Volume 52 — Tennessee Reports

<p>1. Husband and Wipe. Wife’s right to crop grown on land held try title bond to convey separate estate to wife and her heirs. Execution to satisfy judgment against husband was levied on ungathered crop in month of November, grown on land held by wife under title bond, in which vendor bound himself to convey, upon payment of balance of purchase price, “ to the sole and separate interest of the wife and her heirs, free from the control of her husband.” Husband and wife were living on the land, and the crop was produced by the labor of freedmen upon contract made with husband, by which one half of it was to be the wife’s and the other half the freedmen’s. Held, that a crop so grown upon land so held not subject to execution to satisfy the debt of the husband, but is the separate property of the wife.</p> <p>2. Chancery Jurisdiction. Chancery Court is the proper forum for wife to vindicate her rights to her separate estate, both in reference to her husband and his creditors, and injunction is a proper remedy to restrain the sale of wife’s separate chattel interests.</p> <p>Cases cited: Yowng y. Jones, 9 Hum., 551; Beady y. Bragg, 1 Head, 511.</p>

<p>1. Usury. . A note made and delivered in Tennessee but dated St. Louis, Missouri, calling for 10 per cent, interest, is not usurious, if intended to be discharged in Missouri by the sale of cotton by the payee for the makers.</p> <p>2. Same. Error in charge in regard to. Circuit Judge charged the jury, “ a note bearing 10 per cent, interest on its face would be usurious, unless you find that though made in Tennessee it was upon its face payable in Missouri.” Held, this was misleading and erroneous. The note, to escape violation of the usury laws of Tennessee, must appear to have been payable in Missouri, but it need not be so stated on the face of the note.</p> <p>Cases cited: 4 Yerg., 452 ; 2 Sneed, 141.</p>

<p>1. Chaucery Jurisdiction. Complainant bought tract of land of C. G. B. in 1860 for $3,600, which was paid, and deed executed with usual covenants of seizin and warranty, and against incumbrances. Vendor died, leaving all his property, real and personal, to his widow, the defendant, N. G., who intermarried with G. G. The complainant went into possession of the land under the deed, and was still in-possession when he filed his bill, alleging suit had been instituted to recover land from him; and that he fears he will lose the land by reason of defects in his vendor’s title, charging that the widow; and sole devisee of his vendor, is about fraudulently to dispose of 200 acres of land which is all the remaining estate of iris vendor, that these 200 acres are inadequate to re-imburse him for purchase money, expenses, etc., asking attachment, injunction, rescission, and repayment of purchase price, and expenses, etc. Held. An attachment bill in chancery will lie, in such case, on two distinct grounds. 1st. Upon the alleged insolvency of the estate of vendor, and inadequacy of such estate to reimburse vendee. 2d. Qwia timet.</p> <p>2. Chancery Practice. Proper party. Personal representative of deceased vendor ought to he a party defendant to hill by vendee for rescission of contract and repayment of purchase price.</p> <p>Cases cited: Kincaid v. Brittain, 5 Sneed, 124; Barnett v. OlarJc, 5 Sneed, 437; 4 Hum., 66; 6 Hum., 309.</p>

<p>EBOM GIBSON.</p> <p>Writ of error to Chancery Court at Trenton, to reverse decree of July Term, 1867. John SoMers, Cli.</p> <p>On Conveyance by Wife, 4 Kent, 150; Tyler on Inf. and Cov., 316, 317, 318; 2 Head, 208; 3 Head, 389; Sedgw. on Stat. and Cons. Law, 313, 314, 319; 2 Col., 632; Brown v. Fifebert, 4 Micb., 322. On condition not performed, 10 Yerg., 335, 205; 2 Head, 80. Purchaser of equity, 2 Head, 43, 80, 161, 163; 6 Hum., 438; 5 Hum., 49; 10 Yerg., 105.</p>

<p>FROM GIBSON.</p> <p>Appeal of defendant from decree of the Chancery Court at Trenton, December Term, 1869. Thos. C. Muse, Ch.</p> <p>cited Foster v. Hall, 4 Hum., 346; White v. Herd, 3 Head, 404; .Layne v. Pardue, 2 Swan, 236 ; 1 Am. Lead. Cases, 747, 748, 749, 750, 755; Allen v. Thomasson, 11 Hum., 536; 32 Law Lib., 101, 102, 117, 118, 121, 205, 173 to 176, 184, 186.</p> <p>citing 1 Am. Lead. Cases, 699 and notes; 1 Bos. & Pul., 230; 2 Kent, 43; 1 Sneed, 66; 2 Swan, 236; 3 Head, 409, 410; Code of Mississippi.</p>

