Volume 47 — Tennessee Reports

FROM BLEDSOE. At the August Term, l86t., of the Cirduit Court for Bledsoe County, there was a verdlét and judgment for the plaintiff below, from which Norwood appealed to this Court. Judge W. W. Goodpasture, presiding.

FROM BRADLEY. At the August Term, 1860, Chancellor T. Nixon VanDyke rendered a decree dismissing this cause. No appeal was taken. On the 6th of April, 1867, complainants filed a transcript of the record in the office of the Clerk of the Supreme Court, and sued Oht a Writ of error.

PROM BLOUNT. Tbis cause was heard at the December Term, 1867. A decree ordering a partition of the land was pronounced, and an appeal by respondents to this Court. Chancellor Seth J. W. Luckey presiding, by interchange.

<p>PROM ANDERSON.</p> <p>At the May Term, 1866, Chancellor S. R. Rodgers pronounced a decree in favor of complainants^ from which respondents appealed.</p>

FROM KNOX. There was a decree in this cause, at the August Term, 1867, in favor of respondents, from which complainant appealed. Chancellor O. P. Temple, presiding.

PROM M’MINN. This cause was heard before Chancellor Seth J. W. Luckey, at the August Term, 1860. The Chancellor dismissed complainants’ bill; from which order dismissing their bill they have appealed to this Court.

FROM CAMPBELL. At the April Term, 1867, the demurrer of respondents was overruled, and an appeal' to this court allowed by the Court. Chancellor O. P. Temple presiding.

This cause was heard at the June Term, 1869, before Judge William L. Adams, who held that A. J. Trewhitt was Attorney-general for the Fourth Judicial District, and gave judgment against A. A. Hyde for the costs; from which he has appealed to this court.

FROM DAVIDSON. The prisoner was convicted at the May Term, 1869, of the Criminal Court for Davidson County, for murder in the first degree, with mitigating circumstances. The Court commuted his punishment to imprisonment in the penitentiary for life. Motions for a new trial and in arrest of judgment, were overruled; and he has appealed to this court. Judge John Hugh Smith, presiding.

FROM ROBERTSON. At tbe February Term, 1869, the defendant Avas convicted of a felonious assault with intent to commit a rape, and sentenced to five years’ imprisonment in the Penitentiary. He has appealed from the judgment. Judge James E. Rice, presiding.

FROM WILSON. At the June Term, 1869, the defendant was convicted of feloniously breaking into the house of Sarah Joplin, under an indictment found upon the second section of An Act passed 17th of May, 1865. He was sentenced to ten years’ imprisonment* in the penitentiary. He appealed to this Court. Judge John W. Phillips, presiding.

PROM HICKMAN. At the August Term, 1869, the prisoner was convicted of murder in the first degree, with mitigating circumstances, and was sentenced to imprisonment for life. He has appealed to this Court. Judge Eielmng Httbst, presiding.

EROM HICKMAN. The prisoner was ancl sentenced to two tried at the April Term, 1869, years in the penitentiary, from wbieh he has appealed to this Court. Judge Fielding Hurst, presiding.

PROM SMITH. At the July Term, 1869, the State demurred to defendant’s plea in abatement; the demurrer was overruled, and the motion of the State dismissed; from which the Attorney-general for the District appealed to this Court. Judge Samuel M. Fite, presiding.

FROM FRANKLIN. Smith recovered a judgment on the 4th of February, 1862, before Thomas J. Caldwell, a justice of tbe peace, for $250 and costs, against Linebaugh, Yan-zant and Colyer, which was stayed by Linebaugh in 1865. An execution was issued on this judgment, and returned nulla bona as to Linebaugh and the stayor, and that Joel Yanzant was dead.

FROM DAVIDSON. At the May Term, 1867, there was a verdict for defendant, fixing the value of the cotton replevied at $12,275.25, and the damages at $2,209.54. His motion for a new trial was overruled, and he has appealed to this Court. Judge M. M. Brien, presiding.

FROM WILSON. This cause was tried at the May Term of the Circuit Court, 1867, and resulted in a verdict against the will of- John Alexander, on which there was a judgment and an appeal by the plaintiff. Judge Henry Cooper, presiding.

PROM WILSON. At tbe May Term, 1866, there was a verdict and judgment in favor of the plaintiff. After a motion for a new trial was overruled, the defendant appealed to this Court. Judge Hiliary Ward, presiding, by interchange.

FROM CANNON. The Court refused to dismiss tbe petition in this cáse; and upon a trial upon the merits, at the February Term, 1867, there was verdict in favor of the defendants in error. After a motion for a new trial was overruled, plaintiff in error appealed.- James L. Scud-dee, Special Judge, presiding.

