Volume 48 — Tennessee Reports

<p>1. Accounts. From other County or State. Nature of. An account “for balance due on price of a horse” is such an account as may be proved under the Code, § 3780, which makes accounts, coming from another county or State, properly verified, evidence.</p> <p>2. Same. Now declared on. Profert. Unless the declaration on such an account avers that the account does come from another county or State, and makes profert thereof, verified as required, the defendant can not be required to deny* the account on oath; nor will the plaintifl be entitled to read the account on the trial as evidence.</p> <p>Case construed, Cave & Schaffer v. Baskett, 3 Hum., 340.</p> <p>Code construed; Code, 3780; Act of 1819, chapter 25.</p>

<p>1. Evidence. Primary and secondary. Design of a writing. The plaintiffs in a suit offered parol proof that they had executed to the defendant, as agent of the Confederate States, a bond binding them to let the Southern Confederacy have sixty per cent, of the leather they manufactured, without evidence to show that the bond was lost, or notice to produce it. The Court admitted the evidence to prove the ‘‘existenceand design” of the bond, “not its contents.” This was error. The design must be proved by its contents.</p> <p>2. Same. Accounting for original papers of Confederate States. The fact that a paper relates to the business of an extinct political organization, is not a ground on which secondary evidence is admitted, without accounting for the primary evidence.</p> <p>3. Same. Conversation not to be admitted partially. When part of a conversation is admitted in evidence, it is error to exclude another part, to which the part admitted is a reply, and without which the part admitted is hardly intelligible, though the part so excluded might of itself be irrelevant to the issue.</p> <p>4. Duress. Presumption of continuing. No presumption- of continuing duress, under the circumstances of the case.</p> <p>5. Amendment. While charging jury, error. Code construed, ¡S 2869. In a case coming by appeal from a Justice of the Peace, it is error to allow an amendment, changing the iorm of action from “ debt on account” to “trespass,” after the Court has c mmenced charging the jury.*</p>

<p>EROM KNOX.</p> <p>Petition for a writ of supersedeas, to the Chancery Court at Knoxville, O. P. Temple, Ch.</p>

PROM GREENE. Appeal in error from the Circuit Court of Greene County, R. R. Butler, J., presiding. Tbe certificate referred to in the opinion is as follows: “In bilis case the defendant prays an appeal, and swears, that, owing to his poverty, he is not able to bear the expenses of the suit, to the next term of the Circuit Court for Greene County, and that he is entitled to a recovery in the case. “This, October 30, 1866. “Test: WilliaM McCoy, J. P. for G. C.”

<p>Appeal. Amendment. Appeal bond is evidence of an appeal granted, and no amendment is necessary to show it. Code, § 4178.</p>

<p>1. Attachment. Pisa in abatement not an appearance. Pleading in abatement to an attachment is not an appearance, by which the Court acquires jurisdiction, of the person.</p> <p>2. Same. Same. Conclusion. A plea in abatement, traversing the causes of attachment set out in the affidavit, properly concludes to the country.</p>

<p>PROM HANCOCK.</p> <p>Trespass from the Circuit Court of Hancock county. James P. Swann, presiding.</p>

<p>1. Attachment. Affidavit. An affidavit for attachment which does not state the nature of the debt, whether by note, bill of exchange, or breach of contract, will not authorize the issue of the writ.</p> <p>2. Same. Same. An attachment issued on such affidavit, and all proceedings based thereon, without appearance, are void.</p> <p>3. Same. Condemnation of land. Judgment before a Justice of the Peace based on such affidavit, with attachment levied on land, and returned to Court, will not authorize condemnation of land.</p> <p>4. Same. Same. Practice. The proper practice is to dismiss the proceedings for condemnation.</p> <p>Case approved. Turner v. Ireland, 11 Hum., 447.</p>

<p>Appeal in error from the Circuit Court of Anderson County, Sam’l R. Rodger,s, J., presiding.</p>

<p>1. Attachment, Ancillaby. Summons. Levy of an ancillary attachment, without service of the original summons, does not bring the defendant into court.</p> <p>2.' Same. Judicial. Levy. Publication. Without both levy and publication in due form, a judicial attachment will not support a judgment, unless the defendant appear.</p> <p>3. Same. Record. If the record does not show that the publication was in fact made, it is fatal to the proceedings.</p> <p>4. Same. Judgment void. Remedy. Such judgment will be perpetually enjoined by a court of equity, and a sale of land under it declared void.</p>

EROM JEFFERSON. From the Chancery Court at Dandfidge, Seth J. W. Lucky, Ch„, presiding. insisted that an equitable estate could only be sold upon a bill, setting out the title and making the legal owner a party; and cited Code, §§ 3461, 3500; Drake on Att., §§ 232, 235, 244, n. 1; Peck R., 300; Servey v. Champion, 11 Hum., 569; Graham v. McCampbell, Meigs, 52; Green v. Demoss, 10 Hum., 371.

<p>FROM GREENE.</p> <p>From the Chancery Court at Greeneville. Seth J. V. Lucky, Ch., presiding.</p>

<p>1. Attachment. Ancillary. Sale of land under. A sale of land under a judgment based upon summons and ancillary attachment, which does not state the nature of the plaintiff’s claim, or of his suit, without service or appearance, upon a publication which did not mention as defendant the owner of the land, held void.</p> <p>2. Costs in Chanceby. Bond. Surety liable on reversal. Complainant gave bond conditioned to prosecute with effect, or to pay the costs that may be decreed by the Chancery Court, on his prosecuting his suit there with effect, and a reversal here — security on the bond held liable for the costs, under Act of 1859-60, ch. 120.</p>

<p>1. Pleading. Continnando. A declaration in trespass averring “that, on the 1st day of January, 1864, and at divers other days, before and since that time, to the commencement of this suit,” the defendant, -with force, etc., took, eta., held to authorize proof of repeated acts of trespass.</p> <p>2. Same. Aider by verdict. If this were not so, it is an objection not affecting the merits, and can not, after verdict, prevail in this Court.</p> <p>3. Evidence. Political opinions. The political position of the parties, while in most cases foreign to the issue, may, in cases of circumstantial evidence, form part of the chain, and become legitimate proof.</p> <p>4. Same. What will support verdict. Proof that the plaintiff in error was a rebel; that he rode with rebel officers and soldiers across his own land, to a place of encampment common to both armies; that he pointed in a direction which might indicate the land of the defendant in error, or of other adjoining proprietors; that timber was cut off the land of defendant in error, without cutting any from that of the plaintiff in error; and that the property of the former was taken and that of the latter left, without testimony to show that these acts were done by the advice of the plaintiff in error, is no evidence to support a verdict against the plaintiff in error for trespasses committed by the soldiers.</p> <p>5. Trespass. Person may divert impending evil. If the plaintiff in error discovering that soldiers would encamp upon his own land, or that of the defendant in error, and would take the timber and property of one or the other; informed them that he was a rebel, and' that defendant in error was a Union man, and requested them to take the property of the latter and to spare his, he incurred no civil responsibility.</p> <p>6. Same. Advice to party who is justified. If timber was cut, and other property taken, by the advice of a citizen, he can not be held as a trespasser, unless it appears that the act done was unlawful, and subjected the party advised to civil liability; and this defense may be relied upon under the plea of not guilty.</p> <p>7. Belligerent rights. Confederate States. During the war the Confederate States were entitled to the same belligerent rights as were the United States. Their armies, officers and soldiers, incurred no civil responsibility by encamping upon the lands of individuals, and using ' such timber and other property as was necessary to an army in camp. Their military commanders were the proper and only judges of this necessity; and what it was lawful for them to do, it was lawful for a citizen to advised.†</p>

JVROM ANDERSON. From the Circuit Court • of Anderson County, S. R. Rogers, J., presiding. insisted that the Confederates had been held entitled to belligerent rights in the Prize cases. 2 Black, 673-4 and Wood v. Stone, 2 Cold., 374. Allegiance and protection correlative. Lawrence Wheat. 526, n,; Halleck’s Int. L. & L. of War, 792; BI. Com. War defined, Vattel, 291, Mr. Justice Grier in the Prize cases; The Hoop, 1 Robs., R. 196.

