Volume 51 — Tennessee Reports

<p>VENDOR and Purchaser. Trustee for Minors. Purchase by. A father, as trustee for Ms minor children, bought land and gave his own notes for the purchase money; the children coming of age, continued to hold the land as their own; the vendor filed . his hill to enforce his lien, and to satisfy the deficiency out of the infants’ other property, alleging that the children had ratified the act of their father. Decree to enforce vendor’s lien, hut other relief denied.</p>

FROM WILLIAMSON- In tbe Chancery Court at Franklin, Special Term, May, 1868. W. H. S. Hill, J., presiding. . T. W. Tubley submitted the following brief: The will of the testator in this case, manifests a strong attachment on his part for his family.

<p>EROM SMITH.</p> <p>In Chancery Court at Carthage, June Term, 1868. B. M. Tillman, Oh., presiding.</p> <p>cited the Act of 1838, c. 3, s. 18, and the Code 2221-2232. Tour v. Aminedor 20 Pick., 535. Dorr v. Wain, 13 Pick., 328. Prescott v. Pitts, 9 Mass. R., 376.</p> <p>cited the cases of Deaderich v. Cantrell, 10 Ter., 263; ITughlett v. Hughlett, 5 Hum., 453; Bouy. Law Die., Title Executor; Hill on Trustees, marg. pp. 41, 237, 238, n.; Phillips v. Mannings, 2 My. & Or., 309, 315; Brougham v. Lcl. Powlett, 19 Beavan, 119; Jennings v. Davis, 5 Dana, 127; Leate v. Uearst, 12 Miss., 365; Graham v. Graham, 16 Beav., 550; Garroll v. Bosley, 6 Yer., 220; Harrison v. Ward, 3 Dev. & Bat., 417; Taylor v. Dublois, 4 Mason, 131; Drane v. Bayliss, 1 Hum., 174; citing Roper on Legacies, 559; 2 PlowcL., 545; 2 "Williams on Exrs., 853, 848; 6 M. Ch. R., 151; Beeves v. Steele, 2 Head, 647.</p> <p>cited in addition, Jones v. Ward, 10 Yer., 170.</p>

cited Code, 3162, 3164 and 2970. insisted that the original note was merged in the first judgment: Kimbrough v. Mitchell, 1 Head, 540; Nunnelee v. Dough-erty, 1 Yer., 30, 31. Sci. Fa. a new action: Swancy v. Scott, 9 Hum., 340; Bank v. Vance, 9 Yer., 472, 475; 3 Cold., 393; Code, 2787. .

FROM SUMNER. Chancery Court at G-allatin, September Term, 1867. Thos. Barry, Ch. In the absence of restriction, a married woman may act as to her separate estate as a feme sole: Powell y. Powell, 9 Hum., 478; Peacock v. Munk, 2 Yes. Jr., 190; Livingston v. Livingston, 2 J. C. R., 537. Clancy on Husband & Wife, 282. There being no restriction, she might execute a mortgage. Lemarest v. Wynkoof, 3 J. C. R., 129; McFerrin v. White, 6 Col., 499.

FROM WILLIAMSON. Appeal from a decree of tbe Chancery Court at Franklin, June Special Term, 1868, W. IT. S. ITtll, Chancellor. contended that the gift was of money, not property. That Dysart and Hunter’s purchase was not established.

PROM SUMNER. Circuit Court. Demurrer disposed of, and trial had at June Special Term, 1867, before W. S. MüN-day, Special J. ' 1. Illegality in part avoids the note in toto: Story on Prom. Notes, § 189; Thayer v. Rode, 13 Wend., 53; Turner v. Odom, 3 Col., 455; ' Gráwford v. Morrell, 8 J. B., 256; 3 Bibb, By., B., 500; 2 Mete., By., 163; Swan y. Chandler, 8 B. Mon., 98; 9 B. Mon. 90; 4 Hum., 200; 3 Head, 725; lb., 298; 1 Sneed, 376; 1 Parson’s on Con., 456. 2.

<p>EROM SUMNER.</p> <p>Chancery Court at Gallatin. Decree at March Term, 1867. Thos. Barry, Oh.</p> <p>cited Houston v. Embry, 1 Sneed, 480; Mount y. Kesterson, 6 Col., 452; August v. Seeskincl, 6 Col., 166; and Bailey v. Bailey, 8 Hum., 230.</p>

PROM GILES. Circuit Court, August Term, 1867, trial had, and motion. for new trial entered and continued before HILARY Ward, J. At December Term, 1867, the motion for new trial was discharged by Arohelaus M. Hughes, J.

<p>FROM GULES.</p> <p>Appeal from decree of Chancery Court at Pulaski, at March Term, 1867. L>. Champbbll, Ch., presiding.</p> <p>insisted that the rents went to the purchaser; cited 4 Kent, 468; Perkins v. Peed, 1 Swan, 87; Taylor v. Cooper, 10 Leigh, 817; Wagnor v. Cohen, 6 Gill, 97; 12 II. S. An. Dig., 252, 253; Daniels’ Oh. Pr., 1456, 1467; Smith’s Oh. Pr., 189, 191.</p> <p>insisted that the rents were due the owner until confirmation, and cited 1 Swan, 80, 87; Wood v. Morgan, 4 Hum., 871; Houston v. Ay cook, 3 Sneed, 412.</p>

<p>1. Yendoe’s Lien. Sub-purchasers. Contribution. Two sub-purchasers of land subject to a vendor’s lien, buying on the same day, held to contribute ratably to the purchase money.</p> <p>2. Same. Same. Same. If one of two sub-purchasers, liable to contribute to the discharge of a vendor’s lien, owe a part of the purchase money to the original vendee, that will be first applied, and he will contribute pro rata to the remainder.</p>

from sumner. Appeal from a decree of the Chancery Court at Gallatin, September Term, 1867, Thomas Barry, Ch. On the authority of a sheriff, cited code 4093, sub-sec. 9: Crutchfield v. Robins, 5 Hum., 19; Lytle v. JEatherly, 10 Yer., 389; Venable v. Snoddy, Brownsville, April Term, 1868.

<p>3. Pkacticb. Notice to striJce out pleas. Certainty. A defendant having filed three pleas, on a motion to strike out the two xfieas filed by him, it was so ordered, and a judgment hy default taken. Held erroneous.</p> <p>2. Practice in Supreme Court. Unlitigated cases. If a cause he set down as unlitigated in the Supreme Court, and it appears clearly to he a case for reversal, it will he reversed, instead of being remanded to the trial docket.</p>

<p>EROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia, December Special Term, 1868.</p> <p>after citing and commenting on the Tennessee cases, cited Garter v. Everleigh, 4 Dess., 19; James v. Mayrant, lb., 591; Montgomery v. Everleigh, 1 McOord, Ch. R., 267, 269; 1 Leading Cases in Eq., 372, 374; 7 Paige R., 9, 14; 20 Wend., 570; 7 -Paige, 112, 116; 1 Sand-ford, 17, 25; Curtis v. Engel, 2 Sandford, 287, 289; 10 Paige, 343, 346; 3 Iredell’s Eq., 237; lb., 312, 316; Acton v. White, 1 Sim. & Stu., 429; 2 Eq. Dig., 249, §§ 2-7; Story, Confl. of Laws, §§ 242, 270, and n. 279; Story on Pr. notes, § 164. Insisted that by the law of Mississippi the remedy was clear, and that as it was in personam, it could be enforced here: 2 Sto. Eq. Jur., § 744.</p>

<p>1. Chancery Pleading. Joinder of causes of action. An administrator c. i. a., of a feme covert who was a cestuy que trust and testator, may sue the representative of the trustee and executor of his testator, for an account of the trust during the life of the beneficiary and for an account of the administration by him as executor since her death. The former is necessary as a basis for the latter.</p> <p>2. Trustees. Settlements with married women. Settlements made by a trustee annually with a feme covert are prima facie evidence of their own accuracy and correctness — only subject to be overturned by proof of errors. Similar settlements with a person sui juris are conclusive.</p> <p>8. Appeal. Prom decree settling principles. A decree directing an account in such case, and holding that the settlements made by a trustee with a feme covert are not conclusive, is such a decree as may by leave of the Chancery Court be appealed from.</p>

EROM HICKMAN. Appeal in eTror from the judgment of the Circuit Court, November Term, 1866, ordering a peremptory mandamus to issue.

