Volume 62 — Tennessee Reports

<p>FROM OVERTON.</p> <p>Appeal from the Chancery Court. L. C. Houk, Judge, presiding, by interchange.</p>

<p>FROM OVERTON.</p> <p>Appeal from the Chancery Court. A. J. Marchbanks, presiding, by interchange.</p>

<p>FROM PUTNAM.</p> <p>Appeal from the Chancery Court. B. M. Tillman, Chancellor.</p>

<p>Pleading. Evidence. Profert in declaration. Burden of Proof. Where a declaration upon a note makes profert of the same, a plea of nil debit makes a direct and general issue as to any indebtedness at all on the note, and it devolves upon the plaintiff to produce evidence of debt.</p> <p>Cases cited: 2 Green., 2281a; Steph. Plead, 162; Car. L. S., §212.</p>

<p>Chancery. Pleading and Practice. Bill cannot be dismissed. When. Where a complainant or the Clerk and Master have failed to issue alias process against defendants who have never been served for several terms, this is not sufficient grounds for a dismissal of the bill by the defendants, on motion. The rule as to a discontinuance for this cause belongs peculiarly to a Court of law.</p> <p>Code cited: §§4386 and 4389-90.</p>

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

<p>1. Deeds. Wills. What will not set aside. A father, after disposing of much of his estate by will, deeded certain property to his son’s wife for life, with remainder to her children. A bill being filed by dissatisfied heirs, an agreement by all concerned was entered upon the minutes of the Court, to be its decree, annulling the will and deed of the testator, and making an equal division among the representatives, but settling the son’s share upon his wife and children. The children not being parties to the bill, and the wife having entered into the agreement without privy examination, it is void, and leaves the wife and children vested with the property under the deed.</p> <p>2. Same. Same. Evidence. The deed and will being properly executed, it was error to reject them as evidence in an attachment suit by the creditors of the son seeking to set up an interest in him under the agreement subject to their claim, insisting that the settlement upon his wile and children was fraudulent, after the property descended to him, by annulling the deed of his father to his wife and children.</p>

<p>1. Pleading and Practice. Scire facias necessary to revive judgment. When. Where a Justice’s judgment had lain for more than twenty years without the issuance of executions, it was just to the defendant to revive such judgments by set. fa. before the issuance of execution upon the same.</p> <p>Case cited: Gregory v. Chadwell, 3 Cold., 392.</p> <p>Code cited: §§2987 and 2776.</p> <p>2. Same. Same. Same. Interest. In such case the judgments ought to have been revived, and executions ordered to issue thereon for the amounts thereof, with interest from the date of their rendition, and not with interest on the amounts of the judgments rendered by the Justice of the Peace.</p>

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

<p>Pleading and Practice. Petition. Must not be dismissed. When. Where a party has been proceeded against as a non-resident, hut in fact is not, and a decree is had against him, his petition, stating that he had no knowledge of the pendency of the suit, and praying for a supersedeas, and leave to make his defence, must not he taken from the files because it is not accompanied with an answer. It was not necessary that his answer should he filed until it was determined by the Court that he was entitled, upon the facts stated in the petition, to make defence by answer. A reasonable time should have been given to file an answer.</p>

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

<p>1. Evidence. Handwriting. Comparison. Writings not in the came. Other writings, than the instrument sued on, cannot he introduced in evidence for the purpose of comparing the handwriting by the jury or by the witnesses.</p> <p>Oases cited: Clark v. Rhodes, 2 Heisk., 206, and authorities there cited in foot note. „</p> <p>2. Arguendo. Same. Where the wriling is illegible. Where the writing upon which the suit is brought is illegible, the Court say: “As the original is illegible, we could not undertake to construe the paper, although it may be that the words omitted are not very material. It is very manifest, however, that to understand the meaning of the paper, the attending circumstances must be considered, and the subsequent conduct of the parties may also tend to show its true meaning, as they understood it.”</p> <p>3. Same. Admissions. The declarations of a person, who has parted with . his interest in the subject matter of litigation, are not admissible to disparage the rights of a party previously acquired in good faith.</p> <p>Case cited: Carnahan v. Wood, 2 Swan, 500.</p>

<p>1. Principal and Agent. Sights and duties of factors. Where the consignment is made generally, without any specific orders as to the time or mode of sale, and the factor makes advances, or incurs liabilities, on the footing of such consignment, then the legal presumption is, that the factor is intended to be clothed with the ordinary rights of factors to sell, in the exercise of a sound discretion, at such time and in such mode as the usages of trade and his general duty require, and to re-imburse himself for his advances and liabilities out of the proceeds of sale, and the consignor has no right, by any subsequent orders given after advances have been made, or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the reimbursement of such advances or liabilities, though the consignor has not refused to pay or secure the advances made by the consignee.</p> <p>Case cited: Brown & Co. v. McGraw, 14 Pet., 607-8.</p> <p>2. Chabge ob Court. Exceptions to. Must he taken. When. Where the charge of the Court is not as full as desired, the parties are bound to ask for such additional matter as is desired, otherwise no reversal can be had upon this ground. The Court say: “ We must see error in what was charged, something calculated to mislead the jury, before we can reverse.”</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. W. F. Cooper, Chancellor.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. W. F. Cooper, Chancellor.</p>

