Volume 58 — Tennessee Reports

PROM KNOX. Appeal in Error, from the judgment of the Circuit Court of Knox county, October Term, 1871. E. T. Hall, J. This case was begun by a warrant sued out from the office of a justice of the peace for Knox county, March 15th, 1871, before whom, on the 14th April, 1871, pleadings were made up to an issue in writing. The single issue is the statute of two years and six months, in favor of the defendant.

PROM MORGAN. Appeal in error from judgment of Circuit Court of Morgan county, March Term, 1871.

FROM KNOX. Appeal in error from the judgment of the Circuit Court dismissing certiorari, October Term, 1871. E. T. Hall, J. The question in the record is as to the correctness of the Circuit Judge in sustaining motions to dismiss an original and amended petition for certiorari and supersedeas to be relieved from a judgment by motion, for the failure of the constable to return an execution. The judgment was rendered against the plaintiffs in error as sureties upon the bond.

FROM KNOX. Appeal by plaintiffs below from judgment of Circuit Court, June Term, 1872. E. T. Hall, J. There is but one question in this record. Is the instrument sued on “an assigned aeeount” or an “order,” and if so, was the order accepted? Authorities relied upon: Thompson & Steger, 1959, 1960 and 1961, aud authorities there cited; Porter v. Dillahunty, 8 Hum., 570.

FROM KNOX. This suit was commenced by warrant, and the de fendant, Wood, having failed to appear, for reasons, assigned on the record, the justice rendered judgment against him for $200 and costs. Upon Wood’s petition the cause was removed by certiorari to the Circuit Court, where, at the return term, a motion was made to dismiss, but was afterward withdrawn.

<p>1. Account Rendebed. Implied aisent. Upon an account being rendered. of indebtedness acquiesced in without objection made in a reasonable time, the law raises a presumption that the justness of the account is admitted.</p> <p>2. Duty op Judges. To charge the lavj applicable to the evidence. It is the right of parties litigant, and the duty of the judge, when requested, to charge the law applicable to the facts of the case on trial, and refusal to so charge is error, for which the cause will be remanded.</p>

<p>EROM HAWKINS.</p> <p>Appeal from decree of Chancery Court at Rogers-ville, January Term, 1872, holding the deed void for want of proper certificate. H. C. Smith, Ch.;</p>

Appeal from the Chancery Court at Jonesboro, May Term, 1870. H. C. Smith, Ch. One tenant in common, who has been in the exclusive perception of the rents and profits, on a bill for partition and account, the latter will also be decreed : Story’s Eq., sec 655. Passim.

<p>FROM ROANE.</p> <p>Appeal from the decree of the Chancery Court at Kingston, March Term, 18.72. O. P. Temple, Ch.</p>

<p>FROM KNOX.-</p> <p>Appeal from decree of Chancery Court at Knoxville, March Term, 1872. Alfred Caldwell, Special Chancellor.</p>

<p>1. State and Federal Court Executions. Date of levy, not of judgment, gives priority'. Where executions issue from State and Federal Courts, the rights of the creditors to the debtor’s property are determined by the seizure of the property, without reference to the priority of lien of the State or Federal judgments.</p> <p>■2. Same.' Conflicting Rights. An execution issued from a Federal Court, tested of a day prior to that of an execution from a State'Court, but the State execution was first levied ; Held: On the bill filed in the State Court by the plaintiff in the Federal execution, to set up the priority of his lien, that the bill would not lie, and that he was without remedy.</p>

PROM KNOX. Appeal from Chancery Court at Knoxville, January Term, 1870. O. P. Temple, Ch. 1. It is insisted that the Chancellor erred in admitting the deposition of William Harmon to be read after respondent’s exceptions thereto had been sustained by the Clerk and Master, and no appeal had been taken from his decision. 2. The whole bill should be dismissed for cham-perty. The bill was filed the 31st of March, 1866.

EEOM GEEENE. Appeal from decree of the Chancery Court at Greeneville, May Term, 1872. - H. C. Smith, Ch. This is an attachment bill against a non-resident corporation. It sets up an indebtedness by the respondent to the complainant in several sums, amounting in the aggregate to upwards of $2,500, or thereabouts; prays for attachment, publication and decree for the amount of the indebtedness.

FROM GREENE. Appeal in error from Circuit Court of Greene, February Term, 1872. E. E. Gillenwaters, J. This is an action on the case commenced by C. Bowers in his life-time against the defendant in the Circuit Court of Greene county for nine boxes of tobacco taken by the defendant. At the June Term, 1871, there was a verdict for the plaintiff,. which was-set aside and a new trial granted by the Circuit Court.

