Volume 1 — Shannon's Tennessee Cases

In this case in tbe circuit court of Grainger, May term, 1846, a motion was made by the defendant for a judgment of non pros, for want of replication. At tbe January term, 1847, tbe defendant amended bis plea. At the September term, 1847, on Saturday, tbe 28th of August, a general continuance (1) of all cases on tbe civil docket not litigated, (2) was entered.

This was an action in the circuit court of Roane county brought by the plaintiff against the defendants, upon a sealed instrument originally executed for the sum of eight hundred and ■ — —— dollars. Afterwards, without the knowledge of the plaintiff, and in the absence of the defendants, the blank was filled with the words “eighty four,” by an agent of the defendants, having merely a parol authority to do so.

This was a bill filed in chancery, at Madisonville, to enforce the redemption of land sold at execution' sale and purchased by respondent Spilman. After the sale, Spilman, by contract with Hamilton, the execution debtor, obtained an absolute deed to the land for a valuable consideration.

The plaintiff, Julian F. Scott, had a cause pending in the circuit court, and sued out an attachment in aid of the same before a justice of the peace. In doing so, he omitted by mistake to sign the affidavit on which the attachment was based, although the same was sworn to; and he requested permission to amend this defect in the circuit court, which the circuit judge refused, and thereupon discharged the attachment. From this order, the plaintiff appealed.

<p>EXECUTION. Justice’s functus officio after thirty days.</p> <p>An officer is liable to an action of trover for levying an execution issued by a justice of the peace more than thirty days before the levy, and he cannot justify himself under it. [A justice’s execution is returnable in thirty days, and after that time is functus officio. Code, secs. 4752, 4753, and note; Id., sec. 5906, subsec. 29, and note; Clingman v. Barrett, 6 Hum., 21. See Shell v. Huddleston, 2 Tenn. (Ov.), 40.]</p>

This was a certiorari to a justice of the peace. The reason stated in the petition for not appealing was, .that the plaintiff agreed after judgment to arbitrate the matter, and thereby prevented the defendant from appealing. It appeared that the plaintiff was an infant, and it was hence insisted that the agreement was void. The circuit judge held the reason for not appealing insufficient, and dismissed the petition; whereupon the defendant appealed to this court.

A garnishee answered before a justice of the peace that he had three hundred pounds of porlc in his hands belonging to tbe defendant,;, whereupon the justice rendered judgment against the defendant for the value of the pork. The garnishee did not appeal from this judgment within the time prescribed by law; but brought the case into the circuit cornt by certiorari, where the judgment of the justice was quashed.

<p>PEACTICE IN SUPEEME COUET. Writ of error issues, how.</p> <p>The writ of error issues, of course, as a matter of right out of the supreme court clerk’s office [at any time within one year after the judgment or decree, Code, sec. 4916], and the supreme court will not entertain a motion for it. [On the subject of writ of error, see Code, sec. 4911-4932, and notes.]</p>

<p>CRIMINAL LAW. Repossession after dispossession.</p> <p>Where the wife and children, in the absence of the husband, yield possession to an officer with the writ of possession, the husband is dispossessed within the meaning of the law. (Code, secs. 6521-6523.)</p>

<p>1. MULTIFARIOUSNESS. Distinct matters against one defendant, not.</p> <p>A father had inherited his son’s estate as sole distributee, but the administrators of the son’s estate never made any settlement; the father died leaving a will and one of said administrators his executor. A bill by the legatees and distributees of the latter estate, bringing the defendant before the court both in his capacity of administrator of one estate and executor of the other, is not multifarious. [See notes under see. 6137 of the Code.]</p> <p>Cited and construed: Code (1858), sec. 4337; Shannon’s Code, sec. 6137.</p> <p>3. ADMINISTRATION. Personal representative liable within two years, when. *-</p> <p>The persons entitled to the estate may proceed against the personal representative within the two years, and compel him to settle and pay over, where they can show that there is no necessity for the delay, or that it is unjust to them, and not required by the condition of the estate that they should be so long postponed in the enjoyment of their rights. [See note 1 under sec. 4048 of the Code, and notes under sec. 4054.]</p> <p>Cited with approval: Iredell Law, 337; 7 Iredell Eq., 139.</p> <p>Cited and construed: Code (1858), secs. 3313-3314, 3397, 3309; Shannon’s Code, secs. 4048-4050, 4033, 4045; Act 1789 [Shannon’s Code, sec. 4047.]</p>