<p>1. ConkedeRate Treasury Notes. Received and used by G. & M. A Clerk & Master, who lias received Confederate Treasury-notes and used them, must account for the amount of the fund received. In this case it was not shown that the notes were depreciated.</p> <p>2. Same. Payment in, to G. & M. A payment in Confederate notes, fairly made by a defendant to a Clerk and Master, and freely and voluntarily received by him, is a discharge of the debt.</p>

FROM ERANKLIN. Appeal from the decree of the Chancery Court at Winchester, February Term, 1868. B. M. Tillman, Ch. Turney, J., having been of counsel, did not sit in this ease. cited 3 Col., 15; Hill on Trustees, 246, m. 164; 2 Pars, on Contr., 29, 32; 3 Bos. & Pul.

<p>Re-heahiNG. Duty of Counsel. Counsel should only ask for a rehearing in the Supreme Court fracases where they can clearly show some oversight or omission, or bring to the notice of the Court some new matter, really important, which was not before considered.</p>

<p>MotioN to Correct Judgment.</p>

<p>Actios. Of tort, does not lie against administrator. An action for the conversion of property does not lie against the administrator or executor of the wrong doer.</p> <p>Cases cited : Kimbrough v. Mitchell, 1 Head, 540; Griffiths. Beasley, 10 Y{a-., 437; also 1 Yer., 390,393.</p> <p>Statutes cited: 1836, c. 77.</p> <p>Code cited: 2747, 2846.</p>

<p>EROM HARDIN.</p> <p>Appeal from the Chancery Court at Savannah, Geo. W. Nixon, Ch„ September Term, 1870.</p>

<p>1. ADVANCEMENTS. Sale not to be held an Advancement. In a transaction between father and child, a sale from the father will not he treated as an advancement merely because the price paid was inadequate.</p> <p>2. Evidence. Declarations, of vendor after sale. Not admissible. The declarations of the seller after the sale are not evidence to impeach the sale.</p> <p>3. Chanceby Pleading. Belief must conform to case made in bill. On a bill for an account of the value of lands sold as advancements, and containing- no charge of fraud or undue influence, relief cannot be had by setting the sales aside, on the ground that the sales were obtained by fraud and undue influence, and for an inadequate price.</p> <p>Cases cited: Bedford v. Williams, 5 Col., 206; Perlcins v. Hays, Cooke, 163; Heis. Dig-., 536, 539.</p> <p>4. Sale. Inadequacy of price. Inadequacy of price to set aside a sale, must be such as to constitute evidence of fraud.</p> <p>Case cited: Hardeman v. Burge, 10 Ter., 204.</p> <p>6."Widow. Property exempt. The widow of a deceased person is entitled to two horses as exempt from execution; to $250 worth of property in addition to the articles enumerated, and to a homestead worth not more than $1,000.</p> <p>6. Same. Same. Subsequent exemptions. The provisions of the Code, 2288, allowing the widow the property exempt from execution, includes all property exempted since the passage of the Code.</p> <p>7. Statute. Construction. A remedial statute shall be extended to later provisions by subsequent statute.</p> <p>8. Dowek-. Homestead. Widow may elect, or malee up value of doioer. The widow entitled to dower, is entitled if the dower is of less value than $1,000, to so much more land, under the Homestead Exemption Act of 186S, c. S5, as will make, with the dower, a property worth $1,000; hut not, it seems, to a homestead worth $1,000, and a dower in addition.</p>

<p>EROM M’NAIRY.</p> <p>Appeal from the decree of the Chancery Court at Purdy. Jas. "W. Doherty, Oh., October Term, 1868.</p>

<p>EROM HARDIN.</p> <p>Appeal in error from the judgment of the County Court, March Term, 1857.</p>

<p>EROM SENDERSON.</p> <p>Appeal in error from tlie judgment of tlie Circuit Court, July Term, 1867. ¥ii. P. Bond, J. .</p> <p>cited Thornton v.' Wynn, 6 Cond. R., S. C., IT. S., 508, 512; 2 Greenl. on Ev., §§ 103, 104; 1 Term R., foot p. 133 to 136; 10 Hum., 18.</p> <p>cited 2 Hum., 68, 71; 2 Kent, 640.</p>

<p>1. Equitable Set-off. A party who had purchased under a proceeding to sell lands in the Circuit Court, being entitled on a final division of the estate, of which the land was a part, to more than his purchase money, and the commissioner having obtained judgment for the money, and proceeding to collect it by execution, the purchaser was held entitled to enjoin further proceedings on the judgment.</p> <p>Cases cited and reviewed: JDeadericlc v. Smith, 0 Hum., 147; White-side v. Lathim, 2 Col., 93; Smith, v. Johnson, 2 Heis., 225; Still v. Boon, 5 Sneed, 380; Brazleton v. Broolcs, 2 Head, 194; Wright v. Bay, 3 Hum., 09, 70.</p> <p>Code cited: 3206, 3293, 4233, 4302, 2918 to 2926, 2974.</p> <p>2. Costs. A party who files an original bill, when a proceeding in ' a pending suit will answer his purpose, taxed with costs.</p>

<p>1. Conveyance in fraud of Creditors. When sale at law void. Lands purchased by a debtor, and conveyed by his procurement to his infant children, with intent to defeat creditors, are not subject to sale by execution at law, and such sale, if made, is void.</p> <p>2. Same. Same. Satisfaction set aside and sale ordered. Where a bill was hied to enforce such a sale, but so amended as to pray in the alternative that if that relief was not allowable, the satisfaction of the judgment might be set aside, and a sale be made under the orders of a Court of Chancery; the relief prayed in the amended bill was granted.1</p> <p>Case cited: Henry v. Keys, 5 Sneed, 489.</p> <p>Statute cited: 1847, c. 191.</p> <p>Code cited: 2990, 2996.</p> <p>3. Hractice in Supreme Court. Bemanding for further proof . The bill alleging that complainant raised his bid in consequence of certain executions in favor of G-. W. S. for $171.85, but no proof being made that he owned or had paid the executions, the case was remanded, with leave to take the proof and have satisfaction of these executions.</p>

EROM WEAKLEY. Circuit Court, June Term, 1868, before Jro. A. Rosers, J., tbe following entry was made: “ Came tbe plaintiff by attorney, and dismisses Ms suit. Held: and this cause be re-instated upon the docket.” At the October Term, 1869, the court’, on motion, struck the cause from the docket, because the cause' had been dismissed; from which order the plaintiff appealed.

<p>FROM CARROLL.</p> <p>Circuit Court, September Term, 1869. L. L. Hawkins, J.</p>

<p>Administkatok or Trustee. Taking Tennessee, Bank notes. An administrator selling property in January, 1863, on a credit of twelve months, taking notes playable in Tennessee Bank notes; that course being advised by one of the distributees, and that currency being'regarded by prudent men as the safest attainable ; held not guilty of a devastavit.</p> <p>Case cited: Carter v. Boland, 11 Hum., 338.</p>

The plaintiff below having obtained an order to revive the cause in the name of the widow of the plaintiff below, to whom the County Court had set apart the judgment, subject to liens for fees, and to certain orders of the husband in his lifetime, for amounts to be paid out of the same; the defendant’s counsel moved to set aside the order, on the ground that the widow had no right to revive in her own name, and cited the Code 2849, 2854, 2859, 2285, 2286.