<p>1. Confederate Authority. Pleadino. A justification by Confederate authority cannot be proved in trespass, under a plea of not guilty.</p> <p>2. Evidence. Proximate Cause. "Where the house of a deserter from the rebel army was visited by a Confederate enrolling officer, with a squad of soldiers, whereupon he left home, and was absent about twenty months, the Court intimate that the absence cannot be attributed to the visit of the officer.</p> <p>3. Same. Political opinion. Loyalty and disloyalty admissible in evidence where the question is one affecting the actions of persons during the war, which may be controlled by their relation to the one party or the other.</p> <p>4'. Charge oe Court. On the facts. To charge, that repeated efforts to oust a party, or repeated searches for him for that purpose, would be grounds of apprehension, and the party might abandon his home and hold him thus pursuing, liable to damages for ejecting or driving him from home, is an invasion of the province of the jury, and is error.</p>

<p>1. Justification. Belligerent Bights. In an action of trespass, a plea, which attempts to justify an act under the belligerent powers of the Confederate State, is detective if it fails to show the defendant was a soldier. That he was “liable to perform military duty” is not sufficient.</p> <p>2. Pleading!-. In Trespass, justification to be pleaded. If a soldier could justify under the laws of the Confederate States to compel the service of citizens in the armies, the laws and order under which he acted must he pleaded specially.</p> <p>3. Evidence. To rebut what is excluded. Error. Material evidence admitted as rebutting to what was excluded by the Court, is a cause for a new trial.</p>

<p>PROM SULLIVAN.</p> <p>Action of debt, from the Circuit Court of Sullivan County. E. E. Gillenwaters, J., presiding.</p> <p>Cited 4 Cold., 275, 283, 301, 327; 2 Cold., 336; 5 Cold., 465.</p>

FROM GREENE. From the Circuit Court of Greene County. E. E. Gillenwaters, J., presiding. The bill of exceptions recited that the plaintiff read, in opening, the petition for discovery, answer and note sued on, but it did not state that the answer was made part of the bill of exceptions.

<p>1. Costeederate Notes. Sale for. A party -who has sold and delivered personal property upon an agreement to take payment in Confederate Treasury notes, can not, upon a tender of the Confederate notes, refuse to accept them and bring detinue or trover for the value of the property-</p> <p>2. Same. Question reserved. Whether he can recover for the value of the property, query?</p> <p>Cases Cited. On sale and delivery. Meigs B.. 22; 2 Hum. 298; 5 Hum., 108.</p>

<p>1. Collateral security. Confederate Treasury notes. Where a debtor transferred a note payable in Confederate Treasury notes, to be credited, if paid, otherwise he to stand bound for the original debt, held that the contract was not affected by the Confederate consideration of the note, and was not a contract to pay in Confederate notes.</p> <p>2. Charge oe Court. On facts. A charge that such a contract is a contract to pay in Confederate money, is a charge on the facts, and is erroneous.</p>

<p>1. CONFEDERATE Treasury Notes. Proof to support verdict. Proof that a payor of a note, with a friend, met the payee in the road; payee told him they had come to pay the note; payor went to his son’s house and returned, they awaiting his return; went to his house; payee said, you have come to pay that note; went into another room to get it; counted interest, and took pay in Confederate notes, and delivered note; enquired if they knew who would borrow the money; put it away in another room, and coming out, said he would keep an account of the men who paid him in that kind of money; the payee and friénd being unarmed and using no threats or force, but being rebels, and the payee being Union, and being within the Confederate lines, and “there being a general state of fear in regard to refusing to take Confederate money, many Union men having been arrested.” Held insufficient to prove duress, or to support a verdict.</p> <p>2. Dukess. Charge of Court. Charge on foregoing facts that, “if through a present exciting fear, a person was forced ” to take Confederate money, the payment would not be binding, without anything in charge, defining what result, feared, would suffice, is error.</p> <p>Evidence. Proof of a general state of fear, &c., as above, is inadmissible.</p> <p>Case cited, 'McSween v. Miller, MS., Knox., 1867, See note p. 104.</p>

FROM COCKE. From the Chancery Court at Newport. The record does not show what Chancellor was presiding when the decree appealed from was passed.

FROM MONROE. From the Circuit Court of Monroe County. E. T; Hall, J., presiding. That if the original contract was illegal, the defendant was in pari delioto with the payee, and eniitled to no favor — citing, Holman v. Johnson, Cowp. It., 343; Parles v. MoKamy, 3 Head., 298; Thornburg v. Harris, 3‘ Cold., 157; Petrie v. Hannay, 3 T. It., 422; Browning v. Morris, Cowp. It., 792; that the plaintiff was in no fault.

<p>FEOM GEEENE.</p> <p>From tlie Chancery Court at Greeneville, S. J. W. Lucky, Ch., presiding.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from the decree of O. P. Temple, Cli., in the Chancery Court at Jonesboro.</p>

PROM WASHINGTON. From the Chancery Court at Jonesboro. J. P. Swann, Ch., presiding. The powers of attorney mentioned in the opinion were executed in November, I860, by Rachel and John B. Duncan, they being citizens of Iowa, where they continued to reside during the war. Conley, the attorney, made his deed to the lands, lying in Washington County, Tennessee, June 20, 1863. Cited -Story on Agency, §§ 224, 229, 230, 435 to 439.

PROM GREENE. Appeal from the Chancery Court at Greeneville. The transcript does not show what Chancellor presided when the decree passed. cited Barton v. Kilgore, MS., to show that a note given in renewal of one which provides on its face for payment of usury, would not be illegal. Agent or bailee could not receive Confederate notes. Shurer v. Green, 3 Cold., 419. If die payor was discharged, the payee would be liable.

<p>1. Ebrob. Evidence to support verdict. In trespass for driving the plaintiff’s intestate from his home, causing him to be exposed to inclemencies of weather, whereof he sickened and died — held, that proof of injuries received in a fight in November, 1861; of his leaving in April, 1862; driving teams until December; then teaching a short time; then driving teams; being exposed therein tobad weather, and dying in January, 1863, he attributing his death to exposure, was no proof to support a verdict for the plaintiff.</p> <p>2. Evidence. Eedarations. Mes gestee. Declarations of the deceased under the above state of facts, made at the time of leaving home, as to his motive and intention, were not admissible as evidence.</p> <p>3. Same. Same. Declarations as to an injury received are only admissible when made before the party has time to devise anything for his own advantage.</p>

<p>1. Evidence. Grounds for contradiction. Where a witness was asked as to a conversation, with a view to contradict him, the place and the conversation being stated, the time being fixed as a short time before a certain named event, the actual time being about three weeks before the event, the transaction having occurred several years before, it was held sufficient to admit the impeaching statement.</p> <p>2. Same. Threats. The court having admitted vague threats against Union men who had been troubling the plaintiff in error, charged the jury that they could only look to the threats if they were satisfied that they were aimed at the defendant. There being evidence that the plaintiff was believed by defendant to be out of the country, it was held that the evidence of the threats, if admissible at all, should have been submitted in connection with the fact of plaintiff’s supposed absence.</p> <p>3. Same. To support verdict. What evidence is sufficient to support a verdict.</p>

<p>FROM UNION.</p> <p>From the Circuit Court of Union County, J. P. Swann, J., presiding.</p>

PROM SULLIVA5T. From the Circuit Court of Sullivan County, E. E. Gillehwaters, J., presiding. The declarations which the Court held to render the fact of the defendant being a rebel, pertinent proof, was his answer to the soldiers, when they asked him if Carr, Hughes and others, did not have good stock, or good horses, and if they were not Union men, to which he answered that they had good horses and were Union men.