PROM GREENE. Appeal from the decree of the Chancery Court at Greeneville. C. H. Smith, Ch. -This is a bill to rescind a contract of purchase of a patent right. Held: that the improvements of Miller were attached to the machine exhibited to complainants, at the time of their purchase, and that Miller had made his application for a patent.

<p>PROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville, Eebruary Term, 1872. C. H. Smith, Ch.</p>

<p>FROM KNOX.</p> <p>Appeal from Special Term of Chancery Court at Knoxville, July Term, 1872. O. P. Temple, Ch.</p>

PROM KNOX. Appeal from Chancery Court at Knoxville, March Term, 1872. M. L. Hall, J., acting for O. P. Temple, Ch., by interchange. 1. Bogart was induced to permit the form of the note to be changed by the false representations of McClung, a banker in whose knowledge and integrity he had confidence, that his interests would not thereby be affected.

FROM ROANE. Writ of error to Circuit Court of Roane county, April Term, 1872. E. T. Hall, J. Haggard brought an action of detainer before three justices of the peace, t.o recover possession of a tract of land in Roane county. He obtained judgment against plaintiffs in error, and they having prayed an appeal, he procured a writ of possession under the Act of the 9th February, 1870, (Shankland, 124), and dispossessed them.

FROM KNOX. Appeal from Chancery Court at Knoxville, March Term, 1872. O. P. TEMPLE, Ch. The original bill alleges that on the 22d of October, 1859, complainants recovered seven separate judgments before a justice of the peace,- upon which executions issued, and was levied upon the lands of defendant. . That said lands were condemned, sold by the sheriff, and purchased for complainants by one Henry Chiles in satisfaction of their judgments.

FROM HAWKINS. Appeal from the Chancery Court at Rogersville, May Term, 1871. H. C. Smith, Ch. The principal errors relied on in this cause upon which a reversal is asked are the following, viz.; 1.

<p>FROM GREENE.</p> <p>Appeal from Chancery Court at Greeneville, May Term, 1870. H. C. Smith, Ch.</p>

PROM HAWKINS. Appeal from the Chancery Court at Rogersville, May Term, 1872. H..

<p>Purchaser under Deed of Trust. No creditor as such. A creditor who has accepted a deed of trust on land, and bid thereon a part of his debt, is not in a position, as purchaser of the land, to set aside a deed registered before the making of his de'ed of trust, on the ground that it was without consideration and in fraud of creditors. He does not seek relief as a creditor for the remainder of his debt, nor is the maker of the deed made a party defendant to his bill.</p>

.The replication to the plea is valid, and if true (as it unquestionably is) is conclusive of the case, and the proceedings in bankruptcy are no bar to the relief sought by the bill. Courts of equity have jurisdiction to declare void verdicts, judgments, decrees and other judicial proceedings procured by fraud. 1 Story’s Eq., sec. 252, 2.

FROM GREENE. Appeal in error from the Circuit Court of Greene. M. L. Hall, Criminal J. of Knox, sitting by interchange with E. E. Gillenwaters. This was an action brought by the Eailroad Company against Galbraith and his security upon his bond as depot agent for alleged balances due from him on the settlement of accounts. Among other things the defendant pleaded set-off.

FROM MONROE. Writ of error and supersedeas from Circuit Court of Monroe, January Term, 1872.

FROM KNOX. Writ of error and supersedeas, decree March Term Chancery Court, Knoxville, 1872. O. P. Temple, Ch„ The bankruptcy of Eifler cannot avoid the conclusion to which the Chancellor came, and his decree is strictly in accordance with the law. In Bump’s Bankrupt Law the court say, no attachment made prior to the period of four months next preceding the- commencement of proceedings in bankruptcy is dissolved. Not being dissolved, it remains in full force.

PROM ROANE. Appeal in error from Circuit Court of Roane county, August Term, 1869. E. T. Hall, J. Hopkins brought this action of replevin before a justice of the peace for Roane county, on the 23d of October, 1866, and set for trial on the 26th October, 1866, when a judgment- was entered against Hopkins and his securities for the costs.

<p>1. Set-oef. Something must he due Plaintiff. The jury must find something due plaintiff, or they cannot allow the defendant anything as set-off: citing 3 Head, 570; 1 Heis., 482. If nothing he due plaintiff, defendant, although he prove his claim, can only have judgment for costs.</p> <p>2. Same. Mutuality of Demand. A several demand cannot he proved, where two plead joint set-off. A joint demand only can be shown: citing 2 Yer., 558; 5 Col., 270; 2 Heis., 202.</p>

FROM ROANE. Appeal in error from the Circuit Court of Roane, August Term, 1872. E. T. Hall, J. This is an action which was brought by B. B. Hall against James Dodson, before three justices of the peace, to recover the possession of-a tract of land in Roane county. It is called in the warrant an action of “forcible and unlawful entry and detainer.”' There was judgment for Hall before the justices, and Dodson appealed.

