Volume 41 — Tennessee Reports

<p>1. Bills of 'Exchange and Notes. Omissions may be supplied. Bills and Notes should express the sum for which they are given, in the body of the instrument; but an omission of the sum will not render the bill or note invalid, if the true amount can be gathered from other parts of the wilting. The amount marked in the margin may be ret ferved to, in order to remove any ambiguity in the language used, or to supply the amount where it is not stated in the body of the note.</p> <p>2. Same. In tohat currency to be paid. Custom may determine true sense of toords used. Where the currency in which a bill or' note is to be paid, is not mentioned, the law promises it to be the currency of the country where it is to be paid. The intention of the parties may be interpreted from the custom or usage of the place where the note is made: a note made in England for one hundred pounds, would mean one hundred pounds Sterling; and if anote for the same sum were drawn in London, payable in Boston, it would be construed to be for one hundred pounds of the lawful currency of Massachusetts.</p> <p>3. Practice. Proper judgment when demurrer is overruled. Code, Sections 2936, 2937, 2938 and 3167. By See. 2936 of the Code, a party against whom a judgment on demurrer is rendered, may plead over as a matter right, without waiving the benefits secured by his demurrer; the proper judgment, therefore against him, is, responondeat ouster; and by Seo. 2937 of the Code, a writ of enquiry may issue immediately and he executed the same term: by Sec. 2938, if the demurrer is without cause, terms may be imposed not exceeding the costs of the action. The Supreme Court, by Sec. 3167, is required to gire such judgment as should have been rendered in the inferior Court, and shall issue execution without a procedendo, except where the damages to be assessed are uncertain, in which case the cause must be remanded for further proceedings.</p>

<p>FROM MEMPHIS.</p> <p>The bill in this case was filed in the Chancery side of the Common Law and Chancery Court at Memphis, for dower; and heard by Judge J. P. Caruthers, at the February Term, I860. There was a decree assigning-dower to the complainant, Mrs. Martha C. Boyers.</p>

PROM MEMPHIS. This cause was tried before Judge JOHN P. Caruthers, at the January Terra of law side of the Common Law and Chancery Court of the city of Memphis, 1860. There was a judgment in favor of the defendant, Smith.

FROM CARROLL. This was a contest upon an issue of clevisavit vel non, tried before Fitzgerald, J., at the November Term, 1860. There was a verdict of the jury, establishing the will of Jonathan Rose.

FROM FAYETTE. This cause was tried before Judge J. C. Humphreys, at the November Term, 1859. The plaintiffs offered, in evidence, a power of attorney from defendant to his brother, which was rejected by the Court. There was a judgment in favor of defendant.

FROM HENRY. This was a motion against the Sheriff of Henry county, and his securities, for failure to pay over moneys collected, and for failure to return an execution issued by a Justice of the Peace; tried before Judge Fitzgerald, who gave judgment against the Sheriff and his sureties, and they bring up the case by writ off error.

<p>1. Gaming. Consideration. Conveyance for void. Sharp conveyed to Talliaferro a lot, in consideration that the latter had won the lot from • the former, upon a bet, or wager, made between them, touching the result of a general election. Held, that the conveyance in this case, is a nullity, and Sharp is still seized of the estate in the land in exactly the same manner, and to the same extent, as if such conveyance had never been executed by him; and could recover possession again-in an action of ejectment, or go into a court of equity and have the void deed delivered up and cancelled, as being a cloud upon his title. The land being still the property of Sharp, his creditors can subject it to the satisfaction of their claim against him.</p> <p>Ü. Same. Same. Betting on elections, gaming. By our Statute, 11 betting on elections ” is declared to be “gaming.” And by the Act of 1799, ch. 8, every species of gaming contract is deolared to be illegal and. void, and every promise, agreement, bill, bond, or other contract,- and every “ conveyance or lease of bond ” founded upon a gaming consideration, is made absolutely void.</p>

<p>1. A Note Without Consideration. Parol Contraed. When a Note is given without conditions of any sort upon its face, its collection cannot he defeated, or change the mode of payment by proof of a parol contemporaneous agreement, not contained in the writing.</p> <p>2. Same. Transferred after due. When freed from equities. A note transferred after it is due, is subject to all the equitable defenses in the hands of the indorsee, that it would have been in the hands of the payee. But where A holds anote on B, due the 25th of December, 1858, and B agrees to pay his note to A, by returning to him a note for the same amount, and due the same time, which he had held on A, and transferred to C, but failed to do so, A, holder of the note of B, given to A, transferred after it was due, takes it free from any equities op the part of B.</p>

<p>PROM HENRY.</p> <p>There was a judgment by default for the plaintiff, at</p> <p>the May Term, 1859, Judge Fitzgerald presiding.</p>

<p>FROM HENEY.</p> <p>This bill was heard by Chancellor Williams, at the Term, 1859, of the Chancery Court. The bill was dismissed.</p>

<p>FROM MEMPHIS.</p> <p>Verdict and judgment for' the defendant, at the March Term, 1859, Dixon, special Judge, presiding.</p>

