Volume 60 — Tennessee Reports

<p>FROM HICICMAN.</p> <p>Appeal from tlie judgment of the Circuit Court, J. F. McKinney, Judge.</p>

<p>1. Executor. De son tort. What constitutes. Where a party assumes to intermeddle with goods of which an intestate died possessed, he renders himself liable, by such act, as executor da son tort.</p> <p>If A deposits money with B to be kept by him for A, and he does keep it until A’s deatlj, and then pays over to the widow and creditors of A the money so kept, such a state of facts will make B liable, as executor cle son tort of A. But if A lends B money, it becomes the property of B, and a payment of the same to the widow or creditors of A, after his death, can not render B liable as executor of his own wrong.</p> <p>Cases cited: Bacon’s Abridgement, vol. 4, 26, Bouvier’s edition; Williams on Executors, vol.l, 225: Bacon’s Abridgement, vol. 4, 28; 2d Durnford & East, 97.</p> <p>2. Eraud. Eacts bearing upon questions of fraud can be looked to only to determine the ownership of the money.</p> <p>3. Witness. Party of record. Competent. When. The act of Eeb. 21, 1870, excluding the testimony of either party, as to transactions with, or statements by a testator or intestate, applies only to actions by or'againsd rightful personal representatives, and has no application to a suit where a party is sought to be held as executor of his own wrong.</p>

<p>Spirituous Liquors. Sale of on Sunday. The words “ spirituous liquors ” having obtained a definite meaning, through a long uniformity of construction, when the Code was enacted, the established significance of the term was adopted, and the Legislature is presumed to have intended the same meaning in the language of Sec. 4861.</p> <p>Held, that the sale on Sunday of distilled and not fermented liquors, is prohibited by the Statute.</p> <p>Cases cited: Caswell v. The State, 2 Hum., 339. Case overruled, The SLate v. Sharrer, 2 Cold., 323.</p>

<p>1. AdministRation. Creditor’s claims. What is a sufficient presentation of. Statute of two years and six months. Statement. Where letters of administration, were issued on the-day of-, 1S6S, and the administrator filed a hill in the Chancery Court to wind up the estate as an insolvent estate, June 6,186S, and an order was made in the cause at September Term, 1868, directing notice to be given to creditors to file their claims by the May Term, 1869, and the creditor appeared and procured an order making him a defendant to this proceeding at the May Term, 1SC9, with leave to file his claim by next term, and lie failed to do so, but filed it November 28, 1870. Exceptions were taken because the claim was not filed in time, insisting upon the Statute of Limitations. The Chancellor allowed the exceptions, from which decree the creditor appealed.</p> <p>Held, The Court, having declared the appellant a creditor, at May Term, 1869, and so pronounced him, and made him a party defendant, this must be taken as a presentation of the claim in the sense of the law, and a recognition thereof by the Court. If the demand was not then barred, the failure to present it within the time prescribed in the decree, and notice could not affect it. Under the Statute the presentation would still be good, if made before the final appropriation of the funds.</p> <p>2. Same. Same. Statute of Limitations. The Chancellor’s order that claims be filed by or before a subsequent term, can not lessen or enlarge the statutory bar.</p> <p>Code, Sections 2,330, 2,376, 2,378.</p>

<p>FROM GILES.</p> <p>Appeal from the Chancery Court. "W. S. Fleming, Chancellor.</p>

<p>FROM SUMNER.</p> <p>Appeal from the Chancery Court. Chas. G. Smith, Chancellor.</p>

<p>1. Bankbuptcy. Want of jurisdiction to grant discharge. May be attached in State Court. When. Where a District Court of the United States has no jurisdiction of an application in bankruptcy, its action is a nullity, and if the petitioner pleads his discharge in defence to a creditor’s suit, the plaintiff may reply and interpose the want of jurisdiction to defeat the effects of such a discharge in any Court where the same may he prosecuted.</p> <p>Cases cited: Bump on Bank., 30, citing cases in 3d Bank. Beg., in 22 Penn., 145, Gooclfellow, 3 Bank. Beg., cited by Bump in note b, page 308, Sec. 11, Bank. Act, 1867.</p> <p>2. Same. Fraudulent failure to render complete schedule. A discharge in bankruptcy can not he impeached in a State Court by the allegation of fraudulent failure to render a complete schedule of property, if the Court had jurisdiction to grant the discharge, and the creditor had notice or was a party to the proceedings, the United States Courts having exclusive jurisdiction over the question of Bankruptcy.</p> <p>Cases cited: 46 H. T. B., 15, Bank. Act, 1841.</p>

<p>1. Homestead. Exemption of. Does not exist in favor of Widow and minor child. When. The homestead exemjDtion to the heads of families, created ky the Constitution of 1870, Art. 11, § 11, and the Act of 1873, chapter 98, is a right contingent upon occupancy; so therefore when a widow with her minor child abandons the occupancy, she loses the benefit of the exemption for herself and minor child.</p> <p>Cases cited: Black v. Curran, 14 Wallace, Story on Conflict of Laws, § 46.</p> <p>2. Same. Same. To preserve the right to a minor. What necessary. To preserve the right of homestead to a minor child, continued occupancy after the death of the mother is essential.</p>

<p>1. Attorney. Payment to in current, but not legal tender funds. Under what circumstances not binding on client. Agency. If an attorney declines to receive current bank notes, and discloses to the debtor that he is under instructions from his client not to receive such funds, but agrees to receive the funds and notify his client of the fact, and if his client consents, that he will then receive the funds in payment; but if his client refuses he will return the bank notes to the debtor, either in a definite time, or within a reasonable time; in such case the attorney would hold the funds as bailee or agent of the debtor, and if he failed to notify his client, or to return the money, it would be no payment.</p> <p>2. Same. Same. When client in such case would he hound. But if an attorney fails to disclose to the debtor private instructions, which limit his authority, and accepts money subject to be returned if his client refuses t0| receive it, in such case the attorney is the agent of his client, and his failure to return such money to the debtor, operates as payment and satisfaction of the claim as between client and debtor.</p> <p>Cases cited: Shear & Bedf. on STegl., Sec. 230.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal -from the decree of the Chancery Court. Vil. S. Fleming, Chancellor.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from’ the Criminal Court. Thomas N. Frazier, Judge.</p>