EROM M’MINN. Appeal from decree of Chancery Court at Athens by transfer from Madisonville, May Term, 1871. D. M. Key, Ch. The first question we desire to submit to the court is, did the Chancellor, under the law, have the right and power to allow the defendant Jones $1,000 for his services as receiver?

PROM MONROE. Appeal -in error from the Circuit Court of Monroe county, January Term, 1871. E. T. Hall, J. 1st. Where judgment is rendered by motion against a party having' a real defense, (no matter what may be the nature of that defense), and who had no notice of the motion, the party aggrieved is entitled, by express statute, to the remedy of a writ of coram nobis. Code, sec. 3117.

FROM GREENE. Appeal from Chancery Court, November Term, 1870. H. C. Smith, Ch. 1st. This decree is interlocutory.

<p>1. Chanceey Pleading. Demurrer in answer. Waived. A party putting a demurrer into the answer waives it by not having it disposed of before the hearing.</p> <p>2. Same. Other defenses waived also. The defense that there was no obstacle to defense at law waived by not bringing to hearing before trial upon the merits.</p>

FROM KNOX. Appeal from Chancery Court at Rogersville, special January Term, 1872. H. C. Smith, Ch. The case stated by the bill is this: On July 5, 1839, the State of Tennessee granted to George Hall twenty-five hundred acres of land, lying in Hawkins county, the boundaries of which are set forth with particularity.

PROM HAWKINS. Appeal from Chancery Court at Rogersville. H. C. SMITH, Ch. The question in this case arises upon the sufficiency of the plea of defendant. The gravamen of the bill is, that Vm.

PROM GREENE. Appeal from Chancery Court at Greeneville, May Term, 1870. H. C. Smith, Ch. In this case the bill was filed to enjoin proceedings under an award, made by arbitrators under an agreement by the parties. Ford brought suit against Lydia Stonecipher and others for damages for alleged trespasses.

EROM WASHINGTON. Appeal from the decree of the Chancery Court at Jonesboro, May Term, 1871. H. C. Smith, Ch. 1. The bill is not demurrable, because the' names of the individuals who compose the corporation are given. They are described as the “Mayor and Aldermen of the town of Jonesboro.” The charges in, and relief sought by the bill, are against the corporation and not against the individuals. 2.

<p>PROM GREENE.</p> <p>Writ of error from the Circuit Court of Greene county, June Term, 1871. E. E. Gillenwaters, J.</p>

PROM HAWKINS. Writ of error from the Circuit Court of Hawkins-county, May Term, 1870. E. E. Gillenwaters, J. This action was instituted in the Circuit Court of Hawkins county by the defendant in error, against the-plaintiff, on a note for $1,137.50, made March 15, 1862, and due at six months. The damages are laid: in the writ at $1,600. The pleas nil debit and others-not necessary to be noticed.

FROM HAWKINS. Appeal from Chancery Court at Rogersville. S. J. W. Lucky, Ch. This is a voluminous record, but when examined it will be found that the material facts are few. The case is one of some novelty, and presents a criminal and reckless disregard of the rights and interests of a ward, on the part of a faithless guardian, rarely equaled in the history of maladministration and' bad faith in fiduciary officers.

FROM. K.VOX. Appeal in error from the Circuit Court of Knox, October Term, 1870. E. T. Hall, J. The declaration in this case is for a trespass on plaintiff’s real estate, and wantonly and .forcibly pulling down plaintiff’s furnace, buildings and machinery, and taking and carrying away said machinery, and destroying or converting the same to their own use. Defendants plead not guilty.

<p>PROM MCMINN.</p> <p>Appeal from Chancery Court at Athens, May Term, 1872, D. M. Key, Ch.</p>

FROM KNOX. Appeal in error from Circuit Court of Knox county, June Term, 1872. Held: in the case of Maynard v. Fox, Admr., 2 Col., that the correct construction of this statute was, that it' created a limitation of two and half years. The Act of 1865, above quoted, declares in so many words, that it shall not be held to operate, nor shall any portion of the time be computed until after January 1, 1867.

