Volume 69 — Tennessee Reports

<p>PROM W ASHING TON.</p> <p>Appeal from the Chancery Court at Jonesboro. H. C. Smith, Ch.</p>

<p>Actions. Next friend. Who may o.ct as such. And by what means procured. It is legal for one who could have acted as next friend to employ and indemnify another to allow the use of his name as such, and the undertaking will be maintained.</p>

<p>Lien. Attorneys not entitled to. When. The solicitor of the defendant, in a suit to establish a resulting trust in the client’s land, is not entitled to a lien on the land for the compensation due him for his professional services, although the suit be successfully defended.</p>

<p>FROM SEVIER.</p> <p>Appeal from the Chancery Court at Sevierville. O. P. Temple, Ch.</p>

<p>EBOM JEEEEBSON.</p> <p>Appeal from the Chancery Court at Dandridge. H. C. SMITH, Ch.</p>

<p>FROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville. H. C. Smith, Ch.</p>

<p>1. Chancery Practice. Attachment. Order of Publication. An order of publication in an attachment case in chancery which fails to show that the suit was by attachment of property is fatally defective, and a decree rendered thereon, without appearance of the defendant, is void.</p> <p>-2. Same. Same. A judgment at law in a suit commenced by summons, and also by an original attachment sued out at the same time, is void when it appears that the summons was returned not found, and when the record fails to show, either by evidence embodied therein, or by an entry upon the docket or minute book, or by a recital in the judgment, that publication had been made under the attachment in accordance with the requirements of the statute.</p> <p>3. Ejectment. Statute of limitations. Laches. In an ejectment bill, laches cannot be imputed to the complainant by any lapse of time short of that which would bar an action of ejectment at law.</p> <p>4. Same. Accounts for rents, etc., allowed. When. As an incident to the complainant’s recovery of land in an ejectment bill, or bill to remove-a cloud from the title, an account of the rents-and profits received by the defendant, and of permanent improvements, will be ordered.</p>

<p>FROM COCKE.</p> <p>Appeal in error from the Circuit Court of Cocke county. J. G. Rose, J.</p>

<p>FROM SEVIER-</p> <p>Appeal from the Chancery Court at Sevierville. O. P. Temple, Ch.</p>

<p>Chancery Practice. Devastavit. Bill on administration bond. Will not lie. When. After an administration account taken in an insolvent cause, and the adjudication upon the claims of creditors, and a sale of lands to pay debts in excess of assets, the devisees of the decedent, parties to the administration suit, cannot sustain a bill on the administration bond as for a devastavit so long as the decrees in the former suit remain in full force.</p>

<p>1. Chanceby Pbactice. Rartnership. Account as to, not allowed. When. On bill filed to wind up a specified partnership, the defendant cannot in his answer insist on and have an account of a previous partnership nowise connected with the one involved in the original bill.</p> <p>'1. Same. Same. Not allowed by cross-bill. When. It would be equally improper to allow such investigation and account by cross-bill, unless it stands on some independent equity, such as an equitable set-off on grounds stated sufficient to entitle the party to that relief on settled principles of equity jurisprudence.</p> <p>Same. Same. Reference to clerks reprehended. When. Practice of referring cases to clerks to report and state accounts between parties, before any adjudication of the rights of the parties by the court, emphatically disapproved.</p>

<p>1. Venue. New county. The venue of a pending suit can only he changed hy express statutory authority strictly pursued, and, therefore, an order to transfer a cause to a new county is void, which recites that most of the complainants and defendants are residents of the new county, while the statute requires that all of them shall be such residents.</p> <p>2. Bxnii Of Keyiew. New matter. Evidence must be stated. To sustain a hill of review for new matter, it is not sufficient to allege that complainant expects to prove certain facts; he must state the evidence to establish them.</p> <p>3. Same. Errors apparent, Evidence cannot be looked to. Errors apparent for which a bill of review will lie are errors patent on the face of the pleadings and decrees, without looking to the evidence, or to any new evidence.</p> <p>4. ADMINISTRATOR. Sale of realty for partition. Heir liable. When,. Where the administrator joins the heirs in a petition to sell land for partition, admitting that he has personal assets sufficient to pay debts, he and his successors in office cannot afterward subject the land itself to the payment of debts, but can only hold the heirs liable for the value of the land sold, each heir for his share.</p> <p>5. Sale oe Minor’s Realty. Cannot be impeached. When. Purchaser bona fide. A decree for the sale of an infant’s land in a case to which he is a party, and over which the court has jurisdiction, cannot be so impeached by the infant, either by a bill of review or an original bill, as to prejudice the interests of a bona fide purchaser for value, and without notice.</p>

<p>Attachment. Lien. Bankruptcy. Filing a bill to appropriate specific-property to satisfy judgment, after return of nulla Iona, fixes a lien or charge on said property not displaced or affected by adjudication in bankruptcy within two months after filing said bill. Only attachments on mesne process, and like process, is dissolved by bankrupt law, so that an attachment in such cases dissolved, still leaves the property bound by the charge fixed on it by filing the bill.</p>

<p>PROM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox county. E. T. Hall, j.</p>

<p>Chancery Practice. Order dismissing hill for neglect to prosecvie notice. A peremptory order of court dismissing a chancery suit for the neglect of the complainant to prosecute it, without notice, and without giving the party reasonable time to proceed, is erroneous.</p>

<p>PROM JEFFERSON — MOTION.</p>

<p>EROM KNOX — MOTION.</p>

<p>FROM JEFFERSON.</p> <p>Appeal from the Chancery Court at Dandridge. H. C. Smith, Ch.</p>

<p>EROM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox. county. E. T. Hall, J. '</p>

<p>PROM GREENE — MOTION.</p> <p>Appeal in error from the Circuit Court of Greene county; E. E. Gillenwaters, J.</p>

<p>CONSTITUTION AX. Law. Incorporated institutions of learning. General law. The act of 1877, ch. 23, making it unlawful to sell any intoxicating beverage within four miles of an incorporated institution of learning, is not deprived of the character of a general law by a section providing that it shall not apply to the sale of such liquors within the limits of an incorporated town.</p>

<p>FROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesboro. H.' C. Smith, Ch.</p>

