Volume 49 — Tennessee Reports

<p>1. Set-Ojt. Costs upon. A defendant, pleading and sustaining a set-off is entitled to recover the costs arising upon the set off,</p> <p>2. Judgment. Powers of Court over. Judgment for costs erroneously entered upon a verdict may be corrected at a subseqent term.</p> <p>3. Pleading. Loose pleading reprehended.</p>

FROM BEDFORD. Appeal from tbe Circuit Court, J. W. Phillips, L, presiding.

<p>1. Judoment by MOTION. For Insufficient Return. Damages. On motion against an officer for an insufficient return, the 12J per cent, damages is to be computed on the amount of the execution, after adding the interest thereon to the date of the judgment by motion. Code, 8592, 3600.1</p> <p>2. Same. Waiver. Release of Damages. Issue of alias executions, or receipts of portions of an execution, do not operate as a waiver of the right to move against an officer for an insufficient return on the original execution, nor as a release of the statutory damages.</p> <p>S. Case approved, Barnes v. White, 2 Swan, 442; and see Doyle v. Glenn, 4 Hum., 309.</p> <p>4. Case disapproved, Trigg v. McDonald, 2 Hum., 386.</p>

<p>. FROM BEDFORD.</p> <p>Appeal in error from tbe Circuit Court. JOHN W. Phillips, J.</p>

FROM WILSON. Appeal from the Circuit Court, before H. Cooper, J. insisted that the original stay was vague and void; Barr v. McGregor, 11 Hum., 518; Rhodes v. Chappell, 11 Hum., 527, not cured by acquiescence, Mayfield v. McLary, 3 Head, 159. Under Code, 3060, stay good by consent, of which acquiescence is proof, Neil v. Beaumont, 3 Head, 627; Taliaferro v. Herring, 10 Hum., 272.

<p>1. Pleading. Oyer. A demurrer which craves oyer of a note, blit does set it out, does not mate the note part of the record.</p> <p>2. Bank of Tennessee. New issue. The “new issue” of Bank of Tennessee notes is not an illegal consideration for a note, when taken by the maker of the note without any illegal purpose.</p> <p>Case cited: Naff v. Crawford, 1 Heis., 111.</p>

HROM WILSON. In tbe Circuit Court, before Hilary Wakd, J. This case having been once argued before the late Judges, and continued on advisement, was re-argued at this term. insisted that the widow took a life estate. Stow v. Davis, 10 Ired. L., 431. “Lend” gives an equity: Loving v. Hunter, 8 Yer., 4; Settle v. Settle, 10 Hum., 474; Vaden v. Hanee, 1 Head, 300. Commented on Alston v. Davis, 2 Head, 266, citing Owen v. Hancock, 1 Head, 566.

PROM BEDFORD. In the Circuit Court, before J. W. Phillips, J., presiding on the argument of the demurrer, and at the trial. in error, cited: Fay y. Reager, 2 Hum., 200; Ward v. Bowen, lb., 58; Woods v. North, 6 Hum., 309; Gwiniher v. Gerd-ing, 3 Head, 197. Commented on Word v. Cavin, 1 Head, 50(i, and Shaw v. Smith, 9 Yer., 97.

from rutherford. Appeal in the nature of a writ of error, from the Circuit Court, J. W. Phillips, J., rendering the judgment. insisted that this was a sale of lands, not a loan; and cited 3 Pars, on Contr., pp. 106, 107, 108; Story on Contr., § 592; Chitty on Contr., 5th Am. ed., bottom p. 710; 2 Parsons on Bills and Notes, p. 406, et seq.; Tousey v. Robinson, 1 Mar., 663.

<p>Appeal Practice. Motion to dismiss. When to he made- Appeal prayed, but bond given after the time allowed, a motion to dismiss the appeal at the fourth term after the record is filed, comes too late.</p> <p>Case cited: Gillespie v. Goddard, 1 Pleis., 777.</p>

<p>1. Retubn on Execution. Insufficient. Motion for. Satisfaction. No judgment by motion will be rendered for a false or insufficient return of an execution upon which the plaintiff has entered satisfaction, in the absence of any proceeding or evidence to attack the entry.</p> <p>2. Judgment by Motion. Satisfied Execution. Where, at the time of the motion, nothing is due on the execution, there is no sum for which to render judgment, or on which to compute damages.1 Ohaffin v. CrutcMr, 2 Sneed, 360, explained and approved; Smith v. Van-bibber, 1 Swan, 110, cited.</p> <p>3. Waives. Waiver of right to judgment for official default.2 Barnes v. White, 2 Swan, 442; Triggv. McDonald, 2Hum., 389; Wright v. Johnson, 3 Sneed, 407, cited.</p>

<p>1. CoueedebAte Tbeasuby Notes. Returned in course of dealing to the party who once held them. Confederate money having been collected and paid into the office of the Clerk of the Court, the plaintiff refusing to receive it, the defendant, Young, applied to borrow it, and give security, when the plaintiff said if they were mind to take it, it was all right, * * * but lie would not take the money; thereupon Young took the money and executed the note sued on, with surety. Young had previously paid the same money to the defendants in the execution, they paying it to the Sheriff, Young received it again as a loan. Held that he and his surety were liable for the full amount of the note.1</p> <p>2. CHANCERY Practice. ■ Election. A defendant in equity who has required the complainant to elect which of two suits he will proceed in, and has obtained a dismissal of the suit at law on such election, will not be allowed to object to the jurisdiction in equity.</p>

<p>FROM FRANKLIN.</p> <p>Appeal from tbe Circuit Court, N. A. Patterson, J., presiding.</p>

<p>Saib. For illegal purpose. Knowledge of a purpose to put property to an illegal use, without more; as where a horse was bought to be used in the Confederate service; does not affect the seller with the illegality, so as to bar his right of recovery of the price.1</p> <p>Naffv. Crawford, 1 Heis., 116.</p>

<p>1. Bestji/tiitg Tiotsts.1 Kinds of, distinguished.</p> <p>1. When one person having the funds of another, invests them without direction of the owner, in property, and takes the title to himself, a trust results.</p> <p>2. So, when a trustee, having a trust fund, agrees with the beneficiary to invest them in real estate, and does so, taking the title to himself. burner v. Pettigrew, 6 Hum., '438.</p> <p>3. Where funds are in the hands of a trustee, with agreement to invest them in specific property. If that property is purchased, the law raises the presumption that the fund was used, and raises the trust.</p> <p>2. Same. Statute of Frauds. Neither of these is within the prohibition of the statute of frauds.</p> <p>3. Same. . Quantum of Proof. The proof to raise a resulting trust must be such as fully to satisfy the Court of the facts upon which the result depends.</p> <p>4. Same. Husband and Wife. A husband agreeing at the time of a sale of a wife’s land, to invest proceeds in other lands -for her benefit, and making such investment, taking the title in his own name, is held to be a trustee for the wife.</p> <p>5. Same. Estoppel. A failure to set up a resulting trust in a bill for divorce, will not estop a wife from setting it up afterwards.</p> <p>6. Same. Creditors of Trustee. The right of the beneficiary in such case, is superior to the right of creditors of the trustee.</p> <p>7. Evidence. Witness. The fact of a witness releasing an interest, is a circumstance to show his leaning.</p> <p>Cases cited: McCammonv.Pettitt, 3 Sneed, 242; ThomasY .Walker, 6Hum., 93; Turner v. Petigrew, lb., 438 ; Gass v. Goss, 1 Ileis., 613; Click v. Click, Ih., 607.</p>

EROM EUTHEREOED. Appeal from the decree of J. P. Steele, Chancellor, in the Chancery Court at Murfreesboro. The objection taken to the bill mentioned in the concluding sentence of the opinion, is taken in the brief of Mr. Ewing.

<p>Equity Jubisdictioít. Account. A bill in equity lies for an account of goods sold on commission, if complicated, or if there be embarrassment in making proof, though the items are all on one side.</p>

FROM BEDFORD. In this case, reported in 2 Cold., 497, a petition for re-hearing having been filed at the December Term, 1865, the cause came on this term to be re-argued. • The copy of the attachment does not show when it issued, but it is stated in the charge of the Circuit Judge that it issued on the 8th of November, 1860.

