsible for the contract of one, made in good faith, in the name of the firm.</p> <p>2. Pleading. Demurrer. Plea. Answer. Code, gjj 4318, 4319, 4321. By sections 4318 and 4319 of the Code, the defendant in a suit cannot avail himself of a want of jurisdiction in the Court, except he do so by plea or demurrer. And by section 4321 the filing of an answer is ' a waiver of objection to the jurisdiction of the Court.</p> <p>3. Same. Same. Must be special. Code, § 2934, applies to all Courts. By section 2934 of the Code, demurrers for formal defects are abolished, and those for substantial defects only are allowed; and all demurrers shall state the objection relied on. The provisions of this section are general, and embrace demurrers in all Courts, chancery as well as law.</p>

<p>1. Juror. How impeached after verdict. New trial. After a juror has made himself competent by examination, in a criminal case, and elected by the State and prisoner, to authorize a new trial on tl. e ground of the partiality or prejudice of such juror, tbe impeaching evidence must be clear and satisfactory, both as to its source and matter, to counteract the oath of the juror.</p> <p>2. Same. Same. How impeaching witness examined. Practice. "When a new trial is asked for, in a criminal case, on the ground of partiality or corruption in a juror, the Circuit Judge should cause the impeaching witnesses to be thoroughly examined in open Court; instead of acting upon their prepared affidavits, though sworn to in Court.</p>

FROM CUMBERLAND. Judgment was rendered in favor of the plaintiff, at the May Term, 1858, Goodall, J., presiding. The case was brought up by writ of error.

FROM FENTRESS. This cause was heard at the June Term, 1859, GaRden-HIRE, J., presiding. Verdict and judgment for the plaintiff. The defendant appealed.

<p>Administration. Suit on judgment, in favo?' of an administrator, rendered, in another State. Debet and detinet. A suit may be maintained, in the debet and detinet, on a judgment rendered in a sister State, in the name of an administrator appointed in such State, without taking out letters of administration in this State.</p>

<p>Waite».' Vendor’s Uen. If a vendor who holds a lien upon land for the payment of the purchase money, by affirmative acts and declarations, induces the belief, on the part of a subsequent'purchaser, prior to his purchase, that he renounces or abandons his lien, it is a waiver thereof, and the vendor cannot, thereafter, enforce it, to the prejudice of such purchaser.</p>

<p>Husband and Wife. Deed executed, alone, by the wife, is void. Act of 1716, ch. 28. The act of 1715, ch. 28, substituted a deed, jointly executed by husband and -wife, and acknowledged in the form prescribed, instead of the common law modes of conveyance, and in no other way can the wife’s freehold estate pass, under our law. It is indispensable that the husband shall be a party to his wife’s conveyance: if not, the «ame is a nullity.</p>

FROM WILSON. This cause was heard at the May Term, 1859, Davidson, J., presiding. Verdict and judgment for the plaintiff. The defendant appealed.

<p>FROM FRANKLIN.</p> <p>Chancellor Ridley pronounced a decree for the complainants, at the November Term, 1859. The defendants appealed.</p>

<p>EROM ERANKLIN.</p> <p>Upon the hearing in the Court below, at the November Term, 1859, Chancellor Ridley, dismissed the bill. The complainant appealed.</p>

<p>FROM MAURY.</p> <p>The cause was heard before Chancellor Frierson, at the December Term, 1857.</p>

EROM SILES. A decree was pronounced by Chancellor EeieRSOW, at the December Special Term, 1859, for the complainants in the cross-bill. The defendants appealed.

<p>FROM MAURY.</p> <p>Judgment, upon an agreed case, before Judge Martin, at the May Term, 1859, for the defendant. The plaintiff appealed.</p>

<p>FROM MARSHALL.</p> <p>The cause was heard before Chancellor Emerson, at the February Term, 1859.</p>

<p>FROM MAURY.</p> <p>Judgment for the plaintiff at the August Term, 1859, MarTIN, J., presiding. Conner appealed.</p>

<p>Assihkmemt. Deed of trust. Evidence. J. made an assignment of his property to M., as trustee. In the deed preference was given to D., who, upon the application of hT., the stay or of J., on ajudgment included in the deed, hut not likely to he reached, made a written transfer of his prior right to satisfaction, in the form of an order to the trustee, to the creditor, on whose judgment M. was stayor. This order was accepted by the trustee, and placed in the hands of the attorneys of the judgment creditor, by ÍT., as collateral security. Held, that such judgment creditor was entitled to the benefit of this transfer; and D. could not impeach it by oral testimony showing that the order or transfer was given conditionally, the same being absolute upon its face, and accepted, by the attorneys, without a knowledge of any conditions connected with its execution.</p>

<p>1. Conveksion. Trover. Guardian. A guardian has only a naked authority, not coupled with an interest, and cannot consent to the conversion of his ward’s property, and thereby defeat a recovery in an action of trover brought by him for the value of the property.</p> <p>2. Same. Same. Same. Case in judgment. A guardian hired out the slave of his ward to work at a mill, with a stipulation that he was not to worlc as fireman. The hirer worked the slave as fireman, and, also, sub-hired him. The ward sued for a conversion of the slave. Held, that the consent of the guardian, after the hiring, to the conversion of the slave, would not bar a recovery.</p> <p>3. Hew Trial. Practice. The discretion of a Circuit Judge in granting a new trial cannot, properly, be revised by the Supreme Court.</p>

<p>FROM BEDEROD.</p> <p>Verdict and judgment for the defendant, at the December Term, 1858, Davidson, J., presiding. The plaintiff appealed.</p>

<p>FROM DAVIDSON.</p> <p>This case was tried before Judge BaxteR, at the September Term, 1859. The plaintiff appealed.</p>

<p>1. Execution. Lien of, relates to its teste. An execution issued upon a judgment of a Court of Record relates to its teste, and binds the debtor’s personal property from tbe time it is awarded.</p> <p>2. Same. Lien of executions on justice’s judgments. Levy. Code, ¡i 3078. When an execution issued upon the judgment of a Court of Record, and one upon a justice’s judgment, are levied on the same personal property, the execution first levied has priority of satisfaction.</p> <p>3. Same. Lien. Attachment. This provision of the Code has no application to a levy under an- attachment issued by a justice of the peace, and the lien of a court execution, if of older teste, has priority over the lien of such attachment.</p>

