CHANCERY.

Tide TRUST & TRUSTEES, 1, 2, 3, 4, 5, 6, 7, 8, 9.

1. The duties of a receiver appointed by the court, and those of a master in chancery, are entirely distinct. Walers et. al. v Carroll, Gov.

102

2. It is no part of the official duty of a clerk and master of a chancery court in this State, to act as a receiver. Ib. 3. A court of chancery can no more impose, without his consent, the office of receiver upon its clerk and master, than it can upon any private individual. Ib. 4. Where a clerk and master is appointed by the court a receiver, and as such receives into his hands, money or property, the sureties in his official bond, taken for the faithful performance of his duties as clerk, are not responsible. Ib. 5. The court of chancery made the following order: "Ordered by the court, that Nathan Ewing, the receiver, pay into the hands of the clerk and master, the funds in his hands as receiver in this case; that he file his report and account with the clerk, who will make report at the next term; that the clerk and master report what would be a reasonable allowance to the receiver for his services: and it is further ordered by the court, that the clerk and master be appointed receiver of said funds, and continue to loan out the same at legal interest:" Held, that by the terms of this order, the funds were to be placed in the hands of the clerk and master, in his capacity of clerk and master, and that the payment to him, and his reception of the money as clerk and master, were acts in entire consonance with the duties and functions of that office. Ib.

6. Where a clerk and master has received money in his character of clerk and master, and he is appointed by the court a receiver and ordered to loan it out, but there is no evidence showing that the loan

master.

ed it out, and no fact or circumstance from which it may be inferred that he accepted the office of receiver, or acted under it, the money will be considered as retained in his hands as clerk and Ib. 7. A, a non-resident, is indebted to B, also a non-resident. A owned property in this State, which he conveyed to his son-in-law, in fraud of his creditors, as the bill alleged. B, without having obtained a judgment at law, filed a bill in this State to subject this property to the payment of his debt under the provisions of the act of 1832, c. 11: Held, that the provisions of that act did not extend to such case, and that the court of chancery had no jurisdiction of the cause. Gasget & Co. v Scott, Truet and others.

244

8. Where the plaintiff or other party seeks to give effect to a deed in a court of law, by instituting a suit thereon: such court cannot upon his averment of fraud or mistake, correct the deed, and give to it effect as corrected; the party must resort to a court of chancery. Wood v Goodrich,

266 9. Where an entire tract of land was sold, and the complainant, the vendor, at the time he filed his bill, did not have a legal right to a part, it was held, that as he was not in a condition to perform the contract on his part, he had no ground of equity, or right to enforce a spefic performance of the agreement. Reed v Noe and others,

288 10. The court will not decree a specific performance against the purchaser of land, if the complainant cannot make out a title clearly good and free from all incumbran

ces.

Ib.

11. When a bill may be demurred to, and the defendant instead of demurring answers the bill, the court will not, upon dismissing the bill, allow the defendant against the complainant costs which ac crued after the return of the subpœna. Ib. 12. A, B, and C, covenanted and agreed with each other, that they

would, at their joint and mutual expense, erect a good bridge, &c. over the river Clinch at C's. ferry, and C agreed to convey to A and B, as tenants in common with himself, so much of the bed of the stream as might be necessary to build the bridge, also so much of the bank on each side of the river, as was necessary for good abutments, and also one acre of ground on the north bank of the river for the purpose of erecting a house and necessary buildings for a keeper of said bridge, for which they were to pay him a reasonable price therefor. C also covenanted to furnish necessary materials, for building, repairing and rebuilding the bridge, from time to time, so far as they could be found on his land, and that he would justly and truly account (from the date of the agreement) for all ferriages received by him at the ferry, until the bridge was completed, and pay each partner his portion, deducting expenses, &c., and if the bridge was swept away, or got out of repair, he would also account for the ferriages received by him during the time the bridge was impassable, &c. And he also covenanted he would not keep a ferry on the upper road at Bristow's bend, or below on Jenning's road, and he Covenanted to make a deed in fee, making them equally interested with himself in the ferry and banks at each of these places. During the year 1823. (up to which time the parties had settled) the bridge was repaired by C, at an expense of $700, and he received the toll thereon until March 1826, when the bridge was swept away. After the bridge was swept away, the partners agreed not to rebuild, until it was ascertained whether the road would be changed, and in the mean time to keep up the ferry. The ferry was kept up by C, until his death in 1828, he also kept up the ferry at Bristow's bend until his death, at which time the road was changed, in consequence of which the bridge was not rebuilt,

and all idea of rebuilding it was then abandoned.

Held: 1. That this bill in Equity, by A against the personal representatives of C, for an account of toll received by him in his lifetime, and also for a specific execution of the contract against his heirs was not demurrable, all proper persons being made parties thereto.

2. That C's. executors were accountable to A and B for their portion of the toll received by C, from 1823, the time the bridge was repaired by C, until March 1826, the time it was swept away, deducting expenses for repairing, &c. and also for their portion of the ferriages received by C, from the destruction of the bridge in 1826, until his death, in 1828, deducting necessary expenses, &c.

3. That the ordinary act of limitation of three years did not bar the recovery of the tolls and ferriages, because the payment thereof was secured by an express covenant, against which the statute does not run, and because C was a partner, and held it as such, until he claimed adversely to their right, of which there was no proof

in the record.

