transactions, and which can only be ascertained by a
settlement of the partnership concerns, is not required,
before such settlement, to be given in for taxation.
Hence, where a bill is brought to compel such a set-
tlement of a partnership, which ceased business with-
out formal dissolution, before June, 1865, it is not
necessary for complainant to file an affidavit of pay-
ment of taxes on the claim sought to be enforced.
Lopez vs. McArdle, administrator........
430
12. Where, in an arbitration between the guardian of a
minor legatee and the executor of an estate, it was de-
creed that all the notes of the estate should be turned
over to the minor as her property:
Held, That in a pending suit on one of the said notes,
proof of this award excused the filing of the affidavit
required by the Act of October 13, 1870, and this is
not met by proof that there are outstanding debts
against the estate. Heartwell, guardian, vs. Tomp-
kins et al.....
13. Where an affidavit of taxes paid, as is required by
the Act of October 13, 1870, was filed within the
time prescribed, but the affidavit failed to say that
"the plaintiff expected to prove the same on the
trial:"
Held, That the affidavit is amendable at the trial. Fer-
guson vs. New Manchester Manufacturing Company... 461
14. Where a holder of bank bills, issued before June,
1865, gives them in regularly at what he swears, on
the trial, he was willing to sell them at, and pays the
taxes due on that valuation, there being no contradic-
tory evidence of the value of the bills, it is a suffi-
cient compliance with the Relief Act of 1870. Man-
ufacturers' Bank of Macon vs. Lamar...
15. In suit on a bond executed before June, 1865, and
for the payment of money, upon the happening of a
certain contingency, which does not happen until after
that date, no affidavit of the payment of taxes need
be filed. Jackson vs. Gayden.....
1. Where, in a marriage settlement, certain property was
settled upon the wife for life, remainder to the hus-
band for life, remainder to the heirs general of the
husband:
Held, That the husband took a vested remainder in fee.
Varner vs. Boynton et al........
2. Where the husband, with the consent of the wife, in-
vested a portion of the estate so conveyed in real es-
tate, taking from the vendor a bond for titles, his
heirs-at-law have no right to follow the proceeds to
the injury of the vendor, a portion of whose debt is
still unpaid. Ibid.
3. Where the husband has diverted a portion of the in-
come of the trust estate, and invested the same, with-
out the consent of the wife, in real estate, and subse-
quently, with her consent, invested a portion of the
corpus of the estate in the same real estate, the heirs-
at-law of the husband have no right in the remainder
of the corpus, as against the right of the wife to be
reimbursed for so much of the increase as was so di- .
verted and invested. Ibid.
1. An award having been made the judgment of the
Court without objection, equity will not interfere to
set it aside on account of fraud in the original cause
of action, or of fraud in obtaining the complainant's
consent to the arbitration, where all the facts were
known at the time of the motion to make the award
the judgment of the Court. Clark et al. vs. Thur-
mond......
1. When there is a sale of goods, with a warranty of
quality, and a delivery and acceptance by the buyer,
and the goods prove not to correspond with the war-
ranty, and there is no fraud by the seller, the measure
of damages is the difference between the price paid
and the value of the goods as they actually were at
the time and place of the sale and delivery, together
with such consequential damages, if any there be, as
come within the rule, excluding indirect and specula-
tive damages. Clarke & Company vs. Neufville........ 261
2. There can be no rescission, by the buyer, of a contract,
in a case of the sale and delivery of goods, unless the
buyer return or offer to return the goods, and if, by
his own act, as by a sale of a portion of them, he
render such delivery impossible, the buyer cannot, of
his own motion, rescind. Ibid.
3. Title to personal property may pass by sale without
present delivery; but a mere promise to deliver, for a
consideration paid, after the owner shall have done
something necessary to enable him to deliver, does not
pass title. The intention of the parties will govern.
Thus, where A buys land of B, for which he gives him
the note of a third person, and they afterwards cancel
their trade, but B, having lost the note, promises to
have a copy established, and then to deliver it in lieu
of the lost original, or to deliver the original if found,
the title to the note passed to A or not, at the time of
the cancellation of the land trade, according as the
parties may have intended. The jury in this case
having found that the parties did not intend to pass
the title to the note until it was safely delivered to A,
which finding is supported by evidence, the verdict
will not be disturbed. Cheney et al. vs. Dalton........ 401
4. When a merchant sells an article as a fertilizer, at
the market value of that particular kind or descrip-
tion of fertilizer, the law implies that he warrants to
the purchaser thereof, that the article sold is a mer-
chantable article, and reasonably suited to the use for
which it is purchased; and if it is not, the defendant
may plead it in abatement of the purchase money
agreed to be paid therefor. Radcliff vs. Gunby & Co. 464
SAW MILL LIEN. See Lien, 3, 4, 5.