<p>Infancy. Sale by infant husband, and wife of full age. A bargain and sale made by an infant husband jointly with a wife of full age, of the real estate of the wife is voidable at the election of the husband.</p> <p>Case cited: Scott v. Buchanan, 11 Hum., 472.</p>

PROM WEAKLEY. Appeal from tbe judgment of tbe County Court, September Term, 1870. insisted that tbe deed by Hill was before Ms marriage to petitioner Caroline, and so was not affected by the act of 1855-6, Code, 2399; citing Boyer v. Boyer, 1 Col., 12. That sbe was barred by tbe assignment in bankruptcy, citing Bankrupt Act of 1867, s. 14; Hil-liard on Bank’cy, 484.

<p>EROM WEAKLEY.</p> <p>Appeal from the decree of the Chancery Court at Dresden, May Special Term, 1868. John L. Williamson, Ch.</p> <p>cited 1 Sto. Eq. Jnr., pp. 465, 1269, 1270.</p> <p>Resulting trust cannot be raised in personalty: 8 Hum., 447; 11 Hum, 457; 4 Hum., 283, 236; Sandford v. Weeden, 2 Heis., 71; 3 Hum., 150.</p> <p>Administrator not liable for devastavit of Ms intestate: 10 Hum., 434.</p>

<p>EROM HARDIN.</p> <p>Error to tbe Chancery Court at Savannah. Decree at March Term, 1871. G-eo. H. Nison, Ch.</p> <p>cited Jones v. Williamson, 5 Col., 371, 376, 380, 381, Code 4576; Bentley v. Hurxthal, 3 Head, 378; 1 Dan’l Ch. Pr., 197.</p> <p>cited 3 Col., 52; 1 Sneed, 297, Code 3603.</p>

<p>1. ExempxioN. Ox Wagon. An ox wagon is exempt from execution under the law of Tennessee.</p> <p>2. Same. Law liberally construed. The exemption laws are to be liberally construed. Case cited: Richardsons. Dmican, 2 Heis.,220.</p> <p>3. Same. Right to, not affected by year’s support. Property set apart to the widow as part of her year’s support, does not satisfy her claim to like property under the exemption law.1</p> <p>4. Same. Same. Compensation for deficit. Where property exempt is assigned as part of the year’s support, leaving property of the same kind, but not enough to satisfy the widow’s claim to property exempt, she is entitled to what is left, and the value of the deficit.</p> <p>5. Acquiescence. In sale by administrator. A widow will not be prevented from claiming property exempt because it has been sold without objection, where she is not fully apprised of her rights at the time of sale.</p>

<p>1. Will. Construction. Devise to a woman and her children. A devise of lands to a woman “to have and to hold the same to her and her children for their special use and benefit forever ” vests th e legal title in the mother, for the j oiiit use and benefit of herself and her children, she and each child having a vested and equal equitable interest, and she holding her share as a separate estate, and upon her death the children will take the legal title to the whole property.</p> <p>Case cited: Hamilton v. Bishop, 8 Ter., 41.</p> <p>2. Same. Same. After-horn children. The children born after the death of the testator will take under- such will equally with those living at his death.</p> <p>Case cited: Haywood v. Moore, 2 Hum., 584.</p> <p>3. Same. Same. Buie stated. Where, there is a devise to one, and her children, and there are children capable of taking at the time the will takes effect, the children will be construed to take jointly with the parent.</p> <p>4. ChildRest. A word of purchase. The word children is a word of purchase, and not of limitation, where there is nothing to control this sense of the word.</p> <p>Cases cited: Stubbs v.Stubbs, XI Hum.,44; 4Hum.,43; 3 Col., 538.</p> <p>6. Trustee. Legal estate of, terminates when. A trustee will he held to take an estate, to continue just so long as the purposes of the trust require, and no longer.</p> <p>Cases cited: Smith v. Metcalf, 1 Head, 64; Milis v. Msher, 3 Sneed, 231.</p> <p>6. 'Will. Bequest to a class. A bequest to children as a class, to take effect after the termination of an intervening estate, will include after-born children.</p>

<p>EROM WEAKLEY.</p> <p>Appeal from tbe Chancery Court at Dresden, May Special Term, 1868, Jno. L. ‘Williamson, Ch.</p> <p>insisted that Harris was a trustee, citing Shumaker v. Smith, 11 Hum., 81; Terrill y. Murry, 4 Ter., 104; Me Gammon v. Pettit, 3 Sneed, 242; 2 Sto. Eq. Jur., § 1201; Statute of Limitations did not run, 1 Greenl. Ev., § 430; Guyler y. Brodt, 2 C. C. E.,(?) 326; Oliver y. Piatt, 3 How., (H. S.,) 333; Martin y. Greer, Ga. Dec., 109; 1 J. J. Marshall, (Ky.,) 399, 367; Anstice v. Brown, 6 Paige, 448.</p> <p>cited the Code, 3890, on the competency of A. Gardner as a witness; distinguished this case from 2 Hum., cited by defendant’s counsel. On the trust, cited 5 J. J. Marshall, 66; 1 Lead. Oas. in Eq., 272; 2 lb., 130; Hill on Trustees, 94; 3 Marshall, (Ky.,) 24; 1 Johns. Oh., 591; 2 Johns. Oh., 408; 3 Sneed, 242. On the Statute of Limitations, 5 Dana, 199; 11 B. Monroe, 161; 1 J. J. Marshall, 370, 401; 1 Swan, 418; 3 How., (H. S.,) 333; 3 Johns. Oh., 190.</p> <p>insisted that an admission of a trust by Hams was not sufficient, unless it was admitted that Gardner’s money was used: 1 Lead. Cas. in Eq., Dyer v. Dyer, n., top p. 274, 275; 4 Hum., 233; Thompson y. Branch, Meigs, 390. Statute of Limitations bars suit, Dunlap v. Gibbs, 4. Ter., 94 to 98; Ang. on Lira., § 469; Me Gammon v. Pettit, 3 Sneed, 242; Cocke § Jack v. McGinnis, Mar. & Ter., 361; Hickman y. Gaither, 2 Ter., 200; 3 Ter., 232; 4 Ter., 253; Alfred Gardner an incompetent witness, Harvey v. Sweasy, 4 Hum., 449; Vanzant y. Kay, 2 Plum., 106, 112; Foster y. Baton, 4 Hum., 354.</p> <p>insisted that the proof was not sufficient, citing 3 Sneed, 246. That Statute of Limitations run against an implied trust, Chaney v. Moore, 1 Col., 48; Loyd v. Currin, 3 Hum., 465; Dunlap v. Gibbs, 4 Yer., 94; Haynie y. Hall, 5 Hum., 290.</p> <p>insisted that the lapse of seventeen years since the entries was a bar in equity, citing 2 Sto. Eq. Jur., §§ 111, 1520, a; Peebles v. Beading, 8 Serg., & R., 493; 1 Sugd. .on Vend., 491, 498.; 4 Ves., 686; 13 Ves., 225; Robertson y. McLin, 3 Hayw., 10; Chaney v. Moore, 1 Col., 48; Delane y. Delane, 1 Brown. Pari. Cas., 519. Certificates of entry, not properly proved; failure to take objection not material, 1 Danl. Oh. Pr., 164; Mills y. Dennis, 3 Johns. Oh., 861; Hannum v. Wallace, 9 Hum., 131; Davidson y. Bowden, 5 'Sneed, 129; Crabtree v. Niblett, 11 Hum., 488. A. G-ardner incompetent, Vanzant y. Kay, 2 Hum., 106; Yancey y. Marriott, 1 Sneed, 28; Scott v. Bandy, 2 Head, 198; Phillips v. Henry, 2 Head, 133; Statute of Limitations, Dunlap v. Gibbs, 4 Yer., 94; Neal y. H. T. College, 6 Yer.,'190; Code, 2165; Chaney y. Moore, 1 Col., 48; statute well pleaded, Bogardus v. Trinity Church, 4 Paige, 118; Maury y. Lewis, 10 Yer.,'115; Morrow v. Hatfield, 6 Hum., 108.</p>