<p>FROM LOUDON.</p> <p>Appeal from Chancery Court at Loudon, May Term, 1872. O. P. Temple, Ch.</p>

<p>RECORD NOT FURNISHED REPORTER.</p>

FROM BLOUNT. Appeal from the decree of the Chancery Court at Maryville, June Term, 1870. O. P. Temple, Ch. The single question presented in this record is, as to the sufficiency of the certificate of the clerk of the County Court of Blount county, to a deed of trust filed as an exhibit to the answer of J. C. M. Bogle-Pails to say of the bargainors, “the within named,” or that he is “personally acquainted.” We think this is a stronger case than Fall & Cunningham v. John 7.

<p>1. Evidence. Lost paper. A defendant having made affidavit of the loss of a certificate of a private survey, the finding a memorandum of the survey among the papers of the surveyor, who was dead before the suit was brought, is not admissible in evidence.</p> <p>2. Statute oe Limitations. A memorandum of survey. A certificate of a survey, by a private surveyor, made at the time of a parol gift of lands, is evidence to define boundary, under the second section of the statute of limitation of 1819: Code, sec. 2765.</p>

.FROM GREENE. Appeal from decree of Chancery Court at Greene-ville, February Term, 1872. H. C. Smith, Ch. 1. To enable a court of equity to entertain a bill for discovery where there is no other ground for equitable relief, the bill must allege that complainant is mot able to prove the fact sought. to be discovered otherwise than by defendant’s admissions. Lindsley v. James, 3 Col., 477. 2.

PROM BLOUNT. Writ of error and supersedeas. Chancery Court at Maryville, July, 1871. M. L. Hall, J., by interchange with O. P. Temple, Ch. Only one question arises upon this record, for the consideration of the court.

<p>PROM WASHINGTON.</p> <p>Appeal from the decree of the Chancery Court at Jonesboro, May Term, 1871. H. C. Smith, Cb.</p>

<p>PROM MONROE.</p> <p>Appeal from Chancery Court at Madisonville, March Term, 1872. D. M. Key, Ch.</p>

FROM M’MINN. Appeal from Circuit Court of McMinn. W. P. Hiokerson, J. The plaintiffs claim title to the land sought to be recovered by them in this action, to-wit: Jolly’s island, by virtue of a grant, No. 201, from the State of North Carolina to John Hacket and Stokeley Donelson, dated July 17, 1794, and by mesne conveyances from Donelson down to Thomas Hopkins.

<p>FROM BRADLEY.</p> <p>Appeal in error from Circuit Court of Bradley, January Term, 1872. J. B. Hoyl, J.</p>

<p>EROM MEIGS.</p> <p>Appeal from Chancery Court of Meigs, September Term, 1871. D. M. Key, Ch.</p>

FROM HAMILTON. • Appeal in error from Circuit Court of Hamilton, July Term, 1871. J. B. Hoyl, J. This was a suit by defendant in error against plaintiff in error for killing a cow. The only question presented here is, whether the cow, at the time it was killed or injured, was the property of the plaintiff below, who had sold the cow to Vinson, who had agreed to pay him thirty dollars for it, and the plaintiff had agreed to take it..

<p>PROM BLOUNT.</p> <p>Appeal from Chancery Court at Maryville. O. P. Temple, Ch.</p>

<p>1. Change oe Venue. Once only for same cause. The Code, see. 2836, provides that fchange of venue shall be ordered only once for the plaintiff or defendant, except for causes not in existence when the first change of venue was made. In this case the venue having been twice changed for the same objection by the plaintiff, the cause is remanded to original forum for trial.</p> <p>2. Same. Agent may make affidavit. There is no reason why the agent or'attorney of a party may not make affidavit for the change of venue for his principal.</p>

<p>1. Baulroads. Carriers of Goods and of Passengers. The duties and liabilities of railroads and other common carriers differ in regard to goods and passengers. In regard to goods, where shown to have been in possession of the carrier and injured or lost, the presumption of liability arises, and can only be removed by proof of loss, or injury by act of God or the public enemy. The carrier of passengers only contracts for competent skill, and that as far as human care and foresight can go he will transport them safely.</p> <p>2. Same. Negligence not presumed from injury of passenger. Upon proof of an injury to a passenger, no presumption against either the carrier or passenger arises. It is incumbent upon the plaintiff to go further and show not simply the injury, but that it was the result of some negligence of the carrier.</p> <p>3. Practice in Circuit Court. Re-examination of Witnesses. It was error in the court, over objection, to permit a witness to be re-called and to state new matter, without first requiring counsel in advance of the examination to state what he purposed to prove. It was error not to exclude the testimony when given, which was incompetent, although not specially requested to do so.</p>

<p>PROM GREENE.</p> <p>Appeal from Chancery Court at Greeneville, November Term, 1871. H. C. Smith, Ch.</p>

<p>FROM WASHINGTON.</p> <p>Appeal in error from Circuit Court, August Term, 1871. E. E. Gillen waters, J.</p>

EEOM OAETEE. Appeal in error from March Term, 1871. E. the Circuit Court of Carter, T. Gillenwatees, J. The only question which we wish to present to the •court is, did the court below properly refuse defendant in error the right to file the plea of accord and satisfaction?