<p>FROM JEFFERSON.</p> <p>From the Circuit Court of Jefferson county, J. P. Swann, J., presiding.</p>

<p>FROM GREENE.</p> <p>From the Circuit Court of Greene County, E. E. Gillen waters, J., presiding.</p>

<p>FROM HAWKINS.</p> <p>From the Circuit Court of Hawkins County, E. E. Gillenwaters, J., presiding.</p>

<p>Evidence. Political opinions not relevant. In trespass for taking a horse, the political opinions of the parties is not in issue, and proof that one was a rebel and the other “Union,” is not relevant.</p>

PROM CLAIBORNE. Debt, from the Circuit Court of Claiborne County. J. P. Swann, J., presiding. Smith, the plaintiff in error, bought corn of the defendant, and agreed to pay him in bank notes. After-wards, he paid him in Confederate Treasury notes. Cot-trell, the defendant in error, sued the plaintiff in error, for the price of his corn, and insisted that he had been compelled by duress to accept the Confederate currency.

<p>1. Evidence. Political opinions. Sow proved. Where evidence of political opinions is admissible, it must be proved as a fact, not as character, by reputation, or more improperly, by the mere judgment of the witness, or by showing “that he bore the name of a rebel,” or that he was influential with rebels.</p> <p>2. Same. lies gestas. Rebutting. Declarations of the plaintiff in error before a Lieutenant of the Confederate army being admitted, evidence of what the Lieutenant said, at the same time, is admissible as part of the res gestee, or to rebut what the plaintiff in error said.</p> <p>3. Tbespass. Act of omission. A charge, that the mere omission of a de fendant to interfere for the discharge of a prisoner before a Confederate military officer, is a circumstance which may be looked to with the other facts of the case, to determine the guilt of the defendant of the trespass, is error.</p> <p>4. Peactice. Repetition of charge. For a court to repeat several times, on the return of a jury into court to report that they can not agree, disjointed parts of his charge, is error.*</p>

<p>EROM JEEEERSON.</p> <p>Appeal from the Circuit Court of Jefferson County. J. P. Swann, J., presiding.</p>

FROM CAMPBELL. Trespass in the Circuit Court of Campbell County. L. C. Houk, J., presiding. He insisted that the notices of defense were insufficient.

<p>PROM CAMPBELL.</p> <p>From the Circuit Court. L. C. Houk, J., presiding.-</p>

<p>FROM JEFFERSON.</p> <p>From the Circuit Court of- Jefferson County, J. P. Swann, J., presiding.</p> <p>cited Lawrence’s Wheaton, 629; The Amiable Isabella, 6 Wheat. Rep., 1.</p>

<p>1. Code Coestehed. Injury earning death. Proximate cause. An action cannot be maintained- under the ' ode, §? 2291, 2292, giving a right of action to the personal representative of a decedent, for injuries resulting in his death, unless the death is the natural and proximate consequence of the acts proved.</p> <p>2. Same. Same. Pacts. Proof that the plaintiff intestate was driven from his home by the defendants; afterward enlisted in the Federal army; was captured, and detained as a prisoner of war, and died in prison; held, that the death was not a consequence of defendant’s acts, such as-to subject defendant to this action.</p>

<p>1. Equity pleading. Demurrer. Special. That a case is properly one of legal cognizance must be specially stated, as a ground of demurrer to a bill. A general demurrer for want of equity, admits the jurisdiction. Code, 1 2865, 2934, 4318, 4319, 4321, 4385, 4386, 4388 ; Kirk-man & Ellis v. Snodgrass, 3 Head., 372.</p> <p>2. Capture. Facts to prove title under. Proof that a horse was captured during the civil war, by a few Federal soldiers, from two or three persons dressed as rebel soldiers, said to belong to Morgan’s command; turned over toa County Provost Marshal; and that afterward, it came into the defendant’s possession, he claiming to have obtained it by military order, is not sufficient evidence to defeat the right of the owner, from whom it had been taken by theft of unlawful force.*</p>

FROM COOKE. In the Circuit Court. E. E. Gillenwatees, J., presiding. In 1863, plaintiff lost a mule, taken by force from his family, in his absence, by a party of Confederate soldiers. In 1865, the plaintiff found his mule in the possession of the defendant,, who claimed to have bought it at a government sale.

PROM GREENE. Prom the Criminal Court of Greene County, A. VY. Howard, J., presiding. This case being docketed in the name of II. II. Inger-soll v. The State, on motion of the Attorney-general, it was ordered that the same be corrected, so as to stand II.

PROM SULLIVAN. In the Circuit Court. R. R. Butler, J., presiding. to show that a carrier may restrict his liability, cited Peck, 270; 7 Yerg., 340; 5 Yerg., 71; 4 Yerg., 48; Meigs, 502; 1 Swan, 456; 3 Hum., 260; Ang. on Car., § 127, 220 et seq.; 1 Cold., 272, 283.

<p>Hebemptiost. Construction of Statute. The Act of 1865, ch. 10, s. 4, extending the time of redemption, and providing that the time, from the 6th of May, 1861, to the 1st of Jan., 1867, shall not be computed, has no application to sales made after its passage.</p> <p>Case cited, Reynolds v. Baker, 6 Cold., 221.</p>

<p>1. Constitutional Law. Statute of Limitation. Power to divest right under. A right to a defense complete under a Statute of Limitations, can not he taken away by a statute, ordinance of a Constitutional Convention, or amendment of the Constitution. See Henderson' v. Felker, ante p. 271.</p> <p>2. Bill op Exceptions. When to he made. A bill of exceptions not made and signed at the term when the the cause is tried, is a nullity, and can not be looked to as part of the record.</p>

<p>FROM COCKE.</p> <p>In the Circuit Court, Jas. P. Swann, J., presiding.</p>

<p>FROM HAWKINS.</p> <p>Appeal in error from the Circuit Court, E. E. Gil-lenwaters, J., presiding.-</p>

<p>Jtjbob. Challenge for cause. Opinions. In a civil case, either party has the right to examine each juror offered, to ascertain -whether he has formed or expressed an opinion touching the merits of the case.</p>

FROM JOHNSON. In the Circuit Court of Johnson County. The transcript does not show who was presiding as Judge, when the motion to discontinue was disposed of. J. P. Swann, J., presided at the trial. The motion to discontinue was made by only one defendant.

FROM GREENE. Replevin in the Circuit Court of Greene, R. R. Butler, J., presiding. The cause being brought to this Court by writ of error sued out in forma pauperis, a motion was entered to dismiss for insufficiency of the affidavit, in that part of it stated in the opinion.

FROM HANCOCK. Appeal in error from the Circuit Court, James P. Swann, J., presiding.