<p>PROM SMITH.</p> <p>Appeal from the Chancery Court. WilliaM G. Crowley, Chancellor.</p>

<p>FROM WILSON.</p> <p>Appeal from the Circuit Court. W. H. Williamson, Judge.</p>

<p>FROM GILES.</p> <p>Appeal from the Chancery Court. ~W. S. Fleming, Chancellor.</p>

<p>Appeal. Bond. Sufficiency of. Judgments on authenticated accounts. A bond for costs' and damages is sufficient in appeals from judgments on authenticated accounts from other States or counties, such accounts not being placed on the same footing with bonds, bills single, promissory notes, unliquidated accounts to be signed by the parties, and other instruments mentioned in Sec. 3,162 of the Code.</p> <p>Cases cited: Hunter v. Anderson, 1 Heisk., 1; Code, Sees. 3,161, 3,780.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Nathaniel Baxter, Judge.</p>

<p>PROM WHITB.</p> <p>Appeal from the Circuit Court. Sahuel M. Fite, Judge.</p>

<p>EEOM CLAY.</p> <p>Appeal from the Circuit Court. Samuel M. Fite, Judge.</p>

<p>Bail. Officer has no ricjht to talce. When. Where an officer takes hail of a prisoner before he has been examined or committed, such is a nullity, and the sureties are discharged. The officer has no such power except in the sense specified in the statute. Code, Secs. 5,017, 5,056, 5,141.</p>

<p>EROM OVERTON.</p> <p>Appeal from the Circuit Court. S. M. Fite, Judge.</p>

<p>PROM MAURY.</p> <p>Appeal from the decree of the Chancery Court. Albert S. Marks, Chancellor.</p>

<p>Will. Conflicting clauses. Construction of'. The will was made in 1870, in which year the testatrix died. After giving special legacies to her several children, she directed that “the balance of her estate he equally divided among the heirs of her body.” The will closes with this clause: “The portion that goes to my sons-I give to the heirs of their bodies, and hereby appoint each of my sons trustees, without bond, of his respective portion.”</p> <p>Held, That the intention of the testatrix, as expressed in the last clause, is in conflict with the intention expressed in the former clause, and for the reason that it is the last expression of testatrix’s intention, it must prevail and annul the absolute estate devised b3' the former clause to her sons, vesting them merely with the legal title of their respective portions, as trustees for their children, who take the beneficial interest in the portions of the residuary estate, coming to them under the division.</p> <p>Middleton v. Smith, 1 Cold., 144; Woodrum v. Kirkpatrick, 2 Swan., 224.</p>

<p>1. BedemptiON. Tender. Money need not be actually produced. When. Complainant, with sufficient money, went to defendant to redeem his property, hut was prevented by his refusal to receive it, and his denial that complainant then had any right to redeem. Under these circumstances it was not necessary to the validity of the offer to redeem, that the money should have been actually produced.</p> <p>Cases cited: 2 Green. Ev., Sec. 603.</p> <p>2. Same. Mistake as to time. Complainant desired further time of defendant for redemption of his property, but was refused, when defendant told complainant, by mistake, that his time of redemption expired on a certain day — subsequent, in fact, to the proper time, and agreed he might redeem on or before that day.</p> <p>Meld, That defendant should have received the money tendered by complainant at the appointed time, and that the right of redemption existed up to and inclusive of the day designated by defendant.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from tbe Chancery Court. Jas. P. Steele, Chancellor.</p>

<p>FROM WHITE.</p> <p>Appeal from the Chancery Court. W. P. Hickerson, Judge, by interchange with B. M. Tillman, Chancellor.</p>

<p>1. Pjueamxg. A party, for xohose use a suit is brought, is the real plaintiff. When. The words “for. the use, ote.,” should be treated "as surplusage. When. The vendee of a tenant’s interest in a crop, brought an action for conversion against the landlord in the tenant’s name, for his use.</p> <p>Held, That the vendee was the real plaintiff, and the words, “ for the use, etc.,” should have been treated as surplusage, and that the plaintiff’s cause was improperly dismissed for so technical an error.</p> <p>2. Lease. Assignment of interest in crop before maturity by lessee, is no abandonment of contract to cultivate the crop for a specific interest. When. Where a lessee transfers his interest in a crop before maturity, without the lessor’s consent, stipulating for the performance of his services under the agreement of lease, he does not thereby abandon his contract, so as to defeat an action against the lessor, for conversion, by the purchaser of his interest.</p> <p>3. Arguexdo. Landlord and Tenant. Where a tenant, who contracts to cultivate a crop for a specific interest in the same, fails to comply with the terms of his agreement, the landlord may maintain an action against him for damages occasioned by such failure.</p> <p>4. Facts. Eady rented land from Nowlin, and agreed in writing to pay him a part of the crop as rent. The contract also specified how the land should be cultivated. Eady, after the corn was matured, sold his interest in the crop to one Enley, who offered, at the proper time, to deliver Nowlin his part of the crop, but was not allowed to do so by Nowlin, who took possession and converted the entire crop to his own use, whereupon Enley sued Nowlin for a conversion of the crop. The warrant is to answer Mitchell Eady for the use of Martin Enley.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Eugene Cary, Judge.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Nathaniel Baxtee, Judge.</p>