<p>1. Insolvent Estates. Statute of limitations. Claims against an estate upon the suggestion of its insolvency, although pending by suit in another court, should be filed in the insolvent ease; and if not done •within two years and six months in case of residents, and three years in case of non-residents, from the date of administration granted, such claims will be barred; the object of the law in regard to insolvent estates being, that all claims of every kind should be presented and adjudicated in the insolvent proceedings, and that the estate should be saved from the expense of separate suits for the adjudication of any claims of whatever character, except where otherwise directed by the Court.</p> <p>.2. Saks. Same. Sec. 2330 'of Code, although only found in the chapter in regard to proceedings in the County Court, must be construed in connection with the general provisions of the law of administration, and particularly in connection with sec. 2376 of Code, which, although in the chapter providing for the administration of insolvent estates in Chancery, is to be taken as all else in regard to insolvent estates as ■parts of an entire system, construed as one statute, and taken all together.</p> <p>Note. A rehearing was granted in this case as to the item of $10,000, and the case continued for re-argument on that point, but that does not affect the force of the decision. On the rehearing- at the April Term, 1872, the Court re-affirmed all the positions assumed in the foregoing opinion.</p> <p>Fkebmajt, J., delivered the opinion of the majority of the Court, the JAS. of which is now before me. He says: “Upon the whole case, after reviewing the views expressed at last Term, we arrive at the conclusion that the result of that opinion was correct, and that the Chancellor erred in allowing these claims against the estate and overruling the exception taken by defendant to the report.”</p> <p>Turney, J., said: “ I do not concur in the construction given to the statutes upon the suggestion of insolvency as to its operation, given by this opinion in barring debts, etc.”</p> <p>It will be noticed that the Court, in the opinion, in speaking of the time of the statute, say: “ two years and six months in case of residents, and three years in case of non-residents, from date of grant of administration.” Is not the Court to be understood as meaning to say, the period for nonresidents is three years and six months within which to file their claims ?</p> <p>REPORTER.</p>

<p>1. Vendor’s Lien. JVo Waiver. Husband and wife conveyed tract of land to II and D by deed, reserving in the deed a lien to pay them five described notes given for the purchase price. Before the payment of the notes, D sold his interest in the land to H, and II procured the surrender to himself of the five notes and gave his, H’s, notes in lieu, with C as security, making these last notes payable alone to the husband. Subsequently II conveyed the same land by deed of trust to L. Held, that such substitution of H’s notes with personal security would not'be a waiver of the vendor’s lien in favor of the husband and wife, reserved on the face of the deed, which was on registration, and tliere- * fore notice to all.</p> <p>2. Attachment. “ Left the State” not suffiaimt ground for. The allegation that defendant II had “ left the State,” was not sufficient cause for the issuance of an attachment in this case.</p>

FROM TIPTON. Error to the Circuit Court. Judgment by motion, January Term, 1869. Geo. W. Peeves, J. Execution came to band too late to make return: JBlalcemore v. Bresjieldf MS., Jackson, 1871; Bittingsly v. Rankin, 2 Swan, 82, 84; Smith v. Gilmore, 3 Sneed, 481.

PROM DYER. Appeal from Chancery Court at Dyersburg. J. S. ■Williamson, Ch. who contended the property purchased was destroyed by fire before confirmation 'of sale. This alone is sufficient reason why purchasers should be relieved. See the following authorities: 2 Daniels’ Chancery Practice, 3rd Am. Ed., 1273; 1 Sugden Vendors, 60; Ex parte Minor, 11 Vesey, 559; 13 Vesey, 518.

<p>EJBOM LAUDERDALE.</p> <p>Appeal in error from Circuit Court at JRipley. W. P. Bond, J.</p>

PROM GIBSON. Appeal in error by defendants from a judgment of the Circuit Court, October Term, 1870. Gid. B. Black, J. cited 1 Gr. Ev., ss. 83, 84, 92; 2 Head, 539; 5 Sneed, 514. Insisted that the rule requiring a party to be an officer de jure applied only to plaintiffs suing as officers: 1 Gr., Ev. 92.

<p>FROM DYER.</p> <p>Appeal from January Term of Circuit Court at Dyersburg, 1870. JohN A. Rogers, J.</p> <p>cited Code, s. 4236; Rutherford v. Mitahell, M. & Yerg., 261; Fitzpatrielc v. Fain, 3 Cold., 152; 1 Heiskell, 196.</p>

<p>1. Pbactice. Motion must state grounds. A motion made in the Circuit Court will not be available on error, unless it disclose the reasons on which it is founded.</p> <p>2. Ebbob. Must be raised in Gourt below. The Supreme Court will not reverse for errors which might have been amended in the Court below, on objection taken for the first time in the Supreme Court.</p> <p>3. Justice op Peace. Form of Warrant. A warrant to answer C K in an action of damages for a sum under $250, does not properly set out the cause of action and would be bad on a proper motion to dismiss showing the cause; but is cured by general motion.</p> <p>4. Atheism. Mode of proof. It is error for a Judge to require a witness objected to for defect of religious belief, to be examined on his voir dire, when the objecting party proposes to resort to proof aliunde.</p> <p>Case cited: Barrel v. State, 1 Head, 126.</p>