<p>Pleading and Practice. Chancery sale. Opening the biddings. A Chancery sale is a mere offer to purchase, and not complete as a sale until confirmed by the Court, and a mere advance bid, if large enough in amount, is sufficient to open the biddings. It is not important that the party making the advanced bid is not a party to the cause.</p> <p>Cases cited: Wm. L'. Click v. Caroline Burris, et als., 6 Heisk., 539; John Parsons, v. G. B. -, decided at the April Term, 1873, at J ackson.</p>

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

<p>FROM WILSON.</p> <p>Appeal from the Chancery Court. John P. Steele, Chancellor.</p>

<p>FROM PUTNAM.</p> <p>Appeal from the Circuit Court. S. M. Fite, Judge.</p>

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

<p>FROM CHEATHAM.</p> <p>Appeal from the Circuit Court. James E. Rice, Judge.</p>

<p>Guardian Bond. Sureties. The sureties on a regular guardian bond, given before the Code went into effect, are not liable for money paid the guardian arising from a subsequent sale of land. For this a special bond should have been given. Nor is a surety upon the bond liable for money paid the guardian on account of a ward who, at the time of payment, was of age.</p>

<p>FROM WILSON.</p> <p>Appeal from the Circuit Court. John W. Phillips, Judge.</p>

<p>1. Usuby. Mecovei-y of. Judgment on note does not preclude. When. Where a note of $360 ivas renewed annually for several years, the debtor paying $60 each' time, without diminishing the size of the note, to be applied to the interest, a judgment upon the note, under such circumstances, will not preclude an action for the recovery of the usury thus paid.</p> <p>2. Same. Same. Mes judicata. Arguendo. If the adjudication of the sum due on the note, on which judgment was had, was necessarily an adjudication of the question of usury, then the question as to the usury previously paid cannot be raised. It is res judicata, whether the defence of usury is actually made or not.</p> <p>Cases cited: Bartholomew n. Gaw, 9 Paige, 166; Boyers v. Boddie, 3 Hum., 666.</p>

<p>Damages. Trespass. Judgment and partial satisfaction against one of seseral defendants. A plaintiff may have separate actions against several joint trespassers, but can have only one satisfaction; however, if he elects to issue execution against one of the trespassers, and collects only a part of his judgment, he is not bound by his election in such case, hut still has a right of action, for so much of the damages sustained as are unsatisfied, against .another one of the joint trespassers.</p> <p>Cases cited: Knott r. Cunningham, 2 Sneed, 210; Sedg. Meas. Damages, 681; Her. Estop., 99.</p>

<p>1. CORPORATION. Organization of. The Court of Chancery has no power to organize a corporation for any purpose not authorized hy general law.</p> <p>2. Appeal does not lie from Refusal to Incorporate. An appeal cannot be taken from the refusal to organize a corporation.</p> <p>Cases cited: State v. Armstrong, 3 Sneed, 634; Mayor and Aldermen of Morristown v. Shelton, 1 Head, 24: C. W. Hall, et ais., v. Mabry, at Knoxville, 1872.</p> <p>Code cited: §1507i.</p> <p>Acts cited:-Act of 1870-1, §8; 1849, ch. 17.</p> <p>Constitution: Article XI, §8.</p> <p>See Cooper’s Chancery Reports, Yol. 1, p. 95.</p>

<p>FROM LINCOLN.</p> <p>Appeal from the Chancery Court. W. P. Hickerson, Judge, presiding, by interchange.</p>

<p>1. Wills. Holographic. Signed by one Witness. Evidence. Where a testatrix writes and signs a paper, and procures one witness, intending to procure another, and thereby to complete the execution of the paper as a witnessed will, until such a second witness is procured, it is incomplete as a written will. But if she writes and signs the paper and procures one witness, intending to procure no other witness, but to deposit it among her valuable papers as her will, then thefactthat there was one witness to it, will raise no presumption that it is an incomplete or unfinished will, the circumstance may be weighed' by the jury in determining, whether the paper was signed animo testandi, but it cannot operate as a matter of law, to add strength to the presumption that it is her will.</p> <p>Cases cited: Crutcher v. Crutcher, 11 Hum*, 335 ; 2 Head., 308.</p> <p>Code cited: §2163.</p> <p>2. Same. Same. Same. The jury must look to the proof, not only to determine whether the defendant has rehutted plaintiff’s proof as to the requirements of the Statute upon holographic wills, hut' also, as to whether the testatrix wrote the paper with a testamentary intent, and deposited it with her valuable papers, and kept it preserved as her will.</p> <p>Case cited: Hooper v. McQuary, MSS.</p>

<p>1. Principal AND Surety. Stayor. Execution. The Property of the Principal must first be Exhausted. It is the duty of an officer to first exhaust the property, both real and personal of the principal, before proceeding fo sell that of the surety or stayor.</p> <p>Code cited: 23028-6-30-31.</p> <p>Act cited: Act of 1843, Ch. 32. Nich. Sup., p. 278.</p> <p>2. Same. The Statute not Directory. When. The Act requiring the officer to exhaust the property of the principal first before seizing the property of the surety, is not merely directory, but mandatory when the surety insists upon his right of protection under its provisions.</p> <p>Cases cited and reviewed: Atkinson v. Rhea, 7 Hum., 59; Cheatham v. Brien, 3 Head., 553; Dice v. Penn, et al., 2 Swan, 564; Cooly Con. Lim., p. 77.</p> <p>3. Same. Same. Practice. Certiorari. The remedy by certiorari is appropriate to quash a levy on property wrongfully made by an officer.</p> <p>Cases cited; Jones v. Williams, 2 Swan, 105; Beeler v. Hall, 11 Hum., 446.</p>