<p>PROM HANCOCK.</p> <p>From the Circuit Court, J. P. Swann, J., presiding.</p>

EROM GREENE. In the Circuit Court, R. R. Butler, J., presiding. Assumpsit against two partners, one of whom was served with process, the other not. The suit was dismissed as to the defendant, who could not be found, and the declaration filed against the other. The defendant pleaded, the non-joinder, in abatement to-which was a demurrer, which was overruled, and judgment for defendant, from which plaintiff appealed.

<p>1. Cebtiobabi. Excuse for delay. A statement in a petition for certiorari, that the execution gave to the defendant “the first reliable knowledge” of the judgment, is equivocal, and is not sufficient to excuse delay in applying for a certiorari.</p> <p>2. IlliEGAl, Cohtbact. Knowledge not participation. It seems that a statement that a note .was given for a horse, which the seller knew was to be used in “the rebel service,” without more, does not show a meritorious defense.</p>

FROM GRAINGER. In the Circuit Court. The name of the presiding Judge does not appear in transcript. insisted that the recital in the record showed that the omission of the signature was a clerical mistake, and cited 1 Cow., 65; 3 Dal., 419. n.

<p>Bm or Exceptions. . Not signed. A bill of exceptions which is not signed, cannot be treated as part of the record, though the record recite that it was signed and sealed, &e. McGavoch v. Pwryear. 6 Cold., 34.‡</p>

<p>1.. Bill 03? Exceptions. No charge. Judgment affirmed. Where the bill of exceptions is defective in a material particular, by reason of which no error appears in the record, the judgment below must be affirmed; as where there is no charge, and a proper charge would sustain the judgment below.</p> <p>2. Cebtiorabi. When not awarded. No certiorari will be awarded where it appears that it'will not avail anything, as where the Clerk certifies that he has made diligent search for a portion of the record, and it can not be found.*</p>

FROM HAWKINS. In the Chancery Court at Eogersville. The bill is addressed to S. J. W. Lucky, Ch.; but who presided when the demurrer was allowed, does not appear by the transcript.

<p>FROM GREENE.</p> <p>In the Chancery Court at Greeneville, S. J. W. Lucky, Ch., presiding.</p>

<p>1. Equity Jukisdictiox. Year’s support for widow. Objection to. If a bill in equity be filed to secure a widow tbe articles exempt from execution and to lay off her year’s allowance, the objection to the jurisdiction is waived, unless taken in limine.</p> <p>2. Same. Same. Dower. So of a bill filed to bring into Chancery a litigation pending in a Court of concurrent jurisdiction, as where a petition for dower is filed in the County Court, and order to lay off dower and report of Commissioners made.</p> <p>S. Doweb. Value of mansion-house not computed,. In the assignment of dower, the widow is entitled to one third in value of the lands of her husband, and the mansion, etc., to be included in the part allotted, but the value of the improvements is not to be regarded in estimating the quantity to be assigned her, unless the improvements can not be assigned her without manifest injustice to the children.</p> <p>4. Same. Assignment of timber. A widow is entitled to a valuable and convenient part of the timber as a part of her dower.</p> <p>5. Yeab’s Suppobt. Step-children. _ Step-children, living with a widow at the time the year's support is assigned, afterward taken away without the widow’s consent, are not entitled to any part of the year’s allowance.</p> <p>6. Same. Fixed by state of things at death of husband. Year’s support should be fixed as to amount, by the condition of things at the death of the husband, not by changes which take place within the year.</p> <p>7. Pbopebty Exempt. Widow takes. Articles exempt from execution by laws passed since the Code, go • to the widow under the provisions of § 2288.</p> <p>8. Statute. Consimction. Statute in present tense may be applied to Acts subsequently passed.</p>

<p>FROM HAWKINS.</p> <p>Appeal from the Chancery Court, Seth. J. W. Lucky, Ch., presiding.</p>

EROM HAWKINS. Appeal in error from the Circuit Court, E. E. Gil-lenwaters, J., presiding. The caption to the depositions excepted to shows that the depositions of six witnesses were taken on notice, three to be read in the case of Caldwell v. Phipps, and three in the ease of Farmer v. Phipps.

<p>PROM SULLIVAN.</p> <p>In the Circuit Court, before E. E. Gillenwa-TEES, J.</p>

<p>FROM GREENE.</p> <p>In the Circuit Court, E. E. Gillenwatees, J., presiding.</p>

<p>FROM JEFFERSON.</p> <p>In the Circuit Court, J. P. Swann, J., presiding.</p>

<p>FROM MORGAN.</p> <p>In the Circuit Court, L. C. Houk, J., presiding.</p>

<p>Evidence. Pbactice. Witnesses. The Bide. It is error to refuse, in a civil case, to place witnesses under the rule, where it is asked upon affidavit of its necessity.</p>

E'BUM MARION. In the Circuit Court, to which the case had come by change of venue from Franklin; N. A. PattersoN, J., presiding, in the Court of Franklin, when the venue was changed, and also on the trial of the cause in Marion County. and presented the brief of Turney, J., which cited Code 2839, 1 Pars, on Contr., 548; Chitty on Contr., 468; Addison on Contr., 678. Marks cited 2 Pars, on Contr., 67; 2 Greenl.

FROM COCKE. In the Circuit Court, J. P. Swann, J., presiding. cited King’s Dig., 1082, 3575-9; 1 Sneed, 141; 2 Sneed, 275; Allen v. The State, 3 Hum., 367; and insisted that bank notes at 50 per cent, discount, as was the case here proved, were, in no 'proper sense, current. insisted that what was “currency” was matter of evidence as to what actually circulated. E. C. Camp, with them.

FROM HAWKINS. In the Circuit Court, E. E. Gillenwaters, J., presiding. insisted that the constitutional amendment of 1865 was invalid; that the request was insufficient, and cited Trott v. West, 9 Yerg., 433; S. C. Meigs’ E., 163. insisted that the amendment was valid and operative, and that the defendant in error had two years and six months from 1st January, 1867, to sue.

FROM KNOX. Debt from the Circuit Court, E. T. Hall, J., presiding. cited Atkinson v. Brooks, 10 Yer., 484; 3 Cold., 25. insisted on the distinction between an administrator de bonis non, and the sue-cessor to one who resigns, and cited Coleman v. Raynor, 3 Cold, 25, 29; 1 Bouv. L. D., 82; 2 Bl. Com., 506.

<p>Fobmer Judgment. Jurisdiction. A former judgment of a Justice of the Peace in replevin being set up in defense to a later replevin in Court, it was objected that it did not appear that the justice had jurisdiction of the first replevin because there was nothing to show that the value of the property was not above one hundred dollars, the judgment being prior to the Act of 1865-6, c. 51. Held, that the justice having taken a bond for two hundred dollars (double value) sufficiently ascertains the value to be one hundred dollars, and that the judgment was a good bar.</p>

<p>1. Satisfaction of Judgment. Scire facias lo vacate. To rfraintain, under section 2990, of the Code, a scire /acias to set aside satisfaction of a judgment by sale of property, it is necessary to allege and show a previous adjudication of the plaintiff’s want of title, under his purchase. The failure of title cannot be enquired of in the proceedings by sci. fa. Case Cited. EddieY. Goman, 1 Sneed, 290. Code construed, 2990.</p>

FROM SULLIYAN. In the Chancery Court at Blountville. Decree allowing demurrer and dismissing the bill, O. P. Tekple, Ch., presiding. As to requisites of levy, he cited Grissom v. Moore, 1 Sneed, 361; Lien of levy, Parker v. Swan, 1 Hum., 80; Farquhar v. Toney, 5 Hum., 502.

