Volume 57 — Tennessee Reports

<p>1. Pleading-. Erroneous joinder of claims. It is irregular and erroneous to join in the same count a claim for the conversion of personal property with one for damages for burning a cotton-gin — but semble, the Supreme Court will not notice it, if no exception is taken below.</p> <p>2. Same. Matter in justification. Under a plea of not guilty to a count for the conversion of personal property, it is not admissible at common law nor under the Code, § 2915, to show matter of justification; ex gr., that the property was seized under a writ of attachment.</p> <p>3. Judgment. Joint for separate acts. A joint judgment against two or more defendants for conversions committed by them severally, is erroneous.</p> <p>Case cited : Autry v. Coffman, 6 Col., 510.</p> <p>4. Chakge. On assumed fuels. If the Circuit Judge charges upon an assumed and unproven state of facts, the Supreme Court will reverse, if it can see that its effect has been to mislead the jury — aliter, it seems if the court can see that no injury resulted.</p> <p>Cases cited: Bridges v. Vick, 2 Hum., 516; Hill v. Childress, 10 Yer., 514.</p> <p>5. Same. Allusion to irrelevant matters. An allusion by the Circuit Judge to civil and political associations with which the defendants are assumed to have been connected, is reversible error if the court can see that it probably injuriously affected the jury.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of Shelby county, January Term, 1871. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county, January Term, 1869. Geo. W. Reeves, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Municipal Court of Memphis, September Term, 1868. Geo. W. Waldron, J.</p>

<p>Chose in Action. Assignment of. The assignment of a chose in action is not complete either as to the debtor or third persons until the debtor is notified.</p> <p>Case cited: Glodfelter v. Cox, 1 Sneed, 330.</p> <p>Same. Same. Notice to a depot agent of the Memphis and Charleston Railroad Company is not notice to the Company of such assignment.</p> <p>Garnishment. Service of notice of garnishment on depot agent of Memphis and Charleston Railroad Company in a county other than that in which the Company has its chief office for business, is not notice to the Company, it not appearing that the matter in any way grew out of the business of the agency, nor any reason assigned for failing to serve it on the President, Secretary, Treasurer, or a Director.</p>

<p>Paetkeesitxp. Pleading. Non est factum. J. vas sued on a note signed “ J. & P.” He pleaded “that the note upon which the plaintiff’s action is founded was not executed by him, or by any one authorized to bind him in the premises,” and swore to it.</p> <p>Held, on demurrer, a sufficient plea. And, per McFarland, J., under this plea the fact of partnership might be contested.</p> <p>Cases cited : Carter v. Turner, 5 Sneed, 178; Bumpass v. Timms, 3 Sneed, 459; Crossthwaü v. Bumpass, 1 Hum., 23.</p>

<p>Mechaxic’s Lieu. The mechanic is required to show by strict proof that the bill was filed within a year after the completion of the work.</p> <p>And, by Deaderick, J., having clearly shown that he is within time, the law is then to he construed liberally in his favor.</p> <p>Oases cited: Luter v. Cobb, 1 Col., 525, and Alley v. Lanier, lb. 540, reviewed and reconciled.</p> <p>Code cited: § 1981.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Municipal Court of Memphis, May Term, 1869. Geo. W. Walbroh, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from decree of County Court.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of Shelby County, January Term, 1871. C. W. Heis-KELL, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from Probate Court of Shelby county. J. E. R. Ray, J.</p>

<p>PRACTICE. Charge. The defendant requested the Circuit Judge to charge a proposition which, while substantially correct, yet perhaps would have been more strictly accurate if some further qualification had been given. The Circuit Judge refused. The bill of exceptions did not set out the charge.</p> <p>Held : The Court will not presume that the proposition properly qualified was charged; but on the contrary, must presume that the Circuit Judge refused to charge the proposition with or without qualification, and so was in error.</p>

<p>1. Ciianobiiy Pbactioe. Master’s Report. It is his duty to refer to the evidence on which he predicates facts stated.</p> <p>2. Same. An order directing an account of debits only, although erroneous, is cured by a subsequent order to take proof and report as to debits and credits.</p> <p>3. Same. Amended Answer. After proof taken and publication passed, an amended answer is alloAved only under very special circumstances, and certainly should not be allowed Avhere only a legal defense is set up.</p> <p>Case cited: Cocke v. Scam, 9 Yer., 287.</p> <p>4. Same. Same. The Chancellor having in such case alloAved an amended answer to be filed setting up a legal defense only, it Avas not error to pronounce a final decree at the same term, refusing to allow time to take proof on the new issue.</p> <p>5. Same. Opening Account. The Chancellor refused an application to open an account to permit new proof, although supported by an affidavit showing merit, and reasonable diligence to procure the proof in time. This Court, seeing- in the record evidence of credits not allowed, and not feeling satisfied that justice has been done, reversed the decree and ordered the account to be opened.</p>

<p>Bailment. Mandatory. E. gaye 0. his money to keep; C. deposited it to his own credit in a bank in good standing, where it remained until the bank afterward broke.</p> <p>Held: That whether C. is liable to B. depends on whether such deposit was made with the consent, express or implied, of E. to remain as E.’s money until called for, and the loss happened without any negligence in C.</p> <p>While a mandatory is only liable for gross negligence, yet he is a trustee and may be liable as for conversion, aside from any question oi negligence, if he uses the thing bailed in any way not authorized or contemplated by the terms of the bailment.</p> <p>Case cited: Colyar v. Taylor, 1 Col., 372.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of Shelby County, September Term, 1870. C. W. Heis-kell, J.</p>

<p>CHANCERY Practice. Process on an attachment hill against a non-resident may he made returnable to any rule day, both under the rule of the Chancery Court at Memphis, and the Code, ss. 4352-3-4.</p> <p>Code cited: secs. 4352 et seq., 3527, 3529.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of Shelby county, September Term, 1870. C. W. Heis-KELL, J.</p>

<p>Judicial Knowledge. The Court cannot know judicially what banknotes were current at any specified place and tiriie.</p> <p>Bank-notes as Money. The principle upon which an officer may be justified in receiving- bank-notes in payment of an execution, is that if the notes are so universally received as money that coin is. never paid or required unless notice is given, the failure of the judgment creditor to give notice that he desires coin may justly be treated by the officer as a waiver of his right to demand it.</p> <p>Cases cited: Crutchfield v. Robins, 5 Hum., 15; Wood v. Cooper, 2 Heis., 441.</p> <p>Same. It follows therefore that such payment cannot be held good in the absence of proof that the notes received universally circulated in the place of money.</p>

<p>Agent. Principal not bomd by act of agent without the scope of ftis employment. W. C. & Co. were commission merchants in Memphis in 1862. Shortly before the occupation of Memphis by the Federal troops, the members of the firm left, two going south into the Confederate lines, and one north. They left a clerk in charge with instructions to undertake no new business. They sometimes, for accommodation, and without compensation, collected notes and bills for correspondents. The clerk collected some money for a former customer of the firm, giving receipt in name of firm, and failed to pay it over.</p> <p>Held: Firm not liable.</p> <p>Semble, that the agency was not destejed by the occupation of Memphis by the Federal troops.</p>

