Volume 59 — Tennessee Reports

<p>PROM OBION.</p> <p>From tbe Circuit Court of Obion, November Term, 1872. James D. Porter, J.</p>

<p>PABTNEBSHir. Hoidence. Notice of dissolution. One of two partners at Paris, Tennessee, customers of a firm at Louisville, Kentucky, retiring, and liis son and the other member continuing the business under the old firm name, the Louisville firm, having had no actual knowledge of the change, sought to hold the retired partner for the price of goods sold to the new firm after his withdrawal. Held, that proof that at the time of the withdrawal a notice of it was published in a Paris newspaper, which was sent to the Louisville firm, with a red line drawn around the notice to call attention thereto, — -this, without more, was insufficient to establish that actual notice was brought home to the Louisville firm.</p> <p>Case cited: Hutchins v. The Bank of Tennessee, 8 Hum., 418.</p>

FROM SHELBY. From the First Chancery Court of Shelby County, October Term, 187-2. R. J. Morgan, Ch. In this case, the counsel agreed upon a record for the supreme court, from which is quoted the following statement of facts, being the agreed case ” referred to in the opinion of the court: “ Elijah Brooks and John C. Suggs were partners under the style of Brooks & Suggs. Elijah Brooks, the surviving partner, died in June,. 1867.

<p>FROM PERRY.</p> <p>From the Circuit Court of Perry County, October Term, 1872. Elijah Walker, J</p>

<p>ABBlTBATiOir. Parol submission binding. Common law not abrogated. The provisions of the Code as to arbitration (seo. 3432, et seq., which require the submission to be in writing, etc.) have added to, not abrogated, the common law upon the subject; their object being to enable an award settling matters not in litigation to be made the judgment of a court. The common law rule remains, that a parol submission to arbitration is binding.</p> <p>Case cited: Cooley v. Pill, 1 Swan, 313.</p>

<p>■Writing. Parol evidence to defeat or vary. A court of equity will admit parol evidence to defeat or vary the terms of a writing, upon the ground of fraud, accident, or mistake; hut it exacts the clearest and most satisfactory evidence of the existence of such grounds of relief; and, in the absence of such evidence, the writing must be taken as the only veritable exposition of the contract.</p>

<p>FROM GIBSON.</p> <p>From the Circuit Court of Gibson County, August Term, 1871. Gideon B. Black, J.</p>

<p>Ejectment. Writ of error coram nobis. Ejectment was brought against lessees in the actual possession of land, who failed to notify their landlords, and suffered judgment final by default against themselves. The landlords failing at a subsequent term to have the judgment by-default set aside, thereupon sought for relief against it by writ of error comm nobis, assigning as errors their title, and the plaintiff’s want of title, to the land, and their want of notice of the suit. Held, that the writ would not lie; the ejectment having been brought as required by Code, sec. 3231, against the actual occupants of the land; the verdict therein being conclusive of the plaintiff’s title as between the parties; and no error of fact having been committed in the case, within the categories of relief by writ of error coram nobis, under Code, sec. 3116.</p> <p>Cases cited: down v. Whiteside, 6 Hum., 47; Boles v. Smith, 5 Sneed, 105.</p>

FROM MADISON. From the Circuit Court of Madison County, September Term, 1872. G. B. Black, J. The bond given for the appeal to the circuit court was in double the amount of the judgment appealed from, and was conditioned to perform the judgment of the circuit court. The bond given for the appeal to the supreme court was in double the amount of the judgment of the circuit court, and was conditioned to perform the judgment of the supreme court.

<p>Presumption. Upon a reconsideration of this case, — there 'being no hill of exceptions, and the justice’s warrant showing merely an action for a “ debt due by account under $250,” without disclosing whether it was an open account or a liquidated account signed by the debtor, and the bonds for the appeals to the circuit and supreme court being for debt, damages, and costs, as required for appeals from judgments upon accounts of the latter character; Held, that, in the absence of any countervailing evidence, it must be presumed that the account in question was a liquidated account signed by the debtor; and the judgment was modified accordingly.</p>

<p>1. Chancery Pleading. Multifariousness. Executions from the circuit court, in favor of different plaintiffs, being levied on a slave, who was thereupon ordered to be hired out for the benefit of the several judgment creditors; their common interest in the fund in the sheriff’s hands, thence arising, was a sufficient vinculum for their joinder in a bill to compel its proper application.</p> <p>2. Jurisdiction. Where bill dismissed for want of. An injunction bill filed in the Chancery Court of Humboldt (a special court having jurisdiction only of cases arising within certain designated civil districts of Gibson County) being dismissed for want of jurisdiction of the case, it was error for the court thereupon to render a decree upon the injunction bond. The decree should have been for costs only.</p>

<p>FROM GIBSON.</p> <p>From the Circuit Court of Gibson County, August Term, 1871. Gideon B. Black, J.</p>

<p>1. Bailboad. Practice. Evidence, After the plaintiff, in an action against a railroad company for killing stock, had established his prima facie case, and the railroad company had closed its exculpatory evidence, it was not error to permit the plaintiff to introduce witnesses again, to show the nature of the accident, and that the necessary precautions had not been observed.</p> <p>2. Ebbob. As to point of practice. The Supreme Court will not reverse for error upon a point of mere practice.</p>

<p>Costs. No State tax on motions in Supreme Cowt. The jurisdiction of the Supreme Court is merely appellate. A motion there against the sheriff for the non-return of an execution of that court, is only a means of enforcing a judgment already rendered, — a proceeding incidental to the appellate jurisdiction of the court. It is not an independent suit, and does not fall within any of the categories of litigation enumerated hy the act of 1870, 2d sess., ch. 26, sec. 1 (Thompson & Steger’s Statutes, sec. 558, a, sub-secs. 19-23), upon which a State tax is imposed; and no State tax is among the costs of such a motion.</p> <p>Cases cited: State v. Allison, 2 Swan, 378; Merritt v. Parks, 6 Hum., 333; Bank of Tenn. v. Cannon, 2 Heis., 428; State v. Bank of B. Term., 5 Sneed, 577.</p>

<p>PROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, January Term, 1873. C. W. Heiskell, J.</p>

<p>1. Chancery PRACTICE. An issue cannot be raised in a suit in equity by a notice that a matter not put in issue by the pleadings will he contested at the hearing.</p> <p>2. Bankruptcy. Discharge conclusive. A discharge in bankruptcy under the Bankrupt Act of March 2,1867, is not subject to be impeached in a State court as wrongfully granted; sec 34 of the act (U. S. Revised Statutes, sec. 5119), providing that the certificate granted to the bankrupt under said act “ shall be conclusive evidence in favor of such bankrupt of the fact and the regularity of such discharge.”</p>

<p>1. Ebbob. It is not error for the Circuit Judge to refuse a request to charge what would be merely the repetition of an instruction already given to the jury.</p> <p>2. Evidence. Parol, as to boundaries. Where a grant relied on by a plaintiff in ejectment calls for a corner and line, designating them as a corner and line of another grant, their locality may be shown by parol evidence without producing the latter grant.</p> <p>3. Same. Processioning. The proper evidence of the proceedings to establish a line by processioning land, is the registered plat and certificate, or a copy thereof, of the survey required by Code, sec. 2021, to be made by the County Surveyor, and registered. But parol evidence is admissible to show the locality of the line, or of boundaries already established.</p> <p>4. Same. Heirs may testify as to transactions mili, or statements by, the deceased. Heirs are not included in the provision of sec. 2, ch. 78, acts 1869-70 (Thompson & Steger’s Statutes, sec. 3813d): “ In actions, etc., by or against executors, etc., neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, etc.” Heirs may testify as to such transactions or statements.</p>

<p>FROM SHELBY.</p> <p>From the Common Law and Chancery Court of the City of Memphis, October Term, 1869. Wm. M’. Smith, Ch.</p>

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, April Term, 1873. R. J. Morgan, Ch.</p>