<p>PROM M’NAIRY.</p> <p>Appeal from the Chancery Court at Purdy. October Term, 1868. Jambs W. Doherty, Oh.</p>

<p>1. Ejectment. Sheriff’s deed. Not aided by judgment not recited.' In an action of ejectment, a sheriff’s deed reciting a judgment or levy subsequent to a conveyance of the property by the judgment debtor, cannot be connected by parol with other judgments or levies of date anterior to the conveyance, and proof that the sale was made upon the older as well as the later judgments or levies.</p> <p>2. Same. Same. A sheriff’s sale without deed only conveys an equitable title, which will not support ejectment.</p>

<p>EROM WEAKLEY.</p> <p>Appeal in Error from the Circuit Court, October Term, 1870, James D. Portee, J.</p> <p>cited Thomas v. Tankersley, 5 Col., 165; Kerr v. Porter, 1 Tenn., 15, 16; Act of 1777, c. 1, s. 5; 1783, c. 2, s. 11; Preamble to 1786, c. 20; Lester v. Craig, Cooke, 365; Graham v. Dudley, Cooke, 353; Goodloe v. Wilson, 2 Tenn., 59, 60, 61; Beid v. Dodson, 1 Tenn., 402; Craig v. Leiper, 2 Yer., 193'; Murfree v. Logan, 2 Tenn., 593; 1-Hay., 107; Beid v. Buford, 1 Tenn., 419; Anderson v. Cannon, Cooke, 27; Winchester v. Gleaves, 3 H^y., 212; Hickman v. Gaither, 2 Yer., 200; Brown v. McCann, 5 Hay., 124; Mitchell v. Barry, 4 Hay., 136.</p> <p>cited Cooke, 488; Graham v. Dudley, Cooke, 353; 1 Tenn., 402; 2 Sneed, 696; 2 Meigs’ Dig., pp. 681, 682; Bolh v. Mill, 2 Tenn., 118, 153, 157; Acts of 1786, c. 20, s. 1; 1787, c. 23, s. 1.</p>

<p>FROM HENRY.</p> <p>Appeal from a decree of the Chancery Court at Paris, April Term, 1870. John Somers, Oh.</p> <p>cited the Bankrupt Act, ss. 14, 15, 27, and Pillow v. Langtree, 5 Hum.. 389.</p> <p>cited Code 2127; Killibrew v. Elliot, ■ 11 Hum., 442; Ex parte Newhall, 2 Story, 360; Mitchell v. Winsloio, 2 Story, 630.</p>

<p>EROM G-IBSON.</p> <p>Appeal in error from the judgment of the Law Court of TIumholdt, November Term, 1870. Gideon B. Black, J.</p> <p>in error, cited Moore v. Greene, 4 Hum., 299; Iiuff v. Mills, 7 Yer., 42; Gonnor y. Allen, 3 Head, 419; Code, 3088, 3089, 3103; Brown y. The State, 7 Hum., 112.</p> <p>cited Spivey v. Latham, 8 Hum., 703; JEclcle y. Cowan, 1 Sneed, 290, 291, on tlie motion to dismiss certiorari, Foster y. Saffell, 1 Swan, 90; Code, 3088, 3089, 3090, 3471 and 4 Hum., 299, on garnishment.</p>

<p>EROM HAYWOOD.</p> <p>Appeal from the judgment of the Circuit Court, January Term, 1869. W. P. Bond, J.</p>

<p>EROM CARROLL.</p> <p>Appeal from the judgment of the Circuit Court, May Term, 1870, reversing the order of the County Court. L. L. Hawkins, J.</p> <p>cited Heis. Big., 29; Stat. 1 Hen., 8, anno., 1509; Wright v. Wright, M. & Y., 42, 44; Wilson v. Frazier, 2 Hum., 31; Code, 41, repealing Act of 1715; Act of 1859-60, c. 36, s. 1, p. 29.</p>

<p>FROM HAYWOOD.</p> <p>Appeal from the decree of the Oháncery Court at Brownsville, August Term, 1868. John L. "Williamson, Oh.</p> <p>cited Code, 4201; Browning v. Jones, ■ 4 Hum., 69; Furman v. Nichol, 3 Col., 432; 3 Sneed, 120; Smith v. Hickman, Cooke, 330.</p> <p>cited Code, 2327, 4201; Acts of 1851-52, c. 283, Session Acts, p. 511; 3 Head, 632; 3 Col., 432; Spurlock v. Fulks, 1 Swan, 289; 4 J. J. Marshall, 12; 5 Paige B., 245; 2 "Wheeler Am. Ck. Dig., 32, 33.</p>

<p>1. Constitutional Law. Venue Law of 1867. The Act of 1867, c. 86, s. 8,, requiring in cases where the yenue had been changed, that it should he changed hack on certain affidavits of unconditional Union men, was unconstitutional and void.</p> <p>2. Same. Provisions violated. The act was in violation of Article 1, s. 8, of the Constitution, and of Article 2, s. 1.</p> <p>Cases cited: 2 Yer.,. 554; 2 Hum., 285: 3 Hum., 490; 2 Sneed, 104.</p> <p>3 Practice. On void change of venue. Where such re-change was ■ ordered, the proper practice was for the court of the county from which the cause went originally, to strike the cause on motion from its docket.</p>

<p>FROM haywood.</p> <p>Appeal in error from the Circuit Court, November Term,' 1870. Gideon B. Blach, J.</p> <p>cited Thorington v. Smith, 8 Wal, 1; Naff v. Crawford, 1 Heis., Ill; Chitty on Contr., 589; Mart v. Enloe, 1 Yer., 458.</p> <p>cited 8 "Wal, 1; 1 Heis., Ill; Sherfy v. Argenbright, lb., 128; 4 BL, 74.</p>

EROM CARROLL. Appeal from the decree of the Chancery Court at Huntingdon, August Term, 1869. Johb Somers, Ch., sitting by interchange with Jambs H. Doherty. cited the Act of 1827, c. 54; Code, 3262, 3266, 3293, 3317; 8 Hum., 200; 5 Sneed, 665; lb., 129. insisted that th.e plaintiff’s remedy was at law that objection having been taken by special demurrer. He cited the Acts of 1827, c. 54; 1835, c. 2Ó; 11 Hum., 394; 5 Sneed, 180-; 8 Hum., 200; 5 Sneed, 666, 668, 669.

EROM OBION. Appeal from the Chancery Court at Union City. November Term, 1870. John Somers, Ch. insisted that there is no remedy before a Justice of the Peace to enforce vendor’s lien by Code 4142. He cited Code 2563, 2564, 2565, 4280, 4281; 2 Hum, 242; 10 Yer., 850; Spurlock v. Folks, 1 Swan, 291; Gillespie y. Bradford, 7 Yer., 168; lb. 9; 2 Head, 132. cited Code 4281.