<p>Gift of Chose in Action. A being a man of wealth, advanced in years, and. childless, took into his family an infant, B., two or three years of age, and treated him for nearly twenty years as his adopted son. A. loaned money and took notes payable to B, or payable to himself and endorsed by him to B., keeping possession of them, collecting and reinvesting during B.’s minority, and often spoke of them as B.’s property. During the war he delivered them to B , with some of his own notes, to conceal. Afterward A. became angry with B. and forbade him his house. A. made a will, making no mention of the notes, then amounting to about $15,000, but they were, after his death, found by his executor in A.’s closet, where B., as he told the executor, had placed them.</p> <p>Held: Gift to B. complete and irrevocable, and the notes did not pass to the residuary legatee.</p> <p>Case cited : McEwen v. IVoost, 1 Sneed, 186.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of .Shelby county, January Term, 1871. C. W. Heis-kell, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of Shelby county, May Term, 1871. C. W. Hbiskell, J.</p>

<p>Replevin. Attaching judgment collaterally. In an action of replevin the plaintiff claimed property under an execution issued by a justice of the peace, and introduced the record of the proceedings before the magistrate. From this it appeared that the judgment was rendered against an endorser on a note for over $250, on which demand and notice had not been waived.</p> <p>Held: The defendant might avail himself of the want of jurisdiction thus disclosed, the proceedings themselves, introduced by the plaintiff, showing the absence of jurisdiction. The judgment was not attacked collaterally.</p> <p>Case distinguished: W%tt v. Hussy, 10 Hum., 208.</p>

<p>Dedication to Public Use. Effect off using land ffor purposes not contemplated. The owners of the land upon which the city of Memphis is built, made a dedication of several acres along the river front to certain public uses. Some doubt having arisen as to the extent of the dedication, they by deed declared that “it was the original intention of the proprietors that there should, on said ground forever be, a landing or landings for public purposes of navigation or trade, and that the same should be employed for that purpose, . . . but all other rights, not inconsistent with the above public rights, incident to the soil, it never was the intention of the proprietors to part with, such as keeping a ferry or ferries on any of the public grounds, an exclusive right to which they always held sacred, and never intended to part with, in whole or in part.”</p> <p>Held 1: This was a dedication of the whole land for the purposes mentioned, and not of certain points, to be presently designated.</p> <p>2. The failure to usé a portion of the land, is not an abandonment, because, when the dedication was made, Memphis was a small village, and it was contemplated that it would be many years before all the land would be used.</p> <p>3. The fact that the city leased a portion of the land to third parties, as sites for saw mills, and otherwise appropriated the land to purposes not contemplated in the deed of dedication, did not work a forfeiture of its interest, nor entitle the original proprietors to any relief except, upon a bill properly filed, to have the buildings obstructing the proper use removed.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court of Memphis, January Term, 1869. Wji. M. Smith, J.</p>

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

<p>PROM SHELBY.</p> <p>Appeal from the Second Chancery Court of Shelby county, October Term, 1870. W. L. Scott, Sp. Ch.</p>

<p>William Winchester died in Maryland in 1812, haying by his will devised certain real estate in Maryland and in Tennessee to his two sons and the survivor and the heirs of the survivor, in trust to sell " at such times, in such manner, and upon such terms as to them shall seem 'best,” and to apply the proceeds to the payment of two specified debts; and “from and after the payment of the aforesaid debts” the real estate was limited to the use of the wife of the testator for life, with remainder in fee to certain specified devisees.</p> <p>The trustees were nominated as executors.</p> <p>The last of the debts mentioned was paid April 1, 1837.</p> <p>On the 18th of January, 1837, the trustees in Baltimore executed to A, residing in Jackson, Tennessee, a power of attorney to sell the Tennessee lands, and this power of attorney was registered in Shelby county, Ajpril 3, 1837. Subsequently A made deeds under this power to numerous parcels of land, and generally in pursuance of agreements previously made, but whether in writing, and if so, whether entered into before April 1, 1837, the proof leaves doubtful. Neither A nor those to whom he sold had notice of the revocation of the power of attorney, or of'the payment of the debts by the trustees. The deeds made by A were duly registered, and the purchasers, and those claiming under them, held peaceably for more than twenty years before this bill was filed. The acts of A were known to the parties in interest, and were approved and acquiesced in by all who were sui juris, including the respective husbands of complainants. The complainants, who are heirs at law of one of the devisees of the remainder, were married at the time their rights, if an}', accrued, and have continued to be femmes eovert, filed their bill in December, 1867, to set aside the sales made by A upon the grounds — 1. That the trustees could not lawfully make a power of attorney to sell the land devised to them in trust. 2. When the deeds were made by the attorney in fact the power of the trustees to sell had terminated, the debts having been paid in full. Held:</p> <p>1. TRUSTEE. Power to appoint attorney in fact. In view of the unrestricted powers given the trustees they might execute the trust by an attorney in fact. Besides, as executors charged with the payment of debts, they might do so under the Act of 1833, ch. 51.</p> <p>2. Registration. The Act of 1839, ch. 26, sec. 9, (Code 2084) providing that all deeds registered for twenty years shall be presumed to have been registered on lawful authority, applies only to deeds made by the grantor in person. It applies to deeds executed by married women as well as others.</p> <p>Case cited: Matthewson v. Spencer, 3 Sneed, 513.</p> <p>3. Same. Power of attorney. The Act of 1859-60, cli. 91, makes the registration for twenty years of a deed made by an attorney in fact, conclusive as to the execution and original validity of the power of attorney, but leaves open to contest the title of the grantor and questions as to the revocation of the power, or its termination otherwise, before the deed was made. The burden of proof is upon the party attacking the deed to show that the grantor had no right to make the conveyance, or that the power of attorney had become fundus ojicio.</p> <p>4. Omnia praesumuntur bite esse acta. In the absence of proof the court presumes that the attorney in fact executed his power in a lawful manner, and that the agreements made by him, and upon which his deeds were based, were in writing.</p> <p>Oases cited: Marshall v. Stephens, 8 Hum., 159; Wilburn v. Spofford, 4 Sneed, 698.</p> <p>5. Power op attorney. Perueation of. The power of the trustees to sell terminated upon the payment of the last debt, April 1st, 1837, but this would not per. se revoke the power of attorney to A so far as to invalidate deeds afterwards made by him to third persons who bought and paid bona fide, they, as well as A, being ignorant of its revocation and knowing no fact to put them upon inquiry.</p> <p>The revocation here was by act, of the principal. Would it have been otherwise if the revocation had resulted from the death of the principal ?</p> <p>Cases criticised: Murdoch v. Johnson, 7 Col., 605; Pigs v. Cage, 2 Hum., 351.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the judgment of the First Circuit Court, January Term, 1871. C. W. Heis-kell, J.</p>

FROM SHELBY. Appeal in error from the judgment of the First Circuit Court, September Term, 1871. Fancis D. Stockton, Sp. J. In addition to the facts stated in the opinion, it is perhaps proper to say that the cause was called for trial in the Circuit Court the same day it was revived, and that the motion to plead plene adminis-tramt was made after the jury was sworn, but before any evidence had been submitted.

