Volume 63 — Tennessee Reports

<p>PROM DAVIDSON.</p> <p>Appeal from tlie Chancery Court. E. H. East, Chancellor.</p>

<p>FROM PUTNAM.</p> <p>Appeal from tlie Circuit Court.- Samuel M. Eite, Judge.</p>

<p>.1. Pbactioe. Magistrates. Judgment. Revival of. Affidavit. Where tlie record of a judgment by a deceased Magistrate in his life-time ivas destroyed, and supplied by affidavit, it is not necessary to the efficacy of its revival upon the docket of another Magistrate, and subsequent proceedings thereon, that it should affirmatively appear that such Magistrate ivas the successor of the deceased Magistrate, as required by ?3070 of the Code, and the presumption, in the absence of proof to the contrary, is that such was the fact, and that the proceedings in the case were regular.</p> <p>2. Same. Same. Appeal. Judgment vacated by. Reinstated. When. Where an appeal from a Justice was dismissed by the Circuit Court, with costs against the appellant, and the records show that the Justice’s judgment was not in fact, or intended to be affected, such action reinstates the judgment vacated by the appeal, and may be proceeded on as effectually as if a procedendo had been awarded.</p> <p>Code cited: ¡$4138, 3145.</p>

<p>EROM GILES.</p> <p>Appeal from tlie Criminal Court. W. S. McLemoee Judge.</p>

<p>PROM GILES.</p> <p>Appeal from the Criminal Court. "W. S. McLemore, Judge.</p>

<p>Bills axd Notes. Principal and Surety. Chancery Practice. Bills quia timet. The Chancery Court cannot perpetually enjoin a judgment against the surety upon a note upon hill filed by the principal, against whom no judgment is had, on the ground that the surety is about to become good for his debts, which will entitle him to a judgment against the principal, should the debt be collected from the surety. This is too remote and improbable to justify the action of the Court, there being no complaint by the surety of the judgment against him.</p> <p>Authority cited: 1 Story’s Eq. Jur., §327.</p>

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

<p>Baxkeoptcy. Pending of bankrupt proceedings. Effect of. A. made a fraudulent desposition of liis property to his children; B., his creditor, filed his bill attacking the same for fraud, and had an attachment issued, but before it was levied upon the land, A. filed his petition in bankruptcy. After this the complainants, as creditors of said Bragg, appeared in the Federal District Court, and resisted the granting of a discharge in bankruptcy to said Bragg, on the ground of his having made this fraudulent and collusive disposition of his estate to his children.</p> <p>Held, Where a party seeks precisely the same relief against the property, -which he claimed to enforce against it by virtue of his lien obtained in the State Courts, and after full investigation on its merits, and the same is decided against him, it must be held an adjudication of the question by a Court having competent jurisdiction of the question, and conclusive of the rights of the parties, when interposed to defeat the enforcement of the lien, or the rights of the parties in a proceeding in a State Court, whether begun before or dfter the commencement of the bankrupt proceeding.</p> <p>Cases cited: Alsabrooks v. Charles Cates, et ais., 5 Iíeisk., 271.</p> <p>Code cited: §3507</p> <p>Authority cited: Bump on Bank., 7th Ed., 452.</p>

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

<p>FROM DAVIDSON.</p> <p>Appeal from the Circuit Court. Andrew McLain, Judge.</p>

<p>Attachment, ancillary. Wiiai is a sufficient affidavit for same. An affidavit which states the. fact of the pendency of the suit, what Court it is in, its character, the amount of damages, and that the affiant is justly entitled to recover the same, and then goes on to state the causes for an attachment as required by the Statute, is sufficient.</p>

<p>Cjriminai Law. Evidence. Difference between competency of rdtness and materiality of testimony. A reversal may be had where a competent witness has been rejected, though the materiality of his testimony does not appear in the bill of exceptions.</p> <p>Oases cited: Ezell v. The Justices of Giles County, 3Head, 583; Hol-mark v. Molin, 5 Cold., 482; Moffita. The State, 2 Ilum., 99 ; Workman v. The State, 4 Sneed, 425.</p>

<p>1. Principal and Surety. Stayor. What mil release. A stayor will not be released upon the ground “ that it is a contract or agreement for delay, without his consent.” Where such agreement is after judgment, and only a voluntary promise, not founded upon any consideration, and not binding upon the creditor.</p> <p>Case cited: Peay v. Poston, 10 Yerg., Ill; Bryant v. Rudisell, 4 Ileisk., 656; Leading Cases in Eq., 559.</p> <p>2. Same. Same. The stayor will be released, when, by the active interference of the creditor, the burden of the debt has been shifted from the property of the principal, after a specific lien is fixed upon it, so as to throw it upon the surety.</p> <p>Cases cited: Johnson & Taylor v. Ivey, 4 Cold., 608; Finley v. King, 1 Head, 123 ; Lindsey v. Thompson, 1 Baxter, 463.</p>

<p>Insolvent estate. Statute of limitations. The administrator of F. IC. Zolicoffer filed Ms insolvent bill in February, 1865, to settle the estate in the Chancery Court of Davidson County. The usual injunction was granted against all parlies bringing suits, and notice to all creditors to come in and file their claims, as required by law. In 1868, an amended bill was filed in the Chancery Court, at Murfrees-boro, making the administrator party defendant, claiming that Gen. Zolicoffer had purchased certain slaves at a Chancery sale, and was liable for their value, and praying for judgment against the administrator for the amount due. The administrator answered and defended by stating that he had suggested the insolvency of the estate, etc., but the decree was rendered against the administrator.</p> <p>Held, the decree in the Chancery Court at Murfreesboro can give the party obtaining it no possible advantage. It was obtained in violation of law, and the injunction forbidding- such suit to be brought. The case must stand, so far as the heirs of Zolicoffer and creditors are concerned, as if no decree had been had, and the petition for its allowance in this case having been filed February 15, 1871, more than the period necessary to create the bar of the Statute, which commenced to run the 1st of January, 1867, the exception of the creditors should have been allowed, and the petition dismissed.</p> <p>Cases cited: Martin, administrator, v. Blakemore, administrator, 5 Heisk. 56; Rogers, adm’r, v. E. Rogers, same Term.</p>

<p>1. Biles and Rotes. Estoppel. A promissory note, the consideration of which was the loan to the maker of certain State notes, which circulated as money at the date of the loan, and which were valuable as money, cannot be avoided upon the ground that they were unlawfully issued by the State, the maker having used them as money, and derived benefit from them, cannot be heard to rely on such a defense.</p> <p>Oases cited: Crockett ti. Alexander, 6 Heisk., 107; Orchard v. Hughes, . 1 Wall., 74.</p> <p>2. Bile oe Cbedit. Constitutional law. A bill of credit, such as a State is inhibited from issuing, is a bill drawn by the State, and resting merely on its credit for payment; and a note or bill drawn by the State, the payment of which is to he made out of a fund pledged for that purpose, is not such a bill of credit.</p> <p>Authorities cited: Briscoe v. Bank of Kentucky, 11 Peters,314; Barring-ton v. State of Alabama, 13 IIow., 16; Craig v. State of Missouri, 4 Peters, 431.</p>

<p>FROM TROUSDALE.</p> <p>Appeal from the Circuit Court. W. II. Williamson, Judge.</p>

<p>Statute op Limitations. Admissions sufficient to remove the bar of the Statute. "Where the testator, at and before the time of the preparation of his will, made repeated admissions of the justice and validity of the petitioner’s debt, and, at the time of the execution of his will, prepared a schedule of his indebtedness to petitioner, and acknowledged that he owed, and was willing to pay it,</p> <p>Held, That these facts were sufficient to remove the bar of the Statute of Limitations of six years, which was pleaded by the executor.</p>

<p>1. Tbtjst Estate. Trustee fails to give bond and tales oath. Effect of. Where a trustee fails to give bond and take the oath, under $1974 of the Code, and makes a sale of the trust property-by the advice of one of the beneficiaries, and is joined in the deed by the grantor, the sale will be valid so far as the creditor of such beneficiary is concerned, who seeks to recover his debtor’s interest in the trust estate.</p> <p>2. Same. Same. Arguendo. The creditor of such beneficiary might have relief against the trustee to the extent of the indebtedness still due the beneficiary and unpaid.</p> <p>3. Same. Same. Purchaser. Haw affected. A purchaser of prox^erty sold under such circumstances, upon the ground that the sale is void, will not be liable, where he has reconveyed the same to a third party, and had no interest at the filing of the bill, the remedy being against the property in the hands of the present owner or claimant.</p> <p>Code cited: $1974.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from the Chancery Court. Chancellor.</p> <p>No record to be found.</p>