4. That the executors were not accountable in chancery for the profits of the ferry at Bristow's bend, received by C after the destruction of the bridge.

5. That the court would not specifically execute the contract of the conveyance of the bed and banks of the river, the circumstances having changed, and the object and consideration of the contract having failed. Cock v Evans,

287 13. An answer will not be allowed to be amended so as to rely on the act of 1799, limiting suits against executors, after an interlocutory decree in the cause is made. Ib. 14. After the examination of witnesses

and publication passed, no part of the pleadings can be altered or added to, but under very special circumstances, in consequence of some subsequent event. Ib

172

mentioned sum of money, without interest, by the 1st day of January 1827, then," &c: Held not to be a mortgage upon its face, but a sale with liberty to re-purchase. Held also, that the word "pay," introduced into the condition, did not constitute a covenant upon the part of the vendor to pay the money. Hickman v Cantrell. 2. To make a deed of conveyance a mortgage upon its face, it must show that the consideration which supports it was either a debt due or money lent at the time of its execution, or it must contain an express covenant for the payment thereof. Ib. 3. It is the intention of the parties at the time that converts an absolute deed into a mortgage, and this may be shown by parol proof. lb. 4. In the case of sales with liberty to

re-purchase, the condition to repurchase must be strictly performed, and if not complied, with equity will not relieve; but where there is the least tineture of fraud or op pression, equity will interpose and grant relief. Ib. 5. H, who had the liberty by a condition under seal, of re-purchasing property conveyed by an absolute deed, applied to G to take an assignment of the condition, pay the money and take a conveyance of the property as security for the money: G agreed to do so; they went to C on the day appointed; G tendered the money and requested a conveyance to himself of the property by C. C refused to convey to G, but offered to receive the money and convey to H, which G refused: Held not to be a performance of the condition upon the part of H. Held also, that C was not bound to convey to any other person than H.

Ib.

1. An act of the general assembly of the State of Tennessee incorporating a bank is a contract within the meaning of the first article and tenth section of the constitution of the United States, and a statute or law which alters it in a material part without the consent of the corpo ration, is a law impairing its obligation, and is unconstitutional and void. Union Bank of Tennessee v The State, 490 2. A convention, convened by the peo

ple of a State, for the purpose of amending, or revising its constitution, cannot by an amendment of its constitution do, or authorise to be done, any matter or thing, which by the constitution of the United States, the States are prohibited from doing.

Ib.

re-purchase, the tender of the money must be made with all the formalities required by law,

CONFESSIONS.

Vide EVIDENCE, 15.

Ib.

of Tennessee, § 11, it is stipulated, "hat in consideration of the the privileges granted by this char ter, the bank agrees to pay to the State annually, the one half of one per cent, on the amount of capital stock paid in by the stockholders, other than the State." Held, that

by this section, the State contract-
ed that the bank should enjoy the
privileges conferred, one of which
was to use its capital for all legiti-
mate banking purposes, and that a
law imposing an additional tax up-
on the capital stock of the institu-
tion impaired the contract, and was
unconstitutional.
Ib.
4. The eleventh section of the charter
of the Union Bank, does not ex-
empt from taxation, any property
of the banks, not necessarily in-
cluded in and forming a portion of
the privileges granted, and without
which they could not be enjoyed.

CONTRACT.

Ib.

Vide PROPERTY CONTRACT, 1, 2, 3, 4.
DAMAGES, 1, 2.

COVENANT, 1, 2, 3.
CHANCERY, 9, 10.

1. An averment and proof by a plain-
tiff at law, that a contract for mo-
ney was intended to be payable at
a time different from the time which
on its face it purported to be due,
and that the latter was inserted by
fraud or mistake, are inadmissible.
Wood v Goodrich,
266
2. Where a contract to pay so many
dollars, "which may be discharged
in cash notes by a given time," if
the notes are not paid by the time;
the money is due, and a payment
in notes cannot be afterwards in-
sisted on.

Williams v Brasfield.

270

3. Specific performance of contracts.
Vide Chancery, 9, 10.

COSTS.

1. Where a certiorari ought to have
been dismissed for want of juris-
diction in the court, but was not,
and a verdict and judgment were
rendered, from which an appeal
was taken to the supreme court:
Held, that up to the time of the
trial in the circuit court, the error
of that court was against the de-
fendants in error, therefore, they
will recover their costs up to that
time; but that in rendering the ver-

1. Where twelve, or a majority of mag-
istrates are required by law to
make a particular order or decree,
it is not necessary that the partic-
ular order, entry or decree, should
have incorporated in it a statement
to that effect. It is sufficient if the
record shows that on the day the
order or entry was made, the re-
quisite number of justices were
present.

M'Cullough v Fanny Moore, 305
2. Where the record shows that the
court was opened and held by a
competent number of magistrates,
those who allege the absence of a
portion of them or the presence of
a smaller number when any par-
ticular act was done on the same
day, must show affirmatively by
the record that such was the fact.
Ib.
3. Quere-Upon a petition by the own-
er of slaves, where the record does
not show that twelve or a majority
acted, how far the decree of eman-
cipation is void, or voidable by
the owner.
Ib.

COVENANT.

Vide WARRANTY, 4, 5, 6, 7, 8.
CHANCERY, 12.

1. Where the covenant is to pay so
many dollars in cash notes, the ac-
tion must be covenant, and the