Volume 53 — Tennessee Reports

<p>FKOM M’MINN.</p> <p>Appeal in Error from the Circuit Court, April Term, 1868. Tkewhitt, Chancellor, sitting for the Circuit Judge by interchange.</p>

FROM JEFFERSON. The bill was dismissed on demurrer by the Chancery Court at the April Term, 1869. Jas. P. Swan, Chancellor. The cause was removed to the Supreme Court by writ of error. 1. The only cause of demurrer assigned is, that the note had matured more than seven years before the filing of the bill. The reply is that the note was made in 1854, and is under seal.

FROM JEFFERSON. Appeal in error from' the judgment of the Circuit Court, April Term, 1870. Jas.

EROM COCKE. Appeal in error from the judgment of the Circuit Court, November Term, 1867. Jas. P. Swam, J. insisted that the action of the Circuit Judge on the application of the defendants for a severance is subject to be revised by this court.

<p>1. PRINCIPAL and Surety. Payment. A was the maker, and B the surety, of a note held hy C. Á died, and his administrator having suggested the insolvency of his estate, filed a bill in the Chancery Court to remove the administration to that court and to have a sufficiency of the land sold to pay the debts. An order was made and published requiring creditors to file their claims. Thereupon C filed his note with the Clerk and Master. A portion of the land was sold by decree of the court, and a fund sufficient to pay all debts collected before the war. C did not demand payment of the clerk, and nothing was paid upon his note; but after the war he sued B, the surety. Held, that the surety was discharged.</p> <p>Cases cited: Dulles v. Bead, 6 Yerg., 68; Atkinson v. Bhea, 7 Hum., 60, 61; Cheatham, v. Bmen, 3 Head, 554, 555; Finley v. King, 1 Head, 124; Beeler v. Hall, 11 Hum., 446; Chaffin v. Campbell, 4 Sneed, 191, 192; Henry v. Compton, 2 Head, 552.</p> <p>2. Nil Debit. Plea of. Under this plea may be shown payment, release, or any other matter in discharge of the debt.</p>

FROM MCMINN. Appeal in error from the judgment of the Circuit Court, August Term, 1871. J. B. Hoyl, J. 1. That the payment of the purchase money was a condition precedent to the vesting of the title: citing Houston v. Dyche, Meigs’ R., 76; Ruson v. Dougherty, 11 Hump., 50; Haggerty v. Palmer, 6 Johns. Ch., 437; 2 Kent Com., (3 ed.) 496, 497, 498; Hawthorne v. Bowman, 3 Sneed, 524. 2. Condition must be performed within a reason? able time: citing Story on Con., s. 665. 3.

FROM M’MINN. Appeal from the decree of the Chancery Court, May Term, 1868. D. C. Trewhitt, Chancellor. 1. That the allowance to the guardian was exorbitant. ' 2. That the Chancery Court had full power to correct, revise, modify and surcharge all settlements made in County Courts: citing Code, s. 2493; Stephenson v. Yandel, 5 Hay, 261. 3.

FROM JEFFERSON. Appeal in error from the judgment of the Circuit Court, April Term, 1870. James H. Randolph, J. said that conceding that an agent is not liable to third persons for mere omissions of duty, there being no. privity between them, yet the agent is liable for a positive misfeasance amounting to a conversion; citing 1 Black. Com., 430; Brown v. Howard, 14 Johns., 118; 2 Hill.

FROM M'MINN, Appeal in error from the judgment of the Circuit Court, August Term, 1869. William L. Adams, J. Judgment against the wrong-doer with satisfaction thereof vests the title in him, but judgment without satisfaction does not: citing Williams v. Oley, 8 Hum., 563; Lovejoy v. Murray, 3 Wall., 1; 2 Kent, Marg. p. 388, n. a; 1 Greenl. Ev., s. 533; Knott v. Own-ningham, 2 Sneed, 204; Wállcer v. Fa/rnsworth, MS., Knoxville, 1844. 1.

FROM MCMINN. Appeal from the decree of the Chancery Court, January Term, 1870. D. C. Trewhitt, Ch. insisted that the certificate of probate upon the mortgage is defective and did hot entitle it to registration, citing Fall v. Soper, 3 Head, 485; Johnson v. Walton, 1 Sneed, 258; Code, s. 2042. . Í. That the deed was good between the parties, and as against the personal representatives and heirs, without registration. 2.

FROM M’MINN. Appeal from the decree of the Chancery Court, May Term, 1866. D. C. Trewhitt, Chancellor. 1. Tbe County Court bad no jurisdiction to make tbe sales. 2. Tbe proceedings were void because the husbands of tbe married women were not parties. 3.