<p>Legal Tender. Contract payable in gold. A contract payable in gold is to be discharged by the payment of so many dollars in Legal Tender if otes as the gold was worth on the day the payment should have been made under the contract, and the judgment is to be rendered in dollars for that sum.</p>

<p>1.Libn. By parol void. A lien on a crop to be made on the landlord’s land, reserved by parol in favor of the landlord, to secure advances for supplies, is not valid.1</p> <p>2. Evidence. Secondary when sufficient. A plaintiff in replevin having proved circumstantially by parol a levy by the defendant as deputy sheriff on the property in controversy, held that there was no necessity for defendant to produce the execution and the return of the levy, the parol evidence being legal and sufficient proof of the levy as against the plaintiff.</p> <p>Case cited: 4 Hum., 22.</p>

<p>1. New Trial. Charge of’ Court. Where likely to mislead. Where a suit was brought by a vendor of personalty for the property, on the ground that it was obtained by a fraudulent purchase in the name of a firm, and the purchase was repudiated by a supposed partner, it seems, it was error for the court to instruct the jury that it required the same mutual assent on a consideration to re-vest property, as was necessary to transfer it originally, without giving any instruction as to the effect of fraud and disaffirmance, though no special instruction was asked; the effect’ of such, charge, under the circumstances, being probably to mislead the jury.</p> <p>2. Verdict. In replevin. Proof to sustain. In replevin, a verdict will be set aside if damages are assessed in favor of the defendant, without proof of damages other than the value of the property, and the fact and time of replevy.</p>

<p>KROM CARROLL.</p> <p>"Writ of Error to tbe Chancery Court at Hunt-ingdon, dismissing tbe bill, August Term, 1870. JOHN SOMERS, Oh.</p> <p>cited as to guardian ad litem, Rucker v. Moore, 1 Heis., 726; Daniel v. _H'annegan, 5 J. J. Marsh., 49; Knickerbocker y. DeFreest, 2 Paige, 304. As to order of publication, Code 3375, 4354, 4355, 4359. Proof does not support decree, Davidson v. Bowden, 5 Sneed, 129. Sale void, not being advertised thirty days, Code 2145. Report of sale void for uncertainty.</p>

<p>eRom haywood.</p> <p>Appeal from tbe judgment of tbe Circuit Court, November Term, 1870. G-id. B. Black, J.</p> <p>cited: on Payment, Demurrer, 1 Am. B,., 490; 42 N. Y., 54; 5 Hum., 15, 40, 140, 485; 4 Hum., 444; 6 Hum., 62; 2 Head, 609. Charge, unwillingness, 5 Col., 465. Agent, power and duty, 5 Sneed, 469; Sto. Agency, §§ 85 to 88, 60, 73, 199; Paley Agency, 299. Amendment, Pleas, Code, 2863, 2869; 4 Hum., 511; 2 Tenn., 54; 5 Yer., 319; 4 Yer., 165; 7 Yer., 452. Limitations, Cooke, 179; 1 Yer., 467; M. & Y., 418. Adm’r must plead, Code 2279; 2 Hum., 565; 7 Hum., 373.</p> <p>cited: on Agency, Scruggs v. Luster, 1 Heis., 150; Cooney v. Wade, 4 Hum., 445; Kenny v. Hazeltine, 6 Hum., 62. On filing plea, Smith v. Johnson, 1 Heis., 5; Caldwell v. Mchmond, 1 Heis., 468; 5 Hum., 105; M. & Y., 366; 5 Yer., 319. On Duress, Jones v. Thomas, 5 Col., 465; McStoeen v. Miller, 1 Heis., 104. n.</p>

FROM BENTON. Appeal by defendants from a decree of the Chancery Court at Camden, February Term, 1869. John Somers, Ch. Widow incompetent as witness: 1 G-r. Ev., §§ 334 to 338; Kimbrough v. Mitchell, 1 Head, 539. insisted Mrs. Sarah.

<p>erom haywood.</p> <p>Appeal Rom tbe decree of tbe Chancery Court at Brownsville, February Term, 1871. James Fentress, Ob.</p> <p>cited 1 Bright, Husband and Wife, p. 18, § 2, 3; p. 19, § 3, 4, 5. 6; p. 34, 36; 2 lb., 102; 10 Ter., 222; 1 Swan, 445; 2 Hum., 475; 2 Kent, 163, and n.; Beeve’s Bom. Kel., 167, § 8; 2 P. Wms., 243; 3 P. Wms., 268; Cord on Married Women, 5, and n., 294, 155, 156. Contended that Registration laws did not apply: Code 2075, 1 Sneed, 258. Release of one co-obligor not a release of all in equity: Kirby v. Taylor, 6 J. C. R., 242. Marriage contract, bow construed: 10 Yer., 222.</p> <p>cited 1 Roper on Husband and Wife, marg., 77; 1 Bright on Husband and Wife, top, 18, 19, 20; Clancy on Married Women, 155, 156; Co. Litt., 264, b.; 8 Bac. Abr., 656; 1 Ld. Raym., 515; Comyns R., 67; 1 Salk., 325; 5 Term R., 381; 2 Tern., 290; 2 P. Wms., 242; Darcy v. Chute, Cases in Ck., 21.</p>

<p>1. Account. From another State. Pleas, waiver of oath. A plaintiff in a suit upon an account coming from another State, waives the necessity of a plea on oath, if he takes issue on pleas without oath, of nil debet and payment.</p> <p>Code construed, 3780.</p> <p>2. Payment. Officious. Implied authority.' The collecting agent of the plaintiff proposed to a friend of defendant that he would deduct from defendant’s account the expenses of traveling to and from defendant’s place of business if the friend would pay the demand. The friend, who was not expressly authorized to make the payment, but had done similar acts before, paid the demand for the defendant to the agent, who absconded with the money. The Circuit Judge left it to the jury to say whether the payment was authorized, and they found for the defendant, and the Supreme Court affirmed the judgment.</p>

<p>FROM HAYWOOD.</p> <p>Writ of error to the Chancery Court at Brownsville, to review a decree at December Term, 1867. John Williamson, Cli.</p> <p>cited as to the sale: Potter v. Coward; Meigs, 22 -T Shaddon y. Knott, 2 Swan, 362; Broyles v. Lowrey, 2 Sneed, 22; Williams v. Mkins, 1 Heis., 93; Hawthorne v. Bowman, 3 Sneed, 524; 2 Kent, 492 and n., 494, 496, 640 and n.; Sto. on Sales, §§ 296, 298 a. and n. 2, 299, 300, 309, 400; Williams v. Adams, 3 Sneed, 364; Jordan v. Harris, 31 Miss., 257; Crofoot v. Bennett, 2 Comst., 260; Crawford v. Smith, 7 Dana, 59, 61; Young v. Alston, 6 Pick., 280; Benj. on Sales, 221, 226, 227, 264, 338, 430; Young v. Mathews, Benj. on Sales, 228; Willard V. Perkins, 1 Busb. L. E. (E. 0.) 253; Boswell v. Greene, 1 Butch. (E. J.) 390; 1 Am. L. Eev., 418; Ridley v. Varnum, 2 Pick., 280; Goodrum v. Smith, 3 Hum., 542; Miller v. Roger, 9 Hum., 237; 11 Hum., 206; 5 Benio, 379; Parsons on Contr., 527, 528; Clark v. Spence, Benj. on Sales, 229, 231, 233, 238, 239, 240; Bryant v. Casby, 40 Maine, 9; 1 Am. L. Bev., 413, 415, 421, 431; Houston v. By che, Meigs, 76; Woods v. 'Burrough, 2 Head, 202; Bufón v. Bougherty, 11 Hum., 50; 1 Swan, 396; 2 Swan, 190; Middlesex Co. v. Osgood, 4 Gray, 447; Fain v. Fitzpatrick, 3 Col., 15; Bush v. Barfield, 1 Col., 95; 11 East, 210, 244 n.; 6 East, 624; 7 East, 571; Chitty on Contr., 374; Story on Contr., § 801; Parsons on Contr., 533; Addison on Cont., (top,) 224. As to the contract to pay in gold, they cited Hepburn v. Grisioold, 8 "Wal., 603; Bronson v. Bodes, 7 Wal., 229; Butler y. Ilorwitz, lb., 258; Story on Pr. Eotes, §§ 393, 394; 2 Parsons on Bills, 90; Carpenter v. Atherton, 4 Am. L. Bev., 227.</p> <p>cited and commented on Williams v. Allen, 10 Hum., 337; Bush v. Barfield, 1 Col., 92, and distinguished the case by the fact that there the “gin weights” were to control, and so the gin keeper was the agent of both parties to weigh; Williams v. Adams, 3 Sneed, 359; and Gilmour v. Supple, 11 Moore, 551; Benj. on Sales, 221, 224, and Fain v. Fitzpatrick, 3 Col., 15. He cited Cross v. Fdlin, 2 B. & A., 106. Com-' merited on Butler v. Honoitz, and Bronson v. Bodes, insisting that the judgment should he in gold and not for the value of gold in greenbacks when due, and distinguished the cases of values of specific articles from gold, which is a standard of values,- and insisted that the rule in these cases was the true one and controlling.</p> <p>On the petition for re-hearing, he cited Roberts v. Cantrell, 3 Hay., 219, 220. He further argued that the rule of damages adopted was not consistent with Butler v. Horwitz, but attained a result entirely different and most unjust' — the purchasing power of gold being without variation, while by the measure adopted a much larger value was really given to the complainant than he would have had if the gold had been paid at the time when due.</p>