<p>EROM DAVIDSON.</p> <p>Upon the agreed case, Judge BaxtbR rendered judgment in favor of the plaintiff, at the May Term, 1859.</p>

<p>PROM HICKMAN.</p> <p>Verdict and judgment for tbe defendant, at the October Term, 1859, WalkeR, J., presiding. The plaintiff appealed.</p>

<p>FROM DAVIDSON.</p> <p>This cause was tried before Judge Baxter, at the January Term, 1859. The defendants appealed.</p>

<p>ITkaud. Sale of land. Damages. If a party get up a proceeding for a sale of real estate for partition, fraudulently, which is void, the measure of damages against him is the purchase money with interest.</p>

<p>FROM WILSON.</p> <p>Appeal from a decree pronounced by Chancellor Ridley, at the July Term, 1860,</p>

<p>1 Evidence. Presumption. Schoolmaster. Rule as to the onus of proof when a schoolmaster is indicted for an assault and battery. "When the relation of schoolmaster and scholar, or any similar relation is established in defence of a prosecution for an assault and battery, the legal presumption is that the chastisement was proper, and this, to warrant a conviction, must bo rebutted by showing that it was excessive, or without any proper cause.</p> <p>2. Schoolmaster, lli.s power to chastise scholars. Assault and battery. A schoolmaster has the power to enforce obedience to his rules and to use the rod when necessary, but he cannot chastise wantonly and without cause. His chastisement must bo proportionate to the offence, and within the bounds of moderation. If excessive, or without cause, the schoolmaster is guilty of an assault and battery.</p>

<p>X. Mesne Profits. Ejectment Judgment. The judgment in an action of ejectment settles the plaintiff's right to recovar in an action for mesne profits to the date omy of the demise laid in the declaration; but the rents and profits may be recovered for the whole time the possession lias been wrongfully held by the defendant, unless the statute of limitations is pleaded in bar.</p> <p>2. Same. Limitation, Statute of. In an action for memo profits, brought within three years after the termination of the action of ejectment, if the statute of limitation is pleaded, the plaintiff is emitted to recover the rents and profits from the date of the demise laid in the declaration until the possession is surrendered The recovery is not confined to the period of limitation from the institution of the suit.</p> <p>3. Same. Improvements. Set-off. Code, ?¿ 3201. By the Code, § 3201, permanent and valuable improvements made on land by a party who has heeii holding possession in good faith and under color of title, may be sot off against the rents and profits.</p>

<p>1. Appeal. Cannot be granted by a Justice of the Pence after two days. Code. $ 3140. By \ 3140 of the Code, two entire days (exclusive of Sunday,) after judgment, are allowed for an appeal from a Justice’s judgment. After tlie expiration of the two days, the Justice lias no jurisdiction to grant an appeal, and tbe same should be dismissed.</p> <p>2. Same. If granted, and no band taken. Question reserved. If the appeal vere prayed and granted within tbe time limited, could the Justice receive a bond for the prosecution of tbe appeal thereafter?</p> <p>3. Same. Interest on afírmame. Code, $£ 31G2, 3103. If a judgment in the Court below is rendered upon an open account, tbe party is only' entitled upon its affirmance to interest at the rate of six per cent, per annum.</p>

<p>1. EkaUdui.'ENT Conveyances. Conveyance made to defeat alimony, void. Divorce. If a married woman filo a bill for a divorce and alimony) having at the time a sufficient eauso for a divorce, and is induced by fraudulent promises to dismiss her bill, and, thereafter, the husband executes a conveyance in order to defeat her right to alimony, the grantee participating in this fraudulent design, the conveyance is void, and will be sot aside, as to her.</p> <p>2. Same. Same. Cannot s'and as security for money advanced. Where a conveyance is void on the ground of fraud, it is void ab initio, and will not be allowed to stand as a security to the grantee for advances lie may have made, or responsibilities he may have assumed on account of it.</p>

<p>1. EjECTSOHre. Deraignment of title — when necessary. Estoppel. In an action of ejectment where both parties claim title under the same third person, it is sufficient for the plaintiff to prove the derivation of his title from such third person, without deraigning it, regularly. The defendant is estopped to gainsay tile title of the person under whom both claim to hold.</p> <p>2. Deed. Sheriff. Tax sale. Act of 1809, ch. 84, £ 1. The power of a sheriff to execute a deed for land sold by his predecessor in office is derived entirely from the statute ; and this power, by the express terms of the statute, is restricted to the cases when the “sheriff may go out of office not having executed deeds for land sold by him while in office.” In such cases, alone, is the successor empowered to execute the deed.</p>

<p>1. Husbasd and Wifs. When the -wife is agent for her husband. The wife, in the absence of her husband, has an implied authority to take all proper and necessary steps to protect his property from destruction or injury, and the husband is responsible for her acts in the execution of that authority.</p> <p>2. Same. Same. Question reserved. If the wife employs another as the servant of her husband, who wilfully and tortiously commits an injury, by the assent of the wife, or, if she subsequently approve the act of the servant, would the husband be responsible for the tor-tious act?</p> <p>3. Master and Servant. Master’s liability for the acts of his servant. A master is generally liable to third persons, in a civil suit, for the tortious or wrongful acts of his servant, if these acts are done jn the course of his employment in the master’s service; and this is so, if the master did not authorize or know of the act, or even if he forbade or disapproved it.</p> <p>4. Same. Same. Ratification of servant’s acts. The master is not answerable f t the wilful and unauthorized acts of the servant, if they are done, not in the execution of, but altogether aside from the authority given by the master, unless they are subsequently ratified or adopted by him, for his own benefit.</p>