<p>EEOM SHELBY.</p> <p>Erom the Second Chancery Court of Shelby County, October Term, 1871. W. L. Scott, Ch.</p>

<p>FRQM~, GLB~O~T.</p> <p>From the Oha~cery Court of GThso~ Oount~r, Ju1~ Term, 1~71. JoHN SOMERS, Oh.</p>

<p>1. Constitutional Law. . Uniform,, raía of interest., The apt oí Marph 24; . 1860, authorizing the Memphis Overton Hotel Company to issue its mortgage coupon bonds, bearing interest at a rate not exceeding ten per cent per annum’, was in conflict with sec. 6, Art. XI.,.Constitution 1834;:-rr“Thn legislature sh.aH fix; the rate of interest, and the rate so’ established shall be equal and’ uniform throughout the State.” Cases cited: Shepherd v. Johnson, 2 Hum., 296; Caruthers v. Andrews, ,-^,-Cpl,,,379; MfiCallie v. The Mayor and Aldermen of Chattanooga, 3 Head, 321; Adams v. The Memphis & little Sock S. S, Co., 2 Col., 660; Hacen v. The Union Bank, 1 Sneed, 115; Burton y. The School Commissioners, Jdpigs, 58^.</p> <p>2. §Ajyrp. Corporations cannot he exempted from ■ constitutional restrictions. Tlie proviso of sec. 7, Art. XI., Constitution of 1834 —“Provided always the Legislature shall have the power to grant such charters of incorporation as they may deem expedient for thp public good,” — did not empower the Legislature to grant a charter of incorporation exempting, as “expedient for the public good,” the corporation thereby cre-v.atfed, from the restrictions of;the Constitution.</p> <p>3. 'P^tFRY. Only judgment creditor can, recover,. Only a judgment creditor is entitled to maintain a suit to recover usury paid by the debtor.</p>

<p>FROM SHELBY.</p> <p>From the Second Circuit Court of Shelby County,. January Term, 1872. Irving Halsey, J.</p>

<p>FROM GIBSON.</p> <p>From the Circuit Court of Gibson County, August Term, 1871. Gideon B. Black, J.</p>

<p>■Use and Occupation. Fitle irrelevant. Defendants, being let into tbe use and occupation of land by plaintiff, under a contract to pay rent therefor, in part by clearing ground, building houses, cribs, &c., and making fencing and repairs, and being sued for breach of contract as to this part of the rent, sought to show, in defense, that the title to the land was not in the plaintiff, but in another person, who had forbidden the improvements to be made, or the necessary timber to be cut. Held, that this evidence was inadmissible, not because of the estoppel upon the tenants to deny their landlord’s title, but because the landlord’s title was not relevant to the merits of the action.</p>

<p>Evidence. Admission. It is error to instruct the jury to take the admission of a party, as to a fact in issue, as conclusive against the party. They should be left to ascertain the fact from the whole of the evidence, including the admission, and not be confined to the admission.</p>

<p>Costs. Liability of surety of successful party. Under the act of March 22, 1860 (Thompson & Steger’s Statutes, secs. 3196 a, &c.), taken in connection with Code, sec. 3204, where the plaintiff obtains judgment at law, and the costs cannot be made out of the défendant, the plaintiff’s surety for costs, as well as the plaintiff, is liable, on motion, for that portion of the costs which has accrued at the plaintiff’s instance; and the sheriff’s return of the execution, nulla bona, is sufficient evidence that the costs cannot be made out of the defendant.</p> <p>Overruling Garren v. Breed, 2 Col., 465, though without mentioning it.</p> <p>Formerly, at law, the plaintiff’s successful prosecution of his suit to judgment discharged the undertaking of the surety on his prosecution bond. Kennedy v. Jack, 1 Yer., 82. But the act of March 22, 1860 (Thompson & Steger’s Statutes, sec. 3196 a, &c.), provides that the surety’s undertaking shall he “ to pay all costs that may he at any time adjudged against his principal.”</p> <p>The case of Garren v. Breed arose after this act, and was correctly decided in the lower court, Jko. Alex. Campbell, J., in conformity with the act; but in the supreme court the act was wholly ign,ared. Nor does the act seem to have been brought to the attention of the court in Williamson v. Leon, Burge & Co., 7 Heis., 117, where, on p. 120, the question of the surety’s liability was waived, but reference was made to Carren v. Breed. The case went off on the surety’s want of notice of the motion, to which, six months having expired, the court held 'that he was entitled.</p> <p>The clerk can recover only his own costs. Stewart v. McCuistion, 1 Heis., 428. Bepobteb.</p>

<p>1. Chancery Practice, Discretionary appeal on overruling demumr. An appeal granted by a chancellor upon overruling a demurrer, in the exercise of the discretion allowed him by Code, sec. 3157, will not be dismissed, on motion, as as having been improvidently granted; certainly not, unless there were a very gross and palpable abuse of the discretion.</p> <p>2. Same. Same. Bond. The appeal bond in such cases should be for costs only.</p>

<p>FROM OBION,</p> <p>From the Chancery Court of Shelby County, October Term, 1872. E,. J. Morgan, Ch.</p>

<p>Negiigence. Through the mistake of the consignors, in misdirecting a package shipped through an express company, it was carried to the wrong place, where, without the fault of the company, it was destroyed by fire. Held, that the company was not liable.</p>