<p>1. Costeacts, eoe Seevtces. Weekly payments. How construed. A contract containing the following agreement “ to pay a watchmaker $25 per week from the date of his commencement in our employ until the expiration of the year 1870, meaning, of course, only to pay him for the time he serves us,” is held to be an entire contract to work for the balance of the year, the reservation of weekly wages being only a mode of payment.</p> <p>Authority cited: Adison on Contracts, page 431.</p> <p>2. Same. Same. JRes adjudicata. Injunction. Ghancery jurisdiction. And where the employee, under such a contract, no longer remaining in his service, sues his employer for one week’s wages before a Magistrate, and recovers, and threatens to sue each week as his wages shall fall due, the Court say: “ There was but one breach, and the recovery in the first suit before the Magistrate was an adjudication and recovery for such breach, and concluded the employee from another recovery for the same cause of action. The Court of Chancery clearly had jurisdiction of the case, in order to prevent harrassing and vexatious, as well as continued and repeated, threatened litigation by injunction.</p> <p>Authority cited: Bispham’s Pr. of Eq., 415.</p>

<p>Pjgbsoss under Disability. Lunatic. County Court. Jurisdiction of Notice. Where proceedings are commenced in the County Court to have a person declared a lunatic, and a guardian appointed, personal notice and service of a copy of the petition upon such party.is required. The Court say: “ It was never intended by the Legislature that so important a proceeding as that of declaring a party a lunatic, • and taking charge of his person and his estate, should be consummated without personal notice.</p>

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

<p>Bills as» Noras. Usury. What mil not constitute. The following note is held not to be usurious: “ One day after date I promise to pay to Pat Garrity $20 for forty bushels of corn, at fifty cents per bushel, bearing interest at ten and a half per cent. If this note is not paid by the 8th day of July, the note is to be paid at sixty cents per bushel, or $24, bearing interest at ten and a half per cent. This 22d day of May, 1873.”</p>

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

<p>I Lies fob Lawyers’ Fees. Railroad, Receiver, State. Ohancei'y practice. Statement of the case: The State oí Tennessee issued its bonds for the purpose oí building railroads, the companies were to pay the interest on and the principal of said bonds, and upon failure, a certain road was put in the hands of a Receiver. One Receiver claiming authority under the State, employed counsel to oust the lessees of another Reciver of possession, in which suit they were successful; but it was finally appealed to the Supreme Court, and by the proceedings in that case all its property was sold. The attorneys claim that the litigation was for the benefit of the State, and that they are entitled to a lien upon the fund arising from such sale, or that they have a right to be made defendants, as creditors under a bill filed in the case, praying that all creditors of said road be made defendants.</p> <p>The Court say: “ While, in the causes in which petitioners rendered the services, the Court would, perhaps, have had the power to enforce the lien of petitioners upon any fund coming under the control of the Court in that account; yet, if the attorneys seek to follow the fund or property elsewhere, it must be done by an original suit, which cannot be prosecuted against the State.</p> <p>2. The Court say: We think it clear that the petitioners are not the creditors of said Railroad Company. The Company, in its corporate capacity, did not retain them, so far 'as they allege; nor did said Company have any direct interest in the litigation for which these fees are charged.</p> <p>.'5. The Court say: Upon the facts stated, the petitioners must first look to Marbury, etc., who employed them, and he would, no doubt, have the right to pay his counsel fees out of any funds that might come to his hands as Receiver, and would, we have no doubt, be entitled to a credit for the same upon settling his accounts as Receiver, and the Court in the cause in which petitioners wore engaged would have the power to determine their right to a lien upon any fund that might arise in that case.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from • the Chancery Oourt. E. H. East Chancellor.</p>

<p>1. Public Pbintisg. Act of 1873. On March 21, 1873, an Act was passed by the Legislature repealing these provisions of the Code which created the office of Public Printer, and providing for his election, but with a proviso that “ this Act shall in no way affect the rights and duties of the present Public Printers.” Afterwards, an Act, taking immediate effect, was passed, authorizing the Secretary of State, etc., to award the public printing to the lowest bidder, etc. On March 25, 1873, an Act was passed requiring the assessor to furnish tax lists to certain persons, and making it the duty of the Comptroller to furnish the Clerks of the County Courts the printed forms for listing, to be distributed by the Clerks to the assessors, etc.</p> <p>Held, It is obvious that the Legislature intended to require the Comptroller to have blank forms printed for distribution by the County Court Clerks to the assessors, who were then to furnish them to the tax payers. The blank forms ordered, to be printed by §31 of the Act-of 1873, ch. 118, fall within the meaning of the term “ public printing,” as used in the Statutes. Whatever printing is done by order of the Legislature, or in pursuance of a law, for the State, is public printing, whether it be printing the journals and acts of the Legislature, or legal opinions, or whether it be in the shape of job work. The printing of the blank forms under §31 of the Act of 1873, ch. 118, was public printing, in the shape of job work, for the reason that it was to be done for the public, in pursuance'of law.</p> <p>2. The Public Peintee is a public oeeicbb, etc. Contracts, impairing of. Constitution. The Public Printer is an officer of the State, but since the contracts designed to be protected by §10 of the first Article of the Constitution are contracts by which perfect rights, certain, definite, fixed, private rights of property are vested, it follows that Jones, Purvis & Co. held the office of Public Printers as a public trust, subject to the power of the Legislature to discontinue it at any time, or to be resigned at their pleasure at any time by them, and not as a contract protected from impairment under the Constitution of the United States. Prom the date of the repealing Act they ceased to be officers of the State, and could claim no rights accruing after the date of the repealing Act. The repeal, however, could not affect any rights which had vested before their office was abolished. These would be protected by the Constitution of the United States, and these are the only rights intended to be protected by the proviso to the second section of the repealing Act.</p> <p>Case cited: 2 Sneed, 369.</p> <p>Authorities cited: Burrell’s Law Dictionary, 257; 20 J. R., 493; 2 Blackstone, 36; 5 N. Y., 285; 26 Ark., 139; 10 How., 416; Cooley’s Const. Lim., 276.</p>

<p>1. Chancery Practice. Vendor’s lien. Does not pass to assignee of notes. When. A vendor of real estate, who has conveyed by deed, and taken notes for part payment for the purchase money, and afterwards assigns the same for value tó a third party, cannot, by uniting as complainant with such assignee in a bill in equity, and therein acknowledge his liability upon his assignment, with a view of reviving his vendor’s lien in favor of his assignee for the unpaid purchase money, the Court saying: “The liability upon the endorsement should be judicially ascertained before the filing of. the bill by the vendor to enforce the lien. It was not intended by the opinion to authorize the institution of a suit by parties who at that time had not the right to the relief they sought.</p> <p>Case cited and criticised: Green v. Demoss, 10 Hum., 371.</p> <p>2. Equity op Redemption. Land was sold in February, 1861, upon a judgment of condemnation of the Circuit Court of November Term, 1860, and purchased by Massey on February 4, 1861, he and Holland having purchased it of Dotson, the judgment debtor, and taken a deed for it after the judgment, but before the sale. Before the time • of redemption expired, England, the judgment creditor, redeemed of Massey, and credited his judgment in full. Sometime after the expiration of the time of redemption, Holland purchased of England, and took his order to the Sheriff for title, who made a deed to Holland, and Holland afterwards conveyed to Adams. It is insisted now, that as Massey and Holland were purchasers jointly from Dotson, that Holland redeemed from England for the joint benefit of himself and Massey, and could, by his deed, only convey his own undivided half of the land to Adams, leaving one half interest in himself as trustee for Massey.</p> <p>Held, As the so-called redemption had not been made within two years after the sale, there is no ground for such a claim under the conveyance of Dotson.</p> <p>5. Sale op Land. Deficiency of quantity. No objection for deficiency in quantity can be had where the land is not sold by the acre, the boundaries being shown the defendant, and estimated to contain — “ acres more or less.”</p>

<p>Equity ou Redemption. Where lands were sold for partition, and judgments were taken on the purchase notes after they fell due, and a resale for cash was ordered to pay an uncollected balance on said notes, and title was vested in the last purchasers;</p> <p>Held, That the right of redemption did not exist in the first purchaser after the re-sale. A re-sale in such case is not for this purpose a new proceeding, to which the Statutes of redemption apply.</p> <p>Gase cited: Beason v. Porterfield, 3 Head., 363.</p>