FROM M’MINN. Appeal in error from the judgment of the Circuit Court, August Term, 1867. Wi. L. Adams, J. insisted that church members were beneficiaries and interested, and bence incompetent: citing Code, ss. 4003, 1509; Williams v. Godfrey, 1 Heis., 299. 2. It is not necessary to prove actual force in this class of cases: citing Gass v. Newman, 1 Head, 136; 9 Yer., 96; 1 Col., 204; Id.. 482; 11 Hum., 186.

FROM JEFFERSON. Appeal from decree of the Chancery Court, April Term, 1871. H C. Smith, Ch. 1. That the Schedule of the Constitution of 1865 made void the act of May 6, 1861, under which the execution was issued and the levy made, and so rendered said levy null and void. 2. Decree was not supported by the proof. 1. The Schedule of 1865 did not have the effect claimed. Besides, this Schedule was repealed by the Constitution of 1870. 2.

<p>FROM GRAINGER.</p> <p>Writ of error to the Chancery Court. S. C. Smith, Ch.</p>

<p>FROM GRAINGER.</p> <p>Appeal from the decree of tbe Chancery Court, April Term, 1868.</p>

<p>Costs. Witness. Party. A party to a suit is not entitled to compensation for bis attendance as a witness.</p>

<p>1. Constitutional Law. Obligation of Conti-acts. The obligation of a contract is two-fold: 1. Moral. 2. Legal. It is only the latter with which legislatures and courts have to deal. And it is the legal compulsion or obligement which enters into a contract when it is made and forms a part of it that constitutes the obligation protected by the Constitution; and, as essential to this protection, the Constitution intends that the legal means of enforcing contracts shall not be impaired, weakened, or rendered less effective.</p> <p>2. Same. Same. Remedy. The Legislature has complete control over the form of the remedy and mode of proceeding, but can in no case, directly, nor indirectly, if such be the purpose of the enactment, render the remedy essentially less effective for the enforcement of the obligation than when the contract was made.</p> <p>3. Same. The Act of January 6, 1861, providing for a stay of execution on all judgments and decress in courts of record and before justices of the peace impairs the obligation of contracts entered into before its enactment, and is unconstitutional and void.</p> <p>Case overruled: Farnsworth v. Vanee, 2 Col., 108.</p> <p>Case approved: Townsend v. Townsend, Peck, 1.</p>

FROM GRAINGER. Appeal from the decree of the Chancery Court, April Term, 1867. S. J. W. Ltjckey, Ch. 1. Current bank notes are such as are currently received as money at full value, or par. 2. No particular kind of notes, as Planters Bank, or Union Bank, is stipulated for, and this fact distinguishes the_ present from other Tennessee cases: citing, as persuasive, the remarks of Turley, J., in Orutehfield v. Robins, 5 Hum., 18, and Judah v. Harris, 19 Johns., 144. 3.

<p>1. Trespass De Bonis Asportatis. Plea not guilty. Under this issue, evidence that the defendants were acting under the orders of a military commander was irrelevant, and it was error to admit it.</p> <p>2. Same. Same. This evidence could only have been introduced by the defendant under a special plea of justification.</p> <p>3. Same. Sarnie. If the evidence had been brought out by the plaintiff, the defendants might have relied on it under their plea of “ not guilty.”</p> <p>Case cited: Smith v. BraneUm, 1 Heis., 52.</p>

<p>PROM M’MINN.</p> <p>Appeal from the decree of the Chancery Court, Adjourned Term, December, 1869. D. C. Trew-hitt, Ch.</p>

<p>PROM UNION.</p> <p>Appeal in error from the judgment of the Circuit Court, February Term, 1869.. James P. Swann, J.</p>

<p>FROM BRADLEY</p> <p>'Appeal in error from the judgment of the Circuit Court, May Term, 1871. D. M. Key, J., sitting by interchange.</p>

<p>Set-off. Damages for trespass not subject of. A sued B and C in an action of debt, on a note made by them apparently as joint principals. Defendants pleaded nil debit and payment, and gave notice of a special defense, to the effect that the payee of the note, while' the- note was in his hands and after it was due, went to the house of B, “ who is principal and C only being.surety thereto,” and drove away and took possession of certain live stock which “satisfied and overpaid plaintiff’s demand.”</p> <p>Held, said special defense should have been stricken out on motion.</p> <p>1. Because it is double.</p> <p>2. Because it is attempted thereby to make in a court of law the issue, whether a deferidant who appears on the face of a note as principal is in fact such or only a surety.</p> <p>3. Because it is attempted thereby to set off against a debt unliquidated damages for a trespass. Contracts and trespasses can not be liquidated by set-off.</p> <p>Cases cited: Magsdale v. Buford, Bh’r, 3 Hay., 191; Allen v. McNew, 8 Hum., 57; Turbemlle v. Broach, 5 Col., 272.</p>

PROM RHEA. Appeal in error from the judgment of the Circuit .Court, November Term, 1869. W. L. Adams, J. insisted that a levy-on personal property vests the title to the same in the officer, and is pro tanto a satisfaction of the debt therefore, after levy, no exchange of property can be made; citing 3 Hay., 144; 3 Hum., 419; 3 Yerg., 582.