<p>1. Statemekt. On the 22d of February, 1860, at Memphis, whei-e Topp resided, Davis and Topp executed an instrument reciting that Davis had sold to Topp a plantation in Mississippi (360 acres of section 24, and 320 acres of section 19), with slaves, stock, &c., for the consideration of $70,000, half of which was receipted for, the residue to be paid in five equal annual installments, beginning April 1,1862, for which Topp gave his notes, bearing eight per cent interest from date, for which, however, the next day, others were substituted, of the amounts of the former ones at maturity, respectively, the eight per cent being in every instance added to the face. This instrument recited that, as there was “not time to pass regularly deeds” for the property, the parties should meet at Memphis between its date and May 1, 1860, when Davis should make, or cause to be made, to Topp, a deed in fee to the land, and a bill of sale to the slaves, stock, &c. The same day, Topp executed another instrument, really, however, a part of the same transaction, reciting that he had sold to Davis certain lots in Memphis, and obligating himself to make him a deed thereto. No price was specified, but the lots represented $15,000 of the $35,000 receipted for in the first mentioned instrument. Davis and Topp did not meet again, and Davis died in June, 1860. Topp took immediate possession of the land, slaves, stock, &c., paying his first note at or about maturity, and shortly afterward advancing $4,000 on his second note. But March 17, 1866, and September 8, 1866, he filed, respectively, his bill and amended bill, to rescind the entire contract and enjoin the prosecution of the suits on his purchase notes, upon the grounds of Davis’s failure to make title as stipulated, . fraud in concealing his want of title, &c., as to the 360 acres of section 24. This land, at the date of the first mentioned instrument, Davis and White (Davis’s executor and a witness to the instrument) claimed thus: one-half, through the deed of Mason and wife, the latter as the only heir of McGee, to whom, jointly with Overton, the land was granted by the United States (but it was not competently shown that Mrs. Mason was McGee’s only heir), and the other half, through the title-bond of Roach’s executor, who, however, had no power to give such title-bond; this half having been conveyed by Overton to Gibson, by him to Harris, and by him to Farriday, trustee, to secure some $14,000 due to Roach; and having been sold under the trust, in bulk, and bid in by Roach’s five heirs for only $671.40, — the title (assuming the validity of the trust sale) being, therefore, in the five heirs of Roach, the executor who gave the title-bond being one, but, as stated, having no power to bind the others. Thus stood the title when Topp filed his bill to rescind. But after- ' ward Roach’s executor and Roach’s heirs (excopt one) conveyed to Davis’s heirs and devisees, to whom, moreover, White executed a quit-claim deed. This title it was sought, on behalf of Davis’s executor, heirs, and devisees, to compel Topp to accept.</p> <p>2. Construction. Executory contracts. The two writings between Davis and Topp were executory, — contracts to convey, not conveyances operating in'presentí, to pass title.</p> <p>3. Contract. Executed and executory. Intention to be gathered from entire instrument. In a contract with reference to the sale of land, the parties may stipulate that the title shall pass at the time, or that it shall be withheld until a future day, or the performance of a further condition; and if, upon a survey of the entire instrument, the latter intention appear, it must have effect.</p> <p>Cases cited: Carnes v. Apperson, 2 Sneed, 562; Lafferty v. Whitesides, 1 Swan, 123.</p> <p>4. Title-bond. Defective Title. Deed. Warranty. While a purchaser in possession of land by deed with covenants of warranty alone, is, before eviction, in the absence of fraud, entitled to no relief in equity, on the ground of his vendor’s defective title, against the collection of the purchase money; it is otherwise with a purchaser in possession under a mere title-bond, or covenant to convey, who will not he required to complete the purchase, and accept «'conveyance, unless the title can be made according to his vendor’s contract. Such a purchaser has a clear equity, if his vendor’s title be defective, to have the sale rescinded, and the collection of the purchase money enjoined; or, if the money have been paid, to have it refunded.</p> <p>Cases cited: Senter v. Hill, 5 Sneed, 505 ; Ingram v. Morgan, 4 Hum., 66; Young v. Butler, 1 Head, 640; Bxiehanan v. Aheell, 8 Hum., 516; ' Gunningham v. Sharp, 11 Hum., 116 ; Mullins v. Aiken, 2 Heis., 535; Collins v. Smith, 1 Head, 255; Heed v. Mae, 9 Yer., 286.</p> <p>5. Conflict of Laws. Mquitas agit in personam. Although the land as to which the controversy arose was in Mississippi, yet, in view of the character of the questions involved, the case was not one for which the jurisprudence of Mississippi should furnish the rule of decision.</p> <p>6. Covenant. To make a deed in fee. Where a party covenants to make to another a deed in fee to land, the meaning is, a deed not merely good in form, but operative in effect to pass an indefeasible fee simple estate to the land.</p> <p>Case cited: Cunningham v. Sharp, 11 Hum., 116.</p> <p>7. Specific Pekfobmanc®. Rescission. After acquired title. Although, where a written contract for the sale of land is fair, if the vendor can make a good title before final decree, the vendee will be required to accept it; it is otherwise if the vendor sell, concealing the fact that he has no title, legal or equitable: in this case, the purchaser may rescind, although the vendor has in the meantime acquired the title, and offers to convey it. The after-acquired title that the vendee will be required to take, is one acquired under an equitable claim held by the vendor at the time of the contract.</p> <p>Cases cited: Blalcemore v. Shelby, 8 Hum., 440; Goss v. Singleton, 2 Head, 69; McClure v. Harris, 7 Heis., 379 ; :Pipkin v. James, 1 Hum., 325; Woods v. North, 6 Hum., 309 ; Shaw v. Wilkins, 8 Hum., 647.</p> <p>8. Same. Same. In a suit for spee.fic performance or rescission of a contract for the sale of land, the burden of proof is upon the vendor, seeking the one or resisting the other, to show that he can make a good title to the land.</p> <p>Cases cited: Boyer v. Porter, 1 Tenn. (Cooper’s ed.), 258; Mullins v. Aiken, 2 Heis., 535.</p> <p>9. Chanceby Pleading. Rescission. The answer of the vendor, resisting a rescission sought on the ground of his defective title, ought to set forth his title.</p> <p>10. Rescission. Purchaser’s option on partial failure of title. Upon a failure of title to a portion of the land, materially affeoting its value, or which formed an inducement to the purchase, the purchaser has the option, either to rescind, or to retain the part to which the title is good and have a proportional abatement of the price.</p> <p>Cases cited : Galloway v. Bradshaw, 5 Sneed, 72; Buchanan v. Alwdl, 8 Hum., 519; Mullins v. Aiken, 2 Heis., 543; Cimningham v. Sharp, 11 Hum.,116.</p> <p>11. Same. Doubtful title. A purchaser will not be required to accept a doubtful title.</p> <p>Case cited: Gunningham v. Sharp, 11 Hum., 116.</p> <p>12. Evidence. Before the removal of the disqualification of interest, a conveyor of land, with general warranty, was incompetent as a witness in support of the validity of the title he assumed to convey.</p> <p>Cases cited : Ingram v. Smith, 1 Head, 411; Burke v. Clark, 2 Swan, 310.</p> <p>13. Estoppel. Title resting on,. A purchaser will not be compelled to accept a title resting upon an estoppel en pais.</p> <p>Case cited: Mullins v. Ailcen,, 2 Heis., 535.</p> <p>14. Registration. Not notice to the purchaser of the state of the vendor’s title. The registration of tlxc vendor’s title papers is not notice to the purchaser; of the condition of the vendor’s title.</p> <p>Cases cited: Napier v. Elam, 6 Yer., 108; Ingram v. Morgan, 4 Hum., 6'6.</p> <p>15. Fraud.' To contract to convey, without title, concealing the fact. For a party to contract to convey land to which he has no title, concealing his want of title, is a fraud, entitling the purchaser to a rescission.</p> <p>Cases cited: Mullins v. Jones, 1 Head, 517 ; Trigg v. Bead, 5 Hum., 529</p> <p>16. Same. Statute of limitations. For would it avail to prevent the rescission, that in the meantime the title had become perfect through the operation of the statute of limitations.</p> <p>17. Emancipation. A party was not entitled to be relieved from an ex-ecutory contract for the purchase of slaves, on account of their emancipation.</p> <p>18. Sale. Of personalty. Implied warranty. Where personalty is sold by the owner in possession, the law implies a warranty of title, even if there is a bill of sale lacking such warranty.</p> <p>Cases cited : Wood v. Cavin, 1 Head, 506 ; Trigg v. Fans, 5 Hum., 343.</p> <p>19. Usury. The substituted notes were usurious.</p>

<p>FROM SHELBY.</p> <p>Application for a Writ of Prohibition to the Second 'Circuit Court of Shelby County.</p>

EROM SHELBY. From the Chancery Court of Memphis, February Term, 1868. W. M. Smith, Ch. In this case there was at first an oral opinion, after which the case was reconsidered, and the following opinion was delivered.

<p>FROM HARDEMAN-</p> <p>From the Chancery Court of Hardeman County, July Term, 1872. James Fentress, Ch.</p>

<p>EEOM GIBSON.</p> <p>From the Circuit Court of Gibson County, April Term, 1872. Gideon B. Black, J.</p>

<p>1. Assignment. Want of a sufficient description of debts seemed, a badge of fraud. If debts intended'to be secured by an assignment be not described with sufficient certainty therein, or by reference to an accompanying schedule, it should clearly appear that the omission was not a subterfuge with an eye to fraudulent practices.</p> <p>An assignment providing that after the payment of expenses, and of certain specified debts, — for which friends were bound, and for borrowed money, — “ and all other debts we owe for borrowed' money,”-— all other debts (without any enumeration or description of them) should be paid pro ruta, was held void.</p> <p>Case cited: Barcroft v. Snodgrass, 1 Col., 430.</p> <p>2. Tbtjstee. Acting in good faith protected. But the trustee was allowed his payments made in good faith under the assignment, before the filing of the bills attacking it.</p>

<p>■Privy ExASírNATiorr. Certificate of. In the formula prescribed by Code, sec. 2076, for the certificate of privy examination of a married woman as to her execution of a deed, — reciting that the act was done by her “freely, volwitarily, and understanding!)',” &c. — the words-“freely” and “voluntarily” are practically synonymous, and the omission of the latter from a certificate will not impair its validity.</p> <p>Casé cited: W. J. Anderson v. J. W. Bowley, MS., Knoxville, 1872.</p>

<p>FROM HAYWOOD.</p> <p>From the Chancery Court of Haywood County, February Term, 1873. H. F. Talley, Sp. Ch.</p>