1. This being a Confederate contract, the amount to be
paid must be determined under the provisions of the
Ordinance of 1865. Clark et al. vs. Lyon et al. 202
2. Where a defendant is sued upon a note given in the
year 1863, in part payment for property, of which he
was in possession of an undivided half at the time of
the trial, he is entitled to the benefit of the provisions
of the Ordinance of 1865, notwithstanding his refu-
sal to deliver up the property for the note. Lums-
den vs. Manes......
3. A State bank, not specially authorized by its charter
to do so, could not, in 1862, issue any of its bills, in-
tended to be used as money, redeemable otherwise
than with gold or silver coin. Where it did issue bills
at that date, in the usual form, it is inadmissible in a
suit on them by a bona fide holder, who did not re-
ceive them from the bank, but purchased them from
others, to prove that they were intended by the bank
to be payable in Confederate currency, and were so
understood by the community in which the bank was
located. The Ordinance of 1865 does not apply to
such contracts. Manufacturers' Bank of Macon vs.
Lamar...
SECURITY. See Principal and Security.
1. To establish a set-off, the law requires the same evi-
dence as if the defendant had originally sued the plain-
tiffs on the claim. Wilson & Co. vs. Walker........... 319
2. The jury having returned a verdict in favor of the
defendant on his plea of set-off, and there not being
sufficient evidence to create a prima facie liability of
the plaintiffs on the same, a new trial will be granted.
Ibid.
3. A surety whose principal has been adjudged a bank-
rupt, when sued for the debt on which he is surety,
cannot set off against it usurious interest paid by his
principal to the creditor, on transactions other than
the one out of which the debt arose, on which the
surety is sued. Woolfolk vs. Plant & Son....... .. .. 422
4. In a suit on a promissory note due to A, a set-off due
to the defendant by a partnership of which A is a
member, cannot be pleaded either at law or equity un-
less there be special circumstances also pleaded, to
avoid the want of mutuality between the two debts.
West vs. Kendrick............
1. Where a sheriff fails to advertise and sell goods levied
on under a mortgage fi. fa. on the 10th of April, 1871,
until the first Tuesday in October, upon the ground.
that the defendant notified him that he would apply
for a homestead exemption in said property, which
exemption was not set apart until September 19th,
1871, upon application in behalf of plaintiffs in fi. fa.,
a rule absolute should be issued against him. Kim-
bro & Company vs. Edmondson......
130
2. An appointment by the Judge of the Superior Court,
of one to perform the duties of sheriff, under section
251 of the Revised Code, holds until there is an elec-
tion of some one to fill the vacancy, as provided by
law, and no longer. Heys vs. Walters......
3. Notice given to one deputy sheriff by the tax collec-
tor, under the circumstances set forth, to satisfy the
tax fi. fa. with the money first made, is notice to all.
Beatie vs. Brown et al.........
4. Where the securities of a sheriff applied to the Gov-
ernor to be released from his bond, and the Governor
ordered the sheriff to give another bond with security
to the Ordinary of the county, within ten days; on
failure to comply within the time prescribed, he for-
feited his right to exercise the duties of the office,
although there may have been a vacancy in the office
of Ordinary during the period. Bosworth vs. Walters
et al..........
SPECIFIC PERFORMANCE. See Equity, 6.
STATUTE OF FRAUDS. See Frauds, Statute of.
STATUTE OF LIMITATIONS.
See Limitation of Actions.
STEAMBOAT LIEN. See Lien, 8, 9.
1. In a suit against the Ordinary of a county for taxes
alleged to have been illegally collected from the plain-
tiff, the declaration must set forth the facts showing
such illegality. Montgomery and West Point Rail-
road Company vs. Duer, Ordinary.....
2. The remedy against the superintendent and the other
officers of the Western and Atlantic Railroad is the
same as against tax collectors and receivers. Scofield
et al. vs. Perkerson et al; Hinton, et al. vs. Same...... 350
3. A sale of the land by the assignee of a bankrupt
does not divest the lien of the State upon the land for
taxes due on it, even though sold by the assignee free
of incumbrance. Stokes vs. The State and County.... 412
4. An execution issued by the tax collector for the un-
paid taxes against the land, which has not been
returned by any one, describing it as the property of the
persons who last returned it, is valid against the land,
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