<p>1: Pleading. Pleas 11in short." Sections 2900, 2913, 2883. On tlie same day that the plaintiff filed his declaration in this case, the following-words appear to. have been written thereon, viz : “Defendants plead non-assumpsit, payment and set off,” and the names of defendants’ attorneys signed thereto, underneath which the words “Replication and Issue,” were written and signed by plaintiffs’ attorney. Held, that under the pi-ovisions of the Code, seos. 2906, 2913, 2882 and 2883, a plea “in short” is frivolous, and is to he treated as a nullity; and it is tlieimperative duty of the Court,-whenever the question shall properly arise, to disregard such a plea, and to order it to be str'cken out, or render judgment as if no such plea had been put in, either on the motion of the adverse party, or of its own motion, unless the party had shown a meritorious defense, and a sufficient excuse for not having availed himself of it in the proper form, and at the proper time.</p> <p>2. Same. Bad before trial, not after verdict. The plaintiff is not precluded by his acceptance of such pleas, from afterwards disregarding them, at any time before proceeding to trial. But if he go to trial upon such issues, and the Court, regardless of the positive injunction of the Statute, shall tolerate them in doing so, objection to such pleading cannot be taken, after verdict, by either party.</p>

<p>PROM MEMPHIS.</p> <p>Decree for the complainant by JOHN A. Nooe, special Chancellor at the November Term, 1859.</p>

PROM MEMPHIS. The plaintiff, in error, was convicted of involuntary manslaughter, by a jury, at the December - Term, 1859, of the Criminal Court of Memphis, Judge Swayne presiding, from which he appealed.

PROM SIIBLBY. This bill was filed to enforce the a mechanic’s lien, for building a house' upon a lot in Memphis, which belonged to Mrs. Peters, and to her sole and separate use, free from the control and management of her husband, or subject to any debt or contract made by him. Judge J. P. Carutiiers, pronounced a decree in favor of complainants.

<p>FROM SHELBY.</p> <p>This cause was tried before Judge John C. Hum-phreys, at the January Term, 1859. Yerdict in favor of defendants.</p>

PROM WEAKLEY. This was a motion to quash three executions, issued by a Justice of the Peace, against Jenkins, as stayor. The motion was made absolute, at the February Term, 1859, Judge Fitzgerald, presiding.

PROM GIBSON. This cause was tried before Judge Williams, at the March Term, 1859. There was a judgment against the defendents, and an appeal.

<p>1. Statute or Ekauds. Mitchell sold to Seward & Scales, for the consideration of $8,590.50, a tract of land, described in the deed by metes and hounds, containing five hundred and twenty-one acres. After the deed was made, the parties, differing as to the quantity of land embraced in the tract, made a parol agreement, that it should be surveyed by Gillespie, and if there were more than five hundred and twenty-one acres, the vendees should pay for the excess, at the rate of $16.50 per acre, that being the price at which the sale was made, and if less, then the vendor should pay for the deficiency at the same rate. There was an excess of fifty-seven acres; for this excess, the present suit was brought, and a recovery had, for $1,079.00. Held, that the contract, or promise sued upon, was not for the sale of land, so as to require a writing under the Statute of frauds, but a subsequent collateral agreement, in relation to the price, which was binding by parol, and to which the Statute can have no application.</p> <p>2. Considehatxojv. Mutual Promises. A promise to refund, in case of a deficiency, is a good consideration for a promise to pay for an excess over what is called for in a deed. That such mutual promises are sufficient considerations for each other.</p>

from haywood. This cause was tried at the January Term, 1859. Vs. H. Stephen, special Judge, presiding. There was a verdict and judgment for the plaintiff.

PROM Lauderdale. This cause was tried at the September Term, 1859, before Judge Williams.. Under the charge of the Court, the jury rendered a verdict in favor of the defendant.

<p>PROM PAYETTE.</p> <p>This cause was heard by Chancellor Isaac B. "Williams, at the November Term, 1859. A decree was pronounced for complainant.</p>

PROM m’NAIRY. This cause was tried before Judge Elijah Walker, at the December Term, 1859. There was a judgmeut against the defendants, from which they appealed.

<p>1. Constbuctioh' or Wkitings. Marriage Contract. A and B, in contemplation of marriage, which was soon after consummated, entered into a marriage contract. It provided that all the property of every kind, should be secured to B, and returned, if she survived; and A agreed that at his death, should B survive him, she shall have one-sixth part of all his personal property, or choses in action, which ho may die possessed of, or entitled to, and no more, saving and reserving the right of dower. Shortly after the marriage, A died, leaving a Will, in which he gave his widow all her property, and a life estate in two slaves and the home place. The widow did not dissent from the Will. Held, that the testator could not, by his Will, effect the binding force of the ante-nuptial settlement, and the widow was entitled to one-sixth of the personal estate, secured to her in the contract; and the right to dower in his real estate is reserved, in case of intestacy, or where there is a Will, and the provisions made are unsatisfactory, and she dissents in proper time. She is, therefore, not entitled to dower, by force of the contract, properly construed, nor by law, as there is no intestacy, nor d’ssent from the Will.</p> <p>2. Will. Marriage Contract. Election. When the provisions in the testator’s Will, in favor of his widow, differ, and are in conflict with their ante-nuptial contract, she may claim under either. If under the latter, she must surrender the bequest under the former. She cannot claim both under, and against, the Will, but must make her election. Being entitled to full information, as to her rights, she ■will not be required to elect until an accounts taken.</p>

<p>FROM FAYETTE.</p> <p>The bill and supplemental bill in this case, was heard by Chancellor Isaac B. Williams, at the May Term, 1859. Decision for complainant.</p>

FROM HENDERSON. This cause was tried before Judge J. C. Humphreys, at the February Term, 1860. Under the charge of the Court there was a verdict and judgment for the plaintiff.