<p>1. STATUTES OE LIMITATIONS. Wills made before, not affected by. Retrospective laws. Constitution.</p> <p>Statutes of limitations prescribing- the time within which wills may be probated, and declaring- the probate and the letters testamentary granted after that period utterly void and of no effect, do not apply to wills made before their enactment, and only affect wills made afterwards. . The constitution prohibits retrospective laws, or laws impairing the obligar tion of contracts, and a statute will be given a prospective operation only, so as to preserve its constitutionality, unless its terms show a clear legislative intent that it should have a retrospective effect. (Pp. 207-210).</p> <p>Cited and construed: Acts of 1831, ch. 24, sec. 3, Car. & Nich., 85; 1835, ch. 86, sec. 3, Car. & Nich., 86; 1841-42, ch. 69, sec. 2, Nich. Sup., 162; 1854, ch. 97, p. 176. All substantially incorporated into the Code of 1858, see. 2220; Shannon’s Code, sec. 3955. Cooley on Const. Lim., 370, 62, 63; Sedg. on Stat. and Const. Law, 190, 202, 408, 484.</p> <p>2. SAME. Wills made before, governed by rule before; rule as to setting aside probate.</p> <p>Wills made before the enactment of statutes prescribing- the time within which wills may be probated are subject to the rule which existed independent of the statutes that the executor of a will proved in common form might at any time within thirty years be compelled by a person having interest to prove it, per testes, in solemn form. The probate in common form may be set aside within the time limited for the probate of wills. (Pp. 209, 210).</p> <p>Cited with approval: Burrow v. Ragland, 6 Hum., 486; Gibson v. Lane, 9 Yer., 479.</p> <p>3. WILLS. Probate set aside on other g-rounds than for issue of devisavit vel non.</p> <p>A motion to set aside the probate of a will may be made on other grounds and for other purposes than to procure an issue of devisavit vel non, and it forms the corpus of a legal contestation proper to be settled, finally, before the issue of devisavit vel non be tried, and it does not so incorporate and blend itself with the subsequent proceeding, if one should take place, as not to be separated from it, and to be distinctly disposed of. (Pp. 210, 211). The motion lies to set aside the probate in the county court independently of the question as to the proper factum of the will itself. Such motions should always be founded on due and sufficient cause; and the probate of a will in a common form should not be set aside rashly or without adequate reason. (P. 213). In this case the application was made by petition, [and that is the proper practice. See Cornwell v. Cornwell, 11 Hum., 487, and citations there].</p> <p>Cited with approval: Wynne v. Spiers, 7 Hum., 407, 408; Corn-well v. Cornwell, 11 Hum., 486; Johnson v. Gaines, 1 Cold., 290; 6 Hum., 485; 3 Head, 635.</p> <p>4. WILLS. Probate thirty-three years after testator’s death .set aside on petition.</p> <p>Where administration is granted, the estate wound up, and the division and distribution thereof in accordance with law, is acquiesced in by the heirs and distributees who have knowledge of a will which was not fraudulently concealed or suppressed, which is probated in common form thirty-three years after testator’s death, the probate will be set aside upon petition to the county court, the time for probating- wills being limited to thirty years by the analogy of the common law applicable in this country. (Pp. 211, 213). [Petition is the proper practice. See Cornwell v. Cornwell, 11 Hum., 487j and citations there.]</p> <p>Cited with approval: 2 Redf. on Wills, 67, 105; 1 Williams on Ex. (5th Am. ed.), 509, 510, 236; 4 Bouv. Bae. Ab., 60, 61 (E), 12.</p> <p>5. WILLS. ADMINISTRATION. Probate of wills and grant of administration set aside at subsequent term.</p> <p>The' power and jurisdiction of the county court to set aside the probate of a will in common form made at a former term is doubled, but not decided, because the right was res adjudicated in another suit directing the suit in the county court to set aside the probate. (Pp. 211, 2J2). [But the power and jurisdiction of the county court to set aside probates in common form, and administrations granted at former terms is established now. See Roberts v. McMillan, 9 Lea, 571-573; Rice v. Uenly, 6 Pickle, 75, 76.]</p> <p>Cited with approval: 2 Swan, 165; 4 Cold., 70; 2 Red. on Wilis, 67, 105; 1 Williams on Ex. (5th Am. ed.), 509, 510, 236; 4 Bouv. Bac. Ab., 60, 61 (E) 12.</p> <p>6. ADMINISTRATION. WILLS. Letters of administration and letters testamentary, convertible terms.</p> <p>The terms “letters of administration” used in the statute prescribing the time within which administration may be granted, include the terms “letters testamentary,” as convertible terms, within the meaning of the statute, at least so far as the limitation of time within which either may be granted, after the death of the decedent, is concerned. (P. 207). [See Code, sec. 3955, and notes.]</p> <p>Cited and construed: Code (1858), sec. 2220; Shannon’s Code, sec. 3955.</p> <p>7. WILLS. Widow’s dissent presumed after thirty-three years, when.</p> <p>As the statute does not prescribe the manner in which the widow may dissent from her deceased husband’s will, but simply declares that “she shall signify her dissent in open court,” it seems that it may be presumed, after she has held, owned, and enjoyed her dqwer and distributive share in her husband’s estate openly, notoriously, and publicly for thirty-three years, that her dissent was signified in due time, and that the record has been lost, or through, some neglect the county court failed to cause this action to be enteredUpon its minutes. (Pp. 214, 215). [See notes under sec. 4146 of the Code.]</p> <p>Cited and construed: Act of 1784, ch. 22, sec. 8, Car. & Nich., 262; Code (1858), sec. 2404; Shannon’s Code, sec. 4146.</p> <p>8. WILLS. Probate in common form almost a matter of course.</p> <p>Written wills with subscribing witnesses thereto, when not contested, may be admitted to probate in common form on the evidence of one such witness, and such probate is almost a matter of course. (Pp. 211, 212).</p> <p>Cited and construed: Act of 1789, ch. 23, see. 1, Car. & Nich., 708; and Code of 1858, sec. 2171; Shannon’s Code, sec. 3904.</p> <p>9. WILLS. Appeal from county court on motion to set aside probate.</p> <p>An appeal lies to the circuit court from the order of the county court refusing to annul the probate, upon such a motion to set it aside on other grounds and for other purposes than to procure an issue of devisavit vel non. [See note 31 under sec. 3913 of the Code.] (Pp. 210, 211).</p> <p>Cited with approval: Wynne v. Spiers, 7 Hum., 406-408; Corn-well v. Cornwell, 11 Hum., 485; Johnson v. Gaines, 1 Cold., 290.</p> <p>10. PRACTICE. Nominal plaintiff ca.nnot prevent use of his name, when; but may avoid costs.</p> <p>A person cannot prevent the use of his name as a plaintiff by parties entitled to use it, but upon a petition to the court to prevent the use of his name, he will be relieved from liability for costs. (Pp. 205-207).</p> <p>11. CONSTITUTION. Retrospective laws operating remedially, valid.</p> <p>Retrospective legislation, when designed to cure from all defects, or otherwise operate remedially, is not constitutionally objectionable. (Pp. 209, 210).</p> <p>12. WITNESS. Impeached and sustained, lessens value of testimony.</p> <p>A witness whose credibility on oath is assailed by twelve, and sustained by seventeen witnesses, must, in this attitude, be regarded at least as a witness of doubtful veracity. (P. 216).</p>

<p>1. FEME COVERT. Conveyance by. Clerk’s privy examination judicial act.</p> <p>It was the intention of the legislature to make the execution of a deed by a married woman, one of the most solemn acts known to the law. The act of the clerk in taking the privy examination of a married woman is not altogether ministerial in its character; it was designed to be a judicial act, or at least assimilated to a judicial act. (Pp. 226, 227). [See note 11 under sec. 3756 of the Code; Cooper v. Hamilton, 13 Pickle, 287.]</p> <p>2. SAME. Clerk’s duty in privjr examinations.</p> <p>The clerk, in taking the privy examination, must not only be satisfied that she understands the nature of the act, but that she fully understands it, and as evidence that he has performed his duty, he must put on the back of the record, or annex to it, the prescribed certificate. (Pp. 227, 228).</p> <p>3. SAME. Same. Acts contemporaneous.</p> <p>The privy examina,tion and the certificate were designed by the statute to be contemporaneous acts; and the execution of the deed to pass the married woman’s estate and title, is imperfect and incomplete until the official- act of the clerk, or other officer, is made perfect and complete by meeting in letter and spirit every requirement of the statute, and if the clerk is stricken by paralysis or lig-htning’, so as to be deprived of life or rendered incapable of action before he makes his certificate, the failure to malee it is not such an accident as equity can relieve against-. (P. 228).</p> <p>4. SAME. Same. Conveyance. What necessary to complete.</p> <p>A conveyance by a married woman of her estate must be in strict accordance with the letter of the statute. The statute must be construed strictly, and the conveyance cannot be considered as the complete. act of the wife until the certificate has been placed upon it. (P. 228). [Notes 3 and 20 under sec. 3756 of the Code.]</p> <p>Cases cited: 1 Meigs’ Dig-., sec. 1071; Code, secs. 2076-2079, 2042, 4731, 4732, 2082, 2083, 2478-2488, 2805, 3319, 3433, 4052 [Shannon’s Code, secs. 3753-3756, 3717, 6609, 6610, 3759, 3760, 4231-4249, 4505, 5068, 5189, 5867]; Tyler on Inf. & Cov., 504; 2 Kent. (6 ed.), 150 m.</p> <p>5. SAME. Same. Jurisdiction- of equity.</p> <p>Wife cannot, by her own deed alone, pass her freehold estate, and it cannot be conveyed in any other mode than that prescribed by statute, and equity has no jurisdiction to treat the neglect of the clerk to record the privy examination upon the deed, as an accident or mistake upon which relief can be obtained against a feme covert. (P. 228).</p> <p>6. SAME. Same. Feme covert. Not to account for purchase money, when.</p> <p>A married woman’s separate estate will not be held responsible, nor will she be made to account for purchase money paid to her husband, when the conveyance has been defectively acknowledged, or the certificate of the clerk has not been annexed or attached to the deed; when, from the facts in the case, it appears that the married woman did not, in fact or in law, perpetrate a fraud, and where the purchase money was paid to her husband, without her authority, after she had avowed her purpose never to execute the deed, and where the parties had full knowledge that she was dissatisfied with the contract. Difference in principles and facts decided in this case and the case of Pilcher & Cataulis, Adm’r, v. Smith and wife, 2 Head, 208, considered and pointed out. (Hp- 231-233). [See Aiken v. Slit-tie, 4 Lea, 125; Shields v. Netherland, 5 Lea, 193.]</p> <p>7. ARGUENDO. Same. In other states and authorities.</p> <p>In other States it has been held that husband and wife cannot convey the wife’s land by separate deeds; that she is not estopped by signing bond to convey; that a deed not duly acknowledged by her, conveys only the husband’s use, and that the clerk’s certificate must actually show that the deed has been explained to her, and that she was fully informed of her rights. See Glidden v. Simpler, 52 Penn., 400; Baxter v. Bodkin, 25 Ind., 172; O’Eerrall v. Simplot, 4 Green (Iowa), 162; Pease v. Barbress, 30 Cal., 436; Garrett v. Moss, 22 111., 223; Elliott v. Pearce, 20 Ark., 508; Dewey v. Campan, 4 Mich., 565; Dalton v. Murphy, 30 Miss. (1 George), 59; Louder v. Blythe, 27 Penn. State R., 22; Ibid., 170; McCreary v. McCreary, 9 Rich. Bq. (S. C.), 84; Selover v. Commercial Co., 7 Cal., 266; also, Reeve’s Dorn. Rel., 3 ed., 195, note 1; and Barrett v. Shackelford, 6 J. J. Mar., 532. So,' in this State it has been held that the wife cannot, by her own deed alone, pass her freehold estate, and that it cannot be conveyed in any other mode than that xuescribed by statute. Cope v. Meeks, 3 Head, 387; Gillespie v. Worford, 2 Cold., 037; also Matherson v. Davis, ¿ Cold., 443; Norment v. Wilson, 5 Hum., 310, 311; Perry v. Calhoun, 8 Hum., 554; Montgomery v. Hobson, Meigs, 437; Henderson v. Rice, • 1 Cold., 225; Mount v. Kesterson, 6 Cold., 483. (Pp. 229, 230).</p>