<p>FROM DYER.</p> <p>Writ of error to Chancery Court at Dyersburg. T. C. Muse, Ch.</p> <p>cited Hough v. Chaffin, 4 Sneed, 238.</p>

<p>FROM DYER.</p> <p>Appeal from Chancery Court at Dyersburg. J. C. Muse, Ch.</p>

<p>1. Contempt Cases. Damages, lww measured. E & F were enjoined from. enforcing writ of possession against R. With knowledge of the injunction, E directed the Deputy Sheriff to proceed to dispossess R, saying he would be responsible for the consequences. R. was accordingly turned out of the house, with his family, near nightfall, 29th of December, 1868, and, after remaining in the woods two or three days, there being no vacant house in the neighborhood, was permitted to occupy a barn by the owner for a month. E, having been held in contempt by the Chancellor, it was referred to the Clerk and Master, to take proof and report the amount of damages to be assessed against E. The Clerk and Master having reported the amount of damages at $300, E excepted to the report on the ground that the amount was too large and not sustained by the proof. Held, this case falls within section 4109 of the Code, and the damages to be assessed in such case combines punishment, by way of vindicating the Court, together -with compensation to the party for the injury arising from the disobedience of the process of the Court, and the actual injury thus sustained, in view of all the facts and circumstances, will constitute the measure of damages in each case.</p> <p>2. Chanceby Practice. Damages in Contempt Cases, how assessed. While the facts to be passed on in assessing damages in such cases ought properly to be submitted to a jury; yet, neither party demanding a jury, it was not error for the Chancellor to refer the question to the Clerk and Master.</p>

<p>FROM OBION.</p> <p>Appeal from May Special Term, 1868, of Chancery Court at Troy. John Somers, Ch.</p>

<p>X. Demubbeb. Conclusive when. Decree of Supreme Court upon appeal from action of Court below overruling demurrer is final and conclusive as to questions embraced in tlie demurrer upon the Court below, and upon the Supreme Court itself upon subsequent appeal from the final decree in the same case. And although Supreme Court may review and reverse its own holdings in subsequent cases, yet its decrees once rendered are final and conclusive in the particular case in which they are made.</p> <p>2. Slave with Cohtbaot bob Fbeedom. Bight tu hold property. A slave, with inchoate right to freedom, might have owned and possessed property, and his children, subsequently emancipated, may take such property by descent or distribution from him, although the consent of the State to the freedom of such parent had never been given before his death.</p>

<p>EROM DYER.</p> <p>Appeal from Chancery Court at Dyersburg. . T. C. Muse, Ch.</p>

FROM MADISON. Appeal in error from Circuit Court at Jackson. W. P. Bond, J. insisted: Mandamus is the proper remedy to enforce legal rights only; and the party asking it must show a clear legal right. The title must be clearly and distinctly stated in the petition, together with all the facts necessary to establish the relief prayed for: Fleming ex parte, 2 Wallace, 759.

FROM TIPTON. Appeal in error from judgment of County Court of Tipton County, October Term, 1869. in error, who contended, the County Court had no jurisdiction to render judgment by motion in .this class of cases: Bond v. Clay, 2 Head; John C. Bowers et al. v. P. 8. Lester et al., manuscript opinion, Nashville, December Term, 1870.

<p>PROM MADISON.</p> <p>Appeal in error from judgment of Circuit Court at Jackson'. W. P. Bond, J.</p>

FROM MADISON. Appeal in error from Circuit Court at Jackson. W. P. Bond, J. in error, insisted, the charge of the Court to the jury in this case was erroneous. 1.

<p>Assets oe Insolvent Pabtnebship. Pro rata among all. The assets of an insolvent partnership should be divided pro rata among all the creditors of the partnership, and a judgment creditor of the firm, by attaching the firm assets already in the custody of the law for distribution under the attachment bill of the administrator of a deceased partner, will not acquire a right to priority of satisfaction over the other partnership creditors.</p>

FROM TIPTON. Appeal in error from Circuit Court at Covington.

