PLEADINGS AND PRACTICE-Continued.
1. Pleadings. The statute of limitations of six years must be specially
pleaded. State v. Butler, 418.
2. Severance. Where a right to a joint action is given by statute, the
courts have no discretion to grant a severance. Taylor v. French, 136.
3. Trial by jury. Amendment. Pleadings which fail to ask for trial by
jury cannot be amended by asking for a jury at a subsequent term,
and it is error to allow the amendment. The failure to demand
a jury by either party is conclusively held to be an agreement to
try without a jury. Franklin v. McCorkle, 190,
4. Bonds and coupons. Suit upon coupons.
Guarantor. The City of
Memphis issued bonds, with coupons for interest. The Memphis
& Charleston Railroad Company endorsed upon the bond a guar-
anty of prompt payment and interest. Held, a holder of a detached
coupon may sue the guarantor in his own name, and he is not re-
quired to use the name of the holder of the bond. Taylor v. Memphis
& Charleston Railroad Co., 186.
5. Judgments and decrees. Collateral attack. Evidence
law of this State that domestic judgments of courts of general juris-
diction cannot be collaterally attacked by evidence outside of the
record itself. Harris v. McClanahan, 181,
6. Same. Same. A recital in a domestic judgment or decree of a
court of general jurisdiction that the original process was served
on the defendant, or that publication, when allowed in lieu of
service of process, was made, or that the party appeared by attor-
ney or by answer, is conclusive when the record is collaterally
put in issue, unless the recital is positively contradicted by the record
itself. Id.
7. Same. Lost process. Evidence. If the original process be lost, the
testimony of the party cannot be permitted to avail against a recital
in the judgment or decree of the fact of service, even in a direct
attack, although the rule docket is silent on the subject. Id.
8. Statute of limitations. Executors. In an action upon a covenant of
warranty of title to land against two executors of the will of the
covenanter, one of whom was made a party and served with pro-
cess within two years of the eviction, and the other was not made a
party until after the lapse of that period of time, the plea of the
statute of limitations of two years is not a good defense to either;
nor, a fortiori, to the personal representative of another covenanter
properly sued with them, and served with process within the two
years after eviction. Burgie v. Parks, 84,
9. Collateral attack. In a suit upon a judgment, the judgment cannot
be attacked for mere irregularities Pickett v. Boyd, 498.
PLEADINGS AND PRACTICE-Continued.
10. Ejectment. Privity of estate. Charge of court. A plaintiff in ejectment
cannot recover upon a demise in the name of third persons between
whom and himself there is no privity of title or estate, and if in
fact there is no proof to that effect, it is not error for the court to
charge the jury that the plaintiff is not claiming title through those
persons, or at least has introduced no proof tending to show that
there is any privity of estate or title between him and them. Slat-
tery v. Lea, 9.
11. Same The trial judge may require counsel to reduce the an-
swers of witnesses to writing, and to read each answer over to the
witness before proceeding with other questions. Jones v. State, 468.
12. Misnomer. A corporation may be known by several names, and
can only take advantage of a misnomer by a plea in abatement,
and no defense on this ground is admissible after a step in the cause
recognizing the identity of the corporation sued with the corporation
defending. Railroad v. Reidmond, 205.
13. Bill of exceptions. If the circuit judge, in a case tried by him with-
out a jury, find the facts established by the evidence, and embody
them in a bill of exceptions without objection by the parties, the
objection cannot be taken that the bill of exceptions does not contain
all the evidence. Huffman v. Hughlett & Pyatt, 549.
Waiver. The commencement of an action by the in-
jured party against one of a series of tort feasors, upon the implied
promise arising from the conversion of personalty, will not be a
waiver of his rights against the other tort feasors. Id.
15. Conversion. If the circuit judge, who tries a case without a jury,
finds that one of two defendants converted the personalty in con-
troversy, and sold it to the other defendant without authority of the
plaintiff, the owners, the findings of fact will warrant the conclusion
by him that the latter defendant had also converted the property. Id.
16. Lost justices' warrant. How supplied. When an original justices'
warrant has been lost or destroyed, the circuit court cannot con-
demn land until the warrant is supplied; and this cannot be done by
the justice certifying to a copy of the original warrant. Hulliburton v.
Jackson, 471.
17. Suit to recover money lost at gaming. A husband may bring a suit for
the use of his wife to recover money lost at gaming, after the expira-
tion of ninety days and before the expiration of twelve months. For-
rest v. Grant, 305.
18. Exceptions to report. Upon a petition to take private property for
works of internal improvements, the proper time and way to make ob-
PLEADINGS AND PRACTICE-Continued.
jections as to want of title, of proper parties, etc., is by exceptions to
the report when filed. Camp v. Coal Creek & Winter's Gap Railroad
Co., 705.
19. Appeal. An appeal will not lie from an order directing a writ of in-
quiry of damages. Id.
20. Evidence. Request for delay. Whether or not a conversation between
a creditor and an administrator amounted to "a request for delay,"
so as to prevent the running of the statute of limitations, is a mixed
question of law and fact to be determined by the jury under a proper
charge; if the evidence tend to establish such a request, it must be
given to the jury, who are to determine its sufficiency. Apperson v.