<p>FROM CANNON.</p> <p>Appeal from the Chancery Court at 'Woodbury, B. M. Tillman, Ch., presiding.</p> <p>Summar, cited Sto. Eq. Jur., §§ 1018, 1020, 1227, and note 2; 3 Sim., 499. Mylne & IV, 296, 310; 3 Yo. & Col., 55, 61; 2 Meigs’ Dig., 924.</p>

<p>ChaNOEK'S’ Pleading. Averments. A bill to enjoin a judgment at law, on tlie ground of newly discovered testimony, showing payments which should have been allowed on the debt, which states, generally, that complainant did not know he could make this proof until after the judgment and adjournment, of the Court; that he used all diligence to ' get this proof, but did not succeed until after the trial, is not sufficient on demurrer, without stating the facts specifically.1</p>

FROM WARREN. Devisavit vel non in the Circuit Court, before N. A. Patterson, J. in error, contended that the same indentical declaration must be proved in the Court, and taken down in writing within ten days, as is afterwards proved on the issue, citing 10 Yer., 504; 1 Jarman, 347, 133; Modern Probate, 304, 5; 4 Kent, 517; 2 Bl., 500.

<p>Lost Paper. TP7¡aí may he supplied. Under tte Code, S907, no paper can be supplied, unless it. lias been filed.</p> <p>Cases cited: Pierce v. Panic of Tennessee, 1 Swan, 265; Lane v. Jones, 2 Cold., 318.</p>

<p>EROM LINCOLN.</p> <p>In Chancery at Fayetteville, before J. P. Steele, Ch.</p> <p>cited 2 Kent, 250, n. a; Edwards on Receivers, 592; Smith v. Smith, 4 J. C. R., 281; Robertson v. Sublett, 6 Hum., 313; 2 Story Eq. Jur., § 1274; Beeler v. Bunn, 3 Head, 91; Hester v. Willcerson. 6 Hum.. 219.</p> <p>cited 9 Hum., 612; Greenl. Ev., 642; 5 Sneed, 39; 3 Sneed, 375.</p>

<p>FROM CANNON.</p> <p>In Chancery at Woodbury, before Barclay M. Tillman, Cb.</p> <p>cited, as to parol sale of land, Hilton v. Duncan, 1 Cold., 315 j Rhea v. Allison, 3 Head, 176; 3 Sneed, 228, 230. Notice: Story Eq. Jur., §§ 399, 400, 400 a, 405, 406, 408.</p> <p>cited Shelton v. Johnson, 4 Sneed, 672.</p> <p>insisted that in the absence of a registered title bond, the creditor’s right to subject the land was perfect, citing Butler v. Maury, 10 Hum., 420; Rogers v. Cawood, 1 Swan, 142; Dally v. Holland, 1 Swan, 396.</p>

<p>FROM CANNON.</p> <p>In tbe Chancery Court at Woodbury, before B. M. Tillman, Ch.</p> <p>cited Bebtte v. Henderson, 5 Cold., 474, 5; Jones v. Thomas, 5 Cold., 469; Waller v. Parker, Id., 479, 80.</p>

PROM BEDFORD. . This was a proceeding by motion in the Circuit Court of Bedford County, before JOHN W. Phillips, J., against Thompson, as Clerk of the County Court of said county, and the other defendants as his securities upon his bond, “in all things faithfully to discharge the duties” of his office, on account of the failure of Thompson to make Revenue statements, and to pay over the revenue collected.

FROM WARREN. In Chancery at McMinnville, before J. P. Steele, Ch. cited 2 Yer., 476; 10 Yer., 362; 5 Hum., 370. That the answer is in avoidance, as to notes not mentioned in tbe bill, 2 Cold., 63; 5 Sneed, 544; 1 Tenn., 258; Heis. Dig., 531, 532, 537. It is evasive, and substantially admits charges, 10 Yer., 84; 8 Hum., 46.

FROM WAEREN. In the Chancery Court at McMinnville, J. P. Steele, Ch., presiding. cited 2 Yer., 84; 2 Hum., 258; 1 Id., 538; Meig’s Dig., 1724. It was the intent of the parties not to waive the lien, as proved. Transfer by delivery in payment, unless upon contract to take it at his own risk, does not prevent action on the original obligation. 3 Wal. U. S., 37; Ch. on Bills, 144 n., 6 Am. ed. On the payment by P. O. check, he cited 4 Hum., 186; Ch. on Bills, 144.

FROM COFFEE. In the Chancery Court at Manchester, before B. M. TillmaN, Ch. insisted that complainants were entitled to the vendor’s lien, eiting Graham v. McCampbell, Meigs, 52; Cleveland v. Martin, 2 Head, 128; Thompson v. Pyland, 3 Head,. 537. That Blanton drew the deed from Hodge to- Daniel,, and so had notice; that he held under the deed, and. was bound by its recitals; citing Sikes v. Basright, 2 Dev. & Bat., 157; Phelps v. Blount, 2 Dev., 177.

EJROM WILSON. In Chancery at Lebanon. The transcript does not show what Judge was sitting when the decree of sale was made. Henry Cooper, J., entered the decree confirming the sale, etc. John P. Steele, Ch., rendered the decree upon the merits.

<p>1. Lost Instrument. Affidavit. Who qualified to make. The affidavit of loss of bond, under the Code, 3901, 3903, must he made by a person having knowledge of the facts. An affidavit made by a person who could, on account of his tender years, have had no knowledge of its execution, is bad. The contents of a lost apprentice bond can not be proved by a Chairman of the County Court, stating that he does not recollect much about the matter, and arriving at the contents from the usual form in such cases.</p> <p>2. Same. Search required to admit secondary proof. Proof by a Clerk of the Court, that since the case was called for trial he had examined the papers in his office labeled 1851, (the date of the .bond,) and did not find the bond, is not proof of a sufficient search to admit secondary evidence.</p> <p>Code cited: 3901, 3903.</p>

FROM WILSON. In Chancery at Lebanon, B. L. Ridley, Ch., presiding at April Term, 1861; JohN P. Steele, Ch., presiding at April Term, 1866, and allowing the bill of review to be filed; HeNRY Cooper, J., at October Term, 1866, and December, 1866. contended that a bill of review did not lie from a decree entered by consent: 10 Yer., 55, 7; 3 Yer., 378, 9; Webb v. Webb, 3 Swanst, 658; nor would an appeal or re-hearing: Atlcer-son v. Monies, 1 Cow., 709; Kane v. Whitliclc, 8…

<p>1. Judicial Acts. Liability for. Cownty Gourt. Acts done by the defendants as members of a County Court, in a judicial capacity, and without fraud or malice, do not subject them to liability.</p> <p>2, Same. Same. An order of the County Court to an administrator to pay over Confederate funds collected, to the Clerk of the Court, and exonerating the Clerk from interest, unless he could loan the money, and from loss by depreciation, does not, in the absence of fraud, subject the Justices present to personal liability.</p> <p>Case cited: Uoggatt y. Bigley, 6 Hum., 239.</p>

<p>FROM LINCOLN.</p> <p>Iii the Circuit Court at Fayetteville, N. A. Patterson, J., presiding.</p> <p>cited Peck, 186; 2 Yer., 258, and Turbeville v. Broach, 4 King’s Dig., § 10,712; 5 Cold., 270, and commented on them. Also, Code, 2921; Iiioherson v. MeFadden, 1 Swan, 258; Allen v. MoNew, 8 Hum., 46.</p> <p>cited the first three. cases cited above, and 2 Swan, 647.</p>

<p>1. Evidence. Handwriting. Comparison. Writings not in the cause. Other writings than the one sued on cannot be introduced in evidence for the purpose of comparison oí handwriting by the jury, or by the witnesses.</p> <p>2. Ebrok. When a ground of reversal. Where there is error in the admission of evidence, or in the charge, it is not enough to avoid a reversal that there is sufficient evidence to support the verdict, _ aside from that which is objected to. It must appear that no injury could have been caused by the error.1</p> <p>Cases cited : Fogg v. Dennis, S Hum., 48; Myers v. Dank of Tennessee, 3 Head, 331; Applewhite v. Allen, 8 Hum., 700; 5 Yer., 379; 3 Sneed, 437; 3 Hay, —; 2 Hum., 78; 1 Head, 549.</p>

<p>FROM WARREN.</p> <p>In the Chancery Court at McMinnville, before B. M. TillmaN, Oh.</p>

<p>EROM PUTNAM.</p> <p>In the Circuit Court, J. W. Phillips, J., presiding.</p>

FROM DEKALB. In the Circuit Court, before A. McClain, J. The bill of exceptions, which purported to contain all the evidence, did not show that the notes were read. cited 5 Cold., 151. cited 2 Meigs’ Dig., § 1451.