<p>1. County Clerk. Sow made liable for neglect of the duties of his office. County Court. It is the duty of the County Court to see that the clerk performs his duties, but if this is not done, and the Court makes an application of money, and employs a third person to perform any part of his official duties, the Court cannot recover the amount thus paid, in an action against the clerk or his administrator. It would he the payment of money to do the work of another without his request or sanction, and the law would not imply a promise to pay.</p> <p>2. Same. Same. Question reserved. Could the County Court in such case sue the clerk on his official bond, and render him liable for the amount paid out ?</p>

<p>Taxation. Privileges. Tippling. County Court. Railroad Tax. Act of 1851-2, ch. 117, \ 5. The act of 1851-2, ch. 117, § 6, makes it the duty of the County Court, when stock is taken in a railroad company, to provide for its payment hy levying a tax upon the taxable property, privileges, and persons, by law liable to taxation within the county; which tax shall be levied and paid upon the principle of levying the State and county tax. This provision was only intended to restrict the County Court, in levying this tax, to the principle that all property should be taxed according to value; but it does not limit the Court in taxing privileges, to the amount and mode of taxation for State and county purposes. This is left to the discretion of the Court.</p>

<p>Evidence. When a witness may give his opinion as to the soundness of a slave. In an action upon a covenant of warranty of the soundness of a slave, the opinion of a witness as to the slave’s condition, founded upon observation and knowledge, is admissible. The witness must first slate the facts upon which his opinion is.founded, and then he may give that opinion.*</p>

<p>PROM MACON.</p> <p>Decree by Chancellor Ridley, for the defendants. The complainants appealed.</p>

<p>PROM CHEATHAM.</p> <p>This cause was heard before Judge Pepper, sitting as Chancellor, at the October Term, 1859.•</p>

<p>1. Husband and Wine. Tenancy by the curtesy. Remainder and reversion. A man cannot be tenant by the curtesy of a remainder or reversion expectant upon an estate of freehold.</p> <p>2. Same. Same. Dower. If a woman, on whom lands descend, endow her mother, afterwards marries, has issue, and dies in the lifetime of her mother, her husband will not be entitled to an estate by the cur-tesy in those lands whereof the mother was endowed — because the daughter’s seizin was defeated by the endowment.</p>

<p>FROM WILSON.</p> <p>This cause was heard before Chancellor Ridley, at the July Term, 1859. The complainants appealed.</p>

<p>Partnership. Deed of Trust. Dissolution. Either partner may, during the existence of the partnership, make a valid assignment of the goods of the firm, to secure debts due therefrom; but if the partnership, by mutual consent, is dissolved, and the debts, accounts, and goods placed in the hands of a third person, to wind up and settle the firm business, neither partner can, thereafter, malee a valid disposition of them.</p>

<p>1, ACCOUNTS. From another county, or State. Affidavit. Evidence. Act of 1819, ch. 25, $ 1, Code, $ 3780. The true construction of the act of 1819, ch. 25, ¡i 1, carried into the Code, $ S780, is, that the denial, on oath, of the justice of an account coming from another county, or State, does away all the force of the affidavit of the plaintiff, and puts him to the proof of the account as though the act had not existed.</p> <p>2. Samis. Same. Practice. When the affidavit may be made by one defendant. Where the defendants, if more than one person is sued, have a joint interest, and are jointly concerned in the defence against the account sued on, the oath of one, if it go to the justice of the account as to both, is equally efficacious as if made by both.</p>

<p>Okiminaí Law. Prosecutor-^death of. The accident of the deatll of the prosecutor marked on an indictment, pending the prosecution, does not operate as a discharge of the accused. The prosecution goes on, as though the death had not occurred.</p>

<p>Champerty. Evidence. When attorney implicated, a competent witness. If, by the admissions of a party, a chanipertous contract is established! between him and his attorney, such attorney is not a competent witness to prove that the statements of his client are false, and that ne> such contract was entered into.</p>

<p>PROM WILSON.</p> <p>Judgment by default was rendered at the January Term, 1859, Davidson, J., presiding. The cause was brought up by a writ of error.</p>

<p>1. Administrators and Executors. Resignation of a co-executor. Inability for a devastavit. If two or more are appointed and qualified as executors, and one is guilty of a devastavit, after which his co-executors resign, and he executes a new bond, such co-executors are, primarily, liable for such devastavit.</p> <p>2. Same. Same. When new sureties are indemnified. If the remaining executor resign, and one of his sureties is appointed administrator de bonis non, with the will annexed, and sufficient indemnity is given him to cover such devastavit; or, if such indemnity is given to the new sureties, the primary liability rests upon them, and not upon the co-executors.</p> <p>3. Same. Same. Same. When indemnity not sufficient to save both. If the indemnity given by the remaining executor was to secure and make good the estate then in his hands, or which he had wasted, and were insufficient to save harmless, both the co-executors and new sureties, the latter are, primarily, liable.</p>

<p>EROM MONTGOMERY.</p> <p>This Gause was heard before Chancellor EribrsoN, at the October Term, 1859.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from a decree pronounced by Chancellor Frierson, at the November Term, 1859.</p>

<p>ER0M DAVIDSON.</p> <p>Tbe plaintiff in error was found guilty at tbe December Term, 1859, Turner, X, presiding, and appealed to- this Court.</p>

PROM DAVIDSON. The plaintiff in error in constructing their road through Edgefield, made a cut across Spring street, rendering it impassable at that point. No bridge or substituted road was built to avoid this obstruction. Yerdict and judgment, at the August Term, 1859, against the company, TURNER, J., presiding.