<p>1. To constitute larceny, there must be a trespass in the taking. This is not the case where the bailee converts property, provided he takes the particular thing bailed.</p> <p>2. The prosecutor lett his trunk, unlocked, in which there was money, with the defendant, telling him to keep the room secured. In the absence of the prosecutor, defendant took a double eagle and applied to his own use. Held, that the taking of the money, under these circumstance, wap a larceny.</p>

<p>FROM CAMPBELL.</p> <p>This was an action of debt, tried before Judge -, and a jury, at the April Term, 1860. There was a judgment in favor of Morrow.</p>

PROM GRAINGER. This was an action of trespass. The freehold or right to sell the land was put in issue. There was a verdict against the plaintiff at the April Term, 1860. Judge T. W. Turley, presiding.

<p>Sheuiíj?. Voluntary payment of judgment by Sheriff. If a sheriff voluntarily, and without any request to do so by a defendant, discharge a judgment, by paying it with his own money, he has no remedy, either in law or equity, by which to compel the defendant to refund the amount so advanced.</p>

<p>PROM M’MINN.</p> <p>The bill of complainants was, on demurrer of defendants, dismissed, by Chancellor T. Nixon Van Dyke, at the February Term, 1860.</p>

PROM ANDERSON. This was an action 'for seduction, tried before Judge George Brown, at the July Term, 1860. The jury rendered a verdict in favor of the plaintiff.

FROM HAMILTON. This was an agreed case, submitted upon the facts stated in the opinion of the Court to Chancellor Yan Dyke, at June Term of the Chancery Court, 1860. There was a decree in favor of the respondents.

This was an action of assumpsit, brought in the Law Court at Chattanooga, and tried at the October Term, 1859. Judge David T. Patterson, presiding. There was a verdict and judgment in favor of Hooke.

FROM CLAIBORNE. Tliis was an action on the case, for alleged false return of an execution, tried before Judge David T. Patterson, at tlie January Term, 1860. The defendant demurred to plaintiff’s declaration, and the demurrer was sustained.

<p>erom Sequatchie.</p> <p>This cause was tried before Judge E> L. Garden-hire, at the December Term, 1859. Judgment against the defendant.</p>

FROM SULLIVAN. The plaintiff in error was convicted at the July Term, 1860, of forgery, and moved an arrest of judgment, which was overruled by Judge David T. Patterson.

FROM WASHINGTON. In this case, there was a judgment rendered against Graham, Adm’r. of Smith, by default, at the October Term, 1859, to be levied de bonis testatoris. Execution issued thereon, and was returned nulla bona. A scire facias issued against the administrator, to show cause why the plaintiff ought not to have an execution, de bonis propries. No defense being made to the scire facias, judgment was rendered against Graham.

FROM CARTER. The plaintiff in error, was indicted for a false pretense, in passing counterfeit Bank Notes, in the purchase of a slave. He was tried and convicted at the March Term, 1860. Judge David T. Patterson, presiding.

PROM ANDERSON. ■ This was an indictment containing two counts, one against Polly Bailey, for perjury. The second against John W. Lea, for subornation of perjury. After a motion to quash the indictment at the July Term, 1860, the Attorney General, with the assent of the Court, entered a nolle prosequi as to Polly Baily. The counsel for Lea renewed his motion to quash, which was done. Judge George Brown, presiding.

PROM GREENE. The bill in this cause was filed to enjoin an action of covenant, pending in the Circuit Court of G-reene county, against the complainant, and to declare the contract set out in the opinion of the Court, usurious. It was beard at the May Term, 1860, of the Chancery Court, Chancellor T. NixoN VaN Dyee. The Court decreed that the transaction was not usurious, and that defendants were entitled to the market value of the bonds on the 6th of April, 1845.

<p>1. Bbaudtjlent Conveyance. Preference among creditors. A party in failing circumstances may sell his property, and apply the entire proceeds of the sale to the payment of one of his creditors, in preference to the others. The fact that the sale ivas made to relatives, and that the property was left in his possession, will not, of itself, render the sale fraudulent, if it was made in good faith, and for a fair price.</p> <p>2. Title Bond. Registration. Act of 1831. The Act of 1831 requires the registration of title bonds, but it is only void for want of registration as to the creditors of the grantor; as between the parties, it is valid without registration. The grantee may transfer his equitable interest, either by a written assignment of the title bond, or by a parol delivery thereof, bona fide, and for an adequate consideration paid. The registry Act has no application to such transfer, or assignment.</p>

PROM POLK. Complainants filed their original bill to enforce their lien as vendors of a tract of land sold to Corruth; the land was ordered to be sold without the equity of redemption, on twelve months' time, and after advertising the land, the Clerk & Master sold it, when McKamey & Jesse H. Gaut became the purchasers, at $87.00. On the 2d of August, 1859, the sale was confirmed, and title vested in the purchasers.

FROM ROANE. The cause was tried before Judge George Brown and a jury, at .the November Term, 1859, of the Circuit Court. The jury, under the charge of the Court, found in favor of the defendants.