<p>1. Former Suit Pending. General Mil, bar to a particular bill. A bill filed by the distributees of an estate against the administrator, to charge him with a devastavit, is a good bar to a bill afterwards brought by a creditor for the same devastavit.</p> <p>2. Same. Equity pleading. Practice on plea. Upon a plea in equity of another action pending in equity, it is proper practice to refer the plea to the Clerk, to report whether the suits are for the same cause of action.</p> <p>3. Same. A plea of another action pending need not be sworn to.</p>

<p>PROM JACKSON.</p> <p>In the Circuit Court, A. McClain, J., presiding.</p>

<p>1. Judgment Lien. Not extended in time by the war. The lien of a judgment obtained in February, 1861, was not extended beyond the time fixed by law, by reason of the war, or by the fact that process could not be issued or executed; but the same expired in February, 1862; and a sale by the judgment debtor, after that time, would pass the title free from the creditor’s claim.</p> <p>2. Judicial Notice. This Court will take judicial notice of the existence of the war, but not of the fact that the courts were closed in a particular county at a given time.</p> <p>Case cited: Branner v. Nance, 3 Cold., 299.</p>

<p>FROM WARREN.</p> <p>In tbe Chancery Court at McMinnville. What Chancellor presided at the September Term, 1868, does not appear by the transcript.</p> <p>cited 6 Hum., 138; Code, 4311;- Story, Eq. PI., § 10.</p>

FROM WARREN. This cause was tried before Barclay M. TillmaN, Ch., at McMinnville. Decree for complainants in the cross bill. The defendants appealed. cited 1 Jarman, 72; 3 Hum., 278, 282; 2 Cold., 74; 1 Swan, 437; 11 Hum., 433; 7 Hum., 388, 393; 3 Head, 662. cited, in addition, 10 Yer., 84, 93; 8 Hum., 390, 400; 1 Johns. C. B., 402; 3 lb., 351; 6 lb., 87, 479; 2 Am. Ch. Dig., 138, 155, 505, 509, § 185; 2 Hay., 342. cited, in addition, 1 Story Eq.

<p>FROM OVERTON.</p> <p>In the Circuit Court, W. W. Goodpasture, J., presiding.</p>

<p>Confederate Soldiers. Not a duty to desert. A Confederate soldier, hired as a substitute for a conscript, was not under any obligation to desert, and incur the penalty of desertion.</p> <p>2. Jury. Fnmeldse Irnos. To exclude a citizen, otherwise qualified, from a jury, because he did not have a certificate as a voter, under the franchise law, was error.</p> <p>Cases cited: Fayv. Huddleston, llieis., 167; Nance v. Ilaney, llieis., 177.</p>

FROM SMITH. In the Circuit Court, A. McClaiN, J., presiding. cited Kinohdow v. Suite, • 5 Hum., 12; Fleming v. State, 5 Hum., 564. On the admissibil-itj' of evidence of the character of the house, they cited Gilmer v. Lowell, 8 Wend., 573; Boot v. King, 7 Cow., 613; Lamed v. Buffington, 3 Mass., 546; 2 Wh. Selw. N. R., 1283; Hil. on Torts, p. 403, § 67; 2 Wharton, 314; West v. Walhr, 2 Swan, 34; Shirley v. KecCihy, 4 Cold., 30 Words spoken in anger, 2 Wh. Selw.

FROM WILSON. la Chancery, at Lebanon, before Henry Cooper, J., sitting by interchange. An anonymous brief in the record, cites Code, 2030, 2984; Kinsey v. MeDecirman, 5 Cold., 392; Aliens. Bain, 2 Head, 108. Insists that the interest here assigned, being an undivided interest in notes which were payable to the Clerk and Master, they were not subject to transfer of the legal ownership, either by delivery or assignment; and so it was distinguishable from the decided cases.

<p>FROM WARREN.</p> <p>In Chancery at McMinnville, before Barclay M. Tilljian, Ch.</p> <p>cited 1 Yer., 360, 373; Meigs’ Dig., § 1112; 4 Yer., 503; 5 Yer., 41; 6 Yer., 18; 1 Ham., 54; 1 Cold., 572; 3 Par. on. Contr., 277, 279.</p> <p>cited 4 Cold., 315; 3 Sugd. on Yend., 183; Maokreth v. Simmons, 15 Yes., 337; 2 Sto. Eq., 580, 821; 4 Kent, 152.</p>

FROM COFFEE. In the Chancery Court- at Manchester, before JB. M. TillmaN, Ch. insisted that the declarations of the guardian were competent, because he was dead, and the declarations were against his interest, citing 1 Greenl. Ev., § 147 to 150. On Trusts, from payment of purchase money, he cited Sto. Eq. Jur., § 1201; Hill on Trust., 96, 97; Dudley v. Bosworth, 10 Hum., 9.

PROM WILSON. In Chancery at Lebanon, before Joi-iN P. Steele, Ch. The complainant being indebted to the defendant, by judgment, in about $1,500, indorsed' notes to the amount of the judgment, and gave in addition, $83 in cash, and $217 in his own note, in satisfaction of the judgment. Bill to set aside note for usury. cited: Par-ham v. Pulliam, 5 Cold., 501; 3 Par. on Conk’., title.

<p>1. Deed. To a person living. A deed conveying land, in presentí, to the heirs of a person living, vests the title in the children, then in esse, of that person; afterborn children do not take.</p> <p>2. Descent. Afterborn brothers and sisters. Afterborn brothers and sisters, unless “born within the period fixed by, law,” do not take an interest in the estate of a deceased brother.1</p> <p>Case cited and reviewed: Head v. Fite, 8 Hum., 828.</p>

PROM OVERTON. In tbe Circuit Court. Judgment before TV. W. Good-pasture, J. The record does not show what Judge acted upon the demurrers. cited Sto. Confl. óf Laws, §§ 584, 586, 609, 609, a4; 8 Johns. R., 173; 2 Barb., 602; 5 Georgia, 274; 4 Mete., 333; Foster v. Taylor, 2 Tenn., 191. cited Foster v.. Taylor, 2 Tenn., 191.

<p>FROM COFFEE.</p> <p>In Chancery at Manchester, before Barclay M. Till-MAN, Ch.</p> <p>cited: Rucker v. Moore, 1 Heis., 726; Harrison v. Smith, ante 230. On garnishment against officers, he cited, Drane v. McGavock, 7 Hum., 132; Tucker v. Atkinson, 1 Hum., 300. Error coram nobis, Code, 3116.</p> <p>cited, Code, 3110 to 3118; 2 King’s Dig., 5664; Car. Hist., .L. S., §§ 511, 537, as to' error coram nobis, On garnishment: 7 Hum., 132; X Hum., 300; 1 Heis. Dig., § 208,. sub-s. 4.</p>

PROM COFFEE. In Chancery at Manchester, before B. M. Ti-leMAN, Ch. as to the power of a court of equity to grant new trials, cited: 7 Cranch, 332; 5 Sneed, 155; 3 Yer., 167; 11 Hum-, 523; 4 Cold., 60; Am. Ch. Dig., 127 to 131. Proof of excuse for not making defense, certainty of: 7 Hum., 39. JORDAN Stokes, with him, admitted that the doctrine of the earlier cases was narrowed, citing: 1 Sto. Eq. Jur., § 1574; Burton v. Wiley, 26 Ver., 430; Seay v. Hughes, 5 Sneed, 157.