<p>1. Practice. Equity of Redemption. Unless the bill pray therefor, it is error to decree a sale of land without the equity of redemption.</p> <p>'2. Fiuat. Decree. A decree directing the sale of land for the payment of purchase money, is not a final decree.</p> <p>Case cited: Abbott v. Fagg, 1 ITeis., 746.</p> <p>•3. Error Coram Nobis. A petition for a writ of error coram nobis was held insufficient, which alleged as its ground for such relief, that the petitioner understood, and that it was declared in court, that no litigated cases would be tried at the term at which the decree complained of was rendered, — without showing by whom the declaration in court was made, and showing that the understanding was between petitioner and his counsel.</p> <p>Cases cited: Grouch v. Mnllinix, 1 Heis., 478; Brandon y. Diggs, lb., 477.</p>

<p>Eeu.ttovi.ent Oostveyaitce. A creditor attacking, as fraudulent, a conveyance of land made by a son to a mother, for a grossly inadequate consideration, and under other suspicious circumstances, the amount of the consideration was>, nevertheless, allowed as a lien upon the land, which was thereupon decreed to he sold subject to said lien, in satisfaction of the creditor’s claim.</p> <p>Case cited: Alley v. Connell, 3 Head, 578.</p>

<p>Contested Election. Of Justices of the Peace. Under Code, sections 895-9, the county court has jurisdiction over contested elections of justices of the peace only when the contest is commenced as there prescribed, before the returns have been made by the Sheriff to the Governor.</p> <p>It was suggested that after the party whose election it was desired to-contest had been commissioned and qualified, a remedy might be found under Code, sections 3409, etc.</p>

<p>PROM SHELBY.</p> <p>From the Law Court of Memphis, February Term,, 1868. James O. Pierce, J.</p>

<p>Pbactiob. Proceedings upon plaintiff’s order to dismiss suit. The defendants presented tlie plaintiff’s order dismissing his suit, to which his counsel objected. The defendants moved the dismissal of the suit, and offered to prove the execution of the order. The motion was overruled, and they were required to plead the order, to which the plaintiff replied that it was fraudulently obtained, and a jury was empanneled, who returned a verdict in favor of the plaintiff. Held, that there was no error in these proceedings.</p> <p>The practice in such cases stated.</p>

<p>FROM SHELBY.</p> <p>From the First Circuit Court of Shelby County,. January Term, 1871. C. ~W¡ Heiskell, J.</p>

<p>PROM SHELB'Y.</p> <p>From the First Chancery Court of Shelby County, October Term, 1870. R. J. Morgan, Ch.</p>

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County,. October Term, 1870. R. J. Morgan, Ch.</p>

<p>FROM SHELBY.</p> <p>From the Law Court of Memphis, February Term, 1868. James O. Pierce, J.</p>

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, October Term, 1872. R. J. Morgan, Ch.</p>

<p>PROM SHELBY.</p> <p>From the Law Court of Memphis, February Term,. 1868. James O. Pearce, J.</p>

<p>FROM SHERRY.</p> <p>From the First Chancery Court of Shelby County, October Term. 1870. K. J. Morgan. Ch.</p>

<p>FROM SI-IELBY.</p> <p>From the First Chanoeiy Court of Shelby County, October Term, 1870. R. J. Moruan, Ch.</p>

PROM SHELBY. From the Law Court of Memphis, June Term,. 1868. James O. Peaece, J. This suit was brought to recover damages on an injunction bond, for the wrongful suing out of an injunction to restrain the removal of certain sugar. •The injunction was dissolved at chambers, and afterward the suit was dismissed by the complainants’ solicitor.

<p>FROM SHELBY.</p> <p>Erom the Law Court.of Memphis, February Term, 1869. H. S. Lee, J.</p>

<p>Agency. Appropriation. B., of Philadelphia, sent a note on IC, of Arkansas, to 0 & Co., of Memphis, for collection, K haying funds on deposit with them. April 15, 1861, C. & Co. wrote to B. that they had been unable to obtain exchange on New York or Philadelphia, but that- they had the money to pay the note, and that B. might draw on them at sight for the amount, “payable in our money,” K.’s instructions being to pay no exchange nor interest. There was no i'ur-ther communication, and IC withdrew his deposit from C. & Co. The suit was brought in 1866, to recover the amount of the note from N., one of the firm of C. & Co. Held, that C. & Co. had been the agents of B. and of IC, and that IC had the right to withdraw liis deposit at ally time until an actual appropriation of the money to the payment of the note: that there had been no such appropriation, and that therefore the defendant was not liable.</p>

<p>FROM SHELBY.</p> <p>From, the Law Court of Memphis, June Term, 1869. H. S. Lee, J.</p>

<p>1. Promissory Notes. Discovmts. ^Renewals. "Whether the discount of a note by a bank be in renewal of a prior note or an original transaction, depends upon the intention of the parties, to be gathered from the circumstances of the discount and the previous dealings of the parties.</p> <p>'% Same. Consideration of renewal. The consideration of the original note pervades the renewals, at whatever remove from the source.</p> <p>3. Same. Interest A note discounted by the branch of the Union Bank at Memphis was, with the other assets of the bank, about the time of its maturity, removed south, by order of the Confederate authorities and kept within their lines until the close of the late war. The maker of the note continued to reside in Memphis, within the Federal lines, with the cashier of. the hank, who had the management of its affairs. Held, that the absence of the note within the Confederate lines was not such an obstacle to its payment as to relieve the maker from liability for interest.</p>

<p>FROM SHELBY.</p> <p>From the Law Court of Memphis, February Term, 1869. H. S. Lee, J.</p>

<p>Wbit or Eeeoe Cobam Nobis. The petition stated the following case r Shortly before the appearance term, a deposition was taken by consent, at the instance of the plaintiff, which however disproved his claim. At the taking of the deposition his attorney had the declaration present, to whom the defendant’s attorney handed a plea putting the case at issue. The plaintiff’s attorney took charge of the declaration, plea, and deposition, promising to file them, which, however, he did not do. The court met the Sid Monday of June. No declaration was filed until the 20th of August. In the meantime, the defendant’s attorney called ineffectually several times on the plaintiff’s attorney, and at the clerk’s office, to get the declaration, in order to file a plea. Upon the 8th of October, a judgment by default was taken. Neither the defendant nor his attorney, however, heard of this until after the judgment final had been rendered. Before this, the plaintiff’s attorney had moved to supply the original papers. The motion was deferred, and, as the court was about to adjourn, the defendant’s attorney concluded that it would not be acted upon until the next term, and went away on necessary business under that impression, after which the plaintiff’s attorney called up the case out of its order,.and, without having supplied the papers, took final judgment. JBeld, rel versing the judgment below, that the foregoing was a sufficient case for relief by writ of error coram nolis.</p>

<p>Evidence. In an action by or against an administrator, either party is a competent witness, under secs. 3813c, and 3813d, Thompson & Ste-ger’s “ Statutes of Tennessee,” except as to transactions with, or statements by, the intestate.</p>

<p>1. Evidence. Protest. Protest of negotiable paper may be proved by an exemplification from the notary’s book authenticated according to the Act of Congress of March 27, 1804.</p> <p>2. Error. Presumption of correctness. The court below being requested to charge what was reasonable diligence in a presentment for payment, as applicable to a given state of facts, refused, upon the ground that the jury had already been sufficiently charged as to what constituted reasonable diligence. The bill of exceptions commenced: “The court charged the jury, among other things not excepted to, etc.,” bringing up only what was excepted to. Held, that although, if the facts had been uneontroverted, it would have been the duty of the court to pronounce whether they presented a case of reasonable diligence or not, yet, as the testimony conflicted, the court could do no more than state the general principles of law, and leave the jury to apply them, to wliat they should find to be the facts of the case; and that it must be presumed in favor of the portion of the charge unex-cepted to, that it contained a sufficient exposition of the law upon the subject.</p> <p>3. Check. Insolvency of the drawee. The holder of a check need not present it after the insolvency of the drawee.</p> <p>Cases cited: Planters' Bank v. Merritt, 7 Heis., 177; Planten? Bcmh v. Keesee, lb., 200.</p>

<p>PROM SHELBY.</p> <p>From the First Chancery Court of Shelby County,. October Term, 1870. R. J. Morgan, Ch.</p>

<p>EBOM SHELBY.</p> <p>From the Law Court of Memphis, February Term, 1868. James O. Pieb.ce, J.</p>

PROM SHELBY. From the First Chancery Court of Shelby County, November Term, 1870. II. J. MorgAN, Cb. The complainant filed his bill in chancery, attaching a steamboat as the property of the defendant, Ed. R. Hart, whereupon Dan.