FROM RHEA. Appeal from the decree of the Chancery Court, March Term, 1871. D. M. Key, Ch. 1. The relief granted by the Chancellor tyas not only not prayed for, but is in conflict with the special prayer and object of the bill. 2. The Chancellor was satisfied that the case set up in the bill was not made out by proof, and the answers disclose no equity upon which to base a decree, therefore no relief can be given: citing 4 Sneed, 624, 638; 8 Hum., 230.

FROM BRADLEY. Appeal in error from the judgment of the Circuit Court, September Term, 1870. D. M. Key, J., sitting by interchange. 1. The receipt should have been read in the light of the other facts agreed on, and these would make it appear that it was not a special contract to deliver to the consignee: citing 2 Red. Rail., 104 and note; Id., 107, n. 14; Id., 109, s. 163; E. Tenn. & Oa. E. i?. Co. v. Nelson, 1 Col., 276; 1 Red. Rail., 101, n. 9. 2.

<p>FROM GRAINGER.</p> <p>Appeal from the decree of the Chancery Court, April Term, 1870.</p>

<p>1. Arbitration and Award. An award is a nullity unless it strictly conforms to the submission, and the judgment is a nullity unless it conforms to the award.</p> <p>2. Same. An award must he final in all cases, and although it may he good when it embraces a part only of the matters submitted, yet for that part it must be final.</p>

PROM SCOTT. Appeal in error from the judgment of the Circuit Court, June Term, 1860. E. L. GardeNhire, J. 1. The declarations of Byrd were admissible: citing Green. Ev., ss. 772, 774. 2. The doctrine of lis pendens applied: citing Shelton v. Johnson, 4 Sneed, 672. insisted that the doctrine of lis pendens would not apply. 1. Unless the suit whose pendency is relied on was for the specific property now in controversy. 2.

<p>Attobstey and Client. Fees. In a contest between attorney and client with regard to fees, the onus is on the attorney to show that the contract was free from all fraud, undue influence and exorbitancy of demand.</p> <p>Case cited: Planters Bank v. Jlornberger, 4 Col, 578.</p>

<p>FROM MARION.</p> <p>Appeal in error from the judgment of the Circuit Court, July Term, 1867. W. L. Adams, J.</p>

<p>PROM MARION.</p> <p>Appeal in error from the judgment of the Circuit Court, November Term, 1870. J. B. Hoyl, J.</p>

FROM ANDERSON. Appeal in error from the judgment of the Circuit Court, July Term, 1868. L. C. Hour, J. cited, as to the admissibility of evidence to show what took place before the grand jury when the testimony was given on which the true bill was found; 1 Greenl.

<p>PEOM KOANE.</p> <p>Appeal in error from the judgment of the Circuit Court, December Term, 1869. E. T. Hall, J.</p>

<p>FROM ROANE.</p> <p>Appeal in error from the judgment of the Circuit Court, April Term, 1870. E. T. Hall, J.</p>

<p>1. Costs in Cbiminai, Cases Against a County. Certificate of District Attorney and Presiding Judge. If the District Attorney and the presiding Judge can, under any circumstances, in one certificate certify to the correctness of the bills of costs in several cases, certainly they could not do so without specifically setting forth in the certificate the names of the cases in which the costs are certified.</p> <p>2. Same. Same. Mandamus. And when the County Judge refused to issue a warrant for any part of the costs where many hills were certified to by one certificate, and the cases were not therein specified, and a mandamus was sued out to force him to issue the warrant, held, the petition for mandamus must be dismissed.</p>

FROM HAMILTON. Writ of error to the Law Court of Chattanooga, February Term, 1870. W. L. Adams, J. 1. The original petition and the proceedings thereon were void, the steamer being already under attachment by another creditor: citing Code ss. 3557, 3558. 2. When defendants in error made themselves parties to the pending suit they were barred by the statute of limitations: citing Code s. 1991. 3.

<p>FROM MARION.</p> <p>Appeal in error from the judgment of the Circuit Court, November Term, 1868. W. L. Adams, J.</p>

FROM HAMILTON. Appeal in error from the judgment of the Law Court of Chattanooga, November Term, 1870. W. L. Adams, J. 1.

PROM MARION. Appeal from tbe decree of the Chancery Court, May Term, 1871. J. B. Hoye, sitting by interchange, Ch. 1. The demurrer was not well taken: citing Seay v. Hughes, 5 Sneed, 155. 2. That the original conveyance to Carrol is void, is res adjudieata. The defendants can not go behind the decree in the Elizabeth White case: citing JEstell v. Taul, 2 Yer., 467; Hurst v. Means, 2 Sneed, 546. 3.