PROM WASHINGTON. This was a motion against the plaintiff to compel him to pay over moneys'to the County Treasury of Washington County, that had been paid to him, as Clerk and Master, and Iain in his office unclaimed, for more than two years. At the May Term of the Circuit Court, 1860, there was a judgment against Deaderick, for the money so remaining in his hands. Judge Thomas W. Turley, presiding,

FROM GREENE. This was an action of trespass for breaking and entering the plaintiff’s close. There was a verdict for the plaintiff, at the June Term, 1860, of the Circuit Court. Judge David T. Patterson, presiding.

FROM CARTER. This was an application to the Circuit Court of Carter, for a mandamus to compel the Comity Court of said County, to allow and pay an account in favor of Nelson, for repairs done upon the Court House. The petition at the February Term, 1859, was demurred to and the demurrer sustained. Judge David T. Patterson, presiding.

FROM JOHNSON. This was an action on the case, for the malicious arrest and false imprisonment of the plaintiff below, at the March Term of the Circuit Court, 1860. The jury-rendered a verdict in favor of Heck, for $86.25. Judge David T. Patteeson, presiding.

FROM GREENE. The complainant filed his bill, alleging an offer to redeem land that had been sold, and a tender of a sum of money sufficient for that purpose, which the defendants refused to receive. Chancellor Seth J. W. Luchey dismissed the bill at the May Term, 1860, of the Chancery Court.

PROM POLK. Chancellor T. Nixon MaN Dyke rendered a decree in favor of complainant, at the June Term, 1858. Respondent brought the cause up by writ of error within two years.

<p>1. Privy Examination or Femes Covert. Act of 1833. The Act of 1833 prescribes a set form for the certificate of a privy examination of a married woman; and no material fact, made necessary by the law, will be implied. A certificate, that “the said Jane Henderson acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it, ” is fatally defective.</p> <p>2. Voluntary Conveyance. Active interference of Chancery. A complainant, in the absence of fraud or other ground of equity, cannot invoke the active interference of a Court of Chancery to set aside a conveyance, even if it is a voluntary one.</p> <p>3. Surety. Consideration. When a principal and his surety join in the execution of a deed of trust, the consideration to the principal is a sufficient consideration to hind the surety.</p>

<p>FROM HAWKINS.</p> <p>There was a decree in this cause, in favor of .complainants, at the November Term, 1859. Chancellor Seth J. W. Luceey, presiding.</p>

<p>PROM COCKE.</p> <p>This cause was tried before Judge T, W. Turley, at the August Term, 1860. The jury rendered a verdict in favor of the defendant.</p>

FROM GREENE. This bill was filed to enjoin a judgment at law, on the ground that there was usury in the note upon which the judgment was founded. The Court, at the May Term, 1860, dismissed the bill. Chancellor Bucket presiding.

FROM JEFFERSON. This was an action .founded on a delivery bond executed to plaintiff, Walker, as a constable, by the testator of Howell. There was a judgment at the December Term, 1859, against the plaintiff. Judge Turley, presiding.

PROM POLK. This cause was heard before the Hon. John C. G-aut, presiding by interchange as Chancellor, at the-Term, 1860. There was a decree in favor of complainant.

<p>1. Slavery. Owner may, by parol, confer right of freedom upon Ms</p> <p>slave. The right of freedom — so far as it is in the power of the owner to bestow that right upon his slave — -may be conferred by parol; nothing more is requisite than the full and free consent or agreement of the owner, to invest the slave with such a right. The right is not imparted by force of a formal contract, in the legal sense; for the slave, as such, is incapable of making a contract for his freedom, or of paying a valuable consideration.</p> <p>2. Same. Slaves are not the property of the estate, upon the death of an owner who has assented to their freedom. Slaves, vested with a right of freedom, are not the property of the estate, upon the death of the owner. They are entitled to their freedom, and must be sent to the Western coast of Africa, unless they bring themselves within the exemption of the recent Statute upon that subject.</p>

<p>1. Wilis. Case in judgment. Upon the following clause of a Will, viz : “I do hereby give and bequeath to my wife, Margaret Tipton, the the amount of estate and property I got with her, in marriage, that I now have in possession, or. will be at my death: Burrell, Rose, Sophy and her children, Minerva, Lucy and Simon, and all the property of every description, that I got with her in marriage. Also, half of the tract of land whereon I now live, containing 640 acres, to belaid off at the lower end, to suit her convenience, to include one-half the cleared land and all the buildings, her lifetime.” Held, that by this clause, the widow took an absolute estate in the slaves, and in the children of said slaves born after the making of the Will, and before . the death of the testator, and that the limitation of a life estate applied only to the real estate.</p> <p>2. Same. Ademption. If a note be specifically bequeathed, and it be collected, or disposed of by the testator after the Will is made, it will be an ademption of the legacy. The rule of ademption does -not apply to general or demonstrative legacies, that is, to legacies of so much money, with reference to a particular fundfor'payment,</p> <p>3. Same. Grandchildren. The word children may he held to include grandchildren, when there is an ambiguity in the Will, and the manifest intention of the testator cannot otherwise he satisfied.</p>

EROM UNION. This was an action of ejectment, and after the return of the writ, the matters in litigation, were, by agreement of the parties, submitted to arbitrators, who made their award to the Court, which was set aside upon exceptions filed by defendant; and the case, on motion of defendant's counsel, was put on the trial docket, and a plea of puis darrein continuance put in by defendant. A trial was had before Judge T. W. Turley, at the October Term, 1859.

FROM BLEDSOE. This cause was heard before Chancellor T. Nixon Van Dyke, at the March Term, 1860, upon the facts stated in the opinion of the Court.