<p>FROM SHELBY.</p> <p>From the Law Court of Memphis, October Term, 1869. H. S. Lea, J. . •</p>

<p>FROM SHELBY</p> <p>From the Law Court of Memphis, June Term, 1869. H. S. Lea, J.</p>

EEOM MADISON. The statute authorizing the appointment of administrators pendente lite is the act of 1860, ch., 62, Thompson & Steger’s Statutes, sec. 2204, a:— “ The several county judges and the chairman of the several county courts of. this State are hereby authorized and empowered to appoint an administrator pendente lite in any case which may arise in their several courts where any will may be the subject of contest or litigation.”

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, October Term, 1870. R. J. Morgan, Ch.</p>

<p>1. Projiissobt Note. Notice. At the maturity of a note, in 1863, an endorser, as the holder knew, had been absent for seven months from his home in Memphis, then occupied by the Federal forces, and was residing with his family within the Confederate lines in Mississippi. The note being protested, it was sought to notify the endorser of this by leaving the notice át his late residence in Memphis. Held, that this was insufficient, being done under circumstances giving no reasonable expectation that the notice would reach the party, it being at the time not only impracticable but also unlawful to transmit the notice from Memphis to the party in Mississippi.</p> <p>2. Same. Pleading. Evidence. Under an averment of notice, evidence, ' not of notice, but of a dispensation of it, is inadmissible. The dispensation must be averred.</p> <p>Case cited: Harwood v. Jarvis, 5 Sneed, 379.</p>

<p>1. Statute ov Frauds. If parties purchase goods on their own credit, and another party verbally promise to pay their debt, it will not take the case out of the statute of frauds that the promiser had at the time under his control sufficient effects of the purchasers to pay the debt.</p> <p>Cases cited: Mills v. Mills, 3 Head, 711; Campbell v. Findley, 3 Hum., 331; liasen v. Bearden, 4 Sneed, 49.</p> <p>2. Same. If goods be purchased upon the credit of another without authority, and he afterward ratify the act, though only verbally, he will be liable.</p>

<p>FROM SHELBY.</p> <p>From the Common Law and Chancery Court of the City of Memphis, October Term, 1865. ■’ Wm. M. Smith, J.</p>

<p>PROM SHELBY.</p> <p>From the Second Chancery Court of Shelby County, October Term, 1872. W. L. Scott, Ch.</p>

<p>FROM SHELBY.</p> <p>Prom the Law Court of Memphis, February Term, 1869. H L. Lee, J.</p>

<p>PROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, September Term, 1872. C. W. Heiskell, J.</p>

<p>GARNISHMENT. JVoi a satisfaction. The mere service of a garnishment under an execution is not such a levy upon personalty as amounts to a satisfaction. The creditor 'may take out an alias or pluries execution, thereby abandoning the garnishment, and reviving the debtor’s claim to the money or effects in the hands of the garnishee.</p> <p>Case cited: Arnold v. Linaweaver, 3 Head, 53.</p>

<p>1. Error. Jury. Presumption. Certain excluded depositions were taken out by the jury, but in the absence of any evidence that they were read; Held, that the jury must rather be presumed to have considered only the testimony admitted by the court than to have violated their duty by tampering with what was excluded.</p> <p>2. Fire Insurance. War. Limitation by contract. Where a policy of fire insurance, issued by a Connecticut company upon property in Arkansas, contained a provision that no suit should be brought on the policy except within twelve months after the loss, and that if any such suit were brought beyond that period, the lapse of time should be taken as conclusive evidence against the validity of the claim, and the loss occurred January 24, 1861, and the suit was not brought until July SO, 1866; Held, that the disability of the insured to sue the insurer, imposed by the war, did not prevent the operation of the restriction.</p> <p>Case approved: Semmes v. Hartford Insurance Go., 13 Wal., 158.</p>

<p>Bankruptcy. Surety’s liability cm, replevin bond, provable in. The liability of a surety on a replevin bond is one that is provable under section 19 of the Bankrupt Act of March 2, 1867 (Revised Statutes, sections 5067-9), and is therefore a liability that is expunged by a discharge under that act.</p>

<p>FROM SHELBY.</p> <p>From the Second Chancery Court of Shelby County, October Term, 1872. Sam’l P. Walker, Ch.</p>

<p>FROM SHELBY.</p> <p>From tbe First Chancery Court of Shelby County, October Term, 1872. R. J. MORGAN, Ch.</p>

<p>1. Statement. W. F. & Co., contractors, agreed, for so much, to erect certain buildings for different owners by a given time, and to pay so much as liquidated damages for every day of delay thereafter. Owing to the default of S. & H., who were employed to do the iron work, the completion of the buildings was so delayed that the damages, as agreed on, due R. C. B., one of the owners, exceeded the residue of his indebtedness on account of the work, to reach and collect which the bill was filed by creditors of the contractors. The question was, whether the contractors were responsible for what was owing to the default of S. & H., which depended upon whether, under the contract, S. & H. were the employees of the contractors or of the owners. By the terms of the contract, the contractors were to do all the work of every kind for $25,000, for $3,600 of which S. & H. were to be employed to do the iron work. Evidence dehors the contract showed that at the time of its execution the contractors, the architects, and the agent of the owners, understood that S. & H. were not the em- • ployees of the contractors, and that, notwithstanding the delay in the completion of the work, all the owners except R. C. B. had paid up the contractors. At the hearing the complainants demanded a jury, who found that R..O. B. owed the contractors, as he had admitted in his answer, $2,722 on account of the work, but that they were liable to him tor $3,000, liquidated damages, for the delay in its completion. The Chancellor, upon the ground that the contract was unambiguous, excluded from the jury, and refused himself to consider, extrinsic evidence bearing upon its meaning.</p> <p>2. Constbtjction. Province of the court. It was not error to exclude the evidence from the jury, it being the province oi the court to construe the contract.</p> <p>8. Same. Extrinsic evidence. If the meaning of a contract be uncertain, the intention of the parties may be ascertained from extrinsic evidence, and this intention, so ascertained, will be taken as the meaning of the contract provided it be one derivable from a fair interpretation of the words used.</p> <p>4. Application. The contract involved might mean, either that the contractors were to do all the .work for $25,000 and were to employ S. & H. to do the iron work for $3,600, to be paid them directly by the owners out of the $25,000 ; or, that the contractors were to do all the work for $25,000, but the iron work to be given to S. & H. because the owners had employed them to do it at $3,600, to be paid them out of the $25,000 ; and being ambiguous, extrinsic evidence was admissible to determine which of the two meanings was in accord with the intention of the parties; and therefore it was error for the Chancellor to refuse to consider the evidence showing that it was the understanding of the parties that S. & H. were the employees of the owners, and not of the contractors; which was held to be the true construction of the contract.</p> <p>5. Chanceby Pkactice. Error. The Chancellor’s decree being held erroneous, the case was not remanded for a new trial before another jury; but it being determined that the contractors under the contract were not liable for any damages for the delay in the completion of the buildings, owing to the default of S. & H., the court adopted the finding of the jury as to the indebtedness of R C. B. to the contractors, which corresponded with the admission of his answer, and the decree was for that amount.</p>

<p>EEOM SHELBY.</p> <p>■ From the First Circuit Court of Shelby County, September Term, 1872. C. W. Heiskell, J.</p>