<p>1. Judges of the various Courts. May interchange. When. Sections 8,915, $.916, $,917 of the Code construed. Although these sections do not, in express words, say that a Circuit Judge may interchange with the judge of a special Criminal Court, yet this is fully implied. They are judges of the State at large, and as such may exercise the duties of the office in any other circuit or district of the State. The word “judges” in Sec. 3,915 and previous sections of the same article, is not necessarily restricted in its meaning to Circuit Judges.</p> <p>2. Criminal Law. Homicide. Court need not define murder in first degree in charge to jury. When. The Judge, in his charge, failed to define murder in the first degree; the reason for this was, that the prisoner had, on a former tidal, heen acquitted of this' part of the charge, and could not again he tried for it. The Court, however, defined murder in the second degree. Held, the prisoner could not have been prejudiced by such failure, and there was no error.</p> <p>3. Same. Same. Charge of Court upon question of unsoundness of mind, caused by mania a potu. The prisoner was indicted for murder; his defence was temporary insanity, caused by the use of intoxicating- liquor, and known as “mania a potu,” or “ delirium tremens.” The phrases mania a potu, delirium tremens, or similar terms, were not employed in the charge of the Court. The terms “unsoundness of mind,” and “ insanity” having- been used. The instruction to the jury was, that such unsoundness of mind, or a reásonable doubt of the prisoner’s sanity, whether the disease be permanent or temporary, caused by the voluntary use of ardent spirits, or otherwise, was sufficient to release the prisoner.</p> <p>Held, It was not essential that the charge should have specially defined the various classes and types of insanity. It is the unsoundness of mind that excuses the act. According to the proof, mania a potu is a disease in which the mind is unsound. The language of the charge is sufficiently comprehensive to embrace the class of insanity in question. If the proof made out a ease of mania a potu, it established a case of mental unsoundness. As to this part of the charge, there was no error.</p> <p>Case cited: Dove v. The State, 3 Heisk., 370. Rogers v. The State, 2 Metcalf.</p> <p>4. Same. Same. Prisoner must know right from wrong. The charge of the Court was, in substance, that the accused mus know that the act was wrong — that is, he must know and be conscious that this particular act was wrong; further, he must know the consequences, one being his punishment.</p> <p>Held, The language of the Judge, though very brief, is quite comprehensive, and is as well adapted to the understanding of a jury as a more elaborate statement would have been, and is sufficient.</p> <p>5. Same. Same. Evidence. Name of peí son slain. There was no proof to show that the person slain was Agnes Stuart, the wife of the prisoner, as charged in the indictment, though the person slain was shown to be the prisoner’s wife, Mrs. Stuart. There was no contest over the fact of killing, and the witnesses did not speak of the deceased as Agnes Stuart.</p> <p>Held, This omission is of no consequence.</p> <p>Cases cited: Joyce v. The State, 2 Swan.</p> <p>6. Same. Same. Verdict of jury in criminal cases. What degree of weight entitled to. The Court say: “The verdict of a jury is entitled to weight; it removes the presumption of the prisoner’s innocence, and the superior advantages possessed by the jury and Judge below, in seeing and hearing witnesses, and a full examination of the case, must be recognized. Making due allowance for this, however, shall we give the same effect to the verdict of a jury, by which a person is sentenced to death, that we would where it simply settles the title of a horse or a cow ? Without hesitation we say no.”</p> <p>Case cited: Dains v. The State, 2 Hum.</p>

<p>FROM CANNON.</p> <p>Appeal from the Chancery Court. W. H. Williamson, Judge, by interchange.</p>

<p>FROM CANNON.</p> <p>Appeal from the Circuit Court. A. S. Marks, presiding by interchange.</p> <p>No briefs were filed.</p>

<p>New tbial. Newly discovered evidence. The following are well settled rules as to granting new trials for newly discovered evidence :</p> <p>1st. If a party omits to procure evidence, which, with ordinary diligence, he might have procured in relation to those points on the first trial, his motion for a new trial, for the .purpose of introducing such evidence, shall be denied.</p> <p>2nd. If the newly discovered evidence consists merely of additional facts and circumstances, going to establish the same points which were principally controverted before, or of additional witnesses to the same facts and circumstances, such circumstances are cumulative, and a new trial shall not be granted.</p> <p>Granting or same. When matter of right. When in discretion of the Court. In cases to which the foregoing principles clearly and unquestionably apply, the granting or refusal of a new trial is not a matter of discretion. The parties have a legal right to a decision conformable to those prin ciples. Where there is doubt upon the point of negligence, or as to the character of the evidence, or to its materiality, it becomes a matter of discretion.</p> <p>1 Grah. & Waterni., New Trials, 489.</p> <p>Negligence in railing to discover evidence before trial. What facts constitute. Where it was a material question whether a signal for firing a blast was given, and if given, whether the plaintiff below heard it; and the proof was conflicting upon these questions, and the deposition of the plaintiff helow was taken about two years before tlie trial, in which he swore he did not hear the signal, if any was given; and that Dr. Baily attended on him while confined with his broken leg, and the defendant below offered as ground for a new trial the affidavit of Dr. Baily, who states, that in his conversation with plaintiff below, he attached no blame to defendant’s employees, but that he thought he was in no danger, and iiaid no attention to the signal of blasting, given before touching off the blast.</p> <p>JEleld, It is not clear that it was not negligence in defendant to fail to seek for evidence from plaintiff’s physician, to whom he would naturally communicate tlie circumstances of his injury.</p>