<p>1. Chancery Court. Set-off. A Court of Equity will grant relief under a bill filed to obtain the benefit of a set-off, which was purchased by a defendant in a suit at law after suit brought, when it appears that the plaintiff at law is insolvent.</p> <p>2. Estoppel. Admissions which have been acted on by others, are conclusive against the party making' them, in all cases between him and the person whose conduct he has influenced, whether they were made by express language to the person himself, or implied, from the open and general conduct of the party. Thus, where A, the true owner of a promissory note, has clothed another with the legal title thereto, giving to him the indieia of ownership, permitting him to bring suit in his own name, for its collection, thereby inducing the party liable to pay such note, to purchase an equitable set-off against the supposed owner; A, the real owner', will be estopped to assert his ownership to the extent of the amount paid for the set-off by the party liable.</p> <p>Cases cited: Brazleton v. Brooks, 2 Head, 194; Meriwether v. Larmon, et als., 3 Sneed, 452; Scott, Baker & Co. v. B. C. Bandy, .2 Head, 197 ; Smith v. Boss and Beeler, 3 Hum., 220.</p> <p>Authorities cited: Bice v. Bunce, 8 Am. B., 130 ; Hefner v. Yandolate, 11 Am. B., 42; Hill v. Yant, Abbott’s H. Y. Digest, §§91, 145.</p>

<p>1. Statement. P. L. Nichol, on April 2, 1870, for love and affection, conveyed the real estate in litigation to his wife, Sue M. Nichol, upon the following trusts and conditions, to-wit: “ for her sole and separate use during the joint lives of the said Sue M. and myself; hut if I survive her (the said Sue M.) then the property herein conveyed and given, to he vested in me, the survivor, my heirs and assigns forever. In case of my death before said Sue M., then, and in that event, to her, the said Sue M., for life, with remainder to the children born of the marriage of said Sue M. and myself, or the representatives of such of our children as may he dead, and such interest as my daughters may receive and take under this trust, is given and conveyed to them, to their sole and separate use, free from the debts, liabilities and contracts of their husbands, or of any husbands each may have; and said Sue M. is hereby empowered to sell, lease, mortgage, exchange, rent or otherwise dispose of the property herein given and conveyed, and whenever any of the property herein mentioned is sold and disposed of, the proceeds are to be invested to the same trusts, and held as aforesaid.” On May 4th, 1872, P. L. Nichol and wife entered into a written contract, which was duly signed and acknowledged, with A. 0. Nichol, in which it was agreed that they would sell and convey to him, the said A. C. Nichol, said property, in consideration of ¡which he agreed to pay $15,000, $8,500 in cash, and the balance to be secured by two notes, the cash and notes to be placed in the 4th National Bank, “ subject to such claims as are now a lien upon the property.” The liens on the property were as follows: on July 23, 1870, P. L. Nichol and wife joined in a deed of trust upon part of the property to P. Lindsley, to secure a debt of P. L. Nichol to Trabue, executor of the estate of Joseph Woods. On September 21,1870, said Nichol and wife again joined in a deed of trust conveying another part of the property to W. J. Arrington, to secure a debt of $600 due fromP. L. Nichol to Samuel Bugg.' On February 13,1872, they again conveyed the property to P. Lindsley, in trust, to secure B. Nichol, as accommodation endorser on a note for $8,098 39, executed by P. L. Nichol for a debt due from him. to Davidson County. P. L. Nichol and wife filed their bill against A. C. Nichol to compel a specific performance of the aforesaid contract, and joined with him as defendant, the 4th National Bank. Afterwards they filed an amended hill, making the parties claiming .under the several deeds of trust, the County of Davidson, and the minor children of P. L. and Sue M. defendants, and charging that a specific performance, as prayed in the original hill, would be manifestly to the interest of all concerned. Lindsley, trustee, and B. Nichol, filed their answers as a cross-bill, praying for a specific performance, or, if this cannot be had, then, that their rights under their deeds of trust be enforced, and for general relief. The County of Davidson files its bill, charging that the deed of gift from P. L. to his wife was fraudulent,- and made to hinder and delay creditors, and, consequently, that it has the right to go behind all the trust conveyances, and have the deed of gift set aside, and the property held subject to its debts. A. C. Nichol resists the prayer of the bill to compel him to specifically perform the contract, and alleges, and his allegations are sustained by the proof, that a few days after the execution of the contract, he was apprised of the trusts upon which the conveyance was made to Mrs. Nichol, a fact that was not disclosed by P. L. Nichol, with whom alone he negotiated, and that as soon as he made this discovery he offered to rescind the contract, which was refused ; and he charges, that, by reason of such trusts in the conveyance to Mrs. Nichol, they could not convey to him a good title.</p> <p>Held: Notice. Effect of registration. Duty of vendor. A vendor asking a specific performance, cannot excuse himself for not disclosing to his vendee, defects in his title, by saying that these defects might have been discovered by examination of the records in the Begister’s office, and, therefore, the fact that the deed of gift was recorded, did not affect the vendee with notice, it being the duty of the vendor to fully disclose the nature and condition of his title.</p> <p>2. Executory contract. Defects in title. It is an unquestioned rule of law, that, so long as a contract for the sale of land remains executory, the purchaser is not bound to proceed to execute it, when it appears by reason of defects not previously disclosed to him, the vendee cannot make a title free from doubt.</p> <p>S. Doubtful title. Bights of the purchaser. A vendee cannot be compelled to execute such a contract, where it is doubtful whether the vendor can make him a good title. It is, therefore, held, that, it being a doubtful question, whether, under the deed of gift the vendee could acquire a perfect title, he could not be compelled to specifically execute his contract.</p> <p>4. Vendor cannot avoid one deed to make another good. A vendor cannot, for the purpose of conveying to his vendeeja good title, avoid a ' deed which he himself has previously executed, the existence of which casts a doubt upon the validity of the title sought to he communicated to the vendee, by charging that it was fraudulent, made for the purpose of hindering and delaying creditors.</p> <p>5. Vendee required to accept, ip good title can be made on binad heabing. Title must not be different from what was contracted for. In a case where there is no fraud or concealment, if the vendor be able to make a clear title upon final hearing, the purchaser will be required to accept it; but, where, as in the present case, it would require a sale of the property under a decree of the Court, to communicate a good title, the purchaser is not bound to accept it, because this would be such a title as he had not bargained for.</p> <p>6. Acceptance op note. Estoppel. A creditor who accepts a note for his debt, is not estopped from filing a bill to set aside a conveyance, previously made in fraud of his rights. ■</p> <p>7. Practice. Answer filed as eross-bill. The Statute allowing an answer to be filed as a cross-bill, does not limit it to purposes of defence, but puts it upon the same footing as a cross-bill prop'er.</p> <p>8. Power to mortgage construed. It is held, that the power in the deed to the wife to mortgage the property, must be construed to mean that any mortgage executed, must be for the purpose of carrying out the trusts mentioned therein, and not to secure the husband’s outside indebtedness.</p> <p>9. Void deed. Subsequent creditors. A deed void as to existing creditors, is void, also, as to subsequent creditors.</p> <p>Cases cited: Kennedy v. Woodfolk, 3 Hay., 195; Buchanan u. Alwell, 8 Hum., 516 ; Cunningham v. Sharp, 11 Hum., 116; Pipkin v. James, 1 Hum., 325; Galloway & Pillow v. Hugh Bradshaw, 5 Sneed, 70; Williams v. Lowe, 4 Hum., 62; Wade, et ah. v. Green, et ah., 3 Hum., 547 : Maley v. Barrett, 2 Sneed, 501; Campbell v. Fields, 1 Cold., 416.</p>

<p>1. T’ratjdtti.ent Deed. ' Void in part. The law is now settled in this State, that an intentional fraud by the maker' of a trust deed as to a portion of the debts provided for, but not participated in by the other beneficiaries whose debts are valid, is only void as to so much as is embraced by the fraudulent purpose of the maker, and concurred in by the beneficiaries whose debts are false and fictitious. Such a deed is good as to the claims of other beneficiaries.</p> <p>2. Lien on notes assigned. Notes were assigned and transferred to two of the grantor’s creditors, and written notice given to the makers of the notes, several months prior to the attachment of the notes by other creditors; held, that the lien of the assignees of the notes was superior Iby virtue of the prior assignment and written notice.</p> <p>X Aiding in ebaudcxent conveyance. A creditor of the grantor, with á knowledge that the latter was much embarrassed, and probably contemplating a fraudulent disposition of his property, but without intending to aid him in consummating his fraudulent purpose, bought a ¡stock of goods in another State to secure his own claim, and at the •same time get a good bargain in the purchase of the goods; and the money thus paid by the creditor was used by the grantor in paying some of his other creditors; held, that no fraud could be attributed to the said creditor, and he -was not liable as a participant in the fraud of the grantor.</p>

<p>Assignment oe choses in action. Notice. The law is settled, in this State, that the assignment of a judgment or other like chose in action, where the legal effect of the contract is not to vest the legal title in the assignee, can only he perfected as against the debtor or party hound to pay, or his creditors, by notice given to such debtor or party hound, that such assignment has been made. If the possession is not changed, and apparent ownership still with the assignor, so that he is enabled to hold himself out as owner of the paper, and if the debtor pay in good faith, to the assignor thus in possession, he will he protected.</p> <p>Cases cited: Clodfelter v. Cox, adm’r, 1 Sneed, 330; Mutual Protection Ins. Co. v. Hamilton & Goram, 5 Sneed, 269 ; Sugg v. Powell, et als-; 1 Head, 221; Gayoso Sayings Institution v. Fellows, et ah., 6 Cold, 471, 472.</p>