<p>B. by bill in chancery attached certain personal property conveyed by G. to a trustee for his wife, alleging that the conveyance was fraudulent and void. The trustee replevied the property, F being surety upon his bond. The bond recited that the property was worth 352,948.50, and the penalty of the bond was $3,750, a few dollars more than double the debt. C., another creditor of G, also filed a bill in the ■ same court against G. to reach other property alleged to have been fraudulently conveyed by G. to his wife. These causes were by order of the court consolidated. Pending these bills G. and wife both died- and 0. filed an amended and supplemental bill setting forth the requi, site facts upon which to predicate a prayer lor the appointment of an administrator by the court, under Code, sec. 2209, et seq. By an order made in the consolidated causes at chambers, the Chancellor appointed an administrator, and made him a party to the causes pending. Afterward a decree was rendered in favor of B. and against the. administrator, the trustee and F., the surety on the replevin bond, for $2,648. The administrator and trustee acquiesced, but F. filed the record in this court for error.</p> <p>Held : 1.* Administrator. Appointment of by Chancellor in vacation. The power of the Chancellor to appoint in vacation an administrator under secs. 2209, et seq., of the Code, is restricted to cases in which the bill is filed for that specific purpose.</p> <p>2. Same. Same. It was irregular and perhaps erroneous to make an appointment under the amended and supplemental bill filed by C., but the order was not void.</p> <p>3. Attachment, Surety on replevin bond. The surety F. is bound by the deeqee rendered against the administrator. He cannot by writ of error review the proceedings in that case, even though they be irregular and erroneous.</p> <p>Cases cited: Wells v. Griffin, 2 Head, 568; Greenlaw v. Kernahan, 4 Sneed, 371.</p> <p>4. Same. Same. Far what sum may judgment be rendered against. If the penalty of the bond is in double the amount of the debt, judgment is for the penalty, but to be satisfied on payment of debt, interest and costs. If the penalty is in double the value of the property, judgment is for the penalty, to be satisfied by the return of the property, or payment of its value with interest up to the amount of the debt with interest and costs.</p> <p>Code construed : secs. 3509, et seq.</p> <p>5. Same. Same. Death, or destruction of the property. The surety is not released from his obligation by the death or destruction of the property.</p> <p>Case cited and approved: Gheatkim v. Galloway, 7 Heis., 678.</p> <p>Case criticised : Green v. Lanier, 5 Heis., 662.</p> <p>Cases distinguished : Bryan v. Spuryim, 5 Sneed, 681; Mosely v. Baker, 2 Sneed, 362; Green v. Smith, 4 Col.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county, May Term, 1868. Geo. W. Reeves, J.</p>

<p>1. BrauduIiENT Conveyance. Plea of vmoeent purchaser. M,, -with intent to defraud creditors, conveyed, without consideration, land to D., who on same day conveyed to M’s wife. The land was afterwards bought by E., who paid full value, without notice of fraud. Complainants, creditors of M., filed their bills to subject the land, charging all the conveyances to be fraudulent. B., by answer, denied the fraud, denied knowledge of the fraudulent deed, alleged that he paid full value, and stated the circumstances of good, faith .under which he purchased.</p> <p>Held: B. could avail himself of his defense as against creditors seeking to establish a lien, without embodying in bis answer, with technical accuracy, the plea of “ innocent purchaser without notice.”</p> <p>2. MARRIED Women. Deed of. By a deed conveying land to the separate use of a married woman, she was empowered to convey “by joint deed with her husband.”</p> <p>• Held: Words of conveyance or covenant by him were unnecessary. His signature to the deed sufficed.</p> <p>Case cited: Cope v. Meelcs, 3 Head, 387.</p>

<p>PROM SHELBY.</p> <p>Writ of error to the Second Circuit Court of Shelby county. Ikying Halsey, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from a decree of the Chancery Court, February Term, 1871.- R. J. Morgan, Ch.</p>