<p>3. SEPARATE ESTATE. Express powers of married woman over.</p> <p>A married woman has only such powers as a feme sole over her separate estate in realty as are given her by the instrument creating the estate, by a fair construction of the language used. (Pp. 241-246). [By statute since enacted, she has the powers oí a feme sole over her separate estate with privy examination, unless the power of disposition is expressly withheld. See Code, secs. 4242-4246, and notes 16-24.]</p> <p>Cited with approval: Morgan v. Elam, 4 Yer., 445-447, 451; Porter v. Baldwin, 7 Hum., 175; The Methodist Church v. Jaques, 3 John. Chy., 78.</p> <p>Cited as to the English law: 1 L. C. in Eq., 504, 517, 519, 528, note to Hulme v. Tenent (1 Br. C. C., 16); Francis v. Wigg-en, 1 Wadd., 264.</p> <p>3.SAME. Implied powers of married women over.</p> <p>If a specific mode of disposition or sale is pointed out in the instrument, then the power must be exercised in substantial accord with this mode, but subject to the general principle that to attain the ends of the settlement, the support and maintenance of the wife, or the proper use and enjoyment of the estate, or for its protection and security, the wife would, of necessity, have the implied power to charge by express contract to that effect, such charg-e to be enforced under the direction of a court of chancery. (P. 248). | Cited in Webster v. Helm, 9 Pickle, 326. See notes 24, 29-55 under sec. 4246 of the Code.]</p> <p>Cited with approval: Marshall v. Stephens, 8 Hum., 159; Litton v. Baldwin, 8 Hum., 209; Cherry v. Clements, 10 Hum., 552; Ware v. Sharp, 1 Swan, 489; Woodrum v. Kirkpatrick, 2 Swan, 224; Simmons v. Kincaid, 5 Sneed, 453; Hoyle v. Smith, 1 Head, 90; Hughes v. Peters, 1 Cold., 67; 4 Kent’s Com., 148.</p> <p>Cited and doubted: Young v. Young-, 7 Cold., 461.</p> <p>3. SAME. Power executed without reciting it.</p> <p>Where the power of disposition conferred on the married woman by the instrument creating her separate estate in land, requires that it be made by a writing signed by hex-hand in the presence of two creditable witnesses, and she makes a promissory note according to these requirements, without stipulating on its face that it is to be a charge upon her separate estate, or that it is in execution of the power so conferred by such instrument, such note is a charge upon, and binds, her separate estate for its payment, where that was the eonti act and understanding, though not so expressed in the note, for it clearly appears that the note was in execution of the power. (I’p. 241, 242, 24S-251, 254). [But see notes 32, 36, 37 under sec. 4246 of the Code.]</p> <p>Cited with approval: 4 Kent’s Com., 330, 334, 336; Gee v. Graves, 2 Head, 242, 243.</p> <p>Cited with approval and distinguished: Gilliam v. Essehnan, 5 Sneed, 88.</p> <p>4. SAME. Contract to charge, how proven, and enforced.</p> <p>A contract to charge the separate estate, made in the exercise of the power given in the instrument creating- such ^estate, may be proven as other contracts, and when so proven, is enforced, not as a lien, but as a contract, by a court of chancery against the estate, by a sequestration and appropriation of the rents, profits, hires, issues, etc., as the first source, a.nd in a proper case by a sale of such portion of the corpus of the property as may be deemed best by the court. (I’p. 251, 252). [See notes 34, 40 under sec. 4246 of the Code..]</p> <p>5. APPLICATION OF PAYMENTS. Creditor may make when debtor does not, generally.</p> <p>As a general rule a creditor has the right to apply payments made, unless directions as to their application is given by the debtor. But this rule is 'subject to exception to prevent injustice. (P. 253).</p> <p>Cited with approval: Bussey v. Gant, 10 Hum., 242.</p> <p>Ü. TRUSTEE’S SALE. Measure of damages for which iron-complying purchaser is liable.</p> <p>Where a sale of land is made by a trustee under a deed of trust, and the auctioneer makes a sufficient memorandum of the sale, or the statute of frauds is otherwise complied with, so as to make a binding contract, and the purchaser fails or refuses to comply with the terms of the sale, and a resale is subsequently made by said trustee for a less sum than the first sale, the non-complying purchaser at the first sale is liable for the damages measured by the difference between his bid and the market value of the property at the time. The measure of damages is not the difference between the amount of the first and second sales, but the excess of the first sale over the market value at that time. (Pp. 255-257). [Remedy m execution sales of pei.sona.lty. See notes 24, 25 under sec. 4785 of the Code. Remedy in judicial sales of realty1. Sharp v. Hess, post, p. —; Gibson’s Suits in Chancery, sec. 617.]</p> <p>. Cited and distinguished: Williams v. Godwin, 4 Sneed, 557, McClure v. Williams, 5 Sneed, 717. [The last case is cited with approval in Roberts v. Westbrook, 1 Cold., 119, 120; and both cases in Harris v. Rogers, 6 liéis., 630.]</p>