<p>1. Constitution, Act op 1875, Ch. 7. Compensation of Jurors. Compensation for service of a juror is not a common law right. Such sacrifices of time or personal service, or of property, as thiB service requires, are compensated for in part by the protection which the Government furnishes for the rights of persons and of property.</p> <p>2. Eight op Tbial by Juby inviolate. The Bill of Eights guarantees to every citizen the right of trial by jury without violation, and by the 7th amendment of the United States Constitution it is declared that the right of trial by jury shall be preserved. This manifestly means that the right shall never be encumbered with conditions which, in their practical operation, may impair the free and full enjoyment of the right. The Act of February 24, 1875, entitled, “An-Act to tax the losing party with the jury fees in all cases in civil suits, and to repeal §§4036 and 4037 of the Code,” will not operate as an attack upon the integrity of jury trials, and is, therefore, unconstitutional and void.</p> <p>3. Void Statute. Where part only of a Statute is void, and the residue so dependent upon and connected with the valid part that it cannot be presumed that the Legislature would have passed one without the other, then both are void.</p> <p>Cases cited: McGinnis i>. The State, 9 Hum., 43; Trigally v. Mayor and Aldermen of Memphis, 6 Cold., 382.</p> <p>Authorities cited: Mirror of Justice, Ch. 11, ?3; Conly, p. 319; Sedg. Con. Law, 413; Commonwealth v. Hitchings, 5 Gray, 482; State Wheeler, 25 Conn., 250.</p> <p>Code cited: §§3990, 4002, 4003, 4004, 4036, 4037.</p>

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

<p>FROM DAVIDSON.</p> <p>No record can be found in this case.</p>

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

<p>Attachment. Priorities. Attaching creditors haying abandoned their attachment there can be no priorities among them. The funds arising from the sale of the attached property must be divided pro rata among the creditors, and those creditors who have purchased the property can be allowed the pro rata on their purchase notes.</p>

<p>Sureties upon Executors’ Bond. Not liable for equitable assets. Slaves, like real estate, devised by a testator to be sold by his executor to pay-debts, were only equitable assets, and the executor takes them as such, with nothing more than a power to sell for the purpose of paying debts, the title passing to the devisees subject to this power of the executor. And in such cases the sureties of the executor are not responsible for the proper administration of the equitable assets thus coming into the hands of the executor.</p> <p>Cases cited: Elliott and Wife v. Holder, 3 Head, 698; Hughlett v. Hughlett, 5 Hum., 453; Lester v. Yick, 2 Heisk., 476; Fulton ®. Davidson, 3 Heisk, 628; Porter v. Moores, 4 Heisk., 16.</p> <p>Code cited: $2247.</p>

<p>EEOM WARREN.</p> <p>Appeal from the Chancery Court. Robert Cantrell, Special Chancellor.</p>

<p>Replevin bond. Estoppel.. The replevin bond in this case being a clear and distinct undertaking to pay the debt on the condition prescribed, or the value of the property attached with the interest, and the value of the property not being fixed in the bond, as might have been done, the surety is estopped to deny the validity of the bond, or the legality of the proceedings under which it was obtained, and he is liable thereon for the amount of the decree rendered on said bond.</p> <p>Code cited: §§774, 3509.</p>

<p>Attachment. Judgment mid for want of service of. Upon bill filed to reach a fund to satisfy a judgment obtained in a suit brought by attachment, and the bill showing that defendant was not a non-resident, and the attachment was not issued on that ground; .</p> <p>Held, that the judgment was void, and the facts not entitling complainant to relief, it was error so to decree.</p> <p>Case cited: Brown v. Brown, 2 Sneed, 431.</p>

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

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

<p>1. Homestead. When alienable. Before the establishment of the Constitution, on the 5th May, 1870, there existed no Constitutional or other legal inhibition to restrain the alienation of a homestead by husband, all transfers anterior to that date are valid.</p> <p>2. Constitution went into effect. When. The Governor made proclamation on the 5th of May, 1870, declaring the result of the vote upon the ratification of the Constitution, which, consequently, went into effect upon, and bears test from that date.</p> <p>Code cited: jS2114a.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court.</p>

<p>1. Ejectment. Adverse possession. Gbmge. The Court charged the jury that if the defendant in ejectment took possession in 1849, under a bond for title, and held adverse possession continuously until his death in 1865, and if, after his death, the tenants continued to hold adverse possession for the defendant’s heirs for seven years, these united possessions under the bond would form a bar to plaintiffs action.</p> <p>Held, This charge was correct.</p> <p>2. Same. Same. Estoppel. But it was erroneous to charge that if defendant claimed under a title bond executed by the ancestor of the plaintiff, then the defendant would be estopped to deny the plaintiffs title, and verdict should be for the plaintiffs. It does not follow that because the defendant held under such ancestor’s title bond, therefore he could not have such adverse possession as would constitute a bar after seven years.</p> <p>Cases cited: Marr v. Gilliam, 1 Cold., 488; Wortham v. Cherry, 3 Head, 468; Gudger v. Barnes, 4 Heisk., 578. ■</p>

<p>EEOM SMITH.</p> <p>Appeal from the Chancery Court. William G. Ceowley, Chancellor.</p>

<p>FROM FRANKLIN.</p> <p>Appeal from the Circuit Court. Samuel F. Fite, Judge.</p>

<p>1. Demvrbeb. What it admits. A demurrer admits all matters well pleaded, with certain limitations, such as statements contradicted by other parts of the bill, as an exhibit made part of it.</p> <p>2. Pleading. Construction. The original bill alleged that defendant and his mother took a lease of the property in controversy. The lease was not made an exhibit to the bill, but a copy from the Register’s office was offered to be produced at the hearing as evidence. The cross-bill admitted the copy was on file at the time of filing the cross-bill, and admitted that his mother did take the lease. Upon demurrer to the cross-bill,</p> <p>Held, That the lease might be looked to as part of the cross-bill, aa though it had been made an exhibit thereto.</p> <p>3. Lease. Construction. Winnie McFarland owned a dower interest in sixty-thi-ee feet of ground, on which she resided. The legal title to the remainder interest in said sixty-three feet, as well as to three additional feet not included in the dower, was in complainant and his wife. -This being the state of facts, Winnie McFarland and her son, W. E. McFarland, took from complainant and wife a lease in these words; “Bent all the ground now owned by Swan (the complainant) and wife on Lot No. 36, in the city of Nashville, on College Street, which lease shall continue during the life of said Winnie McFarland, paying ten cents per annum and taxes on said land, etc.”</p> <p>Held, That the lease, construed in connection with the allegations of the bill, does not include the sixty-three feet of dower, and that defendant is not estopped thereby to dispute complainant’s title to the land covered by the dower.</p> <p>4. Fraudulent Deed. By whom may it he impeached. A deed obtained by fraud or duress is not absolutely void in law, so as to be incapable of confirmation, but is voidable at the election of the party defrauded or coerced. Such deeds, however, are only voidable and to be avoided at the election of the party defrauded or coerced, and by privies, and no third person can interpose to assert his right for him.</p> <p>5. Possession. Bights under. One in possession of property, claiming it as his own, is entitled to retain his possession as against all but one having a superior right.</p> <p>6. FRAUD. Sow third party may take advantage of. Though a conveyance obtained by fraud be only voidable, and can be impeached and set aside only at the suit of the party defrauded, or his privies, yet, if the property conveyed is in the possession of a third party, and the fraudulent conveyee has to come into a Court of Equity for assistance in the assertion of his claim, and to obtain the benefit of his fraud, he will be repelled upon the maxim that “ he who comes into that Court asking its aid must do so with clean hands.” This is not to give active relief to a party who has no title, but is simply a principle on which his opponent is repelled from the Court, the Court helping neither the one nor the other — not the complainant, because it would be helping him reap the benefit of his fraud; nor the defendant, because he might have no legal title, yet, being defendant, and in possession, his condition is best.</p> <p>Cases cited: Waterhouse’s Lesse v. White, 2 Tenn. K., 333; Marr v. Gilliam, 1 Cold., 507-8; Mallory, Adm’r, v. Young, 10 Hum., 300 j Parks, for use, etc., v. McKamy, 3 Head, 297.</p> <p>Authorities cited: Bispliam’s Prin. of Equity, p. 205, §42; Kerr on Frauds, pages 48, 49, 50; Story Eq. Jur., Redf. Ed., §257a; Gale v. Lendo, 1 Vernon, 475; Jackson v. Marshall, 1 Murphy, N. C. R., 332.</p>