<p>EROM JEFEERSON.</p> <p>Appeal from the Chancery Court at Dandridge. H. C. Smith, Ch.</p>

<p>1. Clerk and Master. Not liable. When. Where funds are loaned in pursuance of a decree, and no order made for their collection, neither the clerk and master nor his sureties are liable.</p> <p>2. Same. Commissioner. Not allowed to receive anything but money. The cleric and master, as commissioner, is not allowed to receive anything but money on the purchase price of lands sold, and therefore his sureties cannot be held to account for sums paid in claims and tax receipts.</p> <p>8. Same. Reappointment. Liability of sureties upon different bonds. When a clerk and master is reappointed and executes his bond as commissioner and receiver, the sureties on his first bond are only liable for money received from sale of land prior to the execution of his second bond, and the sureties upon his second bond are liable for money received afterwards.</p>

<p>PROM BLOUNT.</p> <p>Appeal from the Chancery Court at Maryville. O. P. Temple, Ch.</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. O. P. Temple, Cb.</p>

<p>PROM HAMBLEN.</p> <p>Appeal from the Chancery Court of Morristown. H. C. Smith, Ch.</p>

<p>EJROM GRAINGER.</p> <p>Writ of error from judgment in the Circuit Court of Grainger county. J. G. Rose, J.</p>

<p>MOTION TO RESCIND AN ORDER OE DISMISSAL.</p>

<p>1. AuMnilSTBATioir. Ooimiy Court. Duly of party applying to administer_ While the County Court may, in its discretion, allow a reasonable time during the term for giving bond for administration, yet it is the duty of the party applying to administer, especially when contest is anticipated, to bring his sureties with him, and be ready to comply with the law. If he fails to do so, the court may well appoint other parties to administer, and the applicant cannot complain of said new appointment.</p> <p>2. Pjkactice. Incompetency of Judge. When objection must be made. A. party having failed to make objection to a Judge, or judicial officer, on the ground of relationship, at the hearing, cannot urge such objection on appeal as ground for reversal of the action of the lower court.</p>

<p>FROM COCKE.</p> <p>Appeal in error from the Circuit Court of Cocke county. J. G. Rose, J.</p>

<p>Register. Fees for registering decrees. Under the act of 25th November, 1871, a register is entitled for registering decrees, to 75 cents for the first three hundred words, and 10 cents-for each additional hundred words.</p>

<p>Supreme Court Practice. Motions. Injunction bonds. The Supreme-Court cannot undertake to act separately upon each of the errors supposed to have been committed by the court below, and, therefore, a motion made and denied in that court in relation to the character of an injunction bond cannot be renewed in this court.</p>

<p>1. Administbatob. Scire facias Defense thereto. To a seire facias sued out by a judgment creditor, to subject the realty descended to the heir, the latter may make all the defenses that were, could or should have been made by the personal representative in the original action, -the judgment against the personal representative being only prima facie evidence of indebtedness against the heir. He may also make an issue with the personal representative as to mismanagement and waste of personalty.</p> <p>2. Same. Plea of plane admmistravit. Heir. Where there is no plea of fully administered in the original action, there can be no other proceedings at law against the heir.</p> <p>5. Same. Sale of realty. Statute of limitations. Where a creditor commences suit against the personal representative within two years and six months from his qualification, and prosecutes diligently to judgment, the statute of limitation of seven years is not a bar to a . bill filed more than seven years after the death of the debtor, alleging exhaustion of personalty and seeking a sale of the realty in satisfaction of the judgment.</p> <p>4. Same. Statute of limitation. In this character of proceeding there is no express limitation in favor of the heir. There is no rule by which he may protect his estate at any length of time from the death of the ancestor, except by construction he has the benefit of the limitation of two and a half or three and a half years (as the ease may be), prescribed for suits against the personal representative.</p>

<p>EROM HANCOCK.</p> <p>Appeal from the Chancery Court at Sneedville. H. C. Smith, Ch.</p>

<p>FROM MARION.</p> <p>Appeal from the Chancery Court at Jasper. W. M. Bradford, Ch.</p>

<p>MOTION TO DISMISS.</p>

<p>Stay op Execution. Appeal. Personal right. The time allowed for appeal or stay of execution gives a right personal to the defendant, or person against whom the judgment is, and cannot ordinarily be taken advantage of by third persons.</p>

<p>PROM MONROE.</p> <p>Appeal in error from the Circuit Court of Monroe county. E. T. Hall, J.</p>

<p>FROM MONROE.</p> <p>Appeal in error from the Circuit Court of Monroe county. J. B. Hoyle, J.</p>

<p>Stookholbeks. iSale of Stock. Not liable. Stockholders, or holders o£ shares in a company incorporated, cannot be held liable to pay calls on stock to discharge debts of the corporation incurred by a new organization of the corporation, after they had bona fide sold and disposed of their stock and interest in the corporation.</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville.. O. P. Temple, Ch.</p>

<p>'Vendor’s Lien. Agreement in note. An agreement, embodied in a note for land, which constitutes the note a lien on the land by a sufficient description to identify it, is such an equitable lien between the parties as will pass with the note.</p>

<p>FROM KNOX.</p> <p>Writ of error from the Chancery Court at Knoxville. O. P. Temple, Ch.</p>

<p>Appeal Bond. Pauper oath. Where an appeal is granted upon the party giving bond as required by law, the clerk has no power to accept the pauper oath in place of the bond.</p>

<p>Tax Sale. Purchaser. No lien for re^paym&it. A purchaser of land at tax sale acquires, by the purchase alone, no such lien as can be enforced in equity for the re-payment of the money paid.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesboro. H. H. Ingersold, Sp. Ch.</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. O. P. Temple, Ch.</p>

<p>Municipal Bonds. Election. Irregularities in the election or mode of issuance do not affect validity. Bonds issued by a municipal corporation, under an' act of the Legislature ivhich authorizes their issuance, if upon an ordinance of the municipal boa.rd submitted to a vote of the qualified voters at an election held under the direction of the board, a majority of those voting should not decide against the proposition, are valid, if an ordinance, although loosely worded, is passed in favor of the'issuance, and the board find that an election was held and a majority of the votes cast was in favor of the issuance, and their validity will not be affected by irregularities in the election or the mode of issuance.</p>