FROM HA MINTON. Appeal in error from the judgment of the Law Court of Chattanooga, November Term, 1870. John B. Hoyl, J. insisted that the Court had no power to set aside an order made at a previous term, and commented on Code, ss. 2872, 2877, 2878. 1. Immaterial pleas may be stricken out at any time, whether filed by order of the court or not: citing Code, s. 2882; 1 Head, 219; 8 Hum., 26; 1 Col., 53. 2.

<p>1. GUARDIAN Bond. Release of surety. The surety on a guardian’s bond is not exonerated from liability unless the record of the County Court shows that the application by the surety to be released was made in one of the two modes designated by the statute, and that a new bond with satisfactory «ecui-ity had been executed and accepted.</p> <p>Case cited : Hiclterson v. Price, 2 Heis., 623.</p> <p>Code cited: ss. 3673, 3675.</p> <p>2. Same. Compound interest. The guardian in this ease was not charged compound interest, although the fund had been appropriated to her own use no intention to commit a fraud appearing.</p>

<p>FROM KNOX.</p> <p>Appeal in error from the judgment of the Circuit Court, February Term, 1867. E. T. Hall, J.</p> <p>cited, 1 Greenl. Ev., s. 161; 1 Phillips’ Ev., p. 88. Upon the question of damages he cited, 2 Greenl. Ev., s. 253; 2 Bl. Com., 438; 1 Meigs’ Dig., s. 715.</p>

<p>FROM KNOX.</p> <p>Writ of error to the Circuit Court, June Term, 1868. E. T. Hall. J.</p>

<p>1. Certiobari. Seasons assigned for failing to appeal. A petition for a certiorari shows sufficient ground for not appealing which states that the defendant claimed to be a special deputy internal revenue collector of the United States, and that one C attended the trial, and by threats and menaces and statements that any one who should become petitioner’s surety on the appeal bond would be guilty of a high crime against the United States, deterred petitioner’s friends from going on his bond.</p> <p>2. Same. A petition for certiorari shows merits which states that petitioner’s property was seized by the defendant, claiming to be a special deputy internal revenue collector, to satisfy a tax assessed against a third person, and that the defendant was not in fact a lawful officer.</p> <p>3. Same. Motion to dismiss. It is the duty of the counsel to state upon the record the grounds upon which he moves to dismiss a petition for eer-tiorari, and it is the duty of the court to put upon the record the ground upon which the petition is dismissed.</p> <p>4. Same. Same. The ./¡ai of the Judge ordered the writs to issue upon petitioner’s giving bond and security. The petioner in fact filed the pauper’s oath. The ground of the motion to dismiss was not specified. Held, the court are not authorized to presume that the motion rested on this ground; besides, a failure to notify petitioner of any objection to the pauper’s oath at the time was a waiver of the objection, ' and it is too late to make it in the Supreme Court.</p>

<p>Husband and Wife. Evidence. Husband and wife are not competent witnesses for or against each other under the acts of the Legislature of March 13, 1868, and February 24, 1870</p>

<p>EROM HAMILTON.</p> <p>Appeal in error from the judgment of the Law Court of Chattanooga, June Term, 1870. W. . L. Adams, J.</p>

<p>1. Common Cabbies. Extraordinary emergency. A common carrier is not bound to anticipate and provide against an extraordinary emergency, as an unprecedented flood.</p> <p>2. Pbactice. A party can not object in the Supreme Court to a charge because not sufficiently specific, when he has failed to ask for additional instructions. The Supreme Court will not reverse, unless positive error appears in the record.</p> <p>See Foster v. Collins, ante ; McQee v. Smith, post.</p>

<p>1. Common Carrier. Loss occurring through delay in transportation. A common carriel' who has been guilty of no negligence, is not liable for delay in the transportation of goods occasioned by an accident not inevitable, if the goods are finally safely delivered.</p> <p>2. Same. Goods shipped at owner’s rish. A common carrier is not released from damages occurring through his own negligence, by stipulating that the goods are shipped at the “ owner’s risk.” At most this would only protect him against loss occurring from the ordinary and known risks of transportation.</p>

FROM KNOX. Appeal in error from tbe judgment of the Circuit Court, February Term, 1869. E. T. Hall, J. 1. It was competent to- show by parol.-the collateral agreement that the notes should be' held for nothing if defendants compromised with all their creditors: oiting 1 Greenl. Ev., s. 302. 2.