<p>1. Bailment. Legal presumption. Whether for hire or not. S left at counting house of M & C $900 in gold to be sold, if 50 per cent, premium could be had; the gold was placed, in the presence of S, in the safe of M & C, where M & C kept their own money and other valuable papers. The safe was afterward broken open, the gold stolen, the money of the firm of M & C taken, as also the money of a sister of C which was in the safe; M &C gave the usual care and attention of prudent business men to the safety of their money and valuables. Upon suit being-brought for the gold lost, the Circuit Judge charged the jury: “ If the nature of the bailment was of such character as to require extraordinary care and responsibility on the part of the bailee, the law will imply reward, and if the bailment in this cáse was for fee or reward, expressed or implied, the defendant would be bound for ordinary negligence or apparent negligence and the plaintiff would be entitled to recover.” Held, this is erroneous, as it would depend upon the intention and contract of the parties whether the bailment was for reward or not, and however valuable the thing bailed, the law will never imply a liability under a contract against or opposed to the agreement of the parties, nor turn that into a debt which was intended to be a gratuity.</p> <p>2. Bailment -without compensation. True rule as to liability of manda-tary. The liability of bailee without reward is to be determined by his performance Iona fide of the fairly.understood, terms of the contract, ascertained by the express contract explained by the surrounding and attendant circumstances, or of failure to perform the terms of the contract as it was understood by the parties at the time.</p> <p>3. GROSS negligence. What. Gross negligence is nothing more than negligence, with the addition of a vituperative epithet.</p>

<p>1. Reoistration. Verbal lien of land owner on crop not good against registered mm-tgage. J and H agreed that H vas to grow corn and cotton on the land of J, and to divide the products. It vas verbally agreed between them that H’s half of the prospective crop was to stand good to J for any provisions advanced by him to H during the year. J made advances to H to the value of $125. During the year, and before the maturity of the crop, H gave a mortgage to C on his half of the growing crop to secure C for goods to the value of $125 sold by C to II, which mortgage was duly registered. Held, the mortgage of H to C on his growing crop is such an instrument as sec. 2030 of the Code requires to be registered to make it good against creditors or subsequent purchasers for value, and, being registered, is good against the verbal lien claimed by the land owner.</p> <p>■2. TENANTS nsr Common. Persons growing crops on the shares. The legal re- . lation of the land owner and the farmer on shares is that of tenants in common of the crops, and the farmer may sell or mortgage his share of the crop. To permit the land owner to hold a secret verbal lien on the crop being raised by his tenant for advances, would put it in the power of tenants to practice frauds on innocent persons dealing with them on the faith of the products of their labor. All liens to be valid, therefore, against creditors of such tenants must be evidenced by registration.</p> <p>•8. Same. Same. This is not in conflict with the case of Tedford v. Wibon, 3 Head, 311; for in that case Tedford was simply the bailee of the crop, and his right to deduct his salary before the crop was delivered to the landowner had been agreed to in writing, which writing the Court there properly held not such an instrument as was necessary to register to render it valid.</p>

FROM MADISON. Writ of error to Chancery Court at Jackson. Jas. FeNTBess, ’Ch. with whom was A. W. Campbell, who said: We insist that taking the pauper oath on the 30th May, 1868, was no discharge of the rule, and that after the first day of June the cause stood dismissed: MePhatridge v. Gregg, 4 Col., 329. This case differs from the cases of Irvin v. Mathis, 11 Hum., 603, and Bettis v. Mansfield, lb., 604.

FROM GIBSON. Appeal from decree of the Chancery Court at Trenton. T. C. Muse, Ch. who insisted Sarah E., the mother of complainants here, took a life estate with remainder to her children: See French v. French, 11 Simons English Chancery Reports, 34; Morse v. Morse, 2 Simons, 485; 4 Kent, 407; Carter v. Carter, 14 Beaver; Belote v. White, 2 Head, 703; 10 Yerg., 20, 27; 3 Hum., 210, 336; 4 Sneed, 668; 2 Redfield on Wills, 333. The Rule in Shelley’s case does not apply. 1.

PROM MADISON. Appeal from Chancery Court at Jackson. John L. Williamson, Ch. who referred to the following authorities: Power of Court to correct judgment rendered at a former term: Code, 2878, 2879; Andrews v. State, 2 Sneed, 550; 1 Hum., 380; 11 Hum., 176. Judgment rendered against a person who has no notice is void: Hughes v. Bryan, 6 Yerg., 471. Conveyance of property that can not be taken in execution, not within statute of 13th Elizabeth: 1 Story Eq.

FROM MADISON. Appeal from decree of tbe Chancellor. John L. Williamson, Ch. who said, the case is clearly within the rule laid down by Mr. Kent in the case of Wendell v. Van Rensselaer, 1 Johnson’s Ch. Ri., 353, that “a person looking on and suffering another to purchase and expend money on land, without disclosing or making known his claim on the land, will not be permitted afterward to assert his legal title against such innocent purchaser.” See also 8torrs & Broolcs v.…

FROM FAYETTE. Appeal from decree of G. W. Reeves, J., sitting as Chancellor by interchange. There are no briefs, nor the names of counsel, in the record.

<p>PROM PAYETTE.</p> <p>Appeal in error from Circuit Court at Somerville. G. W. Reeves, J.</p>

EEOM MADISON. Appeal by attaching creditors from decree of the Chancellor, in favor of the assignees, and perpetually enjoining attachment suit of creditors against them and the makers of the note. T. C. Mdse, Ch. The facts in this case are not stated in the opinion but are substantially as follows: Smith & Hurt gave their note to Joseph H. Gardner for $9,600, dated September 20, 1860. On this note there was a credit of $3,000.