<p>PROM WASHINGTON.</p> <p>These causes were heard together, before Chancellor Seth J. W. Luoky, at the October Term, 1859. There was a decree against Gordon, who appealed.</p>

FROM KNOX. This case was tried by a jury of Knox county, at the June Term, 1860, who rendered a verdict in favor of Wilson for $11,000. Judge George Brown presiding.

<p>1. Alimony. Land ¿old to prevent alimony. A husband cannot defeat his wife's right to alimony in his land, by selling it before an injunction issues, to one who had knowledge that she had filed her bill for divorce and alimony, and that a fiat for an injunction had been granted.</p> <p>2. Fuaudulent Sale. A purchase of property, made to aid a debtor to defeat his creditors, cannot stand; hut will he set aside, in favor of the latter, as a fraud upon their rights.</p>

<p>PROM HAWKINS.</p> <p>The petition for certiorari in this case, was, at the return Term, 1860, dismissed by Judge T. W. Turley.</p>

FROM GRAINGER. Chancellor Seth J. W. Luckey, upon the hearing of this cause at the -Term, 1860, pronounced a decree, setting aside a bill of sale made by Dudley Tally, in his lifetime, to respondant Henry Smith.

<p>PROM SULLIVAN.</p> <p>Upon the hearing of this canse at the —--Terra, 1860, Chancellor Seth J. W. Lucey dismissed the bill.</p>

FROM JEFFERSON. This is an action of trespass, brought against the Sheriff of Jefferson county and others, for selling, by virtue of sundry fi. fa’s, a piano forle, as the property of Michael Mulholland, and claimed by the plaintiff in error. The case was tried by a jury at the - Term, 18(10, who rendered a verdict in favor of the defendants. Judge Thomas W. Turley, presiding.

PROM GRAINGER. Upon the bearing of this cause before Chancellor Seth J. W. Luoket, at the March Term, 1860, a decree was rendered in favor of the complainant.

from rutherford. This cause was heard by Samuel D. Frierson, Chancellor for the Fourth Division of the State, presiding by interchange with Chancellor Broomfield L. Ridley, at the June Term, 1859. There was a decree in favor of the complainants.

FROM WARREN. The plaintiff in error was tried and convicted, and sentenced to three years' imprisonment in the penitentiary, at tire August Term, 1880. Judge ANDREW J. Marchbanks, presiding.

PROM COFFEE. This case was submitted to jury of. Coffee County, at the September Term, 1860. There was a mistrial as to two of the defendants below, and a conviction of the plaintiffs in error. Judge Andrew J. Marchbanes, presiding.

PROM MAÜRY. The plaintiff in error was tried, and convicted of murder in the second degree, and sentenced to fifteen years confinement in the penitentiary, at the September Term of the Circuit Court, 1860, and appealed in error. Judge William P. Martin, presiding.

FROM GILES. The plaintiffs in error were tried at the August Term, 1860, for an assault and battery, with intent to commit a rape upon a female child, -four years old. The jury convicted him, and fixed his term of imprisonment at two years in the penitentiary. Judge William P. Martin, presiding.

PROM BEDFORD. This case was tried by a jury, of Bedford County, at the April Term, i860, who rendered a verdict under the charge of the Court, in favor of Cummings. Judge Hugh L. Davidson, presiding.

FROM DAVIDSON. This cause was tried by a jury at the September Term, 1860. A verdict was rendered in favor of the defendants in error. Judge Nathaniel Baxter, presiding.

PROM BEDFORD. This was an action of ejectment, tried at the April Term, 1860. A verdict was rendered in favor of the defendant. Judge Hugh L. DavidsoN, presiding.

<p>1. A Bau.ee without Comfensation. Responsibility for his acts. A bailment creates a trust, and the responsibility of a mandatory, or bailee, without compensation, is, in most respects, of a lower grade than that of other bailees. Still, his engagement places him in the relation of trustee, so far as to exact of him fidelity in the execution of the trust,, assumed upon himself, and also to. bring him within the scope of the general principle, applicable to all trustees, that the office or duties of his trust, cannot be delegated by him to another, without authority. The performance of the trust is a matter of personal confidence, which is a breach of trust in the trustee to make oyer to a stranger, and the original trustee will continue respons'ble for all the acts of the person so substituted.</p> <p>2: Bailees or ant kind. Cannot generally part with possession of property, without consent'of owner. A bailee of any kind, cannot, as a general rule, part with the possession of the property bailed to him, to a stranger, without the authority to do so from the bailor; and such a delivery of the thing bailed, would make him responsible for the loss, on the ground of violation of trust, and the delivery would be treated as a conversion.</p> <p>3. Pbactice and Pleading, Bailees may be sued for on an implied contract, or in case or trover. The bail or, in some cases, has an election to sue on the bailee’s implied contract, or to waive the contract, and to resort to case or trover, according to the nature of the injury. Trover will not be on the ground of the negligence of the bailee, but for a wrongful assumption of the right of property, by delivering it to a third person without authority. This amounts to a conversion.</p> <p>4. If the bailee acts with strict fidelity, and care and prudence, he is Hablo only for gross negligence. The correctness of the general principle, that a mere mandatory is “only liable for gross negligence,” is not to be questioned, when properly understood. Hence, if the goods be wrested from him by robbery, or taken by theft, ordestroyed by fire, or violence, without gross neglect on his part, he will not be liable. But it must be kept in view, that this general principle, uthat a mandatory is only liable for gross negligence,” implies struct fidelity on his part, and the exercise of such care and prudence, as, with reference to the particular subject of the bailment and the circumstances of the case, may be requisite for the performance of his undertaking.</p>

FROM DAVIDSON. There was a verdict and judgment in this case at the May Term of the Circuit Court, 18(10, in favor of the defendant, Judge NathaNIEL Baxter, presiding.