<p>EEOM MAURY.</p> <p>Appeal from tlie Chancery Court.</p> <p>No record of this case can be found.</p>

<p>Award. Mistake. Ratification of by parties. Estoppel. A party in whose favor an award for a sum of money is made, and who, after he discovers the mistake, sues and recovers and accepts payment of the amount awarded, cannot then have relief and recover a further sum, upon the ground, that, by mistake, the award is not for enough. It is then too late for him to ask to have the award set aside or corrected for mistake.</p>

<p>Execution ebom anotheb county. Void on its face. A Justice of the Peace for Coffee County, issued an execution on a judgment which had been rendered in Rutherford County, reciting “ that the same was obtained before H. C. C., a Justice of the Peace for Rutherford County, Tennessee, on the 13th of March, 1861, against the sáid J’ A. M., as appears by a certified execution, issued by W. D. H., Justice of the Peace for Rutherford County, and certified by James -, County Court Clerk of said county, which is on file in my office.”</p> <p>Held, to be void on its face.</p> <p>Cases cited Gibbs v. Hawkins, 6 Yerg., 481; Moyers v. Inman, 2 Swan, 80; Eason v. Cummins, 11 Hum., 210.</p> <p>Code cited: §3073.</p>

<p>Selling ob Adot/tebing Liquobs. Upon an agreed state oí facts submitted to the Court, showing that the plaintiff in error had taken an oath and executed a bond in compliance with the Statute, and that he, two years afterwards, did sell, etc.</p> <p>Held, that the oath and bond being sufficient in form and substance, and in strict compliance with the Statute, and there being nothing in the Statute restricting their obligation to any prescribed period of time, the law has been observed in every particular. The charge of the fact and its admission, are to be taken as an entirety,- to be interpreted as a single instrument; and the presentment charging the offence to have heen committed in Giles, the venue is sufficiently shown.</p> <p>•Act cited: Act of 1859, Ch. 81, §4.</p>

<p>FROM SMITH.</p> <p>Appeal from tbe Circuit Court. N. W. McCon-nel, Judge.</p>

<p>Equity bkeading. Release after issue joined. Bill had been filed for an account, and for the execution of a deed of trust. Answer was put in making no defence to the relief sought, but pending the suit a release was executed, which was proven by one of the defendants, and made an exhibit to his deposition.</p> <p>Held, that, as no pleading of any kind presents the issue of such release, the decree is based alone on the statements of a deposition, and not on any case made by either of the parties, and is, therefore, unauthorized and erroneous. Under our liberal practice, an amended answer might be filed, putting in issue the matter of the defence.</p> <p>Kerr on Frauds, page —; Story’s Eg, PL, §393, Redf. Ed.</p>

<p>1. Chancery Practice. Usury. Estoppel. D confessed judgments to secure the payment of a usurious debt to G, who afterwards filed his bill and attached D’s land. On D’s filing a cross-bill it is held, that, after confessing judgments and not pleading the usury, it was too late to resort to a Court of Chancery for relief.</p> <p>2. Fraudulent conveyance oe land. A conveyance of the land attached, from the agent, tenant and solicitor of the defendant to the daughter of the defendant, held to be without consideration, and fraudulent as against the complainant and other of defendant’s creditors.</p> <p>8. Same. Same. The defendant not mating out the allegations in his crossrbill, of fraud in the sale of the land to him, the land is decreed to be subject to the claims of the complainants.</p>

<p>Liability of Sureties of Representative and Guardian. The purpose of the Act of 1847-8, Code, §2489, is to have the accounts of the executor or administrator who might have any estate of an infant in his hands settled and made matter of record, with nothing left for the party to do in his representative capacity, before being appointed guardian of the infant. The settlement draws the distinct line between the two fiduciary relationships, and locates the liability; and the sureties are liable upon the respective bonds, as the facts may show.</p> <p>Code cited: §2489.</p>

<p>Coses. A person appointed to attend on the Criminal Court will not he entitled to the fees allowed Sheriffs for summoning special juries.</p>

<p>Chanceby Sake. Advanced bid. A person offering to advance the bid-dings at a Master’s sale, and not making any exception to the last sale under such advanced hid, becomes a quasi party, and bound by subsequent proceedings. The Court has power to hold the parties bound by acts of this character, arid not allow its proceedings to be trifled with.</p>

<p>1. Costs. The Clerk and Master of the Chancery Court is entitled to seventy-five cents for every subpoena to answer, whether it contains one or more defendants.</p> <p>2. It is proper to make out three trial dockets, and the Clerks are entitled to ten cents for each cause on each docket, making thirty cents for entering each cause; but this can be allowed but one time, except when causes are remanded.</p> <p>Code cited; §§4339, 4341, 4551, 2495, 4040, 3936, 4237, 4504.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from the Criminal Court. Thomas 1ST. Frazier, Judge.</p>

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

<p>CRIMINAL law. IdenMfaatwn. When opinions of witnesses competent. The general rule that opinions of witnesses are not competent testimony, is subject to the well settled exception making them admissa-hie as such, in questions involving personal identity. The impression of the witness must he based upon his knowledge of the person sought to he identified, and while it is not necessary that it should he formed at the time he saw such person, yet, when formed, it must he the result of the recollection of the person seen, connected with the seeing, and not after-acquired information from others.</p> <p>Authority cited: 1 Greenlf. Ev., §440.</p>

<p>Jurisdiction or County Court to remove and appoint Trustee. The County Court has no jurisdiction to remove or appoint a trustee, except in cases where that jurisdiction is conferred by Statute. The sections of the Code giving that Court concurrent jurisdiction with the Chancery and Circuit Courts to accept the resignation of, and to remove and appoint trustees for, the causes therein set forth, on the petition of one or more of the beneficiaries, the maker of the deed of trust can, in no fair sense, be held to be one of the beneficiaries under the deed or in the trust; and the decree of the County Court appointing a new trustee at his instance, is void for want of jurisdiction.</p> <p>Code cited: §§3648, 3656.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Criminal jOourt. Thomas N. Frazier, Judge.</p>

<p>1. Summary Proceedings. What judgment musí recite. A judgment against a Sheriff and his sureties for the failure of his deputy to return an execution, to he valid, must recite a state of facts as being shown in proof, authorizing the exercise of jurisdiction. The proof need not be set out in detail. The Court may assume that such proof had been made. The state of facts necessary to appear in such a case are: The office of Sheriff, the securityship, the relationship of deputy, and his failure to return the execution according to law. Case cited: Snell v. Rawlings, 3 Hum., 89.</p> <p>2. Same. Same. Appearance and prayer far appeal. Effect of. Where defendants appeared and prayed an appeal from a judgment by motion against them, wherein the jurisdictional facts did not appear,</p> <p>Held, That this did not cure the defect as to the required recitals.</p>

<p>Venboe’s Lien. Does not pass to assignee of purchase note. When. A vendor of land sold, the deed to which retains no express lien for the purchase money, cannot bring suit on the purchase note for the use of his assignee of the note, so as to fix or create a lien in his favor. The lien of the vendor was a personal right in the first instance, and did not pass by simple endorsement of the note.</p> <p>Case cited: Green v. Demoss, et ais., 10 Hum., 374.</p>

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

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

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court. David Campbell, Chancellor.</p>

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

<p>1. OeiminaIí Law. New trial. Newly discovered evidence. Absence of witnesses, Newly discovered evidence, and the absence of his witnesses, from the trial of a person convicted of rape, without his consent, are not sufficient grounds for a new trial, where he made no attempt to continue the cause for such absence, and when the newly discovered evidence would be merly cumulative of that already introduced, as to the unchastity of the woman previous to her alleged violation, and in the effort to discredit the witnesses for the State.</p> <p>2. Same. Same. Tampering with jury. Nor can the verdict of the jury, in such a case, be so tainted as to entitle the defendant to a new trial, • because bystanders, after the conclusion of the testimony in the case, had been heard to remark in language audible to both Court and jury, that the defendant should undergo certain degrees of punishment, it not appearing that such remarks had been encouraged or approved by the jury, or had influenced their verdict.</p>

<p>1. Practice. Continuance. The discretion of the Circuit Court in the matter of continuances will not be interfered with, unless it clearly appears that it has been improperly exercised.</p> <p>2. Same. Charge upon fads not in the record. Effect of. A charge upon a state of facts not in the record, is ground of reversal if calculated to mislead the jury, but such reversal will not be granted upon a mere abstract proposition wholly, without evidence to authorize it, and when from its very nature, the jury could not have predicated their verdict upon it.</p>

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

<p>Promissory noth. Illegal consideration. Compounding a felony, What not, A note was executed to secure the payment of money supposed to have been embezzled by the maker thereof, resulting in his release from arrest at the instance of .the prosecutor, and the security after-wards resisted payment, attacking the consideration of the note as illegal, and contrary to public policy.</p> <p>Held, that the recovery of the money lost was the consideration of the note, and not the discharge of the maker from arrest; and though the latter might follow, as an incident of the settlement, it could not taint the transaction with illegality.</p>