<p>Confederate Tkeasuky Notes-. Payment in to wife. Acquiescence. A payment made "by an executor to a wife, in March, 1802, in Confederate and Tennessee notes, while her husband was absent in the army, receipted for by her in her own name, the money being due in her right, and necessary for her support, and the husband not objecting to the payment for six years, when he brought suit; held a good payment.</p>

<p>1. Evidence. Failure of parly to testify. The failure of a party to be examined as to matters necessarily within his personal knowledge, affords a presumption against him, where the proof is not clear, and the case he seeks to make, could he proved by him, if true.</p> <p>2. Same. Same. Fraudulent conveyance. On a bill to set aside a fraudulent conveyance, it being asserted in an answer not sworn to, that a certain payment was made, and there being proof in the case, that the jiarty who was said to have made the payment, did not have the means to make it, it devolved on him to prove actual payment by satisfactory evidence.</p> <p>3. Same. Notice. Where a son, daughter and son-in-law reside with the father, and a conveyance is made to the son of the land on which they live, the father being insolvent, knowledge of the insolvency by the daughter and son-in-law will be inferred. Cases cited: 0 Ycr., 159: 5 Sneed, 534; 1 Hum., 335; 2 Head,628.</p>

<p>ER0M HAYWOOD.</p> <p>"Writ of Error to the Chancery Court at Brownsville, by the securities of a Clerk and Master, to reverse a judgment against them at the November Term, 1870. ; Ch.</p>

EROM HAYWOOD. Appeal from decree in the Chancery Court at Brownsville, on demurrer dismissing bill; February Term, ,1871. James Fentress, Ob. cited, on the point that tbe remedy at' law was adequate, 6 Hum., 210; 9 Hum., 493; Car. Law Suit, §§ 549, 550. Execution, functus officio — Acts 1870, c. 46, ss. 1, 2 and 8. Discovery — 9 Hum., 27; 3 Col., 477; 10 Peters, 501, 502; 2 Paige, 599; 1 Johns. Ch. K.., 543, 544; lb., 469; 'Mitford’s Eq.

<p>1. Tennessee Money. Means hank notes. A note promising to pay in Tennessee money, is payable in Tennessee Bank notes. . Cases overruled, but not cited: Searey v. Vanee, H. &Y., 225; Gift v. Mall, 1 Hum., 484.</p> <p>2. Construction. Proof of intention. Parol evidence is not admissible to prove what parties meant by the words of a written contract. The writing is the proper evidence of the intention of the parties, aided by surrounding facts.</p> <p>Case cited: McNairy v. Thompson, 1 Sneed, 141.</p>

EROM HAYWOOD. Appeal by defendant, February Term, 1871, from a decree of tbe Chancery Court at Brownsville, in favor of complainant. James EehtRess, Cb. 1. Tbe sale from Natban to Simon Greenwald, tbe complainant, though inoperative and void as to Bond, tbe attaching creditor, is good between the parties themselves: Code, 3507; Burrough v. Brooks, 3 Head, 392.

<p>PETITION TO • SET ASIDE JUDSMENT.</p> <p>cited Dick v. Dowell, 2 Swan, 632; Tbe 1 World’ Go. v. Brooks, 3 Bankrupt Reg., 146; Bump on Bankruptcy, 3d ed., 142, 143, 332, 396; Code, 2892, 3110, 3116, 3117, 4512; Bankrupt Law, s. 34; IJ. S. An. Big., vol. 3, page 67, citing Bostioick v. Dodge, 2 Doug. (Midi.), 331.</p> <p>cited Bartlett v. Wilkerson, (Brownsville,) 3 King’s Dig., 123; commenting on Hopkins v. Godbehire, 2 Ter., 241.</p>

EROM CARROLL. Appeal by respondents from a decree of the Chancery Court at Huntingdon, bolding the conveyance attached void; February Term, 1871. John Bombes, Cb. Bill of Sloane et als. filed February 11, 1868. Of Hansboro et als. filed June 1, 1868.

FROM HENDERSON. Appeal from decree of the Chancery Court at Lexington, overruling demurrer to the bill, February Term, 1871. Geo. Ii. Nixon, Ch. cited Code 8455, sub.-secs. 1 to 7, and 5 Col., 510. cited Code 8455, sub.-secs. 1 and 6; 1 Story Eq. Jur., §§ 184, 185, 437, 438, 439, 659 (6tb edition); Code 4288, 1st clause; 10 Yer., 350, cited in 1 King’s Dig., 3243; 1 Mad. Cb. Pr. 125, -2 Am. ed.; 3 Daniel’s Clr. PL and Pr., 1720.

ER0M CARROLL. Appeal from a decree of tbe Chancery Court at Huntingdon, refusing to set aside a sale on the application, of purchaser, February Term, 1871. John Somers, Ch. . (the purchaser,) insisted that the suit abated by death of Boach: Sto.

<p>1. Pleading. ’ Beplication in short. Effect of. Where pleadings in short are put in, as “replication and issue,” they will he treated as covering any defense made by the evidence.</p> <p>Cases cited: 3 Hum., 84; 5 Hum., 559; 1 Hum., 90; 9 Ter., 20; 3 Sneed, 454.</p> <p>2. Sale oe Peksonalty. Implied, warranty of title. Purchaser with notice of want of title. When a sale of a slave was made by the ' . father of a minor to whom the slave belonged, and a note was taken payable to the father, the purchaser knowing the state of the title, it was held that he and -his surety were liable to the son on the note.</p> <p>Case cited: 1 Head, 508.</p> <p>3. ACTION. By payee for the use of the owner. A suit brought in the name of the payee of a note which ought to have been executed to another, may by proper replication and proof be shown to be prosecuted for the benefit of the person interested in the note.</p> <p>Case cited: Trezevantv.McNeal, 2 Hum.,352; 8 Ter., 387; 5Ter., 281; 10 Ter., 15.</p> <p>4. Judgment. For use of minor, to whom payable. In such case the party interested being a minor, the iiayee being his father, was held entitled to recover for the use of the son, but no one could receive the money but the son if he came of age before payment, or his guardian if he was still under age.</p>

<p>Vendor's Lien. Assignee’s lien, after rescisión. Tlie vendor, of a tract of land sold by title bond, assigned one of the purchase notes to the complainant, and agreed not to make a deed to the purchaser until the note was paid. The vendor and purchaser rescinded the contract of sale, and the vendor sold to another by title bond. Held that the note was a lien on the land in the hands of the second purchaser.</p>

<p>FROM GIBSON.</p> <p>Appeal from tbe Circuit Court, August Term, 1869. W. P. BOND, J. .</p> <p>cited 1 King’s Big., 859.</p> <p>cited Davis v. Jones, 8 Head, 603; 8 Hum., 12; Code, 3455, 3469.</p>

FROM HENRY. Appeal in error from the Circuit Court, May Term, 1870. Lucien L. Hawkins, J. cited Burge on Surety, title Mistake and Discharge of ' Sureties. Surety not liable when principal is discharged: Hunt v. Hale, 8 Ter., 142; Hodges v; Buchanan, 8 Ter., 186, 190. cited Cunningham y. Shields, 4 ITum., 44; Boles v. Smith, 5 Sneed, 105; Elrod v. Lancaster, 2 Head, 571.