<p>Principal and Surety. Property of Principal must be exhausted first. Statute Directory. The Act of the Assembly that requires the Sheriff to exhaust the property of the principal in the execution before the property of the surety shall be taken, is only directory to the officer. If he disregards this direction, and thereby the surety is injured, the officer is liable in damages to the party aggrieved, but the execution and sale of the property of the surety will be good and valid, notwithstanding the principal has property that might have been seized.</p> <p>Oases cited : Atkinson v. Rhea, 7 Hum.,- 59: Beeler v. Hall, 11 Hum., 446; Cheatham v. Brien, 3 Head, 553.</p> <p>Code cited: §3028 to §3031.</p> <p>Act cited: Act of 1843, Ch. 32, §1 and 2.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court. John P. Steele, Chancellor.</p>

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

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

<p>FROM BEDFORD.</p> <p>Appeal from the Chancery Court. John W. Phillips, Chancellor, by interchange.</p>

<p>FROM MAURY.</p> <p>Appeal from the Chancery Court. J. C. Walker, Chancellor.</p>

<p>Sheriff. Constable. Inability of when deputized by Sheriff to execute process. Where a Sheriff is not acquainted with the fact that a party has been qualified as constable, and deputizes such person to levy an execution, the Sheriff and his sureties are liable for the non-return of the same, unless the plaintiff claiming judgment against the constable and 7m sureties can show that the default took place as constable, and not as deputy Sheriff.</p>

<p>FROM PUTNAM.</p> <p>Appeal from the Chancery Court. W. W. Goodpasture, Chancellor.</p>

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

<p>1. Bills and Notes. When due: Month. In the case of bills of exchange, promissory notes, and other commercial contracts, a month is always a calendar month. A note payable six months after the 30th of May is due just six calendar months and three days thereafter, the days of grace being included, bringing it to maturity, consequently, on the 3d of December succeeding. Until that day the endorsers of such paper . have not broken their contract by non-payment.</p> <p>Cases cited: Edward’s Bills, 513; Story on Prom. Notes, §213a; Story on Bills, 330.</p> <p>2. Same. Same. Demand and Notice. The demand must be made on the third day of grace, on the second if the third be a holiday.</p> <p>Cases cited: 2 Kent, 102-3; 11 Wheat., 431; Story'on Notes, §217, 231; 12 Wheat., 213.</p> <p>3. PLEADING and PRACTICE. Affidavit for new trial. The defendant, a bankrupt, who, by a misunderstanding as to the time his ease would be called, failed to appear when it was reached, and after the verdict presented an affidavit, stating that the cause was reached several days before he expected it would be, and showing, further, that he had been actually discharged, and that the certificate thereof was in the hands of one of his attorneys, then absent, from whom he was expecting its transportation by mail that day. Upon this affidavit he asked a new trial;which the Court refused. The Court say: “If the defendant had presented these facts upon his application for a continuance, it would have been the duty of the Court to have stayed the proceedings so as to have given him an opportunity to produce the proof of his discharge, and we do not think he has been guilty of such laches as to have forfeited this right, under the peculiar circumstances surrounding him.</p> <p>Cases cited: 14 Stat. at Large, 526-7, §21; Bump on Bank., 157-8, 438; Edward Waterson, et al, v. Henry Waterson, 1 Head, 1.</p>

<p>1. Practice. Arbitration. Submission does not operate a discontinuance. When. If parties submit a cause, pending in Court,- to the decision of arbitrators, providing that the award shall be the judgment of the Court, this will preserve the jurisdiction of the Court, and prevent a discontinuance, even though the submission was not made under a rule of the Court.</p> <p>Cases cited: Crockett v. Beaty, 7 Hum., 66; Saffle, Adm’r, v. Cox, et al., 9 Hum., 142; Rogers’ Heirs v. Hall, 6 Hum., 26.</p> <p>2. Receiver. Sailroad. Power to lease. A receiver of a railroad, under an appointment of the Governor, has no power to lease the road so as to vest the lessees with an interest in the road and its franchises, which could not be divested by a subsequent Act of the Legislature.</p>

<p>Estoppel. Admissions by bill followed by a decree.- The admission contained in a .bill for the confirmation of a division of property, that a note, given for the difference in the value of the shares, was paid, and a recital in the final decree of the fact of such payment, upon which recital, among other things, the Court based its decree confirming the division, are conclusive of the payment as .against the complainant, and a holder of the note to whom he had traded it after the filing of' the bill, and after the maturity of the note, and by delivery without endorsement.</p> <p>Case cited: Hamilton Zimmerman, 5 Sneed, 47.</p>