<p>FROM MONROE.</p> <p>Appeal from the Chancery Court at Madisonville. ~W. M. Bradford,' Ch.</p>

<p>EROM CAMPBELL.</p> <p>Appeal in error from the Circuit Court of Campbell county. D. K. Young, J.</p>

<p>Cbimiítau Law. Extortion. Municipal Officer. An officer of a municipal corporation who demands and receives any greater fee for performing any duty or service than is allowed by ordinance of the corporation, is guilty of extortion.</p>

<p>'CítrimrAii Law. Plea in abatement to indictment. When to be filed. A plea in abatement to an indictment must be filed at the first term of the court at which an appearance is entered, and cannot be filed after a general continuance.</p>

<p>1. TAX Coi/kector,. Official band. Securities not released. When. An order of the County Court, entered upon its minutes, giving revenue collectors an extension of time for collection of taxes and settlement, does not release the securities upon his official bond.</p> <p>2. County Court. Powers of. County Courts have no power to change the law as to the duties and liabilities of revenue collectors even with regard to county revenue. It has power to make contracts and control the revenue of the county where authorized by law to do so, but not otherwise. It cannot change the law as to the time when the collector shall render his account and pay over the money.</p>

<p>1. Chancery Practice. For good cause shown, the Chancellor has discretion to allow an answer to a bill to be withdrawn, after proof taken, and permit a demurrer to be filed.</p> <p>2. Attachments. jVcm-mitfoife. The act of 1870-71, oh. 122, sec 1, is amendatory of sec. 3455 of the Code. If the creditor and debtor, or the widow and heirs of the debtor if he be dead, are residents of the same State and non-residents of Tennessee, attachment will not be granted upon the property of the debtor for any of the causes enumerated in sec. 3455 of the Code.</p>

<p>Gkiminai, Law. Murder. Old grudge. Malice. If an old grudge be proven, and there is no new or sufficient legal provocation at the time of killing, yet it will be only murder in the second degree if the killing was the result of malice suddenly produced at the time without premeditation.</p> <p>Case cited: Copeland v. The State, 7 Hum., 494.</p>

<p>Writ or Error. Application. Transcript. To entitle a party to a writ of error lie must not only make application for the writ within the time allowed by law, but must also, within that time, file a transcript of the record.</p> <p>Cases cited : Olaibot'ne v. Crocket, Meigs R., 607; Moody v. McNeiUy, 3 JEEeis., 544, 1 Jere Baxter, 342.</p>

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. J. B. Hoyle, J.</p>

<p>1. Tax CoIiT.hctor. Securities. Liability. The act of 24th March, 1875, extending to tax-payers further time for the payment of taxes for the year 1874, and providing that sureties upon bonds previously executed should appear in the County Court and acknowledge their willingness to remain bound as securities, otherwise a new bond should be taken, does not in any manner change the duties of the tax collector as to the taxes of 1875. The securities upon a bond executed in 1874 for the entire term of office, will be held liable for the default of the collector for the taxes of 1875, though they failed to acknowledge their willingness to remain bound, as required by said act, and a new bond was taken for the taxes of 1874.</p> <p>2. Same. Same. Liability for dog tax and penalities collected. The collector and his securities are liable for the “dog tax” collected, though the law imposing it be unconstitutional; and for penalties collected, though the act imposing the penalties is repealed.</p>

<p>FROM SCOTT.</p> <p>Appeal in error from the Circuit Court of Scott •county. ¥m. 'Cullom, Sp. J.</p>

<p>APPLICATION POR WRIT OP ERROR.</p>

<p>FROM JEEEERSON.</p> <p>Appeal from the Chancery Court at Dandridge. H. C. SMITH, Ch.</p>

PROM MONROE. This was a motion against Wilson, tax collector, and his sureties, for failure to pay over county revenue, in the Circuit Court of Monroe county. E. T. Hale, J., presiding. There was judgment against Wilson and his sureties, who appealed.

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville., O. P. Temple, Ch.</p>

<p>1. Ohioimai, Attachment. What the bill must charge. In proceedings-under original attachment the hill must alledge one or more of the grounds for granting the writ.provided by the statute, in the language of the statute, or in words of equivalent import. Two or more of the grounds may be stated in the alternative, but if the bill charges that some of the causes of attachment exist, or that some other fact is true which is not a ground for attachment, it is not equivalent to any positive charge that any cause for attachment exists, and the proceedings thereunder are subject to impeachment.</p> <p>2. Same. When charge not sufficient. Void proceeding. A charge of non-residence, removal, or absconding from the State, is not supported by the fact that the defendant was beyond the State as a follower of either cause during the civil war, and separated from the place where the court was held by hostile lines of the opposing armies. A decree-obtained in this way against a defendant may be set aside for fraud, in a new proceeding instituted for that purpose.</p> <p>3. Same. Void proceedings. Sow ratified. Where property is sold under void proceedings the defect may be cured by the subsequent ratification of the party interested. A sale of property under an attachment bill against a party who, at the time the bill was filed, was beyond the State as a Confederate Senator, is void ; but complainants having by another proceeding, to which defendant was a party, sought to reach other property of the defendant, in discharge of the unsatisfied balance of the decrees obtained under the void proceedings, and the defendant having answered, and with full knowledge of the facts, recognized the sale under that proceeding; Held, that he could not af-terwards impeach it.</p>

<p>1. Cobb Oonstbtjed. Sec. 1944a. Usury. What not. Under sec. 1944a of the Code, a verbal contract for interest at ten per cent per annum is invalid, not because of illegality, but because it cannot be enforced unless stipulated for in a written obligation.</p> <p>2. Same. See. 1944d. The taking of interest in excess of the rate allowed under sec. 1944a constitutes an indictable offense, but a verbal promise to pay the rate allowed thereby does not.</p> <p>3. Evidence. Variance between declaration and proof. When not material. Where the variance between the decía,ration and proof consists in proving more than is alleged, if the matter superfluously proven is innocent in itself, and does not contradict any essential allegation, the variance is not material.</p> <p>4. Same. Same. Same. In a suit to recover money deposited in a bank, payable on demand, the proof showed, though the declaration did not aver, a verbal promise by the cashier at the time of the deposit to pay ten per cent interest on the same. The plaintiff seeking to recover the sum actually deposited and not the interest. Held, that he was entitled to relief.</p>