<p>Appeal. Releases lien of decree on land. A simple appeal vacates the decree below, and releases its lien upon land.</p> <p>Cases cited: Pond v. Trigg, 5 Heis., 532; Mashall r. Mashall, 3 Sneed, 208; Campbell v. Wallen’s Lessee, Mar. & Yer., 266; Thomasson v. Ker- ' cheml, 10 Hum., 324; Planters’ Bank v. Union Bank, 5 Hum., 304.</p>

<p>1. Execution. Leviable on title by divestiture and veslitnre. The title to lots sold at partition sale being by decree divested out of the parties to the suit and vested in the purchaser, the lots thereby become subject to levy and sale by his judgment creditors, subject, however, under Code, sec. 3304, to the lien for the unpaid balance of the purchase money, whether this lien be reserved in the decree or not.</p> <p>In this case, the residue of the purchaser’s bid had been paid into the court below, but not in such manner as to discharge the lien; and this was sufficiently apparent on the face of the decree divesting and vesting title, to give notice' of the condition of the matter to the purchasers at the sale under the levies of the judgment creditors.</p> <p>2. Lien on Counsel. The pendency of the partition suit in the chancery court, at the time of the levy by the purchaser’s judgment creditors, was notice of the existence of the lien of counsel in the partition suits for their fees.</p> <p>Case cited : Sunt v. McGlanahan, 1 ileis., 510.</p>

<p>ADMINISTRATOR. Requirement of settlement two year’s after qualification, directory. An administrator kept money of the estate on deposit in a hank for two months after the expiration of the two years allowed by law for the settlement of the estate, when the bank failed, and loss ensued. It was sought to east this upon the administrator, upon the ground that he stood in violation of Code, see. 2311, requiring a distribution immediately after the expiration of the two years. But it was held that this section is only directory, and must be construed in connection with sec. 2316, requiring the distributees, before receiving their shares, to give refunding bonds; and, also, in connection with sec. 2295, requiring- the clerk of the county court, at the expiration of the two years (after giving five days’ notice to the parties interested), to state the accounts of the administrator, for which reasonable additional time must be allowed. And the distributees not appearing to have given refunding bonds, or to have demanded their shares; and the administrator, within six months after the expiration of the two years, having filed his account with the clerk of the county court for a settlement, it was held that he was blameless, and he was credited with the loss aforesaid, and allowed his reasonable compensation.</p>

<p>FROM SHELBY.</p> <p>From the Law Court of Memphis, February Term, 1869. H S. Lee, J.</p>

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, October Term, 1871. R. J. Morgan, Ch.</p>

<p>PROM SHELBY.</p> <p>From the Second Circuit Court of Shelby County, January Term, 1874. Irving Halsey, J.</p>

<p>Oeficeb. De jure, wrongfully enjoined from dating, entitled to salary. W. was elected physician to the Memphis City Hospital, and the Mayor of the city was about to induct him into office, when L., the prior incumbent, obtained an injunction restraining the Mayor and W. from interfering with his enjoyment of the office; and under this injunction, made perpetual at the hearing, L. succeeded in retaining the office himself until its discontinuance, some six months afterward, for which period he drew the salary. The injunction bill was dismissed by the supreme court, which declared that W. was validly elected, and entitled to all the privileges and emoluments of the office; whereupon W. sued the city for the salary of the office during the period of his merely de jure incumbency, — he having always been willing and ready to perform the duties, and to receive the salary. Held, that he was entitled to recover: — that the payment of the salary for this period to L., a mere officer de facto, was wrongful, — the injunction only preventing L.’s extrusion from the office, and not requiring the payment to him of the salary.</p> <p>Cases cited: Lynch v. Lajland, 4 Col., 103; JDodd v. Weaver, 2 Sneed, 673; Haynes v. State, 3 Hum., 480; Pearce v. Hawkins, 2 Swan, 89.</p> <p>Note. In Auditors v. Benoit, 20 Micli., 176 (4 Am. R., 382), it was held that a de jwre county treasurer could not exact the salary for the time the de facto incumbent was actually in office.</p> <p>In Smith v. Mayor, 37 N. Y., 518, it was held that a deputy street commissioner of the city of New York, who had been kept out of his office, could not recover against the city the fees accruing from the office during this time.</p> <p>In Dolan v. Mayor, 68 N. Y., 274, it was held that payment of the salary of an office to a de facto public officer, while in possession of the office, was a good defense against an action by the de jure officer suing to recover the same salary, after he had acquired possession.</p> <p>It was here said, that the de facto officer could not himself recover the salary for the time he was in possession, — the salary attaching to the true title; and that the officer de jure could recover from the officer de facto the salary received by the latter (citing Howard v. Wood, 2 Lev., 245, and Glasscock v. Dyons, 20 Ind., 1), being entitled to treat the services of the office as having been rendered by the de facto officer for him; and that he might recover so much of the salary of the office for the time it was filled by the de facto officer as had not been paid to such officer.</p> <p>In Mayfield v. Moore, 53 Ill., 428 (5 Am. R., 52), it was held that the de jwre officer might recover of the de facto incumbent the fees and emoluments received by him while in office, after deducting the necessary expenses in earning them. Rjspokteb.</p>

<p>PROM SHELBY.</p> <p>There are no briefs on file.</p>

<p>1. AratnsriSTaA.TiON. Widow’s year’s support not assets. Money on hand set apart by commissioners, under Code, sec. 2285, for a year’s support of the widow of a decedent, and her family, belongs to her for this purpose, and is not assets covered by the bond of the administrator: so that, if the money be not paid to her by the administrator, she has no recourse therefor against his sureties.</p> <p>Cases cited: Bayless v. Bayless, 4 Col., 359; Morris v. Morris, 9 Heis., 815.</p> <p>2. Practice. Payment of the year’s support. Mow compellable. Upon confirmation of the commissioner’s report, the probate court should, if necessary, by process of attachment, compel the administrator to pay to the widow the money set apart for the year’s support, if this he in his hands, so that such compulsion is practicable; but if not, then she is thrown upon his personal liability to her for the amount, to he enforced by the ordinary methods of collection.</p>

<p>FROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, January Term, 1872. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, September Term, 1872. C. W. Heisicell, J.</p>

<p>FROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, January Term, 1872. C W. Heiskell, J.</p>

<p>1. Malicious Pbosecution. Declaration must aver want of probable came. A declaration for malicious prosecution averred the• procurement of' the warrant for the plaintiff's arrest, falsely and maliciously, the plaintiffs discharge, and the abandonment of the prosecution lout omitted to aver the want of probable or reasonable cause. A judgment by default was tafeen, and a writ of inquiry executed. Held, on writ of error, that the omission was fatal.</p> <p>Cases cited: Rauklon v. Jackson, 1 Sneed, 128 ; Pkaris v. Lambert, lb. 231.</p> <p>2. PRACTICE. Where good cause of action defectively stated. Where the error is in a good cause of action defectively stated, and not in the want of a cause of action, the case will be remanded for an amendment. Cases cited : Stovall v. Bowers, 10 Hum., 560; McGcmdless v. Polk, lb. 617..</p>

<p>1. Interest. Follows principal. The assignment of the principal, in the-absence of an agreement to the contrary, carries with it the interest.</p> <p>2. Practice. Finding of judge. “Where the jury is waived, the finding of the court has the force of the verdict of a jury ■</p>

<p>PROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, October Term, 1871. R. J. Morgan, Ch.</p>

<p>FROM SHELBY. ■</p> <p>From the First Chancery Court of Shelby County, October Term, 1871. R J. Morgan, Ch.</p>

<p>Pkactice. Discontimicmee. An agreement made out of court to arbitrate matters involved in a suit pending, operates as a discontinuance of the suit.</p>