<p>1. WILLS. EVIDENCE. Opinion of attesting- witnesses.</p> <p>Subscribing- witnesses only may give their opinion as to the sanity of testator, without giving- their reason.</p> <p>3. SAME. Opinion of physicians.</p> <p>A physician may state his deduction, as matter of professional opinion, from facts stated by others, or observed and stated by himself.</p> <p>3. SAME. Opinions of other witnesses.</p> <p>Other witnesses must state facts, and upon these facts, observed by themselves, they will be permitted to give their opinion, whether upon such facts they believe testator to be of sound or unsound mind. Prom the state of the testator’s mind, to be ascertained from the facts and not- from opinion, the jury is to determine the question whether the testator had capacity to make a will. But whether the particular phase of mental unsoundness deprives a person of testamentary capacity, is a matter for the exclusive determination of the court and jury. [See note 9 under sec. 3913 of the Code. Witness may, under the rule stated in this syllabus, testify that testator was not of “sound mind,” but he will not be permitted to testify that testator was not of a “disposing memory.” Wisener v. M'aupin, 3 Bax., 358-361.]</p> <p>Cited with approval: 1 Phil. Ev., 661; 1 Grreenl. Ev., sec. 440; Runyan v. Price, 15 Ohio-, 19; Gibson v. Gibson, 9 Yer'., 333: Van ITuss v. Rainboldt, 2 Cold., 139; Puryear v. Reece, 6 Cold., 21, 29; 1 Redf. (N. Y. Sur..Rep.), 118.</p> <p>4. SAME. Arguendo.</p> <p>After all it may be said to be á practice of questionable propriety to permit any witness other than an attesting or professional witness to bring into the scales his private opinion, even upon facts observed and stated by him as to the testator’s sanity.</p>

<p>1. GUARDIAN AND WARD. Surety can sue for ward’s estate wrongfully converted, when; bills consolidated.</p> <p>Where the ward files a bill against his guardian and sureties seeking- to recover the fund due him, and pending this suit the sureties file their bill against the guardian and ward, and other new parties, charging that the new parties had fraudulently converted the g-uardian funds of the ward, and also that the guardian was insolvent, and praying that they be required to account for the same, and that the bill be filed as a cross-bill, and heard with the original, etc., such bill of the sureties will be treated as an original bill, and will be consolidated and heard with that of the ward against the guardian and his sureties, and the new parties will be held liable for the converted property, and the reoovery subjected and applied to the payment and discharge of the liability of the sureties. [See note under next syllabus.]</p> <p>2. SAME. Same. Before liability fixed by judgment, when.</p> <p>The sureties of the guardian may maintain a bill to reach such converted fund and have it applied so as to indemnify themselves before any liability is fixed against them by judgment, where the insolvency of the guardian is alleged. [See Code, see. 6097, and notes, and specially note 13; sec. 5314, and notes; Gillespie v. Darwin, 6 Heis., 37; Miller v. Speed, 9 I-Ieis., 301; Watson v. Sutherland, 1 Tenn. Chy., 311; Eberhardt v. Wood, 3 Tenn. Chy., 495; Harlan v. Sweeny, 1 Lea, 686; Galliher v. Galliher, 10 Lea, 39, 30; Railroad v. Greer, 3 Pickle, 710.</p> <p>Cited with approval: Henry v. Compton, 3 Head, 550.</p> <p>3. CHANCERY PLEADING. Whether bill or cross-bill determined from facts.</p> <p>The prayer of the bill that it be filed as a cross-bill does not necessarily make it such. The object and purposes of the bill, together with its facts, must be looked to-, in order to determine its office and character. [In this case it was objected to the bill as a cross-bill, that it could not bring- new parties into the suit; but it has since been settled that a cross-bill may bring- new parties into the suit. [See note 9 under sec. 6133 of the Code; Huffmaster v. Payne, 3 Shannon’s Cases, —.]</p>

<p>1. CHANCERY SALE. Opening biddings.</p> <p>Land sold on time, without the equity of redemption, under decree of the chancery court, brought $5,065, and before confirmation the defendant and original owner secured a thiid party to offer to- advance the bid to $7,000, with securitj to make the bid good. On this state of facts, the biddings shomd be opened at $7,000, and held open for thirty days for any additional bids.</p> <p>2. SAME, Same. Advance bid, sufficient ground for.</p> <p>The petition need present no ground for opening the biddings before a confirmation of the report of sale, except the advance bid, if that be such as to furnish an inducement under all the circumstances to a resale of the property.</p> <p>Cited and distinguished: Houston v. Aycock, 5 Sneed, 406 (a ease after sale was confirmed); approved, Owen v. Owen, 5 Hum., 352; approved, Donaldson v. Young, 7 Hum., 266; McMinn v. Phipps, 3 Sneed, 200; disapproved, Johnson v. Quarles, 4 Cold., 615.</p> <p>3. SAME. Same. Amount of advance bid for.</p> <p>The amount of the advance necessary to- open the biddings is a matter in the discretion of the court upon the facts of each case. An advance of ten per cent, where the sale was for a small sum, does riot furnish as strong a ground to open the biddings as where the sale was for a large sum. [By judicial legislation, the rule is laid down in the case of Click v. Burris, 6 Heis., 539, 544-546, that the biddings will be opened in all cases where there is an offer to advance the bid ten per cent.]</p> <p>4. SAME. Same. Advance bidder may give proper bond in lieu of defective bond, when.</p> <p>If the bond given by the proposed advance bidder is not in strict accordance with the practice, the court should not refuse to open the biddings upon this ground, if he will give a proper bond, upon the direction of the court.</p> <p>5. SAME. Master’s sale not complete till confirmation. Bights of bidder.</p> <p>The master’s sale is only to be regarded as an offer or bid, and is not a valid contract until confirmed by the court. The time for redemption does not begin to run until confirmation of the sale. Before that time the purchaser is not entitled to a conveyance or to possession, neither is he liable to any loss or injury by fire or other-wise which may happen to the estate in the interim.</p> <p>Cited with approval: Childress v. Hurt, 2 Swan, 490; Morton v. Sloan, 11 Hum., 278; Wood v. Morgan, 4 Hum., 371.</p>

<p>DURESS. Not dependent on the power of the party threatened to resist.</p> <p>Threatened violence of a character, and under circumstances impressing a reasonable man with a fear of it, depriving him of free will and liberty, and inducing him to do what he would not otherwise do, and what the law would not compel him to do, is duress. The question of duress does not depend upon the possible physical ability of the party threatened to defend himself against the threatened injury.</p>

<p>1. MARRIED WOMEN. Deed of, in pursuance of husband’s title bond, good.</p> <p>A deed to land executed by a wife, freely, voluntarily, and understanding!}', after she becomes of ag-e, in pursuance of her husband’s title bond to the purchaser, with no fraudrilent device used to procure her execution of it, nor coercion on the part of the husband, will not be set aside simply because made in pursuance of a binding- contract on his part to make such a conveyance; and especially not after twenty-six years acquiescence in the deed by the wife, several of which years were passed in widowhood.</p> <p>2. LAPSE OE TIME. Evidence, when not a bar by statute.</p> <p>Lapse of time, as such, may not be pronounced an. absolute bar to relief independent of the statute of limitations, but it operates as a witness, and after long acquiescence, strong and satisfactory evidence is required to overcome the conclusion to be drawn from it.</p>

<p>GRIM INAL LAW. Jury judges oí law and facts.</p> <p>'Plie jury in criminal eases are the judges of both the law and the facts as well in misdemeanor cases as in felony cases.</p> <p>¡See Herman v. State, post, page-, citing this case.] ■Cited with approval: Turkey v. The State, 3 Ileis., 26.</p>