<p>1. Evidence. Sheriff’s Deed. Recitals in. What necessary. A sheriff may recite in his deed that “notice was given as required by law,” though he be a successor to the officer who made the sale, if the fact that notice was given appears in his predecessor’s return.</p> <p>2. Evidence. Summary Proceedings. Judgment by motion. Omissions may be supplied. How. When a motion is not an original or independent proceeding, but one'to effectuate a decree in a cause still pending; in such case where the entire record is before the Court, as part of the case, it may be looked to in supplying immaterial irregularities or omissions, which appear on the face of the judgment.</p> <p>Case cited: Rucker v. Moore, 1 Heisk, 726.</p> <p>3. Evidence. Deraigning title. May look to Records of Court. When. Where a plaintiff in an action of ejectment, in deraigning his title fails to produce the executions under which’ the land was sold, when he became purchaser, he may rely on the dockets of the Court in which the necessary facts appeal-, if the execution be lost. This is next best evidence.</p> <p>4. Evidence. Presumption of grant. What will constitute. A mere written agreement between parties for a division of land containing -the boundaries, etq., but not purporting to vest a fee simple title, will be sufficient to warrant the presumption of a grant with proof of twenty years adverse possession, though no title wouldbe perfected under such paper by seven years adverse possession.</p>

<p>FROM WHITE.</p> <p>Appeal from the Chancery Court. W. W. Goodpasture, Chancellor.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Circuit Court. J. W. Phillips, Judge.</p>

<p>Execution. Properly levied upon, hut not taken into possession by the officer Liability of when it perishes. Sheriff. Where a Sheriff or his deputy levies an 'attachment.upon a horse, but fails to take possession, and leaves it in charge of á person, -with the understanding that he will call soon and take a delivery bond, the officer will not be liable in damages for the sudden death of the horse, not caused by ill treatment.</p>

<p>FROM JACKSON</p> <p>Appeal from the Circuit Court. Samuel M. Fite, Judge.</p>

<p>1. Practice. Supersedeas. Motion to discharge. Not allowed. When. A motion to discharge a supersedeas suspending an interlocutory decree for the appointment of a Receiver, to take possession of and rent out the land, will not be granted if the proper parlies in interest are not properly before the Court, and if the proof of such party has not been taken, and the cause not ready for hearing.</p> <p>' 2. Samis. Where the contract is as to the title of the land, the complainant being in possession until the right is determined upon the hearing, she cannot be disturbed in the possession.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Circuit Court. J. W. Phillips, Judge.</p>

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

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

<p>FROM FENTRESS.</p> <p>Appeal from the Circuit Court. H. C. Hamsted, Judge.</p>

<p>FROM WILSON.</p> <p>Appeal from the Chancery Court. Jno. P. Steele, Chancellor.</p>

<p>1. Case stated. The administrator and heirs of Compton recover a decree against Gibson, rescinding a sale of land from the latter to Compton, in his life-time, and to refund the purchase money which had been paid to Gibson. Pending the litigation, Gibson paid to Compton, administrator, $600, to be applied to the payment of the decree, if it should go against him. After the decree, Gibson filed a bill against Compton’s heirs and his administrator, and the sureties on his bond, to have the decree credited with the $600. The Chancellor decreed that the sureties of the administrator pay to the heirs of Compton the money paid to the administrator by Gibson. Held, to be erroneous.</p> <p>2. Sureties op Administrator. By whom and Tim reached. The decree against the sureties of the administrator, at the instance of Gibson, alone, when no such relief was prayed for by the heirs and distribu-tees of Compton, was erroneous.</p> <p>3. Appear. What it brings wp. The appeal of the sureties being from an independent liability fixed on them by the decree, clearly separable from the other branches of the case, and the question not necessarily involved in the proper settlement of the other question of the credit sought by Gibson, the appeal of the sureties only brings up the correctness of the decree against them.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Circuit Court. A. L. Marks, Judge by interchange.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court. John P. Steele, Chancellor.</p>

<p>Joint Owners op Personae Property. Their rights, and liabilities as each other. Defendant, a Sheriff, levied an attachment upon a half-interest in a threshing machine, owned jointly hy plaintiff, and the defendant in the attachment. He left the machine in plaintiff’s custody, having no order for the sale of the interest levied on. The machine was afterwards injured, without defendant’s knowledge or consent. Held, defendant was not responsible to plaintiff.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Circuit Court. Wm. H. Williamson, Judge.</p>

<p>FROM PIKE.</p> <p>Appeal from the Circuit Court. F. M. Smith, Special Judge.</p>

<p>1. Buis and Notes. Principal and Surety. Mamed Woman. Though a note given by a wife to a husband is of itself void, yet if the husband endorse it over, it is valid as between him and subsequent endorsers and endorsees.</p> <p>2. Same. Same. The question of the liability of sureties after an extension of time, and the addition of new security, discussed.</p>

<p>FROM DEKALB.</p> <p>Appeal from the Circuit Court. S. M. Fite, Judge.</p>

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

<p>FROM CANNON.</p> <p>Appeal from the Chancery Court. S. M. Fite, presiding, by interchange.</p>

<p>FROM SMITH.</p> <p>Appeal from the Chancery Court. H. C. Smith, Chancellor.</p>