<p>1. Mistakes apparent on the face of the record. By the eommon'law, and by virtue of the Act of 1856, ch. 70, sec. 2, the Circuit, Chancery, or Supreme Courts of this State, have the power to correct errors apparent upon the face of the record, at any term after final judgment. This power to be exercised at the discretion of the Court, has always been allowed to correct the mistakes of the Clerk, where such mistakes are apparent on the face of the record.</p> <p>2. Mistake of facts or errors in judgment in point of law existing in the decree, are beyond the reach of the Court. Errors of judgment in point of law existing in the decree, or unwarrantable deductions of fact, if any exist, are beyond the reach of the Court. The law of the decree, as well as its conclusions upon the testimony in the case, constitute the deliberate judgment of the Court in the case, and cannot be changed; they do not stand upon the same ground as the clerical errors or omissions of the Clerk.</p>

FROM BEDFORD. This was a motion to quash an execution issued from the Supreme Court, and returnable on the 1st of June, 1860, on the ground that Gaut, in whose name the execution ran, had departed this life after the affirmance of the judgment, but before its actual issuance. There was a levy upon the property of Neil, and a supersedeas granted Neil by one of the Judges of the Supreme Court at Chambers.

<p>PROM DAVIDSON.</p> <p>This is an agreed case, tried before Judge Nathaniel Baxter, who gave judgment in favor of the Bank.</p>

<p>1. Deed, of a feme sole before marriage, but after contract to marry, is not necessarily void. The disposition of her "property, by- a wife after a contract of marriage, and before it has been solemnized, is not, as a matter of course, to be set aside, because the husband was not a party, or privy thereto, but each case is to he determined by its own peculiar circumstances. It is well settled, that if a conveyance be made by a woman in the discharge of the moral duty of providing for the children of a former marriage, it will not be considered a fraud upon the intended husband, though it had been concealed from him.</p> <p>2. A gift of 'remainder in slaves not void, if in writing, withovt delivery of possession. A gift to the remainder in slaves, where the possession was not actually delivered to the donees, is valid, being by writing, for the possession of the first taker, or her who had the slaves at the execution of the deed, became the possession of the remainderman. By the very position of these tenants for life, they were constituted quasi trustees for this, remainder, and could legally do nothing to its prejudice or destruction.</p> <p>3. Marital Rights or Husband. Upon the marriage of a feme who is the owner of a life estate in slaves, the husband occupies the same relation to the property as the wife, and is subject to the same trusts and obligations with which she is chargeable, anterior to the marriage; and when let into possession, he becomes, by law, as husband, in virtue of the marriage, only the owner of his wife’s life estate, and does not acquire a greater interest, unless it can be shown that his wife has a greater estate.</p> <p>4. Registration or Deed. Acts of 1819 and 1827, ch. 69, and 1831, ch. 90. It has uniformly been held, prior to the Act of 1819 and subsequently thereto, under the Acts of 1827, ch. 59, and 1831, ch. 90, that as between the parties, registration was not necessary, and that the deed took effect from its delivery, even as to land in a Court of equily. The deed was efficacious upon its execution, as to slaves, and other personal property. Whether in a Court of law or equity, it operated without registration.</p> <p>5. Ay parol gift or sale of slaves, with delivery of possession, perfects the title to the donee. A feme sole, having the immediate title to slaves, makes a gift or sale of them without writing, accompanied by the actual delivery of possession: the husband, by his subsequent marriage, acquires no title to these slaves. It would be absurd to hold, that because the gift, instead of being in parol, was by, deed, it must lose its effect, not being registered.</p> <p>6. A deed registered for thirty years, the law presumes has been done on legal authority. The Act of 1827 applies to deeds executed anterior to its passage, as well as to those to be made in future; and so far repeals or modifies the Act of .1819, as to restore the established law, making registration between the parties, unnecessary, and enables the deed to retain its effect from its delivery, provided the rights of creditors and bona fide purchasers are not effected by the registration. The deed in this case, had been registered for more than thirty years. The law presumes it to have been registered on legal authority, without regard to the form of certificate of probate, although, the contrary may appear on the face of the papers, as it seems only to have been proven by one, instead of two, attesting witnesses.</p>

<p>FROM BEDFORD.</p> <p>This cause was heard before Chancellor Broomfield L. Ridley, at the August Term, i860. There was a decree rendered for tlie respondents.</p>

PROM WILLIAMSON. This was an application for a mandamus from the Circuit Court of Williamson County, to compel the Justices of said County to pay for damages in laying off a second class road on Jefferson's farm. Judge NathaNIBl Baxter, presiding, made an order for a peremptory mandamus, from which the Justices appealed.

<p>FROM LINCOLN.</p> <p>There was a decree in this case for respondent, at the February Term, 1860. Chancellor Ridley presiding.</p>

<p>PROM WHITB.</p> <p>This case was heard before Chancellor Ridley, at the May Term, 1860, who gave a decree for complainants.</p>

FROM RUTHERFORD. This is an action of Trover for a slave. There was a judgment at the July Term, I860, in favor of York and Wife, of $1,000, the full value of the slave. Judge Hugh L. DavidsoN, presiding.