<p>Tenants in Common. Quit claim deed made in 1836 without words of inheritance. A died in 1809, leaving B and C as his heirs at law. In 1836, B executed to C a quit claim deed for Ms entire interest in the land descended from A, hut failed to use any words of inheritance. After B’s death, his heir brought ejectment for the moiety inherited by B. Held, under the act of 1784, c. 22, ss. 2 et seq., as amended’by the act of 1796, c. 14, B & C took as tenants in common and not as coparceners. The quit claim deed, therefore, carried only an estate for B’s life, and at his death his heir was entitled to recover.</p> <p>Per Nicholson, C. J. A technical rule of law which by a long line of decisions has become a rule of property, is as binding on the court as a legislative enactment.</p>

FROM KNOX. Appeal in error from the judgment of the Circuit Court, February Term, 1871. E. T. Hall, J. 1. The defendant craved oyer of the note, and the record does not show that it was granted him. It was error to enter judgment by default before granting oyer. 2.

EROM HAMILTON. Appeal in error from the judgment of the Circuit Court, March Term, 1871. J. B. Iíoyl, J. 1. The administratrix had the right to abide by the judgment of the tribunal selected by her intestate, and in fact did so: citing Code, s. 3032. 2. The heirs were regularly before the court, and could have pleaded to the sei. fa. if so advised. It was error therefore to quash the sei. fa. and refuse to order a .sale of the land levied on: citing Code, s. 3533.

<p>Pbincieai, and Agent. Ratification. A stored corn with B, who, as A alleged, sold it without authority. All of the purchase money except the amount of a purchase made by C, was tendered to A by B, and at the same time A was informed that all of the corn had been sold ; no special mention, however, was made of the sale to C. A accepted the money tendered. Held, a ratification of all the sales, including that to C.</p>

.FROM KNOX. Appeal in error from the judgment of the Circuit Court, July Term, 1871. E. T. Hall, J. cited Gird-ner v. Stephens, 1 Heis, 280. insisted that the so-called plea of the statute of limitations was void for uncertainty, and was in fact no plea at all, and was properly stricken out on motion.

EROM KNOX. Appeal in error from the judgment of the Circuit Court, June- Term, 1868. E. T. Hall, J. 1. That the plea was a good plea of the statute of limitations. 2: That in view of the conflict of evidence, it was error, without special instructions, to tell the jury that they might allow any amount of damages not exceeding that claimed. An anonymous brief for the defendant in error discussed tbe evidence fully, and insisted that the verdict was clearly supported by it.

PROM MARION. Appeal in error from the judgment of the Circuit Court, March Term, 1870. W. L. Adahs, J. 1. Section 3527 of the Code has reference to nonresident and not absconding defendants. 2. Although there was no positive evidence that the defendant appeared at the trial, the court might well infer from all the proceedings, and especially the appeal bond, that he was present. cited and relied on Code, s. 3527.

<p>1. Lost Deposition: How supplied. It appearing from the bill of exceptions that a deposition had been lost, the cause was remanded to the Circuit Court to have the same supplied. The Circuit Judge ordered the deposition to be retaken on notice. The witness was asked to “state the substance of her former deposition, giving as nearly as possible the exact language.” The deposition was signed, sworn to, certified, and returned to the Circuit Court. The transcript of these proceedings, together with the deposition, was returned .to the Supreme Court to form part of the record.</p> <p>Held: 1. The proceedings were in every regard regular, and the deposition was properly supplied.</p> <p>2.An appeal or writ of error was not necessary to bring these proceedings to the Supreme Court. The legal effect of the order remanding was simply to retain the cause suspended in the Supreme Court until the lost paper should be supplied.</p> <p>2. Constitutional Law. Statute of Limitations. After the bar of the statute of limitations has become complete, the right to rely on it, can not be taken away by a constitutional convention.</p> <p>3. Juror. Misconduct of. After the evidence was closed and before the verdict was returned, the plaintiff upon two several occasions took two, of the jurors into a saloon and “ treated them.” There was a verdict for the plaintiff. Held, a new trial must be granted.</p> <p>Per Nicholson, C. J. Jury trial is worse than a farce, if such corrupt practices are tolerated by allowing verdicts so procured to stand.</p> <p>Cases cited: Oirdner v. Stephens, 1 Heis., 280; Davidson v. Manlove, 2 Col., 346 ; Sexton v. Leliemre, 4 Col., 11.</p>

FROM HAMILTON. Appeal in error from the judgment of the Circuit Court, July Term, 1871. J. B. Hoyl, J. 1. The doctrine of recoupment is well settled in this State: citing Overton v. Phelan, 2 Head, 445; Porter v. Wood, 3 Hum., 56; Whittaker v. Pullen, 3 Hum., 466. 2. Admitting that the damages which may be recouped must arise out of the transaction or contract on which the suit is brought, it is insisted that this case comes within the rule.

FROM HAMILTON. Appeal in error from the judgment of the Circuit Court, July Term, 1871. J. B. Hoyl, J. 1. In actions of this character the denial of the account under oath is a condition precedent to the introduction of any proof by the defendant. Such denial is in the nature of a sworn plea, and even in proceedings before a magistrate should be in writing: citing Code, s. 3780; Neville v. Northeutt, 7 Col., 298. 2.