From Chancery Court at Jonesboro, May Term, 1871, writ of error. H. C. Smith.

<p>PROM WASHINGTON.</p> <p>Appeal in error from Circuit Court of Washington April Term, 1871. E. E. Gillenwaters, J.</p>

EROM GREENE. From Chancery Court at Greeneville, November Term, 1870. H. C. Smith, Ch. The first question which arises is, can the respondents urge the invalidity of the conveyance made by Kelly to Talmage of the timber growing on the land of the latter. It is insisted in behalf of the complainant that they cannot. The conveyance was never complained of by the intestate, nor is it now complained of by his personal representatives.

<p>PROM CARTER.</p> <p>Appeal in error from the Circuit Court of Carter county, July Term, 1871. E. E. Gielenwaters, J.</p>

PROM UNION. Appeal from Chancery Court at Maynardville, February Special Term, 1869.

<p>FROM BRADLEY.</p> <p>Appeal in error from Circuit Court of Bradley, September Term, 1872. J. B. Hoyl, J.</p>

PROM MCMINN. Appeal from Chancery Court at Athens, June Term, 1872. L. M. Key, Ch. 1. At the commencement of the war, this Church was regularly connected with Kingston Presbytery, under the ecclesiastical jurisdiction of the United Synod. 2. When the Federáis occupied East Tennessee, in 1863, the minister in charge and many members were expatriated by violence, and ceased to worship in the Church. 3.

PROM WASHINGTON. Appeal from decree of the Chancery Court at Jones-boro, November Term, 1871, dismissing bill of review upon demurrer. H. C. Smith, Ch. Complainant filed his original attachment and injunction bill in the Chancery Court at Jonesboro, June 29, 1865, against W. M. Grisham, Jas. S. Beard Sol. Saylor and C. Sandford, to enjoin defendants from committing waste on his premises, etc., and attaching timber or wood already cut.

<p>Chancery Jurisdiction. Mistake as to solvency of an estate. While the Chancery Court has jurisdiction in certain cases to relieve against mistake of facts, it cannot do so in a case like this, where the purchaser, at a judicial sale of land of an estate to pay debts and for distribution, bought with knowledge of the existence of a vendor’s lien on a portion of the property, and suffered the sale to be confirmed to himself without objection ; the alleged belief that the estate was solvent and able to discharge the lien, is not such a mistake as can be relieved against — it is simply bad trading.</p>

<p>Chancery Jurisdiction. Attorney and Client. The investigation of charges of fraudulent conduct in transactions between client and attorney belongs peculiarly to a court of equity, and cannot be conducted in a court of law without embarrassment.</p>

<p>Execution. Levy. No satisfaction. Upon an execution for $314 was the following levy endorsed, “ levied this fi fa on twelve head of two year old mules as the property of A. G. ~W.” This levy is not presumptive satisfaction of the execution. The valúe of the property is not shown.</p>

FROM CAMPBELL. Appeal in error from Circuit Court of Campbell, May Term, 1872. J. H. RANDOLPH, J. In the fall of 1864 the plaintiff sold a horse to the defendant for $175, $75 of which was paid in money, and an order for $100 on one T. T. Coffin given to the plaintiff in payment of the balance. This order Coffin accepted, and it was handed to him.

<p>Divobce. Motion of wife to dispauper the husband. It was not error to permit a wife, upon motion, to dispauper her husband suing for a divorce. ' It was an authorized defense she might make. It was not only her right but her duty to expose the fraud attempted upon the court and its officers entitled to costs, and thus to force the husband either to give security or go out of court.</p>

<p>FROM GRAINGER.</p> <p>From Chancery Court at Rutledge, April Term, 1872. H. C. Smith, Ch.</p>

PROM JEPFERSON. Writ of error. Chancery Court at Dandridge, March Tc.'ih. 1872. H. C. Smith, Ch. This is a bill filed in the Chancery Court at Dan-dridge, on the 18th December, 1868. The bill is filed to subject a tract of land therein mentioned, to the payment of the judgments of the complainants against A. G. Watkins.