<p>erom Lawrence.</p> <p>Yerdict and judgment for the plaintiff, before Judge Walker, at the June Term, 1859. The defendants appealed.</p>

<p>PROM CANNON.</p> <p>Appeal from the decree of Chancellor Ridley, made at the April Term, 1859.</p>

<p>]. Damages. When exemplary, may be given. In cases of fraud, malice, gross negligence, or oppression, the interestof society and the aggrieved party are blended, and the jury may award exemplary damages — such as not only to recompense the sufferer, but to punish the offender. •</p> <p>2. Masteu and Slave. Liability of master for acts of slave, or servant. The master is liable for the acts of his slave, or servant, if the act is done by his express command, or with his approval, or in his presence, without his forbidding it; or, if it be subsequently ratified by him, whether it be for his detriment, or his advantage.</p> <p>3. Same. Same. When master is said to be present. If the master is near at hand when an act is done, although not actually present, and must have known that the act was being done, he is held to have been present, and liable accordingly.</p> <p>■i. Negligence. When misconduct of the plaintiff will affect his recovery. If the conduct of the defendant is the immediate cause of the plaintiff’s loss, any negligence of the latter, if remote, and not at the time of the injury done by the defendant, will not affect his right of recovery.</p>

<p>FROM BEDFORD.</p> <p>This cause was tried at the August Term, 1859, Davidson, J., presiding. The plaintiff appealed.</p>

<p>1. Lien — Vendok’s. Assignment of the purchase money. Where the legal title to land sold has been conveyed to the purchaser, the assignment or transfer by the vendor to a third person, of a note taken for the purchase money, does not carry with it to the latter the implied lien of the vendor.</p> <p>2. Same. Same. But where the vendor has not parted with the legal title, or whore he has taken a mortgage, or has retained an express lien by agreement, the lien accompanies the assignment of the purchaser’s note for the purchase money.</p> <p>3. Same. Same. If the purchaser of real estate execute his notes for the purchase money, and receive a deed, which, on its face, reserves an express lien for the security of the same, the effect of such provision is to create an express lien, which follows the notes in the hands of the assignee.</p> <p>4. Same. When part of the lands have been sold by the purchaser. If real estate is sold, and notes given for the purchase money, and the purchaser subsequently sells a portion of the same, reserving to himself a part which ho afterwards sells, the first purchaser has a right to insist that the lands of the last purchaser shall he jfirst subjected to the discharge of the vendor’s lien.</p> <p>5. QurA timet. Chancery jurisdiction. Anticipated injury. Case in judgment. Bills, quia timet, are maintained to prevent anticipated injuries, and not merely to redress them when done. Thus, if a ven-dee sells portions of a tract of land to different purchasers, the vendor’s lien not being extinguished, the first purchaser has a right to compel the extinguishment of such lien by a sale of the other portion of the land, and he may file a bill, quia timet before he has paid, or been called on to pay the debt due to the vendor, or his assignee.</p>

<p>FROM DAVIDSON.</p> <p>Decree for the defendants, at the November Temí, 1859, Chancellor Frierson presiding.</p>

<p>EROM BEDEORD.</p> <p>Decree for the complainants, by Chancellor Ridley, at the August Term, 1859. The defendants appealed.</p>

<p>FROM WATNE.</p> <p>The plaintiff in error was convicted at the September Term, 1859, WALKER, J., presiding, and appealed.</p>

<p>FROM DAVIDSON.</p> <p>This cause was tried at the May Term, 1859, before Chancellor Frierson.</p>

<p>PROM JACKSON.</p> <p>This cause came up from a decree of Chancellor Ridley, overruling an exception to the Master’s report.</p>

<p>EROM PUTNAM.</p> <p>His Honor, Judge Fite, quashed the execution, and Anderson appealed.</p>

<p>1. Stayor. When, liable. Justice's office The place where an official act is done by a justice, is his office for that particular purpose, w> matter where it may be, so that it is within the territorial limits of his jurisdiction. Hence, if a justice render a judgment and receive stay surety at a place different from his usual place of business, the stayor is hound.</p> <p>2. Principal and Surety. Stayor. Execution. The property of the principal must, first, be exhausted. Code, § 3028. It is the duty of an officer having an execution, to exhaust the property of the principal, both real and personal, before proceeding to sell the property of the surety, or stayor.</p> <p>3. Same. Same. Same. When the property of the principal is encumbered. If the property of the principal be encumbered, or in custody of the law, or if by the death of the principal it cannot be reached without reviving the judgment against the personal representative, or for any other cause is not amenable to the immediate requirement of the process in the officer’s hands, it is his duty to proceed at once against the property of the stayor or other surety.</p> <p>4. Execution. Death of the principal. Revivor. The death of one or more defendants in a judgment, interposes no obstacle to the issuance-of an execution without reviving the judgment. The execution is issued in the usual form, and it is the duty of the officer to proceed to-collect the debt from the surviving defendants.</p>

<p>Summary Proceeding. Motion. Constable. Execution, return of. An officer is not liable to a judgment by motion, for the non-return of an execution, if within the time given by law for its return his term of office expires.</p>

<p>L Paktition. Cannot be made by a foreign court. Conflict of laws. A foreign court cannot, by its judgment or decree, pass the title to land situate in another country; and, consequently, a partition of lands lying in this State cannot he made by the courts of another State.</p> <p>2. Comtlict 03? Laws. Chancery. Jurisdiction. . Specific performance. A court of equity, acting in personam, may entertain a bill for the specific performance of a contract respecting land situate in a foreign country, if the parties are resident within the territorial jurisdiction of the court.</p>

<p>PROM BEDEORD.</p> <p>Chancellor Ridley pronounced a decree for the defendants at the August Term, 1859, from which the complainants ap pealed.</p>

<p>STROM FRANKLIN.</p> <p>This cause was heard, at the July Term, 1859, before Judge MaRCHBanks.</p>

<p>FROM BEDFORD-.</p> <p>At the December Term, 1858, verdict and judgment were for the defendants, Davidson, J., presiding. The plaintiff appealed.</p>

<p>EROM WHITE.</p> <p>This cause was tried before Judge Eite. Yerdict and judgment for tbe plaintiff. The defendant appealed.</p>

FROM FRANKLIN. The Court, Maiichbanks, J., presiding, refused to revive the suit in the name of the speeial administrator, and the plaintiff appealed.

PROM WARREN. Judge Marchbanks refused, upon the motion of the defendant, to render judgment in his favor for the excess, and he appealed.

from stewart. At the July Term, 1859, Pepper, J., presiding, there were verdict and judgment for the defendant. The plaintiff appealed.