<p>1. Pleading. Plea in abatement. Defective verification. When and how taken advantage of. Objection to a plea in abatement for defective verification, comes too late at the hearing of the cause. The plea being insufficient in its averments, should have been taken from the files on motion; or stricken out on argument of its insufficiency for defect in its verfication, that the defendant might have amended. The objection was waived by waiting to make it at the hearing.</p> <p>Wilson v. Eifler, 7 Cold., 31.</p> <p>2. Same. Plea. When to be supported by answer. A jilea which merely consists of a negative averment, denying the plaintiff’s right, or the principal facts or circumstances upon which it is founded, should be supported by an answer, in those cases only, in whicli the bill states or charges facts by way of evidence of plaintiff’s right.</p> <p>Daniels’ Ch. PI., 640.</p> <p>3. Same. Joint plea and answer. When the latter overrules the former. When a bill charges-that defendant has become insolvent, and has fraudulently disposed of, or is about fraudulently disposing of all his property; that is sufficient to give the Court jurisdiction to issue an attachment, and if the allegations of the bill stop there, a plea in abatement negativing the allegation, is sufficient to defeat the action without an answer; and in such case an answer will overrule the jilea.</p> <p>4. Same. Same. When the answer does not overrule the plea. But when the bill proceeds further to charge “that defendant has conveyed to a trustee the whole of his property, except a lot of real estate, and that this was not conveyed, though attempted to be done, because of a defective description of it in the deed, and this defective description is relied on as the evidence of fraud, in support of the general allegation of fraud, on which the jurisdiction of the Court is invoked.</p> <p>Held, In such case the answer does not overrule the plea. Dan’l Ch. Pr,, 639.</p> <p>5. Judgment. Will be rendered for the debt, though fraud not established. When. In cases where conveyances are attacked and sought to be set aside for fraud, if complainant fails to establish the fraud, the Court is required to give judgment for the debt. Code, See. 4,291 and 4,292.</p> <p>6. Same. Will not be rendered for the debt. When. But where there is no effort to set aside the conveyance for fraud, but the object is to reach by attachment a lot of ground -which the defendant intended to convey, but which complainant alleges was not conveyed by the vagueness of its description.</p> <p>Held, In such ease complainant is entitled to no judgment for his debt.</p>

<p>Mechanic’s Lien. Practice. Where no objections are made' he-lo w, to a hill that is not filed within the proper time to enforce a mechanic’s lien, and no defence is made to the relief sought; hut a judgment pro-confesso is alowed to he entered against the defendant, who appeals from a decree rendered for the amount ascertained by the Clerk and Master’s report, insisting that no lien existed in favor of complainant, and that the attachment was illegally issued.</p> <p>Held, The defendant, having taken no exceptions to these proceedings helow, can take none in the Supreme Court.</p>

<p>1. Constable. Motion against for non-return of an execution. A new execution that is issued in another county upon a certified execution, without a proper certificate, is void, and will not support a motion against a Constable for a non-return of the same. The certificate failed to show that the Magistrate was' such at the time he rendered the judgment.</p> <p>Cases cited: Bason v. Cummins, 11 Hump.; Apperson v. Smith, 5 Sneed.</p> <p>2. Same. Same. Burthen of proof. The burthen of proof is upon the plaintiff to show the officer’s liability, and no presumption exists in his favor that the execution was properly certified. In cases where the certified execution is lost, he must show that it was properly certified; and if he is unable to do this by sufficient evidence, his case must fail.</p>

<p>EEOM LAWRENCE.</p> <p>Appeal from the Chancery Court. Geo. PI. Nixon, Chancellor.</p>

<p>Chancery Court. Jurisdiction of, to enjoin an execution issued from another district. When. "While it is true that one Chancellor cannot enjoin the decrees of another Chancellor, with a view of having them reviewed in a different Chancery Court, yet it is competent for any Chancellor to enjoin an execution from another Chancery Court, upon the ground that it has "been paid or otherwise satisfied.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. Vh, P. Martin, Judge.</p>

<p>FROM GILES.</p> <p>Appeal from the decree of the Chancery Court. John C. Walkee, Special Chancellor.</p>

<p>EROM DAYEDSON.</p> <p>Appeal from the Circuit Court. Eugene Cary, Judge.</p>

<p>1. Repetition op Charge. In absence of counsel on one side. Not approved but not error. While it is improper for the Court to instruct the jury in the absence of a party’s counsel, thereby depriving him of the opportunity to except or to ask for qualification of the instruction, yet the Court hold, where it can clearly be seen that no injury has been done to the party by the instruction given, in a case of such slight departure, no reversal can be had.</p> <p>Case cited: Taylor v. Jones, 2 Head, 565.</p> <p>2. Practice. Affidavit of juror xvill not be received. When. Affidavits of jurors will not be received, for the purpose of showing that the jury misunderstood the charge of the Court, or that they failed to follow his charge, or that the verdict was rendered in a mistaken opinion as to the law or facts of the case.</p> <p>Cases cited: 3 Hump., 333; 4 Hump., 516.</p> <p>3. New trial. Evidence. Discovered by juror. And related after retirement. Affidavit the proper mode of bringing the fact before the Court. Evidence submitted to the jury shall be sworn evidence, submitted in open Court, under the safeguards of the law, and open to cross-examination, or liable to he met by countervailing proof on the part of the party who may be affected by it; evidence, therefore, discovered by one of the jurors, and related to his fellows after retirement, is grounds for new trial. The affidavit of a. juror is the mode of bringing such facts before the Court.</p> <p>Cases cited: 6 Greenl. 379; Price v. Warren, 1 Hen. & Mumford, cited in Gra. & Waterman on New Trial, vol. 2nd, 335; Donston v. The State, 6 Hump., 275.</p> <p>4. Jury. Duty of to follow the Court as to the law. It is not error for the Court to instruct the jury that “they must take the law from the Court as it was charged, and not attempt to decide the law for themselves, etc.” 4 Yerg , 114, 115; 1 Swan, 61.</p>

<p>1. Levy on peusonalty. What sufficient to vest property in officer. A levy which will vest the title of personal property in the officer, does not consist in writing out the levy on the process. Be must take possession of the property either actually, or < o something which amounts to the same thing.</p> <p>2. Same. Same. The mule in question was in the barn of the husband, which was locked, and the key in the custody of a negro servant who was hired on the farm. The husband being sick, the wife saw the officer, described the mule, told him where it was, and offered to procure for him the key. The officer declined to accept the key, but went to the barn, looked through the crack, and saw the mule; requested the wife to keep the mule for him, which she agreed to do, and then, or afterwards, wrote the levy on the attachment. The Circuit Judge told the jury that manual possession was ordinarily necessary; but if the property at the time was in the power of the officer, so he could have taken possession of it, but was in the possession of a third party who agreed to hold it for the officer, this would be sufficient.</p> <p>Held, The charge, as applied to these facts, misled the jury, and were erroneous. The mule was in the husband’s possession, and not that of the wife.</p>

