Volume 61 — Tennessee Reports

<p>EBOM MACON.</p> <p>Appeal from tbe Chancery Court. W. D. Good-pastube, Chancellor.</p>

<p>FROM HILES.</p> <p>Appeal from the Circuit Court. Hilary Ward, Judge.</p>

<p>1. CertioeaRI. Will not authorize a trial on merits. When. A cer-tiorari to quash a judgment, because obtained without service, will not authorize a trial on the merits.</p> <p>2. Same. Warrant, proof of and its return prima faoie sufficient. The justice made affidavit that a warrant was returned before him, duly executed, upon which he rendered the judgment; this would throw the burden of disproving the service upon the petitioner.</p> <p>3. Same. Same. Petition dismissed. When. The petitioner, admitting that the judgment was, in fact, rendered, it was not error for the Court to dismiss the petition on proof of service.</p> <p>Cases cited: Studdart v. Fowlkes, 2 Swan, 537; Nanee v. Hicks, 1 Head, 624; Hicks v. Johnson, 3 Sneed, 326; Hollins v. Johnson, 3 Head, 346.</p>

<p>1. Pleading. Plea. When had. To an action on a note a plea that “ the consideration of the note sued on was notes of hanks worth at the time not more than-cents in the dollar.” Held, Bad.</p> <p>2. Note. Want of consideration. When a note for $1,000 is given for depreciated paper of the same nominal value, there is not a “ partial want” of consideration within the meaning of_Section 1806 of the Code.</p> <p>3. Same. Inadequacy of consideration. Inadequacy of consideration is distinguished from'a total or partial want of consideration. In the absence of fraud the former is no defence to an action upon a con-, tract; the latter is a defence, total or pro tanto, as the case may he.</p> <p>4. Same. Distinction between inadequacy and partial want of consideration illustrated. When the note is not given upon any one consideration which, whether good or not, or whether it fail or not, goes to the whole note at the time it was made; but for two distinct • and independent considerations, each going to distinct portions of the note, and one is a consideration which the law deems valid and sufficient to support a contract, and the other not, then the ■contract shall he apportioned.</p> <p>Cases cited: Parson on Notes and Bills, vol. 1, p. 211, note 1; Parrish v. Stone, 14 Pick., 198; Chitty on Con., 29; Edwards on Bills and Notes, 318.</p> <p>5. Evidence. Admission. Not admissible. When. The mere statements of a testator, as to what he was willing to receive on a note, is no discharge or release of any part of the same, and his executors are not bound, it being voluntary and without consideration.</p> <p>Oases cited: Turley v. Evans, 3 Hum., 222; Nane v. Simpson, 5 Sneed, 612.</p>

<p>1. Lex loci contractus. Whatever constitutes a good defence by the law of the place where a contract 5s made, or is to he performed, constitutes a good defence wherever the question may he litigated. The lex loci acts upon the right, and the lex fori upon the remedy.</p> <p>Cases cited: 2 Kent, 595, 600; Pickering & Fisk, 6 Vermont B., 102.</p> <p>2. Fraud. Fraud in the inception of a contract is fatal to its enforcement, wherever the same may he litigated.</p> <p>3. Same. Same. In sale of land. In the sale of land, if there he no ingredient of fraud, and the party has not secured himself ky covenants, he has no remedy even on failure of title.</p> <p>Cases cited: 2 Kent, 622; Maney v. Porter, 3 Hum., 347.</p> <p>4. Mote. Inadequacy of consideration. Inadequacy of consideration, without warranty or fraud, is no defense to a promissory note.</p> <p>5. Becoupment. ^Recoupment is not a matter of set-off arising on an independent contract, hut for the purpose of reducing the plaintiff’s damages, because he has not complied with the cross obligations under the same contract.</p> <p>Cases cited: Sedg. Meas. Dam., 496.</p> <p>6. Same. Fraudulent misrepresentations. Damages may ho recouped for the value, quality or quantity of land when sustained by fraudulent misrepresentations, if susceptible of computation. Cases cited: Sedg. Meas. Dam., 500, 519; Porter v. Woods, 3 I-Ium., 60; Grouch v. Miller, 5 Hum., 586; Allen v. McMew, 8 I-Ium., 46; M. & K. T. Co. v. Harris, 8 Hum., 558; Henning t. Vanhook, 8 Hum., 678.</p> <p>7. Same. Cross-action. This defense only exists when a cross-action could he maintained.</p> <p>Cases cited : 5 Ind., 176. Sedg. Meas. Dam., 496.</p> <p>8. Sale oe land is gross. Law of Louisiana. Where land is sold in gross no action can he maintained for a diminution of price on account of deficiency in quantity.</p> <p>Cases cited: Zevengue v. Williams, 15 Ann. Hep., 76; Barrow v. Miller, 16 Ann. Bep., 114; Walker’s Dig., 405.</p> <p>9. Same. Warranty. Eviction. Law of Louisiana. Vendor of land is never liable until the vendee is evicted by some lawful authority.</p> <p>Cases cited: Morris v. Kenton, 2 Ann. B., 722; Fletcher v Cari-lin et al., 10 La. B., 120; 7 La. B., 286; 19 Mart., La. B., 235.</p> <p>10. Succession. Legal representatives of. Law of Louisiana. An ' administrator with will annexed may sue and recover upon a note made “to the order of the legal representatives of the succession ” of the testator.</p> <p>Code, § 2,788.</p> <p>11. Conflict of laws. Laws of other States are presumed tobe the same as that of the State where the suit is brought, until the contrary is shown.</p> <p>Case cited: Wharton Cont. of Laws, § 780.</p> <p>12. Constitutional law. Oomity of States. A change in the organic ljiw of Louisiana, which annuls contracts for the sale of slaves in said State prior to the making of such change, is unconstitutional and void, and will not be recognized in this State, as valid by the comity of States.</p> <p>Case cited: White v. Hart, 13 Wal., 647-654; 6 Adolph.; 2 Ellis, 989; Marbury v. Madison, 1 Cr., 137; Calder v. Bull, 3 Dali., 386; Satterlie v. Wattison, 2 Pet., 380; ex parte Garland, 4 Wal., 399; Dodge v Woolsey, 18 How. U. S., 331; Union Bank v. The State, 9 Yerg., 495.</p> <p>13. Comity of States. How far the principiéis to influence the Courts of other States. The comity of States is not a positive rule of law; one State can not dictate to another how to construe a contract sought to be enforced in its limits. A reasonable limitation of the rule is, that no community shall suffer prejudice by its comity.</p> <p>Cases Cited: Sto. Cont. of Laws, 7, 8, 18, 20, 22, 23, 36, § 244-6; 5 La. Bep., 295; Forbes v. Cochran,''2 B. & C., 448 : Smith v. Godfrey, 8 Forbes, 382; Ohio Ins. Co. v. Edmondson, 5 La. B., 295.</p> <p>14. Wakbanty of title. A warranty of title is a covenant that the title is then good in the warrantor, but is not an undertaking for the future against the vis major of the government, by which the then existing title might be destroyed.</p> <p>15. Attachment. Ancillary. The form of the writ of attachment given in this case was only intended for cases of original attachment, and does not apply to ancillary attachments. Although the absence of proof of publication can not be held fatal to the proceeding, the attachment is void because it does not refer to, describe, and identify the suit, in aid of- which it was issued, so as to show upon its face that it forms an adjunct of that particular suit.</p> <p>Cases cited: Ingle v. McCurry, 1 Heisk., 26; Woodfolk v. Whit-'worth, 6 Cold., 565; Thompson v. Carper, 11 Hum., 545. Code, § 3475.</p>