<p>1. ARBITRATION. Reference of Cause to. Discontinuance. A reference to arbitrators, without a stipulation that the award is to be made the judgment of the Court, is a discontinuance of the suit.†</p> <p>2. Same. Same. Same. That it should have this effect, it is not necessary that it be a valid submission, nor that there should be a valid award, but the voluntary act of submitting the cause to another tribunal, is sufficient.</p> <p>Case overruled, Norwood v. Stephens, 7 Cold., 1.</p> <p>3. Tleading. Puis darrein continuance. A plea puis darrein continuance is not since the Code, a waiver of former pleas. Code 2892.</p> <p>4. Same. Same. Costs. Costs are to be adjudged not in view of the new plea, but of all the issues.</p>

<p>County Court. Order as to Hoad. In an action qwi. tam. for altering a public road, the validity of an order of the County Court, authorizing the change, cannot be attacked by evidence, aliunde showing that it was not made upon a return of a jury of view. Code, 1237, †</p>

FROM JEFFERSON. In the Circuit Court, ¥m.' L. Adams, J., presiding. cited Bennet v. Holt, 2 Yer., 6; Scott v. Britton, 2 .Yer., 215. insisted that the demurrer ought to have been sustained, and cited 1 Ch. PL, 432, 434; and that the judgment should be rendered here on the demurrer, citing Snodderly v. Weaver, 1 Cold., 256.

FROM MONROE. In the Circuit Court, E. T. Hall, J., presiding. insisted that the Court' below erred in sustaining the demurrer to defendant's plea; that the fact of suretyship may be shown by parol, and cited 2 Am. Lead. Cases, 4 ed., 403, 404. England v. McKamey, 4 Sneed, 76.

<p>FROM JEFFERSON.</p> <p>In the Circuit Court, James H. Randolph, J., presiding.</p>

EROM UNION, In the Circuit Court of Union county. The transcript does not show what Judge presided on the trial of this cause.

<p>1; Evidence. In Jfyectment. Statement of deceased witness before processioning jury. In ejectment, it is error to admit evidence of what a deceased witness stated before a processioning jury as to the locality of a corner, •without proving that the processioning was regularly instituted, and between the same parties, and that the statement was made under oath, or that the jury were on the premises, or at the corner in question.</p> <p>The Court does not hold, that with all these requisites, the evidence would be admissible.</p> <p>2. Same. Same. Declarations of deceased agent as to comer called for. The admission of testimony, that a deceased person stated, as to the locality of a corner, that he, as agent of the former owner, made a deed for the land, and made it to a particular spot, as the corner, was held to be error, for want of proof of knowledge of the corner, and also because it is contradicting the deed made by the declarant, the party in interest not being shown to have been present.</p>

<p>Judgment by Default. In trespass admits the taking. On a judgment by default in trespass for taking property specified in the declaration, the taking of the property described is admitted, and the only proof which it is incumbent on the plaintiff to make is as to its value, and he is entitled to a verdict for the value.</p> <p>Case reviewed. Turner v. Carter, 1 Head, 525.</p>

<p>Account. From another county or State. Denial in petition for certiorari. A denial of the justice of an account, coming from another county or State, contained in a petition for certiorari, is a sufficient denial to require the plaintiff to prove his account, or to admit evidence to disprove it.</p>

<p>PROM CLAIBORNE.</p> <p>In the Circuit Court, J. P. Swann, J., presiding.</p>

FROM GREENE. In the Circuit Court, E. E. Gillenw atees, L, presiding. He cited Legate v. Ward, 5 Cold., 453; Leek v. Enabb, 1 Tena., 55, 56; Code, 3132, as to notice; and Evans v. Evans, 4 Cold., 602, 603, as to the excuse for not appealing; Brinldey v. Burney, 5 Cold., 101, as to diligence. cited Wiles v. Nolan, 2 Cold, 529; Nieles v. Johnson, 3 Sneed, 326.

<p>Conventional Interest Law of 1860. Note need not recite a ban of money. Under the conventional interest law of 1860, it was not necessary that the note, reserving interest at a rate exceeding 6 per cent, per annum, should show on its face that it was for money loaned.</p>

<p>PROM WASHINGTON.</p> <p>In the Circuit Court, E. E. Gillenwat-ers, J., presiding.</p>

<p>FROM SULLIVAN.</p> <p>From the Circuit Court, before E. E. Gillen-waters, J.</p> <p>cited 2 Kent, 560; Story on Bailments, § 89; 4 Hum., 472; 1 Tenn., 19, 21. .</p>

FROM HAWKINS. In the Circuit Court, R. R. Butler, J., presiding. The affidavit mentioned in the opinion of the Court, p. 470, sets forth, as an excuse for not having sooner made the defense, “that since the institution of this suit, and since the filing' of his pleas in thiscase, he has discovered a defense which has been overlooked. * * * And he further states that he would have entered his said defense heretofore, had he known or been advised of the facts.

<p>1. Ebbob, Cobam Nobis. Misnomer. Diligence. A party sued, by the name of T. M. Brannon, on a note purporting to be signed by the name of G. M. Branda, returned as served by his true name Brandon, declared against as Brannon, without profert of the note, employed counsel before the war, who informed him he could find no declaration, a declaration having been in fact filed.' After the war, went with his attorney and searched for the the papers, which could not be found, but at that term judgment final by default, was taken. Held, not sufficient to support a writ of error coram nobis.</p> <p>2. Debt. Judgment in. The judgment for the debt and damages are separate in the action of debt.</p>

<p>Error Cobam Nobis. Whether cause is litigated, matter of fact. A judgment dismissing for want of sufficient bond, and awarding writ of inquiry against a plaintiff, in replevin in which witnesses had been summoned on both sides, though there was no plea, taken and executed, on a day of the term after the continuance of all “ litigated ” civil causes, and after the plaintiff and his witnesses had left the Court, is irregular and erroneous. Such error may be reached by writ of error coram nobis.*</p>

<p>1. Set-off. When 'plaintifffails. Where there is a finding by the jury that there is no cause of action on behalf of the plaintiff, there can be no set-off allowed to defendant. 3 Head., 570.</p> <p>2. Same. Same. Judgment. Jury having negatived plaintiff’s claim, and found for defendant inset-oflj the proper judgment is, that defendant go hence and recover his cost.</p> <p>8. Same. Same. Same. On error. But the verdict not being satisfactory, and the account being complicated, the Court set aside the verdict and remanded the cause for a new trial, or a reference under 2924 of the Code.</p>

<p>CONTRACT. Construction. Stipulation as to Accident. A stipulation in a contract for further time to finish a work, if it should be destroyed by inevitable accident, and the absence of any stipulation that the builder should be compensated for labor and material lost by such accident, is clear proof that such loss was to fall upon the builder. The retention by the employer of a large proportion of the compensation until the work is completed and received, is a ground for the same construclion.</p>

<p>Compound Iuteejsst. When not, allowed. A settlement and payment óf a debt, with compound interest; where there has been no previous contract to pay interest at stated periods,' of to pay'interest in that mode, and there is no indulgence granted for the future, or other new consideration for the payment of the compound interest, will be set aside as 'to the excess of the compound over the simple-interest.†</p> <p>Case 'cited, -Haley. Sale, 1- Cold., 233.</p>

<p>FROM KNOX.</p> <p>In the Circuit Court, E. T. Hall, J., presiding.</p>

Tbe petition mentioned in the opinion, sets 'forth that the petitioners were counsel and solicitors for the complainant; that the object of the bill was to perfect and maintain the title to a tract of land, purchased by complainant from defendants, heirs of Robert McClanahan, and to enjoin the sale of the land, under a fraudulent judgment obtained by defendant, Philip, as administrator of said Robert McClanahan.