<p>In 1784 Anthony Bledsoe entered, in John Armstrong’s office, a tract of five hundred acres of land lying in the western territory of North Carolina. The commissioners, appointed under the Act of Tennessee of 1819, adjudged this claim to be valid. In 1821 the tract was surveyed by the deputy surveyor, and the plat, with his certificate, duly registered in Shelby county. Anthony Bledsoe died in 1788, by will leaving his property to be divided between his eleven children. In 1822 H. R. Bledsoe, one of the sons of Anthony, sold and conveyed this tract to A. B. Carr. In 1826 Carr filed a bill against Anthony Bledsoe’s four sons, supposing that the real estate belonged to the sons alone, and the Chancellor decreed that the five hundred acre tract was H. R. Bledsoe’s share of his father’s realty, and vested title in Carr, who continued to hold adversely until his death in 1849. Polly Wethered, under whom complainants claim, a daughter of Anthony Bledsoe, was not a party to Carr’s bill, but was under coverture when H. R. Bledsoe conveyed to Carr, and remained so until 1846, when, her. husband having died, she sued Carr for her undivided share. Pending this suit, and in 1849, Williams entered the land, and in 1850, took a grant from the State. In 1853 a grant was issued by the State to Anthony Bledsoe. Polly Wethered and Carr both died while her suit was pending, and it was revived against Carr’s heirs, but no notice was taken of the death of Polly Wethered, the suit being in the common law form in name of fictitious lessee. In 1855 judgment was rendered for plaintiff for an undivided one-eleventh of the tract. This judgment was based on an agreement signed by the attorney of Polly Weth-ered. A bill was then pending to partition the lands of Carr among his children, and in that case, to which she was no party, certain lots were set apart as her share, hut there was no vestiture of title. In 1857 Williams finding one or more of these lots vacant, took possession of them, and he contracted with Malone and wife for an undivided ninth of the lots, Malone’s wife being one of Polly Wethered’s nine children. The deed, though prepared, was never delivered nor registered, the wife was not privately examined, and there is no proof that the purchase money was paid. In 1864 Williams was dispossessed of one of the lots by Goff', claiming under a tax sale made by commissioners under the Acts of Congress of August 5th, 1861; June 7th, 1862; and February 6th, 1863. In 1865 Goff sold to Woods, who was in possession when the bill was filed in 1866. Complainants, in their bill, claimed both as the heirs and devisees of Polly Wethered. The Chancellor forced them to elect on which ground they would stand, and they elected to claim as devisees. The will was never proved in Tennessee. The pi-oof shows that complainants are the heirs of Polly Wethered. Woods, by oversight, failed to file his certificate of purchase before the trial, and although, on trial, he made affidavit explaining how the oversight occurred, the Chancellor refused to permit him to file it then. Held :</p> <p>1. Jurisdiction. The Chancellor properly took jurisdiction. The remedy at law was embarrassed and the title of complainants was perhaps equitable.</p> <p>And, per McFarland, J., while it may not be settled that a mere question of legal titles may properly be tried in a court of equity, certainly the tendency is to less strictness, and against dismissing bills on doubtful questions of jurisdiction.</p> <p>Cases cited: Almony v. Hicks, 3 Head, 39; Ward v. Foster, (MS.)</p> <p>2. Election. Claimants should not have been forced to elect whether they would claim as heirs or devisees. It was immaterial how they claimed, because, under the facts developed, the result was in either hypothesis the same.</p> <p>Case cited: Garr v. Lowe, 7 Heis., 84.</p> <p>3. State as Trustee. Under a proper construction of the cession acts of North Carolina, Tennessee held the legal title of the land in trust for Bledsoe, nor could she annex any condition as to the time within which he should apply for a grant.</p> <p>Cases cited: Fogg v. Williams, 2 Head, 474: Egnew v. Cochran, 2 Head, 320.</p> <p>4. Presumption oe Grant. Statute of Limitations. Married Women. Can-having held the land under claim of title adversely for over twenty-five years, a grant would be presumed in his favor, and his title would be perfected against all persons except the married woman, Polly Wethered.</p> <p>5. Practice. Ffjeclment. Death of lessor of plaintiff. The failure to revive on death of Polly Wethered was immaterial. In the common law action of ejectment the practice has never been to revive on the death of the lessor of the plaintiff</p> <p>6. Attacking Judgment Collaterally. Although the judgment in the action of ejectment was based on an agreement signed by her at-tomey alter her death, it cannot, in a collateral proceeding, be declared void.</p> <p>7. Evidence. Bes inter alias. The record in the ejectment case is competent evidence in this case. Complainants having established aprima fade title in their ancestor, this record shows that it is not barred by an adverse outstanding claim in Carr’s heirs.</p> <p>8. Yotjn&er Entry. Older grant. Notice. Williams, by his entry and grant, acquired, as against Polly Wethered, the legal title, but having taken with notice of her claim he held as her trustee.</p> <p>9. Tenant under Void Deed. Adverse holding. The deed of Malone and wife to Williams was void, yet his posssession under it was lawful, and in the absence of proof of adverse holding as against the other co-tenants the court is not bound to presume it.</p> <p>10. Practice. Time of filing documentary evidence. The Chancellor erred in refusing to permit Wood to file his certificate after the trial had begun. The fact that it was evidence of a title apparently without merit was not material, and the delay was explained by affidavit.</p> <p>11. Tax Title The tax title of Goff was void. 1. Because the land was not subject to sale. The Acts of Congress with regard to enforcing the direct tax did not contemplate a sale until the military power had been so firmly established that citizens could safely obey the laws of the United States; could, without danger, go to the headquarters of the commissioners to pay their taxes, and besides, could have free benefit of the mails so as to have an oppoitunity to receive notice of advertisement of sales; and such was not the case in Shelby county at the date of the sale. 2. Because the Acts required the advertisement of sale to be made in a newspaper. It was in fact made in a supplement, which is not shown to have circulated just as a newspaper. 3. Because the proof fails to show that the land could be identified by the description given in the certificate.</p> <p>12. Innocent Purchaser. Woods is not an innocent purchaser His vendor, Goffj did not have the legal title, nor is there proof that the purchase money was paid.</p>

<p>FROM DYER.</p> <p>Appeal in error from the Circuit Court September Term, 1869. John A. Rogers, J.</p>

<p>PROM SHELBY.</p> <p>. Appeal from the Chancery Court of Memphis, March, 1870. R. J. Morgan, Ch.</p>

<p>Resuming Tbust. In cases of resulting trusts, the equitable title of the cestui gui trust is not affected by judgments rendered against the holder of the legal title, and a sale under an execution issued on such, judgment, and levied on the land, will be perpetually enjoined.</p> <p>Cases cited: Shoemaker®. South, 11 Hum., 82; Sandford v. Weeden, 2 Heis., 81.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county, May Term, 1869. George W. Reeves, J.</p>

<p>1. Ignobance op Law. Reformation of Void Instrument. A court of equity will not reform a promissory note usurious on its face, so drawn innocently in ignorance of the law.</p> <p>Case cited: Isler v. Brunson, 6 Hum., 277.</p> <p>2. Same. Per Campbell, Sp. J. Courts of equity never relieve against acts done in ignorance of law, unless circumstances of fraud or imposition intervene, or a mixed question of law and fact is involved.</p> <p>3. Assignee. Right to recover original consideration,. The assignment of such void note could not impart to the assignee the right to sue for and recover the original consideration.</p> <p>4. Piling Answer. Sow far it, gives jurisdiction. The failure to plead or demur to a hill setting up a contract illegal on its face, cannot give the court jurisdiction to enforce it.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court, May Term, 1869. Geo. W Reeves, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the First Circuit Court of Shelby county. January Term, 1872. C. W. Heis-KELL, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court of Memphis, April, 1870. R. J. Morcan, Ch.</p>

<p>CnAMPEBTY. An agreement by a third person having no interest in a suit, to defray the expenses thereof in consideration of a share of the recovery, is ehampertous, whether such third person be an attorney or a private individual.</p> <p>Cases cited: Weedon v. Wallace, Meigs’ R. 280; Webb v. Armstrong, S Hum., 379; Vincent v. Ashley, 5 Hum., 593.</p> <p>Same. When bill will not lie for a discovery of. When a suit alleged to be maintained under a ehampertous agreement is pending in a law court, a bill to discover the champerty will not lie under the code, unless title to land or personal property is involved, or some special facts are alleged showing the necessity for a discovery.</p> <p>Code cited: sec. 1784.</p>

<p>FROM SHELBY.</p> <p>Appeal from Eirst Chancery Court, October Term, 1871. R. J. Morgan, Ch.</p>

<p>Money. Confederate Treasury Notes. Olerh. Confederate Treasury notes constituted the principal medium of exchange in Memphis in 1862 and passed currently from hand to hand as money, although greatly depreciated as compared with gold and silver. On the 7th of March, 1862, the clerk of the Circuit Court of Shelby county received such notes in payment of a judgment rendered in said eouit, and entered satisfaction of the same upon the execution docket. The payment was made and received in perfect good faith. Held:</p> <p>1. The payment operated as a satisfaction of the judgment.'*</p> <p>2. The clerk acting in discharge of his official duties, is not the agent of either party, but the officer of the court.</p> <p>Case cited: Crutchfield v. Robins, 5 Hum., 15.</p> <p>Code cited: Sec. 4050.</p> <p>See Laird v. Folwell, ante.</p>