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

<p>PJBOM DAVIDSON.</p> <p>. Appeal from the Circuit Court. Eitg-ENE Cary, Judge.</p>

<p>1. Public oeticeks. Liability and duty of, in relation to trust funds. Where an officer holding a trust fund converts it to his own use, he is liable for its value at the time of its conversion.</p> <p>2. Same. Same. Such liability may be discharged in the same currency as received, though depreciated or worthless, where the officer has acted in good faith. The identical bills are not necessary, if the fund has been kept intact in the same character of security -as received, and as the property of the beneficiary. This decision is confined to Confederate money.</p> <p>Cases cited: Taylor v. Benham, 5 How. U, S. B., 233; Davis, Com., v. Harman etal., 21 Gratt. B., 202, 205.</p>

<p>1. Wbixten Contract. Merger of original liability. When. Where a particular sum in a specified currency is accepted, by a written agreement, as payment for property, the original liability is merged into the written contract, upon which alone recovery can be had.</p> <p>Case cited: Kennel v. Muncey, Peck’s B., 273; Code, Sections 1804-5.</p> <p>2. Same. Same. Measure of damages. Where the promise was to pay in current' bank notes, or Confederate treasury notes, and the latter had ceased to be a currency when the obligation became due, then the value of bank notes that pass as currency at the time will be the measure of recovery.</p> <p>Case cited: Woodfolk v. Pratt, 1 Baxter, 348.</p>

<p>1. Vendoe’s Lien. Be,served on face of deed. Passes to assignee of note. Is an ineident to the debt, and is not lost by merger of the note into a judgment. Where a note is given for the purchase of land which is conveyed to the purchaser hy deed retaining a lien to secure the purchase-money, the lien is an incident to the debt, and the assignment of the note carries the lien with it to the assignee; nor is it lost by reducing the note to a judgment.</p> <p>2. Deed. Beserving lien to seeure purchase-money passes the legal title to purchaser. Subject to be levied on by execution. The deed has the effect to pass the legal title to the purchaser, and it may be levied upon and sold by execution against him. But the purchaser at the execution sale takes the title incumbered with the lien, and the assignee of the note may enforce the lien against the purchaser, at execution sale.</p>

<p>1.Wills, Holographic. Insanity. Rule as to. Evidence. Wliere a person is assumed to have' been insane at the time of placing the will among his valuable papers, it will require an equally intelligent act of retaining it in such repository, in a lucid interval, to give it effect as a valid disposition of his property, this being equivalent to a publication; but to say he was at any time of sound mind and memory, and then retained it among his valuable papers, it would be conclusive that he intended it to be his will, is to state the rule too strongly.</p> <p>Cases cited: Gass’ Heirs v. Gass’ Ex.. 3 Hum., 282; Crutcher & Crutcher, 11 Hum., 385; Act of 1784; Bedfield on Wills, vol. 1, p. 373.</p> <p>2.Practice. Charge to Jury. Expressions Incorrect. Reversible. ■ When. While the principle is a sound one, that a Judge’s charge is not to be held erroneous on account of particular expressions, if the principle as given by him with all its qualifications, is substantially correct, yet if the rule as given to the jury when thus taken is not correct, and taken in connection with the facts of the case, is calculated to mislead the jury, this is ground for reversal.</p> <p>Case cited: Trotter v. Watson, 6 Hum., 513.</p> <p>3.Same. Burden of Proof in Insanity. Order of Counsel’s Argument. The defendants, claiming the right to have the opening and closing argument, because the burthen of proving insanity was on them, discussed.</p>