<p>1. Distribution". Niece preferred to grand, niece, A grand niece does not take any share in the distribution of an intestate’s estate, "where there are brothers and sisters, nephews and nieces.</p> <p>2. Descent, Grand uncle not ancestor of parent. Lands descended from a grand uncle, as they do not descend from the ancestor of a parent, are not subject to the rule of the Code, 2420, par. 3, but to that of par. 1, and descend "without reference to the source from whence derived-</p> <p>3. Same. Father when heir to child. In such case, a father, if living, will inherit from his child an estate derived from an uncle on the mother’s side, in preference to the heirs of the child, on the part of the mother.†</p>

<p>1. Propebty Exempt prom Execution. Federal Courts. Laws of this State exempting property from execution, except such as were passed prior to the U. S. Process Act of 1828, are not operative against executions issued from the United States Courts.</p> <p>2. Same. Same. Horse not. A horse is not exempt from sale under execution from the Federal Courts.</p>

<p>PROM MONROE.</p> <p>In the Circuit Court, before E. T. PIael, J.</p> <p>cited, Chit, on Contr., 48, 49; Sheppard v. Kindle, 3 Hum., 80; Bac. Abr. Baron & Feme H., 296. On confirmation; Money v. Porter, 3 Hum., 347, ■ 366; Bouv. Law Diet., Confirmation 1 and 5. Cherry y. Newsom, 3 Yer., 370-1.</p> <p>cited 1 Par. on Contr., 26, 345, 361-2, and n. 3, lb., 20, 21; Hughes v. Peters, 1 Cold., 69; Bailey v. Freeman, 11 J. R., 221; Gilman v. Kibler, 5 Hum., 19; MoQhee v. Lynch, 3 Hay, 105; Story on Contr., 435.</p> <p>cited IAtton v. Baldwin, 8 Hum., 214, which he distinguished from this case, 1 Chit. PL, 59; 1 Wheat. Selw., 268; Aide?' v. Buckley, 1 Swan, 72. On confirmation, Fitzpatrick v. School Commissioners, 7 Hum., '224; Jones v. Hamlet, 2 Sneed, 256.</p>

<p>1. Equity Pleading. Bill to execute decree. A bill to carry out the purposes of the original bill, on a decree obtained upon it, must be filed as an amended and supplemental bill. •;</p> <p>2. Same. Bill to attack, or modify. To .attack decrees or modify their operation, or show errors in them, the proceeding cannot be by original bill, where prosecuted by a party to the cause. It must be by rehearing, writ of error 'coram nobis, bill of review, appeal, or writ of error.</p> <p>3. Same. Consolidated causes. Where causes are consolidated, the parties ■ are-subject to this rule. ' ■ ' '</p>

<p>EEOM HAWKINS.</p> <p>From the Chancery Court at Bogersville, S. J. W. Lucky, Ch., on the hearing, ■ dismissed the bill.</p>

<p>X. Sale, Req-istered. Recession, not registered. Creditors. A sale of land being made by deed registered, it was rescinded by title bond to recon-vey, unregistered. A creditor of the first vendee levied upon the land as his property. Held, that a bill would not lie by the original vendor to enjoin the sale.</p> <p>2. Same. Same. Rights of vendor. Practice. Remand to amend. The bill being filed against the creditor alone, it was held That he was not affected by equities between the vendor and parties liable with the vendee, on the judgment, and could not be enjoined from proceeding against the land until he had exhausted his remedy against the other parties to his judgment; but the creditor’s present right of sale being declared, the cause was remanded to make new parties and adjust equities.</p> <p>Code construed, 3170.</p>

PROM HAWKINS. In the Chancery Court, at Rogersville, S. J. W. Lucky, Ch., presiding.

FROM HAWKINS. From tbe Chancery Court at Eogersville, Seth J. W. Lucky, Ch., presiding.

FROM HANCOCK. In the Circuit Court. Demurrer to bill for want of jurisdiction. E. E. Gillen waters, J., presiding, allowed the demurrer, and the District Attorney appealed.

<p>1. Judgment by Motion. Affirmed on error. Bill to set up payments On a judgment against a purchaser at Chancery sale, without notice, the defendant prosecuted a writ of error, on which the judgment was affirmed. He then filed a hill to set up payments made before judgment. Held to he too late.</p> <p>2. Payments. Bight to recover. It seems that he would be entitled to recover of the parties to whom the payment were made, the amounts paid and not applied by them.</p> <p>Case explained, Smith v. Vanbibber, 1 Swan, 110.</p>

FROM GRAINGER. In tbe Chancery Court at Rutledge, S. J. W. Lucky, Ch., presiding. citing Code, .2195; 10 Yerg., 25; 2 Sneed, 387; Henry v. Hogan, 4 Hum., 210; 3 Hum., 631; 4 Kent, 537, 542; Broom’s Legal Maxims, 133. If the land did not go to these, as residuary devisees, then, as heirs, they took a share, citing 4 Kent, 541; Code, 2432; that the fifth clause only gave the four sons personalty, not realty.

<p>EROM JEEEERSON.</p> <p>In the Chancery Court at Dandridge, Setpi J. W. Lucky, Ch., presiding.</p> <p>cited Code, 3183, as to notice of -writ of error; Code, 3158, and Owens v. Sims, 3 Col., 544, as to divorce; Code, 4489, 3534 and 3186; 1835, c. 20, s. 16; 'Lewis v. Baker, 1 Head, 386; MeGavoek v. Bell, 3 Col., 512, as to purchaser’s right; Pryor v. Conner, MS., that a payment of $100 required, ■was not error in a decree barring redemption.</p> <p>insisted that Parmenter v. Parmenter, and Code, 3158, did not preclude relief as to the decree for alimony, and cited Dwarris on Stat., 40. On the decree to bar redemption, they cited Code, 2124, sub. sec. 2.</p>

<p>FROM JEFFERSON.</p> <p>From the Chancery Court at Dandridge, Seth J. W. Lucky, presiding.</p>

<p>PROM UNION.</p> <p>In the Chancery Court of Maynardsville, O. P. Temple, Ch., presiding.</p>

PROM MORGAN. In the Chancery Court at Montgomery, L. A. Gratz, Special J., .pronouncing the decree; L. C. Hook, J., presiding at tbe time of tbe decree on exceptions to tbe account. Tbe account was - taken, giving all tbe credits witb-. out reference to date, and computing the interest on tbe balance. The exception sustained, is in these words; 1st. Tbe calculations should be made on the basis of partial payments.

