Volume 54 — Tennessee Reports

FROM WILLIAMSON. From the Circuit Court, November Term, 1869. A. M. Hughes, J. The undertaking of the sureties was a joint obligation, and under the Code all joint obligations are joint and several. Under sections 2789 and 3583, the original plaintiff had the right to move against the Sheriff and any one or more of the sureties then “in existence,” leaving them to settle their rights inter sese.

<p>FROM ROBERTSON.</p> <p>From tbe Circuit Court, June Term, 1871, Jahes E. Rice, J.</p> <p>The following is the judgment by motion as it appears in the transcript.</p> <p>“Geo. R. Gunn, administrator of L. W. Willis, deceased, v. B. EL Boone, E. T. Hart, D. S. Featherston, D. P. Braden, W. C. Gossett, J. W. Davis, and Jno. Crouch.</p> <p>Came the plaintiff and the defendant B. H. Boone, and on his motion it appearing to the Court that on the 6th day of September, 1869, the plaintiff was qualified in the County Court of Robertson county, Tennessee, as the administrator of L. W. Willis, deceased, and on the 21st day of December, 1870, he suggested the insolvency of the estate of said deceased to said County Court, and an order and publication were duly made of said insolvency, requiring all creditors of said deceased to file their claims with the Clerk of said Court on or before the 21st day of June, 1871; and it further appearing to the Court that the defendant executed and acknowledged a bond before the County Court of Robertson county, Tennessee, on the 4th day of April, 1870, in the sum of $25,000, payable to the State of Tennessee, with condition to be void if the defendant B. H. Boone, Sheriff of Robertson county, should well and truly execute and due return make of all process to him directed, and pay all fees and sums of money by him received or levied by virtue of any processes, into the proper office, or to the person entitled; it appearing further that on the 11th day of March last, the Clerk of this Court issued an execution, directed to the Sheriff of Robertson county, commanding him to make of the property of W. L. Baker, the sum of $261.70, and costs thereon endorsed, to satisfy a judgment for that sum obtained in the Circuit Court of Robertson county, on the 8th day of February, 1871, in favor of the plaintiff as administrator of L. W. Willis, deceased, against the said W. L. Baker; and it appearing further, that said execution was delivered to said Sheriff, W. H. Boone, on the 11th day of March, 1871, and that he has failed to pay over the money collected, and to make sufficient return of said execution, it is therefore considered by the Court that the plaintiff recover of the defendants the sum of $267.15, the amount of the judgment, and interest thereon to the present time, and $33.38, being 12|- per cent, damages thereon, making the sum of $300.53, and also the costs of this motion, for which let execution issue.</p> <p>The defendants moved for a new trial and in arrest of judgment, which motions were overruled by the' Court. The defendants then prayed an appeal to the next term 'of the Supreme Court of Tennessee, at Nashville, which is granted upon their entering into bond and security therefor according to law.”</p> <p>The motion was as follows:</p> <p>“Geo. R. Gunn, administrator, etc., v. B. H. Boone, E. T. Hart, D. S. FeatRerston, D. P. Braden, W. C. Gossett, J. Davis, and Jno. Crouch.</p> <p>The plaintiff moved the Court for judgment against the defendant, for failure of the defendant, B. H. Boone, Sheriff of Robertson county, to pay over money collected on, and to make a sufficient return of, an execution in favor of the plaintiff, as administrator of L. W. Willis, deceased, and against W. L. Baker, for $261.70, and $20.65 cost, issued on a judgment rendered at the February Term of this Court, 1871, on the 11th day March last, directed and delivered to said Sheriff, and returnable to the present term of this Court.”</p> <p>There was a bill of exceptions tendered by the defendants in the case, in which the Sheriff’s bond and other evidence were set forth.</p>

PROM WILLIAMSON. From the Circuit Court, November Term, 1868. W. H. S. Hill, J. In March, 1866, Florence Whitley obtained a judgment in the Circuit Court against Charles Duff. In July, 1866, she brought an action of replevin against him, before a Justice for a cow, in which, on appeal, judgment was rendered by the Circuit Court against her and Charles Wells, with whom she had intermarried pending the appeal, for the value of the cow, with damages for its detention.

<p>PROM ROBERTSON.</p> <p>From the Chancery Court, May Term, 1869, Chas. G. Smith, Ch.</p> <p>cited John .v. Tate, 7 Hum., 388; McCloud v. Chiles, 1 Col., 248; Porter v. Blahemore, 2 Col., 556; lb. 546; 1 Sneed, 578; 6 Hum., 33; 1 Story’s Eq. Jur., s. 169; 2 lb. s. 1058, etc., 3 Sneed, 157.</p> <p>cited Cochreham v. Kirpatrick; 1 Heis., 327; Bridgewater v. Pride, 1 Sneed, 195; Nancy v. Wright, 9 Hum., 597; Code ss. 2692 to 2700; Banlcs v. Banks, 2 Col., 546; Armstrong v. Pearce, 7 Col., 171; Holman v. Bell, MS. December 7, 1867, Nashville; Boon v. Lancaster, 1 Sneed, 577; Hope v. Johnson, 2 Yerg., 123; Fisher’s negroes v. Babbs, 6 Yerg., 119; Hinkle v. Hamilton, 3 Hum., 569; Reuben v. Parish, 6 Hum., 122; Howard v. Clemmons, 5 Hum., 368; Isaac v. Mo Gill, 9 Hum., 616; Lewis v. Daniel, 10 Hum., 305; John v. Tate, 7 Hum., 388; Jacob y. Sharp, Meigs, 114; Boon v. Lancaster, 1 Sueed, 577; Milly v. Harrison, 7 Col., 193; Stephenson v. Harrison, 3 Head, 728; Stewart y. Miller, Meigs, 574; Lewis y. Simonton, 8 Hum., 185; Isaac y. Farnsworth, 3 Head, 175; Greenlaw v. AW-lings, 3 Hum., 93.</p>

FROM WILLIAMSON. From the Chancery Court, April Term, 1869. Hilary Ward, Special Ch. The contest in these cases was between the complainants and the assignee in bankruptcy of the defendant, Ira Swanson, the former claiming liens by virtue of bills filed under Code, ss. 4283, etc.; the latter, that these proceedings being within four months prior to the bankrupt proceedings, the liens were overreached by the conveyance to the assignee in bankruptcy, as provided by s. 14 of…

<p>Constitutional Law. — The taxation of litigation is not unconstitutional</p>

<p>PROM ROBERTSON.</p> <p>From tbe Chancery Court, May Term, 1870. Chas. G. Smith, Ch.</p>