<p>FROM GILES.</p> <p>Appeal from the • Chancery Court. W. 8. Fleming, Chancellor.</p>

<p>PROM WARREN.</p> <p>Appeal from the Chancery Court. B. N. Till-MAN, Chancellor. a</p>

<p>1. Constable. Motions against. Seoitals of. A judgment based upon a motion deficient in proper.recitals, is void, though such motion may refer to a notice already spread upon the minutes embracing the necessary facts.</p> <p>Case cited: Watkins v. Barnes, 1 Sneed, 205.</p>

<p>PROM HICKMAN.</p> <p>Appeal from the Circuit Court. Elijah "Walker, Judge.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from tbe Chancery Court. Edward H. East, Chancellor.</p>

<p>Execution sale of land. Several parcels sold in gross. Sale void. If two distinct tracts or parcels of land, not contiguous, nor beneficial, the one to the other, in the uses for which they are respectively adapted, be levied and sold in gross — that is, sold altogether in one sale — and purchased by the plaintiff in the execution, such sale is a fraud upon the execution debtor, and absolutely void.</p> <p>Case cited: Winters & Cross v. Burford, 8 Cold., 328.</p>

<p>FROM SMITH.</p> <p>Appeal from the Circuit Court. Andrew McClain, Judge.</p>

<p>1. Judgment. Assignment of. Attorney's lien for fee. The assignee of a judgment takes the equitable title, subject to a lien which an attorney may have on the same for his reasonable fee.</p> <p>Case cited : Hurst v. Means, 2 Sneed, 646.</p> <p>2. Same. Same. Warranty of title implied. The assignor of a judgment, who sells it for a valuable consideration, gives an implied warranty of title, and if there is a lien or incumbrance on it, he is bound to remove it, unless he relieves himself by contract.</p> <p>See Perkins v. Perkins, 9 Heis., page 96.</p>

<p>1. CORPORATION. Liable for acts of agent. When. Military government de facto. While the city of Nashville was under military control, its Mayor and City Council constituted a government de facto, and the corporation is liable for property taken from individuals, of which it enjoyed 'the benefits, though its agents, by whose authority the act was done, were not legally elected in pursuance of the City charter.</p> <p>Case cited: Cole v. Corporation of Nashville, 4 Sneed, 166.</p> <p>2. Trespass upou Land. Measure of Damages. The measure of damages for felling and carrying away trees from a tract of land, is their value as they stood upon the land, and if their removal impaired the value of the land, damages may be had for such injury.</p> <p>Case Cited: Whele=s v. Second National Bank, 1 Baxter, 469.</p>

<p>PROM COFFEE.</p> <p>Appeal from the Circuit Court. William P. HickersoN, Judge.</p>

<p>1. Wilis. Insolvent proceedings. ■ Duty of Dxemtor. Practice. The property, realtor personal, of a non-resident decedent, situated or within the jurisdiction of this State at the time of his death, may he administered under our insolvent laws, and this although the estate of the decedent he solvent at the place of his domicile in another State.</p> <p>Case cited: Gilchrist v. Cannon, 1 Cold., 581.</p> <p>2. Same. .Same. Sale of property for specific debts may be set aside by creditor. When. The sale of property for the satisfaction of specific debts hy the executor, during the first six months after letters of administration, with knowledge of the insolvency of the estate, does not preclude a creditor, standing hy for two years, from filing his hill under the insolvent laws of this State for distribution. A creditor of the estate being the purchaser in this case, was allowed to retain the property at cost, or have the same sold for pro rata distribution, having paid the full value at time of sale.</p>

<p>1. Resulting- Trust. How created. TJse of Ward’s rrurney by Guardian. A resulting trust can only arise out of the original transaction when title is taken; such a trust does not exist in favor of wards whose money has been applied by their guardian in payment for land, where the title has fixed in such purchaser previous to his guardianship.</p> <p>Cases cited: Mofifit v. McDonald, 11 Hum., 460; 1 L. C. in Eq., Notes to Dyer v. Dyer; Gee v. Gee, 2 Sneed, 395; Story’s Eq. Jur., § 1258; Sanford v. Weedon, 2 Heisk., 76; Perry on Trusts, §§ 127, 135; Cap-linger v. Stokes, Meigs’ R., 175.</p> <p>2. SAME. Same. No liem in favor of Ward. When. When land has been</p> <p>purchased by guardian with minor’s funds, no lien exists in their favor, in the absence of resulting trust.*</p>