PROM KNOX. Writ of error to the Chancery Court, January Term, 1869. Seth J. W. Luckey, Ch., sitting by interchange. 1. The equity of Burem’s bill lies in the allegation that he was prevented from making his defense by circumstances which, in the eye of a court of equity, entitles him to a new trial. The matters relied on to constitute an estoppel, if effective for any purpose, are so only to estop Burem from alleging a fact which would give the Chancery Court jurisdiction.

FROM MORGAN. Appeal in error from the Circuit Court. 1. Mere praise or puffing of one’s goods does not hold the vendor as warrantor: 10 Hum., 580; 1 Pars. Con., 5th ed., 579-80, notes l. m. 2. Where there is no express warranty, or where there is no fraud, the purchaser buys without a warranty : 1 Pars. Con., 5th ed., 578. 3. It was error in the court to charge that where one sells goods for a special purpose, he impliedly warrants that they are fit for that purpose: 1 Pars.

<p>FROM HAMILTON.</p> <p>Appeal in error from the judgment of tbe Circuit Court, March Term, 1871. J. B. Hoyl, J.</p> <p>Nash H. Burt and Vandyke, Cooke & Vandyke for defendants in error.</p>

FROM KNOX. Appeal in error from the judgment of the Circuit Court, February Term, 1871. E. T. Hall, J. 1. If the subject-matter of the publication is blasphemous or defamatory of an individual, it can not be privileged: citing Townshend on S. and L., ss. 90, 91, 92, 229, 288, 289, 290; Starkie on Slander, 263. 2.

FROM HAMILTON. Appeal from the decree of the Chancery Court, June Term, 1870. D. C. Tjrewhitt, Chancellor. 1. The demurrer is a nullity: citing Kirkman v. Snodgrass, 3 Head, 371; 1 Heis., 240. 2. The bill does not disclose usury, and there was in fact none in the transaction: citing Turney v. State Bank, 5 Hum., 407; Hamilton v. Moore, 7 Hum., 35; Stuart v. Mechanics Bank, 19 Johns, 509.

FROM HAMILTON. Appeal in error from the judgment of the Circuit Court, March Term, 1871. John B. Hoyl, J. 1.The County Court had jurisdiction of the subject-matter of the petition; the statements complained of as libelous were pertinent to the relief sought, and no malice, in fact, is shown. In such case the statement is privileged: citing 1 Starkie on Slander, pp. 213, 228; Townshend on Slander, ss. 220, 226; 2 Meigs’ Dig., s. 1251; 4 Sneed, 111; 2 Hill, on Torts, 363-4. 1.

FROM HAMILTON. Appeal in error from the judgment of the Circuit Court, July Term, 1871. J. B. Hoyl, J. 1. The act under which the change bills sued on were issued was passed December 17th, 1861, was in aid of the rebellion and is void: citing Texas v. White and others, 7 Wall., 700. 2. These bills come within the prohibition of the 14th amendment of the Constitution of the United States. 3.

FROM KNOX. Appeal from the decree of the Chancery Court, April Term, 1869. O. P. Temple, Ch. An anonymous brief for the complainants, insisted; that it clearly appearing that the annual rents received exceeded the purchase money, the property was actually redeemed within the two years, this result necessarily arising from a proper construction of sec. 2135 of the Code. 1. The title has become absolute: citing Reynolds v. Baker, 6 Col., 227. 2.

FROM KNOX. Appeal from the decree of the Chancery Court, April Term, 1868. O. P. Temple, Ch. 1. The demurrer is fatally defective in form, failing to specify the grounds relied on. 2. Subsequently acquired property is, in equity, subject to be mortgaged: citing 2 Red. on Rail., 538, Cove Tr. v. Pennoch, 23 How., 117; Gallería Railway v. Munzies, 26 Ill., 121. 3.

FROM HAMILTON. Appeal from the decree of the Chancery Court, January Term, 1871. J. B. Hoyl, J, sitting by interchange. 1. Chancery Court has power in cases of this character to enjoin the erection of a nuisance, or abate it when erected: 2 Story’s Eq., ss. 925, 926, 926a,-Millard’s Eq., 392; Wall v. Cloud, 3 Hum., 181, 185; Vaughn v. Law, 1 Hum., 123; 2 Hum., 169; Clack v. White, 2 Swan, 540.