EKOM COEEEE. Appeal from the Chancery Court at Manchester, B. M. Tillman, Ch., presiding. The bill was filed by Hickerson alone, Estell, the other indorser mentioned in the opinion, being no party to the proceeding. insisted that complainants were put on inquiry; citing: Hunt v. Sandford, 6 Yer., 387; Sill v. Crosby, 2 Hum., 545; Hall v. Hall, 8 Conn., 336. Bill taken in payment of precedent debt: Wormlyv.

FROM WILSON-. Appeal from the decree of J. P. Steele, Ch., sitting at Lebanon. The real estate of Wm. F. Jones was sold by decree of the Circuit Court of Wilson, on the 26th day of October, 1849, upon a credit of one and two years, and produced a fund from which complainants, the wards, were entitled to receive §491.30, in addition to $104, proceeds of personalty.

FROM WILSON. Appeal from the decree of J. P. Steele, Ch., sitting in the Chancery Court, at Lebanon. The bill was filed after judgment, to be relieved of the usury in the note. It contained this interrogatory: Let him (Sypert) state who he got this note from, and if he believed he owned the note, or was agent for said ,'Z. W. Frazer?

<p>1. Fraudulent Conveyance. Creditin'. Plaintiff in tort. A deed of trust made in contemplation of an action of tort, and a recovery therein, which provided first for certain preferred debts, and then for the payment of all other creditors and indorsers of the maker, is not fraudulent, for it provides, whether so intended or not, for the recovery in the action of tort; Farnsworth v. Bell, arid Patrick v. Ford, 5 Sneed, 531, 537.</p> <p>2. CREDITOR. Plaintiff in tort. . A plaintiff in an action of tort, who has not recovered his judgment, is an existing creditor, embraced in a deed providing for the payment of all creditors.</p> <p>3. Fraudulent Conveyance. Parol proof. A deed can not be attacked by parol proof, to show that it was intended to delay creditors, for the payment of whom it provides on its face.</p> <p>4. Same. Payment of claims. A strong presumption of the fairness of a deed is raised by the subsequent settlement of the claims, in fraud, of which, it is charged to be made.</p> <p>5. Deed. Construction. To pay creditors, means existing creditors. A deed providing for the payment of all creditors, and disposing of the surplus to third persons, provides for debts only, which existed at the making of the deed.</p> <p>6. Voluntary Conveyance. Provision for payment of debts. ' A voluntary conveyance made by a person indebted at the time, but providing for the payment of all his just debts, and settling the surplus only, is not fraudulent as to subsequent creditors.</p> <p>7. Same. Duty to provide for wife. It is a duty of a husband to provide for a wife, in contemplation of an indefinitely prolonged absence from home. '</p> <p>8. Evidence. Declarations made after the deed. Declarations of the maker, or the trustee of a deed, prejudicial to its validity, made subsequent to the making of the deed, are inadmissible in evidence to affect the beneficiaries in the deed.</p> <p>9. Trustee. Failure to give bond. Fffect of. The failure of a trustee to give bond as required by the Code, § 1974; 1856, c. 113, does not affect the validity of the deed. It is merely a ground of removal.</p> <p>10. Coneederate Notes. Promise to take back. m A payment in Confederate Treasury Notes, voluntarily received and credited on a note, will not be set aside because of a subsequent promise, without consideration, to “take it back.”</p> <p>Cases cited: Farnsworth v. Bell, and Patrick v. Ford, 5 Sneed, 531, 532; Nicholas v. Ward, 1 Head, 323; Martin v. Olliver, 9 Hum., 561; Hester v. Wilkinson, 6 Hum., 217; Trotter v. Watson, 6 Hum., 514; Mills v. Haines, 3 Head, 334.</p> <p>Code cited and construed', 1974. Statute cited, 1856, c. 113.</p>

<p>Descents. Mother, when the heir. Lands descended from the father of an intestate who dies unmarried, without brothers or sisters, or the issue of such, will descend to the mother, if living.</p> <p>Cases cited: Beaumont v. Irwin, 2 Sneed, 291; Roberts v. Jackson, 4 Yer., 321.</p> <p>Statute cited and construed: 1842, c. 171, s. 1.</p> <p>Statutes cited: 1784, c. 22, ss. 3 and 7; 1784, c. 10, s. 3.'</p> <p>Code construed: 2420.</p>

FROM LINCOLN. Appeal from tbe Circuit Court of Lincoln County, N. A. Patterson, J., presiding. Turney, J., having been of- counsel, did not sit in this case. “as to acts and declarations of agent, cited: 4 Yer., 165; 11 Plum., 67; 2 Sneed, 73; 3 Head, 588; 2 Swan, 260; 1 Greenl. Ev., 113; Sto. Agency, §§ 134 to 137, and n. 1 to § 136. As to power of agents: Sto. Agency, §§ 17, 126, 133; 2 Kent, ,9th ed., top p. 835, 6. Power of agentto delegate: Sto.

<p>1. DURESS. Confederate notes taken under. A party receiving a payment in Confederate money, under tlie pressure of threats of immediate military arrest, which, under the circumstances existing, could, and probably would have been executed, will be relieved from the payment.</p> <p>2. Same. Declarations made -wider. Declarations that he had acted voluntarily, made by the party while the circumstances still existed, and properly attributable to the fear and apprehension under which he previously acted, will not be allowed to preclude the right of the party to relief.</p> <p>3. Same. Account for Confederate notes used. A party taking Confederate Treasury notes, and using them, must account for the amount realized for them.</p> <p>4. Same. Same. Decree against borrower. Where a complainant on whom Confederate money had been imposed by duress, loaned it to another, and that other used it in payment of his debts, and made no complaint of it, all the parties being before the Court, the decree was entered in favor of the complainant against the party to whom he had loaned the money, and as to so much the payment to complainant was held good.</p> <p>5. Loast. Without interest. Interest computed from bringing of suit. A borrower of Confederate notes, on an undertaking to pay after the war, in the currency which should then be in use, without interest, will be charged interest from the commencement of the suit against him.</p>

FROM DE KALB. Tlie proceedings in this ease came by appeal from the County Court to the Circuit Court, where the judgment complained of was rendered by McClaiN, J. insisted that the County Court had the jurisdiction to try the contest; citing the Code, 817, 888, 492; Act of 1859, 60. cited Hist, of a L. S., 513; 2 Sneed, 670. insisted that the jurisdiction was in the Circuit Court; citing Code, 4225, 3409 to 3411, 3430.

<p>1. ChawceRY Sale. Estoppel as to parties petitioning for the sede. Relief as to whom. On a bill filed by heirs to set aside a sale of land, made under the order of a Comity Court, upon application of two of the heirs as administrators of the estate, they, with others, being of age, and the others being minors, the Court hold that they would be bound to repel the administrators if they sued alone; but, as the others are not culpable, the Court are bound to declare the sale void in toto.</p> <p>2. Same. Confederate Treasury Notes. Applied to debts. Substitution-Value of Confederate Treasury Notes. The price being paid in Confederate Treasury notes, which were applied in payment of the debts of the estate, it was held that the purchaser should be reimbursed, the value of the currency paid, estimated in U. S. Treasury notes, with interest.</p> <p>3. Same. Price a lien. Account, how adjusted. Time to pay in, money. The value so charged, with meliorations charged and rents credited, is held to be a lien on the land, and sale ordered for their satisfaction, unless paid in a reasonable time.</p> <p>4. Same. Effect of estoppel as to petitioner. The surplus, after paying charges decreed to the heirs, excluding the two administrators.</p> <p>' 5. Same. Petitioners to pay costs.' The administrators personally charged with all costs. ■</p>

FROM FRANKLIN. In Chancery at Winchester, before Barclay M. Till-MAN, Ch. The judgment mentioned in the opinion, and held to be irregular, but not void, is,.as follows: “C. M. Wise-man, Ex’r, v. Hall and Wife. This day the Clerk and Master moved for judgments on the following notes: * * * One note on J. H. Wakefield, C. IT.