FROM LINCOLN. At the March Term, 1867, Moses Cruise, as former sheriff of Lincoln County, recovered a judgment against Wm. Moffitt, on his- bond as deputy sheriff, on account of an insufficient return made by Moffitt, as Cruise’s deputy, for which Cruise, as principal sheriff, had been forced to pay the money. Moffitt appealed to this Court. Judge 1ST. A. Patterson, presiding. After the appeal, Cruise was declared a bankrupt, and died.

PROM LINCOLN. At the July Term, 1867, there was a verdict and judgment in this case, in favor of the plaintiff. Defendant appealed. Judge M. A. Patterson, presiding.

FROM FRANKLIN. At the March Term, 1867, Davenport made an application, which was sworn to, to remove this cause, with two others, from the Circuit Court of Franklin County to the District Court of the United States, under the Acts of Congress of March, 1863, and of May, 1866. The Court allowed the motion, and ordered that the causes be removed; to which the plaintiff excepted, and appealed to this Court. Judge N. A. Patterson, presiding.

FROM CANNON. This was a motion against Rigsby, as constable, for failure to pay over money collected by him, as a constable, and for failing to make due return of an execution. The latter ground was abandoned on the trial of the motion in the court below. The Court sustained the motion for failing to pay over money collected, and rendered judgment against him at the February Term, 186V, from which judgment he appealed to this Court. James L. Scudder, Special Judge, presiding.

EROM COEEEE. At the August Term, 1867, Price recovered a judgment against Hickerson, who was a joint security on a note given by W. H. Burroughs to Wm. Ramsey. A judgment had been recovered against Price and • Hick-erson on this note, and Price had been forced to pay the entire judgment and costs. The judgment of the Court below was in favor of Price for one-half of the original judgment, interest and costs. Hickerson appealed. Judge N. A. Patterson, presiding.

PROM CANNON. At the October Term, 1867, Mary Lowe, by her attorney, moved to dismiss the petition of plaintiff in error, which motion, after argument of counsel, was allowed by the Court, and judgment entered against Wilson for costs. Wilson appealed. Wm. Shane, Special Judge, presiding.

<p>PROM PRANKLIN.</p> <p>At the March Term, 1867, there was a judgment in this case against Syler, from which he appealed. Judge N. A. Patterson, presiding.</p>

FROM DAVIDSON. .At the September Term, 1865, a motion was made against Robertson, as deputy sheriff, for failure to return a fi. fa. placed in his hands. The motion was allowed, and a judgment entered ¿gainst him for the amount of the debt, and damages and costs; from which he has appealed to this Court. Judge John M. Lea, presiding.

<p>PROM RUTHERFORD.</p> <p>At' tbe July Term, 1866, there was a verdict and judgment for Mankin. Defendant appealed to this Court. Judge Henry Cooper, presiding.</p>

FROM FRANKLIN, At the March Term, 1867, under the charge of the Court, there was a judgment in this case, on three notes in favor of Shores; from which verdict and judgment, Robertson appealed to this Court. Judge 1ST. A. Patterson, presiding.

<p>PROM WILLIAMSON.</p> <p>This cause was heard at a Special Term, November, 1867. Chancellor Horace H. Harrison, presiding. Respondents appeal.</p>

<p>1. Evidence. Widow of testator an incompetent witness. Exception to her evidence must be taken in the court below. The widow of a testator is an incompetent witness to prove declarations made by him during the marriage, but the objection to her testimony must be made in the court below, and can not be made in this court, not even for incompetency apparent upon the record.</p> <p>2. Interest. Legacies. Interest on, after one year. If no time is fixed by the testator, in his will, for the payment of legacies out of property which he direct shall he sold on a credit, the general rule of law is, that interest will he allowed on such legacies from the end of the first year after the death of the testator.</p> <p>3. Same. On money in the hands of Executor. When he is not chargeable with interest. The executor in this case, received a considerable sum of money in 1860-1, and paid out all of it to creditors and legatees during the same years, except $363.80. This amount, with the other funds that came into his hands, were, by the will, charged with the payment of the debts and expenses of administration. Held, that this amount remaining in his hands, being onerated with the payment of the expenses of the estate, it was error in the Court to charge him with interest on the same.</p> <p>4. Compensation to executors for sale of land, and disbursing the fund. The executor collected and distributed the proceeds of the sale of land, amounting to over $12,00.0, for which he was allowed $360. Held, that the amount allowed was reasonable and not expensive.</p> <p>6. Legacy to a Creditor. A legacy to a creditor does not extinguish the debt; unless it was so intended by the testator. A legacy given and accepted by a creditor of the testator does not extinguish the debt of the legatee against the testator. To extinguish a debt of the legatee, it must clearly appear from the will that the testator intended the legacy as a payment instead of a bounty.</p> <p>6. Expenses oe Litigation. Expense of executor for litigation.. When he can not charge the estate. An executor can not charge the estate of his testator with the expenses of litigation he has against the estate, and also a litigation as to whether the estate or the executor is liable for a debt. He is individually responsible for the expenses.</p>