<p>1. Statute. Bight and remedy. A statute of Mississippi provided that no goods or chattels not the tenant’s property, found on his premises, should he liable to distraint for his rent; but that if this were done, the owner could avail himself of the provisions of the statute only by replevin prosecuted before the sale under the distraint.</p> <p>Certain mules, &c., in Mississippi, not belonging to a tenant, being dis-trained for his rent, the owners, unable to give the bond to replevy, yet claimed the property, whereupon the sheriff was unwilling to proceed; but, receiving an indemnity bond from the distraining creditors, the defendant below being the surety, he sold the property under the distraint, and applied the money to the payment of the rent, for which wrong the owners brought trover in Tennessee against the surety on the indemnity bond. Held, that the statute operated only on the remedy in Mississippi; not to extinguish the right to redress.</p> <p>2. Tboveb. Surely on indemnity bond liable. The sale by the sheriff being a conversion, the surety on the indemnity bond whereby the sheriff was induced to sell, was, together with his principals, the distraining creditors, implicated in the conversion, for which trover would lie in Tennessee.</p> <p>3. Sajie. Conversion. When demand not necessary. Where the taking is wrongful it is of itself a conversion, and a demand for the goods is unnecessary.</p> <p>Case cited: Houston v. Dyche, Meigs, 77.</p>

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, October Term, 1870. R. J. Morgan, Ch.</p>

<p>EROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, May Term, 1872. C. W. Heiskell, J.</p>

<p>Otüabdian. Cannot bind ward for improvements. The guardian of an infant remainderman joined with the life-tenant of the estate in a lease stipulating that the lessee, who was to put on the premises $10,000 of improvements, should, at the expiration of the lease, be paid their value. The lessee sub-let to a party who erected some $20,000 of improvements. The life estate falling in, and the remainderman coming of age, and applying for the possession of the premises, the sub-lessee was denied the right to any compensation for his improvements.</p>

<p>FROM SHELBY.</p> <p>From the First Chancery Court of Shelby County, October Term, 1870. R. J. Morgan, Ch.</p>

<p>FROM SHELBY.</p> <p>From the First Circuit Court of Shelby County, January Term, 1872. C. W. Heiskell, J.</p>

<p>1. Forcible Entry and Detainer. Is possessory action. Tlie action of forcible entry and detainer is primarily possessory: rents are therein recoverable only incidentally. If, therefore, pending the action, the plaintiff’s interest in the premises be terminated by a sale, yet the judgment in his favor should be as well for the possession as for the rents.</p> <p>2. Same. JSfolke to quit. Code, sec. 3351, dispenses with the necessity of a notice to quit other than the warrant in the action, all the cases in which the possession of the premises is made unlawful by the statute</p> <p>Cases cited : Trousdale v. DarneU, 6 Yer., 435; Sullivan v. Ivey, 2 Sneed, 489</p> <p>3. Obiter. Damages. The recovery in' the circuit court, on appeal or m'tiarari thereto, may embrace such damages as are the immediate consequence of the forcible and unlawful disseisin; — not, however, damages for an injury merely to the freehold.</p> <p>Case cited: White v. Suítle, 1 Swan, 169.</p>

<p>Recorder’s Court. Jurisdiction on appeals from. Code, sec. 4268, providing that if, upon appeal therefrom, the judgment of the Recorder of the City of Memphis he affirmed, the Judge of the Law Court “ shall give judgment against the defendant and his sureties for the fine and costs,” does not confine the Law Court, in such appeals, to the alternative of an acquittal or an adoption of the fine imposed hy the Recorder. The Judge is to try the case with the same discretion as to the amount of the fine that the Recorder himself had. But he cannot reduce the fine helow the minimum penalty prescribed for the offense hy the city ordinances.</p>

FROM SUBLET. From the First Chancery Court of Shelby County, April Term, 1873. It.

<p>FROM DAVIDSON.</p> <p>From tbe Law Court of Nashville, January Term, 1874. Jo. C. Guild, J.</p>

<p>Constitutional Law. Judge’s salary. The provisions of the act of July 8, 1870, (T. & S.’s Statutes, sec. 3930 a), requiring the compensation of a special Judge elected hy the bar to preside in the absence, incompetency, etc., of the regular Judge, to be deducted from the salary of the regular Judge, is in conflict with sec. 7 of Article YI, of the Constitution of the Shite, and void.</p>

<p>PROM DAVIDSON.</p> <p>From the Circuit Court of Davidson County, January Term, 1874. Nathaniel Baxter, J.</p>

<p>PARTNERSHIP. Share in profits not conclusive. Participation in profits, gross or net, is not conclusive of partnership: it may be only a mode of compensation for services.</p> <p>Case cited: Folk v. Buchanan, 5 Sneed, 726.</p>

<p>FROM DE KALB.</p> <p>From the Circuit Court of De Kalb County, November Term, 1873. S. M. Fite, J.</p>

<p>EROM MONTGOMERY.</p> <p>From the Circuit Court of Montgomery County, May Term, 1872. Jas. E. Rice, J.</p>

<p>PROM PUTNAM.</p> <p>From the Chancery Court of Putnam County, March Term, 1871. W. W. Goodpasture, Ch.</p>

<p>Equity. Legal and equitable defenses. Where a defendant at law has a defense available at law hut not free from embarrassment, and additionally a defense purely equitable, he may, whether he has first made his defense at law or not, resort to equity, to enjoin the prosecution of the suit at law, and transfer the entire controversy to equity</p>

<p>Constitutional Law. Partial law. The act of 1867-8, ch. 35 (Thornp. & Steg. Stat., sec. 1993 d), giving cotton brokers, etc., a special lien for five days upon cotton sold by them, is not within the constitutional prohibition of special or partial legislation.</p>

<p>FROM MONTGOMERY.</p> <p>From the Chancery Court of Montgomery County, November Term, 1873. C. W. Tyler, Sp. Ch.</p>

<p>Chancery Practice. Qhancery notes. Poster borrowed money from a fund in the chancery court, giving his note therefor with Harrison as surety, who was indemnified by a mortgage on land. Judgment being taken on the loan note, the land was sold under the mortgage for Harrison’s indemnity, and purchased by Hall, who executed his note to Harrison for the amount of the judgment, with Bass as surety, which note Harrison thereupon assigned to the clerk and master, who received it as collateral security for the judgment, — Hall and Bass knowing that this was Harrison’s intention. There was, however, no order of court with reference to the mortgage to Harrison, or the receipt of the note of Hall and Bass as collateral security for the judgment, nor was there any agreement or arrangement for a judgment by motion in the last mentioned note. IMd, that Hall and Bass were -not parties nor quasi parties to the case in which the loan to Poster was made, and that the summary judgment against them was therefore erroneous.</p>

<p>FROM Humphreys.</p> <p>From the Circuit Court of Humphreys County, November Term, 1874. Jas. E. Nice, J.</p>

<p>A patriotic bargain not permitted to be repudiated.</p>

<p>FROM ERANKLIN.</p> <p>From the Circuit Court of Franklin County, July Term, 1874. H. L. Davidson, J.</p>

<p>PROM JACKSON.</p> <p>From the Circuit Court of Jackson County, November Term, 1869.</p>

<p>■ Executor. Of a guardian. The right of action upon a note payable to a guardian, for money of the ward, passes, upon the death of the guardian, to his personal representative.</p>

<p>Liquidated account. A will, or a codicil thereto, acknowledging a debt for supplies furnished, but afterward revoked, cannot figure as a liquidated or settled account signed by the debtor, so as to make the debt draw interest under Code, sec. 1945.</p>

<p>PROM TROUSDALE.</p> <p>From the Chancery Court of Trousdale County, February Term, 1872. Charles G. Smith, Ch.</p>

<p>Ejectment. Unregistered, deed. A deed unregistered or improperly registered is yet admissible in ejectment to make out, together with a sufficient length of adverse possession, a title to land under the statute of limitations.</p> <p>Case cited: Glarh v. Chase, 5 Sneed, 636.</p>