<p>FROM LINCOLN.</p> <p>Appeal from the Chancery Court at Fayetteville, John P. Steele, Ch., presiding.</p> <p>Mr. Reid cited Brown v. Vctnlier, 7 Hum., 241, as to conveyance in trust. Lincoln v. Purcell, 2 Head, 143, 154; 1 Hil. on Mort., 482, 483, 485; Tripp v. Vincent, 3 Barb. Ch., 614; Anthony v. Smith, 9 Hum., 508, 513; Cleveland v. Marlin, 2 Head, 128, 132.</p> <p>Mr. Lamb cited the same Tennessee cases; also, Vail v. Foster, 4 Comst.; Smedes & Mar. Ch. R., 40; Tieman v. Thurman, 14 ,B. Monroe,-; 6 B. Monroe, 69; Trent v. Kyle, 1 Heis., 663; Bur son v. Dosser, 1 Heis., 754.</p> <p>cited: on lien by bond retaining title, Graham v. Me Campbell, Meigs, 52; Anthony v. Smith, 9 Hum., 508. Lien by contract retained in the deed: Lincoln v. Purcell, 2 Head, 143; Thompson v. Byland, 3 Head, 537. Contract not now capable of being enforced against original parties: Union Bank v. Smiser, 1 Sneed, 501; 2 Gr. Ev., § 523; 11 Johns, 409; 15 Id., 241; 9 Id., 310; Serg. & Rawle, 162(?). Waiver of lien: Marshall v. Christmas, 3 Hum., 616, 617; (7amp-bell v. Baldwin, 2 Hum., 248, 258. ■ Parol contract of lien void: Code, 1758-5.</p>

FROM LINCOLN. Appeal from the decree of the Chancery Court at Fayetteville, John P. Steele, Ch., presiding. insisted that an assignment reserving benefit's to the maker is void: 3 Yer., 503; 4 Yer., 541; Meigs, 583; Trabue v. Willis, lb., 584; Peacock v. Tompkins, lb., 328; Sugg v. Tillman, 2 Swan, 208. Exception in deed: 2 Washb. Real Prop., 686, § 57; 1 Smith’s Lead. Cas., 480, (Teague’s case); 1 Sanford, Ch. 83, 251, 348; U. S. Eq.

<p>FROM BEDFORD.</p> <p>Appeal from the Chancery Court at Shelbyville.</p>

<p>FROM BEDFORD.</p> <p>Error to the Chancery Court at Shelbyville, JohN P. Steele, Ch., presiding.</p>

<p>1. Justice oe the Peace. Proceedings before. Pleading. Non-assignment. In a suit before a Justice of the Peace, the assignee of a promissory note must prove his title to the paper by evidence of the assign'ments under which he claims it, without a. written plea by the defendant denying the assignment. ’</p> <p>2. Guabanty. Want of consideration for a guaranty can not affect the right of an innocent holder, for value, without notice.</p>

Motion entered by JAMES W. McHenry, for the plaintiff. insisted that this was not within -the appellate jurisdiction of the Court, citing State y. Bank of Bast Tennessee, 5 Sneed, 573; Waters v. Lewis, 9 Yer., 15; Miller 'v. Conlee, 5 Sneed, 432; Ward y. Thomas, MS., Nashville, 1869; Code,' 4496. This is a suit: Young v. Hare, 11 Hum., 303; 1 Sneed, 201.

<p>1. Will. Devisavit vel non. Evidence. Declarations of subscribing witness. On the the trial of an issue, devisavit vel non, the evidenceof the declarations of a deceased subscribing witness, that the testator was of unsound mind at the time of the execution of the will, is not admissible in evidence.2</p> <p>2. Same. Same. Same. Petulant reproaches, not admissions. Error. Evidence must he material. The petulant reproaches of an old woman, in calling her husband “an old fool,” and in saying he was deranged when provoked at him, being offered as evidence of admissions of the mental condition of the testator, and excluded, it was held not to be error, on the ground that they ought not to have had, and would not have had, any influence on the verdict.</p>

<p>1. Evidence. Practice. Petition for discovery. A party filing a petition for discovery, has no right to read his petition in connection with the answer, unless it is necessary to a proper understanding of the answer ; and it is error for the Court to allow the reading of such peti- • tion, although he instructs the jury at the time that it is not evidence.</p> <p>2. Same. Same. In jury trials, evidence not properly admissible should, if possible, be excluded in limine, so that it may not be heard by the jury.</p> <p>3. Order. Assigned. Protest and notice. Assignee of an order can not recover on the order -against the maker without protest and notice of the refusal of the drawee to accept.</p> <p>4. Same. Question reserved. Is an order negotiablef Whether an as-signee of an order can sue upon it in his own name. Quere?</p> <p>5. Notes. For dollars. Presumption as to value. A note for dollars, drawing interest from date, taken as a payment, is not presumed, in the absence of proof, to be taken at a discount, but at its nominal value.</p> <p>Cases cited: Jones v. Pamdson, 2 Sneed, 467; Porter v. Dillahunty, 8 Hum., 575.</p> <p>Code cited: 3898, 1959, 1961, 1962.</p> <p>Statutes cited: 1848, c. 177; 1762, c. 9, s. 4.</p>

PROM BEDFORD. Error to tbe Chancery Court at Shelbyville. Tbe decree was rendered by J. P. Steele, Ch., at tbe September Term, 1867, declaring that the complainant was bound to receive bank notes, received by tbe defendant as bis agent, and referring it to the Clerk and Master to take proof, and report upon the amount and kinds of Southern funds so received, and tbe expenses of collecting it; but denying to the defendant any right to recover any compensation for services as…

FROM WILSON. A petition was filed in the County Court, against Lester, administrator with the will annexed, of Eli E. Eason, to compel him to pay over a legacy of $100, with interest, to which he answered, admitting the right to the legacy, but insisting that he had paid it. This was contested, on the ground that it was paid to the petitioner while under age, and in Confederate treasury notes.

FROM WILSON. Chancery Court at Lebanon, J. P. Steele, Ch., presiding. Mr. Stokes insisted that the character of trustee and executor were consistent, and may coexist; in which it differs from the offices of executor and testamentary guardian, the latter of which succeeds or follows the former; that this will does not separate the capacities of trustee and executor. The words of the Act of 1838, c. Ill, s. 18, embrace the case.

FROM WHITE. In the Circuit Court, W. W.■ Goodpasture, J., presiding. cited, on pay-' ments in bank notes: 8 Yer., 176; Chitty on Bills, 331; 2 Head, 609; Story on Agency, § 115. Return of: Ch. on Bills, 458, 463, 464 and n. If illegal, it was apparent on the face, and charged the plaintiff with notice: Brooms’ Legal Maxims, 645, 657. insisted that the new issue note was not illegal, but merely void.

<p>1. ‘PARTITION. Jurisdiction of County Court. The County Court has no jurisdiction of a case of partition where it is necessary as a preliminary to settle the title.</p> <p>2. JURISDICTION. Objection to Waiver. The rule that the filing of an answer in the Chancery Court is a waiver of objections to the jurisdiction, to decree upon matters properly of legal cognizance, has no application to the jurisdiction of the County Court.</p> <p>3. Same. Same. Partition. An answer to a petition for partition in the County Court, does not waive an objection to the right of the Court to try and adjudge title; but the petition will be dismissed at the hearing.</p> <p>4. Same. Partition, Title. The Chancery Court seems to be an especially appropriate tribunal to determine questions of title preliminary or incident to partition.1</p> <p>Cases cited: Young v. Shumate, 3 Sneed, 371; Bond v. Clay, 2 Head, 379, 380; Young v. Thompson, 2 Cold., 599, 600; Porter v. Woodard, 4 Cold., 599, 5 Cold., 86; Whüloch v. Hale, 10 ITum., 65; Nicely v. Boyles, 4 Hum., 178; Bruton v. Rutland, 3 Hum., 436; Butler v. King, 2 Hay., 122; Trayner v. Brooks, 4 Hay., 294, Coop. ed.</p> <p>Code cited: 2949, 3266, 4201, 4204,4205, 4321.</p>

FROM BEDFORD. Appeal from the decree of the Chancery Court at Shelbyville, John P. Steele, Ch., presiding. The bill in this case was filed to set aside a payment of the debts mentioned in the opinion, made in Confederate Treasury notes.