PEOM CARROLL Appeal in error from Circuit Court at Hunting-don. Isaac E. Hawkins, Special J. insisted: In this case the evidence clearly shows that the killing of the iron gray filly by the defendant was an unavoidable accident. The evidence shows that the train was going at the time at the rate of eighteen miles an hour, and that it was impossible to stop the train and prevent the accident.

<p>FROM MADISON.</p> <p>Appeal in error from Circuit Court at Jackson. G. B. Black, J.</p>

<p>FROM•LAUDERDALE.</p> <p>Appeal from Chancery Court at Ripley. John W. Harris, Ch.</p>

<p>1. IiiEGAiiTY. Entry-taker making entries in ovm office. An entry-taker making entries in Ms own office is not entitled, to the aid of a Court of Equity to restrain others from appropriating the lands so entered.</p> <p>2. Same. Deputy. A deputy entry-taker can not make entries in the office in which he acts as deputy.</p>

FROM SHELBY. Appeal in error from the Municipal Court of Memphis. G. P. Eoute, J. the Receiver, insisted, an insolvent corporation is like an insolvent estate. Held: that Taylor could not set off the deposit against his indebtedness to the bank, as it would give a preference to one creditor of the bank after the act of insolvency: Venango National Bank v. Taylor, 56 Penn. St. B., 14.

<p>from lauderdale.</p> <p>Appeal from Chancery Court at ftipley. James Fentress, Ch.</p>

FROM EAYETTE. Appeal from May Special Term of Chancery Court at Somerville, 1871. Held: 'the six virtually consented.’” And this seems to have been even then well settled upon authority in England, for Mr. J. Wilmot, in that case, quotes Bex v. Withers. The text writers early adopted the principle, and we find it laid down in Wilcocks on Insur. Corp., p. 546; Angelí & Ames on Corporations.

FROM SHELBY. Appeal from decree of Chancery Court of Memphis by both partes. W. M. Smith, J. whose brief is not in the record as furnished the reporter. with whom was Wm. L. Scott, who insisted— 1. The deed, 25th August, 1854, from Barbiere, sr., and wife, to Barbiere, jr., shows on its face that it was not an execution, or attempted execution, of the power; but that it was a fraud upon the power and a breach of trust, in which Barbiere, jr., participated. 2.

FROM GIBSON. Appeal from Chancery Court at Trenton. T. C. Muse, Ch. who insisted, neither a Legislature nor a State Convention could revive a right once lost. “ Neither the Legislature nor State Convention could pass any law which impairs any vested right acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability.” See Sedgwick ■on Statutory and Constitutional Law, 188; 2 Galli-son, 105. “A law can be repealed by the lawgiver, but…

PROM PAYETTE. Appeal from Chancery Court at Somerville. John W. Harris, Ch. 1. The slaves were never in the possession of either the complainants or their sureties on the bond, but were, under the direction of the Judge granting the fiat, in the possession of the sheriff, in custodia legis, under express directions to “ keep them safely until further directions.” 2. The decree of the Chancellor proceeds on the idea of a conversion of the slaves.

<p>1. Stjebeme Cotjet. Rectifying decree.* Where it appears by the opinion of the Supreme Court that the decree does not properly embody the judgment of the Court, it may, at a term subsequent to the entering of the decree, be rectified and made to conform to the opinion.</p> <p>2. Same. Same. Judgments being moved for in the Chancery Court against three purchasers of slaves and refused, the plaintiff in the motion appealed. The Supreme Court delivered an opinion settling the right of the plaintiff against the three purchasers, but the decree was entered against one only. At a subsequent term the judgment was rendered as to the other two.</p>

This cause came before the Court upon motion to dismiss. The following affidavit was filed before the Supreme Court: The State oe TenNessee, John L. Brown, former clerk of the Supreme Court of the Western Division of said State, makes oath in due form of law, that the order for a writ of error in the case of A. J. White & Co. et al. v. Tillman C. Bettis, et al., was on the 12th day of June, 1868, made by said Supreme Court, then being in session at Brownsville; that the…

from lauderdale. Appeal, in Error from Circuit Court at Ripley. Thomas J. ElippiN, J. in error, said: I admit that the evidence will sustain the verdict, if there is no error in the charge of the Court.