<p>DAMAGES FOR DEATH. For widow and all the children of decedent, and rig-hts not prejudiced by suit naming part only.</p> <p>Where a widow institutes and prosecutes a suit in the name of the personal representative of her deceased husband, to recover damages for wrongful injuries, acts or omissions, causing his death, the recovery, less expenses and charges, inures to the benefit of the said widow, and all the children of the deceased, equally, whether the children be of the last marriage or of any former marriage, and though the suit is expressly brought for the use of the widow and the decedent’s children by her, naming them, and not naming- the children of the former marriage. It is not essential that the children for whose use the suit is instituted be named, a.nd the naming- of part of them will not prejudice the rights of those not named. The children not named in the suit may sue for and have a recovery for an equal distribution of the fund recovered as such damages among all the children a.nd the widow of the deceased. [See generally notes under sec. 4029 of the Code, and as to the non-necessity of naming- the. children in suit of the personal representative or widow, see specially note 23 under said section. This case is cited and approved in Collins v. Railroad, 9 Ileis., 849, 850.j</p> <p>Cited and construed: Code (1858), secs. 2291-2293; Shannon’s Code, secs. 4025, 4026, 4028.</p>

<p>1. COMMON CARRIER. Railroad must move car to track of another railroad to save goods from damage from flood, when.</p> <p>In an action against a railway company for damag'es for the non-delivery of g-oods intrusted to it as a common carrier, where the defense is that the damag'es occurred through an extraordinary and unprecedented flood, it is competent to prove that at the time and place of the flood a portion of the track of another railway company near by was unoccupied and nqt overflowed, and that the defendant’s cars could have been transferred to said track, but that the use of said track was not tendered to the defendant by the company owning it, nor was its use requested by the defendant. If the transfer to the other track was fairly within its power in the use of such diligence, consistent with the surrounding- circumstances and duties, and the. same could have been obtained without trespassing on the rights of the other company, but by their consent, then it would have been the duty of the defendant to have so moved the cal' in which the goods in question were, and thus saved them from damage. And whether this could have beeh done -was a question of fact for the jury. [See Railroad v. David, 6 Heis., 261; Railroad v. King, 6 Heis., 269; Lamont v. Railroad, 9 Heis., 68; Dillard v. Railroad, 2 Lea, 299.]</p> <p>2. SAME. Not liable for delay resulting from providential causes.</p> <p>Any delay in the transportation of goods by the common carrier, it seems, would clearly, on principle and authority, be excused, and not create liability on his part, when such delay was the result of providential causes, such as the freezing- of the river, or loss of bridges, or floods; but it is his duty, after the removal of the obstructions, to proceed in performance of his contract. [See Railroad v. King, 6 Heis., 269; Railroad v. Jackson, 6 Heis., 271; Southern Express Co. v. Womack, 1 Heis., 256; Baker v. Railroad, 10 Lea, 307; Railway v. Wynn, 4 Pickle, 324; Express Co. v. Jackson, 8 Pickle, 326.]</p> <p>Cited with approval: Empire Transportation Co. v. Wallace, 68 Penn. St., 202; Redf. on Carriers, secs. 210, 220, 237, 304, 305, 358, note 1 to page 221; Hadley v. Clark, 8 Term Rep., 259; Angelí on Carriers, sec. 289.</p>

<p>1. PRIVATE OR QUASI PUBLIC CORPORATIONS. Powers, express and incidental.</p> <p>Private or quasi public corporations, in their ordinary operations, are creatures of the law, and can only exercise the powers conferred by their charter, and for the purposes and ends of their creation. Such incidental powers as are usual, necessary, and proper to carry out and render effectual the granted powers, are always, as a matter of course, implied. (P. 296).</p> <p>2. SAME. Restrained from exceeding powers, when.</p> <p>When the corporation or its directors are proposing- to engage in a business not authorized, or in a misuse or diversion of the corporation funds from their legitimate objects, as defined in their charter, the courts will maintain the principle stated in the last syllabus with stringency and • vigor, and will restrain the parties from such violation of the charter, or from going beyond its boundaries. (P. 297).</p> <p>Cited with approval: Bradley v. Ballard, 8 Am. Rep., 659 [S. C., 55 111., 413.]</p> <p>3. SAME. Liability of directors, etc., for acts in excess of powers rested on what.</p> <p>Where the act in excess of power done by the officers, director s, and agents of the corporation is complete, their individual responsibility is rested on the ground of fraud on. the corporation, or of connivance at such fraud in others, or when such fraud might have been prevented had they g'iven ordinary attention to their dirties, or where there was a clear, unmistaking want of authority to do- the act complained of, and the parties must have known they were acting beyond their powers and in violation of their duties. Corporations are held to the same principle of honesty and good faith as individual persons. (Pp. 296, 297).</p> <p>Cited with approval: Spering’s Appeal, 10 Am. Rep., 686-688 [S. C., 71 Penn. St., 11]; Pickering v. Stephenson, 3 Eng. Rep. (by Moak), 771 [S. C., L. R., 14 Eq. Cas., 342]; Zabriskie v. Railroad, 23 How., 400, 401 [S. C., L. ed., Book 16, p. 498].</p> <p>4. SAME. Contracts ultra vires. Restrained, and not enforceable while executory, but enforceable after executed.</p> <p>While the contract remains unexecuted on both sides, a corporation may defend against its enforcement on the ground that it was ultra vires, and the power of a corporation will not be extended beyond their proper limits for the purpose of enforcing the contract; but if the other party proceeds in the performance of the contract, expending his money and his labor in production of values, which the corporation appropriates, it will not be excused from payment, or perA formance on the plea that the contract was ultra vires. Before a contract ultra vires is executed, a court of chancery, on the application of a stockholder, or any other person authorized to- make the application, will interfere and forbid its execution. (P. 297). -</p> <p>Citad with approval: Bradley v. Balla-rd, 8 Am. Rep., 659 [S. C., 55 111., 413], and citations.</p> <p>5. SAME. Same. Binding on corporation, specific performance decreed, when.</p> <p>Where a contract ultra vires is such a one as is binding upon the corporation according to the principles of the foregoing syllabi, though in its nature a continuing contract, and in part must remain executory, a court of chancery will decree and compel a specific performance of the contract by the corporation, by the injunctive powers of the court, where nonperformance cannot be compensated in damages. (Pp. 300, 301).</p> <p>Cited with approval: 1 Cond. E. Ch. R., 313; 2 Redf. on Railway, 34, note 6; 13 Ohio State R., 544.</p> <p>6. SAME. Railroads have right to buy other roads.</p> <p>Under our law railroad corporations have the power to acquire by purchase, or other lawful contract, and have, hold, use, and operate any other railroad corporation. A purchase under this law is an acceptance of its provisions, and acquiescence by the stockholders in such action amounts to assent to the action of the corporation. The question whether this law became a part of the charters of railroad corporations of the State, without acceptance by some definite act, was reserved. The question how far- such new power would be binding on a dissenting stockholder was also reserved, because no dissent was shown. (P. 299).</p> <p>Cited and construed: Acts of 1871, eh. 69. [See Code, secs. 1509-1537.]</p> <p>Cited with approval on point reserved as to dissenting- stockholder: Zabriskie v. Hackensack & New York Railroad Co. et al., 6 Am. Law. líeg-., 420.</p> <p>7. SAME. Purchasers for not bound as individuals.</p> <p>The parties who imrchased the Rog-ersville & Jefferson Railroad -for the East Tennessee, Virginia & Georgia Railroad Company, and its officers are not, as individuals, proper-parties to the suit- to enforce the contract by which alone the pm-chasing- road was bound, and, therefore, the demurrer of these individual parties to the bill should be sustained. (Pp. 294, 302, 303).</p> <p>8. COUNTIES. Corporations; and may sue in their own names.</p> <p>Counties are corporations, and as such, on general principle, may sue in their own names.- An objection to a suit in the name of the county does not g-o to the right to sue, and is not fatal. It is a mere form which may be dispensed with in a court of equity, or may be amended in that court after the case is remanded from the supreme court. A contract made with a county in its name may be enforced in its name. (P. 303). [See Code, secs. 493, 4485.]</p> <p>Cited and distinguished: Maury County v. Lewis County, 1 Swan, 239.</p> <p>9. CASE IN JUDGMENT.</p> <p>The county of Hawkins filed its bill alleging- that it was a stockholder in the Roger sville & Jefferson Railroad, that the East Tennessee, Virginia & Georgia Railroad Company had purchased the Rog-ersville & Jefferson Railroad under a decree in the chancery court in the case of the State of Tennessee against that and other delinquent railroads, to foreclose the lien retained by the State on it for the loan of its bonds, and that in that cause a decree was rendered by consent for a sale of the road, on condition that the purchaser, his successors and assigns, should continue to run and operate the road as it had been run and operated, with the right reserved in said county of Hawkins to institute suit to compel the execution of the said condition and stipulations, and that since the purchase the East Tennessee, Virginia & Georgia Railroad Company had fraudulently conveyed the ro,ad to- an insolvent party, to be held by him secretly and beneficially for the company, and as a fraudulent contrivance and device to avoid the performance of the condition of its purchase, and that the condi- . tion had not been kept and the road run as it was bound under its purchase to do, and prayed a specific execution of the contract of purchase. To- this bill there was a demurrer upon the grounds that the East Tennessee, Virginia & Georgia Railroad Company had no power to make the purchase, and that the county of I-Iawkins could not maintain the suit in its name.</p> <p>Held: First, that as the company had made, the purchase, and had held and conveyed nnder it, and as the contract was complete and executed, and as it had accepted the benefits of the purchase, it must also keep its terms and conditions; second, that in such a case a county may sue in its name, because it is a corporation, and because the contract sued on was made in its name.</p> <p>Cited: Act of 1851-58, ch. 151; Code of 1858, sec. 1101, on the rig-hts of the State against railroads to which it had issued bonds for their aid.</p>