FROM WHITE. Circuit Court at Sparta, W. W. Goodpasture, J., presiding. cited: On depend-ant covenants: 7 Bac. Abr., 489; Boon v. Byre, 8 T. R., 373; 1 H. Black, 273; 1 Chitty, 349. In reciprocal covenants, one not a bar to the other: 2 Mod. 309; 5 Co., 10; Cro. Jae. 645; 2 Lev., 41, 102; Show, 391; Comb., 265; 7 Bac. Abr., Title Pleadings, B; Niehols v. Rainbred, Hob. 88; lb. 106; Yelv. 134; Mod. 62; Roll. R., 336; Ventr. 41; Hard., 102; March, 75; Cro.

<p>1. Champekty. Adverse possession. Under decree. A non-resident can not convey lands, adverselylield for more than twelve months, under a Chancery decree vesting- title.</p> <p>2. Same. Ejectment. Joinder in. Vendor cmd vendee as parties. Pleading. Joinder. A vendor in a deed void for champerty, may recover in ejectment, notwithstanding his deed; but if the vendee join with him, and the declaration contain a single count, the whole suit will fail.</p> <p>Case modified: Wilson v. Nance, 11 Hqm., 189.</p>

EROM LINCOLN. Judgment in the County Court, on motion, against the Clerk, as Commissioner to sell lands, and appeal to this Court. cited the Code, 3610, and insisted that no motion lay; that Whittington sold as Clerk, and collected the money as agent of the administrator, and not as Commissioner, citing Haynes v. Bridge, 1 Cold., 32; Fondrin v. Planters’ Bank, 7 Hum., 447.

FROM LINCOLN. Writs of error to tbe Chancery Court at Fayetteville, to- reverse a decree of John P. Steele, Ch. cited Brown v. Bibb, 2 Cold., 439; Elliot v. Holdep, 3 Head, 698; Elliot v. Cochran, 2 Sneed, 470; Savage v. Hále, 1 Sneed, 365, to show that slaves descended to the distributees.1 The holder must bear the loss of property: Lee v. Cone, 4 Cold., 395; Curd v. Bonner, lb., 632; Craves v. Keaton, 3 Cold., 8; Young v. Thompson, 2 Cold., 596.

<p>1. Appeal. From, the County Court. Where the jurisdiction of the County Court is not concurrent with that of the Circuit Court or Chancery Court, no appeal lies directly to the Supreme Court but by consent.</p> <p>2. Same. Pecord. Consent. The consent, in such case, must appear in the record.</p> <p>Case approved: Phillips v. Hoffman, 5 Cold., 251.</p>

<p>1. ChanceRY Pleading. Title deeds, when .to he exhibited. Where a bill, to he relieved of a sale, states specific objections to the title of the vendors, and does not call upon them to deraign title, but only to meet the specified objections, the answer will be sufficient if it meets the allegations in the bill without exhibiting the title deeds.</p> <p>2. Same. General averment of want of title. Under a general allegation, in a bill that the vendor had no valid title, the vendee may show any defect in the title, sufficient to enjoin the purchase money or rescind the sale.</p> <p>3. Rescission or Abatement, Failure of title to material part. What is. If the title fail to a part of the land material as an inducement to the purchase, as twenty-five acres, in a tract of one hundred, on which was the only unfailing water on the premises, the vem^f has his option to rescind the contract, or to take so much of the land as the vendor can make title to, with an abatement of the price as to that for which the title fails.</p> <p>4. Abatement. How estimated. The abatement will be of the value of the land to which the title fails, estimated relatively to the other parts of the land, at the price agreed upon.</p> <p>5. Sale. What title purchaser must accept. Estoppel in pais. An estoppel in pais, set up against a clear defect of title, is not a title which a purchaser will be compelled to accept.</p> <p>6. Same. Same. Feed not authenticated. A Court will not require a ven-dee to accept a deed not properly authenticated for registration; as if it be acknowledged, and the certificate fails to show that the Clerk was personally acquainted with the bargainor.</p> <p>7. Same. Same. Attachment. An attachment upon land sold, before registration of the debtor’s deed, with a decree pro confesso against the former holder of the legal title, under whose title the vendor claims, is such a cloud upon the title as will entitle the vendee to rescind.</p> <p>8. Record. Paper made after decree. A receipt by the Clerk and Master of the Court in which an attachment is pending, for the debt sued for, dated after an appeal is prayed and granted and bond given, in a different suit for rescission, can not be looked to in the Supreme Court, though copied into the record.</p> <p>9. Lost Record. Papers not filed. Papers which have not been filed can not be supplied, under the Code, 3907, by proof that they were read at the hearing.1</p> <p>10. Same. Remanding cause to supply. A cause can not be remanded to supply, as lost, papers which never were part of the record.2</p> <p>Cases cited: Boyer v. Porter, 1 Tenn., 258; Galloway v. Bradshaw, 5 Sneed, 72; Buchanan v. Alwell, 8 Hum., 519; Goss v. Singleton, 2 Head, 79; Cunningham v. Sharp, 11 Hum., 116; Seay v. Hughes, 5 Sneed, 155; Collins v. Smith, 1 Head, 255; 7 Ilum., 84; 1 Hum., 135; 5 Sneed, 692.</p> <p>Code cited: 3907.</p>

FROM FRANKLIN. Appeal from the Chancery Court at Winchester, at February Term, 1868. The transcript does not show what Judge presided at the hearing of the cause. Turney, J., having been of counsel for defendants, did not sit in this case.

FROM LINCOLN. Chancery Court at Fayetteville, John P. Steele, Ch., presiding. cited, on sales of land at auction and statute of frauds: 1 Sugd. on Vend., p. 136, top; Hil. on Sales. On contract admitted and statute not pleaded: Ellis v. Ellis, 1 Dev. Eq., 341, 398; Allen v. Griffin, 2 Dev. & Bat. Eq., 9; Dunn v. Moore, 3 Ired Eq., 364; 4 lb., 125; 1 White & Tudor Lead. Ca., 521, 522; 2 Sto. Eq., § 755, et seq.; 1 Sugd. on Vend., 137, 138, 139; Sneed v. Bradley, 4 Sneed, 301.

FROM BEDFORD. Writ of error to the Chancery Court at Shelbyville, to reverse a decree of JOHN P. Steele, Ch. insisted that the act of 1861, c. 20, was void. He cited Governor’s Messages, Session Acts, 2nd extra session, 1861, pp. 3 and 11; Mitchell v. Col.- Tp. Co., 3 Hum., 456; Henderson v. Felhner, 1 Heis., 271.

<p>PROM DEKALB.</p> <p>Appeal in error from a judgment of the Circuit Court, M. M. Brien, J., presiding. '</p>

PROM BEDFORD. Ed. Cooper and Thos. C. Whiteside, for plaintiff in error. Mr. Whiteside cited, to show that the action would be defeated by negligence of the deceased: E. T. & Ga. R. R. Co. v. St. John, 5 Sneed, 524, 430; L. & N. R. R. v. Burke, 6 Cold., 45; Whirley v. Whiteman, 1 Head, 610; Gogdell v. Yett, 1 Cold., 230; Sedgwick on Dam., 494, 496; 2 Greenl.