<p>EEOM WARREN.</p> <p>Appeal from tlie Circuit Court. S. M. Fite, Judge.</p>

<p>I. Alias execution erom Court oe Record relates to its test. An alias execution from Court of Record relates to its test, and binds the debtor’s personal goods from that time, into whosoever hands they come.</p> <p>2. Same. Principle illustrated. Alias execution issued 11th of November, 1869, tested on the first Monday of November, 1869, which was, on the 25th of January, 1870, levied upon the goods in question, the execution debtor having died after the issuance of the execution, but before the levy.</p> <p>Held, The levy of the execution vested the title to the goods •in the sheriff from the test of the execution, and that his title was superior to that of a purchaser, who purchased the same goods from the execution debtor on the 7th of December, 1869. 4 Hum., 397; 1 Col., 396.</p> <p>3. Receiver. Liability of. Where the title to property is in dispute, and the sale of it has been enjoined, and a receiver appointed at instance of complainant, and he is himself appointed receiver, and his bill is disniissed for want of equity, it is error to decree against him and his securities on the injunction bond for the value of the property, as admitted in his bill. He held the property as receiver, and he and his sxireties as receiver were hound to account for it or its value, under the orders of the Court, and not his sureties on his injunction bond.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Circuit Court. E. Caby, Circuit Judge.</p>

<p>New trial. Granted on payment of costs. Mnor to set aside. When. Where a new trial has heen granted, upon the payment of costs, for which execution was allowed to issue, it is error for the Court to set it aside and render judgment upon the former verdict, because of the failure to pay such costs.</p>

<p>PROM 'WARREN.</p> <p>Appeal from the Circuit Court. N. A. Patterson, Judge.</p>

<p>PROM LAWRENCE.</p> <p>Appeal from the Chancery Court. J. C. Walker, Chancellor.</p>

<p>FROM COFFEE.</p> <p>Appeal from the Chancery Court. Jas. P. Steele, Chancellor.</p>

<p>1. Redemption. Bight of favored. The law favors the right of redemption when che time has been clearly enlarged by the purchaser, before the expiration of the time allowed by law. There should be unequivocal proof that this benefit to the debtor was surrendered by him, before he can be deprived of it.</p> <p>2. Tender. What sufficient. Upon a bill filed to redeem land, though no tender was made before filing the bill, yet, if the bill alleges that complainant was ignorant of the amount due the purchaser, and prays that it be ascertained, and if not paid, that the land may be sold for its satisfaction, this is sufficient.</p>

<p>1. Justice’s Judgment. When void. A Justice of the Peace has jurisdiction to render judgment upon an open account for $250 only; and a judgment for more than that amount is absolutely void, though the excess may have been for accumulated interest. 9 Yerg., 30; Martin & Yerg., 240; 1 Hum., 332; 6 Cold., 32.</p> <p>2. Same. Sow and when sueh judgment may be resisted. Such judgment may be resisted whenever an attempt is made to enforce it; and the defendant may bring it into the Circuit Court to have the proceedings quashed, without giving a reason for having failed to appeal.</p> <p>3. Same. Proceedings quashed. When. A judgment for a sum exceeding the jurisdiction of the Justice must be quashed; and a judgment rendered against the defendant by the Circuit Court, for a sum within the jurisdiction of the Justice, will not cure the defect.</p>

<p>Evidence. Entered, minutes of a corporation. May be impeached by parol evidence. When. The entered minutes of a corporation may he shown to he the act of the secretary, never approved by the directory; for this purpose parol evidence may be introduced.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. J. G. Wallace, Special Judge.</p>

<p>1. Execution. Failure to return. A failure to return an execution within the time prescribed by law, renders a sheriff and his sureties liable for the whole debt. Code, § 3,594; Webb v. Armstrong, 5 Hum., 379.</p> <p>And the fact that it came to his hands but a few days before the return-day, makes no difference; he was bound to return it.</p> <p>McCrory v. Chaffin, 1 Sneed, 307; Smith v. Gilmore et al., 3 Sneed, 481.</p> <p>2. Same. Alias execution. Effect of. The issuance of an alias execution is no waiver of the plaintiff’s right to proceed by motion for the default of the sheriff, in failing to return the former execution. But any amount thus collected should be credited upon the judgment.</p> <p>3. Same. Onus probandi on defendant. When. The defendant being in default, by failing to return the execution, before he can be relieved from the consequences, upon the ground that the plaintiffs, by their act or interference, caused the default, he must prove his defence.</p>

<p>PROM MATJRY.</p> <p>Appeal from the Chancery Court. Wm, S. Fleming, Chancellor.</p>

<p>Mistake in Justice’s judgment. Jurisdiction of Chancery Court. The judgment of a Justice of the Peace, if not appealed from, is conclusive, and a Court of Chancery has no jurisdiction to correct a mistake in the amount of said judgment.</p> <p>Chancery Court. Jurisdiction of. Section 4,%81 of the Code construed. If from the face of the bill the “ debt or demand ” be less than $50, the Chancellor ought to dismiss it; but if the . debt or demand claimed in the bill be more than $50, the Chancery Court,prima facie, has jurisdiction; and if the defendant submits to answer, he can not on the hearing resist a decree, because the amount found due to complainant is less than $50.</p> <p>1 Swan., 591.</p>

<p>FROM WAYNE.</p> <p>Appeal from the Chancery Court. James. W. Doherty, Chancellor.</p>

<p>FROM WARREN.</p> <p>Appeal from the Circuit Court. ¥m. P. Hick-ERSON, Judge.</p>

<p>PROM WARREN.</p> <p>Appeal from tbe Circuit Court. ¥m. P. Hicker-SON, Judge.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Nathaniel Banter, Judge.</p>