<p>1. Equity. Mistake in quantity of land. A testator directed his land to be sold by his executor at auction, and the proceeds divided among certain married women and infants. The land was purchased as a one hundred acre tract, at $75.50 per acre, by an adjoining proprietor desirous of adding it to his own tract, and of obtaining its timber. Both the executor and the purchaser were mistaken as to the dimensions of the tract, which in reality contained a hundred and thirty-five acres. The bill sought to compel the purchaser to reconvey the thirty-five acres in excess, in a certain manner; or to pay for them at $75.50 per acre. Held, that to compel the latter would be to decree a contract. The answer sought to rescind the purchase on account of the mistake, alleging that the price paid was a high one for the entire tract. Decreed, that the purchaser should have a hundred acres of the tract laid off to him by commissioners, in the most convenient form to meet his purpose and expectation of adding to his land, and that the remaining thirty-five acres should be sold and the proceeds divided among the parties entitled thereto.</p> <p>Case cited. Miller v. Bently, 5 Sneed, 674.</p> <p>2. Same. Parties. The beneficiaries, although merely legatees of the proceeds of the land, the legal title thereto being in the executor, might apply directly for proper relief.</p> <p>3. By-bidding. The purchaser not entitled to relief because the price was run up by the apparent competition of a person in reality insolvent, and unable to comply with the terms of sale, and who bid to operate upon the known special desire of the purchaser for the land.</p>

<p>FROM ROBERTSON.</p> <p>From the Chancery Court, October Term, 1870. Chas. G. Smith, Ch.</p>

PROM SUMNER. Eroni the Chancery Court, September Term, 1867. Thomas Barry, Ch. Jordan Stokes for the children of Jno. M. Miller, deceased, and for those of Mrs. Alexander by her first husband, Wood S. Miller, said: 1. The testator’s widow took the whole estate, real and personal, for life, including the realty acquired after the date of the will. Code, s. 2195; Wynne v. Wynne, 2 Swan, 405. 2.

<p>FROM ROBERTSON.</p> <p>From Chancery Court, October Term, 1870, Chas. G. Smith, Ch.</p>

<p>FROM MONTGOMERY.</p> <p>From the Circuit Court, September Term, 1868. J. O. Shakelford, J.</p>

<p>EROM MONTGOMERY.</p> <p>From tbe Circuit Court, September Term, 1870. James E. Rice, J.</p>

<p>I. Chancery Practice. New parties allowed to be introduced into a cause by cross-bill.</p> <p>' 2. Same. Amendment. The cross-bill held to be multifarious; but the decree below being reversed upon another ground, and the cause remanded, leave granted to amend as provided by Code, section 4326, - by filing a separate bill, without new process.</p>

<p>Pbaotioe. Divorce. Counsel Fees. In a divorce suit counsel fees are part of the incidental expenses allowed to the wife, whether complainant or defendant. The Supreme Court having decreed divorce with alimony, and remanded the cause for the execution of the decree, a reference in the Court below was proper, to ascertain the amount of reasonable fees for services in the Supreme Court. Fees allowed to two counsel.</p>

FROM WILLIAMSON. From the Chancery Court, April Term, 1871. W. S. Fleming, Ch. 1.

<p>Purchaser. Tuxes. Bents. Confirmation in 1869 of sale, to enforce vendor’s lien, of land encumbered with unpaid taxes, and under leases with rents not falling due until January, 1, 1870. The purchaser entitled to credits for taxes discharged by him, but not to the rents maturing after confirmation, he being chargeable with notice that before the bill was filed the rent notes were assigned to one not a party to the suit.</p> <p>Cases cited: Pickens v. Seed, 1 Swan, 80; Shofnerv. Shofner, 5 Sneed, 94; Gibbs v. Boss, Adm’r, 2 Head, 437.-</p>

<p>1. Illegal Tkansaction. An agent receiving profits can not set up against his principal the illegal character of the transaction in which ' they were realized. The maxim, in pari delicto potior est conditio de-fendentis, has no application here: íroo/cs v. iKcw’im, 2 Wal., 79, approved.</p> <p>2. Approfeoation or? Payments. S., a Tennesseean, as agent, hired out in Alabama the slaves of several Tennesseeans, and afterwards received in Alabama a part payment of hire, without any appropriation of it at the time either by the hiree or himself to the slaves of any particular owner. Held, that the law of Alabama would govern as to the subsequent appropriation of the payment; but -in the absence of any proof as to the law of Alabama applicable to the circumstances, held that S. could not subsequently make an appropriation of the payment, but that it should be distributed pro rata among the several owners.</p> <p>Discussion as to the relations between persons during the war within the Federal and Confederate lines, respectively, but all within the Confederate States.</p> <p>Question of fact determined, and costs adjudged upon special' grounds.</p> <p>Cases cited. Reynolds v. McFarland, 1 Tenn., (Cooper’s Edition) 488; Bussey v. Oani’s Adm’r, 10 Hum., 238.</p>

<p>PROM MONTGOMERY.</p> <p>Erom the Circuit Court, May Term, 1869. James E. Rice, J.</p>

<p>1. Chancery. Jurisdiction. Pleading. Chancery will not enjoin the prosecution of a suit at law upon mere general charges that plaintiff’s conduct was unconscientious and fraudulent; that the defense at law is embarrassed; that certain writings need to be reformed; that a discovery is necessary, etc. Specific facts sustaining sufficient charges are required.</p> <p>2. Evidence. JExtrinsie. In a suit upon a promissory note reciting consideration, the defendant may show aliunde that the recital is incomplete.</p> <p>3. Damages. Measure of. Speculative. Where a party leased a water privilege, etc., the lessor stipulating to keep a certain dam in repair, but in case of his default the lessee to have the right to repair at the lessor’s expense; and afterwards, the dam not being kept in repair, the lessee’s mill remained idle, etc. Held, that the measure of damages recoverable by the lessee was the cost of making the repairs; that he could not recover speculative damages for his mill remaining idle, consequent deterioration of machinery, etc.</p>

FROM MONTGOMERY. From the Circuit Court, May Term, 1871. Thos. W. King, J. Want of due presentment, etc., was fatal to the instrument in suit. Even bank checks seem to fall within the letter of Code, ss. 1959-61.

FROM MONTGOMERY. Front the Circuit Court, May Term, 1871. Thos. W. King, J. For briefs of counsel see the foregoing case, both cases being argued together.

FROM DAVIDSON. The motion originated in the Supreme Court. The motion is predicated upon Code/ s. 3594, etc. See Ealcin v. Boyd, 5. Sneed, 204. The sheriff should have advertised. Whom did he expect to bid if he gave no notice of the sale? See Code, ss. 3038, 3042; also, ss. 2145, 2153; also, Shank-land’s Statutes, pp. 257, 258. See also, 1 Swan, 308; 10 Hum., 244; 2 Hum., 389; 4 King’s Dig., s. 11,213.