<p>Bernard purchased goods of complainant and a few days after formed a partnership with McClure, putting in these goods as part of his capital. Afterward the firm was dissolved, and the assets assigned to McClure to pay debts. Complainant attached the goods and alleged that by the terms of the partnership agreement the firm assumed the liability for the goods purchased of him. McClure answered under oath denying such agreement, but Bernard in a deposition sustained the allegations of the bill. There were no facts specially favoring the one view more than the other. Held :</p> <p>1. The mere putting the goods into the firm did not render it liable to pay for them.</p> <p>2. Pretevmitting the question, whether if the agreement alleged had in fact been made, the complainant could avail himself of it, he has failed to show the existence of such agreement.*</p> <p>Case cited : Oroone v. Bivins, 2 Head, 340.</p> <p>As to the right of complainant to avail himself of the agreement, if made. See Muller v. Stovall, Legal R., 153.</p>

<p>Factor selling contrary to orders. The Circuit .Judge1 instructed the jury that a factor receiving goods for sale and making advances on them, is bound to obey the instructions of the consignor given at the time the goods were received, with regard to the time of selling, unless either by contractor the custom of the trade, it was the duty of the consignor to “keep up the margin,” and upon request he failed to do so.</p> <p>Held: Substantially correct.</p> <p>Practice. The Circuit. Judge declined to give instructions based on a certain hypothesis, upon the ground that there was no evidence to which it could apply. There was perhaps some evidence but the record conclusively showed a state of facts opposed to that assumed in the hypothesis.</p> <p>Held: Not error for which the Supreme Court can reverse.</p>

<p>FROM PERRY.</p> <p>Appeal in error from Circuit Court, February-Term, 1873. Hon. E. Walker, J.</p>

<p>Void Judgment. Statute of Limitations. How lands of decedents may be subjected. N. became surety on a bond given for an appeal from a judgment rendered by a justice of the peace, and shortly thereafter died. More than three years after his death, and the appointment of his personal representative, the judgment was affirmed by the Circuit Court, without any revivor. N’s. personal representative filed a bill to enjoin the judgment. The judgment creditors filed a cross bill making N’s heirs parties, and seeking to subject land descended to them. Held:</p> <p>1. The judgment as to N. is void.</p> <p>2. Semble. That the claim was barred by the statute before the judgment was affirmed by the Circuit Court.</p> <p>3. But if the statute did not begin to run until the judgment was affirmed the remedy was a suit against the personal representative on the bond. Creditors cannot pass by the personal representative, and, in the first instance, subject the lands descended to the heirs.</p>

<p>FROM PERRY.</p> <p>Appeal from decree in Chancery, August Term, 1871. Hon. Geo. H. Nixoh, Ch.</p>

<p>"What Covenants Ktjn with the Land. Covenants for title run with the land, but covenants for seizin, right to convey and against encumbrances do not.</p> <p>The discharge of an encumbrance Subsisting at the time of the conveyance and capable of being enforced, operates as an eviction pro tanto, and a breach of a general warranty of title, and an action may be brought by the original or any subsequent vendee who discharges such encumbrance.</p> <p>Cases cited: Hopkins V. Lane, 9 Yer.. 78; Kincaid v. Srittain, 5 Sneed, 119; Stipe v. Stipe, 2 Head, 109.</p>

<p>FROM HARDIN.</p> <p>Appeal in error from Circuit Court, July Term, 1871. Hon. B. E. Matthews, Sp. J.</p>

<p>EROM HARDIN.</p> <p>Appeal from a decree in Chancery Court, March, 1872. G. H. Nixon, Ch.</p>

<p>Gakntshmbnt. Negotiable paper.</p> <p>1. A court of law cannot hold the maker liable as garnishee upon a negotiable instrument held by the judgment debtor, but not yet due.</p> <p>Code cited: sees. 3495, 3090 and 3097.</p> <p>Cases cited: Huff v. Milk, 7 Yer., 41; Moore v. Green, 4 Hum,, 299; Ha iel v. Bawlings, 6 Hum., 403.</p> <p>2. Semble. That a court of law cannot in any case render a garnishee liable on a negotiable instrument. *</p> <p>3. ¿falible. That the doctrine of lis pendens is not applicable to negotiable instruments.</p>

from decatur. Appealed from decree of the Chancery Court, June Term, 1871. James F. McKiNNEY, Circuit 'Judge of the Twelfth Judicial District, sitting by interchange with the Chancellor, who was incompetent.

<p>Sureties. Release of. Assignee in Bankruptcy. A defendant appealed from the judgment rendered by a justice of the peace, giving bond with sureties. Pending the appeal he became bankrupt, and, upon motion of the plaintiff, the assignee in bankruptcy was substituted as defendant.</p> <p>Held: Sureties on the appeal bond released.</p> <p>Case cited: Philips v. Wells, 2 Sneed, 154.</p>

<p>FROM PERRY.</p> <p>Error from Circuit Court, April Term, 1869. Hon. B. E. Matthews, Sp. J.</p>

<p>Constable. Motion against. Failure to return Execution. A judgment rendered on motion against a constable and his sureties for failure to return an execution will not be enjoined upon the ground that the defendant in the execution was, at the time, insolvent, and nothing could have been made; nor upon the further ground that when the judgment was rendered the defendant had, upon his own petition, been declared a bankrupt.</p> <p>The filing of a petition in bankruptcy does not per' se operate as an injunction against suits pending in the State courts.</p> <p>Case cited: Stinson v. McMwrray, 6 Hump., 339.</p>

<p>Trustee and Cestui qui Trust. A debtor of a testator conveyed lands to secure the debt The lands were sold under the deed, subject to redemption, and were bought by the executor at less than their value and less than the debt due. There was no adverse bidding in consequence of the fact that it was understood that he was bidding for the estate. The debtor had no other property. The executor had in his individual right a claim against the same debtor; he therefore redeemed the lands, and caused the deed to be made to himself in his own right.</p> <p>Held: The executor holds for the benefit of the trust estate, but he must be repaid the sum expended by him in the purchase</p>

<p>FROM WEAKLEY.</p> <p>Appeal in error from the Circuit Court, January Term, 1871. James D. Porter, J.</p>

<p>PROM WEAKLEY.</p> <p>Appeal in the nature of a’ writ of error from the Circuit Court, February Term, 1873. Hon. James D. Porter, Jr., J.</p>

<p>PROM WEAKLEY.</p> <p>Error from Circuit Court, February Term, 1872. J. D. Porter, J.</p>

<p>FROM m’NAIRY.</p> <p>Appeal from decree of the Chancery Court, September Term, 1871. HoN. Geo. EL NixoN, Ch.</p>

<p>A. conveyed land to B. to avoid his debts, and afterward sold to C. inform-V inghimof the fact and agreeing to get a deed fromB., who according-^ ly executed a deed, but made a mistake in giving the boundaries B. afterward conveyed a part of the land to D. 0. filed his bill to have the deed reformed, stating these facts; D. demurred.</p> <p>Held : 0. is entitled to have the mistake corrected, and the demurrer must be overruled.</p>