<p>FROM LINCOLN.</p> <p>Appeal from the Chancery Court. A. S. Marks, Chancellor.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Court of Common Law. J. C. Guild, Judge.</p>

<p>1. Right or Way. Private. Prescriptive right to. Sow acquired. A right of private way over the lands of another may he established by user, for such length of time' as to raise the presumption of an original grant.</p> <p>Cases cited: Wash, on Real Prop., Vol. 2, 293-4; Act of 1819, Sections 1 and 2; Chilton v. Wilson, 9 Hum., 405; Cannon v. Phillips, 2 Sneed, 213, 214.</p> <p>2. Same. What necessary to give \iser this effect. To give user this effect it must be uninterrupted in the land of another, by the acquiescence of the owner, for a period of at least twenty years, under an adverse claim of right, while all persons concerned in the estate, in or out of which it is derived, are free from disability to resist it, and are seized of the same in fee, having been in possession during the whole period.</p> <p>3. Same. Adverse enjoyment. Adverse enjoyment is substantially the same as being held under a claim of right against the owner of the land, out of which the easement is derived.</p> <p>Case cited: Wash., Vol. 2, 296-7.</p> <p>4. Same. Dedication. Evidence of. Irrelevant. When The right of way is acquired by user through an adverse claim of the same, and not under the idea of the dedication of the owner. Proof, therefore, that the owner had said he never did, and would not, consent to the right of way, is irrelevant.</p> <p>Case cited: Wash., Vol. 2, 298.</p> <p>5. Same. What necessary to constitute an adverse claim. Where objection on the part of the owner of land does not prt vent the adverse use from perfecting the right, if continued, for twenty years, to have that effect the enjoyment of the right, or the actual use and occupation must he substantially, and, in fact, broken up, so that there is not only an adverse claim against the right of way, but an actual adverse assertion of that claim, whether by actual adverse occupancy or by suit.</p> <p>0. Same. Verbal contract for. Void. The transfer of such a right is required to be made in writing, like the conveyance of land itself; a verbal.contract for the same is therefore void, under the Statute of Frauds. Bouvier’s Law Die., vol. 2, 65.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. A. M. Hughes, Circuit Judge.</p>

<p>1. Ekrob cokam nobis. Mat does not commence suit. Bond is necessary. This proceeding- is not to bring up a former case, but to begin a new suit, to reverse a former judgment, which is not, in fact, begun until proper security is given. The mere grant ing of the fiat for the issuance of the writ is not its commencement.</p> <p>Cases cited: 3 Head, 346; Code, § 3,115.</p> <p>2. Same. Practice. Motion to dismiss. Motion to dismiss may be made at any term of the Court, unless there has been an express waiver of irregularities.</p> <p>3. Same. Same. Issuance-of writ not necessary. The writ, in fact, never issues, hut is presumed to issue in accordance with the fiat, on filing the petition with the Clerk of the Court, and giving bond as required by law. Application must he made within one year after rendition of former judgment.</p>

<p>Note. Payable in Confederate money, a merger of the original contract. Measure of damages. Where a note payable in Confederate money is given in satisfaction of an account, the original contract is merged into the special obligation to pay in Confederate money, the same being valid, a recovery can be had only upon the note, and for the value of the Confederate notes, at the maturity of the debt.</p> <p>Case cited: 4 Sneed, 231.</p>

<p>■ Set-off. Judgment mzist show some amount due the plaintiff. The defendant is entitled, where the plea of set-off is relied upon, to have a judgment for the excess of his demand over the demand of the jDlaintiff. This excess must he ascertained hy the jury, and to this they must find in their verdict that something is due plaintiff, and the amount fo.r defendant is the balance due after subtracting- plaintiff’s claim.</p> <p>Case cited: 1 Heis., 484. •</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. Edward. H. East, Judge, by interchange.</p>

<p>Evidence. Declaration of a party offered in evidence by himself. Dejected. When. Bringle was indebted to Worley, and the claims were in defendant’s hands for collection, and he iiro-posed to prove by Bringle that when Bringle first offered to jiay him the claims in Confederate money, he told him he was not authorized by Worley to receive it, but that he would see Worley in a short time and get instructions from him, and that subsequently he saw Bringle and informed him that he had seen Worley and was authorized to receive the money. At the same time Bringle paid him in that currency a part of the debt.</p> <p>Held, The testimony offered was incompetent.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. A. M. Hughes, Judge.</p>

<p>Power. Of disposition of absolute owner of personal property. How far within legislative control. The absolute owner of x>ersonal property has the right to sell or otherwise dispose of it, at his discretion, and the Legislature has no power to prohibit him. But the Legislature may, from motives of public policy, restrain creditors from taking, by execution, or other legal process, certain articles of property which are necessary for the maintenance and support of families of improvident or unfortunate debtors.</p> <p>Cases cited: Lucas v. Love, MSS. Code, Sec. 2,863.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Common Law Court. Jo. C. Guild, Judge.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. Hilaky Ward, Judge</p>

<p>Evidence. Of general character. When admissible in civil actions. Where the ground of defence relied on hy a defendant to a civil action, imputes the plaintiff’s injury to his own immoral and criminal conduct, and defendant seeks to sustain it hy proof of facts and circumstances calculated to raise suspicion against the plaintiff.</p> <p>Held, Under these circumstances, plaintiffs have a right to prove they are now of good character for honesty.</p> <p>Cases cited : Greenl. on Ev., Sec. 54, vol 1; Henry v. Brown, 2 Heis., 213.</p>