<p>PROM CHEATHAM.</p> <p>From tbe Circuit Court, October Term, 1866. JohN Alex. Campbell, J.</p>

<p>1. Couvehsioit. Waiver. Where personalty has been converted, the . owner may sue for the property itself, or damages for its conversion; or he may waive the tort, and sue for the value of the property as a debt; and this whether it has been converted into money or not.</p> <p>2. Same. IAmitatkm. The action for the property, or for damages, will be barred in three years; but that for the value not until six years. Three years adverse possession will invest the tort-feasor with a perfect title to the property, but his liability for its value will continue for three years longer.</p> <p>Cases cited: AJsbrooh v. Hathaway, 3 Sneed, 454; Campbell v. Beeves, 3 Head, 226; Bennett v. Kennedy, lb., 674.</p>

<p>1. Practice. Sale of minor’s property. Guardian ad litem. The guardian ad litem required by Code, sec. 3324, in a proceeding to sell the property of persons under disability, may he appointed by the Clerk and Master under sec. 4420, as in other cases.</p> <p>2. Purchaser. Application of parchase money. The purchaser’s title is not affected by the failure of the court properly to dispose of the proceeds of the sale.</p>

PROM PERRY. From the Circuit Court, October Term, 1870. Elijah Walker, J. The action did not survive at- common law, but the rule has been changed by Code, sec. 2846. This provision construed in Kimbrough v. Mitchell, 1 Head, 539, which decisive of present case. In Winters v. McGhee, 3 Sneed, 128, revivor of this very action permitted. It is said that cases cited apply only where action commenced in life time of owner of land.

<p>Widow. Insolvent testator’s estaie. Tlie widow of an insolvent testator is entitled to the same benefit as the widow of an insolvent intestate as to property exempt from execution.</p> <p>Cases cited. Turner v. Fisher, 4 Sneed, 209; Blanchard v. Thompson, MS., Jackson. Code, section 2288, construed.</p>

<p>1. Statement oe Case. The testator, dying in 1837, directed his property, real and personal, except some small legacies, etc., to be kept together during the lifetime of his widow, and the income to be applied to the support of his family and the education of his two youngest children; and that after the widow’s death (the youngest child having become of age) the property should be sold by his executors and the proceeds equally divided among the children, those of any deceased child to represent their parent. Mark M. Andrews and George Andrews (sons of the testator) were appointed executors, and acted under the will as executors and testamentary trustees until 1849, when a compromise decree was rendered in a suit brought by some of the parties interested in the estate against them and the other parties, by which decree Mark M. Andrews and George Andrews resigned as testamentary trustees and the widow and Seth Andrews (another son of the testator) were substituted in their room, and an adjustment of the estate down to that time was efiected. Afterwards another bill was filed by some of the parties interested against the second trustees and the other parties, attacking the decree of 1849, and calling the second trustees to an account, in which suit a final decree was rendered in 1857, refusing to disturb the decree of 1849, and declaring the widow entitled to a life estate in the property, and not subject to account for the income. The widow died in 1864, the other trustee having previously died leaving children; and thereupon Mark M. Andrews alone assumed, as sole acting executor, to sell under the will portions of the real estate, after which he- filed the bill in the present case for the settlement of the estate, calling for an account of advancements made by the widow, submitting whether her debts were chargeable upon the estate, and seeking to enforce collection of purchase money for the land sold by himself, &e., and to have the share in the testator’s estate of the children of Brokenborough Andrews (another son of the testator who had died in 1850) subjected to payment of a note of their father held by complainant. The children of Broekenborough Andrews answered resisting the collection of this note, and (although they filed no cross bill) attacking the decrees of 1849 and 1857, insisting that they were not bound by the former because not parties thereto (although their father was a party), nor by the latter because, whilst parties thereto, they were then minors and were not properly represented by guardians ad litem, and so the decree was erroneous as to them. The purchasers of the lands which complainant had assumed to sell sought to get rid of their bargains, the lands meantime having depreciated.</p> <p>2. Construction. The children of Brokenborough Andrews, and those of Seth Andrews, their parents dying during the widow’s lifetime, bad no right to call the executors or testamentary trustees to an account of the income of the estate; grandchildren of the testator not being immediate objects of his bounty, their right being to take their fathers’ portions of the proceeds of the sale directed after the widow’s death. Questionable whether Brokenborough Andrews himself entitled to participate in the income of the estate, he not being one of the “family” in the sense in which the word was used by the testator, — not living with the widow, etc. The widow’s debts not chargeable on the testator’s estate.</p> <p>Cases cited. Harris v. Aldersm, 4 Sneed, 255; Moore v. Simmons, 2 Head, 548.</p> <p>3. Privity. Family Compromise. The legal title to the land involved de-seended to the testator’s heirs, subject however to the power vested by the will in the testamentary trustees, and Brokenborough Andrews and Seth Andrews, two of said heirs, being parties to the decree of 1849, said decree was conclusive upon their children as privies of their fathers respectively, who represented the contingent interests which by their death during the widow’s lifetime thereupon vested in their said children. This decree in the nature of a family compromise, which courts always loth to disturb.</p> <p>4. Bass Judicata. Presumption of regularity The decree of 1857, refusing to disturb that of 1849, not being void upon its face, was not collaterally assailable even by minors. Their remedy against it, if erroneous, was by direct proceedings. Regularity of proceedings to be presumed. The decree of 1849 declaring the widow entitled» to a life interest in the estate, she might therefore distribute the income among the children as she thought fit, and there could be no account of advancements by her.</p> <p>Cases cited. Matthews v. Weeden, 4 Yerg., 166; Thacher v. Ghainhers, 5 Hum., 313 ; Iiall v. Hefly, 6 Ham., 444.</p> <p>5. Revivor. Heirs. Executor. Seth Andrews dying pending the proceedings terminating in the decree of 1857, the cause was revived against his executor only. Held, that his contingent interest (a share in the proceeds of the sale of the estate in case he survived the widow) terminated at his death, the same vesting in his children under the testator’s will, and these not being parties to the decree of 1857, it was not binding upon them; but they were bound by that of 1849.</p> <p>6. Executor and Testamentary Trustee. Mark M. Andrews and George Andrews sustained under the will the twofold relation of executors and testamentary trustees: their duty as executors was to collect the assets, discharge the debts, and pay over the legacies; their duty as testamentary trustees was to manage the estate as directed by the will, and after the death of the widow to dispose of it by sale and distribute the proceeds among the parties entitled thereto. By his resignation as testamentary trustee in 1849, Mark M. Andrews denuded himself of the power to sell the lands after the death of the widow, and the sales made by him were therefore void.</p> <p>Cases cited. Hughlett v. Hughlett, 5 Hum., 467; Drone v. Bayliss, 1 Hum., 187.</p> <p>7. Minors. Protection of interests of. The Court has refused to set aside irregular but advantageous sales of the property of minors, but it will not undertake to validate void sales of their property because beneficial to them.</p> <p>Cases cited. Swan v. Neuman, 3 Head, 290. See also Kirlman, exporte, lb., 517.</p> <p>The note of Brokenborough Andrews held, by complainant disallowed, as presumptively having been paid. Costs adjudged.</p>