<p>Writ of Error. Coram Nobis. Affidavit made by Agent. An affidavit to the truth of a petition for a writ of error coram nobis and supersedeas, made by an agent, is a nullity unless it appears in the petition or affidavit that the facts lie peculiarly within the knowledge of said agent, or other good cause he shown for the employment of an agent.</p>

<p>Payment to Bank oe Tennessee in the South. Confederate money. A payment in Confederate money of a debt due to the Bank of Tennessee, made in the South after the removal of the assets of, the Bank from Tennessee, is not invalidated by the fact that such removal was unlawful.</p>

<p>Statute op Limitations op Two Yeaes. An administrator holds the funds of the estate of his decedent as an express trustee, hut upon his death his personal representative does not receive them as an express trust and may avail himself of the bar of the statute of two years.</p>

FROM KNOX. Appeal from the decree of the Chancery Court, December Term, 1867. O. P. Temple, Ch that, complainants had notice of the fact, is no ground of defense as . between principal and agent:, citing Story on Agency, s. 217; 7 How., 57. 2. If the complainants had obtained the bond toi-tiously, the defendant might avail himself of the fact as a defense.

PROM KNOX. Appeal from the decree of the Chancery Court, July Term, 1861. Seth J. W. Luckey, Ch. 1. Complainant has a lien upon the house and lot to the full extent that the ’ improvements made by him have enhanced the permanent value of the land: citing Rhea v. Allison, 3 Head, 177; Ridley v. MeNairy, 2 Hum., 174; Herring v. Pollard, 4 Hum., 362; Matthews v. Davis, 6 Hum., 324; 6 Paige, 390. 2.

PROM MONROE. Appeal in error from the judgment of the Circuit Court, September Term, 1871. E. T. Hall, J. 1. The Circuit Judge erred in permitting the defendant to file an affidavit of denial of the proven account after the cause was called for trial. 2. Mrs. Young was not the attorney of the plaintiffs, nor the agent 'of their attorney.

<p>FROM CAMPBELL.</p> <p>Appeal in error from the judgment of the Circuit Court, May Term, 1871. James H. RANDOLPH, J.</p>

PROM CARTER. Appeal from the decree of the Chancery Court. ****** * * The administration of insolvent estates in Chancery is regulated by Code, s. 2362 to 2397. It may be conceded that the statute of two years in favor of personal representatives, applies as well to insolvent estates as any other, and that the filing of an insolvent bill does not affect this bar. This is clearly to be inferred from s. 2376 and 2378 of the Code.

FROM KNOX. Appeal from the decree of the Chancery Court, March Term, 1871. O. P. Temple, Chancellor. 1. The promise of Price to deliver the goods specified to Joseph, the auctioneer, to be sold for the benefit of complainants, in consideration of their' forbearing to sue, amounted to a sale of the goods. The legal title was vested in Joseph for the benefit of complainants. 2.

FROM KNOX. Appeal from the decree of the Chancery Court, January Term, 1870. O. P. Temple, Chancellor. 1. The codicil did not revoke the provisions of the original will in favor of the children of A. R. Rodgers: Brown v. Cannon, 3 Head, 355; 1 Jarman, 160; Redf. on Wills, p. 362, s. 34 and note. 2.

PROM HAWKINS. Appeal from tbe decree of the Chancery Court, September Term, 1868. S. J. W. Luckey, Ch. 1. The plea was properly overruled. It avers, as a conclusion of law, that the defendant was not a non-resident within the meaning of the attachment laws, and neither gives the date of his leaving nor of his return to the State, nor other facts necessary to sustain the conclusion: citing 1 Chitt. PI, 216, 217; Story’s Eq. PL, ss. 665, 666. 2.

PROM HAWKINS. Appeal from the decree of the Chancery Court, May Term, 1871. H. C. Smith, Chancellor. 1. Complainant having been prevented from dissenting within the time prescribed, in consequence of a statement made by the executor, a lawyer, is entitled to relief in equity. She has been deprived of her right under circumstances which the law would reghrd as constituting fraud, although there was no malus dolus: citing Smart v. Waterhouse, 10 Yerg., 94. 2.

FROM MONROE. Appeal in error from the judgment of the Circuit Court, January Term, 1870. E. T. Hale, J. 1. Upon a motion against an officer for failing to return an execution, the plaintiff, if successful, may recover the amount of the judgment. But this is purely statutory and is confined. to cases of motions. 2.

PROM SEVIER. Appeal in error from the County Court. cited Harrell v. Harrell, 4 Col., 377. that the case of Harrell v. Harrell could not be maintained on principle, and should be overruled. In all other cases where the husband was clothed with the legal title, but- having no beneficial interest, our courts have uniformly held that the widow is not entitled to dower.

<p>FROM HAWKINS.</p> <p>Appeal from the decree of the Chancery Court, March Term, 1870. H. C. Smith, Ch.</p>

FROM GREEN. Appeal in error from the judgment of the Circuit Court, February Term, 170. E. E. Gilrenwaters, J. 1. The court had no right to make a rule on the plaintiff to increase the bond. The Code contemplates a bond in double the value of the property, and such bond was given. The bond required was to cover damages for the detention of the property, and such bond is not required by law. 2. The rule was improperly made absolute.