<p>1. Contested Election. County Court, power of, to revene am, election as to live removal of a county seat. Certiorari and supersedeas. The powers granted the Quarterly County Court hy the Act of 1873, ch. 103, §7, to count and declare the result of the votes cast in any county for the removal of its county seat, are not judicial, and the Legislature did not intend to authorize a review of the proceedings of said Court hy writs of certiorari and supersedeas to the Circuit Court.</p> <p>Cases cited: Duggan v. McKinney, 7 Yer., 21; Durham v. The United States, 4 Hay., Cooper’s Ed., 54, 69; Dodd v. Weaver, 2 Sneed, 670; Wilson v. Lowe, 7 Cold., 153; United States v. Ferreira, 13 Howard, 40; County Court of Obion v. Marr, 8 Hum., 634; Covey v. The Justices of Campbell County, 1> Sneed, 513; Wade v. Murry. 2 Sneed, 50. Code cited: §§3123 — 6.</p> <p>Statutes cited: Act of 1873, eh. 103; Act of 1852, ch. 32, 54; Act of 1844, ch. 99.</p> <p>2. Same. Same. Power of the County Court to hear testimony. Evidence. Under the Act of 1873, the County Court has no power to receive parol proof to reject certain votes, and purge the polls.</p> <p>3. “ Concúrsenos.” Construction of. The word concurrence, §6 of ch. 103, of the Act of 1873, is construed to mean an active, affirmative act on the part of the voter.</p> <p>4. Ustconstitutionaiity. Of Act of 1873. §6 of Ch. 103, of the Act of 1873, is unconstitutional and void, yet the remainder of the Act is unaffected thereby.</p> <p>Authority cited: Cooley on Con. Lim., 3d Ed., 177-8.</p>

<p>1. Deeds. Undue influence. Wliat will constitute. Where a woman, possesses the influence of a mistress over an old and afflicted man, rapidly approaching his grave, who is urged by his family to return homo, but under her influence refuses to do so, and when greatly prostrated, makes a deed, conveying a large part of his property to her, the Court says: “ We think, in such cases, there does arise a strong presumption that the deed was obtained by an undue influence and power the woman had obtained over him,” and for the reason set the’deed aside.</p> <p>Cases cited: Dean and Wife v. Negley, Sup. Court of Penn. Law Keg. for 1862.</p> <p>2. Same. Same. Evidence. Upon the question of undue influence the Court says: We are inclined to hold, that the same amount of proof of actual fraudulent practices ought not to be required in a case of this character.</p> <p>S. Same. Same. Illegal and immoral consideration. A deed conveying property in consideration of past cohabitation will not be set aside where the conveyee is in possession under the same.</p> <p>Cases cited: Johnson v. Cooper and Crosswhite, 2 Yerg., 523; Bucher v. Wynne, 2 Head, 617; Story E<p Jur. §§296-9; Chitty on Con., 660.</p>

<p>FROM WILSON.</p> <p>Appeal from the Chancery Court. Jno. P. Steele, Chancellor.</p>

<p>Award. Binding only on parties. Arbitrators have no authority to go- in their inquiries beyond the powers delegated by the terms of the submission.</p>

<p>Poweb. of AmitntsteatoR to Comeromise Doubtful Ceaims. Where an administrator was satisfied it was prudent in him to make a compromise, pending a suit, as he had no means of the estate to carry on an expensive suit, and he believed there was real doubt as to his ability to make the party liable:</p> <p>Held, That he has a right to compromise such a case, and in that way promote the interest of his estate.</p>

<p>Gtjardiakt. Right to reimbursement. While a guardian has no power to break in on the corpus of his ward’s fund, yet, when called on to account in a Court of Chancery, he will be allowed such necessary and proper expenditures as the Court would have ordered, if applied to in the first instance. The principle of the rule will equally apply where a party comes and asks an approval and confirmation of his acts.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. E. H. East, Chancellor.</p>

<p>Attachments. Levy of. Priority of. Fraction of time. When several attachments are levied upon the same property by the same officer on the same day, but at different hours of the day, the attachment first levied, being regular in other respects, is best in right, and creates a lien which will not be divested nor lessened by a subsequent levy of a different attachment. The rule is different where the levies are made at the same time, or the writs are in the hands of the officer for that purpose.</p>

<p>1. Murder in the Fiest Degree. Section 5257 of the Code cannot be held to sub-divide murder in the first degree into two separate grades of crime, that is, murder in the first degree with and without mitigating circumstance, so that the finding of mitigating circumstances by one jury would be an acquittal of the” higher grade and a bar to another trial. Said section only gives the jury the right to express the opinion in their verdict that there are mitigating circumstances, which but amounts to a recommendation to mercy, that the Court may or may not regard. It would be error for the Judge to attempt to tell the jury what would be mitigating circumstances, as, in this matter, the jury are left entirely to their own discretion.</p> <p>2. Case in Judgment. Where, on the first trial, there was a verdict of guilty of murder in the first degree, with mitigating circumstances, and judgment of the Court thereon, and this verdict and judgment were set aside on appeal, and a new trial had;</p> <p>Held, That such verdict and judgment were not conclusive upon the Court in rendering judgment upon the last verdict. The Court must pronounce its judgment upon the last verdict alone.</p> <p>Cases cited: Lewis v. The State, 3 Head, 127; Eason v. The State, MSS., Jackson, 1873; Beátty v. The State.</p> <p>Code cited: §5257.</p> <p>Statute cited: Act of 1829-39.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Chancery Court.</p> <p>Record cannot be found.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. W. F. Cooper, Chancellor.</p>