<p>3, Scire vacias. Administrators and Executors. Code, $$ 2271, 2272. Practice. On the return of a justice’s execution against an executor or administrator, “no property found,” the justice, on suggestion and application of the plaintiff, his agent or attorney, shall return the papers to the next Circuit Court of his county. And upon said papers scire facias shall bo issued, and all other proceedings he had for the satisfaction of such judgment, either out of the goods and chattels, lands and tenements, of the defendant, in case he has wasted the assets, or out of the real estate of the deceased.</p> <p>2. Same. Same. Devastavit. Debt. Practice. "When an executor or administrator has been guilty of a devastavit, he may be rendered personally liable, either by an action of debt on the judgment, alleging a mismanagement or wasting of the assets, in the declaration, or by scire facias, suggesting a devastavit of record and obtaining an order for the issuance of the writ.</p> <p>8. Same. Satisfaction out of thereat estate. Jffeirs. Practice. If it is desired to obtain satisiaction out of the real estate descended to the heirs, a suggestion must be made upon the record of the fact that real estate has descended to the heirs, as a necessary foundation for a scire facias against them. The clerk has no power to issue the writ in vacation.</p>

<p>FROM ROBERTSON.</p> <p>The bills were dismissed by the Chancellor, and the complainants appealed.</p>

FROM GILES. This causo ivas tried in the Circuit Court of Giles, at, the December Term, 1857, Hon. IV. P. Maetin, presiding. Verdict and judgmentfor the plaintiff. The defendant appcaled.

<p>1. Land Law. JCxeetUion. Void and voidable. If land is sold under an execution either void ov vo'dable, and the plaintiff in the execution become the purchaser, lie acquires no title by virtue of his said purchase.</p> <p>2. Same. Same. Payment. Payment extinguishes a judgment and execution as between the parties; and if land is sold by virtue of an execution thus extinguished, and purchased by the plaintiff, he ac-quiies no title to the land.</p> <p>3 Same. Same. Same. Redemption. If a party redeems land from, the purclia-er, he is substituted, by the redemption laws, lo the rights of the purchaser, and acquires no b-tter title to the land than he posse sed. If, therefore, the execution under which land is- sold has been paid, and the plaintiff, by him-elf or agent, become the purchaser, and the land is redeemed by another creditor, neither the purchaser nor the party redeeming acquire any title.</p> <p>4. Chance try Jurisdiction. Different equities. When there are several equities and rights between the parties to a suit in chancery, the Court has the power and will adjust these various equities and rights by a proper decree in the cause.</p>

<p>1. Railroad Company. Charier. Entering town or city. The words, from a town or city, used in a charter granted to a railroad company, are to be taken inclusively; and in the construction of their road, they hayo the right to enter the corporate limits of such town or city.</p> <p>2. Same. Same. Power of the Legislature. The Legislature has the power to authorize the building of a railroad within a town or city, or upon a street or other public highway.</p> <p>3. Same. Same. Construction of. A railroad company can claim nothing that is not clearly given them in the act of incorporation; and any ambiguity in the terms of the charter must operate against the company, and in favor of the public.</p> <p>4. Same. Same. Same. Incidental powers. This rule of construction is not to deprive the company of the benefit arising from the obvious sense of the charter; and whatever is essential to the enjoyment of the thing granted will ho necessarily implied in the grant.</p> <p>5. Same. Same. Same. Public road. The idem public road, used in the charter of The Nashville and Chattanooga Railroad Company, does not embrace the streets and alloys of a city.</p> <p>6. Same. Same. Same. The power granted by tbo charter of a railroad company to construct their, road wilhin a city or town, carries with it, by implication, the power, if necessary, to locate their road upon a street or alley. And if a company be authorized to build a railroad by a straight line between two designated points, the power, by imp'ication is conferred to run upon, along, or across all the streets or roads which lie in the course of such lino.</p> <p>7. Same. Same. Same. Obstructions. The company is allowed to create in the construction of their road such obstructions as cannot be avoided; but those that are not, absolutely necessary to the making and using of their road, are unlawful. It- is the duty of the company to leave public roads, streets and alleys as free from obstructions as they can; and to spare no reasonable expenditure of money or labor for that purpose,</p> <p>8. Same. Same. Suit at common law. Remedy pointed out in the charter. So long as a railroad company keep within their charter, they cannot be sued at common law, unless it be for injuries inflicted eithe wantonly, or from neglecting to use reasonable diligence and care-Compensation for land taken, or damage growing out of ttie use of a street, &c., must be obtained in the mode pointed out in the charter.</p>

<p>PROM BEDFORD.</p> <p>This cause was tried at the December Term, 1858, before Judge Dayidson.</p>

<p>FROM SMITH.</p> <p>This canse was tried before G-ARDENniRE, J. Verdict and judgment for plaintiff.</p>

<p>Lies. Vendor's. Mortgage. The vendor’s’lien haspriority of satisfaction over [lie claim of a party who advanced to a ne of two joint purchasers, money to he applied to the paj’ment, in part, of the purchase money, and took a mortgage on the interestin the land of such joint, purchaser The taking of the mortgage shows that llie loan was intended to creato a debt against the borrower, and that it was not considered as a payment towards the land.</p>

<p>1. Constitutional Law. Sheriff. Constable. Official term of. The constitution simply prescribes the mode of appointment, and the duration of the term of office of sheriffs and constables. The time and manner of qualification are left to be regulated by the Legidaturo.</p> <p>2. Same. Same. Same Same. Act of 1835, ch. 1, sec. 12. By the act of 1835, ch. 1, sec. 12, the officer holding the election for constables ■ is required to certify the result of the election to the County Court; and, thereupon, said Court shall take bond and security from the party elected and qualify him as now prescribed by law ; after which said party shall enter upon the duties of the office of constable. His official . term of “ two years,” therefore, commences from the date of his qualification ; and not from the day of his election to the office.</p> <p>3. Execution. Return of. Sheriff. The sheriff lias the whole intervening period between the time an execution comes to his hands and the return day to execute it.; unless by delay the debt might be lost or put in jeopardy; and if his term of office expires before the return day of an execution the only duty imposed on the outgoing sheriff is to deliver over the process to his successor.</p> <p>4. Same. Same. Same. Sureties. A sheriff has no power to execute or return an execution after his term of office is at an end; unless while in office he had begun its execution; and a failure to execute and return an execution in such a case is not a broach of the condition of his bond, so as to charge his sureties.</p> <p>5. Same. Same. Same. Delivery of process to successor. The neglect of the sheriff to deliver over process remaining unexecuted in his hands, upon the expiration of his official term, to his successor, is not an official omission or neglect, within the condition of his bond, so as to charge his sureties.</p> <p>6. Same. Same. Same. Same. Question reserved. If an execution is placed in the hands of the sheriff, and retained by him with the knowledge and by the express direction of the plaintiff, can any default be imputed to him for failing to execute and return it?</p>