<p>FROM SHELBY.</p> <p>Appeal from Circuit Court for Shelby county. G. W. Reeves, J.</p>

<p>1. Title Bond. Mortgage by verbal agreement. Valid as against other «¡'editors but not as against widow’s dower. The purchase notes having all been paid, it was agreed, in consideration of $468.06, money lent to purchaser by the maker of the title bond, that vendor should continue to hold the legal title to the land as security for the money lent. Upon the death and insolvency of the purchaser the vendor is entitled as against the other creditors of the estate to be paid in full by sale of the land; but as the vendor’s lien had been discharged and the title bond became a mortgage for the security of the money lent by vendor to the purchaser, the widow of the purchaser and mortgagor has a superior right to the vendor and mortgagee to be first endowed out of the land so held. •</p> <p>2. Doweb. Commissionen's to assign must appear to have thg, legal qualifications. The law requires certain qualifications to be possessed by the commissioners to assign dower, among others that they are unconnected by affinity or consanguinity with those interested in the estate. The order appointing them should affirmatively show that they have the prescribed qualifications, and their report should always be accompanied with a plat of the dower, giving the metes and bounds thereof.</p>

EKOM FAYETTE. Appeal from Circuit Court at Somerville. T. J. Flipptn, J. wbo insisted: “If one commit tort on the goods of another, by which he derives pecuniary benefit, or if he wrongfully take the goods and sells them or otherwise applies them to his own use, the other may waive tort and charge him in assumpsit on the common counts for goods, wares, etc., sold, money loaned or received, which he will not be permitted to gainsay:” 2 Greenl.

<p>Agency. Responsibility of agent for not following instructions. The agent for the collection and transmission of a sum of money being instructed by his principal to remit by express, purchased a check drawn by parties in good standing and credit on New York and forwarded to principal. The principal sent check to New York for payment, but before it was cashed the drawers became insolvent and the check was dishonored and not paid. Held, the agent having violated his instructions in regard to the mode of transmitting the money, rendered himself liable to his principal for the loss incurred, and sending the check to New York was no ratification by the principal of the act of agent in buying the check.</p>

<p>FROM SHELBY.</p> <p>Appeal in tbe nature of writ of error from First Circuit Court for the county of Shelby. C. W. Heis-kell, J.</p>

<p>PROM HARDEMAN.</p> <p>Appeal in error from Circuit Court at Bolivar. T. J. Flippin, J.</p>

FROM SHELBY. Writ of Error to Chancery Court of Memphis. W. M. Smith, Ch. 1. The vendor’s lien is paramount to the claim of the vendee’s widow to dower: 1 Hum., 414; 3 Sneed, 318; et passim. But it is insisted that Millington does not accede to the vendor’s lien in this case, and therefore, the widow’s claim must prevail, and the law, we insist, is as follows: 2.

FROM HARDEMAN. Appeal from Judgment of Circuit Court refusing to grant divorce. T. J. Flippin, J. 1. In this case we show that defendant has abandoned complainant, without reasonable cause, for more than two years, willfully and maliciously, and upon this state of facts the Court could not refuse the divorce: Code, s. 2448; sub-s. 4. 2.

PROM HARDEMAN. Appeal in Error from Circuit Court at Bolivar. W. P. Bond, J. 1. That the charge of the Court in toto was erroneous: Code, ss. 1691, 1687. The sections in Code apply to all partition fences; their sufficiency and quality to be judged of by commissioners. 2.

<p>PROM SHELBY.</p> <p>Appeal from decree of the Chancery Court at Memphis. ¥m. M. Smith, Ch.</p>

<p>FROM HARDEMAN.</p> <p>Appeal in error from Circuit Court at Bolivar. W. P. Bond, J.</p>

FROM SHELBY. Agreed case from the First Circuit of Shelby county. Held: that there was no inviolable franchise to the county, nor any contract, the impairment of whose obligation would be unconstitutional : Maryland v. B. & O. R. R. Co., 3 How., 534.

<p>PROM SHELBY.</p> <p>Appeal from First Chancery Court of Shelby county. K. J. MORGAN, Ch.</p>

<p>1. Admusustkatioit. Advances to minor heirs for necessaries, and to pay debts of estate, allowed to administrator, when. An administrator, in an honest endeavor to benefit the estate, procured creditors to hold up their debts. The slaves belonging to the estate were thus lost as assets of the estate to pay debts,-by their emancipation. The administrator paid with his own means a large amount of indebtedness of the estate, and made advances to the minor heirs to procure necessary food and clothing during the civil war. The minors had no income, having</p> <p>nothing but unproductive real estate. In January, 1867, the administrator filed his bill suggesting the insolvency of the estate, asking that enough of the real estate of the heirs bo sold to satisfy the remaining indebtedness and to re-imburse him for the debts paid by him and the advances made for necessaries to the minor heirs. Hdd, this measure of relief the administrator is entitled to. The bar of the act of 1715, [Code, s. 1786,] of seven years, even if applicable to the debts paid by the administrator in this ease, which is not decided, was not complete when the schedule of the amended Constitution of 1865, and act of 1865, c. 10, suspended all statutes of limitation until 1st January, 1867, when this bill was filed.</p>

<p>EROM SHELBY.</p> <p>Appeal from the First Chancery Court of Shelby county. R. J. MORGAN, Ch.</p>