FROM WILLIAMSON. This cause was before this Court at the December Term, 1859, upon an appeal from an interlocutory decree made by the Chancellor; and is reported in 3 Head R., 728-34.

FROM COFFEE. In this cause there was a decree rendered in favor of respondents, at the February Term, 1867, of the Chancery Court for Coffee County. Chancellor B. M. • Tillman, presiding. Complainant appealed to this Court.

FROM COFFEE. The complainants filed their bill against respondents and obtained an injunction against them, and possession of the McMinnville and Manchester Railroad. Respondents file their answer and ask for a dissolution of the injunction. The matter was heard before Chancellor B. M. TillmaN, at Chambers. The injunction was dissolved, and respondents got possession of the road. Complainants file their petition in this Court for a su-persedeas.

PROM PRANKLTN, This cause was heard at the November Term, 1867,. on demurrer of defendant, which was allowed by the Court, and complainant’s bill was dismissed; from whichi decree of the Court complainant appealed to this Court. Chancellor Barclay M. Tillman, presiding.

<p>PROM RuiHERPORD.</p> <p>This cause was heard at the October Term, 1861, before Chancellor Brohfield L. Ridley. There was a decree for complainants. Respondents appealed.</p>

EEOM EUTHERFOED. This cause was beard at tbe June Term, 1867, when there was a decree in favor of complainants. Respondents appealed. Chancellor JOHN P. Stale, presiding.

PROM DAVIDSON. This cause was beard at tbe September Term, 1867, when tbe complainants’ bill was dismissed; from wbicb complainants appealed. Chancellor H. H. Harrison, presiding.

FROM DAVIDSON. This cause was heard at the September Term, 1866. There was a decree against the defendant, Harriet L. Demoss, from which she has appealed to this Court.

PROM PRANKLIN. The plaintiffs below, at the March Term, 1867, recovered a judgment against the defendant for eleven hundred dollars, and the Court reduced the verdict to four hundred and fifty dollars, for which there was a judgment. Defendant’s motion for a new trial being overruled, he appealed to this Court. Judge FT. A. Patterson, presiding. ,

FROM WARREN. This case was heard at the June Term, 1867. The Court awarded a procedendo to the justice of the peace. Plaintiff in error appealed. Judge N. A. Patterson, presiding.

FROM NASHVILLE. There were two judgments taken in this case; one at the May Term, and one at the November Term, 1861, in favor of the Clerk and Master, on notes given to him by James, for lands and slaves. An execution was issued in 1867, on these judgments, and Powell, the original defendant, and Thomas G, James, the purchaser of the property, and his security, filed the record for error in this Court.

PROM WILSON. At the April Term, 1867, the bill of complainants was dismissed — from which they have appealed to this Court. Judge Henry Cooper, presiding, by interchange with Chancellor John P. Stale.

FROM GRUNDY. At the January Term, 1867/ there was a verdict and judgment in this case, in favor of the plaintiffs below, from which the defendant, Neville, appealed to this Court. Judge N. A. Patterson, presiding.

FROM COFFEE. At the January Term, 1867, the motion in this ease was dismissed by the Court. From the action of the Court the plaintiff appealed. Judge N. A. Patterson, presiding.

eroM rutherford. There was a trial of this case at the July Term, 1867, when there was a verdict and judgment in favor of the plaintiff, Bass, and an appeal to this Court by Lytle & Patterson. ■ Judge HeNRy Cooper, presiding.

FROM DAVIDSON. At the September Term, 1867, there was a decree in this case, dismissing complainant’s bill against the State of Tennessee, and rendering a decree against the Bank of Tennessee, for ninety-three bonds of the State. From this decree the Bank of Tennessee appealed, and complainants appealed from the decree dismissing their bills as to the State.

FROM DAVIDSON. This cause was heard at the November Term, 1867. On motion of complainant to set aside an order pro con-fesso made at the May Term, 1867, the Chancellor disallowed the motion, and respondent appealed. Chancellor David Campbell, presiding.