<p>Will. Construction of. Power coupled with a trust. Advancements. After devising all his personal and real estate to his wife, the testator used this language; “ Believing that she will mate an equitable distribution of the property, at her death, among our children. * * * She is getting old and infirm, and. when I am gone this power to give will make them, I hope, dutiful and affectionate to her, as 1 hereby give her the power to reward those that are most dutiful to her.” Afterwards a plantation and mills, which the testator thought would return to his estate, were devised to one of his sons. Held:</p> <p>1. That the paper last, executed must be read in connection with, and as part of the will, and that its effect is to give the plantation, mills, etc., to the testator’s son, as an advancement, leaving the will, in all other respects, intact.</p> <p>2. That under the will the widow took a life estate in the property, with a power of appointment coupled with a trust: the will not conferring a mere naked power, which the party might or might not execute in her discretion.</p> <p>3. That the widow may make a just and reasonable discrimination in the divison of the property, based upon the good or ill conduct of the children towards her after testator’s death; but there must be a real and substantial allotment to each one in the distribution.</p> <p>4. The power of appointment being coupled with a valid trust, and the widow having died without executing the power, a court of equity will hold the trust to survive, and will decree its execution; it would be otherwise if it was a mere naked power, not coupled with a trust.</p> <p>5. In decreeing the execution of the trust, the court will, as far a practicable, carry out the wishes and intentions of the testator, apparent from the face of the will, if there is nothing inequitable or improper in itself, in its provisions.</p> <p>6. The inquiry as to whether the children were alike dutiful to their mother, she having died, is impracticable; the facts are not capable of ascertainment, in any satisfactory mode. All that the Court can do is to give effect to the general intention of the donor.</p> <p>7. In order that words of recommendation, entreaty or wish, shall bo held to create a trust, it is necessary; first, that the words are so used that upon the whole they ought to be construed as imperative; secondly, the subject of the recommendation or wish bo certain; and, thirdly, that the objects or pel sons intended to have the benefit of the recommendation or wish, be also certain.</p>

<p>1. Principal and Agent. General and special authorities. Sill of Exchange. General authorities to transact business and to receive and discharge debts do not confer upon an agent the power of accepting or endorsing bills so as to charge the principal. Special authorities to accept or endorse bills are construed strictly.</p> <p>2. Same. Same. Acceptance of hills hy Agent. The power to accept bills, so as to charge the principal, is one of too much importance and too liable to be abused, to be held to exist unless it be given in terms, or be manifestly proper and necessary' to effectuate the purposes of the agency.</p> <p>3. Same. Same. Extraordinary emergency. The acceptance of bills, by an agent, to avoid the suspension of work of great importance to the principal, does not fall within that class of cases of extraordinary emergency, or overruling necessity, in which from the very necessities of the case, an agent is justified in deviating from the authority conferred on him.</p>

<p>Evidence. Slander. General character. In actions of slander, the plaintiff’s general character upon the trait involved in the charge is put in issue and may be proven; but his general character upon traits not involved in tne charge, or special charges, or other crimes, or suspicions and rumors, are not admissible.</p>

<p>Forcible Entry and Detainer. Agreement. Construction of. By an instrument of writing, the plaintiffs in error specified certain services to be performed by the defendant for which he was “to have the house rent, use of garden, fire-wood, and pasturage for what cows you keep for family use. Mr. A. J. Hall to hold possession until 25th of December, 1859, and said Hall to have entire control of the premises as agent for Ariand E. Colcord.” Held: that Hall was not a mere agent, but took an interest in the premises as the lessee of A. E. Colcord, and was entitled to the possession until the 25th December, 1859, and if wrongfully turned out of possession, could maintain ■ an action of forcible entry and detainer to be restored to the same.</p>

<p>1. Stay or Execution. Entered after two days. If a party go to the Magis trate’s office and enter his name as stayor after the expiration of two days, in the absence of the Magistrate and Plaintiff the subsequent assent of the judgment creditor to the stay of execution, after the lapse of two days and of the justice, to accept the party as stayor, manifested by their acquiescence, is as effectual to bind him as if then-previous assent to the act had been expressly given.</p> <p>2. Same. Same. Delivery Bond. Effect of forfeiture of. If, in such case, the stayor execute a delivery bond and forfeits the same, the effect of the forfeiture is equivalent to a judgment against the stayor, after which he is estopped from gainsaying his original liability.</p>

<p>PROM BEDFORD.</p> <p>Verdict and judgment for the defendant. The plaintiff appealed .</p>

<p>PROM DEKALB.</p> <p>This cause was tried before Judge Davidson who was pro siding by interchange with Judge Fite.</p>

<p>FROM rutherford.</p> <p>Decree for the complainant before Chancellor Ridley. The defendants appealed.</p>