PROM HAMBLEN. Appeal from Chancery Court at Morristown, July Term, 1872. H. C. Smith, Ch. The cause was heard upon bill and demurrer. The demurrer was sustained and bill dismissed. The complainant seeks by his bill, injunctive relief against a venditioni exponas from a court of law. The venditioni exponas ordered the sale of a lot in Morris-town, of less value than $500.

<p>Chujkchbs AND the Courts OP Law. The Courts will interfere to protect rights of Church Members. A minority of a congregation seizing the temporalities of a Church and assuming to be the Church, cannot change the relation of the Church and attach it to another denomination against the will of the majority, excluded by force or intimidation from their rightful share in the control of the affairs of the Church. The wrongful act of such a minority holding possession of the Church is subject to be redressed by the civil courts. Courts will not control or mould the faith or doctrines of a Church, nor settle questions of orthodoxy, hut they investigate the differences of doctrine, discipline or practice, as matters of fact bearing on the question-of civil right. The act of a minority attempting'to control a Church and to carry it to a denomination different from that to which it belongs, and to which the majority, excluded from a voice in the control of its affairs, desire to continue, is a nullity. It will not even have-the effect to forfeit the right of the usurping minority to a voice in the Church affairs. »</p>

FROM HAMILTON. Appeal in. error from Circuit Court. J. B. Hoyl, J. The plaintiff in error claims that the decision of the court below was manifestly erroneous. The. engagement of Montague to pay the order depended upon a condition well understood by Myers, viz., that Howard & Co. should complete their contract.

FROM HAMILTON. Appeal in error from Circuit Court of Hamilton, July Term, 1871. J. B. Hoyl, J. On the 8th day of June, 1866, defendants in error recovered a judgment against plaintiff in error for $222 before a justice of Hamilton county. Soon thereafter the plaintiff in error filed a bill in chancery at Nashville, attacking the judgment and to enjoin the collection of the money.

<p>1. Pleading. Statute of limitations applies to cause of action and not to the form of the suit. The writ was “ in an action to plaintiffs’ damages.” The declaration was in debt. The second count, which was the one upon which the jury rendered their verdict, was for money had and received. The statute of limitations of three years had no application to this case, either as pleading was before our Code, or under the Code practice. In the former case, it applied to the form of the action ; under the Code, it applies, regardless of form, to the cause of action.</p> <p>:2. Evidence. Memorandum booh of deceased not evidence. It was not error to refuse to have read entries made by defendant’s decedent in bis private memorandum book of payments made by him to plaintiff. In two classes of cases such entries are admissible.</p> <p>1. When made in official or professional employment, they are admitted as original evidence.</p> <p>2. When made by a party, since dead, against his own interest, they are admitted as secondary evidence.</p> <p>But the entries offered in this case do not fall within either of these categories, and were therefore properly excluded.</p>

<p>FROM HAMBLEN.</p> <p>Appeal in error from the Circuit'Court of Hamblen, February Term, 1872. J. H. Randolph, J.</p>

Writ of error from Chancery Court at Dandridge, November Term, 1868. S. J. W. Lucky, Ch. There is another question to be disposed of in this ease. Held: after full argument, in the case of Churchwett v. The Banlt of East Tennessee, 1 Heis., 780, adopting the rule and the reasoning to support it in Young v. Officer, 7 Yerg., 137. The bond for the writ of error is insufficient, but we now offer to give a new and proper bond at once.

FROM HAMILTON. Appeal in error from the Circuit Court of Hamilton, April Term, 1872. J. -B. Hoyl, J. There is a misjoinder of parties in the declaration. In the first and second counts, J. G. and R. M. Stockyard are plaintiffs. In the third count, J. G. Stockard is alone plaintiff; and in the fourth count, R. M, Stockard alone. This will never do. It is such a misjoinder as goes to the whole declaration, so that no separate count' can support a verdict.

<p>FROM HAMILTON.</p> <p>^ Appeal in Error from the Circuit Court of Hamilton, November Term, 1871. J. B. Hoyl, J.</p>

FROM HAMBLEN. ¡A-ppeal in error from Circuit Court, July Term, 1872. J. B. Hoyl, J. Coker & Co. attached the goods and other property of Spitzer & Co., which had been previously conveyed by Spitzer & Co. to secure R. K. Byrd, on endorsements to the amount of $10,000.

FROM HAMILTON. Appeal in error from Circuit Court, July Term, 1872. J. B. Hoyl, J. This is an action commenced in the life-time of D. Y. McCorkle, deceased, and revived against, his administrators. During his life-time the deposition of the plaintiff was taken and placed on file. On the trial of the cause the reading of the deposition was objected to, and the objection sustained. This action of the Circuit Court presents the only question to be determined by this court.