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

<p>1. Dower nsr Trust Estate. Superior to the rights of the beneficiaries. When. McDonald, who made a trust deed in 1865, died in 1872, before there was any decree for a sale of the lands under the trust deed. Upon his death, therefore, the widow’s right of dower immediately attached under §2399 of the Code, this provision of the law constitutes a part of the contract between McDonald, his trustee, and his creditors, secured by the deed of trust, whereby they agreed to accept the benefits of the conveyance encumbered with the contingent right of dower in his wife. This contingent right was subject to be defeated by a sale under the trust deed before the death of McDonald. No such sale having been made, the widow’s right became absolute upon the death of her husband.</p> <p>2. Bankruptcy. Assignment in, of trust estate. Widow’s dower and rights cf beneficiaries under the trust deed. Mow effected. The beneficiaries in a trust deed having agreed, under §2399, of the Code, to hold the title in subordination to the widow’s rights to dower in the event of her husband’s death before a sale of the land under the trust deed, they are consequently estopped from disputing her superior title. Whether the legal operation of the bankrupt proceeding was to vest all of the husband’s interest in his assignee or not, is a question which none but the assignee can'raise. The bankrupt proceedings heretofore, had no effect upon the rights of the beneficiaries under the trust deed.</p> <p>3. Practice. Proceedings in County Court to have dower allotted in trust estate. Trustee not bound by decree, if not made party to suit. The widow applied to the County Court to have dower allotted in lands conveyed under a deed of trust, but the trustee in whom was vested the legal title to the lands, was not made a party, though he filed his petition to be allowed to become a defendant to the proceedings. Meld, he was a proper party, and not being allowed to defend, was not bound by the decree.</p> <p>The rulings in the first two head-notes of this case were reversed in the same case, when it came up again at December Term, 1877. — Reporter.</p>

<p>Criminal Law. Pleading and practice. Certainty of averment in an indictment. The defendant is charged with having “ knowingly and wilfully resisted one S. C. Dodson, Deputy Sheriff, in serving or attempting to serve a legal process, to-wit., a civil warrant -on said K. Maynard,” held, the averment is reasonably certain.</p> <p>Case cited: Cantrel v. The People, 8 Ill, 350.</p>

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

<p>SuaETYSHtp. The general rule that a contract void as to the principal, is void also as to the surety, does not apply where a person, mi juris, guarantees the obligation of, or becomes surety for, a married woman, minor or other person incapable of contracting.</p> <p>Cases cited: Moggs v. Ames, 4 Bing., 473; Keentel v. Newel, 7 Hill, 118; 17 Iowa, 534; Allen v. Berryhill, 27 Iowa, 531; 1 Am. R. 309; 2 Rich., 590; 1 Par. Notes and Bills, 244; Chitty on Con., 449.</p>

<p>1. Writ of Error and Supersedeas. Pauper’s oath. Writ of error maybe allowed upon the pauper’s oath, but no supersedeas is allowed to issue upon application informa pauperis, without the express authority of the Judge, on notice to the adverse party to the application. Two defendants having adverse intez-est are not advez-se parties.</p> <p>2. Same. Oath hefm-e Deputy Cleric. Under the law authorizing the Clerks of the several Courts in this State to administer oaths and take affidavits, whatever oath the Clerk may administer, his deputy may in like . manner administer-.</p> <p>3. Same. Where taken. No Statute confines or restricts the taking of the pauper oath, on the filing of a record in the Supreme Court, befoi-e the Clerk of that Court.</p> <p>Case cited: Davis v. Dye, 5 Sneed, 679.</p> <p>Code cited : 223133, 4050.</p> <p>Statutes cited: Act of 1821.</p>

<p>1. Ceimiítai. Law. . Indictment entitled by mistake of the vn-ong term. The statement of the wrong Term of the Court at the head of an indictment, is no part of, and will not vitiate it, the record showing when it was found.</p> <p>2; Same. Plea of Insanity. When. And heno it must be made. Evidence. Under a general plea of not guilty, evidence cannot he introduced tending to show that the prisoner was insane at the time of the killing with a view under the Act of 1871, Ch. 138, §7, to his confinement in the Asylum for the Insane, until his recovery, for trial, but to entitle him to the benefits of this Statute, the question of his sanity should be first tried and determined, and confined to his mental condition at the time of the trial, and not to the time of the homicide.</p> <p>Cases cited: Mitchel v. The State, 8 Yerg., 527-8; McBean v. State, 3 Heisk., 20; Dove v. The State, 3 Ileislc., 370; Crenshaw v. The State; Martin & Yerger, 123.</p> <p>Code cited: §1554r-7.</p> <p>Statute cited: Act of 1871, Ch. 138, §7.</p> <p>3. Same. The Supreme Court toill not reverse. When. The Court say, with the two verdicts against the prisoner, and their approval by the presiding Judge, we must see that they have come to an erroneous conclusion upon the facts before ive can reverse.</p> <p>Cases cited: ITill v. The State, 3 Heist., 320; Jones v. The State, 3 Heist., 451.</p>