<p>1. Railroad Company. Acts through its officers and agents. A railroad company acts through the instrumentality of its officers and agents. If not prohibited by the charter, it may delegate its authority to its officers and agents, so far as may be necessary to effect the purposes of its creation.</p> <p>2. Same. Same. Power of a Superiniendant. If the Superintendant of a railroad company be clothed with the power and authority of the Board of Directors, so far as regards the control and management of the trains; and all the arrangements connected therewith: he is the immediate representative of the company — the corporate execution officer — and the company is liable for an injury resulting from the negligence or improper order of the Superintendant, just as much as if it had emanated directly from an act of the company in its corporate capacity.</p> <p>3. Same. Servants of . Liability for injuries to, ivhen not in the employ of the company. The rule that the principal is not liable for an injury to one servant, resulting from the negligence or improper conduct of another servant, does not apply where the servant injured was not at the time of the injury acting in the service of the master. In such case the servant injured is substantially a stranger and entitled to all the privileges he would have had if he had not been a servant.</p> <p>4. Same. Same. Same. Servant absent without leave. If the servant is improperly absent without leave, but is received on another train of the company than the one to which he belongs without objection by the conductor, who is intrusted with the duty of excluding all persons not lawfully entitled to be on the train, the liability of the company is not affected thereby.</p> <p>5. Same. Same. Ridiny free and in the baygaye car. The fact that the servant or other person, is riding in the baggage car, with the knowledge of the conductor, or is riding free, will not preclude him from a recovery for an injury caused by a collision, even though he might or would not have been injured if he had remained in the passenger car.</p> <p>li. Same. Same. Question reserved. Is the principle that the master is not liable for an injury received by one servant from the negligence of another, while both are acting in the common business of the same master, applicable to servants of a railroad company, in different grades; when they are subordinate the one to the other; or not in the same employment?</p>

<p>FROM DAVIDSON.</p> <p>Yerdict for the plaintiff, Baxter, J., presiding. The State appealed.</p>

<p>PROM DAVIDSON.</p> <p>This cause was tried at the May Term, 1859, before his Honor, Judge Bastee. Verdict and judgment for the plaintiff.</p>

FROM FRANKLIN. At the July term, 1859, his Honor, Judge Marohbanks’ sustained the third exception to the report, and ordered the re-sale of the land.

<p>PROM SMITH.</p> <p>Decree pronounced by Chancellor Ridley. The complainant appealed.</p>

<p>1. Will. Probate in common form. When set aside by the County Court. When a will has been proven in common form before the County Court, it can, alone, be annulled by the judgment of the Circuit Court, founded upon the verdict of a jury against the validity of the will.</p> <p>2. Samjs. Same. Will sustained. Qualification of executor. If a will has been proven in common form before the County Court, and the executor duly qualified; but afterwards th same is certified to the Circuit Court and an issue formed testing the validity of said will, as to the real estate, leaving it unaffected as to the personalty,'the office of executor, ■which had been regularly conferred on him, with all its rights, duties and consequences, continued to exist in full force, as if no contest upon the will had taken place.</p> <p>3. Statute of Limitations. Executor and administrator. Act of 1789. If proper and effectual steps are not taken within the time limited by the personal representative, to enforce satisfaction of a claim in his own favor upon the estate, the act of 1789 will form a bar, as in the case of other creditors, failing to sue within the proper time.</p>

<p>1. Common Carrier. Liabilty for slaves. Rule modified. Slaves have volition and possess reason and feeling. They cannot be stored away like a bale of goods, or other merchandise. The great rigor of the law, therefore, as to the liability of common carriers of goods, or other property, does not apply to slaves. Where a slave is placed with a common carrier, to be transported from one point to another, for hire or reward, the carrier would be bound to use ordinary diligence only, in taking care of him, and securing him against injuries, or escape.</p> <p>2. Same. Same. Question reserved. If the master goes on board a boat or other conveyance, and takes his slave with him, having charge and control of the slave, and without an express undertaking by the carrier, to watch and guard his movements, would any duty devolve on him in reference to the slave 1</p> <p>S. Evidence. Statements of witness on former trial. Rill of exceptions. It is not admissible to prove what a witness swore lo on a former trial, because his attendance could not be had. This rule applies where the witness is dead. Neither is a bill of exceptions admissible in such case, to prove what the witness stated on the former trial.</p>

<p>1. Sale or Real Estate. Sale at Auction. Puffers and By-bidders. Fraud. The vendor of land at public auction may, unknown to bidders, privately depute a third party to attend the sale, and bid progressively for the property on his account, as a defensive precaution to prevent it from being sold at an undervalue ; but, if a number of persons are employed as puffers to make fictitious biddings, with the view of taking advantage of the eagerness of buyers, to screw up the price, and not for a defensive precaution, to prevent a sale at an undervalue; this is an imposition and a fraud ; and avoids the sale.</p> <p>2. Same. Same. Same. Same. If the vendor publicly reserve the right to make one bidding and no more, through a person who is named ; and then secretly employs another person to make general and repeated biddings, this is such a fraud as will enlitle the purchaser to abandon the contract. '</p> <p>3. Same. Same. Sale without reserve. If, by the advertisement, the property is to be sold without reserve, this excludes all interference by the vendor, or others for him, with the right of the public to have the property at the highest bidding; and, in such case, any arrangement between the vendor and a third party, the result of which is to prevent the property from being sold under a fixed sum, will render the sale void.</p> <p>4. Same. Same. Purchaser must be misled. In order to avoid a sale on this gi’ound, it must be shown that under-bidders or puffers, are employed to enhance the price and deceive other bidders; and that they are in fact misled thereby.</p>

<p>PROM SUMNER.</p> <p>This cause was heard at the October Term, 1859, before His Honor, Judge TurneR.</p>

<p>PROM FRANKLIN.</p> <p>'The Chancellor dismissed the bill. The complainants appealed.</p>

<p>1. Special Commissioner. Cleric. Act of 1849, ch. 61, g 2. By the Act of 1849, ch. 5, see. 2, the appointment of Special Commissioner is distinct from the office of Clerk. The appointment is not under the Constitution, but under the authority conferred by the statute. The two offices are, in legal contemplation, distinct, though filled by the same person. The Special Commissioner is properly a trustee; and the condition of the bond obliges Mm to perform all the duties of the trust.</p> <p>2. Same. Duration of the appointment. Sureties. The duration of the appointment is not limited by law. This is loft to the discretion of the court, according to the exigencies of the various cases that may arise. And if the duration of the appointment be not limited, as to time, by the court, in the order of appointment, it follows that the appointment continues until the duties of the trust ave discharged.</p> <p>3. Same. Same. Same. By the express terms of the bond, the Special Commissioner is bound faithfully to account for and pay over all such sums of money as may come into his hands; and if his term of office of Clerk expires before he has wound up liis trust as Special Commissioner, and he retain and collect notes as such Commissioner, and fail to account for and pay over the same, ho and his securities are liable therefor.</p> <p>4. Samk. Same. Handing over notes. Question reserved. If the office of Special Commissioned and Clerk are united in the same person, is it his duty, on retiring from the office of Clerk to hand over notes taken as Special Commissioner, to his successor; and, if so handed over, will it discharge him and his securities from liability ?</p>

