Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1877-11-19
SUPREME COURT.

iva
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Abstract Of Opinions Delivered.
Knoxville Tribune. l0th.l
We give below an abstract Of the prin-
cipal opinions of the court delivered yes
terday morning;
PER FREEMAN.
L. Tillman, jr., admir-, VS.. Callie B.
Cooke, ct all. Section 1913 c. OF the
code allows all parties to testify, reliev.
ing them from all incompetency in all
civil courts Of the State, Notwithstanding
they may be parties of the suit, or in
terested in the issue tried, but the follow
ing section provides certain exceptions,
as follows: I'm actions or proceedings
by or against executors, administrators
or guardians, in which judgments may
be rendered for or against them, neither
party shall be allowed to testify against
the other, as to any transaction with, or
statement by the testator, intestate, or
ward, unless called to testify thereto by
the opposite party, or required to testify
thereto by the court"
Held, that this last clause confers legis-
tive and not judicial power upon the
courts, aud is therefore void.
2. This illegal clause being distinct
from the proceeding, does not render the
whole section invalid and void.
Mason VS.. Burson.-l. I~nterrogatories
under section 1874 of the code, can only
be filed at the term to which process is
%returnsble.
2. While a CROSS bill seeks affirmative
relief, yet in its nature it is a defensive
pleading, and it is doubtful whether the
charge Of cbamperity and maintenance
could be predicsted of sucha proceeding.
State vs.. Wheeler. The legislature did
not intend to change the law relating to
house-breaking by reducing stealing un-
der $50, to a misdemeanor.
Miller vs. Taylor. In the opinion
delivered in this case several days ago,
it is deemed proper to strike out Of il the
remark made as to the statute Of limita-
tons of six years, as it is not a point on
which the case was decided; and also as
to the question Of seven years. Both
we're merely arguments.
2. When an administrator fails to plead
the statute Of six years, the heir, when
his law is sought to be subjected, may
show the debt had been barred. So also
as to the act Of l7l5-the seven years,
bar.
3. The rule ia both instances rests on
this principle, that there is no privity
between the administrator and the heir
as to the realty.
4. In this case the heir called on the
creditors in her cross bill to prove their
claims, but they took no steps to do so till
they we're barred, relying on the fling of
them with the clerk as sufficient.
PER sYEED.
State vs.. Tillman, it,, adm'r.-Scire
facias TO revive a suit against an admin.
istrator must be sufficiently specific to
advise the defendant why be is sum-
moned, and what he is called upon to
a" show cause against. 1t is in the ma
ture Of q declaration and must contain
such a ~fullness of statement as to the
cause Of the action, that the defendant
is ~admonisbed by the face of the writ
what be has to plead to, and why be is
called into court.
Telford VS.. Broyles.-l. While it is a
principle of law that one partner cannot,
without the consent Of the other part
ners, introduce a stranger into the firm,
yet a partner is not precluded from sell.
ing what is bis own, and if he does sell
bona hde, the purchaser thereby &C..
quires all the rights of the party selling
onf IN tho ourpIna nrcGt, &c H. -
2. If a note be secured by a mortgage,
and the m%ortgager at its maturity give q
new note in renewal Of the old note. and
even repeat this renewal time and again,
still the original debt remains unpaid,
aud the mortgage und~ischsrged.
The State ex rel. Cottrell vs. Justices
Of Claiborne county,. The writ to
%msndamus is the supplementary remedy
when the relator has a clear and well
established right-and no other appro.
pirate remedy-in order 10 prevent q
failure Of justice. 1t is the absence of
any specific remedy that gives the court
jurisdiction.
2. II will lie TO compel a county, or
other corporation, to pay money award.
ed against them in pursuance OF a statu
tory duty, or to perform any specific
duty Of q merely ministerial character.
But 1t will not lie where an action at law
is necessary TO ascertain and define that
duty. The action at law must precede
the petitory proceeding for the writ.
3 the writ is not demandable as mat
ter Of right, but is to be awarded at the
discretion OF the court.
MFARLAgD.
Carson VS. McLin. Specific perform.
ance will only be decreed where the
argument, or the equities Of the parties,
are certain. 10 this case, the contract is
held TO be executed and not ~executory.
Norris vs.. Stephens.-Under a proper
construction Of the code and the acts of
the legislature, If the father is living, but
has abandoned bis child, it may be bound
out as If the father ipere dead; but in
either case, it mother be living and able
TO support the child, it shall not be bound
out without her assent, in open court,
unless there be an exception touching
illegitimate children.
2. II the mother is not able 10 support
the child, it may be bound no~twithstand
ing her objection, but she should have
notice Of the proceeding.
3 II the mother be able TO support the
child it cannot be bound without her as
sent il open court, and if she is not able,
or if she has abandoned the child, yet il
it is able TO support itself, the court hos
no power to bind il without making il a
party to the proceeding 50 as to bind or
estop il.
Edwards vs.. Erwin & Adler: |. Where
the original as well as the redeeming
creditor had valid and subsisting judg.
menls. and land or property Of the debtor
IS claimed under the sale, the last re.
danmfnu arod;t.- 49, " " "