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

<p>Gabhishment. Case in judgment. A garnishee stated, in answer to a garnishment, that he owed plaintiff’s debtor $300, hut was informed a hill had been filed to compel him to pay this sum and more, on a lien on property sold him by said debtor. The Justice rendered judgment against him for the amount. Afterwards, the garnishee was held liable for $840 in the proceedings under the hill. An injunction granted against him before he was garnished was not served until some days after.</p> <p>Held, That the answer of the garnishee did not justify the rendition of judgment against him.</p>

<p>1. PROMISSORY Note. Blank endorsement. Evidence of title in whom. The possession of a note endorsed in blank is evidence of title in the holder, who, if he be an endorser, and pay the note, may sue the maker thereof without erasing his endorsement, or filling up the blank.</p> <p>2. Record oe Court. Of what best evidence. The record is the best evidence of Court proceedings, therefore, where the deposition of a witness detailing them without producing it was excluded,</p> <p>Held, Correct.</p>

<p>EROM VAN BUREN.</p> <p>Appeal from the Circuit Court. N. M. McConnel, Judge.</p>

<p>Mortgage. Fraud. Usury. A executed his note for $600, and appended a paper as a part thereof, by which he “ obligates his farm, bounded, etc.,” for its payment. The note included usury, not apparent upon its face, and the paper attached was procured by fraud.</p> <p>Held, admitting its validity in form as a mortgage, it was void for this reason, but the holder, to whom it was assigned after maturity, was entitled to recover the amount actually received with lawful interest.</p>

<p>Equitable Set-ote. Where a bill alleged the non-residence and insolvency of a defendant, and sought to have so much of a judgment in his favor against complainant applied to the satisfaction of a judgment held by complainant against defendant,</p> <p>Held, A proper case for an equitable Bet-óff.</p>

<p>Pbactice. Jurisdiction of Chancery Court to vacate satisfaction of judgment. A Court of Chancery has jurisdiction to set aside satisfaction of judgments where the property has been lost by paramount title or prior lien enforced against it. Thus, where judgment creditors redeemed land sold under execution as the property of their debtors, and in doing so satisfied their judgment against them, and the land was afterwards sold to enforce a prior lien upon it, created by attachment in favor of other creditors of the defendants,</p> <p>Held, That complainants were entitled to have the order of satisfaction vacated and set aside, and their judgment restored to full force.</p> <p>Case cited: Swaggerty v. Smith, 1 Heisk., 403. ■ •</p> <p>Code cited: §2990.</p>

<p>1. PjassnarPTioir of Law. To what property subject of an agreement relates. The widow and heirs of an intestate, if otherwise competent to contract, may agree, in writing, to divide his personal estate among themselves, and without evidence, other than the written agreement, the presumption would be that it applied to the whole estate.</p> <p>2. Practice. Jury recalled for further instructions. After failure of a jury to agree, at the instance of defendant, they were recalled, and further instructed by the Judge. No exception being taken to the additional charge,</p> <p>Held, Not ground for reversal.</p>

<p>PROM WHITE.</p> <p>Appeal from the Chancery Court. W. G. Crowley, Chancellor.</p>

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

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

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

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

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

<p>FROM FRANKLIN.</p> <p>Appeal from the Chancery Court. W. P. Hicker- ' son, Chancellor.</p>

<p>Yenhob’s Lien. When stayor entitled to he substituted to. Where execution on a judgment for the amount of a note secured by an express lien on land sold has been stayed, the stayor, if compelled to pay it, is entitled to be substituted to the rights of the vendor in the enforcement of the lien, and if there be other notes given for the land, and the proceeds of the sale are not sufficient to satisfy all, the stayor would be entitled to his pro rata share.</p>

<p>PROM 'WHITE.</p> <p>Appeal from the Circuit Court. Samuel M. Fite, Judge.</p>

<p>PROM MONTGOMERY.</p> <p>Appeal from the Criminal Court. C. W. Tyler, Judge.</p>

<p>CShaitcery Practice. How former decree cannot be attacked. A purchaser of land sold under a decree to subject it to the satisfaction of ah incumbrance held by one who had redeemed it from a purchaser under a former decree, cannot, by petition in the cause under which he became the purchaser, attack the regularity of the proceedings in the former suit. The object of such a petition being to enjoin the collection of the purchase notes in the hands of the Clerk and Master, the relief was properly refused.</p>

<p>Bubden of Peooe. Upon officer to show discharge of duly. No presumption as to the discharge of his duty hy an officer can prevail in the face of the evidence of failure to discharge the same) furnished by his own returns. Therefore, where a constable’s return showed the levy of executions upon property sufficient to satisfy the same, and he had failed to account to the execution creditor for the proceeds,</p> <p>Held, That the onus is upon him and his sureties to show a satisfactory disposition of the property, and failing to do so, their liability for the debt attached.</p>

<p>FROM RÜTHERFORD.</p> <p>Appeal from tbe Criminal Court. Thos. N. Frazier, Judge.</p>

<p>PROMISSORY Note. What not. Damages and costs. When sureties on appeal bond liable for. A promise in writing to refund a sum of money received from another, upon condition that a certain receipt he produced, is not a promissory note, and where judgment was rendered thereon for the holder by a magistrate, from which the other party appealed, it was error in the Circuit Court to render judgment against the sureties on the appeal bond for the amount of the Justice’s judgment, damages and costs as provided by §3162 of the Code, although the penalty in the bond was in double that amount, and conditioned to comply with and perform the judgment of the Circuit Court. The judgment against the sureties should have been for damages and costs only under §3163 of the Code.</p> <p>Case cited: Whiteman v. Childress, 6 Hum., 303.</p> <p>Authorities cited: Parsons on N. & B., vol. 1, page 30; Williamson v. Bennett, 2 Comp., 417.</p>

<p>1. Mechanics’ Lien. Enforced where. When came may be transferred. A mechanics’ lien may be enforced by attachment, either at law or in equity, and when the proceeding is begun at law, it is a proper exercise of discretion in the Court to transfer it to the Chancery Court, where a bill for a like purpose was pending, that all the questions arising might be there determined.</p> <p>Code cited: 221987, 3543.</p> <p>2. Same. Attachment. What affidavit to state. But wherever begun, if the defendant be resident, the summons is the leading process, and the attachment auxiliary, and the latter may be incorporated with theformer, and while the usual conditions as to affidavit and bond, etc., on which the attachment is issued, must be conformed to, the affidavit need not state any other ground for its issuance than that such lien is claimed.</p> <p>Cases cited: Brown v. Brown, 2 Sneed, 431.</p> <p>Code cited: 221987, 3455.</p>

<p>1. Parol trust op lakh. Case in judgment. A valid trust of land may be created by parol, and to satisfy the Statute of Frauds, it will be sufficient to show by written evidence, the existence of the trust. Thus, a husband bought land for his family, paying part cash, and executing notes for the balance. The vendor ratained the title, but verbally agreed with the husband, that, upon completion of the payments, he would convey the land to the wife for life, remainder in fee to the children. The purchase notes were paid, and the conveyance was made to the husband, as trustee, to carry out the original intention</p> <p>Held, That the parol agreement created a valid trust in favor of the beneficiaries, and that their equity was superior to that of a creditor of the husband and vendor, becoming such after completion of the payments, and before the execution of the conveyance.</p> <p>Case cited: Smith v. Bradley, 4 Sneed 305.</p> <p>Authorites cited: Hill on Trustees, 88; 3 Yes., 707; 5 Ves., 308; 12 Yes., 74; 1 J. C. R., 339 ; 4 Munf., 77.</p> <p>2. Same. Same. When attorney may not compromise clients’ suit. An attorney has in general, no authority to enter into a compromise, without the sanction of his client, express or implied; therefore, when such creditor having attacked the conveyance above-mentioned, the solicitor, for the beneficiaries, by way of a compromise, agreed to a decree in which, contrary to the truth of the case, and without the knowledge or consent of his clients, an admission was made, amounting to a surrender of their claim to the land; whereupon, the beneficiaries filed this bill, repudiating the act of the solicitor, denying the admission so made, asserting their claim and asking to have the decree annulled.</p> <p>Held, that the action of the solicitor was unauthorized under the circumstances, and not having been ratified by his clients, the decree based upon it was a nullity; that complainants (except two of the adult children concluded by a pro confesso against them in the former suit) ■ were entitled to the relief sought; that the wife took a life estate, and the children (with the exception mentioned) and the complainant in the former suit, (the creditor) were tenants in common of the remainder.</p> <p>Authority cited: 1 Par. Con., 117; Walker v. Parker, 7. Cranch, 436.</p>