<p>Consideration. CUviJ war. A soldier in the late civil war acting under orders of his superior officer, took a horse for the use of the Confederate army, and afterward verbally promised the owner to pay for him.</p> <p>Held: No consideration for the promise.</p>

<p>Statute oe Limitations. Payment. A payment without other acknowl-edgement or promise, is an acknowledgement of indebtedness only to the extent of the payment, whether the bar of the statute of limitations was or was not complete at the time.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Memphis, May Term, 1870. J. T. Swayne, J.</p>

<p>1. Bill Sworn to. Effect of Answer. 'Where the allegations of the bill are direct and positive, and are based on the knowledge of the party swearing to it, and the statements of the answer are also direct, positive, and based on personal knowledge, the effect of the answer is only to make an issue. But if the allegations of the bill are made upon information and sworn to upon belli f, the responsive statements of the answer made upon personal knowledge can be overturned only by two witnesses, or one witness and strong corroborating circumstances.</p> <p>Cases cited : Searcy v. Purnell, Cooke, 110; McLard v. IdnnviUe, 10 Hum., 103.</p> <p>2. Parties as Witnesses. Executors, Administrators, etc. In actions by or against executors, administrators, etc., in which judgments maybe rendered for or against them, the competency of a party to the record to testify as to any transaction with or statement by the defendant, depends upon whether his interest is antagonistic to that of the party calling him to testify.</p> <p>Code cited and construed: Sec 3813d, Thompson & Steger.</p>

<p>1. Juror.- Peremptory Challenge. A party having the right to challenge for cause, directed the juror to stand aside without asking the judgment of the court. \</p> <p>Held: A peremptory challenge.</p> <p>2. Costs. Surety. Pauper’s Oath. A party who had given security for costs afterward, on a rule to justify, took the pauper’s oath. The sureties did not ask to he released.</p> <p>Held: Sureties liable to the amount of their bond as well for costs accruing after as before the plaintiff took the oath.</p> <p>Case cited : Kincaid v. Sharp, 8 Head, 151.</p>

<p>FROM DECATUR.</p> <p>Appeal from decree of the Chancery Court, March Term, 1872. G. H. NixoN, C’n.</p>

<p>Administrator. Statute of Limitations. A creditor, who at the request of an administrator, delays suit for a specified time, is bound to show that within two years after its expiration, he made demand.</p> <p>An administrator requested creditors “to be patient until he got shut of a big law suit” he was engaged in, promising then to pay all the liabilities of the decedent, properly proven.</p> <p>Query: Whether this request is for a definite time within the meaning of the statute.</p> <p>Cases cited : Pueleett v. James, 2 Hum., 565 ; Trott v. West, 9 Yer., 433.</p>

<p>FROM WEAKLEY.</p> <p>Appeal in error from Circuit Court, June Term, 1871. HoN. J. D. Porter, J.</p>

<p>FROM HENDERSON.</p> <p>Appeal in the nature of a writ of error from the Circuit Court, June Term, 1871. ' Hon. Elijah Walker, J.</p>

<p>Administrator. An administrator cannot maintain a bill to rescind a contract for the purchase of land made by his intestate. A bill for such purpose will be dismissed and the administrator adjudged to pay all costs de boivis propriis.</p>

<p>Attachment. Presumed regular. A bill filed to enjoin the sale of property levied on by attachment charged that the proceedings were void, but did not set them out, nor show in what particular they were irregular.</p> <p>Held: It must be presumed that the proceedings were regular.</p>

<p>FROM WEAKLEY.</p> <p>Appeal from decree in Chancery, July Term, 1871. Hon. Jno. Sohees, Ch.</p>

<p>'Vendor’s Lien. In tbe absence of proof that a vendor did not intend to waive bis lien, the presumption arising from the taking of personal security, that he did intend to waive it, must prevail.</p> <p>Cases cited: Campbell v. Baldwin, 2 Hum., 248; Marshall v. Christmas, 3 Hum., 616; Thompson v. JDuwson, 3 Head, 384. tCnmE Bond. The holder of a bond for title is regarded as the equitable owner of the land, and it may be sold or devised by him.</p> <p>Cases cited: Dechard v. Edwards, 2 Sneed, 93; Stephenson v. Yandle, 3 Hay., 109; Anderson v. Donelson, 1 Yer., 197.</p>

<p>Fjraüdtoent Conveyance. Father to Son. ' An insolvent debtor conveyed land to liis son in consideration of $895, alleged to have been advanced to him by the son and of the son’s note for $200, alleged to have been paid before bill filed. The son at the date of the conveyance was but a few months over age, had just returned from the army, had no visible means of paying such a sum, and had always lived in his father’s house There was proof of a settlement between father and son in which notes were produced.</p> <p>Held : The Conveyance is fraudulent, and the evidence relied on has not the slightest tendency to show that the notes were executed for any actual indebtedness.</p>

<p>EROM CARROLL.</p> <p>Appeal from Circuit Court, September Term, 1872. Hoy. J. D. Porter, Jr., J</p>

<p>Judge Ouakcung on the Pacts. New Issue. I-I. agreed in writing to pay W. §1,000 in bills of the Bank of Tennessee in exchange for a bill of §1,000 issued by that bank, Spetember 1, 1861, “if said bill should be pronounced by the bank not to be genuine or not as good as any of the older issues of the same bank ” The Circuit Judge charged the jury that as a matter of ' law, “new issue” had no value when the covenant was made in the summer of 1864, having been put in circulation in violation of law.</p> <p>Held : Error. The question was one of fact: viz.: the market value of the bill; and was wholly independent of the legality or illegality of its issuance.</p>

<p>Attachment. Void Sale. A sale of land in a case begun by original attachment, issued upon an insufficient affidavit, there being no appearance by the defendant, no publication, no stay of proceedings, but final judgment rendered four days after the levy of attachment, is void.</p> <p>Same. Same. Bill to set asido. Bes adjudieata. Such sale made under a judgment of a justice of the peace will be se't aside on bill filed, although a petition for certiorari and supersedeas was dismissed by the Circuit Court and its action affirmed by this court. The only question adjudicated in that proceeding was the sufficiency of the petition.</p>

<p>Chancery Practice. Sale of land of decedent. A decree for the sale of land of a decedent made on application of the personal representative upon a suggestion ot a deficiency of assets to pay the debts, is void, unless preceded by a report showing tne amount and value of the assets and the nature of the bonajide claims against, the estate.</p> <p>Code cited: secs. 2267, et seq., 2388.</p> <p>Case cited : Frazier i. Pankey, I Swan, 75.</p> <p>Same. Same. A report made by the clerk based upon no testimony, but adopting an exhibit to an unsworn bill, which purported to give in a lump the amount of the assets and the debts, and will) no particulars as to the value of the assets, or as to the names of the creditors and the value of their debts, is not such a report as will authorize a sale.</p> <p>Same. Samel A bill filed by administrators for the sale of lands of the intestate, but failing to show that a suggestion of insolvency had been made in the County Court, and also failing to make other necessary alleg'acions, was taken by the Chancellor to be a bill to have the estate administered in the Chancery Court as an insolvent estate, and he, of his own motion ordered the administration to be moved to that court.</p> <p>Held: The order was irregular and unauthorized, and' the notice to creditors to file their claims was nugatory.</p> <p>Costs. Upon the facts of this case the administrator was adjudged to pay the costs, de bonis proprm.</p>