<p>PROM BEDFORD.</p> <p>Appeal from the decree of the Chancery Court at Shelbyville, JOHN P. Steele, Ch., presiding.</p> <p>commented on Henley v. Franklin, 3 Cold., 472; cited Carnes v. Folk, 4 Cold., 87; Sto. on Agency, §§ 93, 126, 181; Walker v. Walker, 4 Cold., 300; Stewart v. Donelly, 4 Yer., 177; Shurer v. Green, 3 Cold., 419; 10 Yer., 389; G'utehfield v. Robins, 5 Hum., 15, 18; Smith’s Mer. Law, 59; 5 Yer., 71; Lancaster v. Allen, 1 Head, 326-328; Turner y. Pettigrew, 6 Hum., 438-440; 3 Monroe, (?) 505; Hill on Trustees, 812, 813.</p> <p>cited Touchstone v. Touchstone, ante, 513; 3 Cold., 192; 2 Sneed, 204.</p> <p>cited 3 Cold., 472; Jones v. Thomas, 5 Cold., 465; 4 Cold., 300; lb., 87; Cross v. Sells, 1 Heis., 83; Kaff v. Crawford, 1 Heis., Ill; Pennington v. MeWhirter, 8 Hum., 130; Touchstone v. Touchstone, ante, 513; 38 Ga.; Williams v. Bowman, 3 Head., 678; Williamson v. Smith, 1 Cold., 1.</p> <p>cited Campbell v. Miller, 38 Ga.; King v. King, 37 Ga., 205; with other authorities cited above.</p>

<p>1. Assignment. Of tax certificate. On a bill filed to set up a tax sale, where the records have been lost or destroyed, the certificate of sale given by the Tax Collector, transferred to J. M. Quinby, is no evidence of right in James A. Quinby & Co.</p> <p>2. Tax Certificate. Sufficiency of description. A certificate of sale of “eleven tracts of land, containing 23,640 acres, lying in 13th district, White County, sold as the property of Assure Assure,” does not sufficiently identify the land, so as to enable the Court to decree title.</p> <p>3. Lost Record. Proof of contents. Where a Clerk of a Court, called to prove the contents of a lost record of condemnation of land for taxes, stated that his recollection was that the land was condemned; from the evidence found in the office, he thought the order of sale issued, and that the land was advertised; this was held to be insufficient proof of the contents of the record, to establish a sale.</p> <p>4. Tax Certificate. 'Act of 1844, c. 92, s. 1. The Act of 1844, c. 92, s 1, giving effect to a Sheriff’s deed, does not operate to give any special force to a certificate of sale. Such certificate must be accompanied by proof of all the requirements to constitute a valid sale.</p> <p>5. Chancery Pleading. Bill for title. Decree fee- taxes paid. A bill for title to land sold for taxes, failing for want of proof of the regularity of the sale, a decree was rendered for taxes paid, with six per cent, interest,</p> <p>Cases cited: Tharp v. Bart, 2 Sneed, 569; Thacker, ex parte, 3 Sneed, 346; Henderson v. Staritt, 4 Sneed, 470.</p> <p>Statute cited: 1844, c. 92, ss. 1 and 3.</p>

This was a- proceeding in the Criminal Court of Greene county, against David Fry as Tax Collector and his sureties, by motion. The regular Judge, A. W. Howard, being one of the sureties, vacated the bench, and a Judge was selected by consent. Thereupon, the Judge insisted that he had not vacated his place to have a judgment rendered against him, and the motion was dismissed as to him, and a judgment rendered against the Collector and the other sureties.

FROM DE KAEB. Appeal from a decree of the Chancery Court at Smith-ville, B. M. TillmaN, Ch., presiding. insisted tlmt complainant was entitled to relief by error coram nobis: Code, 3110, 3116, 3118; 1 Swan, 341; Hist, of a L. S., §§ 38, 71, 539, 542, 544; 4 Sneed, 432; 7 Hum., 39; 6 Hum., 332. Discovery and relief:- 1 Story, § 65; 5 Hum., 554. Suit pending at law, no bar: 3 Hay., 213; 1 Ten., 169, 201; 1 Hois: Dig., § 385.

EROM WHITE. Appeal from a judgment of the Circuit Court, W. ~W. Goodpasture, J. Some of the proof showed that at the time the note fell due, Tennessee Bank notes were about of equal value with Treasury notes, while gold was worth 165 to 170. The plaintiff’s note was for $572, executed by Turney, due April 4, 1863. Judgment January 24, 1867, for $347, debt, and $79.23, damages. The' plaintiff excepted and appealed.

<p>1. Sheeiee. Negligence. A Sheriff, who gives his receipt for the collection of a debt, becomes an agent for the collection, and is bound to use reasonable diligence. If, in consequence of negligence in obtaining judgment and execution in a reasonable time, the debt is lost, he is personally responsib;e.</p> <p>2. Evidence. On former trial. To prove the testimony of a deceased witness on a former trial, a witness is not competent, who states that he does not remember that the deceased^was examined on the former trial, but he remembers that he heard all the evidence in that trial, and if he was examined, he heard him; that he was examined in another cause, and he remembers his testimony in that cause, and that if he was examined on the former trial, his testimony did not vary from his testimony in the other cause. Nor can he be heard, after proof aliunde, that the deceased was examined on the former trial.</p>

EROM COPEES. Appeal by sureties from an order of the Chancery Court at Manchester, declaring them to have been released by previous action of the Court, and refusal then to require a new bond. insisted that the release of sureties is summary, citing McGhee v. Anderson, 11 Hum., 595; Wynne v. Edwards, 7 Hum., 418. On taking bond, the power of the Chancellor is exhausted, until one of the contingencies provided by statute gives him new power.

<p>FROM JACKSON.</p> <p>cited King v. Booker, 1 Heis., 11; and Gilbert v. Driver, 3 Head, 463.</p>

<p>MOTION TO DISMISS APPEAL.</p> <p>cited Sale v. Parmley, MS., Heis. Dig., —; Morris v. Smith, 11 Hum., 135; White v. Henderson, 1 Heis. Dig., 152; Brown v. Borwn, lb.; Davis v. Dyer, 5 Sneed, 679.</p> <p>cited Code, 3180, 3192, 3194; Dudley v. Baleh, 4 Hay., 193; Brumley v. Hayworth, 3 Yer., 421; Phillips y. Budle, 1 Yer«, 121; Act of Henry VII; 1821, c. 21; Davis v. Dyer, 5 Sneed, 679; 11 Hum., 133; 2 Sneed, 711; 1 Sneed, 42; Tedder v. Odum, ante, 50; Code, 2864, 2867, 3477. Proposed to give bond now, and cited Morris v. Smith, 11 Hum., 135. Insisted that the motion came too late: Gillespie v'. Goddard, 1 Heis., 777; Tedder v. Odum, ante, 50; Hodge v. Dillon, Cooke, 279; Nanee v. Hides, 1 Head, 624; Code, 4514.</p>

<p>FROM SMITH.</p> <p>Appeal from the judgment of the Circuit Court, A. McClaiN, J., presiding.</p> <p>cited the Code, 3220.</p>

<p>EROM SMITH.</p> <p>Appeal from the Circuit Court, A. McClaiN, J., presiding.</p> <p>cited Stewart v. Donnelly, 4 Yer., 177; Lytle v. Smith, 3 Hum., 327; Seruggs v. Luster, 1 Heis., 154.</p> <p>cited Henley v. Franklin 3 Cold., 472; Shurer v. Ch'een, lb., 426; Keppel v. Peters-burg, jR. B. Go., before. C. J. Chase, U. S. Circuit Court at Richmond; Thorington v. Smith, 8 Wal., -; Bank v. Massey, ante, 360.</p>

<p>Book Debts. Act of 1865, c. 10. The limitation of two years, within which a book debt must be proved, is within the Act of 1865, c. 10, s. 1, and the time was extended by that act.</p> <p>Statute construed: 1865, c. 10, s. 1.</p> <p>Code cited: 8781.</p>