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

<p>1. Banking CORPORATIONS. Usurious interest. General ■laws applicable to, as individuals. When a charter is silent as to any violation of the limitation imposed upon the hank in lending money, the general laws against taking unlawful interest are applicable, and the hank in such case can only he treated as a natural person would he for a similar infraction of law; irs contracts are void only for the excess had above the legal interest and reasonable exchange.</p> <p>Cases cited: 4 S. & M., 75; 8 lb., 151; 40 Me., 109; 13 Conn., 249; Dillt). Ellicott (Taney Circuit Court Decisions); TJ. S. v. Owens, 2 Peters, 527; Bank of Chillicothe v. Swayne, 8 Ohio, 252; Pock River Bank v. Sherwood, 10 Wisconsin, 230; Creed v. The Commercial Bank of Cincinnati, 11 Ohio, 489; Spauld-ing v. The Bank of Muskingum, 12 Ohio, 544; Orr v. Lacey, 2 Doug., 230; Commercial Bank of Manchester v. Nolan et al., 7 How. Miss., 508; McLean, assignee, etc., of Manard, v. The Lafayette Bank et al., 3 McLean, 587; Wetmore v. Brien & Bradley, 3 Head, 723.</p> <p>Acts cited : 1741, ch. 11, clause 2d, 1838,1855, Constitution of 1834.</p> <p>2. Same. Same. Contracts. Prohibition implied and expressed. When contracts are prohibited by statute, the prohibition is sometimes expressed, and at others implied. Whenever the law imposes a penalty for making a contract it impliedly forbids the same, and when a contract is prohibited, either expressly or by implication, it is illegal and can not be enforced.</p> <p>Cases cited: Bensley v. Bignold, B. & A. L. D., 335; Poster v. Taylor, 5 B. & A. L. D., 887; Cope v. Rowlands, 2 M. & W., 149.</p> <p>3. Notes. Accommodation endorser. Liability of. Where a principal discounts a bill at a greater rate of discount than 6 per cent., this will not be such a fraud upon an accommodation endorser as to discharge him from all liability upon the bill.</p>

<p>FROM LINCOLN.</p> <p>Appeal from the Circuit Court. Yf. P. Hicker-son, Judge.</p>

<p>FROM MAURY.</p> <p>Appeal from the Chancery Court. Hillajry "Ward, Special Chancellor.</p>

<p>1. Duhess. What will constitute. The threat must he of such a character as to overcome the mind and will and destroy the free agency of a person of ordinary firmness.</p> <p>2.' Evidence. Deposition. Competency of. The deposition of a witness is admissible in evidence, though taken while the witness was incompetent, provided the witness be competent when his evidence is offered on the hearing of the cause.</p> <p>3. Trustee. Evidence of acceptance. Effect of non-acceptance on the legal title. The deed was acknowledged by the bargainor, and properly registered; this would not vest the legal title in the trustee without his acceptance, the delivery of a deed of assignment being essential. While the dissent of a trustee to accept the trust may re-vest the legal title in the grantor, yet the beneficiaries may have the trust executed for their benefit by a Court of Chancery.</p> <p>Cases cited: Watts v. Targe nt, 6Penn., 320; Brevard v. Neely, 2 Sneed, 164.</p> <p>4. Same. Levy on land held by trust deed. Where a valid trust deed exists, no title to property so held can be acquired under subsequent levy.</p> <p>Cases cited: Hannum v. Wallace, 4 Hum., 143.</p>

<p>1. Attachment. Ancillary. Affidavit. If the affidavit for an ancillary attachment fails to state the nature and character of the plaintiff’s demand, and fails to state in what Court the suit at law to which it is ancillary was commenced, and the recitals in the attachment writ are alike defective, an attachment issuing upon such affidavit is illegal and void.</p> <p>2. Plea in abatement of attachment. When defective. Defendant pleaded in abatement of attachment “that before the suit was instituted, he had made an assignment of his property for the benefit of his creditors; that the assignee had taken possession of the property, and that the deed of assignment had been registered.” On demurrer, held to be defective, in failing to make proferí of the deed of assignment, or in stating that the assignment was bona fide and not fraudulent.</p> <p>3. Pleading and practice. Person interested in subject matter not allowed to become party to siiit. When. A trustee in possession of goods, attached as the goods of his assignor, is not allowed to become a party defendant to the attachment, on showing himself interested in the subject matter of the suit, under § 2799 of the Code.</p>

<p>1. Feme Covert. Privy acknowledgment. Defective. Whan. Where the Cleric’s certificate fails to recite that the deed was signed by the married woman, “voluntarily and understanclingly,” it is defective for such failure; her title is unaffected thereby, such deed carrying with it no legal significance, and the same may be declared void at her instance.</p> <p>Cases cited: W. J. Anderson v. J. W. Beverly, MSS. at Knox.; Henderson v. Bice, 1 Cold., 223.</p> <p>2. Title Bond. Insufficient to pass the title of a married woman. When. A title bond, though duly executed and certified in every respect, is insufficient to pass the title of a married wo- ■ man in land. Her title can be divested only by the joint deed of herself and husband, executed in compliance with the forms prescribed by law. Mor can she be forced specifically to execute such agreement.</p> <p>Case cited: Bobert Mosely v. B. L. Porter, MSS.</p> <p>3. Same. Rescisión of sale. Purchase money restored. Lien on land. Persons under disability. Where a sale is rescinded the vendor will be compelled to restore the purchase money, and the amount paid will be held a lien upon the land, even against a lunatic or married woman; but these conditions will not be imposed if the purchaser was guilty of fraud or imposition in procuring the deed.</p> <p>Cases cited: Heis. Dig., 466; Pilcher v. Smith, 2 Head, 212; Hilton v. Duncan, 1 Cold., 313.</p> <p>4. Same. Same. Attorney’s lien. Though the lien for the purchase money on the corpus of the property is prior to the solicitor’s lien for fees, still the same does not extend to rents and profits accrued, and out of such the counsel’s fee will be allowed.</p>