<p>FROM MONTGOMERY.</p> <p>From the Circuit Court, May Term, 1870. James E. Rice, J.</p>

<p>FROM MONTGOMERY.</p> <p>From the Chancery Court, October Term, 1868. J. O. Shackleford, Ch.</p>

<p>1. Res Jtjdicata. In 1862, the Clerk of the Supreme Court entered satisfaction in Confederate money of a judgment on the Execution Docket. In 1866 the judgment creditor petitioned the Court ex 'parte to vacate the satisfaction and award an alias fi. fa., which was done, upon the ground of the illegality of the money. Thereupon, the defendants filed a bill to enjoin proceedings on the alias, upon the ground of satisfaction of the original fi.fa., which the Sheriff testified that he had collected in current bank notes. 13eld, that the Chancellor erred in regarding the ex parte action of the Supreme Court as «8 judicata, binding upon the defendants.</p> <p>Case cited: Newmam v. Justices, 1 Heis., 787.</p> <p>2. Equity. Gonewrrent relief. In the case stated, a bill in equity was a proper mode of relief, concurrently with certiorari and supersedeas in the Supreme Court.</p>

<p>1. Confederate Money. An agent for tlie collection of a note had. no right, without special authority, to receive payment in Confederate money. And such authority will not he presumed.</p> <p>Cases cited. Scruggs v. Luster, 1 Heis., 150; Kenny v. Basdtme, 6 Hum., 62; Cooney v. Wade, 4 Hum., 444.</p> <p>2. Promissory Hote. Endorsement for Collection. The endorsement of a note in blank to an agent for collection passes the title so as to enable the agent to sue upon it in his own name, and payment to him is good.</p> <p>Cases cited. Gardner v. Bank of Tennessee, 1 Swan, 425; Neely v. Morris 2 Head, 595.</p> <p>3. Notice. But if lie have notice that, notwithstanding the endorsement in blank, the holder is only an agent for collection, the payor will not he entitled to regard him as the owner of the note.</p>

EEOM WILLIAMSON. From the Chancery Court, October Term, 1871. W. S. Fleming, Ch. The bill is filed to subject the corporate property to payment of its debts, under Code, ss. 3431 and 4294. The justness of the indebtedness and the non-user of the corporate franchises are admitted. It is said that the corporation had no power under its charter to borrow money.

<p>Attobney’s Lien. An attorney’s lien for Hs fee upon his client’s judgment does not interfere with any right of the opposite party to discharge the judgment with depreciated funds.</p>

<p>Stayor. A party directed a justice, who was at the time on his way home, where he kept his office, some 250 or 300 yards off, to put his name down as stayor to a judgment. Held valid.</p>

FEOM DICKSON. From the Chancery Court. January Term, 1871. Geo. H. Ninon, Ch. The Chancellor dismissed the proceedings, and turned the parties out of Court, to undergo the expense, delay, and drudgery of going all over the same ground again, upon a question of mere empty form. All rational objects of rules of pleading were here completely attained. All the parties were before the Court. Every defense was urged. Proof was taken, and the merits were fully presented.

<p>FROM MARSHALL.</p> <p>From the Circuit Court, October Term, 1870. William P. Martin, J.</p>

<p>1. Subbogation. Surety. A surety who pays off a judgment against his principal becomes entitled in equity to be subrogated to all the rights of the creditor to any fund, lien, or equity, against any other person or property, on account of the debt.</p> <p>And it is not necessary for this purpose that he should obtain judgment against his principal before filing his bill.</p> <p>2. Attachment. An attachment groundlessly issued is yet operative until discharged by proper judicial action.</p> <p>Cases cited. TJzzett v. Maeh, 4 Hum., 319; Miller v. Porter, 5 Hum., 294; MoNairy v. Eastland, 10 Yer., 310; Wade v. Oreen, 3 Hum., 547 ;• Fay v. Jones, 1 Head, 443.</p>

FROM WILLIAMSON. From the Chancery Court, October Term, 1871. William S. Fleming, Ch. A personal representative has no discretion as to the operation of the statute of limitations against his own claim. 10 Hum., 301; 3 Sneed, 603; 3 Head, 403; lb., 658. He is bound to plead the statute of two years and . six months, or commit a devastavit, 7 Hum., 373. . The suspension of the statute by the Constitution, etc., cannot avail. Gfirdner v. Stephens, 1 Heis., 280.

<p>FROM ROBERTSON.</p> <p>From the Circuit Court, June Term, 1871. James E. Bice, J.</p>

<p>ADMINXSTIIA.TOR. Trustee. Speeial Commissioner. In January, 1860, S. made a deed of trust of slaves, etc., to B. as trustee; but B. failed to qualify as trustee, and S. dying, B., in June, 1860, became bis administrator, and ignoring the deed, returned the personalty embraced therein, except the slaves, as assets, and filed a petition for the sale of the slaves, which was ordered, and B. appointed special commissioner for this purpose. The beneficiaries never claimed any benefit under the deed. Suit being brought against B. and his sureties as administrator, for his having wasted the proceeds of the slaves; held, that whilst under the circumstances the trust had never become operative, and the deed did not prevent the property therein conveyed from being assets, yet slaves were not assets in the hands of the administrator, and the proceeds of those in question came to B.’s hands not as administrator, but as special commissioner, and the sureties upon his administration bond were not liable for his dereliction as special commissioner.</p> <p>Case cited. Beeves v. Steele, 2 Head, 647.</p>

<p>PROM DICKSON.</p> <p>From the Chancery Court, Special Term, June, 1871. G. H. Nixon, Ch.</p>

<p>Appeal rsr Error. The Circuit Court has no power to authorize the Clerk to take an appeal bond after the adjournment of the Court.</p> <p>Case cited. MePhairidge v. Gregg, 4 Col., 326.</p>

<p>FROM SUMNER.</p> <p>Appeal in error from tbe Circuit Court, February Term, 1870. Charles G. Smith, J.</p> <p>cited Code, s. 3848, and 5 Yerg., 381, 407.</p> <p>cited Code 3868.</p>

<p>Opening Biddings. Where land is sold for partition, and the interests of married women and infants are involved, the rule as to opening the biddings should be relaxed, so as to secure the best price for the property. An advance of ten per cent held sufficient under the circumstances.</p> <p>Case cited. Donaldson v. Young, 7 Hum., 267.</p>