<p>Appeal from Chancery Court of Bedford county.</p>

<p>1. EXEMPT PROPERTY. Right of widow to.</p> <p>The widow of a testator, influenced by the advice and counsel of the execntor to consent to a sale of the exempted property, tipon his representation that she was not entitled to anything more of the personalty than was given to her by the will, but making no release of her title to anyone, and receiving' no consideration for the surrender of her objections to its sale, is entitled to the proceeds of the sale of such of it as was by law exempt from execution, thoug-h she may not recover the property sold in specie. [See notes generally under see. 4033 of the Code, and particularly notes 5-9, 19.]</p> <p>Cited with approval: Puryear v. Reese, MS., Nashville, December term, 1871; Pride v. Watson, 7 Heis., 333; Blanchard v. Thompson, Jackson, April term, 1871; Code (1858), sec. 3388, Shannon’s Code, sec. 4033.</p> <p>2. WILL. Election of widow to take under.</p> <p>Where the widow, claiming them under the will of her husband giving her the privilege of talcing for her own use as much of his land and stock as she chooses during her life, selects and takes adverse possession of lands, aud takes, claims, and holds all the stock on hand and disposes of a part of it, she thus clearly evidences her election to avail herself of the provisions of the will, and she is irrevocably bound by such election.</p> <p>Cited with approval: 3 Redf. on Wills, 753; Fitts v. Cook, 5 Cushing', 596, distinguished.</p> <p>3. SAME. Same. Estopped to claim her own land devised to another.</p> <p>In such case, where the testator had devised, subject to said provisions of the will, certain real estate belonging- to- his wife to two of their daughters, a partition of which she procured, and expressed herself well satisfied that said two daughters should have the present use and possession of it, and encouraged the husband of one of them to build a house upon his wife’s part, although she (the widow) had a life estate under the will in the land thus divided, by her thus choosing- and selecting lands under the will, and relinquishing- her claims to her land so devised and divided, she is estopped to set up any claim to it.</p>

<p>PARDON BROKERAGE. Lawful when not obstructing public justice.</p> <p>The general principle that “pardon brokerag-e,” as it is called, when exercised in obstructing the regular course of public justice, is unlawful, and contracts founded thereon are not enforceable in the courts, can have no application to a case where the trial and conviction was had in violation of the constitution of the United States.</p> <p>Cited with axjproval: 1 Smith’s Lead. Cas., 635; 3 Am. Hep. 306; 4 Wall., 133; 50 Jiow., 173; Story’s Const., 546.</p>

<p>1. CRIMINAL LAW. Violation of state laws by federal soldier punishable by state courts, when.</p> <p>A federal soldier in the military service of the United States during the civil war, while the state was in the military occupation of the federal forces, and under a military governor, was subject to punishment by the state courts for the offenses committed in violation of the laws of the state, not as a soldier, but in personal revenge, notwithstanding the laws of the United States as contained in the articles of war may have prohibited the same offenses. On the qiiestion of offenses committed in violation of the laws of each, the two governments, federal and state, are as distinct and separate in their spheres of action as if they had no link of connection between them, and no federal relation existed. [See Coleman v. State, in this or the next volume of these reports. ]</p> <p>Cited with approval: State v. Eanlcin, 4 Cold., 147.</p> <p>2. SAME. Continuance oil material testimony tending to show mitigation.</p> <p>Testimony bearing- upon the question whether the accused acted under the instigation growing out of the bona fide belief that the deceased had stolen his horse, and not from a cool purpose, which mig'ht serve to aid in a defense reducing the offense from murder in the first degree to murder in the second degree, or to show mitigating circumstances, is material, and is sufficient cause for a continuance, when properly presented, by affidavit, and its absence satisfactorily accounted for.</p> <p>3. SAME. Same. When absence of witness is properly accounted for.</p> <p>The want of diligence in not having a witness subpoenaed is satisfactorily accounted for, when it is shown that the accused had been absent from the county for several years until his incarceration in jail, nearly a year before the trial, without opportunity to make inquiries as to the residence of the witness who had removed from the county, and whose removal was unknown to the prisoner’s counsel, -and whose residence he was unable to ascertain after his attention was called to the fact of removal. Where the evidence of such absent witness is material in a case involving life, the court will not exercise a sound legal discretion in refusing- a continuance, and for such refusal the supreme court will reverse the case, and remand for a new trial.</p>