<p>FROM GIBSON.</p> <p>Appeal in error by tbe plaintiff from tbe judgment of tbe Circuit Court, March Term, 1870. JOHN A. Bogers, J.</p> <p>cited Floyd v. Woods, 4 Yer., 165, 166; Gordon v. Buchanan, 5 Yer., 71, 79, 81; Garner v. Norris, 1 Yer., 62; Biggs v. Barker, Meigs, 43; Larmon v. Merriioether, 3 Sneed, 447; Holland y. -Overton, 4 Yer., 482; Cooke, 142; 2 Col., 163; '4 Hayw., 121.</p> <p>cited Holland v. Overton, 4 Yer., 482.</p>

<p>Lapse op Time. Division of Slaves. Unsoundness. Judgment for. Owelty. A division of slaves having been made under an order of a County Court in April, 1860, those allotted to the widow exceeded her share in value $438.88, on which judgment was obtained in the County Court in favor of the administrator in October, 1860. The widow and her surety for the $438.88, filed a bill July 30, 1868, to be relieved from the judgment on the ground that one of the negroes allotted to her was unsound at the division; that the commissioners were not aware of his condition; that he died in consequence in January, 1862; that three of eight legatees had submitted the question of complainant’s liability to arbitration, and the arbitrator had held that the judgment should not be paid; held that the bill ought to have been dismissed on demurrer.</p> <p>Case cited: Brent v. Brown, 2 Head, 5G0; 2 Sneed, 580.</p>

FROM GIBSON. Error to tlie Circuit Court. Judgment, November- Term, 1869. Transcript does not show what judge presided. cited as to appeal bonds: Banks v. McDowell, 1 Col., 84; Gaines v. Henderson, 5 Yer., 197; Polk v. Plummer, 2 Hum., .500. Executor de son tort: 1 Yms. on Ex’rs, 232, 233, 234; 7 Cow., 64. ‘Administrator’ for ‘Executor’ not material: Code, 2864, 2865, 2873, 2874, 4516; 2 Head, 97; 3 Head, 378. Executor de son tort: 1 Lomax on Ex’rs, 185.

FROM GIBSON. Appeal in error by plaintiff, from tbe judgment of tbe Circuit Court, October Term, 1870; L. W. Talliferro, Esq., presiding by consent of tbe parties in tbe room, instead of Gr. B. Black, incompetent. cited 1 Heis., 150. cited 3 Head, 722; 3 Col., 455; 6 Col., 639; Act of 1859-1860.

EROM GIBSON. Appeal by defendants from a decree of the Chancery Court at Trenton. John Somers, Ch. The bill of McCutchen was filed 24th September, 1866, against E. F. Pigue, M. A. Considine, M. K. Considine, and James Considine. Bill of revivor filed January 12, 1867, alleged tbat Bobert F. Pigue has died, leaving Malinda Pigue, Ms widow, Nelson and B. F. Pigue, his heirs at law, and that no one has administered on his estate.

FROM HENRY. Appeal from the judgment of the Circuit Court in favor of the defendants, January Term, 1869. Lucien L. Hawkins, Sp. J. Ejectment brought December 24, 1867, by the holder of the legal title, who. has given a title bond. Bond given in 1837. Agreement to pay balance by one of the Hughes heirs holding the property in 1851. The time during which the statute was suspended is not to be computed.

PROM GIBSON. Appeal in Error from tire judgment of the Circuit Court by plaintiff Barker, November Term, 1870. G-ib. B. Black, J. Cotton not marked: Sto. on Contr., § 800; 10 Hum., 837; Benj. on Sales, 221-6. Commented on 3 Sneed, 359; 3 Col., 15. Ée-sale was a rescisión: 5 Sneed, 718. Buyer may abandon contract, and recover price paid, subject to recoupment of damages by seller: 3 Hum., 56.

<p>EROM SIBSON.</p> <p>Appeal from decree of tlie Chancery Court at Trenton, discharging supersedeas, November Term, 1868. John Somees, Ch.</p>

<p>1. Infant. Deed of. Coverture. Dissent. An infant who is also a married woman has'the option to dissent from her deed within a reasonable time after her diseoverture, though her coverture may continue for more than twenty years.</p> <p>2. Chancery Pleading. Belief. Not prayed for. A hill which states all of the proper facts on which relief is dependent, will sustain relief not specially prayed for.</p> <p>3. Same. Cloud on Title. A bill which asks immediate relief, will sustain a decree, if it makes a proper case, declaring rights in future and removing a cloud.</p>

<p>1. Attachment. Causes of. Dissipation and Insolvency. Will convey. An attachment hill alleging that complainant is surety for defendant ; that since he became so, defendant has become dissipated, careless, almost a sot; is greatly in debt, and daily becoming more so, and is utterly insolvent; that complainant has reason , to believe and does believe, that defendant will convey and dispose of his groceries and articles in his grocery in order to defraud his creditors; shows no sufficient ground for an attachment.</p> <p>2. Same. Construction of laws. Though the attachment laws are to he construed liberally, they are not to be strained to include cases not embraced by the terms of the statute.</p>

<p>EROM WEAKLEY.</p> <p>Appeal from a judgment in the Circuit Court in favor of defendant, February Term, 1870. JOHN A. Rogers, J.</p> <p>cited Tost v. Stout, 4 Col., 205; Townsend v. Townsend, Peck, 17; Yattel, Bk. 3, c. 8, §148; 13 ITow., 128; Halleck Int. Law, 851.</p>

<p>1. Emancipation. Loss by. Falls on purchaser with title reserved,. On a sale of negroes by a trustee,-under a trust to pay debts, without bill of sale, but with delivery, and a subsequent sale by parol with delivery to a third person, the first purchaser retaining the title until price paid, they being emancipated in the hands of the second purchaser by act of law, and before payment of the price — held that the loss fell upon the second purchaser, the retention of the title operating as a lien.</p> <p>2. Sale. Of land by parol. On a sale of land by a trustee, under trust to -pay debts, without deed made, by the trustee to the purchaser, and on a sub-sale by purchaser to a third person, tlie trustee having died, leaving minor heirs, held that the sale was voidable, and by the death of the trustee leaving minor heirs, it was incapable of confirmation.</p>

EROM WEAKLEY. Appeal iii error from tbe judgment of tbe Circuit Court, dismissing tbe plaintiff’s suit for want of security for costs. June Term, 1868. J. L. WilliamsoN, Cb., presiding, by interchange. cited SMpwith v. Johnson, 5 ' Col., 454; Meigs Dig., 1515; Creamer v. Ford, 1 Heis, 307. '

<p>Pledge. Possession requisite to. A sale of goods, with delivery of possession, and without reservation of the title to the seller, with an understanding that a third person, (who was to receive part of the purchase money,) should have joint possession with the vendee until paid, hut without any title conveyed to him, or control reserved to Kim, can not have effect against creditors as a pledge or lien, to secure such portion of the purchase money.</p>

