Whig and tribune. [volume] (Jackson, Tenn.) 1870-1877, 1873-11-01
From the Jackson Tu- Weekly Hcgsla-
SUPREME COURT.
BfZe.t of nccEsiOms of the supreme
Court at Jackson. Team. october
GnrrfssI form sN-B

| From the Jackson Tu-WeehIy lIcgsid-
SUPREME COTRT.
Digest Of Decisions of the Suprem
Court at JaeiSson, Tenn. october
Special Term 1873.
Reported by Z. W. uaync,. E.q#
| No. bellows v. Norton.
] Defendant was agent Of p.gHti
/ and one knight was instructed b
| Knight 10 pay the plaintiff 5 note on
OF his funds III defendants hands
| upoa certain conditions, j. C., that n
| interest or exchange was required
and defendant so informed the plain
tiff; but he did not accept the offer b
! drawing on defendant as directed. -
! knight could withdraw hrs instruc
tiOus 10 defendant to pay the note a
/ any time before ne had, undcr the III
reetions Of the plaintiff and for him
actually appropriated Knights none,
/ 10 the payment of the note. (StoT,
Eq. lOij.D
MCFARLAND, Judge.
| No. >. Martin vS. kilbourn.
Martin was Aliens surety on hi
I fappeaI bouJi from a magistrate, tn
condition of which was, that Allei
should prosecute his appeal will
effect, otherwise comply with and per
form the Judgment of the Court II
| the Circuit Court, Allen filed his piles
in bankruptcy which was found il
his favor.
1. Martin never was liable on tLC
debt with Allen, in amy character. -
The appeal vacated the judgment,
Allen prosecuted his appeal with
effect, and Martin was no longer la
bic on his bond. 4 Bush, 344)
NICHOLSON, Judge.
No. 3. Gilbert VS.. Hanncwcll.
Bill to resciud a contract for fraud.
I. 1t is solely at the option of the
party, upon whom the fraud Is prac-
ticed. whether he will hc bound by
the agreement or not. Yet, If he de
termiue to avoid the contract because
of the fraud, he must give notice of
such determination within a reason
able time after his discovery Of the
fraud. Aud If with . knowledge OF
the fraud, he acqujesce the contract
expressly. OF do any act importing an
intention to stand by Il. or remain
silent under circumstances which
plainly indicate a continuing assent
thereto, lie cannot afterwards avoid il.
>. II complainant has been fairly
put upon his diligence; had ample
means of inquiring a. TO all the ma
terial facts, aud has chosen 10 lie by
in gross indifference and indoleucc, re-
lief viii be denied him.
FREEMAN, Judge.
No. City of Memphis vs.. Schade.
Appeal from Recorder Of Memphis
to Law Court, by defendant. The
Court also gave Judgment against
him, but reduced the fine from SO to
so.
1. The Court is to try the case upon
the evidence taken before the Record
er.
,. L to try it just as the Recorder
did. and must therefore have the
same jurisdiction and discretion, and
could change the amount.
3. Case reversed, however, and
Judgment rendered for So here, the
lowest penalty prescribed by the ordi-
nance.
MCFARLAND, Judge.
No. -Farnsworth Il Co. VS.. Wade.
Farnsworth and Wade were indebt-
ed to plaintiffs by four notes. After
f. & w. dissolved partnership, and
with a knowledge of the dissolution,
plaintiffs extended time on the notes
to Farnsworth, and took his notes in
renewal, signed by him in the old
firm name. Wade plead non est fac
tum, plaintiff abandoned his suit on
the notes and relied on the original
evidenced by account.
The account was eNtinguished by
the first four notes; and IL was who'll
lv immaterial 80 far as Wade's liabili-
tv was concerned, whether or not
plaintiffs intended by taking the re-
newal notes to release Wade's Habili-
ty on the first notes for they were not
sued; or on the account, for that was
extinguished.
NICHOLSON, Judge
No. G.-Saunders vs.. Bartlett, Gould
& Heath.
Replevin for a bale Of cotton ship
ped by Joiner * Son to defendants in
error, rs cotton factors for sale, the
proceeds when sold to be appropriat-
cd to the payment Of their debt. On
arrival Of the boat the bill of lading
was sent to B., G.. & H, but before
anything was done TO reduce the cot
ton to possession, 1t was attached at
the suit of Saunders, aud the factors
replevied it.
/. The factors had no lien either
general or special on the cotton, with
ont actual or constructive possession;
and the possession Of the bill oflading
was not such; but only gave the con-
the right to reduce the cotton
to possession.
,. Under the attachment against
one partner, or joint owner, the sher-
if may levy the attachment on the
property Of the firm, and take pos
session by virtue of such levy; but
can only sell heinterest Of the person
against whom the process was issued.
FREEMAN, Judge.
No. Gates * Co. vs.. Union Bank.
The note in controversy, about the
time it fell due was removed South in
obedience TO military orders, and re-
mained South till the war closed. -
The debtor and creditor continued TO
reside in Memphis, and the cashier Of
the Bank continued there and had the
management of its affairs. That the
note was within the Confederate lines
furnishes no such obstacle to its pay
meut, as To relieve the debtor from
liability for interest.
NICHOLSON, Judge.
No. S.-Woodward, Trustee v. Al,
stOn.
Motions under section 322s of the
Code to recover enrolling fees charged
and collected, when the enrolment
was not made.
After the motions were made, the
Legislature. by act approved Dec. 10,
1871, allowed clerks, including those
who had gone out of Office, twelve
months longer time within which tc
enroll the causes and suspending mo.
tiOns pending, &c, under which II
was held at a former term of this
court in two of these causes, that they
must await the expiration OF the !.
months, given by the act.
At the expiration Of that time, tho
defendant had caused q great number
I of the causes to be enrolled and IL
/ those causes not enrolled, the records
/ mad been lost.
The Attorney General asked 70.
/ Judgment for costs, where the enroll
/ ing had been done, and for the fee
and costs where 1t had not been done
/ Twelve months elapsed before thu
motions were made.
l. The failure OF the clerk 10 enrol
! the causes. was official delinquency
/ subiecting him to punishment. Thi
/ preceding Is not for that purpose
but simply to recover the money il
. the hands OF the defendant, which b.
hls failure 10 perform the service II
! longer belongs to him, but to tn
county trustee for public purposes
and this proceeding Is not a Statut
Dcaal'y. The motions are therefor
not barred by the statute Of limita
tious Of one year. Code, sec. 2772.
>. The act OF December, 1871, i
relied on as q legislative pardon. i
this is not q criminal or penal actor
IL Is not necessary to deterLnin
L 1-g.v,la-.A l,na.,