<p>Aoency. Special powers stidctly construed. An agent empowered to sell land and make title thereto, is not authorized to exchange the land for a stock of merchandise. He is a special agent, and any one trading with him must take notice of his authority to do the act in question at his peril. He could only sell for money under such a power of attorney, and not having done so, the deed made by him is void, not having been ratified but repudiated by the principal.</p>

<p>Injunction as to PAST 03? suit. No violation of, when. Suit being brought on two notes, the defendant enjoined the prosecution of the suit as to one. The Court proceeded to verdict and judgment upon the other, and retained the case as to the one enjoined. Held, that this was not error.</p>

<p>PROM HENRY.</p> <p>Appeal from Chancery Court at Paris. John Somers, Cb.</p>

<p>PROM SHELBY.</p> <p>Appeal from Chancery Court at Memphis. WM. M. Smith, Ch.</p>

<p>UsuRPAmroir op Ofbice. Bond in appeal. The bond given in case of appeal in an action for usurpation of an office need be only for costs. It is not required for the damages that may be sustained in consequence of the appeal.</p> <p>Code, sec. 3420 and subsequent ones cited, relied on and explained.</p>

<p>1. Rescission oe Contract. Fraudulent, payment to agent in Confederate money. Complainant sold to defendant Johnson, and, by deed, conveyed fifty acres of land to defendant Johnson’s wife, near the city of Memphis, for the consideration of $25,000, of which $15,000 were to he paid down in cash and $10,000 in three years. Deed was executed 7th of May, 1862, at Memphis. Complainant at the time of executing deed informed Johnson she would not agree to take Confederate notes in payment for her land. Johnson gave check of the firm of which he was a member on his banker for the $15,000 to the agent of complainant, R. C. Brinkley, who took check to bank, and was paid $15,000 in Confederate treasury notes. The proof shows the firm of which Johnson was a member had no other funds on deposit at the hank at that time except Confederate money. It also appears that State hank money and other Southern bank money taken by the firm at that time, which currency amounted to one-half of the firm receipts, were not placed on deposit in the bank, hut kept in safe in the business house of Johnson’s firm. 'When informed by her agent some days after the payment of the check of the kind of money he had been paid, complainant expressed great dissatisfaction, and charged that Johnson had defrauded her. The complainant directed Brinkley to take the Confederate money received by him down South, and do the best he could with it. Brinkley, after deducting $2,000 to re-imburse himself and John M. Lea for advances made to complainant for that amount, took the remainder down South, and lent it out to various parties at ten per cent, interest. In the year 1863, complainant applied to R. C. Brinkley for the $10,000 note of Johnson, took the note to Memphis and demanded payment thereof in gold. Johnson, who had purchased a note of complainant for $9,000, offered to discharge his note pro tanto with this note of complainant. Complainant then, as she had also told defendant she would do a few weeks after the execution of the deed, repudiated the whole transaction as a fraud upon her. Complainant is not shown ever to have exercised any act of ownership over the $15,000 of Confederate money — did not make the payment of the $2,000 to Lea and Brinkley, and did not seek to collect notes given down South by those borrowing of Brinkley the $13,000 Confederate money left in his hands after he made the payment to himself of the $2,000. Held, the foregoing facts show the transaction was fraudulent upon the part of Johnson — the payment of the Confederate money was no compliance with the agreement, and the subsequent conduct of complainant did not amount to a ratification, because done in ignorance of her rights in the premises, and under the pressure if not coercive force of the policy of the Confederate authorities in power at Memphis at the time of the execution of the deed and reception of the $15,000 in Confederate money by the agent. The sale of fifty acres is ordered to he rescinded, but the complainant will be charged with the $2,000 which were applied to the payment of her debts, and for the $9,000, or Holladay note of hers, less the illegal interest included therein. The defendants are chargeable with the value of the rents of the property while in their possession and use, and the $10,000 note of defendant is ordered to be surrendered to defendant Johnson.</p>

<p>FROM lauderdale.</p> <p>Writ of error to Chancery Court at Ripley. James EeNtress, Ch.</p>

<p>1. Fraudulent Conveyance. Deed of trust must identify the property conveyed. It is a badge of fraud to give so general a description of the property sought to be conveyed by mortgage or deed of trust, that it is difficult, if not impossible, to distinguish it from other property. The rule of law requires such a description, either general or special, as would enable any one to take the deed, and from its face to designate the property described.</p> <p>2. Same. No limitation to trustee as to when he must wind up the trust is a badge of fraud. The deed of trust contained no limitation as to the time in which the trust should be closed. This is a badge of fraud.</p>

<p>Stamp Act op Congress. Applicable alone to Federal Gowrts. The case of Sporrer v. JEifler, 1 Heis., 633, reaffirmed. This case of Miller v. Morrow, as reported, 3 Col., 587, was never finally decided, a re-hearing having been granted, and the ease continued ever since suspended and undisposed of in the Supreme Court.</p>