<p>The United States military authorities had the right during the late war to construct a line of railroad along a public street of the city of Memphis, connecting the line of the Mississippi & Tennessee Eail-road with the depot of the Memphis & Charleston Eailroad Co., and no one using such line of road for military purposes under the orders of the military authorities could be deemed a trespasser. But the charters of neither of said companies authorizing the construction of such line of road, they could, as against the public, the State or municipal authorities, derive no right through a license fi'om the military authorities to use the same for their private benefit. The Mississippi & Tennessee E. E. Co. by using such road for its own purposes became a trespasser and liable for any damage occuring in consequence of the passage of its train.</p> <p>The-Miss. & Tenn. E. E Co. not claiming the right to use this road as part of their franchise, their right to use it may be inquired into, whenever material in any suit, by a third person.</p>

<p>1. Practice. Plea in Abatement. The benefit of a plea in abatement is waived by filing a plea in bar.</p> <p>2. Same. Motion to dismiss. A motion to dismiss, founded on any defect that might be amended, should specify the grounds, otherwise the overruling of the same by the Circuit Court will not be held by the Supreme Court a cause of reversal.</p> <p>3. Lien on Boats. Admiralty. The proceedings prescribed by the Code, secs. 3550 et seif for the enforcement of a lien on steam or keel boats given by the Code, sec. 1991, are in personam and not in rem., and are therefore not in conflict with the Act of Congress giving to the District Courts ot the United States exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.</p> <p>Cases overruled : Greenlaw v. Potter, 5 Sneed, 390; Hill v. Mills, 9 Hum., 629.</p> <p>4. The Code, sec. 1991, gives no lien to secure damages for breach of a contract of affreightment.</p> <p>5. Petition faieixo to specify items. The failure of the plaintiff to specify in his petition for the writ of attachment the items composing his claim, is cured by the act of the defendant in taking issue upon the allegation of indebtedness in the declaration. It would be error in the Circuit Judge in such ease to exclude proof of the items.</p> <p>6. The warrant should direct the officer to summon the owner named as defendant, but the failure is cured by the appearance of the owner and making defense.</p> <p>ÍTotb. — See Emory etc. Co. v. Wood, 6 Heis., 198.</p>

<p>A married woman purchased a piece of land and borrowed the money to make the cash payment, executing- her note to the lender and promising to take a deed to her sole and separate use and then to give the lender a mortgage to secure the note. She paid for the land, took a deed as promised, but refused to make the mortgage. The lender filed a bill setting forth these facts and asking that the land he subjected. No defence was made, the bill was taken for confessed and a decree of sale, rendered. The woman having become discovert, filed her bill of review for error apparent. The defendant demurred. Held :</p> <p>1. The using of borrowed money to pay for land, neither gives to the lender the right to be subrogated to the vendor’s lien, nor does it create in his favor a resulting trust.</p> <p>2. The promise to make the mortgage was void under the statute, and although the failure to comply is a fraud, yet it is one against which the courts cannot relieve.</p> <p>3. The original decree subjecting the land was clearly erroneous, being manifestly inconsistent with the case stated in the bill.</p>

<p>A purchaser, under a deuree of sale to foreclose a mortgage, is not entitled to recover from the mortgagor, in the absence ot express covenants by him, an}’ portion of the purchase money received by the mortgagee in satisfaction of his debt, upon the ground that the title proved defective, and the purchaser was forced to pay a large sum to perfect it.</p>

<p>PROPERTY Exempt from Execution. Power of owner over. The owner has the absolute right to sell or mortgage property exempt from ex- . ecution, and such sale or mortgage will he enforced.</p> <p>Cases cited : Cox v. Ballentine, 1 Baxter, 362 , Houston v. Dyche, Meigs 76; Woods v. Bwnrtmgh, 2 Head, 202; Buson v. Dougherty, 11 Hum., 50.</p>

<p>A, by will gave his entire estate to his wife N during her widowhood, one-half to go to his daughter F immediately upon ISPs marriage, and the other half also on her death. The executor having in his - hands a considerable sum of money, induced N to execute to him a receipt for the same, upon his conveying to her certain slaves held by him in trust for sale. The slaves were lost by the events of the war, and N re-married. Thereupon the executor, as next friend of F, brought suit for one-half of the sum of money for which he held N’s receipt.</p> <p>Held : N is not liable to F in any amount.</p> <p>Case cited : Vaden v. Vaden, 1 Head, 444.</p> <p>Pee, Buetox, J. The executor is liable to F for the sum invested in the negroes, one-half to be paid now, the other on the death of N, but he has no right of recovery over against N or her second husband.</p>

<p>PROM HENRY.</p> <p>Appeal from a decree of the Chancery Court, April Term, 1872. John Somers, Ch.</p>

<p>FROM OBION.</p> <p>Appeal from a decree of the Chancery Court, October Term, 1871. XioN. John Somers, Ch.</p>

<p>FROM WEAKLEY.</p> <p>Appeal from a decree of the Chancery Court, at a special term, August, 1872. PIoN. JOHN Somers, Ch.</p>

<p>PROM SHELBY.</p> <p>Appeal from a decree of the Chancery Court, February Term, 1872. HoN. R. J. MorgaN, Ch.</p>

<p>Property under attachment was replevied by the defendant. Judgment was rendered against the defendant, but not against his surety on the replevin bond. At the next term of the court, the Circuit Judge, upon motion of plaintiff, rendered judgment against the surety.</p> <p>Held :■ Error. The judgment against the surety must he reversed.</p> <p>Cases cited : Elliott v. Cochran, 1 Col., 3?9; Gallina, v. Sudheimer, Wen-koff & Co., MS. 1872.</p>

<p>L. agreed in writing with V. to make a crop on shares, and to “bind and trust his half of the crop to the said V. for any debt he may owe or contract to him.” This agreement was not registered.</p> <p>Held: The agreement created no lien upon the crop in favor of V. for advances made by him.</p>

<p>1. Tenant in Common. Forcible Entry. A tenant in common may maintain an action of forcible entry without joining his co-tenants as plaintiffs.</p> <p>Case cited : Turner v. Lumbriclc, Meigs, 7.</p> <p>2. Same. Technical Error. A small portion of the land which had always remained in the possession of the plaintiff was included within the boundaries of the land, for the recovery of which the Circuit Court rendered judgment.</p> <p>Held: A technical, not substantial error, and no ground for reversal. Case distinguished: While v. Suttle, 11 Hum., 449.</p>

FROM LAKE. Appeal in error from Circuit Court, August Term, 1871. Hon. J. D. Porter, Jr., J. W. A. Bartlett was indebted to the firm • of Jas. C. Davis & Co., and to secure them executed to J. H. Tipton a deed in trust to certain personal property. E. G. Heines, the clerk of the County Court, was a member of the firm of Jas. C. Davis & Co., and the trust deed was acknowledged before his deputy.