<p>Sale of eeesonax. pkopbrty. When title passes. Frank sold to Rawls & Griffis two bales of cotton, then partly picked out, agreeing to deliver the cotton at Patterson’s gin,, and when it should be ginned and separated from Patterson’s portion as landlord, and the weight of the balance ascertained, they were to give him [Frank] credit for the amount, on a debt which he owed them. The cotton was delivered, but before it was ginned and baled or separated, Patterson levied an execution on it, and had it sold.</p> <p>■ Held, After the delivery to the gin, Patterson became the agent of the parties for ginning, etc., and that Prank had nothing more to do after the delivery of the cotton, and that the sale was then completed, and the title passed to Bawls & Griffis upon the delivery of the cotton at the gin.</p> <p>Cases cited: Bush v. Barfield, 1 Cold., 92.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. A. M. Hughes, Judge.</p>

<p>Statement of case: Mrs. Sims, while keeping a hotel, borrowed money from Embry, with mortgage on hotel building. The time allowed for the payment of the notes was ten years, in annual instalments, with the privilege of discharging one-half of each payment in board. She kept the hotel until 1863. She did receive some boarders, and was always ready to receive any others he might have sent, until she closed her house at the time stated. None of the notes were taken up. A foreclosure of the mortgage is sought.</p> <p>1. Conteaot. Construction of. Note to be paid in a particular manner.</p> <p>Meld, Under the circumstances of this case, it is presumed that the parties expected each note containing the privilege, to he paid in hoard, and if Mrs. Sims was ready during or at the end of the year to furnish hoard, this would free her from liability to suit for the money, hut will not relieve her from the obligation to pay when demand is made in reasonable time, and she refuses to pay, or has become unable to perform her contract.</p> <p>2. Samis. Statute of Limitations. By this contract, Mrs. Sims bound herself to be in readiness for the accommodation of boarders for the whole ten years. However, in this case, the notes are due, as specified on their face, and must be presented or sued on within the period of the Statute of Limitations for a money demand, as the agreement implies that the payee will offer an opportunity for performance.</p> <p>Cases cited: Smith v. Corn, 3 Head, 117, reviewed Act. 1807. ch. 95, § 1; Code, § 1,690.</p> <p>3. Same. Profits on board. General liability. Up to the period of Mrs. Sims’ failure in 1863, she will be entitled to reduce her notes to what the proof shows the profits would be to her on boarders — that is, during that iieriod, the notes containing the privilege. After cessation of her business in 1863, it was her misfortune to he unable to perform her part of the contract, and from that time she must be held liable without reduction.</p>

<p>EROM LAWRENCE.</p> <p>Appeal from the Circuit Court. ¥m. P. Martin, Judge.</p>

<p>FROM GILES.</p> <p>Appeal from the Chancery Court. H. H. Harrison, Chancellor.</p>

<p>FROM ERANKLIN.</p> <p>Appeal from the Circuit Court. 1ST. A. Patterson, Judge.</p>

<p>FROM GILES.</p> <p>Appeal from the Circuit Court. A. M. Hughes, Judge.</p>

<p>1. Coupons. On city bonds. Bond need not be produced. A coupon may be negotiated after it has been separated from the bond, as an independent security, and it is not necessary to produce the bond to entitle the holder to recover.</p> <p>Cases cited: Com. of Knox Co. Ind., v. Aspinwall, 21 Howard, 539; Thompson v. Lee County, 3 Wall., 327; Arents v. Com. of Va., 18 Grattan, 767.</p> <p>2. Same. Demand and protest. The coupons are intended as evidence that the holder is entitled to receive the amount at the time and place specified, and whatever their form, the legal effect is the same; and formal demand and protest is not necessary to maintain suit against the maker.</p> <p>Cases cited: IS Grattan Va. Rep., 750.</p> <p>3. Same. Interest allowed. When. While if it should appear that the defendants held funds to pay the coupons at maturity, they might not be chargeable with interest until demand was made; but if it be shown that the defendants provided no funds and made no provisions for their payment, no demand is necessary, and the coupons being for the payment of a fixed sum at a given day, will bear interest from that date like a promissory note.</p> <p>Cases cited: 5-1 Penn., 94, and the authorities before referred to.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Circuit Court. M. M. Brien, Sr., Judge.</p>

<p>1. Sale. Chancery. Report by Cleric and Master. How far presumed regular. Where a Clerk and Master sells land and makes his report, that he has made the sale in pursuance of the order, given notice as required hy law, etc., he is presumed to have performed his duty properly, until the contrary is made to appear hy proof.</p> <p>2. Same. Exceptions to. In such case the report will be confirmed hy the Court, unless the exceptions to the same he sustained by proof.</p> <p>3. Same. Same. Burden of proof. The burden of proof is upon the party making exception, to show the irregularity of the Clerk’s report.</p> <p>Cases cited: 6 Hum., 232, 259, 261; 7 Yerg., 428; Jones v. Planters’ Bank, 3 Hum., 76; 1 Yerg., 476.</p>

<p>1. .CONTRACT. Mutual and, independent. Lease. Construed. Plaintiff agreed to keep up fences, defendant was to pay rent, charge that failure to keep up fences relieved defendant from paying rent, error.</p> <p>Held, the contract is a mutual and independent covenant, where either party may recover damages from the other, for the injury he may have sustained by breach of the covenants in his favor. ■ '</p> <p>2. Same. Same. Cross-action. It is no excuse for the defendant to allege a breach of thé covenants by the plaintiff in bar of his action, the defendant has his right of separate action to prove and recoup his damages.</p> <p>Case cited: 2 Pars. Cont., 531, 532.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Eugene Cary, Judge.</p>

<p>PROM WARREN.</p> <p>Appeal from tbe Chancery Court. A. S. _ Marks, Chancellor.</p>

<p>Statement oe Case: Moinett came to Tennessee to buy lands, Days pretended to b.e his friend, in helping him to make the purchase of a farm, the property, in fact, belonged to Mr. Longmiller; the transaction was completed with Arlege, who assigned the $400 note of Moinett for purchase money to Days as his share in the profits on the sale. Moinett seeks to enjoin the collection of the same.</p> <p>1. Principal and agent. What constitutes. Days, under the circumstances of this case, is the agent of Arlege to sell the land, and received the $400 note as his part of the profits on the speculation.</p> <p>2. Same. Same. Agent not entitled to profits. When. Where a party acts as agent of another, he will not be entitled to make a profit for himself by taking advantage of his position'; he holds such profits for the benefit of the party whose confidence he has abused. In cases of fraud and undue advantage the rule is rigidly enforced. The collection of the note is perpetually enjoined.</p> <p>Cases cited: Kuch v. Sanford and Pox v. Macrith, 1 Lead. Cases in Pep, 97, 208.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. S. D. Eriek-son, Chancellor.</p>