<p>1. Principal an» Sukeit. Injunction bond. Is joint and several. The undertaking of the surety in an injunction bond where there are several complainants, is in law, for the principals, severally as well as jointly. That is, the surely is bound in effect, that each and all of his principals shall perform and fulfill whatever decree may be rendered in the cause against all, or, either of them.</p> <p>2. Same. Same. Effect of abatement as to one principal. The abatement, therefore, of a suit in equity, as to one of several joint plaintiffs by the neglect of both parties to revive, or the discharge of one upon some ground applicable to him alone, cannot affect the liability of the surety for the surviving party or parties, against whom a final decree may have been properly rendered.</p>

<p>FROM LINCOLN.</p> <p>Tried at tbe March Term, 1859, MarchbanKs, J., presiding.</p>

<p>FROM DEKALB.</p> <p>Demurrer to the plea of defendant, sustained by Judge Eite. He appealed.</p>

<p>1. Descent and Distribution. As between anuncie and aunt, and grandmother. Tlie maternal grandmother of a person dying intestate, without issue, as next of kin, succeeds to the personal estate, in preference to the paternal uncle and aunt. But the paternal uncle and aunt, in preference to the grandmother, succeed to the real estate if inherited from the paternal ancestor of the intestate.</p> <p>2. Partition. Cannot be set aside by adults. Fraud. Feme covert. If a petition is presented by adults for a partition of lands, in which minors are interested, praying for a division in a certain manner; and the partition is made in conformity to their wishes, they cannot be heard to object to it, although, as to the minors, it may be void, and would be set aside upon their application. And if the object in sotting aside said partition, is to defeat the succession of the next of kin of the infants, it would be a gross fraud; and would not be permitted even in favor of a complainant who is a feme covert.</p>

<p>1. Taxation. Constitutional lau>. By the Constitution, Art. 2, sections 28, 29, all property shall he taxed according to its value. There are no other limitations or restictions in the Constitution upon the power of the Legislature.</p> <p>2. Same. Duty of assessors. All property should he assessed at its fair value, to he determined hy the ordinary selling and buying prices for cash, at the time the assessment takes effeet. To place it any lower than this standard is a palpable dereliction of duty hy the assessors, and an infringement upon their oath.</p> <p>3. Same. Where slaves to be assessed. Code, $ 563. Slaves are to he assessed to the owner in the county where he resides, whether in his possession or not; and whether in the same county or not. But the owner cannot he required to pay taxes on them in. hut one county.</p>

<p>FROM FRANKLIN.</p> <p>This cause was heard at the November Term, 1859. Rib-ley, Chancellor presiding.</p>

<p>PROM FRANKLIN.</p> <p>This canse was tried at the April Term, 1859, before Iiis Honor, Judge Marchbanks.</p>

FROM MACON. 'The facts are sufficiently stated in the opinion. Decree pronounced by Chancellor Ridley, from which Jas. T. Mills’ .trustee and Mrs. Roberson appealed.

<p>PROM WILLIAMSON.</p>

<p>1. Stay of Execution. Oode, § 3065. Additional stayor. Affidavit. Notice. By sec. 3065 of Ihe Code, the plaintiif may at any time before the expiration of the stay, if he deems his debt in danger, on account of the condition of the stayor, require the defendant to justify or give other security ; and if he fail to do so, have execution forthwith. But this requires an affidavit of the plaintiff, and two days’ notice to the defendant.</p> <p>2. Same. Same. When affidavit essential. The affidavit is required for the benefit of the defendant, to prevent him from being unnecessarily required to give other stay surety, or justify that already given But, if he is notified and gives the additional security without requiring the affidavit, the stayor is bound.</p>

<p>1. Chanuery. Mortgage. Covenant. A court of eqnity considers what ought to have been done, as done. Thus, if a covenant he entered into, agreeing to execute a mortgage to the covenantee upon the cove-nantor receiving the legal title to the land, the covenant not being registered, it will have the same effect asan unregistered mortgage.</p> <p>2. Same. Prior equities. When party a purchaser for value. Deed of trust. A conveyance of land in payment of an antecedent debt does not put the grantor in the position of a purchaser for value, nor entitle him to the protection of a court of equity, as against prior equities, either under the rules of the English chancery practice, or by the registry laws. Much less can it have this effect when the conveyance is intended as collateral security for pre-existing debts.</p>

<p>PROM DAVIDSON.</p>

<p>PROM WILLIAMSON.</p> <p>This cause was heard. before Chancellor Erierson, at the October Term, 1859.</p>

<p>Will. Construction of. Creditors. The testator directed that his property he kept together hy his executors, and managed hy them until his youngest child should arrive at the age of twenty-one years. They were clothed with full power to sell any of the property and purchase other property; or exchange property, having the same power as the testator, to manage the estate for the benefit of his children.— He directed, when his youngest child ar riyed at the age of twenty one years, that the property he equally divided between his children, and the deeendants of such as died. Held:</p> <p>1. That the interests of the respective devisees and legatees were not to he severed from the mass of the estate, or to be enjoyed in possession Until the youngest child arrived at the age of twenty-one years.</p> <p>2. That the entire estate is placed in the exclusive possession, and under the control of the executors, with arf unlimited power to manage it, until the youngest child shall attain his full age; and then it is to be equally divided between the surviving children, and the descendants of children who may have died, leaving children surviving them.</p> <p>3. That, as neither of the children, have a right to demand that he shall be let into the possession of his share of the estate, until the youngest child arrives at age, a creditor of either child, seeking to subject his share to the satisfaction of his debt, can stand on no higher or different ground ; and cannot obtain possession of a share sold until the happening of that event.</p>