<p>1. Judgjiext. Same party plaintiff and defendant. A judgment in favor of a Chairman of a County Court for the use of A, as guardian against B, former guardian, and A, as his security, is valid as a judgment against B, though it may he erroneous as to A.</p> <p>Cases cited: Sherell v. Cfoodrum, 3 Hum., 419; Winchester v. Bear-den, 10 Hum., 247.</p> <p>2. Same. Presumption of regularity. Where the transcript of a law record, filed in an equity cause, showed a judgment hy default, hut did not purport to contain the process, and showed no service of process, hut an answer and cross-hill admitted an agreement as to the management and conduct of the suit at law, held sufficient evidence of appearance to sustain the judgment.</p> <p>3. Same. -Fraud in obtaining. A hill alleged that a judgment was obtained against complainant, a guardian, who could neither read nor write, and knew little of business; that plaintiff was one of his securities as guardian, was appointed his successor, and assisted him in a settlement with the County Court, and that complainant commenced paying up before suit was commenced; that plaintiff informed him that the suit was brought for a small balance, and that he (plaintiff) would attend to the matter and have it settled correctly; that as complainant had confidence, and knew plaintiff was interested, and trusted'his promises, he did not defend; that plaintiff told him when the suit would come on, but it was taken a term earlier than that stated; that he did not owe as much as the amount of the judgment — $437—by several hundred dollars, and that nearly or quite all of what was due is since paid. Held to make a case of fraud in obtaining judgment.</p> <p>4. Same. Payment presumed. A judgment taken for too much, with payments proved to about the amount actually due — an execution issued and levied on property enough to satisfy the whole, and enough only realized to pay the costs; delay for thirteen years: held sufficient to raise a presumption of payment.</p>

EROM OBION. Appeal by E. I. Chester, from the decree of tbe Chancery Court at Troy, May Special Term, 1868. John 'Somers, Ch. 1st. Want of tender, etc. The bill does not admit any specific amount to be due. The bond is in lien of payment into court: 3 Yer., 484. 2d and 3d. The matters complained of are so complicated, that it was not a proper case for a court of law and a jury.

<p>1. Execution. Surety. Endorser for value. An endorser, whether for accommodation or value is a “surety” within the Code 3029, and entitled to the benefit of the provisions in favor of sureties in the Code from 3028 to 3031.</p> <p>2. Same. Provision directory. These provisions are directory, and do not affect or impair the rights of the plaintiff, and a violation of them will not affect the validity of a sale.</p> <p>Cases cited: 3 Head, 533: 7 Hum., 59.</p> <p>3. Surety. Agreement for delay after judgment. A stipulation of a creditor for delay with aprineipal debtor, after judgment, will not release a surety.</p> <p>4. Same. Belief in Equity. A surety is not entitled in equity to stay the proceedings on an execution against himself until the property of the principal is exhausted.</p>

<p>CareieR. Private and Common. A person who undertakes, though it may he only pro hoe vice, to carry hy river, for hire, without special contract, incurs the responsibility of a common carrier.</p> <p>Cases cited: Turney v. Wilson, 7 Yer., 340; Craigv. Childress, Peck, 270; Johnson v. Friar, 4Yer.,4S; Gordon v. Buchanan, 5 Yer., 71.</p>

<p>FROM WEAKLEY.</p> <p>Appeal in error by plaintiff, from judgment of the Circuit Court, October Term, 1869. Jno. A. Rogers, J.</p>

<p>1. Consolidation. Evidence. Entry of record, Construed. On the following entry in this cause of record the cause named was held to be part of the evidence in this cause. This cause came on for hearing at this term upon the bill and exhibits, answer, the record in the case of J. L. Dawson against John H. Dunlap et als., orders pro confesso, and upon consolidation thereof it ivas ordered, etc. But the decree not purporting to be in both, they cannot be heard together on appeal.</p> <p>2. Practice. Pro Confesso. Costs. Where a judgment pro confesso is set aside on application of a defendant served with process, it ought to be on payment of costs.</p> <p>3. Vendob’s Lien. Assignee. Where the legal title of land is conveyed, the implied lien of the vendor for the price does not pass by assignment of the debt: otherwise where a title bond only is executed. •</p> <p>Oases cited : Creen v. Eemoss, 10 Hum., 373, 375; Lincoln v. Purcell, 2 Head, 151; Thompson v. Pyland, 3 Head, 538, 539.</p> <p>4. Identity oe Name. Presumption from. Where a person of the same name as the complainant in a later suit made an affidavit as agent of the complainant in a former suit; in the absence of proof, he was presumed to be the same person.1</p> <p>0. Lis Pendens. Constructive notice to purchaser. The pendency of a prior suit, duly prosecuted and not collusive, against the same person to reach the same property, is constructive notice to the purchaser of the property under a later suit, and the Us pendens begins from the service of the subpoena after filing the bill.</p> <p>6, Vendor’s Lien. Security. Acceptance. Priority. ’Where one of the creditors secured by a trust deed was consulted before the execution of the deed, and he relied upon it in defense of the suit of the vendor’s assignee, and of another case, and he had no notice of the assignment of the purchase debt, he was held to have a right to priority of satisfaction over the assignee, while other defendants who had made no proof, and had allowed a pro confesso to be entered upon a bill, charging that they had never accepted the deed, were postponed.</p> <p>Cases cited: Mills v. Haynes, 3 Head, 335, 336; Goss v. Singleton, 2 Head, 77; Breedlove v. Stump, 3 Ter., 266, 267; Robertson v. Sublett, 6 Hum., 316.</p>

FROM DYER. Appeal in error to tlie Circuit Court to bring up judgment of September Term, 1868. John. A. Rogers, J. cited Code, 2112, 2288; Vincent v. Vincent, 1 Heis., 833, and insisted that the administrator had no interest or property in the articles exempt from execution. cited Code, 2288, 2289, 2290. Distinguished this case from Webb v. Brandon.

<p>EROM DYER.</p> <p>Error to Circuit Court, prosecuted by defendant, to reverse judgment of January Term, 1871. Gad. B. Black, J.</p> <p>cited 2 Sneed, 615; 4 Hum., 72; Sullivan v. Fugate, 1 Heis., 20; -11 Hum., 108; Allen v. Briant, Jackson, 1871; Code, 354, 3032, 3469, 3471, 3473, 3474, 3605, 4093.</p> <p>cited Code, 3032, 3476, 3477, 3605; 3 Hum., 34, 130, 141; 9 Hum., 178; 1 Swan, 208, 211; 10 Hum-., 434, 437; 3 Ool., 148; 6 Hum., 119,121, 151, 153; 5 Hum., 332, 335.</p>

3PR0M DYER. Appeal in error from the Circuit Court, September Term, 1868. John A. Bogers, J. cited Tucker v. Watson, 6 Am. Law Beg., H. S., 222, and authorities there cited; Jackson Insurance Company v. Steward, lb., 732, and authorities there cited; Am. Lead. Cases, 518; lloare v. Allen, 2 Dal., 102, and note containing Mr. Jefferson’s letter to Mr. Hammond, British minister; Foxcraft v. Nagle, 2 Dal., 132; Ward v. Smith, 1 Wal., 447; Fean v. Thompson, Am.

<p>EntRY. Ao. prevails over daie.1 Beeítals. An entry corresponding in No., quantity of land, and 'boundary, with recitals in the grant, may be read in connection with the grant, and left to a jury, as giving effect to the grant by relation, though it may vary from the recitals of the grant in date, and in the date of the act of the Assembly under which it purports to issue, it not appearing that there was any entry on the entry books corresponding to the date and act recited.</p> <p>Case cited: Anderson v. Gannon, Cooke, 30.</p>