<p>FROM CANNON.</p> <p>This cause was heard before Chancellor B. L. Ridbey, at the October Term, 1860. There was a decree in favor of complainants.</p>

<p>The rule is well settled, and presumed to be known to every purchaser of real property, that in the absence of fraud, his only indemnity, (in case of failure of title,) depends upon the covenants in his deed, and, if he accepts a deed without sufficient covenants for his security, and there be no elements of fraud, or mistakes, or other equity in the transaction, he takes the title at his own risk, and is without remedy, either in law or equity, in case of failure of the title. From this established principle of law, and the common usage, with us, of requiring general covenants, it would seem that the vendor’s refusal to give, and the purchaser’s agreement to accept, a deed, without such cove-enants, furnish a reasonable ground of presumption of mutual knowledge, or at least of suspicion of some defect of title. The refusal of the vendor, (unless satisfactorily explained,) to take upon himself the ordinar-y liabilities in such cases, is sufficient to put every one, of ordinary prudence, upon inquiry as to the sources and validity of the title thus brought under suspicion by the vendor’s declining to give the general covenant usual in such cases. This presumption, especily when coupled with the additional one, arising from the intimate relations between the defendant and Allman, and the means of knowledge open to the former, as to the circumstances and condition of the latter, are facts, sufficient to charge the defendant with constructive, if not actual, notice of the trust attached to the property in favor of the complainants.</p>

PROM WILSON. This cause was heard by Chancellor Broomfield L. Kidlby, at the July Term, 1860, who rendered a decree against supplying an omission in the Will of complainants’ ancestor.

PROM SUMNER. Bradford sued Bennett for services rendered as an Attorney, in a contest about the Will of Wm. Hutchinson, and recovered judgment before a Justice of the Peace, for $150, from which judgment there was an appeal to the Circuit Court of Sumner, where there was again a judgment in favor of Bradford, at the June Term, 1860, Judge Wm. H. Turner, presiding.

<p>FROM JACKSON.</p> <p>This was an issue devisavit vel non, tried at the June Term, 1860. Judge Samuel D. Fite, presiding.</p>

PROM MONTGOMERY. This bill was filed for an account and settlement of a partnership. There was a decree in favor of respodent. Chancellor Samuel D. Frierson, presiding.

<p>FROM FENTRESS.</p> <p>This is an action of forcible entry and detainer, tried at the June Term, 1860, Judge Gardenhike presiding. There was a verdict in favor of Jones, Scott & Baker.</p>

PROM MAURY. This action of ejectment was tried at the September Term, 1859, before Judge William P. Martin. There was a verdict and judgment against the plaintiff, who appealed.

FROM MONTGOMERY. This cause was beard by Chancellor Samuel D. Frierson, at tbe April Term, 1860, who decreed that the testator, Henry Hatcher, having disposed of his entire estate specifically, there was no residuary fund out of which to pay the debts, and that the entire estate must be resorted to for the payment of the debts — that is, all the legatees under the Will, must contribute i’ata-bly — from which there was an appeal.

FROM WHITE. This suit originated before a Justice of the Peace, who gave judgment in favor of the plaintiff, and was taken, by appeal, to the Circuit Court of White County, by defendant, where, at the September Term, 1860, there was a judgment for part of plaintiff’s demand, and a judgment against him for most of the cost of suit, Judge Gardenhire presiding.

<p>FROM SMITH.</p> <p>At the August Term, 1860, there was a decree pronounced against the complainants. Chancellor B. L.- Ridden, presiding.</p>

PROM MONTGOMERY. This bill was filed to enforce a Mechanic’s Lien, in favor of complainants at the October Term, 1860. There was a decree in favor of complainants. Chancellor Samuel D. Frierson, presiding.

PROM CANNON. This is an action of ejectment, tried at the June Term of the Circuit Court, 1860. There was. a verdict and judgment in favor of the defendants. Judge Hugh L. Davidson, presiding.

PROM MONTGOMERY. This was a petition filed in the County Court of Montgomery against Woods, as the administrator of William Rogers and his sureties, on his official bond for the failure of Rogers to pay over moneys collected by him, (in his lifetime,) as Clerk and Commissioner. The petition -was demurred to, and the demurrer sustained by the County Judge.

FROM DAVIDSON. Lanier leased a lot on Market street, in Nashville, for ten years, agreeing to put a house upon it worth $7,000, and to pay $500 yearly rent. Complainants, by contract with Lanier, built, for him a house upon said lot. La-nier having made an assignment of the house and lot to secure certain creditors, complainants filed their bill’ within twelve months after the work was completed, to enforce their lien as mechanics.

proM rutherford . This cause was before the Supreme Court, at the December Term, 1858, when there was a decree, settling the rights of the parties, and the cause remanded for its execution. At the April Term, 1860, it was heard again, before Chancellor Broomfield L. Ridley, who gave a decree against the complainants, from which they appealed.

PROM DE KALB. This cause was tried at the - Term, 1860, before Judge Samuel D. Fite. The plaintiff recovered a portion of the land sued for.

PROM DE KALB. This bill was filed by complainant to enforce a vendor’s lien. Upon the hearing of the cause, at the - Term, 1860, Chancellor B. L. Ridley gave a decree in favor of complainant.