<p>SURETYSHIP. Discharge. Agreement for delay. Consideration. Usury. An agreement for further delay made between the creditor and principal debtor after the maturity of the note, in consideration of an additional sum to be paid by the debtor over and above the lawful debt and interest, is not binding upon either party, although the additional sum stipulated be actually paid within the time of delay agreed upon ;■ and a surety will not be discharged by such agreement, although made without his knowledge or assent. The amount paid will be regarded as a payment upon the lawful debt.</p>

<p>FROM JEFFERSON.</p> <p>Appeal from the Chancery Court at Dandridge. H. C. Smith, Ch.</p>

<p>FROM GRAINGER.</p> <p>Appeal in error from the Circuit Court of Grainger county. J. G. Lose, J.</p>

<p>Appeal by Writ of Error. Security. What required. Upon appeal or writ of error to this court, the law, which requires security, contemplates security additional to what the party had by the judgment below, and therefore, upon writ of error by two of three parties to the judgment below, the other judgment debtor alone on the bond, will not meet the requirements of the statute.</p>

<p>PROM CAMPBELL.</p> <p>Appeal from the Chancery Court at Jacksboro. O. P. Temple, Ch.</p>

<p>Public Road. Bight of way. User will not create. When. Mere user by permission of land-owner of a way over bis land, cannot establish a right to a public way, unless such user is shown-by facts and circumstances showing the user by the public under a claim of right, and not simply by permission, actual or .tacit, of the owner. The fact that the road had never been worked, repaired, taken control of by the public, or overseers appointed, is an important element of evidence against such claim of right, though not conclusive.</p>

<p>Adhinistbatob. Removal from State. Statute of limitation. The third section of the act of 3865, ch. 10 (Thompson & Steger’s Code, sec. 2762 b), includes in its application administrators who remove from the State before the expiration of the time limited for bringing action against them, notwithstanding the action accrued against the intestate in his lifetime.</p>

<p>PjRrsrcrpAL and Subety. Bills and notes. Accommodation endorser. A judgment by motion, in favor of an endorser, is void which fails to • show that he was an accommodation endorser.</p>

<p>1. Powbb oe Attorney. Party not all-owed to deny. Estoppel. When. A party signing power of attorney with another, whose name is signed by attorney, can not avoid his or her own act, by asserting want of power in the attorney to make the signature, while the principal himself makes no objection to the validity of the act.</p> <p>2. Homestead. Married women. Land descended to husband from his father subject to debts due from the ancestor, created before adoption of Constitution of 1870. Husband, in 1872, gave power of attorney to sell for payment of such debts, in which wife did not join, and land sold.' Held, she could not assert homestead in said lands.</p> <p>3. Same. Shme. Under act of 1869-70, Code, sec. 2486a, sec. 2 and 6, a mrrried woman abandoned by lier husband, cannot avoid a sale made under power given by her because of failure of husband to join in said power.</p>

<p>EEOM JEEEEESON.</p> <p>Appeal from the Chancery Court at Dandridge. H. C. Smith, Ch.</p>

<p>Pauper Oath. How taken. When the pauper oath has been taken improperly before a justice of the peace, on appeal to this court, the party will be allowed to take the oath here. This is analagous to the principle laid down in 11 Hum., 135, that the oath is a substitute for the bond.</p>

<p>Bubning- Woods. Secs. 1703-4 of Gode contirued. A person seeing a fire on his own premises, likely to consume fences or other property, and cannot reasonably expect to subdue it otherwise than by firing against it, may do so without notice, and will not be subject to the penalty and damages prescribed in sec. 1704 of the Code.</p>

<p>Asr order of the court appointing a receiver of a Turnpike Company, in. a suit between the stockholders and officers of the company, with power to collect incomes and debts, and apply the proceeds to the repair of the road and the payment of the salaries of the officers, is not such an interlocutory order or decree as may be superseded under the-Code, sec. 3933.</p>