<p>1. Practice or the Supreme Court. Writ of error. Presumption. A transcript for writ of error was filed in this Court during a Term thereof after one hut within two years from the date of final judement in the Court below, but whether by order of Court or not does not appear. The record not showing a motion to dismiss until a subsequent Term,</p> <p>Meld, That these facts constitute a presumption that it was filed by order of the Court within the time fixed by ?3181 of the Code.</p> <p>2. Chancery Practice. Master’s report. Legal presumption. Where no direction is given as to when a report should be made on matters referred to the Master at one Term, the legal presumption is that it is to be made at the next Term.</p> <p>3. Same. Same. When not binding. The general rule that a. party is concluded by a decree based upon a report not excepted to, presupposes that it was made in pursuance of authority, and upon proper notice. A report not so made is of no binding force, and a decree based thereon, though it recites that no exception was filed, is erroneous, if not an absolute nullity.</p>

<p>1. Executobs. When not liable for loss of trust property. Executors directed ' by will to sell tbe property of their testator were notified on the day fixed for the sale of certain slaves that they were claimed adversely by one who had taken steps to test his title thereto, ></p> <p>Held, A sufficient justification for postponing the sale until adjudication of the title, and that the fact of the slaves being freed by the intervention of the war before final determination of the cause did not render the executors liable for their loss.</p> <p>Authorities cited: Perry on Trusts, §770; Hill on Trusts, §474, note 3.</p> <p>2. Same. Degree of diligence. Case in judgment. The degree of diligence required of executors acting in perfect faith is that which would be deemed sufficient in the judgment of a reasonably prudent and diligent man in the management of his own affairs. Thus, where executors, at the sale of trust property, took notes of a non-resident purchaser of reputed wealth at the time, whose wife and the sureties thereon were legatees, the shares of the sureties, then considered as sufficient security for the amount being under the control of the executors in this State, and within the jurisdiction of its Courts, and one of the sureties residing therein, and where such executors failed to sue the maker after maturity of his notes, and before his utter insolvency, disclosed a month or two thereafter, or after his insolvency, ' hut sued the resident surety and applied the shares of both sureties to pro tanto payment of the notes,</p> <p>Meld, Under the circumstances, a sufficient exercise of care and diligence to exonerate the executors from liability for the unsatisfied balance thereon.</p> <p>Authorities cited: S. C. B., (new series,) 337; 1 Ired. Eq., 108; 5 How., 275.</p>

<p>1. ChanceRY Jurisdiction. Specific performance. Specific performance is not a matter of absolute right, but is within the sound legal discre- • tion of the Court; and if the existence of the contract is doubtful, or for any reason it would be inequitable to grant the relief, it will be refused, and if the party be in fact entitled to any remedy, he will be left to prosecute it at law; accordingly, relief will not be granted to one claiming it, as the vendor in an alleged contract for the sale of land, the existence of the contract being in doubt, nor where it appears that subsequent to the proceedings, the title had been divested out of the complainant.</p> <p>Authorities cited: Pry on Specific Performance, §165; Champion v. Brown, 6 Johnson C. B., 398.</p> <p>2. Same. Damages. A-party whose debtor fails to pay according to contract, qannot charge the latter with damages incidentally resulting. The legal interest is, in such a case, the damage fixed by law.</p>

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

<p>1. WrLi.. Gonsiruction. A testator devised land to his wife during life or widowhood, and upon her death or marriage directed the proceeds of its sale to be divided equally among his children, etc., etc.,</p> <p>Held, that the testator intended each of the children to take a vested interest transmissible upon their death either to their real or personal representatives.</p> <p>Cases cited: McClung v. McMillan, 1 Heisk., 655; Bridgewater v. Gordon, 2 Sneed, 5.</p> <p>2. Same. Conversion. A will directing a conversion of realty into money at the termination of a limited estate created thereby, passes to the legatees as personalty, and where any of them die during the continuance of such estate, their shares will vest in their personal representatives and not in their heirs.</p> <p>Authorites cited: King’s Digest, §2119; White & Tudor’s Leading Cases in Equity, Yol. 1, p. 799.</p> <p>3. Same. Administrator with will annexed. An administrator with the will annexed has the same power to sell land as is conferred by the will upon the executor.</p> <p>Case cited: Harrison v. Henderson, 7 Heisk, 348.</p> <p>Code cited: §2240.</p> <p>4. Same. Specific performance. Statute of Frauds. A purchaser of land sold by an administrator in the execution of a power cannot, have specific performance in the absence of a written memorandum signed by the administrator or his authorized agent.</p>

<p>FROM MARSHALL.</p> <p>Appeal from the Circuit Court. W. P. Martin, Judge.</p>

<p>PROM FRANKLIN.</p> <p>Appeal from the Chancery Court, Jno. P. Steele, - Chancellor.</p>

<p>1. Constitutional Law. Power of Legislature to alter remedies for the enforcement of contracts. The Legislature has no power under the Constitution, to alter remedies so far as regards antecedent contracts less effective or more dilatory than those ordained by the law in being when the contract was made, if such end be the direct and special object of the Legislature apparent in an act for that purpose. The Act of 1861, Ch. 2, providing for the stay of collections of all judgments rendered by Courts or Justices for definite periods, upon new or additional securities to be given by judgment debtors, and §3 thereof requiring the executions of Justices to be registered, thus securing the lien without providing for its enforcement, applied to a judgment rendered prior to its passage, and,</p> <p>Held void as falling within the constitutional prohibition.</p> <p>Cases cited: Townsend v. Townsend, Peck 1; Farnsworth & Reeves v, Yance & Fleming, 2 Cold. 108; Webster &Mann v. Rose, 6 Heisk., 93.</p> <p>2. Void Conteacts. When sale of land not champertous. The provisions of the Statute against champertous sales of land, do not apply to sales under execution. Therefore, the title of a conveyee of land under a judgment debtor’s deed, after levy but before sale, is inferior to the title acquired by the assignee of the purchaser’s bid at the sale, holding under Sheriff’s deed. In such a case, the debtor’s conveyee held subject to the lien of the levy, and when the sale took place, the title of the purchaser related back to the date of the levy and overreached the title under the intermediate conveyance.</p> <p>Code cited: §1779.</p>

<p>FROM ROBERTSON.</p> <p>Appeal from tlie Chancery Court. Charles G. Smith, Chancellor.</p>

<p>1. Ddbess. Nothing short of duress in its legal sense can invalidate an executed contract, and by this is meant that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the free agency of a person of ordinary firmness.</p> <p>Cases cited: McSween v. Miller, MSS. Knoxville, September Term, 1867; Hiller v. Wood, MSS. Nashville, December Term, 1870; Bollings v. Cate, 1 Heisk., 102.</p> <p>Authorities cited: 2 Greenleaf on Ev., 283; Brown v. Pierce, 7 Wall., 214.</p> <p>2. Same. Qase in judgment. A cross-bill seeking to avoid a payment in Confederate notes made by the branch of the Union Bank at Memphis to one of its depositors in 1862, alleged an intense state of excitement as existing at the time over a rumored military order requiring all persons to receive Confederate money, which order was being enforced by a vigilance committee; that the terror and apprehension thus engendered was known to the depositor, and was at its height when he was notified by the bank to withdraw his deposits, and to receive them in Confederate notes, which for the time he declined to do, but that after a fruitless negotiation of several days, the bank, being very persistent, and fearing the results of a positive refusal, he withdrew his deposits, receiving the greater portion of them in Confederate notes. It is not alleged that the depositor was enfeebled by anything except age, he being then sixty-five years old, or that he was not a person of ordinary nerve, or that any such order in fact existed, or was brought to his notice, or that he knew of or was in any way interfered with by the committee, or that he was influenced by the alleged reign of terror, or that the bank threatened him with the military, or that he' was in any way compelled to withdraw his deposits.</p> <p>Held, That the facts relied on did not constitute duress, and that the cross-bill was demurrable.</p>

<p>PROM DAVIDSON.</p> <p>No record can be found.</p>

<p>Statute oe Frauds. Parol evidence admissible to locate land when. Case in judgment. Where an instrument is so drawn that upon its face it refers necessarily to some existing tract of land, and its terms can he applied to that one tract only, parol evidence may he employed to show where the tract so mentioned is located. Therefore, where a title bond described property as “ a steam-mill and distillery, with all the machinery, appurtenances and fixtures thereunto belonging, together with all the grain, wood and one copper still, situate in the County of Smith and State (of Tennessee) aforesaid, near the village of Rome, in Civil District No. 13, on the banks of the Cumberland River, supposed to contain one and a half acres of land.”</p> <p>Held, in connection with parol identification of the property, a sufficient description under the Statute of Frauds.</p> <p>Cases cited: Dobson v. Litton, B Cold., 616; Hodge v. Blanton, 1 Head, 560.</p>