FROM OVERTON. This was an issue of devisavib vel non, tried at the May Term, 1860. Judge Gardenhire presiding. There was a verdict and judgment in favor of the plaintiffs.

<p>FROM ROBINSON.</p> <p>This cause was heard before Chancellor Joseph J. Guild, at the - Term, 1860.</p>

<p>1. Tenant for years. Executor's title. The following clause appears in tlie will of Benj. Taliaferro: “I deposit in the hands of my executors, 54|- acres of land, where my daughter, Elizabeth Porter, now liyes, who are directed to let the said Elizabeth remain on said land if she thinks proper, rent free, until her youngest child comes of age; at which time, I wish the land sold, and the proceeds thereof equally divided between the heirs of my said daughter: but, if she should not continue thereon, my executors are directed to put the same to rent until her youngest child comes of age; then to be sold, and divided as above stated.” Held, that by this clause of the Will, Mrs. Porter was entitled to the use of the land, whilst she remained on it, and a mere right of superintendence and control deposited in the executors, subject to the directions of the Will, and no estate or title was vested in them.</p> <p>2. Same. Trustees’ legal title. Statute of Limitations. Upon the death of the testator, the title to the land descended to his heirs at law, as trustees for the children of Mrs. Porter, by construction, upon the dry legal title having, by operation of law, been cast upon them. They might have sued upon a wrongful disseizin, yet they were not hound to do so: the law imposed no active duty, or obligation on them; they were simply the depositories of the naked legal title: no trust was delegated to, or devolved upon them, and were subject to no duty, or responsibility. The complainants having no present interest in the land, it was in future, upon the happening of the contingency provided in the Will. The trustees having omitted to sue, the Statute of limitations could no more operate in such a case, than against a remainder-man.</p>

<p>FROM rutherford.</p> <p>There was a decree, in this canse, at the October Term, 1860, for complainant. Chancellor Broomfield L. Ridley, presiding.</p>

<p>1. Adjiinistkatoe. Extent of authority. An administration granted by one of the County Courts of the State, is an administration commensurate with the limits of the State.</p> <p>2. Non-kesidehi. Insolvent estates. Property, real or personal, of a nonresident decedent, situate within the jurisdiction of this State at the time of his death, may be administered, under our insolvent laws, though the estate of such decedent, in the place of his domicil, is solvent — every State having the power to dispose of and control property actually within its jurisdiction, so as to protect the rights of its own citizens.</p> <p>3. Publication. Recitations in decrees. The decree of the Chancellor, reciting the fact that “publication was duly made” as to the heirs, must be taken as sufficient in this Court, unless it appears, from the record, that the facts were positively otherwise.</p> <p>4. Death of a party to a suit without heirs of body. After a suit was commenced in the Chancery Court, to subject the real estate of a nonresident to the payment of debts due in this State, one of his children died without children, leaving her brothers and sister her only heirs at law. No notice was taken of her death in the proceedings to sell the real estate of her father, which was sold under a decree after her death. Held, that upon the death of one of the children, the estate and title became vested in the surviving defendants. The entire estate was sold, and the purchaser acquired a good title to all the property.</p> <p>5. Appeal. Effect of. An appeal to a superior tribunal has the effect of annulling the judgement or decree of the inferior Court. But this appeal only annuls or vacates such orders, judgments, or decrees, as in legal contemplation are appealed from, and the abatement of the suit in the Appellate Court operates only as an abatement in respect to the matters appealed from, and can work no injury to the rights of third persons acquired under the judgment or decrees of the inferior Court, which were acquiesced in, and not appealed from.</p>

PROM DAYIDSON. This cause was tried before Judge NathaNIEl Baxter, at the September Term, 1860, there was a verdict and judgment against the defendant, who appealed.

<p>PROM BEDPOED.</p> <p>This cause was tried at the April Term, 1860, before Judge IJugh.L. Dayidson. There was a verdict and judgment in favor of Woods.</p>

FROM WARREN. This was an action on the case, brought by Elliott, to recover damages for an injury to his person, received whilst in the employ of the company. The jury, at the August Term, 1859, rendered a verdict in his favor, for $2,000 dollars. Judge A. J. Marchbanks presiding.

<p>PROM LINCOLN.</p> <p>This cause was tried before Judge Andrew J. Marchbanks, at the July Term, 1860. There was á judgment rendered in favor of the defendants.</p>

<p>PROM DEKALB.</p> <p>There was decree in this cause for the complainants, at the-:— Term, 1860. Chancellor Broomfield L. Ridley, presiding.</p>

Isaac Franklin died in Louisiana on tbe 27th of April, 1846. Previous to his death, he made and published his Will, disposing of a very large estate, real and personal, in the States of Mississippi, Louisiana and Tennessee, valued at about one million of dollars. The testator’s domicil, at his death, was in Sumner County, Tennessee. He left Adelicia, his widow, and Victoria, Adelicia and Emma Franklin, his three minor children.

<p>FROM KNOX.</p> <p>.This cause was heard before Chancellor Seth J. W. Luokey, at the - Term, 1860, when there was a decree, and appeal by Heiskell.</p>

<p>FROM MEMPHIS.</p> <p>This cause was tried before Judge J. P. Caruthers, at the - Term of the Common Law and Chancery Court of Memphis. There was a judgment for defendants.</p>