<p>1. EXECUTION. Subsequent levy is void, when.</p> <p>Where an execution is levied upon the defendant’s personalty which is taken possession of by the levying officer, the subsequent levy of another execution by another officer will be void in the absence of any agreement between the first and second levying officers as to the joint possession of the goods. [See note 13 under sec. 4755 of the Code.]</p> <p>•Cited with approval: Alexander v. Speiry, 5 Iredell’s Law (N. C.), 475; Peohleten v. Shinses, 4 Dev. & Battle, 156.</p> <p>2. SAME. Wliat constitutes a valid levjr on personalty.</p> <p>A valid levy does not consist alone in writing' the levy upon the process. The goods must in fact be seized or talcen control of by the officer. Actual manual seizure is not necessary, but he must assume dominion and control over them, and the goods mnst be present or subject to his control. He may leave them in the hands of the debtor or any other person, but the possession in such case is that of the officer. [See notes 1-15 under sec. 4755 of the Code.]</p> <p>Cited with approval: Bradley v. Kesee, 5 Cold., 223; Brown v. Allen, 3 Head, 429.</p>

<p>1. DEDICATION OP LAND POR PUBLIC USE. By survey, plat, and sale of lots.</p> <p>A mere survey of land by the owner into lots, defining streets, squares, etc., will not, without sale, amomit to a dedication, yet a sale of lots with reference to such plot, will amount to an irrevocable and immediate dedication binding’ on both vendor and vendee, without any act of acceptance on the part of the public. The rights of parties are then fixed.</p> <p>Cited with approval: Scott v. State, 1 Sneed, 629; 2 Dillon’s Municipal Corporations, secs. 503 [3d ed., sec. 640], 505 [3d ed., sec. 642]; Cincinnati v. White, 6 Peters, 438, Curtis’ ed., 184; L. ed., Book 8, p. 456.</p> <p>2. SAME. Duty of corporation to repair, when.</p> <p>But to make a municipality liable for injury, for suffering the street or highway to remain defective, there must be an acceptance of the dedication. This acceptance may he express or implied.</p> <p>Cited with approval: 2 Dillon’s Municipal Corporations, sec. 505 [3d ed., sec. 642.].</p>

<p>1. CHANCERY PRACTICE. Decree for general account embraces matters properly presented by the pleadings, when.</p> <p>Where a decree for an account is general in its terms, and the master’s report embraces matters properly presented by the pleadings, but not specifically directed by the reference, and the report is confirmed without exception, the decree is valid, and settles the matters so embraced in the report, especially where the account would not have been complete, and would not have furnished the basis of a decree finally settling the questions in litigation, without embracing such matters. (Pp. 331-338.)</p> <p>Cited with approval: 2 Dan. Chy. PI. & Pr., 1297; 2 Story Rep., 261.</p> <p>2. INTEREST. Allowed executor as on partial payments, but not compounded yearly, where there is no settlement.</p> <p>When the executrix does not malee settlement for several years, during which time there is a general balance due her from the estate, and in addition, an annuity of twenty-five hundred dollars, it is not proper to allow her compound interest on the amount so due her, with annual rests, for she is only entitled to simple interest computed in her favor upon the principle applicable to partial payments. (Pp. 338— 340.) [Rule of computing interest in case of partial payments. See note 1 under sec. 3498 of the Code.]</p> <p>3. INTEREST. Compound interest contracted for is collectible.</p> <p>A contract to pay compound interest, with such rests as may be stipulated for, is valid, and may be enforced. (P. 340.) [See notes 11 — 16 under see. 3493 of the Code.]</p> <p>Cited with approval: House v. Tennessee Eemale College, 7 Heis., 128, and citations.</p> <p>4. INTEREST. Notes not changed from simple to compound interest by decree, when.</p> <p>Where the makers of notes for property sold under orders of court are ready to renew their notes with security when required and pay the interest semiannually, and the court orders the clerk and master to hold the notes until further orders upon payment of the interest semiannually to the executrix of the estate on her annuity; but the interest is not paid, nor the notes renewed, nor in anywise altered in the obligation to pa.y at the end of twelve months, such decree did not alter the original contract, aixd the makers of the notes are not obliged to pay compound interest. (Pp. 340, 341.)</p> <p>5. INTEREST. Executrix not to lose because compound interest is not collectible, when.</p> <p>In such case the makers of the notes not being bound to pay compound interest, the executrix cannot be compelled to suffer- the loss on hex- annuity, for the other persons interested were parties to the cause, and it was as much their duty as hers to take judgments on the notes and collect them if not paid. (Pp. 340, 341.)</p> <p>6. ADVANCEMENTS. Chargeable with interest, when; division of subsequent increase and profits of corpus in px-oportion of respective shares.</p> <p>Interest is not chargeable upon advancements previous to the death of the testatoi' or intestate, but after his death, or the time for partition and distributioxx fixed by the will in cases of testacy, the same rate of interest is charg-eable upon the advancements as is earned upon the corpus of the estate for partition and distribution; in other words, the advancements should be equalized oxxt of sixch corpus, estimated at the time the partition and distribution should have been made, and the accumulations upon the corpus in the way of increase, interest, profits, rents, etc., dux-ing any delay that occurs, should be apportioned to each according to his respective share in the corpus after the equalization of advancements; that is, each one should receive the profits that his share in the corpus has earned or accumulated, estimating the profits as having been accumulated upon the whole corpus. (Pp. 341-344.) [Cited and approved in Johnson v. Patterson, 13 Lea, 657; Williams v. Williams, 15 Lea, 451. See notes 33 and 34, sec. 4178, Code.]</p> <p>Cited with approval: Burton v. Dickinson, 3 Yer., 113; Mc-Dongal v. King, 1 Bailey (B. C.) Equity Repox-ts, 155; White v. White, 3 Dana (Ky. Rep.), 374.</p> <p>Cited and disapproved or not followed: McDougal v. Dickinson, 1 Bailey (S. C.) Eq. Rep., 155; Daves v. Haywood, 1 Jones Eq. Rep. (N. C), 353; 1 Sti’obhart Chy. [S. C.], 134.</p> <p>7. SAME. No interest chargeable on, where interest oxi coraras is absorbed in paying annxxity charged on estate.</p> <p>Where there are no profits or interest accumulated on the corpus for division, becaxise it has all beexx absorbed ixx paying the annuity due the widow charged upon testator’s estate for her support during life, and other claims, then no ixxterest will be chargeable upon the advancements, and the division will be made without referexxce to interest ox-profits on either the advancements or the corpus. (Pp. 333, 344.)</p> <p>8. PRACTICE. Purchaser not giving- notes bound by terms o£ sale as though he had given notes.</p> <p>Where, according- to the terms of a decree of sale, the deferred payments of pxxrchase price are to bear interest, the purchaser will be. charged interest, thoug-h he gave no notes, and bought with the under standing' that the amount1 bid was to be taken out of his share in the estate, where others paid, interest on their purchases under the same decree. He is as legally bound by the terms of sale as if he had g-iven notes. (P. 344.)</p>