<p>1. Banks. Charter. Capital Stoeh cannot be paid in notes of Stockholders. A charter requiring the capital stock of a banking corporation to he paid in coin, or in notes or bills which the corporators or directors may deem equivalent to or better than specie, does not authorize payment of said stock in the notes of the stockholders or directors, mutually endorsed.</p> <p>2. Same. Notes. Statute of Limitations. Such notes will be held as valid obligations for the protection of the issues of the bank and its genera] creditors, will bear interest and be subject to the statute of limitations, and when paid or collected will be credited as payments pr* tanto on the unsatisfied stock.</p> <p>S. Same. Stock. Statute of limitations do not run until a call is made. Until the stock subscribed has b.een actually paid up, it will be considered as a debt subsisting independently of the notes executed i* payment thereof, as to which the statute of limitations begin to run from the time a call is made for the payment of the stock.</p> <p>4. Stock. Purchaser of unpaid stock Liability. A party purchasing th* unpaid stock of another in a banking corporation, stands in the shoes of the vendor, and as the owner thereof becomes entitled to its benefits and subject to its burthens.</p> <p>5. Bank. Assets. Liability of Stockholders Certain persons purchased the charter of a banking corporation, paying part cash and executing their note for the balance. After reorganizing the bank, the vendor of the charter agreed to accept stock for his debt, which was accordingly issued to him, and the note was transferred to the bank and cancelled without payment. The cash payment to him, as well as the note, was charged to the bank. Held, that the note so transferred was the property of the bank, was not subject to cancellation without payment, and was assets of the bank, liable to the claims of its creditors ; and that the cash payment was improperly charged to the bank; and inasmuch as the stock issued to the vendor was intended to go to him as paid Up stock, the stockholders for whose benefit the charter was pui’chased are liable for its satisfaction in proportion to the amount of their respective subscriptions.</p> <p>■6, Same. Stone. Same. The note of a third party deposited by a stockholder of a bank in payment of his stock and subsequently collected by him, will be treated by a court of equity as the property of the bank, and such stockholder will be charged with the proceeds and interest from the time it was collected, and upon payment his stock will be credited according to the arrangement made at the time it was so deposited.</p> <p>7. Same. XAMlities of Stockholders. Where the minutes of the proceedings of a corporation show an order for the opening of books for subscription to stock therein, and the amount taken by each subscriber is there distinctly set forth, and where it appears that such subscribers had been directors of the corporation and had the right of access to the book containing said statement — Held, bound by the record to the amounts there shown, although no actual subscriptions to stock were produced.</p> <p>8. Same. Stock will hear interest, when. In adj' usting the liabilities of subscribers to stock in a banking corporation, actual payments on stock will bear interest from the date at which they were made.</p> <p>Ü. Same. Officers. Purchase of property. An officer of a bank buying in property at execution sale for the bank debt for which it was sold, will not be permitted to claim the benefit of the purchase for himself where he used the debt for a time to pay his bid, and then without any corporate action to ratify the transactions, settled the debt with the bank. Property so purchased, is assets for the benefit of the creditors of the bank, and may be so applied, allowing the bank officer the proper credit for the amount actually paid by him in his settlement with the bank.</p> <p>10. Same. Stockholders. In adjusting the equities between the stockholders of a bank, those who paid their stock in notes of the bank, will b* allowed only what they paid for the notes.</p> <p>11. Notes. Endorsers. Statute of limitations. A court of equity will not allow the statute of limitations to operate as a protection to endorser» from liability on their endorsements, where it appears that their names were actively concealed by them from creditors actively seeking their remedy.</p> <p>12. Bank Charter. Reducing or increasing capital stock. In the absence of a clause in a bank charter authorizing a reduction of the capital stock to which it has been raised under a discretionary power to increase it, the question, as to whether any such power would exist could not be raised, unless it clearly appears that the corporation ordered the reduction to be made. Neither equivocal acts, nor in-inferences, nor unauthorized acts of a president or directors, will have the effect.</p> <p>13. Bank. Unpaid Stock. Where an amount of stock in a banking corporation exists subscribed and unpaid, and books are opened for the subscription of other stock for which a stock note is executed, the court cannot by construction declare the stock purporting to be subscribed a mere call on the old unpaid stock.</p> <p>14. Same. Same. Where, therefore, the stockholders of such a corporation ordered the books to be opened to increase the capital stock of the corporation a fixed amount, and authorized one of their uumber to give his and their note for the amount so increased in payment of the same, which he did, and subsequently, the stockholder so executing the note, instructed the cashier to reduce the stock by the amount thus subscribed, alleging the circulation issued upon it had been redeemed' — Held: that the stock could not be so reduced, and that the creditors of the bank were entitled to have the amount so subscribed paid up by the stockholders, the proceeds arising therefrom to be applied to the satisfaction of their claims.</p> <p>15. Same. Directors individually liable, when. Trustees. Directors of a banking corporation accepting securities in payment of its stock not authorized by its charter, are personally liable for the whole amount so accepted in breach of their trust. While those suffering such securities, however, inferior to those required by the charter, to be lost by the statute of limitations would, a fortiori, be subject to the same liability. Trustees, to whom the management of the bank had been confided, would be similarly liable for losses arising through their laches, especially in a case where the assets had been in their possession for years, and where they had been admonished to diligence and good faith by suits of creditors, to whom they had refused information as to the affairs of t’he bank.</p> <p>16. Trustees. Entitled to no compensation, when. Where trustees, to whom have been assigned the assets and property of a banking corporation for the benefit of its creditors, etc., have been guilty of gross miscon-conduct toward such creditors, refusing inspection of their hooks,, taking no steps to collect or distribute the assets, neglecting for years to sue upon the stock n'otes, loaning the only funds actually collected' to themselves and the stockholders, etc., such trustees are entitled to no compensation as against the noteholders and creditors of the bank.</p> <p>17. Same. Same. Public policy. As between the trustees and stockholders, the former having carried out the settled policy and wishes of the latter with reference to the management of the trust property, and1 having consulted their interests to the exclusion of the interest of creditors, a different rule might apply, entitling them to compensa.tion. did not a rule of public policy intervene, by which to prevent a collusion between corporations and their trustees detrimental to the ends of justice and good faith, trustees should be denied all compensation from any source, where, by misconduct and mala fides towards the public they have forfeited their claim to such compensation.</p> <p>18. Trustees. Their duties. The duty of a trustee of a banking corporation forbids the concealment of any fact from the noteholders and creditors which affects the value of their notes or debts, and requires them to disclose every fact that the creditor is concerned to know. It requires prompt distribution of cash assets, prompt notice to creditors to file claims, and a full recognition of the fact that they are equally the agents of the creditors to protect and to assist them, and of the corporation to husband and economically administer its resources.</p> <p>19. Banes. Note-holders entitled to priority. In the distribution of the-assets of a bank, under the laws of this State, the holders of the circulating notes are entitled to priority of payment, then the creditors.</p> <p>20. Attorney. Fees. For the prosecution of the bill and amended bill-filed to wind up the affairs of a banking corporation, and for valuable services rendered in the general litigation, counsel should be paid out of the aggregate recovery — all petitioning creditors who have come in to claim the benefit of the suit to contribute pro raid; while counsel who represent or perform services only for petitioning creditors, must be paid by their own clients out of the funds recovered for them.</p>

<p>1. Bill. Dismissal. Not res judicata unless upon its merits. The dismissal of a bill cannot be relied on as res judicata unless the bill was dismissed upon its merits.</p> <p>2. DECREE. Void. Imbecility of parties. A decree of sale by the Chancery Court will be set aside as void, upon a bill filed for that purpose, ■ where it appears that the defendant was of weak mind, incapable of transacting business, and unable to guard himself against the importunity or undue influence of complainant. The case of Craddock v. Cabiness, 1 Swan, 474, cited and approbated.</p>

<p>FROM JEFFERSON.</p> <p>Appeal in error from the Circuit Court of Jeffer-»on county. J; G. Nose, J'.</p>

<p>Pleading-. Action. Plea. At common law, in an action of quare clausum fregit, tbe defendant might justify under the plea of liberum tenemen-tum, and this is not changed by our statutes in reference to forcible entry and detainer.</p>

<p>FROM WILSON.</p> <p>Appeal in error from the Circuit Court of Wilson ■county. R. Cantrell, J.</p> <p>R. E. Thompson for Bass.</p>