<p>Bailkoad. Turnpike. Lespective Liability of. In crossing each other. Where a Bailroad and Turnpike Company have their routes located hy the requirements of their charters over and across the same ground, but the railroad’s right accrues first by priority of its charter, though both are constructed at the same time, the Turnpike Company is responsible for injuries sustained by its travelers occasioned by the want of bannisters and other safeguards at the crossing of the railroad, as in such ease it is the duty of the Turnpike and not the railroad to provide the same.</p>

<p>FROM WARREN.</p> <p>Appeal from the Circuit Court. Thos. N. Frazier, Judge, by interchange with Judge Hickerson.</p>

<p>1. Special Juries. Selection and constitution of. The law, in its provision for a special jury, contemplates the selection of men with reference to their superior competency and fitness to try and determine the particular issues involved in the case, and not with reference to their relation to the parties, as being or not being of their race or color.</p> <p>2. Same. Same. It was, therefore, erroneous for the Circuit Court to select one-half of a jury, upon a party’s application, solely because they were colored men.</p> <p>Cases cited: 2 Tidd’s Practice, 788; Black. Comm., Book 3, 357,</p> <p>Code cited: §§3981, el seq., 4029, 3993-7.</p>

<p>Landlord and Tenant. Trespass. Bights of lessee. Where there was an avowed trespasser upon the lessee’s right oí possession, who pretended no. claim to or interest in the property, and who so notified the lessee, and the latter never objected to paying rent on account of such trespasser’s occupancy of the premises until more than a year from the beginning of the lease;</p> <p>Held, That it was the right and duty of the lessee, who was in contemplation of law in possession from the moment of the delivery of the lease, to eject the trespasser, and not the duty of the lessor, unless he holds under some claim of right. And there must be something which in law amounts to an eviction or expulsion of the tenant to work a suspension of the rent.</p> <p>Authorities cited: Taylor on Landlord and Tenant, 215-19; 1 Washb. R. P., 461.</p>

<p>1. Contract. Sale of land. Consideration Confederate money. A contract for the sale of land was not rendered illegal and void by the simple fact that the consideration was Confederate Treasury notes, the contract having been freely and fairly made, and the consideration having been voluntarily received.</p> <p>Code cited: §§2030, 2073.</p> <p>2. Same. Title bond. Registration of Its effect. After the execution and registration of a title-bond, the vendor has no such interest in the lands as can be levied on and sold, where it defeats the interest already acquired by the vendee. A purchasing creditor of the vendor, at Sheriff’s sale under such levy, will hold only the naked legal title as trustee for the vendee.</p> <p>3. Same. Tender of compromise. The purchaser at Sheriff’s sale, rejecting a tender of compromise, and electing to risk his title to the land upon the result of litigation with the original vendee, thereby precluded himself from any claim to the money tendered, and forfeits all right to fall back upon an election which only depended upon his giving up the litigation, unless the vendee fails to insist upon his superior title, and merely seeks to redeem the land; in such case he would be estopped from claiming the land without paying the redemption money.</p>

<p>.Yendob’s Lien. Mente not to be applied to the satisfaction of. Meceker. "Where a complainant seeks to enforce his vendor’s lien, a .Receiver will not he appointed. It is no part of the contract of sale, either express .or implied, that the vendor shall appropriate anything hut the land itself hy sale, for satisfaction of his purchase-money.</p>

<p>FROM VAN BUREN.</p> <p>Appeal from the Circuit Court. P. C. Isbell, Judge.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. McHenry, Special Chancellor.</p>

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

<p>Costs. Of special jury. How taxed. The Court construes §4029, of the Code, to mean that the entire cost of a special jury shall be taxed to the losing party, though the regular panel be in attendance and on pay.</p> <p>Code cited: §4029.</p>

<p>Municipal Cobpobation. Not punishable for not putting up sign-hoards. When. Municipal corporations are not punishable for failure to put up sign-boards at railroad crossings, as the Statute relates only to over- . seers of common road.</p> <p>Cases cited: Louisville and Nashville Turnpike Company», the State, 3 Iieisk, 129; which overrules the State v. Mayor and Aldermen of Loudon, 3 Head, 264.</p> <p>Code cited: 221223, 1198.</p>

<p>GraKESTAi. Law. Pleading and practice. Sight to severamce. The Act of 1873, is imperative, and gives the right to severance without condition or limitation, prescribing that prisoners jointly indicted, shall stand for trial in the order in which their names appear in the indictment.</p> <p>Case cited: Coldwell v. The State. Post.</p> <p>Statute cited: Act of 1873.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Chancery Court. John P. Steele, Chancellor.</p>

<p>Descent and Distribution. The half brothers and sisters of a decedent will inherit his property to the exclusion of his uncles and aunts on his mother’s side, though the land descended to him from her.</p> <p>Case cited: ÍTesbit v. Bryan, 1 Swan, 468.</p> <p>Code cited : §2420, sub-Sec. 2 and 3.</p> <p>Statutes cited: Act of 1874.</p>

<p>FROM LINCOLN.</p> <p>Appeal from the Circuit Court. A. S. Marks, Judge, by interchange with Judge Hickerson.</p>