<p>FROM JACKSON.</p> <p>From, the Circuit Court, A. McClain, J., presiding.</p> <p>cited, on the admission of secondary evidence: Vaulx v. Merriweather, 2 Sneed, 683; Pharis v. Lambert, 1 Sneed, 228; Sale v. Darter, 10 Hum., 92; Tyree v. Magness, 1 Sneed, 276; 1 Greenl. Ev., § 558; Ralph v. Brown, 3 Watts & Serg., 395. Oh defect of religious belief: 1 Greenl. Ev., § 370, n. 2, 12 ed.; Commonwealth v. Smith, 2 Gray, 516; 1 Swift’s Dig., 739; 5 Mason, 19; 4 Am. Jurist, 79, n.; The Queen’s case, 2 B. & B., 284.</p> <p>cited 1 Greenl. Ev., § 558; Bhortz v. Unigiest, 3 Watts & Serg., 45; Watterson v. Watterson, 1 Head, 1; 1 Head, 125; State v. Cooper, 2 Term., 96; 1 Swan, 411.</p>

<p>1. RECORD. Appearance. When and for vihat purpose disputable. In an action of trespass in which the defendant was not served with process, his father without authority made a compromise, which was signed by the plaintiff alone. This was entered on the minutes: the entry beginning “Came the parties by their attorney, and file the following agreement.” In a suit brought before this entry was made, by the defendant in that suit against the plaintiff therein, this entry was offered to show a ratification by the present plaintiff of the agreement; held, that he might show by proof that it was made in his absence, and that he had no .attorney in that case.</p> <p>2. EATiErcATloM'. Record. Attorney. A ratification of an unauthorized agreement is not proved by the entry of such agreement on the minutes of a court in a cause to which it relates, in the presence of the party’s attorney.</p>

<p>FROM DEKALB.</p> <p>Appeal from a decree of- tbo Chancery Court at Smith-ville. B. M. TillmaN, Ch., presiding.</p> <p>cited Phillips v. Sol-lister, 2 Cold., 269; Lewis v. McLemore, 10 Yer., 206; 1 Sto. Eq., 193; Merriwether v. Larmon, 3 Sneed, 448 ; Donaldson v. Weakley, 3 Yer., 178; Walker v. Dunlop, 5 Hay., 271; Fisher v. PróbhaH, 5 Hay., 75.</p> <p>N. & Ed. Baxter, for Tubb, insisted, that Equity cannot render personal decree for damages: 11 Paige, 288; 4 John. Ch., 560; 5 John. Oh., 195; 38 Maine, 521-2; 2 Beav., 465; 17 Yes. Jr., 277, 278; 14 Yes. Jr., 129 and note; 2 Dev. Law, 24; 3 Meriv., 247, 8; 25 Maine, 532. Jurisdiction of damages ancillary to that of specific performance, or the like: 1 Hilliard Vend., pp. 419, 336; 2 Hil. Vend., 283, 284; 2 Story Eq. Jur., § 794, 799. No specific performance for want of title: I Story Eq. Jur., § 716, note 3, § 769; 2 Hil. Vend., p. 283; 2 Sch. Lefr., 553. Mutual mistake, as to existence of thing sold, but not as to matter of value, ground of relief. Representation, upon a point equally open to both parties, must be positive, not mere matter of opinion: 3 Jones Law, 224, 73; 19 Ark., 528; 20 Ga., 654; 11 Mo., 657; 3 Story. R., 691, 695; 11 Paige, 288; 2 Iredell Law, 34, 35; 3 Ired. Eq., 486; 4 Dana, 370;. 19 Ga., 450; 9 Ired., 576; 2 Iowa, (Clarke,) 114; 5 Blackfd., 20; 5 Jones’ Eq., 180; 10 B. Mon., 458; 15 B. Mon., 627; 12 Mo., 519, 520; 1 Story Eq. Jr., §§ 191, 197, '200, a.; 1 Hil. Vend., 329, § 10, pp. 327, 330; 5 Yer., 471; 1 Yer., 20; 9 Yerg., 45, 47. To correct instruments by parol, proof of mistake and misrepresentation, must be clear. 1 Hil. Vend., 308, 323; 8 Hum., 233; 1 Hum., 439; 30 Ill., 249. Purchaser must be vigilant, and forfeits his right of action by delay: 1 Story Eq. Jur., § 769; 1 Hil. Vend., 330, 331; 9 Ind., 581; 7 Blackfd., 184, 5; 5 Hum., 548; 3 Head., 102; 1 Story Eq. Jur., § 693; 10 B. Mon., 459; 3 Story R., 631, 629, 698; 2 Hum., 45. Executed contracts: 5 Yer., 471. Relief by rescission, only on offer of vendee to restore land; 3 Sneed, 436, 7; 1 Cold., 320; 4 Dana, 374; II Gratt., 475; 9 Ind., 478; 4 Ind., 456, 7; 7 Blackfd, 55; 6 Blackfd., 187; 1 Hil. Vend., 426; 20 Geo., 658; 35 Penn. St., 293. 'Insisted, that plaintiff got excess of land within the deed, and that this should compensate for loss without: 36 Ala., 177; 5 Eng. L. and Eq., 166; 1 Hil. Vend., 239, 319. Extreme measure of damages should have been the consideration money and interest: 3 Head., 450; 4 Ham., 99; 8 Hum., 653.</p> <p>JORDAN Stokes filed a petition for rehearing, in which the following authorities were cited: 1 Story Eq. Jur., §§ 399, 400, a, and notes; 1 Story Eq. Jur., §§ 119, 120, 197-9, and notes; 1 Heis. Dig., 532; 1 Story Eq., § 193; Philips v. Hollister, 2 Cold., 269; Lewis v. McLe-r more, 10 Yer., 206; Merrkodher v. Lnrmon, 3 Sneed, 448; 1 Greenl. Ev., § 176; Osgood v. The Manhattan Go.; 3 Cowen Rep., 623; Han v. Broton, 4 Cow. R., 483; Smith v. Vincent, 15 Conn. R. 1; 1 Greenl. Ev., § 178; Williams v. McCormack, 7 Hum., 308; Shute v. Wade, 5 Yer., 1; Goles v. Anderson, 8 Plum., 489 ; Dickens v. Sheppard, 3 Mass. Rep., 526; Marrs v. Gilliam, 1 Cold., 488; Scales v. Cockrill, 3 Plead., 432; Meadows v. Hopkins, Meigs’ Rep., 181; Bedmoncl v. Bowles-, 5 Sneed, 547.</p>

<p>Levy. On property conveyed to trustee, but decreed to be sold. Satisfaction. A debtor made a deed of trust, to secure several creditors, with a power to himself to sell and apply to the purposes of the trust. In August, 1860, he sold a house and lot, and in 1863 collected and applied the proceeds to a particular debt. In a litigation with a creditor, a decree was obtained in 1861 to sell certain lands and negroes, which had been conveyed by the deed, to pay $962.48, with authority to the Clerk to attach the negroes, if not delivered; and the Clerk having taken and being about to sell the negroes, by consent the sale was postponed for six months, on an agreement that on failure to deliver, execution should issue against the debtor and several sureties. On the expiration of the time, execution issued, and was levied on the negroes and lands. Held, that, though the negroes were conveyed to the trustee, on the decree for the sale of them and the agreement that execution should issue on failure to deliver the negroes, the execution issued could properly be levied on the negroes, and that the levy operated as a satisfaction as to the purchaser of the house and lot, and that the creditor was precluded, (the Coroner having failed to sell the negroes,) from questioning the sale to him.</p> <p>Case cited: Evans v. Barnes, 2 Swan, 292.</p>

<p>1. Statute oe Frauds. Parol sale voidable. A parol sale of land is not void but voidable.</p> <p>2. Vendor’s Lien. Parol Sale. Upon a parol sale of land, executed, a vendor’s lien arises.</p> <p>3. Same. Notes executed to vendor's donee. On a gift by the vendor, of the purchase money of land to a third person, to whom the vendee executes his notes, a lien exists in favor of such payee, for the price.</p> <p>4. Same. Set-off. Such note is not subject to a set-off of a debt of the donor.</p> <p>5. Fraud upon Creditors. Who may set up. If such notes are made with intent to defraud creditors, the payor cannot set that up as a defence.</p> <p>Cases cited: Hilton v. Dimcm, 1 Cold., 320; Sneed v. Bradley, 4 Sneed, 304; P-ishmoreY. Jones, 1 Cold., 556.</p>