<p>FROM BEDFORD.</p> <p>Appeal in error from tbe Circuit Court of Bedford county. W. H. Williamson, J.</p>

<p>Insurance Policy. Not assignable. When. A liusband -who takes out a policy of insurance on his life payable after his death to his “legal heirs,” cannot make a valid assignment of the policy to third persons, hut the insurance money will, on his death, go to his widow, children, and grandchildren who are the distributees of his estate, under the statute of distribution.</p>

<p>Practice. Principal. Surely. Pelease of. If a creditor take a mortgage from the principal debtor on sufficient property to secure his debt, and afterwards enter into a different agreement with such debtor and abandon the mortgage, such acts will discharge the surety, who may make the defense in a court of law and will not be compelled to resort to bill in equity.</p>

<p>FROM DAVIDSON.</p> <p>Writ of error from the Circuit Court of Davidson county. F. T. Reid, J.</p>

<p>County Court. Jurisdiction to sell lands to pay debts. The County Court has jurisdiction to sell laud to pay the debts of an estate where the insufficiency of the personal assets is stated in the bill, and the fact is shown by an administration account taken for the purpose, and having jurisdiction of the subject matter and the parties, mere irregularities will not avoid the proceedings.</p>

<p>1. Chancery Practice. Judgment creditor. A judgment creditor, who has exhausted his legal remedy by a return of milla bona on an execution to the county in which the judgment was recovered, may file his bill to reaclj,equitable personalty in another county.</p> <p>2. Same. Supplemental bill. New events or new matters which do not change the parties before the court, nor the rights and interests of the parties, but merely refer to and support the rights and interests already in the bill, and add a new means of holding the property in addition to the original title, may be brought before the court by a supplemental bill proper.</p> <p>3. Same. Demurrer. Appeal. Although the rule of chancery practice, that a demurrer bad in part must be overruled altogether, has always been recognized in this State, yet this court will sometimes, upon an appeal from a decree on the demurrer, determine a cxuestion involved, where the decision would greatly nan-ow the litigation, and is manifestly for the interest of the parties.</p> <p>4. Judgment Creditor. Laches. Loss of lien. A judgment creditor who fails to issue execution for five years after the rendition of his judgment, when there is no legal impediment to its issuance, will thereby lose the benefit of the lien on equitable personalty recognized by the Code, sec. 2985, upon the registration of a memorandum of the judgment within the time prescribed.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Shelbyville. A. S. Marks, Ch.</p>

<p>MOTION TO DISMISS.</p>

<p>FROM BEDFORD.</p> <p>Appeal in error from the Circuit Court of Bedford county. W. H. Williamson, J.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Chancery Court at Shelbyville-A. S. Marks, Ch.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal in error from the Criminal Court of Rutherford county. T. N. Frazier, J.</p>

<p>FROM BEDFORD.</p> <p>Appeal in error from the Circuit Court of Bedford county. W. H. Williamson, J.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Lebanon. H. H. LurtoN, Ch.</p>

<p>■County Court. Levy of taxes. A majority of the Justices composing the County Court are empowered to levy a tax, and it is not essential to the validity of such levy that a majority of the Justices of the county shall vote affirmatively for such levy.</p>

<p>• FROM BEDFORD.</p> <p>Appeal in error from the Circuit Court of Bedford county. W. H. WilliamsoN, J.</p>

<p>Railroad. Duty of Engineer. If a train is moving at such a rate of speed that to reverse the engine would endanger the lives of the passengers, or those on the train, the engineer is not required to do so, although, thereby, the accident or collision might have been prevented.</p>

<p>1. RaimsoAD. Contributory negligence. ' Where an accident has occurred by a non-compliance on the part of a railroad company with sections 1166-8 of the Code, contributory negligence on the part of the person injured, cannot be pleaded in bar to the action, yet it may he relied on in mitigation of damages. It is the duty of the court to charge the jury, that if they find the party injured was guilty of negligence, they should diminish the damages according as they may find his negligence to he slight or gross.</p> <p>2. Same. Keeping a loolccrut. That the statutes evidently mean that some person shall he so situated on the lookout, that he can see ahead. If the engineer cannot see, the fireman must; if the fireman cannot, the engineer must.</p>

<p>FROM BEDFORD.</p> <p>"Writ of error from the. Circuit Court of Bed-ford county. W. H. Williamson, J.</p>

<p>PROM BEDFORD.</p> <p>Appeal from the County Court of Bedford county.</p>

<p>Sobeesedeas. Will not be granted. When. An order of court appointing a receiver of lands conveyed in trust for creditors, in a suit brought for the foreclosure of the trust, cannot be superseded under the Code, sec. 3933.</p>

<p>FROM BEDFORD.</p> <p>Appeal from the Chancery Court at Shelbyville. A. S. Makes, Ch.</p>

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

<p>Public Schools. Levy of tax by school districts unconstitutional. So much of the act of March 6, 1873, entitled “An act to establish and maintain a uniform system of public schools,” as confers upon the school districts of the several counties of this State power to levy and collect taxes for common school purposes, is unconstitutional and void, nor is the result changed by designating them incorporated towns.</p>

<p>PETITION TO ATTACH EOR CONTEMPT.</p>

<p>Costs. State not liable for. When. The costs with which the prosecutor has been charged in a proceeding against a party to keep the peace, cannot, upon the return of an execution nulla bona, be adjudged against the State or county.</p>

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

<p>1. Trust Assignment. Estoppel. Subrogation. Where a surety altad;» a trust assignment of his principal for fraud, the benefits of which are accepted by the creditor, and the assignment is sustained, the surety is not estopped by such action from the right of subrogation to the creditor whose claim has been satisfied for so much thereof as he may have paid.</p> <p>2. Same. Who entitled to subrogation. A surety paying a debt of his principal secured by mortgage or deed of trust, is entitled to be substituted to the creditor’s interest or lien under the mortgage or trust. Voluntary payments made by one not bound to pay a debt for which another is primarily liable, do not fall within the'rule.</p> <p>3. Same. Same. What creditors may not object. Generally a surety is not entitled to the remedies of the. creditor upon property conveyed in trust by his principal until he has fully paid the debt, and in such cases the creditor is alone entitled to hold and control the debt and the remedies for its recovery; but the creditors in a trust deed, other than the one to whom the surety is bound, cannot object to any arrangement between such creditor and surety, by which the latter is substituted to the rights and remedies of the creditor under the assignment, whether the surety has entirely satisfied the debt or not.</p>