<p>Bankruptcy. Dower. The widow of a bankrupt dying before his discharge, is not entitled to dower in lands belonging to him at the time of filing his petition. He did not die “seized and possessed” of the lands. The conveyance by the register to the assignee in bankruptcy divested him of the title.</p> <p>Case cited. Caroline Hill v. Thomasha Bowers et al., MS., Jackson, April Term, 1871.</p>

<p>Appbax. prom: Justice. The Circuit Court may render judgment for more than the maximum of a justice’s jurisdiction, if the excess consist of interest accrued since the appeal.</p> <p>Cases cited. Dixon v. Canithers, 9 Yer., 30; Gray v. Jones, 1 Head, 542.</p>

<p>1. County Coubt. Special Term. The law does not authorize special terms of the County Court. Certain action held void because taken at a special term of the County Court, although sitting at the time for the regular term, the record showing that it was held as a special term.</p> <p>2. Same. Public JRoad. In a contest respecting the establishment of a public road, the Justices of the County Court are necessary parties on one side, and the persons interested or aggrieved on the other.</p> <p>Cases cited. MaWhirter v. CocJcrell, 2 Head, 9; Phxms v. Shields, 3 Head, 70; Beard, v. Justices, lb., 97.</p>

<p>1. Mabkced Woman. A married -woman with separate estate signed her name as surety to notes given by her husband for purchase money for land. Her act held void.</p> <p>2. SpEcrFio Pebeobmance. Where a written contract for the sale of land is fair, if the vendor can make a good title before final decree, the ven-dee will be required to accept it.</p> <p>Case cited. Mullens v. Aiken, 2 Heis., 545.</p> <p>S. Same. Same. Where the land was incumbered, but all the parties interested were before the Court, so that by the decree full justice could be done, and a perfect title obtained by the vendee; Held, sufficient.</p> <p>Cases cited. Pipkin v. James, 1 Hum., 325; Buehamanv. Alwell, 8 Hum., 516; Qallaway v. Bradshaw, 5 Sneed, 70.</p> <p>4. Election. Where H. had sold land to H. & O., who had given other land in part payment, with transfer of possession on both sides, but without a written contract upon either, the parties were reciprocally-held to elect within a reasonable time whether to execute or rescind, and a proper adjustment ordered in case of rescission.</p>

<p>FROM DAVIDSON.</p> <p>From the Circuit Court, September Term, 1871. Nathaniel Baxter, J.</p>

<p>Taxation. Stocks. Section 9, act of March 1,1869, applies to stocks in every species of corporations, and makes them taxable for State, County, and Municipal purposes at the place where the corporations are respectively situated.</p> <p>Cases cited. McLaughlin v. Chadwell, swpra; Mayor, etc., v. Thomas, 5 Col., 600.</p>

<p>Clerk; and Master. Appointment of. The Schedule to the Constitution of 1870 provided: “Officers appointed by the courts shall be filled by appointment, to be made, and to take effect, during the first term of the court held by judges elected under this Constitution.” The Chancellor failed to appoint the Clerk and- Master at Charlotte during the first term held by him under the Constitution, but made the appointment at the succeeding term. Held, that it was not imperative to make the appointment at the first term, and that it was valid when made.</p>

<p>FROM SUMNER.</p> <p>From the Circuit Court, October Term, 1871. Jas. E. Rice, J.</p>

<p>1. Evidence. Book Account. Under the hook debt law, Code, sections 3781, &c., the office of the oath required of plaintiff is simply to qualify as evidence his book of accounts, or the copy provided as a substitute therefor. Beyond this the oath is nugatory.</p> <p>2. Same. Same. The book or copy, introduced by the requisite oath, is evidence to the extent prescribed by the statute, so far and no farther; to wit, to show, under the restrictions as to time and amount, the sale and delivery of the articles, and perhaps the performance of the work and labor, in controversy.</p> <p>3. Same. Same. But if other matters additional to the sale and delivery of the articles, or the performance of the work and labor, must appear, in order to make out the plaintiff’s case, these must be proved independently of the plaintiff’s oath, or his book of accounts, or the copy authorized in certain cases. Thus, where the services in controversy were such as to raise no presumption that compensation was to be rendered therefor, — consisting in attention to an aged father in his last sickness, — it was not competent for plaintiff to show by his own oath that the services were performed under a promise of the deceased that they should be well paid for.</p> <p>4. Same. Same. Practice. The correct practice is, not to admit the book of accounts, or substituted copy, upon plaintiff’s affidavit, but to require the introduction of plaintiff as a witness, to prove by his oath the necessary facts.</p> <p>Case cited. Johnson v. Price, 3 Head, 549.</p> <p>5. Same. Same. Same. Whilst the order of testimony was subject to the discretion of the Circuit Judge, his action criticised as hardly a proper ’exercise of discretion, where after plaintiff, to introduce his book of accounts, had made affidavit that he had no other means of proving his claim, he was allowed to introduce, as rebutting testimony, independent evidence in support of the claim.</p>

<p>1. Non Compos Mentis. In the case of an inquisition of unsoundness of mind, under Code, sections 3691, etc., the Court -will not reverse for irregularities, provided the statute have been substantially complied with, and provided the facts appear from the record so clearly that the Court can without difficulty reach the justice of the case and decree accordingly.</p> <p>The Court declined to reverse, under the circumstances, because a juror had not been required to answer whether he had formed an opinion, or because the jury had not been sworn in exact conformity with the phraseology of the statute, these being, at most, simply grounds upon which the Chancellor might have set aside the verdict, whereupon he might have decreed upon the facts, without ordering another inquest; these facts being fully set forth in the record.</p> <p>2. Same. At the inquisition, if an examination of the defendant be tendered on his behalf, it must be made, and the jury may call for it; but if not tendered, nor called for, it is not error to neglect to make it.</p> <p>3. Same. The provisions in question contemplate three categories of incapacity, — idiocy, lunacy, and unsoundness short of these involving ■ inability to govern one’s self and property. The defendant,upon the facts, adjudged in the last mentioned category.</p> <p>4. Same. The Chancery Court acquires its jurisdiction of the subject in question solely from the statutes.</p> <p>Case cited: Oakley v. Long, 10 Hum., 254.</p>

<p>PROM MARSHALL.</p> <p>From the Circuit Court, October Term, 1869. W. P. Martin, J.</p>

FROM HUMPHREYS. From the Circuit Court, November Term, 1871. Jas. E. Rice, J. Will a plea in abatement lie to an ancillary attachment? Is not the remedy of the party whose property is thereby wrongfully attached confined to a suit on the attachment bond, as provided by Code, s. 3530? But however this may be, there is certainly no error in this record of which McCown can complain. His own sworn plea denies property in the goods attached.