<p>Summary Proceedings. All fads necessary to give jurisdiction must appear in judgment In summary proceedings, as well before Justices of the Peace as before Courts of Record, every fact which is necessary to give the Court jurisdiction and to authorize the judgment, must be set out in the judgment as having been made to appear.</p> <p>Case of Burt v. Davidson, 5 Hum., 425, discussed and re-affirmed.</p>

<p>PROM SHELBY.</p> <p>From Chancery Court of Memphis. ¥m. M. Smith, Ch.</p>

<p>1. Pledge ob Pebsoítax Pbopebty. Good, -if possession given pledgee against subsequent registered conveyance of same property. To secure a debt, a slave was pledged, and put into possession of the pledgee. Subsequently the owner of the slave, while the slave was in possession of pledgee, sold and conveyed the slave by registered bill of sale to another. Held, the possession of personal property pledged being given to pledgee, a lien is thereby acquired to secure the debt for which the personal property is pledged, without writing or registration, and a sale of the property so pledged by registered conveyance will transfer the title to the purchaser subject to the prior lien of the pledgee.</p> <p>Cases of Anmdale v. Morgan and Tedford v. Wilson, 3 Head, 312, examined and shown not to be in conflict. The cases differing in this, that possession of the pledged property was given in the one case and not in the other.</p> <p>2. Same. Chancery jurisdiction. The Chancery Court has no jurisdiction to declare void a conveyance of personal property pledged and in possession of pledgee, on the ground that the registered subsequent conveyance is a cloud upon the title of pledgee. The conveyance of the legal title of the owner to the purchaser is not in conflict but subject to tbe lien of the pledgee, and hence the Court of Chancery has no jurisdiction to grant the relief prayed.</p>

<p>1. Contempt Cases. Supreme Gourt has jurisdiction to revise action of inferior Courts m such cases. Tlie Supreme Court being, under the Constitution and the law, the Supreme Court of appeal and revision over all judgments and decrees of inferior tribunals, except in certain cases of discretion, like Ztabeas corpus and the like, has jurisdiction to revise the action of the Chancery Court in cases of contempt for violation of its orders and process.</p> <p>2. Constitutional Law. Act empowering election of Special Judges by the Bar is constitutional. The act of 1870, page 125 of pamphlet acts, is constitutional and the law of the land.</p>

<p>PROM SHELBY.</p> <p>From First Chancery Court of Shelby County. R. J. MORGAN, Ch.</p>

<p>PROM HARDEMAN.</p> <p>Appeal from Chancery Court at Bolivar. J. W. Harris, Ch.</p>

<p>FROM HARDEMAN.</p> <p>Appeal in error from Circuit Court at Bolivar, February Term, 1870. W. P. Bond, J.</p>

<p>Fkattoueent CONVEYANCE. Reservation of exempt articles does not render deed of trust fraudulent. It does not render a deed of trust fraudulent in law to contain the following provision: “ I however reserve the property exempt by law from execution to me as a head of a family.”</p> <p>Case of Sugg v. 'Filman, 2 Swan, 208, not in conflict with this decision. But see case of Overton y. Solinshade & Go., ante p. 683.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Second Circuit Court of Shelby county. Irving Halsey, J.</p>

<p>Bole oe Coubt as to Ukeitigated Cases. Power of Courts to require Attorneys to say whether there is any litigation. The Circuit Judges, under Code, s. 4237, have a right, by rule of Court, to require Attorneys on honor to state whether a cause is litigated or not, when the case is called in pursuance of the order of the Court. This is not in conflict with sec. 2947 of the Code, which is not imperative, but simply directory, in saying causes should be tried in the order in which they are docketed. But this does not preclude the Judges from making such rules for the disposing of business as they may deem expedient, and which are not inconsistent with law.</p>

<p>Partnership Realty. Title to, under act of 1784. Rents and Profits after death of a partner personal property. Realty belonging to partnership vests in the surviving partner absolutely until the partnership affairs are wound up. He may sell, no fraud or collusion being in the case, whether the sale of the realty be demanded for the payment of firm debts or not. Should he sell, the purchaser would get a good title, and the share of the deceased partner in the proceeds of such sale, after the payment of the firm debts, goes to the heir as the real representative under the act of 1784, and not to the executor or administrator. If stock remain on hand after settlement of partnership affairs, both real and personal, the realty goes to the heir and the personalty to the executor or administrator of deceased partner. If rents and profits accrue from the real partnership assets while in the hands of the surviving member of a firm, such rents and profiits are personal property, and any surplus would go to the personal representative of the deceased partner. The heir would only be entitled to the realty or its surplus, if sold, as it stood at the death of his ancestor.</p> <p>Cases cited and discussed: McAlister v. Montgomery, 3 Hay, 95, 97 ; Snod-grass v. Barcroft, 1 Col., 444.</p>