<p>Bond. 2b indemnify against incumbrance. Who may enforce it. A court of' equity will make the party immediately liable who is or may be ultimately made liable.</p> <p>Case. At a chancery sale of the lands of W. Ii. Peace, deceased, T. C. Peace became purchaser, and left unpaid part of the purchase money, for which alien was retained; he sold the land to Burwell by title bond, and held B’s notes for the purchase money. Burwell filed a bill charging the existence of the incumbrance, and praying to have the collection or transfer of his notes enjoined until the incumbrance should be removed. To obviate this difficulty Peace executed to Burwell a bond with Golliday and Tarver as sureties, binding him to make Burwell a title free from incumbrance, when it could be ascertained by proper account -the balance of purchase money due the Peace heirs, and to indemnify Burwell from loss. Burwell abandoned his bill, and the entire purchase money due from him to Peace, has either directly or indirectly been satisfied. Burwell sold the land by title bond to Smith and Goldston, receiving payment in full. The land has since been held liable for a balance of unpaid purchase money due from T. 0. Peace to the Peace heirs, and Smith and Gold-ston have paid off the same. Held, that upon a bill filed for the purpose, making Burwell also defendant, they have the right to recover the sum thus paid directly from Peace and his sureties, Golliday and Tarver, upon the bond referred to.</p>

<p>1. Magistrates. Committing Court. Duties. A party oliarged with murder, has the right to waive an examination before a committing court, and it is not, by law, made the duty of the magistrate in such a case to examine the witnesses and reduce their testimony to writing.</p> <p>2. Mandamus. Not the proper remedy. When. Mandamus is not the proper remedy for such refusal of the magistrate to examine the witnesses and reduce their testimony to writing, even if by law required to do so, after the party has, by judgment of the committing court, been committed to jail.</p>

<p>G-tjabdians. The order of liability of sureties. Under the provisions of the Code, the renewal bonds of a guardian are cumulative as to the ward, but the sureties on the several bonds are liable, as between themselves, in the inverse order in which the bonds are executed.</p>

<p>1. Chancbuy Practice. Bills. Construction. When the language of a bill is susceptible of a limited or enlarged construction as to its objects and extent of relief sought, but the subsequent proceedings show that the complainant, the court, and the defendant construed the words in the enlarged sense, that meaning will be considered as the one intended.</p> <p>2. Executor. Is a commissioner. When. If the executor of the will which authorizes him to sell land, come into court for the purpose of having the will construed, and, in pursuance of an order made to secure the forthcoming, accounting for, and proper distribution of the proceeds of sale, enters into bond with security for the faithful performance of the orders and decrees of the court in and about the land, moneys and means, and to pay out the proceeds to the parties entitled, lie thereby becomes a commissioner of the court, and no payment will be good which is not authorized in advance or sanctioned by a subsequent.order.</p> <p>3. Same. Special commissioner. Bow sureties me made liable. If the executor, who thus comes into court and sells the land as special commissioner, dies before final decree, the defendants or their representatives may (ile a bill of supplement and revivor, in the nature of a cross-bill, to have the benefit of tiie proceedings, and to hold the executor, as their special commissioner, and his sureties liable for the proceeds of the land sold.</p> <p>4. Sa me. Hume. Puyvw.nl by commissioner to himself us administrator without sufficient bond will not be presumed. Equity will never consider that as done which ought not to have been done, as, for example, that a special coinmis-ioncr to sell land had paid the proceeds of sale to himself as administrator, when his bond in the latter capacity was insufficient to cover the fund.'</p> <p>■5. Same. Distributees. Administrator de bonis non not a necessary parly. When. After an administrator of an estate has acted as sncli for seven years, and, upon hill filed by the distributees against his personal representative, a balance has been found coming to them over ( all allowances for debts and expenses, the presence of an administra-1 V tor de bonis non will be dispensed with, even where the bill seeks to ' resell other assets not reduced to possession by the original administrator, no objection having been raised by the pleadings to the recovery by the distributees.</p>

<p>FROM DICKSON.</p> <p>Appeal from the Chancery Court at Charlotte. G.. H. Nixon, Ch.</p>

<p>FROM WILSON.</p> <p>Appeal from the Chancery Court at Lebanon. J. E. Bailey, Sp. J.</p>

<p>The State is not entitled to recover as costs, against the successful party, the tax upon the unsuccessful party imposed by sec. 551 of the Code.</p>

<p>PROM MONTGOMERY.</p> <p>Appeal from the Chancery Court at Clarksville-. C, W. Tyler, Sp. Ch.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from Chancery Court at Clarksville. C. "W. Tyler, Sp. Ch.</p>

<p>Redemption. Who are entitled to redeem. Under the Code, section 2127, the right of the purchaser of land at execution sale, ivho is also a judgment creditor, to advance his bid is continuous for twenty days, and if exercised at any time within that period, will render nugatory . a previous tender in redemption by another judgment creditor, and may be exercised by several separate judgment creditors, who join in the purchase, by advancing the aggregate amount of each of their separate judgments.</p>

<p>.1. Contraot. Compensation. Evidence. A physician who, at the request of a patient, agrees for a time to abandon his other practice and devote himself exclusively to the one patient, and does so, rendering unusual services, is not restricted in the amount of his compensation to the usual charges made by physicians charging by the visit, but, in estimating the amount of compensation, the witnesses may take into view the nature of the contract, and the fact that the physician would probably sustain loss in other practice, though his actual loss would not be a proper subject of consideration.</p> <p>% Supreme Court. Practice. Will not reverse for errors which do not injure the party. This court will not always reverse for errors in the admission of testimony. Where it can he seen that the error has not injured the party, the judgment will not be disturbed. Perfectly strict law and literal accuracy will not be required. The statute forbidding reversals except for errors affecting the merits, should have full force, and strong presumption should be made in favor of the correctness of the judgment below.</p>