EROM. SUMNER. From the Circuit Court, October Term, 1871. Jas. E. Bice, J. The mother had no right to recover for the destruction of the clothing of her children. The court below erred in admitting evidence as to damage done by sparks from other engines previously to the burning of plaintiff’s house. Negligence at other times, if it existed, not relevant to show negligence at the time in question.

<p>Pbactige. Mcecutim. After an execution issued by a justice had been levied upon land and returned to the Circuit Court and.an order of condemnation obtained, personalty of the defendant being discovered, a procedendo was awarded for an alias execution. J2eld correct.</p> <p>Cases cited: Swingle v. Soyler, 1 Tenn., 226; Hogshead v. Carruth, 5 Yerg., 227.</p>

<p>Constbuctioit. Section 1166 (5) of the Code: “ Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead, &e.,” not to be construed as requiring for the exoneration of the company that somebody on the locomotive must throughout the whole trip have been literally always upon the lookout. It is sufficient if the precaution was being observed when the accident happened.</p> <p>Case cited: Memphis & Charleston B. B. Co. v. Bern, 5 Sneed, 291.</p>

PROM DAVIDSON. From tbe Chancery Court, October Term, 1871. E. H. East, Oh. In August, 1871, a vacancy occurred in the office of County Judge of Davidson county, to fill which the Governor appointed the relator, and the County Court elected the defendant. Who is entitled to the office ? The Chancellor held that the law had not provided for filling the vacancy. The power clearly did not belong to the County Court.

<p>Confederate Money. Difference re-stated between the cases of the receipt of Confederate money by a private agent and by a collecting officer; and held upon the facts that plaintiff had not acted in the latter capacity.</p> <p>Case cited: Turner v. Cottier, 4 Heis., 89.</p>

<p>PROM LINCOLN.</p> <p>From the Circuit Court, November Term, 1871. W. P. Hickerson, J.</p>

<p>FROM DAVIDSON.</p> <p>From the Circuit Court, January Term, 1871. Nathaniel Baxter, J.</p>

<p>FROM HUMPHREYS.</p> <p>From tlie Circuit Court, November Term, 1870. Jas. E. Eice, J.</p>

FROM SUMNER. From the Circuit Court, June Term, 1871. Jas. E. Ricas, J. The sole question is whether plaintiff is, within the meaning of the Act of 1870-71, c. 71, s. 3, “engaged in agriculture.” Webster’s Dictionary: “AGRICULTURE. n. (Lat. ager, a field, and cultura, cultivation.

<p>1. Constitutional Law. Eminent domain. Under the right of eminent domain, private property may he taken for public use before compensation made, but in such case only after certain provision therefor.</p> <p>Case cited: Anderson v. TwrbeviUe, 6 Col., 160.</p> <p>2. Same. Same. Remedy. The charter of the company provided that land might be taken for its road at a valuation, to be made by commissioners, with an appeal to the Circuit Court; the company if appealing, to proceed with the work only upon giving bond, with se-urity, for the payment of what might be adjudged by the Court; the fee simple in the land to vest in the company when the valuation should be paid, or tendered and refused; but the work not to be delayed pending the proceedings of valuation, and not to be stopped by injunction or supersedeas.</p> <p>From the valuation of complainant’s land, the company appealed in 1861, but without giving the requisite bond. Owing mainly to the war, the case lingered in the Circuit Court until 1867, when judgment was rendered for the amount of the valuation by the commissioners. Meantime, the road had been completed and put into operation, being aided by the State, which had issued to the company large amounts of bonds, under the Internal Improvment Act of February 11, 1852, which provided that the State Should he invested with a lien upon the road, equipments, &c., of companies thus aided, for the payment of the bonds. Afterwards, the company falling in arrears on account of said bonds, the road was seized by the State, and operated by its receiver, under said act, after which it was leased to the Nashville and Chattanooga Railroad Company upon terms satisfactory to the State.</p> <p>Complainant’s Ji. fa. being returned nulla bona, he filed his bill, to which the State voluntarily became a defendant, seeking to enjoin the use of the portion of the road-bed extending over his land. Held, that he was entitled to this relief, and that the lien of the State was subordinate thereto, its position being merely that of a mortgagee of the company to which its bonds had been issued, the title to complainant’s land never having been vested in the company as provided in the charter, by the payment or tender of the valuation of the land, and the State not figuring as a sovereign in the loan of its credit to railroad companies, under the Internal Improvement Act.</p> <p>Cases cited: Eields v. Creditors, 1 Sneed, 354; Ranh of Tennessee v. Eib-rell, 3 Sneed, 381.</p> <p>3. Waiver. Complainant’s neglect to exact the bond required upon the appeal of the company from the valuation of the commissioners, was not a waiver of his right thereto.</p> <p>4. Same. Statute. Promo. Nor was complainant’s neglect at that stage of the matter to apply for an injunction a waiver of his right to apply for it thereafter. Of the two contradictory provisions of the charter; one to the effect that the company appealing should be at liberty to proceed with the work only upon giving the requisite bond, and the other prohibiting any injunction or supersedeas to stop the work; the latter, being a pi-omso, was controlling, and emasculated the former.</p> <p>5. Lb Pendens. It being suggested that pending the litigation the N. & C. R. R. Co. had become the purchaser of the road in question, held that the lis pendem affected the purchaser with notice of all the equities of complainant.</p> <p>Case cited: Craig v. Leper, 2 Yerg., 193.</p>

<p>FROM SUMNER.</p> <p>From the Chancery Court, September *Term, 1871. Chas. G. Smith, Ch.</p>

<p>FROM MAURY.</p> <p>From the Circuit Court, September Term, 1871. William P. Martin, J.</p>

<p>Summary Proceedings. Motion. Notice. In summary proceedings against an officer, the motion, not the notice, is the commencement of the suit. And where there was an entry: “ the parties by their .attorneys appear, and thereupon on motion it is ordered by the court that the motion made in this cause he entered, and continued to some future day of this term for argument,” but there was no other entry of the motion referred to as “ madeheld, that the motion had never been actually made.</p> <p>Note. — In Young v. Hare, 11 Hum., 303, the service of the notice was taken as the commencement of the suit for the purpose of arresting the statute of limitations. But Gheatham v. Howell, 6 Yer., 311; Wathim v. Barnes, 1 Sneed, 201; and Hill v. Hinton, 2 Head, 125, accord with the above.</p>

<p>Chancery Practice. Parties entitled to a fund in the Clerk and Master’s hands may, without giving security for costs, file a petition against him (or if dead his personal representative) and the sureties on his official bond, praying for process and appropriate relief. It is error to exact of such petitioners security for costs.</p>

<p>EROM SUMNER.</p> <p>From the Chancery Court, September Term, 1871. Chas. G. Smith, Ch.</p>

PROM DAVIDSON. From the Circuit Court, January Term, 1871. Nathaniel Baxter, J. The Court below erred in raising a distinction between dying by suicide and by one’s own hands. The latter expression was regarded as including, to avoid the policy, every case of dying literally by the party’s own hands, except where through accident, or the mental chaos of the fatal moment, the will did not intend the death inflicted by the hand.