<p>1. PbACTice. Charge of the court. Instructions. A charge, however accurate in its generalities, is inadequate if it fail to apply the law to the facts of the case as developed by the proof. It is error to refuse correct instructions asked for upon an assumed state of facts which there is evidence tending to establish. Where what was in form one instruction, but in substance three distinct propositions, was asked for, two of them correct and one perhaps incorrect, the two correct propositions ought to have been charged.</p> <p>2. Evident®. Opinion as to negligence inadmissible. Where the action was based upon the negligence of the defendant’s omnibus driver, in stopping on a declivity and quitting his seat to hand down a package, leaving the reins in charge of a small boy; the testimony of another omnibus driver, that there was nothing imprudent in this; that it-was the universal custom; that the best and most cautious drivers did it; and that the witness had done it himself a thousand times, was inadmissible.</p>

<p>PROM SUMNER.</p> <p>From the Circuit Court of Sumner County, February Term, 1872. Jo. ’ C. Guild, J.</p>

<p>Trustee. Standard of duty. A trustee who acts bona fide and with due diligence will be protected hy a court of equity.</p> <p>Statement. In March, 1863, a debtor to an estate by note for §3,000, I in a locality subject to Confederate control, insisted upon paying his note, first offering for it §3,500 in Confederate money, and this being I refused, then the amount of the note in greatly depreciated Southern j bank notes, — the best currency, however, then in circulation there, I which the administrator accepted. Held, that if, in view of the pol- 8 icy then prevailing, to force Confederate money into circulation, and J the danger (though no threat was made) of being reported for refus-| ing it and then having to take it, the administrator honestly sup-1 posed that he had to take the funds accepted by him or be made tol take Confederate money, he was exonerated. Also, that, in view ofl the then condition of the country, he was not culpable for not afterward lending out the funds, or an additional $800 of similar funds collected by him.</p>

<p>FROM DAVIDSON.</p> <p>From the Law Court of Nashville, September Term, 1872. Jo. C. Guild, J.</p>

<p>PROM DAVIDSON.</p> <p>From the Chancery Court of Davidson County, October Term, 1873. W. F. Cooper, Ch.</p>

<p>Widow. Exempt property. A widow’s claim to her intestate husband’s exempt property is confined to that which is on hand, as a part of his estate, at the time of his death.</p>

<p>■Chancery Practice. General relief. In 1866, B. executed conveyances, in reality mortgages, oí land to F., after which, in 1867, he went into bankruptcy. Afterward, in 1868, 1869, 1870, and 1871, he made considerable payments to F. in redemption of the land, and died in.1871. The insolvency of his estate being suggested, a bill was filfed specifically praying-to have the conveyances to F. declared mortgages, and the land sold in satisfaction of tire residue of the mortgage debt and for the benefit of B.’s creditors, but concluding with a prayer for general relief. Held, upon plea thereof, that B.’s bankruptcy was a bar to the specific relief sought by the bill,- — the interest of B. in the land (his equity of redemption) having passed to his assignee in bankruptcy, — but that, for this reason, F. must refund the payments made to him by B., in redemption of the land, after his bankruptcy, and that it should have been so decreed under the prayer for general relief.</p> <p>Oases cited: Ba/rtee v. Tonypkins, 4 Sneed, 623; Dodd v. Benthal, 4 Heis., 601.</p>

<p>Chancery Practice. Bill of review for error apparent. Upon a bill ol review for error apparent on the face of a decree, the court will not look to the evidence to test the correctness of the Chancellor’s conclusions of fact therefrom.</p> <p>Case cited: Eaton v. Dickinson, 3 Sneed, 397.</p> <p>Note. The decree may he compared with the pleadings, to see whether it be consistent therewith. Burson v. Dosser, 1 Heis,, 758; Eaton v. Diehinson, 3 Sneed, 401.</p>

<p>PROM MAURY.</p> <p>From the Chancery Court of Maury County, October Term, 1871. John Y. Wright, Sp. Ch.</p>

<p>.Fraud. In I860, E. purchased land of L. for $600, E. then regarding it as worth from $1,000 to $1,200, and in 1868 selling it for $1,200. E. was intelligent and shrewd ; L. an old man, only a few degrees above idiocy, — relying in business matters mainly on his wife, to whom E. was related, and confiding implicitly in E. After selling the land, E. lent or gave $300 to L.’s wife. Held, a palpable case of fraud.</p>

<p>Statement. M. contracted to convey to S. 5 acres of a tract of 155 acres, afterward conveying the residue of the land to L., as trustee for the purposes of W. and M. himself, when W. and M. had a plan of subdivision made comprehending the entire 155 acres, whereupon M. conveyed the 5 acres to S., the lines running to the centre of the streets and alleys of the plan, — -these being assumed in the description in the deed as surrounding the premises. Afterward, W. and M. abandoned this plan, and adopted a different one; and this suit was brought by the parties interested in the 5 acres, to suppress the new plan and to establish the former one. There had been no actual recognition and use of the streets and alleys of the former plan, — their existence being only on paper. The bill was dismissed with costs.</p> <p>1. Dedication. Easement. To create an easement, it is not enough that the owner of land lay off streets and alleys on a plat: there must he, by user or otherwise, an acceptance of the dedication by the public.</p> <p>2. Same. Same. And the dedication must be by all the owners of the soil.</p> <p>Case cited: Scott v. Slate, 1 Sneed, 629.</p>

<p>EROM DAVIDSON.</p> <p>From the Chancery Court of Davidson County, October Term, 1872. E. H. East, Ch.</p>

<p>Resulting Tbust. ' Where money, a portion of the wife’s distributive share of her father’s estate, was invested in land and the title taken in the husband’s name, she acquiescing, without any understanding that he was to hold in trust for her, there was no resulting trust in her favor.</p>

<p>Statement. A compromise as to the lands of Elizabeth Dolan, deceased, was made between John D. Dolan, lier husband, on the one hand, and Joseph Reynolds, her brother, and the beneficiaries under a voluntary conveyance made by him, some of them being' minors, on the other. Thereby Dolan was to receive $10,000, with interest, from a time fixed, in full of iiis claim. A bili was filed for the ratification of the compromise on behalf of the minors, and for the sale of enough of the land to satisfy Dolan’s claim, who, however, was not made a party, and it was decreed accordingly, — a lien being declared to secure this claim. The c.lerk and master was appointed a trustee and commissioner to make the necessary sales. Reports of sales were made from time to time, and decrees rendered, recognizing Dolan’s claim as a primary charge, but making disbursements to Reynolds’s beneficiaries, for counsel fees, etc.. In 1868, the clerk and master reported as to the condition of the case, that during the war the property had greatly depreciated; and, thereupon, the Chancellor lopped off $2,000 from, the accumulated interest on Dolan’s claim, as his equitable share of the loss from the depreciation. In 1871, a decree was entered, reciting that the former clerk and master had proved a defaulter to the fund, and directing the clerk and master to report upon whom the loss should fall, except Dolan, whose right to be. exonerated was acknowledged. A report was made, apportioning the loss among Reynolds’s beneficiaries, and declaring that Dolan was entitled to payment in full, less the $2,000. Exceptions were filed to the report, because the loss from the defalcation of the former clerk and master was not thrown on Dolan; and Dolan became, by petition, a party to the suit, and excepted to the deduction from his claim, of the $2,000 on account of the depreciation of the property whereon it was a lien.</p> <p>1. INTEREST. The Chancellor erred in abating the interest upon Dolan’s claim because the property on which it was a lien had depreciated during the war. -</p> <p>2. Trustee. Loss from defalcation of. Not only the trustee, hut also the beneficiaries under Reynolds’s -voluntary conveyance, were bound to pay Dolan’s claim, — the compromise with Dolan enuring to the benefit of ail of them; it was therefore error to throw upon Dolan any portion of the loss resulting from the trustee’s defalcation.</p> <p>Case cited: Reynolds v. Brandon, 3 Heis., 594.</p>

<p>PROM BEDFORD.</p> <p>From the Chancery Court, of Bedford County, September Term, 1870. A. S. Makes, Ch.</p>

<p>FROM DAVIDSON.</p> <p>From the Chancery Court of Davidson County, October Term, 1870. E. H. East, Ch.</p>