<p>1. Pleading and Pjractice. Attachment. Affidavit defective. When. An affidavit for attachment is defective in- failing to state the nature of the debt claimed, whether by note, hill of exchange, account, or breach of contract.</p> <p>2. Same. Same. Supreme Court. Where the Circuit Judge refuses improperly to quash, upon defendant’s motion, process by which he is brought into Court, and requires the parties to plead, the Supreme Court will correct such error, if apparent upon the record, and render the' proper judgment, treating all subsequent proceedings as a nullity. STor is the filing of a plea in abatement such an appearance as will give the Court jurisdiction of the person, and correct the error.</p> <p>Cases cited: Sullivan v. Fugate, 1 Heis., 20; Berr v. Rahl, 1 Heis., 12.</p>

<p>1. PlbadiNG and PRAotice. Non est factum. Exchision of use of microscope by jury. Error. Evidence. Where iiarties consent, signatures not in the record may he submitted to the jury as genuine, for comparison with the signature in controversy, and to aid them in the determination of such a question, micro- • scopes may he used.</p> <p>2. Same. Same. Affidavit. An affidavit which states that affiant was ignorant of certain evidence until after verdict, but fails to show that he was unable to procure the testimony of other-experts, who would have proven the same fact, is insufficient.</p>

<p>EROM ERANKLIN.</p> <p>Appeal from the Circuit Court. ¥i. P. Hick-erson, Judge.</p>

<p>FROM SMITH.</p> <p>Appeal from tbe Chancery Court. William G, Crowley, Judge.</p>

<p>1. Demurrer in Chancery. Effect of overruling before the Oode. Before the adoption of the Code, after the overruling of a general demurrer to a hill in equity, the defendant might insist upon the same matters in his answer, there being no appeal from such a decree until the final hearing on the merits.</p> <p>Cases cited: Dormer v. Forteseue, 2 Atkins, 284; Avery v. Holland, 2 Tenn., 469; Kirkman & Ellis v. Snodgrass, 3 Head, 370.</p> <p>Code cited: § 4318-19, § 3157.</p> <p>2. Same. Since the Oode. Since the adoption of the Code, and the allowance of an appeal from the ruling of the Chancellor upon a demurrer, the decree of the Supreme Court upon such an appeal, overruling a demurrer and remanding the cause for plea or answer, is conclusive upon that Court, as well as upon the Court below, in the particular case, as to the matters adjudged by the decree.</p> <p>Cases cited: Jamison v. McCoy, 5 Heis., 108; Cooley’s Con. Dim., 47.</p> <p>3. Adjudications oe the Supreme Court. Binding force. This Court may make adjudications entirely overlooking statutes or decisions governing the case, and while the.decisions may not be good authority in another case, nevertheless for that case they are adjudications, and must have full effect as such.</p> <p>Cases cited: See, to the same effect, Supervisors v. Kehnicott, 94 U. S., 498, and cases there cited. But see, contra, in a suit at law, Bynum ¶. Apperson, 9 Heis., 633; and in a suit in equity, McDonald v. Perkins, December term, 1877, at Nashville.</p> <p>4. Case in judgment. A part of the Tenth Civil District of Davidson County having been added to the city of Nashville, under an Act of the Legislature requiring a preliminary vote of the people of the annexed territory, a bill was filed by about sixty of the citizens thus incorporated, attacking the validity of the proceedings, because of irregularities in the preliminary election ; a demurrer to this bill was sustained by the Chancellor, but, on appeal, overruled by the Supreme Court, and the cause remanded, with leave to the complainants to file an amended hill; the hill as amended was answered, proof taken, and, on the final hearing, the Chancellor, mero motu, dismissed the hill, because it showed on its face that the incorporation had been completed before the hill was filed, and because the Legislature had legislatively recognized the incorporation before the filing of the bill.</p> <p>Bold, that inasmuch as the amended bill only stated more fully the facts of the original bill without changing its substance, and as the former decree of the Supreme Court necessarily determined that there was equity on the face of the bill, the dismissal was erroneous, and this although the points on which the Chancellor based his decision were not brought to the attention of the Supreme Court on the first hearing.</p>

<p>1. Account. From another county. Set off to. Oath. Partnership. In a suit upon a sworn account from another county, not denied under oath, for freight and charges on goods shipped, a surviving partner may plead by way of set-off to such account a partial loss of the identical goods.</p> <p>Code, § 2918.</p>

<p>1. Wills. Construction of. An estate in remainder can not be charged. ' When. A party who holds a life estate can not charge the estate in remainder unless he he possessed of the absolute power of disposition.</p> <p>Cases cited: Smith v. Bell, M. & Y., 302; Pillow v. Bay and Wife, ,1 Swan, 1S5; Silvern Brown, 2 Swan, 116; Williams v. Johnson, 2 Swan, 624; Dean v. Myers, et al., 1 Cold., 228.</p> <p>2. Same. Same. Personal property. The interest of remainder-men in personal property, which is consumed by use, is limited to such as is left at the death of the tenant for life.</p> <p>Cases cited: Forsey v. Luton, 2 Head, 184; Yaneil v. Evans, 4 Cold., 340.</p> <p>3. Same. Same. Permanent improvements. Permanent improvements, such as necessary repairs, etc., will be charged to the tenant for life, when made during the life estate.</p>

<p>EROM LINCOLN.</p> <p>Appeal from tlie Chancery Court. John P. Steele, Chancellor.</p>

<p>1. New TRIAL. Affidavit. OounseVs miscalculation as to time and business. Where a party and his counsel miscalculate as to the condition of the docket of the Court, and are consequently not • present at the trial of the suit, a new trial will not he granted on affidavit of this fact.</p> <p>2. Same. Pleading and Practice. Informalities. Remedy. Parties will not he allowed, after verdict, to complain of informalities which might have been remedied, if objected to in due time, especially under the circumstances of this case.</p>