<p>FROM SHELBY.</p> <p>Appeal from decree in Chancery, February Term, 1873. Hon, R. J. MORGAN, Ch.</p>

<p>Confederate Money. Payment in Confederate money voluntarily received by the clerk and commissioner on a note given for land sold by order of the court, is valid.</p> <p>JError, coram nobis. A judgment rendered on such note, upon motion, without notice and without crediting such payment, will be set aside by writ of error coram nobis.</p> <p>Same. Practice. Swearing jury. In such case it is not error to swear the ' jury to try the “matters in controversy.”</p>

<p>Instruments Under Sead. Presumption of Payment. Under the ancient law, a note under seal, was presumed to have been paid after the lapse of sixteen years.</p> <p>Same. Same. But this was a disputable presumption, either party could introduce proof, the one to rebut, the other to strengthen it.</p> <p>Same. Same. Statute of limitation. This presumption is not a statute of limitation,- and, whether in computing the sixteen years, the period of the war should be excluded, would in_a large measure depend upon whether the courts were or were not open.</p> <p>Case cited : Garter v. Wolfe, 1 Ileis., 694.</p> <p>Practice. The Circuit Judge, in a case brought up by appeal from a judgment of a justice of the peace, based on a note- under seal, permitted the plaintiff, the assignee of the note, to amend the warrant so as to make the payee plaintiff for the use of the assignee, and to strike out the assignment. Held :</p> <p>1. The amendments were properly allowed.</p> <p>2. After the striking out of the assignment, any evidence tending to impeach it, was irrelevant and properly rejected.</p>

<p>FROM CARROLL.</p> <p>Appeal from a decree of the Chancery Court, February Term, 1873. Hon. J. It. Hawkins, Sp. Ch.</p>

<p>FROM HARDIN.</p> <p>Appeal from a decree of the -Chancery Court, September Term, 1871. Hon. G. H. Nixon, Ch.</p>

<p>Co-SuiinTiisa. Burden of proof. A note, joint and several by its terms, was signed by A and B apparently as principals, and afterwards by C as surety. B insisted that A alone was principal, and B. and C. co-securities. Held:</p> <p>1. The burden of proof is upon B.,</p> <p>2. J£ A and B had by their actions induced C to think they were joint principals, B would be repelled from a court of equity if ho sought contribution from C as a co-surety whatever the fact might be.</p>

<p>PROM BENTON.</p> <p>Appeal from decree of the Chancery Court, May Term, 1871. Hon. John Somers, Ch.</p>

<p>FROM HARDIN.</p> <p>Appeal from a deoree of the Chancery Court, September Term, 1872. Hon. G. H. Nixon, Ch.</p>

<p>FROM DECATUR.</p> <p>Appeal in error from a decree of the Circuit Court. Hon. E. Wadker, J.</p>

<p>A rr ujhment. JReplery Bond. Sureties. A judgment, against sureties on a bond given to replevy property attached at law, rendered before a judgment against the defendant upon the cause of action for which the suit is brought, is void.</p> <p>Code cited: sec. 3514.</p>

<p>FROM SHERRY.</p> <p>Appeal from a decree of the Chancery Court, April Term, 1873. Hon. W. M. Smith, Ch.</p>

<p>Pleading. Usury. To a count upon a, note, the defendant offered, when the cause was called for trial, to plead “that the plaintiffs received therefor a greater rate of interest than they were allowed hy law- to receive, that therefore the said note is void.” The plea was not verified by affidavit. Held :</p> <p>1 The Circuit Judge properly refused to permit it to be filed.</p> <p>Case cited : Beecl v. Moore, Meigs’ R., 80.</p> <p>2. Same. Same. I'nder the Code, evidence tending to show usury is not admissible under a plea of non assumpsit, where notice lias not been given or waived.</p> <p>3. Query Does a National Bank forfeit the whole debt by taking a greater rate of interest than is allowed by law?*</p>

<p>- "yENDOR’s Liny- Leasehold. The vendor of a leasehold interest in real estate, has an implied lien to secure the payment of the purchase money.</p>

<p>Pubchase Money. How Payment Resisted. In general, the vendee can- ■ not resist the payment of the purchase money by alleging defects in the title. He must look to his covenants;but in case of fraud and insolvency of the vendor, the vendee may successfully resist the payment by cross-bill setting forth specifically the detects, and charging the fraud and insolvency.</p> <p>Cases cited: Hurley v. Coleman, 3 Head, 266; Curd v. Pams, 1 Heis., 574; Ingram, v. Morgan, 4 Hum., 66; Woods v. Horth, 6 Hum., 309; e.Rarrell v. Clark, 5 Sneed, 436 ; Young v. Butler, 1 Head, 640; Buchanan v. Alwell, 8 Hum., 516.</p>

<p>Pabtnership. Negotiable Paper. Whether a firm can he held liable to a bona fide holder, without notice, upon a note endorsed in its name by a member, for his own accommodation, depends upon the nature of the business, the usage of trade and the course of dealing of the particular firm.</p> <p>Case cited : Orossthmite v. Boss, 1 Hum., 23.</p> <p>Where the nature of the partnership is such that it may or may not be proper to deal in negotiable instruments, ex. gr. the partnership of a publishing company, it is error in the Circuit Judge to charge without qualification, that the firm was liable, if the holder received, the note before maturity, in due course of trade and without notice.</p>

<p>FROM BENTON.</p> <p>Appeal from a decree of the Chancery Court, January Term, 1873. Hon. George H. Nixon, Ch.</p>

<p>FROM GREENE.</p> <p>Appealed from a decree of the Chancery Court.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from a decree of the Chancery Court.</p>

<p>PROM CLAIBORNE.</p> <p>Appeal from a decree of the Chancery Court, April Term, 1872. H. C. Smith, Ch.</p>

<p>PROM MARION.</p> <p>Appeal from a decree of the Chancery Court.</p>

<p>FROM BRADLEY.</p> <p>Appeal from a decree of • the Chancery Court,. August Term, 1872.</p>

<p>PROM SULLIVAN.</p> <p>• Appeal from a decree of the Chancery Court, May Term, 1872.</p>

<p>PROM HAWKINS.</p> <p>Appeal from a decree of tbe Chancery Court, May Term, 1867.</p>

<p>FROM GREENE.</p> <p>Appeal in error from a judgment of the Circuit Court, May Term, 1872.</p>

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