Whig and tribune. [volume] (Jackson, Tenn.) 1870-1877, 1873-10-18

as their taxes, without pro-
test. 1t IS now in the hands of the
To allow the taN-c0l-
lectOr to retain the money, thus cTea-
ting a great deficit, etc, would be to
Cypress the taxpayers aud to encour-
age official defalcation and corruption.
The remedy BY motion does exist.
The act Of December 1863, grants
no extension Of time to the collector +.
without the consent of the sureties.
1t merely directs what was before
the duty of the collector.
MCFARLASD, Judge.
No. /. johnson vs.. Luckadoo.
1st. Attachment bill under 800, /
sub. see. Z, of Code sustained, as to F.
indebtedness by account.
I'd. Answer, without steps taken .
to discharge attachment, valves in {
Sufficient statement OF nature Of in 7
debtness.
Sd. Proof must correspond with F!
the allegations and must be confined /
TO the issues. Proof not allowed as |
10 an Indebtedness for iacd sold, not I
set up in the bill.
MCFARLAND, Judge.
No. , Shepard vs. Shepard, Moore
vs.. d-cOnsolidated cases.
lst. Court will not remand cause
finally determined at q former term,
setting all the matters involved in
the pleadings, on the ground that
other matters are involved in the
suit. II Withdrawn from the litiga-
ton bY,COnsont, they cannotbe re-
stored by any action OF the SU-
prome Court.
I'd If Moore was induced 10 with
hold a portion of his claim, upon
assurance by defendant that IL was
not disputed and would be allowed
and settled after the litigatcd mat
tcrs were determined; and after such
determination, repudiatcd the agree
mOnt, and refused to settle, this
! would constitute fraud which
would be relieved in equity
Sd. y record referred to histOri-
I cally, will not be looked TO as part
| Of Il bill, unless exhibited or made
part thereof by language which
| sufficiently indicates that intention.
4th. If the allegations OF the bill
/ state facts, which constitute fraud,
! it is not necessary that they should be
/ so characterized.
NICHOLSON, Judge.
No. 5. Stanton & Moore vs.. Uous-
ton.
LIST. Court may dismiss a suit up
on written order Of plaintiff, upon
proof of its execution.
2d. If unfairnCss or fraud in Oh
tanning the order is alleged, the
Court may direct an issue To be
made, to be tried by the Court, with
or without a jury.
Sd. But if the merits are reached,
1t is not error to require the order
to be pleaded specially, such as will
warrant a reversal.
DEADRICK, Judge.
No. 4. Plunkett VS.. Robbins Il Co.
LIST. The want of instructions, not
demanded, will not avail, where the
charge, a. given. reflects carefully
and without obscurity the priuCi-
- pies applicable 10 the facts OF the
case.
I'd. While con an issue between Q
partnership and third persons, as to
the day when formed, mere articles
are not evidence in favor Of tho
partnership" III Wallace, 570) they
arc competent, when il is shown by
eXtrinsic proof that they were made
oil She day they purpOrt to be made
SNEED, Judge.
/.
Important Supreme COurt Decision
We have always thought that pay
ments from time to tine on not,
took it beyond the reach OF the stat
ute of limitations, and that q pay
I ment was in effect a recognition O
the debt, and was made for that Pur
pose. The subjoined decision set
up new rule and is entitled to grav
consideration, emanating as it doe
from the Court of last resort:
The following decision by Judg
Deadrick, of the Supreme Court, vii
be read with interest:
i. ID. LOCKE AND WIFE VS.. II. S. WILSON
This is an action on a note for $40
due Both December, 1860, executet
, ! by defendants as sureties of Mcbride
The statute of limitation of six year
was relied upon as q defence to tn
action. Payments were made by Nc
Bride and endorsed on the note q
follows: July II, 1861, 500; Nov. Is
1868. S75; Jan, 10, 1866. $50; Marcel
10, 1866, 500.
Suit was brought upon the not
against Wilson only, on the Both O
Oct. 1872, before 4 Justice OF the peact
of Weakley county, and judgmea
was rendered by him in favor of de
PENDANT
| Plaintiff appealed to the Circui
| Court, and the parties there waving
} the intervention of jury, the matter
in controversy was submitted to the
court and judgment was rendered il
favor of the defendant, from which
plaintiffs appeal to this court.
For plaintiffs it is insisted that the
: Judgment is erroneous for two Tea
sons:
l. That although the suit was not
instituted until after the lapse Of SLY
years from the time between 9th May
1866, and LIST January, 1867, yet the
note had been placed in the hands OF
an officer, with instructions to bring
suit before the same should be barred
and that defendant requested delay
until he could write to Mcbride, the
principal, promising to take no adj
vantage of the delay thus granted.
Although there is some conflict IN
the testimony upon this point, we are
of opinion that the weight of it Is,
that the debt was barred by the stat
ute of Limitation of six years, before
the request for delay to sue was made.
.. 1t is next insisted that the sever
al payments made before the bar Of
the statute attached, amounted to a
recognition Of the validity of the
whole debt claimed or sued for, and
and 2 promise TO pay it, arrested
the operation of the statute, up to the
time of the last payment.
We do not understand that the fact
of payment alone, without other ac-
acknowledgement or promise, amounted
to anything more than an acknOwl-
edgement of indebtedness to the Cx-
tent of such payment.
And this We understand TO be the
rule, whether the bar of the statute
be complete or otherwise at the time
of such payment.
We are of opinion, therefore, that
there was no error in the judgment
of the Circuit Judge, and affirm it.
I QUARAyrlNE.-The City of Chat
tanooga has established a quaran-
tine against Memphis, at Steven
son, Ala. Bah! It is impossible for
Yellow fever to prevail at Chatta-
nooga, and any man who has sense
enough to get a diploma to prac-
! tice medicine, ought to know that
much. The Chattanooga Times
says:
"Upon consultation Mayor Wight
| and CITY Physician Van Dpm9u