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

<p>FROM DAVIDSON.</p> <p>Appeal from .the Circuit Court. Eugene Carey, Judge.</p>

<p>PROM ROBERTSON.</p> <p>Appeal from the Circuit Court. JAMES E. Rice, Judge.</p>

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

<p>1. INSURANCE. Power to waive a forfeiture in life insurance policy. Expressly denied, to officers can not be exercised. A mere bookkeeper, who has no authority to receive an overdue premium on a forfeited policy, and who had never done so except under instructions from the secretary, can not bind the company by so doing.</p>

<p>FROM FRANKLIN.</p>

<p>PROM DAVIDSON.</p>

<p>1. CONTRACT EXECDTOBr. Failure to receive the property by vendee. Sight of vendor to re-sell or rescind. Where the time of delivery in the sale of cotton was not fixed. Held, if the owner gave the purchaser notice of his readiness to deliver the cotton, and he failed to receive it, after a reasonable time he may give notice and re-sell at the purchaser’s risk, or treat the contract as rescinded.</p> <p>2. Same. Se-sale without proper cause. Damages. If the sale he made under circumstances as will not authorize the owner to regard the contract as rescinded, and for a better" price, in an action for damages the purchaser will be entitled to the difference between the agreed price and that received, less the reasonable cost and expenses of the re-sale.</p> <p>3. Charge of Court. Error to re-call the jury and re-charge without their request or that of'counsel. It was error to recall the jury and repeat to it a portion of the charge, the jury not asking and the defendant objecting to it.</p> <p>Case cited: Swaggerty v. Catón, 1 Heis., 202.</p>

<p>1. Allegations in bill. Competent for complainant to show amount due him. When. Pleading. Practice. Where the allegations of a bill do not state the exact'amount of indebtedness, hutallnde to various sums which comiilainant may have to pay, and there is a prayer for general relief, then the complainant may show by proof what the sum due him is, nor is it material that no account was prayed for.</p> <p>2. Same. Pill of review. Supreme Court will not re-examine evidence tinder. When. The Supreme Court will not, under a bill of review, re-examine evidence to ascertain whether a decree is sustained by the proof or founded upon improper or insufficient evidence.</p> <p>Case cited: Eaton v. Dickinson, Adm’r, 3 Sneed, 397.</p> <p>3. Taking oe account. Notice. Want of. Not error to he corrected hy hill of review. When. While the want of notice of the taking of an account is matter of exception, it is not error of a character to be corrected by a bill of review.</p> <p>4. Same. Demurrer may he filed. When. Pleading. A defendant may file his demurrer, eve.n though a motion to dismiss, containing the same objections as embraced in the demurrer has been disallowed.</p> <p>Code cited: § 3157.</p>

<p>1. Abministeation. Puhlie sale by, of personal property. Can not be avoided. When. Where an administrator, by authority of the sole distributee, in whom the legal title exists, Sells personal property at public sale, no one can be heard to complain except a creditor or an administrator, de bonis non, seeking the property as assets to pay debts, especially when the purchaser has held the property long enough to perfect his title under the Statute, and has not the power to return the same.</p> <p>Case cited: McLean v. Houston, 2 Heis., 38.</p> <p>2. Same. Confederate money. Abatement of same. When. Where notes are given with the understanding that Confederate money will be received in payment of the same, the debtor will be entitled to abate the amount of the sum to be paid, to the value of Confederate money as compared with United States currency at the time the notes fell due.</p> <p>Case cited: Thornington v. Smith.</p>

<p>Forcible entry and detainer. Writ of possession. Practice. An appeal from an interlocutory order of the Circuit Court granting a writ of possession in a case of forcible entry and detainer before final judgment, is premature and will he dismissed.</p> <p>Statute cited: Act of 1869-70, ch. 64, § 1.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal from the Circuit Court. ¥m. P. MaetiN, Judge.</p>

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

<p>1. Raileoad. Contributory negligence. Damages. In a suit for damages against a railroad company for loss of life occasioned hy one of its trains, the condition and conduct, the carelessness, recklessness, and the imprudence of the deceased may he considered hy the jury in assessing direct pecuniary damages resulting to the party from the injury.</p> <p>Cases cited and qualified: L. & N. R. R. Co. v. Rohinson, 9 Heis., 276; L. & N. R. R. Co. v. Burke, 6 Cold., 51; Smith v. N. & C. R. R. Co., 6 Cold., 592; Prince v. 1ST. & C. R. R. Co., 2 Heis., 587; ÍT. & C. R. R. Co. v. Carrol, 6 Heis., 317; Code, § 1166, Sub. Sec. 5.</p> <p>2. Case overruled. So much of the case of the L. & N. R. R. Co. u. Burke is overruled as applies to the right of an administrator of a person instantly killed, to sue for the use of the wife and children of the deceased, hut the overruling is expressly confined to that single point.</p>

<p>Sale oe land. Redemption. Debtor. Purchaser. Rents. Where laud has heen sold, subject to redemption, and the debtor allowed by the purchaser to remain in possession under an agreement to pay rents, the same may be recovered if the debtor fails to redeem.</p> <p>Cases cited and discussed : Hannon v. Pillow, 7 Hum., 281, 293; O’Donnell v. McMurdie, 6 Hum., 131.</p> <p>Code cited: § 2135.</p> <p>Statute cited: Act of 1849-50, ch. 121</p>