<p>Appeal from the decree of the Chancery Court, September Term, 1870. H. C. Smith, Ch.</p>

FROM KNOX. Appeal from the decree of tbe Chancery Court, July Term, 1861. Seth J. W. Luckey, Ch. All contracts with persons of unsound mind, injuriously affecting their property or rights, are fraudulent and void: Talley’s Ex’rs v. Sherly Smith, 1 Col., 291; 1 Swan, 474. Insanity is not to be inferred from the opinions of witnesses, but from the facts and circumstances stated by them: Gibson v. Gibson, 9 Hum., 329.

<p>Public Eoads. The County Court 'has no power to assign the inhabitants of an incorporated town to work on the public roads outside of the corporate limits.</p> <p>Case cited : State v. Mayor, &e., 3 Head, 263.</p>

FROM HAMILTON. Appeal in error from the judgment of the Circuit Court, July Term, 1871. JOHN B. Hoyl, J. insisted that on the trial of a motion to dismiss a petition for a eer-tiorari, nothing but the face of the petition can be looked to: citing Stoddart v. Fowlkes, 2 Swan, 537.

FROM HAMILTON. Appeal in error from the judgment of tbe Circuit Court, June Term, 1869. William L. Adams, J. “1.

<p>PROM HAMILTON.</p> <p>Appeal in error from the judgment of the Circuit Court, March Term, 1871. John B. Hoyl, J.</p>

<p>PROM MONROE.</p> <p>• Appeal from the decree of the Chancery Court, June Term, 1868. O. P. TeMPLE, Chancellor.</p>

<p>Pleading. Declaration. A declaration setting forth that the defendant “on the 8th day of January, in the year of our Lord 1868, by his certain account for work and materials, rendered and proven, and now shown to the court, became liable to said plaintiff in the sum of $178.18, including lawful interest,” is not good either at common law or under the Code.</p>

PROM CAMPBELL. Appeal in error from the judgment of the Circuit Court, January Term, 1871. James H. RANDOLPH, J. The charge of the Judge that the title to the land could not be inquired into in this form of action is erroneous. If trees are cut down on plaintiff’s land and made into rails, replevin lies for them: 1 Ch. PL, 163, n 2; 8 Bour. Bac. Ab., 550; 2 Rawl., 423; 17 John., 116.

FROM MARION. Appeal in error from the judgment of the Circuit Court, March Term, 1871. J. B. Hoyl, J. 1. Plaintiff in error was entitled to notice to quit before suit: citing Shepherd v. Cummings, 1 Col., 354. 2. Evidence of an express contract is essential: citing Code, s. 3344; Bird v. Fannon, 3 Head, 12. 3. The description of the premises is fatally defective : citing Clements v. Clinton, M. & Y., 198. 1.

<p>Sale. Condition precedent. A suit was begun in the Chancery Court by original attachment to recover damages for the breach of a contract by which R sold to H and M the crop of corn growing on his farm at a specified price per bushel, one half of the price to be paid by the 1st of October, and the vendees to begin to gather the corn by the 1st of November. In September R sold some of the corn to a third person. Before the 1st of October H and M paid B an amount less than one half of the purchase money. Some days after the 1st of October B set aside for H and M as much corn as the amount paid by them would purchase at the contract price, and sold the rest to third persons. “ There was no demurrer to the jurisdiction.”</p> <p>Held, 1. The court had jurisdiction.</p> <p>2. The provision that one half of the purchase money should be paid the 1st of October was not a condition precedent to the vesting of the title in H and M; and if it was, they were excused from paying the entire amount by the previous sale of a portion of the corn to third persons.</p> <p>Cases cited: McClure v. Williams, 5 Sneed, 718-721; Williams Y. God-win, 4 Sneed, 558.</p> <p>3. Measure of doomages. The measure of damages is the difference between the contract price and' the market value on the premises at the time when the corn conld ha-re heen gathered with ordinary diligence.</p>

<p>1. Money Sent by Mail. When not a payment. A remittance by mail will not be presumed a payment in the absence of proof that the creditor requested such remittance, or that it was warranted by the course of business.</p> <p>2. Chancery Practice. Evidence. Answer! weight of. When the bill and answer are both sworn to, the denial by the defendant of an allegation as to which he could have had no personal knowledge, would at most only make an issue. But when the denial is made from his own knowledge it is conclusive, unless contradicted by at least one witness.</p>

PROM HAMILTON. Appeal from the judgment of tne Circuit Court, July Term, 1871. J. B. Hoyl, J. The Western & Atlantic Railroad Company, of which the State of Georgia was the sole owner and stockholder, was • by its charter authorized to construct and operate a line of railroad from Atlanta, Georgia, to Chattanooga, Tennessee. Without any authority in its charter it undertook to run in connection with its road' a line of steamers on the Tennessee river.

<p>EROM KNOX.</p> <p>Appeal from the decree of the Chancery Court, Special May Term, 1871. M. L. Hall, J., sitting by interchange for the Chancellor.</p>