FROM MAURY. From the Circuit Court, May Term, 1868. A. M. Hughes, J. The Sheriff received the fi. fa. September 27, 1861. He delayed to levy until December 31, 1861, too late to advertise and sell before the return day. The return itself clearly evinces, what the evidence dehors the return, improperly admitted, corroborates, that there was ample property upon which to have levied. The only defense is, that after the levy plaintiff intervened to prevent a sale.

<p>Justice. Jurisdiction. Note of hand. An unconditional acceptance is a note of hand within the sense of Code, section 4123, prescribing the jurisdiction of Justices of the Peace.</p>

<p>prom Humphreys.</p> <p>From the Chancery Court, Special Term, June 1871. Geo. H. Nixon, Ch.</p>

<p>EEOM STJMNEE.</p> <p>From the Chancery Court, March Term, 1868. J. O. Shacklefoed, Ch.</p>

<p>Attachment. Amendment. For a substantial defect in the affidavit upon which an attachment has been issued, the writ must be quashed. No amendment is allowable. Code, s. 3477, cures defects of form only.</p>

<p>FROM MAURY.</p> <p>From the Circuit Court, May Term, 1870. A. M. Hughes, J.</p>

<p>1. Estoppel. Deed of Trust. A party accepting the provision of a deed of trust for his benefit, thereby affirms the instrument in toto, and is estopped from impeaching any of its provisions for the benefit of other parties.</p> <p>2. Judgment Lien. The lien of a judgment was not extended in consequence of the war.</p> <p>Cases cited. Smart v. Mason, 2 Heis., 223; Branner v. Nanee, 3 Col., 299.</p>

<p>1. Trust Deed. Beneficiary can not maintain adverse interest. A beneficiary to a deed of trust who accepts the deed can not set up an interest adverse to the trust. If he redeem land included in the deed, but sold under a levy overreaching it, he will hold the land subject to the trust, but the redemption money will be reimbursed him .from the trust assets.</p> <p>Case cited: Tisdale v. Tisdale, 2 Sneed, 599.</p> <p>2. Same. Beneficiary cannot impeach. A beneficiary accepting the deed can not impeach it.</p> <p>See Swanson v. Tarkington, ante.</p> <p>3. Tbustee. The failure of the trustee to give bond as required by Code, sec. 1974, would not invalidate his appointment, but would furnish ground for his removal.</p> <p>Case cited. Mills v. Haines, 3 Head, 332.</p>

<p>FROM DAVIDSON.</p> <p>From the Circuit Court, May Term, 1869. Eugene Cary, J.</p>

<p>1. Set-oee. The judgment authorized by Code, see. 2922, upon a set-off, being only for its exeess over the plaintiff’s demand, unless some portion of this demand appear to have been allowed there can be no judgment upon the set-off.</p> <p>Case cited. Bmzdton y. N. & G. R. It. Co., 3 Head, 570. See also, E. T. & Pa. R. R. Go. v. Galbraith, 1 Heis., 482; Edington v. Pwkle, 1 Sneed, 122; Riley v. Garter, 3 Hum., 234.</p> <p>2. Lost Instrument. Affidavit, how made. The affidavit to supply a lost instrument upon which suit has been brought, must be made before the Court, or the Clerk of the Court, in which the suit was commenced, or is pending.</p>

EKOM DICKSON. Smith v. Deaderielc, 6 Hum., 134, has no application here. It is conceded that for one Chancellor to interfere with the decrees of another would involve confusion worse confounded.’ But here the petition was addressed to the Chancellor at Charlotte, and the Chancellor at Nashville simply granted a fiat upon it, just as he might have done upon an original bill similarly addressed, and to be filed in the Chancery Court at Charlotte.

<p>1. Usury. Law and Equity. Concurrent jurisdiction. The act 1844, giving equity jurisdiction in eases of usury notwithstanding a trial at law, not being carried into the Code, was thereby repealed. The act 1835 being substantially embodied in the Code, with the further provision of sec. 4300, giving courts of equity concurrent jurisdiction with courts of law for the abatement and recovery of usury, a judgment at law, where the defense of usury might have been made, is now equally conclusive with judgments at law in other cases of concurrent jurisdiction.</p> <p>Case cited. Lindsley v. James, 3 Col., 477.</p> <p>3. Equity. Belief after judgment. Equity will not relieve after judgment at law, unless complainant was prevented from making defense by accident, mistake, fraud, or the act of the adverse party, unmixed with negligence on his own part. And a case to justify the intervention of equity must be set forth not by general allegations, but by a specific statement of sufficient facts and circumstances.</p> <p>Case cited. Levan v. Patton, 2 Heis., 108.</p>

<p>1. Glebe and Mastee. Special Commissioner. The Act of 1794, 0. & IST., 155, (as applied by the Acts of 1797 and 1835, C. & N., 162-3,) required of the Cleric and Master a bond for the safe keeping of the records and the faithful discharge of the duties of his office. The Act of 1849 extended the liability under this bond so as to embrace the duties of Special Commissioner to sell property under the decree of the Court, ■when undertaken by the Clerk and Master, but required the Chancellor to exact an additional bond covering these duties; and authorized him to exact an additional special bond in any particular case when deemed proper. So far, the offices of Clerk and Master, and Special Commissioner of Sales, were wholly distinct. The Act of 1852 blended the two offices, but kept their obligations and duties still distinct, requiring the Chancellor to take from the Clerk and Master a separate Commissioner’s bond in such amount as he might deem proper, not less than ten thousand dollars. This act repealed that of 1849 extending the liability under the bond for the faithful discharge of the Clerk and Master’s office to duties undertaken by him as Special Commissioner. Thenceforth, the sureties on the official bond as Clerk and Master ceased to be liable for the discharge of the superadded duties of Special Commissioner of Sales.</p> <p>Case cited. Williams v. Bowman, 3 Head, 678.</p> <p>2. Same. Same. Inability under bond. The liability under the bond given as Special Commissioner is restricted to the accounting for and paying over moneys coming to the Clerk and Master’s hands from sales made by himself under the orders or decrees of the Court; the proper disposition of moneys otherwise coming to his hands, and of moneys arising from sales made by himself but retained under the oi'ders of the Court, and converted into a trust fund, being covered by the bond of office proper.</p> <p>3. Same. Same. Bond discharged. In the given case, the bond as Special Commissioner had been taken in the sum of five thousand dollars, only half of the minimum prescribed by law, and more than this amount of liabilities covered by the bond had been paid off by one of the sureties, without suit. Held, that thereby the bond was discharged.</p> <p>4. Stobty. Offiemis Payment. A surety is not obliged to wait until sued before paying the debt for which he is bound. He may pay at maturity; and it is held that he may pay or compromise before maturity, and after maturity have contribution. A payment legally compel-lable is not officious.</p> <p>5. Official Bond. Penalty. Interest. An official bond does not bear interest from the breach, or the demand, or the commencement of the suit for the penalty. The sureties can not be held for more than the amount of the penalty of the bond.</p> <p>Case cited. Overall v. Babson, 2 Yerg., 71.</p>