Pattison, 484
21. Evidence. Insolvency. Evidence showing the amount involved in a
suit and the interest of the decedent in it, is inadmissible in a suit be-
tween his administrator and one who acted as his body-guard but
rendered no other assistance, while decedent was engaged in prepar-
ing and securing evidence for such suit. Id.
22. Limitations. Onus probandi to remove bar. The burden of proof of
facts necessary to remove the bar of the statute of limitations, which
prima facie exists, is on the plaintiff. Id.
23. Ejectment. Third person only admitted to contest merits. In an action
of ejectment, after issue joined on pleas of not guilty, a third person
admitted, on his own application, as a party defendant, cannot plead
in abatement that the original defendants were not served with copy
of declaration; he can only plead to the merits. Campbell v. Ham-
ton, 440.
24. Local action. Land lying partly in two counties. Attachment. Juris-
diction. By section 2810 of the Code (act of 1847-8, ch. 173), it was
intended that where a tract of land lies in two counties, all of which
is subject to the same claim or demand by a party, he might enforce
that demand against the whole by suit begun in either of the coun-
ties in which part of the tract lies; and in such case the right to the
whole would be passed, although part of it was in a different county
from that in which the suit was pending. Id.
25. Replevin. Receiver. A creditor obtained a judgment in circuit court
against Bryant & Newhouse, and execution was issued thereon. The
goods of Bryant & Newhouse were then attached by bill in chancery
court, and a receiver appointed. The officer levied the execution
upon the goods, and the receiver brought an action of replevin in
circuit court to recover possession. Held: That under the facts of
this case, the dignity of the chancery court, within the same juris-
diction, cannot be asserted by an action of replevin in a common
PLEADINGS AND PRACTICE Continued.
law court, against a party having in fact a superior right to the pos-
session of the property. Conley & Harrison v. Deere, Mansure & Co., 274.
26. Slander. Appeal. Forma pauperis. The plaintiff in an action for
slander, cannot prosecute appeal in forma pauperis. Cox v. Patton, 545.
27. Bond, attachment. The bond which is required upon suing out an
attachment, and which the statute directs shall be made payable to
the defendant, will enure to the benefit of each and all of several de-
fendants who may be aggrieved, and among others to the benefit of
the defendant whose property is attached as the property of the
debtor, although the bond be made payable to one defendant named
"et al." Renkert v. Elliott, 235.
28. Same. If one defendant alone is aggrieved, he may sue in his
own name avowing in his declaration that the other defendants
had no interest in the damages claimed, or in the name of all of the
defendants for his use, and the suit may be continued in his own
name if the other plaintiffs die, or if, at the instance of his adversary,
the trial court compels him so to do. Id.
Inder attachment bond which follows the words of the
statute, the obligors are liable to each defendant severally if each
have a several interest, and the surety for each of his principals
severally as well as jointly. Id.
30. Attachment. Penalty of bond. An attachment sued out under the
Code, section 4283, et seq., is not a jurisdictional writ, and abides the
event of the suit unless sooner discharged by the court. But such
an attachment ought not to be discharged in toto for the failure to in-
crease the penalty of the bond, but the levy should be reduced so as
to be within the penalty. Id.
31. Attachment bond. State not required to give. The State cannot be
required to give an attachment bond, and no liability can be created
on the part of persons purporting to execute a bond as sure-
ties. Id.
32. Same. Damages. Where an attachment bill has been filed by
a creditor against his debtor, to reach property alleged to be held
by a third person under a title fraudulent as to the creditor, the
question whether the attachment was wrongfully sued out as to such
person is not tested by a discharge of the attachment for the want of
an increased bond, or by the dismissal of the suit at the cost of the
defendants because the creditor's debt had been paid, or satisfied even
by a compromise. In such a case, the question may be made in a
suit for the damages occasioned by the wrongful suing out of the
attachment. Id.
33. Same. Exemplary damages. In a suit on an attachment bond against
a surety, the plaintiff is not entitled to recover exemplary damages
PLEADINGS AND PRACTICE-Continued.
unless the principal is fixed with malice, or a wrongful abuse of
the process.
Id.
34. Attachment. Damages. Surety on bond. Since the adoption of the
Code a suit for damages against a creditor for the wrongful suing
out of an attachment is an action on the facts of the case, and the
measure of damages is precisely the same as in a suit upon the
attachment bond, malice and a want of probable cause going in
aggravation, and a judgment in such a case on the merits in favor
of the defendant is conclusive between the parties, and will enure to
the benefit of the surety, and may be relied on as res adjudicato,
under the general issue in an action upon the bond. Id.
1. Liquor dealers. A wholesale liquor dealer is one who sells to pur-
chasers in packages or quantities for the purpose of trade or to be
resold. A retail dealer is one who sells to persons or consumers
for the purpose of consumption. Webb v. Baird, 667.
2. Dealers in futures. A person who receives orders to buy or sell in
New York or elsewhere, produce for delivery at a future time, who
executes these orders through correspondents, he having no pecu-
niary interest in the transaction further than charging commissions
is a dealer in futures, and under the act of 1883 is liable to a tax of
$1,000. Memphis Brokerage Association v. Cullen, 75.
3. Retail and wholesale liquor dealer. A retail dealer is one who sells
by small quantities to suit customers articles which are bought
in larger quantities generally. A wholesale dealer is one who sells
in gross and not by the small quantity to consumers. Id., 13.
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