FROM MEMPHIS. The prisoner was convicted at the February Term, 1870, of the Criminal Court for Memphis, and sentenced to ten years imprisonment in the penitentiary. He has appealed to this Court. Judge H. E. Hudson, presiding.

FROM MEMPHIS. The prisoner was, at the June Term, 1869, convicted of murder in the first degree, and sentence of death pronounced on him; from which he has appealed to this Court. Judge H. E. Hudson, presiding.

FROM GIBSON. At the March Term, 1870, the prisoner was convicted of larceny. He moved to be discharged on account of his absence when the jury returned their verdict, which motion was overruled, and he has appealed to this Court. Judge John A. Rodgers, presiding.

EROM MEMPHIS. The indictment in this case, was, at the Juue Term, 1869, on motion of the defendant, quashed, and the defendant discharged. From the action of the Court the State has appealed to this court. Judge H. E. Hudson, presiding.

FROM GIBSON. At tbe November Term, 1869, the prisoner was tried, convicted and sentenced to ten years’ imprisonment in the penitentiary. After his motions for an arrest of judgment and for a new trial were overruled, he appealed to this Court. Judge John A.'Rodgers, presiding.

FROM SHELBY. The prisoner was, at the January Term, 1870, put upon his trial, and found guilty by the jury, of arson, and sentenced to five years’ imprisonment in the penitentiary; and motions for a new trial, and in arrest of judgment, were overruled. He appealed to this Court. Judge J. T. Swayne, presiding.

PROM MEMPHIS. At the February Term, 1868, the bill of complainants was dismissed, from which decree they have appealed to this Court. Chancellor Wm. M. Smith, presiding.

EROM MEMPHIS. At the November Term, 1868, there was a decree pronounced in this cause, from which the respondents have appealed to this Court. Chancellor ¥m. M. Smith, presiding.

FROM MEMPHIS. Át the May Term, 1867, there was a decree in favor of the complainants in this cause, from which the respondents have appealed to this court. Chancellor Wm. M. Smith, presiding.

FROM MEMPHIS. This cause was heard at the May Term, 1867, when complainants’ attachment was quashed, from which order complainants laave appealed to this Court. Chancellor Wm. M. Smith, presiding.

FROM MEMPHIS. The bill in this cause was dismissed in July, 1867, from which decree there was an appeal by complainant to this Court. Chancellor ¥m. M. Smith, presiding.

FROM MEMPHIS. There was a demurrer to complainant’s bill, which, at the July Term, 1867, was overruled by the Court, and an appeal to this court by the defendants. Chancellor ■William M. Smith, presiding.

EKOM HUNTINGDON. This cause was heard at the August Term, 1869, when there was a decree ordering an account, and an appeal asked by complainants, and granted by the Court. Chancellor James W. Doherty, presiding.

PROM MEMPHIS. In this cause complainants file 'their bill to review a decree pronounced on the 18th of April, 1859. Defendants demur to the bill; and on the 20tl.i of February, 1867, the demurrer was overruled by the Court, and defendants appeal. Geo. Dixon presiding as Special Chancellor.

FROM MEMPHIS. At the February Term, 1868, there was a decree in favor of the complainant and an account ordered for the value of rents and profits of the real estate decreed to complainant. Respondents appeal to this Court. Chancellor Vm. M. Smith, presiding.

FROM MEMPHIS. This cause was heard at the - Term, 1868. Complainant’s bill was dismissed; from which they have appealed to this Court, HeNRY Eelett presiding as Special Chancellor; Chancellor ¥m. M. Smith being incompetent.

FROM TIPTON. This cause -was tried at the October Term, 1869, ivhen there was a verdict and judgment against the de- fendant, and an appeal by him to this Court, Judge GeojRgb W. Reeves presiding.

FROM MEMPHIS. This cause was tried at the July Term, 1869, when there was a verdict and judgment against the defendant; from which he has appealed to this Court. Judge G. P. Foute, presiding.

FROM SHELBY. At the May Term, 1869, the defendant was convicted for an assault and battery, and the jury fixed bis fine at $500, and imprisonment for one year in the county jail; on which there was a judgment, and an appeal by the defendant. Judge Geo. W. Reeves, presiding.