<p>FROM GREENE.</p> <p>In the Chancery Court at Greeneville, J. P. Swann, J., presiding.</p>

<p>FROM UNION.</p> <p>In the Chancery Court at Maynardsville, O. P. Temple, Ch., presiding.</p>

<p>1. Evidence. Maher. To impeach deed, The maker of a deed is not precluded from giving evidence to impeach it for fraud against creditors. Calloway v. Willie’s Lessen, 2 Yer., 1, 5.</p> <p>2. Same. Warrantor. A warrantor before the Act of Nov. 26. 1869, was incompetent, by reason of interest, to prove the validity of his own conveyance. Burhe v. Clark, 2 Swan, 310; Elliott v. Boren, 2 Sneed, 662; Lawrence v. Senter, 4 Sneed, 54; Ingram v. Smith, 1 Head, 423.</p> <p>3. Fb.aijdui.ent Conveyance. Priority. Creditor of vendor, and alimony to wife of vendee. The right of a creditor, filing a bill, to set aside a fraudulent conveyance to a husband, is preferred to the claim of the wife to alimony, not ripened into a decree at the filing of the creditor’s bill. McGhee v. McGhee, 2 Sneed, 22.3.</p> <p>4. Subety. Exoneration. Before judgment. A surety may bring his creditor and his principal before a court of equity to compel the payment of debts, and to be exonerated, and attack fraudulent deeds before judgment. Howell & Maget v. Cobb, 2 Cold., 105.</p> <p>5. Chanceby Pleading. Objection to jurisdiction. Objection, that the surety has no right until judgment against him, if good, would be waived, unless insisted on by the plea, demurrer, or motion to dismiss. Code, 4309.</p> <p>Cases reviewed, Williams v. Tipton, 5 Hum., 66; Henry v. Compton, 2 Head, 552; Dechard v. Edwards, 2 Sneed, 102; McNairy v. Eastland, 10 Yer., 316, 320.</p> <p>Code construed, $ 4288, 4291, 3457.</p> <p>Oases modified, Hopkins v. Webb & Hayes, 9 Hum., 519; Chester v. Greer, 5 Hum., 34,35; Williams y. Tipton, 5 Hum., 66.</p>

EROM HAWKINS. In the Chancery Court at Rogersville. The name of the Judge who rendered the final decree, does not appear in the transcript.

<p>EROM CLAIBORNE.</p> <p>From the Chancery Court at Tazewell. The name of the presiding Judge does not appear in the transcript.</p>

<p>CHArrcBBY Pieadhtg. Attachment Bill. Answer in response, and avoidance. An answer to a garnishment hill, stating, in response, that the respondent had executed lo the debtor a note, still due, but. in avoid, anee; that it was done with the understanding that he was to pay the money to a third person, without showing that he had paid to that person, or showing that the person held the note, or where it was, there being no proof as to the matters in avoidance, was held to charge the respondent as debtor of the person to whom he gave the note.</p>

<p>PROM JEFFERSON.</p> <p>In the Chancery Court at Dandridge, Seth J. W. Lucky, Ch., presiding.</p> <p>cited Hart-sell v. George, 3 Hum., 255; Jacob v. Sharp, Meigs, 114; McCloud v. Chiles, 1 Col., 248.</p>

PROM GREENE. From the Chancery Court at Greeneville, J. P. Swann., J., presiding. cited on trusts without the intervention of a trustee, 2 Sto. Eq., § 1380 ’ Goodrich v. Bryant, 5 Sneed, 325.

<p>PROM GREENE.</p> <p>In the Chancery Court at Greeneville, before S. J. W. Lucky, Ch.</p> <p>cited as to resulting trusts, 6 Hum., 99; Smitheal v. Gray, 1 Hum., 491; 3 Sneed, 242; 10 Hum., 9. Innocent purchaser, Cook v. Cook, 3 Head, 719; must plead specially, 2 Lead. Cas. Eq., 75.</p> <p>cited Bank v. Grundy & Hays, Meigs, 256; Gee v. Gee, 2 Sneed, 395, 404; Bostick v. Winton, 1 Sneed, 524. He also ¡presented a brief of the late T. D. Arnold.</p>

FROM GREEEE. Appeal from the decree of S. J. W. Lucky, Ch., in the Chancery Court at Greeneville. on es-toppel by warranty, cited Henderson v. Overton, 2 Yer., 394. False recital in deed estops grantor, Gibbs v. Thompson, 7 Hum., 179; Peacock v. Tompkins, Meigs, 317. Insisted that a conveyance to avoid confiscation was -a fraud, not a lawful trust.

<p>EROM KNOX.</p> <p>In the Chancery Court at Knoxville, O. P.. Temple, Ch., presiding.</p> <p>The former cited 97 Mass. R., 150; 50 Barb., 302; 40 Ala., 470, 475; 9 Int. Rev. Rec., p. 21, column 3. Mr. Gratz cited Hunter v. . Cobb, 1 Bush, 239, from 3 Am. Law Rev-, 484; Carpenter v. Bnelling, 3 Am. Law Rev., 356; Holyoke Mach. Co. v. Franklin Paper Co., 97 Mass., 150; Vonbeek v. Poe, 50 Barb., 302; 'Blount v. Bates, 40 Ala., 470, 475.</p>

<p>FROM SEVIER.</p> <p>In the Chancery Court at Sevierville, O. P. Temple, Ch., presiding.</p>

FROM WASHINGTON. In the Chancery Court, at Jonesboro, H. Smith, Ch., presiding. cited 1 Sto. Eq., Jur., §§ 224, 236, 238; Talley v. Smith, 1 Cold., 290; 8 Hum., 145, on weakness of understanding. Bay-less v. Williams, 6 Gold., 440, as to confidential relations ; and insisted that the relation of parent and child was such as to be within the rule. cited and commented upon Talley v. Smith, 1 Cold., 290; Keeble v, Cummins, 5 Hay., 43; Med.

<p>FROM KNOX.</p> <p>From the Chancery Court of Knox county, O. P. Temple, Ch., presiding.</p> <p>An anonymous brief cites: 11 Hum., 58, Womaelc v. Smith; 11 Hum., 478, Beasley v. Jenldns; 2 Head, 191.</p> <p>cited: Jar. on Wills, 727; Bridgewater v. Gordon, 2 Sneed, 5; Satterfield v. Mayes, 11 Hum., 58; 5 Doe v. Prevost, 4 J. R., 65; Wimple v. Fonda, 2, J. R., 287;" Haywood’s Heirs v. Moore, 2 Hum., 584; 4 Cruise Dig., 166, § 44. To show that the widow took absolute estate, he cited: 2 Fearne, 50; 10 J. R, 18; 13 J. R, 537; 15 J. R, 186; Smith v. Bell, M. & Y., 302; David v. Bridgman, 2 Yer., 558; Davidson v. Richardson, 10 Yer., 290; Booker v. Booker, 5 Hum., 505; Sevier v. Brown, 2 Swan, 112.</p>

<p>EROM HANCOCK.</p> <p>In the Chancery Court at Sneedville, Seth J. W. Lucky, C1l, presiding.</p>

<p>1. Award. Against two, on submission by one. An award is not, by the fact that it is made against two, one of whom is not a party, void as to the other who has properly submitted to the arbitration.</p> <p>2. Same. Set aside for fraud, eta. An award obtained by inducing the-adverse party, a brother, to yield a portion of his claim, under a threat to prosecute the father of both “for perjury,” on a charge for which there was no foundation, will be set aside in a court of equity.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. The transcript does not show what Chancellor rendered the decree.</p>

<p>Duress. Jurisdiction of Law and Equity concurrent. The remedies for duress are concurrent in Law and Equity ; and whichever first takes jurisdiction, obtains exclusive cognizance of the case.</p> <p>Cases cited: Lindsay v. James, 3 Cold., 477; Taylor v. Carlyle, 20 How., 583 ; Broyles v. Arnold, MSS., Knoxv., 1870; Porter v. Jones, 6 Cold., 313.</p>

<p>PROM CLAIBORNE.</p> <p>From the Chancery Court at Tazewell, S. J. W. Lucky, Ch., presiding.</p>

From .the Chancery Court, at Jonesboro. The case was tried before Temple, Cli., . at May Term, 1868. Deaderick, J., having been of counsel, did not sit in this cause. His brief was filed for complainant, R. Love, a defendant, surety of complainant.

