See PLEADINGS AND PRACTICE.
See HUSBAND AND WIFE; VENDOR'S LIEN.
See PLADINGS AND PRACTICE.
See PLEADINGS AND PRACTICE.
See PLEADINGS AND PRACTICE.
See CONTRACT; CORPORATION.
1. Rule of construction. It is a rule of construction, that where a gen-
eral clause in an instrument of conveyance is followed by special
words in accord therewith, the grant will be limited to the specifi-
cation; and, therefore, a conveyance "of all property of every de-
scription, the same being embraced in a schedule annexed," will
only pass the property mentioned in the schedule. Belding Bros. &
Co. v. Frankland, 67.
2. Act of 1881, ch. 121. If such omitted property be held to pass
by virtue of the act of 1881, ch. 121, sec. 4, which provides: "That
the trustee or assignee [under a general assignment for the benefit of
creditors], shall be entitled to any other property of the debtor not
embraced in the assignment," it will be by operation of law, not by
the instrument. Id.
Fees. Where a party tried and convicted of rape, appeals to supreme
court, and pending the appeal breaks jail and escapes, after return
of capias and retirement of case, under sec. 4542 of Code, attorney
general is only entitled by act of 1874, amending sec. 4542, to a fee
as on nolle prosequi, or acquittal. The conviction was not a final
conviction. Leach v. The State, 35.
1. New issue. Evidence. Burden of proof that the notes were illegally issued.
In an action against a tax collector, under the provisions of chap-
ter 44 of the acts of 1873, page 71, entitled, "to facilitate the col-
lection of revenue," to recover back money paid for taxes due the
State, after a refusal of such tax collector to accept notes of the Bank
of Tennessee, bearing date since the 6th of May, 1861, tendered in
payment of such taxes. Held:
1. The plaintiff was required first to make proof of the genuineness
of the notes tendered.
2. After such proof of the genuineness, if the defendant relied upon
the fact that the notes had been issued in aid of the rebellion against
the Government of the United States as the ground of his refusal to
accept them, the burden of proving that they had been so issued was
upon the defendant, and it was the province of the jury, upon con-
sideration of all the evidence adduced, to determine whether the de-
fendant had made the necessary proof.
3. That the notes were issued after the 6th of May, 1861, and dur-
ing the rebellion, was not evidence that they were issued in aid of the
rebellion, since the presumption of the law is that all such notes were
issued in the ordinary course of the business of the bank and for law-
ful purposes.
4. That the issues of the bank, in circulation on the 6th of May,
1861, were exhausted in the purchase of Tennessee war bonds, or in
paying checks of the military board, and that thereby it became nec-
BANK OE TENNESSEE-Continued.
essary for the bank to put in circulation the notes which were issued
after such date, in order properly to carry on its business, was not
evidence that such notes were issued in aid of the rebellion
5. That the officers of the bank were in sympathy with the rebellion
during the time the notes were being issued, is not evidence that such
notes were issued in aid of the rebellion.
6. To show that the notes were issued in aid of the rebellion, there
must be proof that they were issued in some transaction immediately
connected with the rebellion, and for the purpose of aiding it.
7. The burden on the defendant of proving that the notes were is-
sued in aid of the rebellion is not shifted by evidence that half or
more of the notes of the class to which they be long were issued in aid
of the rebellion.
8. If the notes were originally issued for a lawful purpose, the fact
that they were afterwards used to aid the rebellion did not affect
their validity.
9. If the proof established that the notes were issued in aid of the
rebellion, whether for the purpose of being loaned to the rebel author-
ities of Tennessee, or the Confederate States, or to purchase the bonds
of the Confederate States, or the war bonds of Tennessee, or to enable
the rebel government to arm and equip or pay troops raised for the
purpose of rebelling against the government of the United States, or
in any other way, they were void and the State was not bound to re-
ceive them for taxes. And if the notes were in fact issued with the
intent to aid the rebellion, it is immaterial whether they were issued
under impulse, or under contract, or in consequence of force, or as
the free will of the Bank of Tennessee, in any event they are equally
void. Clark v. Keith, 703.
2. Same. State not entitled to notice of non-payment of notes by bank.
Tares. The State was not entitled to any notice of the non-pay-
ment of the notes before it was bound to receive them for taxes
under the 12th section of the charter of the Bank of Tennessee, acts
of 1837-8, chap. 107, p. 153. Id.
3. Same. Act of Legislature suspending specie payment by the bank.
Notes receivable for taxes The notes of the Bank of Tennessee, law-
fully issued after the 6th of May, 1861, notwithstanding the act sus-
pending specie payment from January, 1861, till July, 1862, chap. 5,
p. 9 of the acts of the General Assembly at the extra session in Jan-
uary, 1861, have always been payable on demand in gold or silver
coin within the meaning of the 12th section of the charter of the
Bank of Tennessee, acts of 1837-8, chap. 107, p. 153, and therefore
receivable for taxes due the State. Id.
See SUPREME COURT PRACHICE.
BILL OF EXCEPTIONS—Continued.
Supreme Court Practice. Depositions excluded by the chancellor because
of the incompetency of the witness must be made a part of the record
by bill of exceptions. Aymett v. Butler, 453.
1. Consideration. Married women. Mrs. S., a fome covert, executed a note
to a bank, with C. and B. as endorsers. After the death of her
husband, Mrs. S. executed a renewal note with C and B. as endors-
ers. Held, she was liable upon the renewal note. Spitz v. Fourth
National Bank, 641.
When.
2. Voluntary and not enforceable.
A promissory note made
payable to the Board of Publication of the Cumberland Pres-
byterian Church, a corporation, after the death of the maker,
"for the purpose of aiding and assisting said Board in carrying on its
publishing interest," is purely voluntary, and not enforceable, and
the fact that donations made to the Board were treated as assets, and
liabilities created, and the policy of the Board to some extent shaped
on the faith thereof, would not change the result. Foust v. Board of
Publication, 552.
Surety. Not liable. When. The trustee sold the trust property for
the benefit of the bondholders, and complainant became the pur-
chaser, executing his notes on time for the purchase money.
About the time the first of his notes fell due he filed this bill, on be-
half of himself and all other bondholders and beneficiaries, to enjoin
the collection of his notes, to obtain a credit thereon for his propor-
tion of the trust assets on the bonds held by him, and for the share of
certain other bonds attached, and for a settlement of the trust. The
complainant obtained a fiat for an injunction, restraining the trustee
from taking any steps to collect complainant's notes except in this
cause, unless authorized by order of the court, upon giving bond with
security in the sum of five thousand dollars as required by law. He
gave bond with security in the prescribed penalty, conditioned to
prosecute the bill of injunction with effect, or in case he should fail
therein, or the same be dismissed, to abide by, perform and fulfill the
judgment or decree of the court, and pay all costs and damages that
may be sustained for wrongfully suing out the injunction. No in-
junction was in fact issued, and the complainant was declared enti-
tled to the credits, and a decree rendered against him for the residue
of his purchase notes. He became insolvent between the suing out
Held, upon mo-
of the injunction and the final hearing of the cause.
tion for judgment against the surety on the injunction bond, that the
surety was not liable. Baxter v. Washburn, 1.
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