<p>1. Usurious Contract. Properly sold above value and re-sold at real value. If property is sold for a price greatly above its real value, to enable the purchaser, by re-sale at its real value, to raise money, this transaction would be usurious: See 5 Hum., p. —.</p> <p>2. Same. Same. Evidence. Proof must show the real value of property. To enable a party to rely upon a sale of property for a price beyond its' value, so as to avoid the law against usury, it must be shown that the price agreed to be paid for the property greatly exceeded its real value.</p> <p>3. Sale op Property. Possession delivered. Tenant for life. No fraud. ' Actual notice of title by purchaser. An absolute sale of slaves by a tenant for life, with a bill of sale warranting the title to the slaves, and possession delivered: in the absence of all fraud, a court of equity will not relieve the purchaser, who knew the character of the seller’s title as well as he did, in the absence of all proof of the insolvency of the bargainor-.</p> <p>4. Sale op Slaves, When the sale is complete between the bargainor and bargainee. Abatem■ nt of price. At the time of sale and trust deed for the slaves mentioned in this case, one of them was dead. Five slaves were sold by defendant on September 1st, 1859, to the testator of complainant, and possession taken by the testator. On the first of January, 1860, a bill of sale was executed for all of the slaves, and ante-dated, one of the slaves being dead at the time of the execution of the bill of of sale. Field, that as the sale of the slaves had been made previous to the execution of the bill of sale, and possession taken by the purchaser; he would not be entitled to an abatement of the note given for all the slaves, or for the price of the one who was dead at the time the bill of sale was in fact executed; for between the parties themselves., the sale was valid and complete when the terms were agreed upon and possession delivered.</p> <p>5. Same. Same. Purchaser of slaves, with Icnowledge of defective title, will not be relieved where there is no fraud shown nor eviction. Mrs. Dew was the owner of the life estate in 'five slaves. She sold them to complainant’s testator, and gave him a bill of .sale for the entire interest in the slaves. The testator took possession, and bill of sale for the slaves, with a full knowledge on his part of the title Mi's. Dew had in the slaves. The devisee of the bargainor, nor himself, will be relieved from his purchase, where there is no fraud or eviction proven.</p> <p>6. Debts due the testator at Ms death-recovered by the Ereculor, not by the Devisees. A debt due the testator at his death can not he collected by his devisees, but it is the duty of his executor to collect the same.</p>

PROM MEMPHIS. There was a decree in this cause for the complainants, atthe March Term, 1867, and an appeal by complainants and defendants, Chancellor ¥if. M. Smith, presiding.

PROM MEMPHIS. This case was tried at the February Term, 1870. There was a verdict of guilty. The Court fined the defendant $50, from which he appealed. It appearing that this was the second conviction for a like offense, the District Attorney-general moved the Court to declare the license of defendant forfeited; which the Court declined to do; from which ruling the State appealed, Judge G. P. Foute, presiding.

FROM MEMPHIS. This cause was heard at the - Term, 1865, when there was a pro confesso decree in favor of complainant. The cause is now here by writ of error. Chancellor Thomas G. Smith, presiding.

FROM MEMPHIS. There was a decree in this cause in favor of complainants. The cause is brought to this Court by several of the defendants. Chancellor W. M. Smith, presiding.

FROM MEMPHIS. This cause was heard on demurrer of defendants, which was disallowed, and an appeal is taken to this Court. ¥m. M. Smith, Ch., presiding.

from laueerdale. There was a decree in this cause at tbe August Term 1867, and an appeal to this Court, Chancellor JOHN W. Harris, presiding. It is now before this Court on a motion for a judgment on the appeal bond.

PROM MEMPHIS. This canse was tried in the Common Law Court at Memphis, at the - Term, 186 — , when there was a verdict and judgment in favor of the defendants, and an appeal to this Court by the plaintiff. Judge -, presiding.

FROM MEMPHIS. This cause was heard at the - Term, 1867, when there was a decree in favor of the defendants, and an appeal by them. Chancellor William M. SMIti-i, presiding.

FROM MEMPHIS. The bill in this ease was dismissed on demurrer of respondent, Johnson, from which decree complainant appealed to this Court, Chancellor-presiding.

<p>PROM NASHVILLE.</p> <p>This cause was tried at the September Term, 1866? of the Circuit Court at Nashville The plaintiff appealed to this Court. Judge M. M. BrieN, Sr., presiding.</p>

<p>Attoiwjgys at Law. No -power to assign judgment, except by authority of', their client. If assigned to defendant by attorney for full amount, an execution can not issue on the same. Attorney liable to client. An attorney at law not having authority, unless specially authorized to do so by his client, to assign the judgment obtained by him in the name of his client, to one of several judgment debtors, or to a third party, for the benefit of one of the judgment debtors; having undertaken to do so, and receiving for such assignment the amount of the judgment. Held, the assignment is a nullity; but the reception of the amount of the judgement by the attorney, even if he does not pay it over to his client, it is a payment of the judgment, and an execution can not afterwards issue to enforce the collection of the judgment in favor of the client;, his only remedy is against the attorney.</p>