<p>FROM HAMILTON.</p> <p>. Appeal in error from the Circuit Court of Hamilton, November Term, 1871. J. B. Hoyl, J.</p>

FKOM HAMILTON. Appeal in error from Circuit Court of Hamilton, September Term, 1872. J. B. Hoyl, J. First. Judge Puckett had a right judicially to notice the fact that Bean, by the Constitution and the Code, was. inelligible to the office of sheriff: 1 Green-leaf on Ev., ch. 2, sec. 6; 3 Hum., 233. 1. If a defaulter: Tenn. Constitution, sec. 25; Code, sec. 748, sub-see. 4; 6 Hum., 41. 2.

<p>Practice nr Supreme Court. Motion to dismiss appeal. No final decree. In the court below it was agreed to submit the matter in litigation to the award of arbitrators, whose decision should be the judgment of the court. The award was made. The Chancellor, upon motion and proof, set it aside and ordered the clerk and master to take and state an account. Appeal from this action of the Chancellor was asked and granted. Had the Chancellor made a decree settling the rights of the parties, his decree could have been appealed from. • But no such decree has been made. The motion, therefore, to dismiss the' appeal is well taken and must be allowed.</p>

FROM MARION. [Transcript not furnished reporter.] It will be perceived that plaintiffs’ entry, survey and grant are all older than those of defendant’s. The court charged that plaintiffs’ entry was void; That the grant was sufficient, but because of a void ■entry it could not relate thereto, and could only take •effect from its date.

PROM GRAINGER. Appeal in. error from Circuit Court, March Term, 1871. J. H. Randolph, J. The only question in the case is, can Morris rely-upon the adjudication in favor of Creed as a bar to the action against himself? 1. In morals, at least, we think the former judgment pleaded would hardly be' a bar were Creed himself again sued.

<p>Attachment Suit. Levy upon land. Judgment by confession. Execution awarded, but venditioni exponas issued. Sale under this writ void. Suit was commenced by levy of attachment upon land of defendant, who came into court and confessed judgment for $600, and costs. Execution was awarded, but the clerk issued a venditioni expon,as to enforce the attachment levy. The land was sold and the sheriff executed a deed to the purchaser. The purchaser got no title. The clerk had no power to issue any other writ than the one prescribed in the judgment.</p>

PROM HAMILTON. Appeal in error from Circuit Court of Hamilton, July Term, 1872. E. E. Gillenwaters, J. This suit is by the defendant in error, to recover $50,000, for an alleged loss of 176 bales of cotton. The facts are as follows: — In the spring of 1862, the defendant stored 186 bales of cotton with J. L. M. French, a commision, storage and forwarding merchant, of Chattanooga, with special instructions to retain it until he gave him further directions in regard to it.

FROM LOUDON. Appeal from Chancery Court at Loudon, November Term, 1871. O. P. Temple, Ch. The complainant, Heiskell, used and enjoyed the water in the dam uninterruptedly for seven years before the respondent undertakes to disturb his use and enjoyment by a diversion of the water, therefore he has a right to the easement or incorporeal hereditament which the respondent Cobb can not disturb.

FROM MARION. Appeal in error from Circuit Court of Marion, July-Term, 1872. J. B. Hoy.l, J. It is conceded that the original note executed by-Griffith to Kedfield .& Co. was not transferred in due-course of trade because (although not due) it was done in payment of an antecedent debt. Rhea y. Allison, 3 Head, 179, 180; JFIiekerson v. Raiguel &• Go., 2 Heis., 329. 1. But the case at bar differs from the class of' cases referred to, inasmuch as no previous equities existed.

FROM CAMPBELL. Appeal in error from Circuit Court of Campbell,. May Term, 1872. Held: upon mature deliberation, not to be responsible for the wrongful acts of their officers and policemen because of their being local governments. Pes-terfidd v. Viahers, 3 Col. First. The main question is, whether the defendants are personally liable under the facts?