<p>EROM DAVIDSON.</p> <p>From the Law Court of Nashville, January Term, 1871. Jo. C. Guild, J.</p>

<p>EROM MAURY.</p> <p>From tbe Chancery Court, June Term, 1871. "W. S. Fleming, Ch.</p>

<p>1. Sheriff. Non-return. A Sheriff is not obliged to receive an execution to which he is himself a party defendant, but if he receive it he is bound duly to return it.</p> <p>2. Same. Same. Summary Remedy. A Sheriff is not liable by motion for the non-return of an execution where his term of office expired before the return day.</p> <p>3. CORRECTION OF Errors. An erroneous summary judgment rendered by the Supreme Court, which is however correct upon its face, can not be vacated or corrected under Code, secs. 4501-2 — these reaching only errors apparent on the face of the record.</p> <p>4. Summary Judgment. Without Notice. Remedy. A judgment taken in the Supreme Court, on motion, without notice, upon a Sheriff’s official bond, for non-return of an execution before the return day of which his term of office had expired, was void; and the judgment, besides being for much more than was actually due upon the execution, was fraudulent. The remedy of the sureties, the judgment being correct upon its face, was by bill in equity to have it declared void.</p> <p>Cases cited. Cole v. Anderson, 8 Hum., 491; Van Bibber v. Smith, 1 Swan, 110.</p>

<p>FROM MAURY.</p> <p>From the Chancery Court, April Term, 1868. Hilary Ward, Ch.</p>

<p>FROM GILES.</p> <p>From the Chancery Court, September Term, 1871. John C. 'Walker, Sp. Ch.</p>

FROM MAURY. From the Chancery Court, November Term, 1870. W. S. Fleming, Ch. The testator’s intention to prevail unless contrary to law or public policy. 1 Eed. on Wills, 432; 10 Yerg., 20; 4 Hum., 210. A will rarely to be declared void for uncertainty. 1 Red. on Wills, 695. The donee a body corporate, created by Act of March 9, 1862. The General Assembly of the State at the time, at all events a de facto legislature of the highest grade. 1 Heis, 128; lb., 45.

<p>Delivery Bond. The parties to a delivery bond will be held liable thereon unless all of the property embraced therein be tendered to the officer at the stipulated time and place. If only a part be tendered, the Court will not consider the question whether this was not ample to satisfy the execution.</p>

<p>YoXiUNTAey Conveyance. A party owing $1,360, gave a tract of land worth $3,000 to his wife and children, retaining another tract worth $2,000 and personalty worth $1,000. In the absence of any evidence of actual intent to defraud creditors, the voluntary conveyance was sustained.*</p>

<p>PROM MAURY.</p> <p>From the Circuit Court, September Term, 1871. William P. Martin. J.</p>

<p>1. l/AMD Law. Grant. Where a grant describes the land granted as the tract contained within certain specified boundaries, “including and excluding” so many acres “held by prior claim,” the vagueness of the description of the land to be deducted from the area within the designated boundaries does not impair the validity of the grant, nor is this affected by the fact that certain of the boundaries mentioned in the grant are in fact upon other tracts. The grant will invest the grantee ■with a legal title to all of the land within its boundaries which the State had the right to grant.</p> <p>Case cited. ’Bowman v. Bowman, 3 Head, 47.</p> <p>2. Same. Same. Sumy. It is not necessary to the validity of a grant that the land should have been surveyed. It is sufficient that it is so described in the grant that it can be identified.</p> <p>Case cited. Smith v. Buchannon’s Lessee, 1 Tenn. (Cooper’s Ed.), 665.</p> <p>3. Same. Same. Natural objects control course and distance. Natural objects, such as a river, etc., will control calls for distance. The lines must be run out to the objects, though they have to exceed greatly the distances called for, and the grantee will take all of the land contained within the boundaries, however its area may transcend the estimate of the grant. This is a matter of which only the State can complain.</p> <p>Case cited. Whiteside v. Singleton, Meigs, 207. Cooper’s Edition cites Cook, 146; 5 Yerg., 18; 2 Hum., 264; 7 Wheat., 7.</p> <p>4. Same. Same. A grant, being matter of record, can not, in general, in a collateral proceeding, not between the parties thereto, be impeached, except by evidence of record, or by matter apparent on the face of the grant itself.</p> <p>Cases cited. Ourle v. Bairel, 2 Sneed, 66; Roach v. Boyd, 1 Sneed, 134; Crutchfield v. Hammock, 4 Hum., 203.</p> <p>5. Error. Cured by waiver. The jury erroneously found for the plaintiffs as to several tracts included within the boundaries of their grant, but held by superior outstanding titles; but plaintiffs having in the Supreme Court waived all claim to said tracts, the error was thereby cured.</p> <p>6. Same. Immaterial. A lease offered in evidence by defendant below, with a view of helping to make out a case of seven years’ adverse possession, being excluded, because the description therein of the land leased was too vague for its identification; held that this was erroneous, because it might have been shown orally that the land occupied under the lease was part of that included in plaintiffs’ grant, and so the lease might have served to show, at least, the time of the occupancy thereunder; but, this being clearly established aliunde, the error in excluding the lease was deemed unimportant.</p> <p>7. Outstandinct Title. A deed executed by a plaintiff after suit brought does not constitute an outstanding adverse title, but one in harmony and privity with plaintiff’s title.</p> <p>8. Champerty. A champertous deed executed by a plaintiff in ejectment is void, and the title to the property attempted thereby to be conveyed remains in the grantor, who may ignore the deed, and sue for the land as if the deed did not exist.</p> <p>Case cited. Wilson v. Nance, 11 Hum., 190.</p> <p>9. Entry. The following entry had none of the requisites of a special entry, so as to enable the grant to relate thereto: — “ Gr. W. E. enters 5,000 acres of land in said county, beginning on the south boundary line of a tract of land entered in the name of A. E. for 5,000 acres, and to begin at a white oak, and run south and west and north and east to the beginning, so as to make 5,000 acres; omitting out old claims, if any, until the quantity made.” ■</p>