<p>FROM WARREN.</p> <p>Appeal from the Chancery Court. A. S. Marks, Chancellor.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Eugene Cary, Judge.</p>

<p>Judgment. A copy of a defective judgment from Justice’s docket does not negative a proper judgment on the warrant. Where it clearly appears that the judgment was rendered, the Court is not inclined to require proof that the judgment was written out formally, in the absence of clear proof to the contrary. Proof that there was such a judgment will raise the presumption that it was valid and sufficiently formal. This being so, execution may issue, though the copy of the judgment from the Justice’s docket he defective.</p> <p>Cases cited: Bell v. Williams; 4 Sneed, 196; Johnson v. Bil-lingsley, 3 Hum., 151.</p>

<p>FROM LINCOLN.</p> <p>Appeal from the Circuit Court. Wm. P. Hickee-SON, Judge.</p>

<p>EROM LINCOLN.</p> <p>Appeal from the Circuit Court. W. P. Hickerson, Judge.</p>

<p>Conditional sale. With liberty to repurchase. Liability of purchaser for loss of personal property so conveyed. Sjdies conveyed to Parks the undivided half of some real estate, a cotton mill, and the half of three wagons, harness and eight mules, used in carrying on the factory. Sykes retained the privilege of re-purchasing the lands, mill, fixtures and machinery, after a certain time. Parks is sought to he made liable for half the value of the mules, which were stolen during the war, he having taken part possession of the lands, mules and wagons.</p> <p>Held, Whether the conveyance was sale with liberty to re-purchase or a mortgage, it not being alleged that the property lost was in the exclusive possession of Parks, or lost by his negligence or fault, he can not be held liable for one-half the value thereof.</p>

<p>Pbustcipal and Stayor. Oase dismissed by Principal. Does not discharge Stayor. When. A judgment against a principal and his stayor, being levied on land of the principal, and returned for condemnation; the case lingered during the war, and was dismissed on the motion of the principal.</p> <p>Held, The stayor was not discharged.</p> <p>Cases cited: 2 Amer. Lead. Cases, 147 and 123; Story Equity Jups., § 325-6; Bondi). Bay, 5 Hum.,494; Thompson v. Watson, 10 Yerg., 362; Bakerv. Briggs, 8 Peck, 122; King®. Baldwin, 17 Johns, 334; Wright v. Simpson, 5 Yos, 734; Hess, 604; U. S. v. Simpson, 3 Parson’s Rep., 437; Munsdorf v. Singer, 5 Watts, 170.</p> <p>Note. This case is cited and distinguished in Watson v. Bead, delivered at Nashville on the 10th April, 1875. The case is hardly consistent with this one, and possibly supersedes it.</p> <p>Reporter.</p>

<p>Cotcpoeation. Liable as individuals. When. In an action against a corporation for maliciously suing out an attachment, the. corporation is to he held liable in all cases where an individual would be responsible under similar circumstances.</p> <p>Oases cited: P. W- & B. K. R. Co. v. Quigley, 21 Howard, 209, 210; Humes & Williams v. Mayor and Council of Knoxville, 1 Hum., 403; Mayor and Council of Nashville v. Brown, 9 Heisk., 1; Ohio Ins. Co. v. Merchants’ Ins. Co., 11 Hum., 1; G-oodspeed v. East Haddora Bank, 22 Conn., 530.</p>

<p>1. Evidence. Bill of exceptions. Error. Presumption in favor of Gourt below. Where matters are admitted as evidence, but not put into the bill of exceptions, the Court of Errors will presume it was properly admitted.</p> <p>2. Same. Error to mislead, a party as to matter curable. Where the Court below holds certain evidence admissible, which the defendant could get in after a preliminary step, and afterwards charges that it is inadmissible, this is error.</p>

<p>1. Evidence. JRes G-estce. Declarations and concurrent statements de-fore the transaction. Admissible. When. Hall ovcrchecked for $2,000 on the Third National Bank of Nashville, with the understanding that he would purchase $3,000 of Tennessee Bank notes with the money, and place the same as a collateral to his check in tire bank; Martin purchased the Tennessee Bank notes for Hall, and delivered them to him in his office, when Hall started to the bank, announcing his intention to place the package at once in the bank; this was all one transaction, and occurred at the same time; the bank denies the deposit.</p> <p>Held, It was competent to prove the entire transaction, the attending circumstances, the agreement to make the purchase, the drawing of the check, the fact that the notes were purchased by Martin, turned over to Hall, at or near the same time, Hall’s statement during the transaction with regard to the package; Hall’s remark to Martin that he was going to the bank to deposit the package. Kirby v. The State discussed and distinguished.</p> <p>2. Same. Same. After the transaction. Hall proves that immediately after making the deposit with the bank, he met his partner, Robinson, and had a conversation with him. Both Hall and Robinson were permitted, over objection, to prove that in this conversation Hall stated to Robinson the substance of the • transaction, and that he had just before deposited the money with the bank.</p> <p>Held, At the time this evidence was admitted it was incompetent, which was upon the hearing of the plaintiffs testimony in chief, and not by way of rebutting testimony. But when all the evidence had been heard it became competent, and the Court did not err in refusing to reject it. We would notordin-arily reverse for the error of the Court, as to the order of introducing testimony.</p> <p>Cases cited: Greener v. Morrow, 1 Cold., 123; 1 Greenleaf, § 469; Dossett v. Miller, 3 Sneed ; Brown v. Lusk, 4 Yerg.</p>