<p>FROM WASHINGTON</p> <p>Appeal from Chancery Court at Jonesboro, May Term, 1872. H. C. Smith, Cb.</p>

<p>SvEOrAL CONSTABLE. Affidavit showing necessity for appointment. By the Act of 1870, amending see. 4148 of the Code, a magistrate is only empowered to specially deputize one to act as constable when oath is made in writing ,by the party or his attorney that there is no regular officer at hand, and that the business is urgent. The oath made in this case was that the affiant could not conveniently see an officer, and wishing to bring suit, asks a special deputation. The deputation made' on such an affidavit was void, and the notice given is void also, being given by one not authorized to serve the warrant.</p>

<p>PROM CLAIBORNE.</p> <p>Appeal in error from Circuit Court of Claiborne, January Term, 1872. J. H. Randolph, J.</p>

<p>PROM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox, February Term, 1872. E. T. Hall, J.</p>

<p>PROM JEFFERSON.</p> <p>Appeal from Chancery Court at Dandridge, October Term, 1871. H. C. Smith, Ch.</p>

<p>Conveyance ojt Land. Consideration, special contract for maintenance and suppoii. An infirm old man and his wife,in consideration of maintenance during the remainder of their lives, made a conveyance of a tract of land. Becoming dissatisfied with their vendee, they left his house. The wife died, and the husband refused to live with his ven-dee, who alleged willingness to comply with his contract. The Chancellor decreed that vendee should pay to vendor in money the cost of hoarding him since he left the house of vendee, and continue to pay, per annum, a sufficient amount to board the vendor elsewhere, and declared this sum a charge upon the land conveyed.</p> <p>Held, this is not to enforce contracts, but to make them. Nothing appears in the evidence to show cruel or harsh treatment of the vendor, and if he does not choose to live with vendee, he is not entitled to demand the payment of his board elsewhere.- But the value of his clothing is a money charge, and a per annum allowance for that will be made.</p>

<p>Pleading. Order of. As set forth in sec. 4384 of Code. The adoption of any of the pleas set forth in Code, sec. 4384, is a waiver of those preceding it as there enumerated. Leave of the court must be obtained to withdraw an answer and to file a demurrer, or to withdraw a demurrer and file a plea in abatement.</p>

<p>FROM HAMBLEN.</p> <p>Appeal from Chancery Court at Morristown, July-Term; Í872. H. C. Smith, Ch.</p>

FROM HAMILTON. Writ of error. Chancery Court, Special January Term, 1872. D. M. Key, Cb. 1. The affidavit fails to show that Sherry owed the fifty dollars to Divine or any one else; therefore it is void. See Sulivan v. Fugate, 1 Heis., 20-22. '2. The attachment wholly fails to show the. nature or character of the debt. See Boon v. Bahai, 1 Heis., 12-14. 3. The appearing and pleading in abatement does not cure the defect. See authorities above. 4.

<p>FROM HAMILTON.</p> <p>Appeal from Chancery Court at Chattanooga, April Term, 1872. D. M. Key, Ch.</p>

From. County Court of Washington, August Term, 1872. This is a proceeding instituted in the County Court of Washington county by petition, seeking to sell the lands of the intestate to pay the debts of the estate. The estate is solvent, and the single question in the case is, has the County. Court jurisdiction to sell the lands of heirs to pay the debts of the intestate, except in the case of insolvent estates? The County Court has jurisdiction to sell lands: Sec. 4201.

<p>1. Agency. War does not suspend. The existence of war does riot suspend agency. To transmit money collected across belligerent lines is contrary to laws of war. The act of the Legislature of Tennessee, 1861, revoking and suspending agencies during wax-, did not apply to principal and agent residing in the slave States.</p> <p>% Same. Confederate Money. An agent for a principal living in Missouri had no authoi-ity to collect a debt in Confederate money unless instructed to do so. Having authoi-ity to act as agent, the debtor is discharged from his obligation who paid in Confederate money at the special request of the agent. The agent, however, is himself responsible to his principal for acting without authority in taking Confederate money.</p>

EROM JOHNSON. Appeal in error from Circuit Court of Johnson, March ’Term, 1872. E. E. Gileenwaters, J. This is an action of trespass instituted in the year 1865- by the defendant in error against the plaintiffs, in error. The declaration contains two counts. 1. The first count is upon an alleged trespass upon-the personal property of the defendant in error, and' upon an assault and battery, and false imprisonment. 2.

<p>PROM JEFFERSON.</p> <p>Appeal in error from the Circuit Court of Jefferson, April Term, 1869. W. L. Adams, J., by interchange with J. P. Swann, J.</p>

<p>■dLAiTDER. Wife of joint owner not charged with felonious breach of trust. The action of slander will not lie, no special damage being alleged, upon -words charging the wife of a joint owner .of personal property with selling a portion of the joint property in her possession. These words do not impute a felony. The husband cannot be held liable for anything save the value of the joint property if sold by him, nor can his wife, upon the idea of agency for the husband, be considered as guilty of breach of trust, under the allegation of the declaration.</p>

<p>PROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton, July Term, 1872. D. M. Key, Ch. -</p>

<p>[Transcript not furnished reporter.]</p>