<p>Chancebt Pleading. Answer. In a bill filed, charging a sale of goods as in fraud of creditors, there were special interrogatories, as follows: What amount of goods was received ? whether anything was paid for the goods; and if so, when, where, and in what manner? An answer, stating that the vendor was indebted to the vendee, on account of payments made on debts of a previous partnership between them ; that he ‘ proposed to the vendee tojtransfer, and the vendee agreed to receive, the goods in payment of the amount due and justly owing to him; that about the 1st day of Oct., he sent the goods — held responsive to the interrogatories.</p>

<p>1. Chancery Pleading, Demmrer. An objection to the jurisdiction of the Chancery Court must be taken by demurrer. It cannot be done by demurrer in the answer.</p> <p>2. Evidence. Loan or deposit. A note given to pay, written by complainant himself, a man of fair business capacity; a charge that he still has the money, without a charge that he kept it as a special deposit, and a' failure to bring it into court, though worthless, are all circumstances against a deposit, clearly establishing a loan.</p> <p>3. Consideration. Where complainant paid, and at the same time took back, Confederate notes, as a loan, the consideration should be referred to the original obligation.</p>

<p>Contract. Reformed on Amswer.Nbte for $2,050 which may be discharged in current bank notes, reformed to read payable in currrnt bank notes, on tbe admission in the answer that such was the contract.</p>

FROM SULLIVAN. In tbe Chancery Court at Blountville, J. P. SwANN, J., presiding.

FROM GRAINGER. Appeal from tbe decree of S. J. W. Lucky, Ch., in Chancery at Rutledge. insisted upon the fact of Mahala Rucker, the purchaser, having been the guardian ad litem, in the original cause. That the County Court was not an inferior court; and cited Meigs’ Dig., p. 341; 6 Hum., 133; 7 Hum., 168; 11 Hum., 447; Hopper v. Fisher, 2 Head, 253; Gilehrist v. Cannon, 1 Cold., 587; Tipton v. Powell, 2 Cold., 19.

PROM BLOUNT. Appeal from the decree of S. J. W. Lucky, Ch., sitting in Chancery at Maryville. The original bill was fried 21st June, 1859. cited Acts of 1837, 1838, c. Ill, s.. 3; 1 Swan, 77. As to the deed to Pride, he cited 2 Kent, 542, and n; 1 Dev. and Bat. Eq., 455; 7 Hum., 266, et seq.; 2 Story Eq.

<p>1. Appeal. When matter of right. An appeal lies as a matter of discretion, from the decrees of a Court of Chancery ordering an account, or a sale or partition, but as a matter of right from the last decree.</p> <p>•</p> <p>2. Decree. Power of Court omer. A decree pronounced, but not entered, is within the control of the Court.</p> <p>3. Chancery sale. Power of Court over payment of debt. At any time before confirmation of a Chancery sale, under attachment against a nonresident, it may be set aside, on payment of the attaching creditor’s debt, though the bidder be a third person. Regularly, the application should be made before the confirmation ordered, but the party being thrown oif his guard by a promise from complainant’s attorney to take the money, it was allowed to be made afterward, during the term at which the confirmation was had.</p>

FROM GREENE. Appeal from the Chancery Court at Greeneville, H. C. SMITH, Ch., presiding. The decree appealed from was one confirming a sale of land, and ordering “that when said purchase money shall be fully paid, the legal title shall vest” in the purchaser; and further ordering a writ of possession against the applicant, who was the grantor of the property, by deeds held void as to creditors.

<p>1. Bile 01? Review. Error apparent. Error apparent in a decree is such error of law as appears, assuming the facts to he such as are stated in the decree, not errors of fact apparent from the proofs.</p> <p>2. Vendor's Lien. Werner by taking security. Whether a vendor intends to waive his lien by talcing personal security is a question of fact. The law presumes the waiver, hut this may be rebutted by proof.</p> <p>3. Same. Error in decision as to. Error in deciding upon the fact of waiver is not error apparent on the face of a decree.</p> <p>4. Bide of Review. For error of fact. Leave. It seems that the propriety of" the leave granted to file a bill of review for errors of fact can only be tested here after a motion to dismiss in the court below, and by having made the evidence on which the leave is based, part of the record.</p> <p>5. Same. New matter. Now Hated. New matter must be so stated in a bill of review, so as to enable the court to determine upon demurrer, whether or not, when produced, it will be controlling in the canse, or be merely cumulative, not necessarily changing the result; and whether the ■party has been guilty of any negligence in failing to discover and produce it before.</p> <p>6. Same. Cumulative Evidence. Cumulative evidence, upon matters to which proof has been taken on the former trial, is not sufficient ground to sustain a bill of review,</p>

<p>1. Oeeice. Incompatible. Acceptance of. The acceptance of the office of Supreme Judge of Tennessee, by a member of Congress, vacates the seat in Congress. His being a member of Congress does not invalidate his right to the office of Judge.</p> <p>2., Office or .Judge. Vacancy, Power of Governor to fill. On the resignation of a Supreme Judge, under the Constitution of 1835, the Governor had no power to fill the vacancy, longer than until the office could be filled by election; and it was his duty to order the election to be held, after the two months, during which, notice was required by law to be given.</p> <p>3. Same. Same. Under Schedule of 1865. Section 7 of the Schedule to the Constitution of 1855, did not enlarge the authority of the Governor'in this respect. The Governor, under it, had no authority to issue a commission to fill out an unexpired term.</p> <p>4. Same. Some, Act in excess of power. A Judge, under such a commission, might lawfully act until the vacancy was filled by election.</p> <p>5. Same. De facto. The acts of a Judge acting under a commission, are valid, as acts of an officer defacto, and this principle applies to proceedings exparte and at Chambers.</p>

<p>FROM BLOUNT.</p> <p>Motion to dismiss writ of error.</p> <p>cited Bell v. Brown, 5 Yer., 107; Nance v. Hieles, 1 Head, 624; Nicks v. Johnson, 3 Sneed, 326; Code, 4041, 2863, 2864, 2866, 2867.</p>

PROM KNOX. In the Circuit Court, E. T. Hall, J., presiding. insisted upon the abatement of the appeal in error, citing Young v. Officer, 7 Yerg., 139; 10 Hum., 474; Sappington v. Phillips, 1 Yerg., 108; that after motion to abate writ of error, it was too late to revive, 3 Hum., 396; 6 .Hum., 96; that abating the appeal will leave judgment in force, 10 Hum., 322; 2 Sneed, 3; 3 Sneed, 210; 1 Head, 541. resisted the motion to abate, and insisted upon the revivor, and cited…

FROM HAWKINS. In the Circuit Court, E. E. Gilleewaters, J., presiding. entered the motion to revive, and have an order of publication as to non-resident parties. JohN Baxter, with him.

<p>1. Suvreiie Ootjbt. Final process. The Supreme Court has jurisdiction to make any inquiry incident to its final process in causes determined in it.</p> <p>2. SAME. Same. Mandamus to County. A mandamus, in the nature of an execution, to compel the Justices of a county to levy a tax to satisfy a judgment recovered in this Court against the county, being moved for, and affidavits being filed that nothing was due, the Clerk was ordered to report whether anything, and how much, remained due.</p>