<p>EEOM PUTNAM.</p> <p>Appeal from tbe Chancery Court. B. M. Tillman, Chancellor.</p>

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

<p>Bills and notes. Lost note. Affidavit imist be made. When. Where suit is brought upon a lost note the affidavit must be made in the Court in which 'the suit is instituted, under Section 3901 of the Code.</p> <p>Code cited: § 3901.</p> <p>Statute cited: Act of 1819.</p>

<p>FROM CANNON.</p> <p>Appeal from the Circuit Court. ¥m. H. Wil-liamsom, Judge.</p>

<p>PROM ROBERTSON.</p> <p>Appeal- from the Chancery Court. Charles G. Smith, Chancellor.</p>

<p>1. Feaud. Evidence of. Contemporaneous transactions. In questions of fraud evidenee is admissible of other contemporaneous transactions of a similar fraudulent nature, for the purpose of showing interest, and especially is this the case where all-the transactions are connected and apparently in concert.</p> <p>2. Same. Same. The fact that one conveyance made at the same time as others to different parties is shown to he fraudulent, will not be conclusive as to others, but this fact, together with other circumstances, may furnish the ground for weighty inference tending in the same direction, and should be looked to in arriving at a conclusion in such a case.</p> <p>Case cited: Abbott’s Dig., Yol. 2, p. 767, § 2098-9, 2100.</p>

<p>1. Tax sale. Requisites of deed. It is essential to the validity of a deed from a revenue collector that it should show affirmatively, not only that a sale of the land was in fact made, hut that it was at the time and at the place required by the Statute. And where the recitals of the deed show that the sale was had on the day required by law, this will constitute only prima facie evidence of the fact.</p> <p>Cases cited: Henderson v. Starritt, 4 Sneed, 472; Conrad i>. Dar-den, 4 Ter., 308.</p> <p>Code cited: §§ 620, 612.</p> <p>Statutes cited : 1S44, oh. 92, § 1; 1835, ch. 15, §§ 8, 4.</p> <p>2. Same. Same. If land be reported for condemnation to the Circuit Court of the same year for which the taxes are due, under these circumstances the Court will have no jurisdiction to render judgment in such case under the Act of 1835, § 4 and 8; Code, § 612, et seq.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court. B. M. Till-MAN, Chancellor.</p>

<p>1. Mortgage. Of orop. Merely an executory agreepient. When. A writing, supposed to he a mortgage, was executed to secure the payment of money loaned, to he applied in raising a cotton crop, the mortgagor hinds himself “ to deliver at maturity pf the crop so much of the same as will,he necessary for the payment of the sum specified in the writing to the mortgagee; conceding that a valid mortgage of a growing crop may he made, the Court held this writing to he merely an executory agreement to deliver cotton enough to pay the debt, hut no particular cotton, and remedy upon this instrument would he damages for the mortgagor’s failure to deliver the same.</p> <p>Case cited: Sugg v. Tillman, 2 Swan, 208.</p> <p>2. Same. Same. Though it he so expressed upon the face of a written instrument, it is not a mortgage where it conveys, no specific property, and the mortgagee under such circumstances has no right, either legal or equitable, to the property described, such as may he enforced against an attaching creditor.</p> <p>8. Same. Same. Fraudulent conveyance. Where the morgagee procures the writing to he done, he is chargeable with knowledge of its contents, and if it recites a false consideration, it is evidence of fraud, and the deed will not stand as security for the real debt.</p> <p>Cases cited: Peacock v. Tompkins, Meig’s Rep’ts, 317; Hendricks v. Pardue, 3 Sneed, 191; Thompson v. Walker, Nashville, 1873.</p> <p>4. Same.- Same. Same. Where future advances are to he secured, this should appear upon the face of the deed or mortgage.</p> <p>Case cited: McGavock v. Gordon, 1 Cold., 265.</p> <p>5. Pbactice in Supreme Court, demanding cause. On failure to make proper party, the Supreme Court will in proper cases in aid of substantial right, remand to the Chancery Court to make proper parties.</p> <p>Case cited: Saylors v. Saylors, 3 Heis., 533. '</p>

<p>BANKRUPTCY. Bankrupt can not recover property. When. A bankrupt can not, after he has been adjudged such, prosecute a suit to recover property which should have gone to his assignee, when his right to recover is predicated upon a title in existence before the adjudication in bankruptcy, although the property sought to be recovered had been omitted from his schedule and was not embraced in the assignment, and this without regard to whether the defendant had any valid claim to the property or not.</p>

<p>Í. UNREGISTERED TITLE BOND IS NO OBSTACLE TO A SALE OE LAND BY executor against vendor. A bond for title given upon the sale of land does not pass the legal title to the vendee, and, if unregistered, imposes no impediment to the rights of a judgment creditor of the vendor.</p> <p>2. Sureties to a judgment. The sureties against whom, and the principal, a hank has recovered judgment, may, by agreement with the bank, deposit their note with the bank’s attorney, bid off the land at the sale made under execution issued on the judgment, and then have the note discounted to settle their bid.</p>

<p>FROM DEKALB.</p> <p>Appeal from tbe Chancery Court. B. M. TiLLMAN, Chancellor.</p>

<p>Pleading and practice; Plea in abatement for misnomer. A plea in abatement to a misnomer in the original writ, after correction of the name by leave of the Court and filing of plea in bar by defendant, will not be allowed.</p> <p>Cases cited: Heis. Dig., 6-7.</p>