<p>1. Jurisdiction and Practice op the Supreme Court. Gondusive presumption. This Court has jurisdiction to entertain a writ of error where the transcript was filed within two years from the date of the decree during a term thereof, although no fiat or order granting it is shown, it appearing, from an endorsement on the transcript, that an acknowledgement of service of the writ was signed by .the counsel of the party now objecting. At the hearing of the case five years afterward, this Court conclusively presumes that the steps to bring it here were regularly and properly taken.</p> <p>2. Presumption op Law. A fact once shown to exist, continues to exist until the contrary is shown.</p> <p>3. Chancery Jurisdiction. Void proceedings. A decree in a cause rendered by a Chancellor incompetent to sit is void, as are also all the subsequent proceedings based thereon.</p> <p>4. Chancery Practice. Writ to follow order. Where a writ was directed to be issued, returnable to one date, and the Clerk issued it, returnable to another, thus varying the terms -of the order,</p> <p>Held, a nullity.</p> <p>5. Partnership. A partner not affectedly notice to the firm. When. Notice to a firm cannot affect a member thereof in his individual rights or interests disconnected from those of the firm.</p>

<p>1. Chanceey pbactice and pleading. Who may sue whore representatives refuse. Ordinarily, the personal representatives of a deeedant are alone entitled to sue for the recovery of debts due the estate, but if they, by collusion with the debtor, refuse to take the necessary steps, are insolvent, and the debt is about to be lost, the pffrties ultimately entitled may, in equity, proceed against both the debtor and representatives to enforce their right by the proper decree.</p> <p>Authority cited: Story’s Eq. Jur., §581, note 1.</p> <p>2. Evidence. When record of a former suit admissible. Where the record of a former suit is referred to in the pleadings of a subsequent proceeding, it may be read as evidence therein.</p> <p>3. Same. Burden of proof. In an action to recover the amount of an obligation to a deceased • obligee, the obligation itself being produced, and the condition upon which it became payable, having been performed, if the defendant relies upon the fact of payment to the obligee in his life-time, the onus is upon him to establish it; and while it is not clear that he might not be a competent witness for himself, to prove the loss or destruction of an alleged receipt, yet he could not be such as to any transaction with, or statement by the deceased in his life-time.</p> <p>Code cited: T. & S. Code, §3813d.</p> <p>4. Statute oe Limitations. Presumption of payment. The question of limitations on an obligation under seal, before private seals were abolished, depends upon the law as it stood before the adoption of the Code, and by analogy, the time excluded from computation by the amended Constitution, as to the Statute of Limitations, is also excluded in ascertaining the presumption of payment from lapse of time.</p> <p>Code cited: §47.</p> <p>Case cited: Gwyn v. Porter, 5 Heisk., 253.</p>

<p>AuEnCY. Liability of agent for ov&'^payment. Case in judgment. The principal is alone liable for money paid to his agent, which the payer has the right to recall, hut which he fails to do until it has been paid over by the agent to the principal. But this rule does not apply to cases where the agent receives the money outside of his agency and of his own wrong. Thus, a law firm was over-paid the amount of a judgment in favor of a non-resideht client, and the over-payment was attributable to their failure to inform the judgment debtor of a previous payment thereon by his debtor, of which he had no notice. The transmission of the over-payment to the client before discovery of the mistake,</p> <p>Meld, no protection to the firm against liability for its re-payment to the judgment debtor;</p> <p>Authorities cited: Story on Agency, §§300, 301, note 3; Addison on Contracts, p. 650.</p>

<p>Contbact. Consideration. A forbearance to sue to enforce repayment of a payment made in Confederate notes at a time when, as the law then stood, the payment might have been avoided, is a sufficient consideration to support a promise to repay.</p> <p>Case cited: Yance v. Smith, et ctfe., 2 Heisk., 344.</p>

<p>Chancery Jurisdiction. Bill for distribution of testator’s estate and construction of bis will. Cross-bill by bis daughter and her husband exhibiting a registered warranty deed of land from the father to the daughter, with which she was to be charged in the final settlement of his estate. The cross-bill alleges the subsequent sale of the land as testator’s property, under proceedings at law, against him for balance of purchase money due thereon, and that believing the sale effective, the husband had redeemed the land at the request of the testator, and wpon his promtise to refund.</p> <p>Held, that complainants are entitled to reimbursement out of the estate for the amount so paid, and although they might have recovered it at law, yet, as the original bill, to which they were defendants, contemplated a full settlement of the estate, the relief was appropriately sought under the cross-bill not on the contract of warranty, but for the advance actually made.</p> <p>Code cited: §§2996, 3813a.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from the Chancery Court. Thos. Barry, Chancellor.</p>

<p>Damages. When parent not liable for, in procuring separation of daughter from her husband. A Judge charged the jury that “ where a minor child, especially if very young, marries without consent of her parents and against their wishes, they may fairly, honestly and truthfully, without fraud or deception, advise such child, and if the child then, of her own free-will, determine to separate from her husband, and does so, and lives with the father, and is supported and maintained by him, and he has done nothing more to produce or keep up the separation than fairly, thoughtfully and honestly to give his opinion and advice to the daughter, and maintain and support her after the separation, of the daughter’s own free-will, the parent would not he liable in damages to the husband.”</p> <p>Held, correct.</p> <p>Authorities cited : Schouler’s Dom. Eel., 57-8; 21 Barb, 439 ; 5 John» ■ 196.</p> <p>Same. The sincerity of plaintiff’s affection for his wife may be looked to in view of damages.</p>

<p>Forcible entry and detainer. When evidence of title admissible. As a general proposition, tlie right of possession alone is involved in the action of forcible entry or unlawful detainer, hut the title may sometimes he shown as evidence hearing on the right of possession. Thus, where a defendant insisted that the tenant from whom he obtained possession of the premises, entered thereon as the tenant of, and by contract with B, and not as the tenant of the plaintiff, and afterward attorned to the plaintiff without the consent of B, it is held that the defendant is not estopped from showing that such attornment was procured by fraud or was the result of mistake, and that the title was in B, and that the deeds were admissible as the best evidence of this fact.</p> <p>Cases cited: Doaku. Donelson, 2 Yerg., 253; Washington v. Conrad, 2 Hum., 562; Shultz v. Elliot, 11 Hum., 187; Phillips v. Sampson, 2 Head, 433.</p> <p>Authority cited: Tyler’s Land, and Ten., §705.</p>

<p>Practice in the Supreme Court. Appeal Bill for the restoration of a portion of Humphreys County, alleged to have been improperly included within the limits of Houston County. Final decree, December 11, 1873, granting partial relief, and reserving the right to complainant to apply for the reinstatement of an injunction, previously disallowed, during the pendency of the appeal taken by Houston County from the decree, and a decree on the day following, granting the application, from which Houston County appealed. A motion here to dismiss the latter appeal is denied, the Court holding that the second decree was a part, of the first, which was vacated by the appeals taken therefrom, thereby leaving the former interlocutory decree dissolving the injuuction in full force.</p>

<p>Chancery Jurisdiction. New counties.. The creation oí a county is a legislative and not a judicial function, but the Chancery Court has jurisdiction to prevent the violation of the Constitution and law in filing the boundaries of the new counties, and in securing to the old counties out of which the new one is carved so much of their territory as is declared inviolable, or by protecting such other rights as are guaranteed by the organic law.</p> <p>' Cases cited: Ford v. Farmer, 9 Hum., 152; Maury County «. Lewis County, 1 Swan, 236.</p> <p>Gonst. 1870, Art. 10, §4.</p>

<p>WrLli. Condition subsequent. Sow estate relieved from, breach of. Waiver. A clause in a testator’s will was as follows: “ I give and bequeath to my beloved son, Jesse Jones, the premises whereon I now reside, with all its appurtenances, containing four hundred acres of land, be the same more or less, provided that the said Jesse Jones continue on, and take care of myself and well beloved wife, Elizabeth Jones, during our natural lives. But should the said Jesse Jones fail so to do, I direct the above named premises be for a home and support for my beloved wife, Elizabeth Jones, and at her decease, to be sold, and the proceeds to be equally divided between all my children, etc.”</p> <p>Seld, that the devisee took a vested estate, subject to be divested by breach of the condition subsequent in favor of his mother, but that it was competent for her to waive the performance of this condition, by uniting with him in conveying the property, or otherwise, in which event such action would operate as an estoppel upon her, and relieve him from the consequence of a breach of the condition upon which he held the title, as to so much of the property as was embraced in the joint conveyances, but as to land sold by him and the executor without her assent, the devise over took effect, and may be enforced, in favor of the children not concluded by the Chancellor’s decree sustaining the validity of the sale.</p> <p>Authorities cited: 1 Wash. Beal Prop., page 468, §4; 20 Barb., 465.</p>