<p>FROM GILES.</p> <p>Appeal from the Criminal Court.</p>

<p>1. Trust Assignment. Attachment. Priority of creditors. Under the attachment over the beneficiaries. Where an assignment in trust of a chose in action was made for the benefit of a creditor, who does not appear to have accepted the trust, or even knew of its acceptance until two years after the chose in action had been attached by other creditors, it was held, that the right of the attaching creditors was superior; the Court expressly confining its opinion to this precise state of facts.</p> <p>Cases cited: Mill v. Haines, 3 Head, 335; Green v. Demoss,, 10 Hum, 371Furman v. Fisher, 4 Cold., 626; Breedlove v. Stump, 3 Yerg.. 257; Fields u. Arrowsmith, 3 Hum., 442; Sanders v. Harris, 1 Head, 185; Furgusonu. McDonald, 2 Heisk., 404; Swann d. Jarking, 7 Heisk., 612; Burrell on Assignments, 330.</p> <p>2. Same. Notice. Registration. The deed operating merely as an equitable assignment of a chose in action, which was not perfected by the delivery of any negotiable or assignable paper to the trustees, in order to perfect the right as against other creditors, notice of the assignment must be given to the debtor. Choses in action of this character are not within the registration laws, so as to make the registration notice.</p> <p>Cases cited: Clodfelter a. Cox, 1 Sneed, 330; Allen v. Bain, 2 Head, 108; Kelly v. Thompson. 1 Heisk., 278.</p> <p>3. Chancery Court. Clerk and Master. Fund in Court. Where a bill seeks to attach a fund already in the hands of the Clerk and Master, the allegations of the bill, stating the facts, placed the fund under the control of the Court, so that it could not be paid out without an order, in this case. It is unnecessary for the Clerk and Master to issue process, and have it served upon himself.</p>

<p>PniNCIPAl, AND Agent. Act of agent binding on principal, though in excess of his limited powers. Insurance. Where the local agent of a Life Insurance Company received pari of an annual premium due on apolicyj receipting for so much, and giving time on the balance. It follows, that, although he was acting in excess of his limited powers, and in violation of his special instructions, yet, as he was then acting within the apparent scope of his employment as agent of the Company, his action amounted to a waiver of the condition of prepayment of the premium, and is binding on the Company. Character and extent of powers of “local agents” inquired into at length.</p> <p>Case cited: Bouton v. The American Mutual Life Insurance Company, 25 Conn., 342; Murphy v. Mutual Benefit Life Insurance Company, 103 Mass., 78; Baptist Church v. Brooklyn Lire Insurance Company, 19 New York, 305; Goitr. National Protection Insurance Company, 25 Barb., 180; Bliss on Life Insurance, §277. p. 539-465; Flanders on Fire Insurance, 104; Story on Agency, §58.</p>

<p>License to keep Billiakd Tables. Voluntanj Payment. Bight to reemier bach. Notice. Where a party applying for license, said to the officer that he was charging too much, but entered no protest, gave no notice of any purpose to sue for the money hack, and did not seriously contest the right to receive it, but paid it; Held, that his was a voluntary and not a compulsory payment, and the licensee 'cannot recover back the money. The payment must have been made on compulsion to prevent the immediate seizure of his goods, or arrest of person, and not voluntary.</p> <p>Cases cited: Hubbard v. Martin, 8 Yerg.,499 ; Dickens v. Jones,6 Yerg., 484; Morgan v. Palmer, 2 Barn. & Cres., 319; Elliott v. Swartwout, 10 Pet., 47, (Cur. Ed.)</p>

<p>FROM DICKSON.</p> <p>Appeal from the Circuit Court.</p>

<p>1. Attachment. Plea in abatement. Verification of. The settled rule 'is, that the affidavit verifying a plea in abatement must he positive as to the truth of the facts contained in the plea, and should leave nothing to he collected by inference or intendment. A verification of such plea upon the “ knowledge, information and belief ” of the affiant is insufficient.</p> <p>Cases cited: Bank of Tennessee v. Jones, 1 Swan, 392; Trabue v. Higden, 4 Cold., 624; Friedlander v. Pollock, 5 Cold., 495.</p> <p>2. Same. Amendment of affidavit. An amendment of a defective affidavit, offered to be made after the proof was taken, but before the hearing, should have been allowed by the Court below, especially as it is apparent that the affidavit was merely formal, and could have worked neither injury nor delay. But this is not an error which affects the merits of this case.</p> <p>3. Same. Grounds far attachment. The defendant had been a regular furniture merchant for a number of years; his stock of furniture bn hand was worth three or four thousand dollars; he was indebted something over four thousand dollars, and he owned real estate in the place of his residence, unincumbered, worth $10,000. The complainants failed to sustain their allegation of defendant ’ being about fraudulently to remove his stock of furniture to Georgia.</p> <p>Held, That even if he had been about to remove, etc., leaving ten thousand dollars worth of real estate, the above facts being proven, it could not have authorized a resort to an attachment. The property to be left would have been ample to meet his liabilities.</p> <p>Cases cited: Jackson v. Burke, 4 Iieisk., 612; McHaney v. Cauthorn, 4 Heisk., 509.</p> <p>Code cited: §3455.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. Jno. P. Steele, Chancellor.</p>