<p>FROM CANNON.</p> <p>Appeal from tbe Chancery Court. , B. M. Tillman, Chancellor.</p>

<p>EROM CANNON.</p> <p>Appeal from the Chancery Court. B. M. Till-Man, Chancellor.</p>

<p>1. Bills and notes. Mortgage. Foreclosure of. The execution of a note and mortgage furnishes prima facie evidenec as to the true amount of-indebtedness, and a settlement of accounts between the parties is matter in avoidance which must be sustained by proof enough to require an account to be taken to overcome such evidence.</p> <p>2. Same. Same Equity of redemption. Where the equity of redemption is not waived in the mortgage, it' is error to decree the sale of such land, free from the equity of redemption, without giving a credit of six months, upon application of the mortgagee.</p> <p>3. Same. Same. Beeeiver. Bents. Where the maker of a mortgage, by its express stipulations, is allowed to retain possession of the property, until a foreclosure of the same, he is entitled to the rents, and it is error for the Court to appoint a receiver in such case as the consideration for a continuance.</p> <p>Code cited: Section 2124, Sub-Secs. 3 and 2.</p>

<p>1. Trespass. Exemplary damages. Evidence. Practice. In an action of damages for a trespass the defendant pleaded not guilty, on which there was issue, and justification under legal process. The plea of justification was properly demurred to,</p> <p>2. Same. Same. Same. The defendant was allowed to prove his good will toward the plaintiff.</p> <p>Held, such testimony is admissible in mitigation only of damages.</p>

<p>PROM CANNON.</p> <p>Appeal from the Circuit Court: W. H. Williamson, Judge.</p>

<p>FROM OVERTON.</p> <p>Appeal from tbe Circuit Court. S. M. Eite, Judge.</p>

<p>Attachment against non-Besident. Judgment by default may be set aside. When. It is not the action of the Court, hut that of the party complaining, which is limited to twelve months. The party having done all required of him, the delays or continuances, or incompetency of Courts, or their failure to meet, cannot divest him of the right invested by his application.</p> <p>Code cited: Section 3529. Declaration of Bights, Article I, Section 17.</p>

<p>■ EROM RTJTHEREORD.</p> <p>Appeal from tbe Circuit Court. W. H. William-SON, Judge.</p>

<p>FROM OVERTON.</p> <p>Appeal from tbe Circuit Court.. W. W. Good-pasture, Judge.</p>

<p>Teustee. Mights of beneficiaries to recoser money paid by the trustee through mistake. Fraud. Where a trustee wrongfully, or by mistake, pays mouey to a third persoB, supposiBg he was relieving the trust property from au incumbrance, he will not thereby he relieved from responsibility in the matter of his trust to the beneficiaries under the deed, and whatever the trustee’s rights may be, the beneficiaries, in the absence of fraud, are entitled to no relief against the-party wrongfully receiving the money.</p>

<p>1. Pbincipad and Agent. Instructions. Must obey. When. Where cotton has been shipped to a factor, and a bill drawn against the same, with instructions to sell before or at maturity of the bill, the factor must obey the instructions of his principal, and on failure to do so will be held liable for any loss accruing'thereby.</p>

<p>1. Sale of Land by Chancery Court. Party procuring sale cannot be relieved of his purchase. When. A party who has procured a sale of land by a Chancery Court, and been allowed to purchase under said sale, cannot come into the same Court by bill and ask to be relieved of his purchase on the ground of errors in the proceedings, if those errors are denied by answer, without showing that they exist.</p> <p>2. Same. Presumptions of law. A party asking the fecision of such a sale must prove the errors complained of, as the presumption of law is in favor of the validity of such a sale.</p> <p>Cases cited: Boyer v. Porter, 1 Tenn., 258; Mullens v. Aikens, 2 Heisk., 542.</p> <p>3. Same. Judgment by motion on sale notes. Parties to the original proceeding. No revivor necessary. Whan. Where the Clerk of the Chancery Court takes judgment by motion on sale notes for land sold under decrees of the Court, such judgment is only an incidental proceeding, and the failure to revive the suit against the representatives of persons who were parties to the original bill will not affect the validity of such a proceeding.</p>

<p>EEOM RUTHERFORD.</p> <p>Appeal from tbe Chancery Court. A. S. Marks, Chancellor.</p>

<p>Stayor. Release of. Extension of time. The acceptance by a judgment creditor of the benefits of a deed of trust made by the judgment debtor, does not release the stayor upon the judgment, though the time given the trustee to wind up the trust extends beyond the stay.</p> <p>Cases cited: Am. Lead. Cases, 5 Ed., p. 444. United States v. Hodge, 6 How,, 79; Lea v. Dozier, 10 Hum., 451. '</p> <p>Assignment oe Judgment.' Stayor must pay full amovmt. Though the judgment creditor assign his judgment at a large discount, yet the stayor must pay the assignee the full amount. Not in conflict with Petty v. Hannum, 2 Hum., 102.</p> <p>Exceptions to Answer. Olerlc and Master to act upon. Exceptions to an answer must first be brought before the Clerk and Master for his action, then by appeal to the Chancellor.</p> <p>Code, Section 4402, et seq., Ch. Bules 1, Section 5.</p> <p>Injunction Bond. Securities. Sale. Where 'the injunction, in part, is to enjoin the sale of a lot levied upon by execution,'the securities upon the bond, though liable for the entire debt enjoined, are entitled to have a decree for a sale of the lot first, and to be made responsible for the balance only.</p>