<p>•Plea in Abatement. Relationship of grand juroi' to defendant. It is not a good plea in abatement to a presentment, that one of tbe twelve grand jurors making the presentment wTas connected with the defendant by-marriage.</p>

<p>1. Joint Indictment. Severance. Where two or more parties are jointly indicted, it is a matter of discretion with the court to permit a severance, and unless the discretion has been abused, the Supreme Court will not reverse for a refusal to permit a severance.</p> <p>2. Evidence. Witnesses. It is not error in the court to -refuse to allow a party to prove a fact when no witnesses were tendered, nor offered to be examined. Before this can be assigned as error, the witnesses should be present and introduced for such purpose.</p>

<p>FROM ROBERTSON.</p> <p>Appeal from the Chancery Court at Springfield. C. G. Smith j Ch.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal in error from the Circuit. Court of Montgomery county. J. E. Rice, J.</p>

<p>FROM</p> <p>Appeal in error from, the Circuit Court of county. N. W. McConnell, J.</p>

<p>Sureties; Upon notes for purchase money. Judgment having been rendered against the pin-chaser and his sureties on the first of four notes given for land at a chancery sale, the master was directed to issue execution, and, if the money could not be made,'to re-sell the land, partly for cash and partly on six and twelve months time, to pay the judgment “and the notes not due,” and the master did re-sell for less than the amount due from the purchaser, which sale was afterwards confirmed without objection. Heli, that the sureties, whose lands had been levied on before the master’s sale and sold shortly thereafter and before the confirmation, were not entitled, merely on the ground of suretyship, to have the proceeds of sale applied to the satisfaction of the judgment, and the sale under the execution set aside, by petition in the cause.</p>

<p>1. Railroads. Requirements on leaving depot. The court charged the jury-that it was the duty of the railroad company to blow the whistle at short intervals all the ivay from the depot to a crossing. Held, no error.</p> <p>2. Same. Sections 1166, 1167 construed. Code, sec. 1166 and sub-sections are all one statute, and the words, ‘‘ these provisions,” in sec. 1167, has reference to all' the sub-sections of sec. 1166, and is not limited to sub-sec. 5 in regard to obstructions on the road.</p>

<p>Ybndob’s Lien. Notes. Equality of. Notes given for the purchase money of land, secured by a lien on the land sold, are entitled to equality of satisfaction, without reference to the time of their maturity or assignment, and this rule is not affected by the provisions of the Code, sees. 3563, 3566.</p>

<p>EROM SUMNER.</p> <p>' Appeal in Error from the Circuit' court of Sumner •county. J. C. Guild, J.</p>

<p>Homestead. Against heirs. A widow whose husband died in 1871 is entitled to dower and homestead in the lands of her husband by see. 6, act of 1870, Code, seo. 2119a, and that against the heirs of her husband or his assignee, as well as his creditors.</p>

<p>Bototdabies. Middle of a stream,. Island. In the conveyance of land on a creek a call for one-half the creek, or for a line down the center of the creek with its meanders, carries title to the middle of the main branch if the stream is divided by an island into two unequal branches.</p>

<p>PROM SUMNER.</p> <p>Appeal in error from the Circuit Court of Sumner county. J. C. Guild, J.</p>

<p>FROM SMITH.</p> <p>Appeal in error from the Circuit Court of Smith county. N. W. McConnell, J.</p>

<p>Guardian Bond. Release of surely. The securities upon a guardian bond are not released by the execution of another bond by the guardian, upon order of the court to give other and better security, nor are the sureties upon the last bond primarily liable.</p>

<p>Guardian and Ward. Act of 1875 construed. A guardian was appointed in 1851 and made a settlement in 1875, showing an indebtedness to the ward, who was then of age and married. Upon failure to pay, he was indicted under the act of 1875, for converting funds of the ward to his own use. Held: The settlement showing indebted- ' ness was not evidence that the funds was then in his hands, nor would a failure to pay over the ascertained indebtedness be a felony. The leading element in the offense created is the wrongful convertion.</p>

<p>FROM SUMNER.</p> <p>Appeal from the Chancery Court at Gallatin. C. G. Smith, Ch.</p>

<p>FROM SUMNER.</p> <p>Appeal from the Chancery Court at' Gallatin. H. H. LurtoN, Ch.</p>

<p>Constitutional Law. Salary of Adjutant General. The Constitution of 1870, Art. 2, section 17, provides: “ All acts which repeal, revive, or amend former laws, shall recite in their caption, or otherwise, the title, or substance of the law repealed, revived, or amended.” By act of 1873, ch. 49, the duties of Adjutant General are prescribed, and his salary fixed at $150 per month; by the act of 1877, ch. 171, entitled an act to defray the current expenses of the State for the next two years and three months, the salary of the Adjutant General is fixed at $100 per month, and it is provided that all laws in conflict with the act be repealed, and all laws providing' a salary for any officer named in the act in excess of the amount appropriated for said officer, are so modified as to conform with the act. Held, that the last act was a constitutional amendment of the previous act, to the •extent of lowering the salary of the Adjutant General.</p>

<p>1. Cbiminal Law. Challenges allowed Stale. In the'trial of a criminal prosecution in which the peremptory challenges of jurors by the State is limited to four, it is error to allow the State to exfieed that number, although two defendants are being tried under the same indictment, where the juror thus challenged by the State was accepted by the defendants, and the defendants afterwards exhausted theii challenges before the jury was obtained.</p> <p>2. Same. Evidence. In the trial of an indictment for forgery, it is error to allow a witness to be asked, over the objection of the defendant, whether he would state that the paper then shown him, being the paper on which the indictment was founded, was a forgery.</p>

<p>•PROM HUMPHREYS.</p> <p>Appeal in error from the Circuit Court of Hum-phreys county. J. E. Rice, J.</p>

<p>•FROM HUMPHREYS.</p> <p>Appeal in error from the Circuit Court of Hum- . phreys County. J. E. Rice, J.</p>

<p>It is the duty of clerks, except Supreme Court Clerks, to turn into the county treasury fees due witnesses, fees due officers for services as such, distributive shares of estates unclaimed, legacies, amounts due creditors of insolvent estates, proceeds of sale of real estate, fees to-guardians ad litem, surveyors, etc., which have been in their hands for more than two years.</p>