<p>1. MUNICIPAL CORPORATIONS. Officers holding and exercising’ all the functions of office are de facto officers.</p> <p>Officers actually in office and exercising all the functions of such offices are de facto officers (if not de jure officers), and so' far as the general public is concerned, their acts, within the limits of the powers belonging’ to their offices, must be held valid. The principle of the validity of the acts of officers de facto is one based on a sound public policy, in order to avoid the consequences of requiring’ the general public to perform the judicial function of deciding the question of the legality and validity of their claims to the offices so held. (Pp. 349, 350.)</p> <p>2. SAME. Same. Question reserved where two are holding same office; contestant not holding.</p> <p>The question as to what may be the correct principle in a case where there are two officers, each with the insignia of office, holding themselves out to the public as ready to perform the functions of the office, is reserved. A mere claim of another party to the office, however well founded, and though it be in process of enforcement in the courts, cannot make such a case. (P. 350.)</p> <p>3. SAME. Checks or orders not promissory notes; jurisdiction of justice on them.</p> <p>Corporation checks or orders drawn by the proper officers of a municipal corporation on the treasitrer and by him accepted by indorsement, are not notes of hand or promissory notes, and if for more than two hundred and fifty dollars, judgments rendered thereon by a justice of the peace are void for want of jurisdiction. (Pp. 350-353.) [The justice’s jurisdiction extends to five hundred dollars on such checks or orders since the acts of 1875, ch. 11, sec. 2. See Code, sec. 5935, subsec. 2. See Houser v. 'McKennon, 1 Bax., 287, and citations.]</p> <p>Cited and construed: Code (1858), sec. 4123, subsecs. 1 and 2; Shannon’s Code, sec. 5935, subsecs. 1 and 2.</p> <p>Cited, distinguished, and criticised: Powers v. Nahm, 7 Heis., 583.</p> <p>Cited with approval: Story on Promissory Notes, sec. 14; 1 Pars, on Bills and Notes, 23, 24.</p> <p>4. BILLS AND NOTES. A promissory note defined.</p> <p>A promissory note is a written engagement by one person to pay another person therein named, absolutely and unconditionally, a sum of money certain at a specified time. (Pp. 351-353.) [See specially note 1, and notes generally under sec. 3506 of the Code.]</p> <p>Cited with approval: Whiteman v. Childress, 6 Hum., 304; Story on Promissory Notes, ch. 1, secs. 1, 17.</p> <p>Cited and construed: Code (1858), sec. 1956; Shannon’s Code, sec. 3505.</p> <p>5. JURISDICTION. Judgment void for want of; facts necessary to determine, inquired into; not a collateral attack.</p> <p>Want of jurisdiction of the person or of the subject-matter makes the judgment void, and the facts necessary to' determine the question of jurisdiction may be inquired into, and the judgment declared void and enjoined, upon a bill filed in the chancery court. A bill to have a judgment declared void for want of jurisdiction is not a collateral attack on it. (P. 353.) [But see note 9 under sec. 5936 of the Code, and note 16 under sec. 4704.]</p> <p>6. MUNICIPAL CORPORATIONS. Powers exercised by governing legislative body, or by agents under ordinances.</p> <p>The powers of a municipal corporation can only be exercised by the governing legislative body of such corporation, or by other agents of such corporation in pursuance of authority given from such governing body, in the form of an ordinance or legislative enactment of such body, in pursuance of powers granted or conferred in the charter. (Pp. 357, 358.) [Cited and approved in Nashville v. Toney, 10 Lea, 651, 652, citing authorities.]</p> <p>Cited with approval: Whyte v. Nashville, 2 Swan, 370, 371; Cooley’s Const. Limit., 204 [6th ed., 248]; Schumm v. Seymour, 24 N. J. Eq., 153.</p> <p>7. SAME. Derivation of the powers of the officers.</p> <p>The officers of municipal corporations are but the agents of the corporate body, with their powers defined by the charter, and the laws and ordinances passed by the legislative body of such corporation in pursuance of the powers granted in the charter or act of incorporation, or in the exercise of such implied powers as are necessary to the proper enjoyment and full exercise of the granted powers. (Pp. 358, 359.)</p> <p>8. SAME. Defined and distinguished from private corporations; derivation of powers.</p> <p>A municipal corporation is a subordinate branch of the domestic government of a state, instituted as a local government for public purposes only, for the benefit of the people within its corporate limits, and invested by the state legislature with such jmwers as it deems adequate to the ends to be accomplished. It can justly exorcise no powers that are not granted, or fairly to be implied as necessary means to the enjoyment and full exercise of such granted powers. It has none of the peculiar qualities and characteristics of a trading- corporation, instituted for purposes of gain, except that of acting- in a corporate capacity. Its objects, its responsibilities, and its powers are different. (Pp. 356, 357, 359.)</p> <p>Cited with approval: Nashville v. Ray, 19 Wall., 475 (22 L. ed., 168.)</p> <p>9. SAME. Cannot issue checks, orders, notes, etc., to raise money, without legislative authority.</p> <p>A municipal corporation has no power, without legislative authority, expressly granted or clearly implied, to issue corporation checks or orders, notes, bills, or other securities, for the purpose of borrowing money by discounting them or otherwise raising the money on them for the ordinary expenses of the corporation, And such p>al:>e'r issued, without authority by the corporation officers, is not binding- on the corporation, even in the hands of innocent purchasers, for value before due. The corporation is not estopped by the illegal acts of its officers in issuing- such paper, but may successfully defend against the same on the ground that its issuance was ultra vires. (Pp. 354-360.)</p> <p>Cited with approval: Spaulding v. Lowell, 23 Pick. (Mass.), 71; Clark v. DesMoines, 19 Iowa, 208; Dillon’s Mun. Corp., - 173, 493. [See 3d ed., secs. 117-138, 484-507]; Cooley’s Const. Limit., 211.</p> <p>10. SAME. May issue evidences of debt for liabilities legally incurred.</p> <p>Such corporation checks, orders, certificates of indebtedness, and the like may be properly issued to the creditors for liabilities legally contracted or incurred, as evidence of the amount of their claims against the city treasury, and as a direction to the treasurer to pay the amount, which may serve him as vouchers for his disbursements. (P. 354.) [See Colburn v. Chattanoog-a, post, p. —•.]</p> <p>11. SAME. Original consideration recoverable where evidences of indebtedness are illegal and void.</p> <p>While the holders of evidences of indebtedness, such as checks, orders, or warrants illegally issued by the corporation officers, as shown in syllabus 9, cannot collect the same from the corporation, yet they may recover from it so much of the money as they can show was received by it and went to its legitimate uses, after it was received by the officers. (P.360.)</p> <p>12. JUDICIAL DECISIONS. Rule as to following those of sister states as precedents.</p> <p>While the decisions of the courts of our sister states may be examined to ascertain the current of judicial thought and opinion on a question of law, and are persuasive authority of what the law is, yet they are not controlling. It would be impossible for the court to undertake to ascertain the law of any particular case, by the process of settling what had been decided on the question, and what had been held by the courts of the other sister states, many of them irreconcilable in their theories and principles. The decisions of other states are examined for the purpose of seeing the principles announced and the reasoning-s jiresented, and if the reasons are deemed soundly based on settled principles and legal analogies, our court adopts them; but when contradictory, our courts adopt that which, on reason and authority, commends itself to their judgment, as the fair deduction of right reason and sound legal analogy as applied to the question in hand. (P. 355.)</p>

<p>1. LIFE INSURANCE. Fraudulent representations.</p> <p>Where a party has, by the representations of the agent of a life insurance company, been induced to take out a policy of insurance on his life, which representations subsequently prove to be false, the policy holder may, by a bill in equity, filed for that purpose, have the said policy declared void, and recover back from the company the premiums paid by him to the company on the policy. [Pp. 361, 362. J</p> <p>Cited with approval: ICnuckolls v. Lea, 10 Hum., 577; 1 Story's Eq., 134.</p> <p>2. SAME. Same. No waiver of fraud by mere reception of policy, when.</p> <p>Where the insured in such case demanded a substituted policy according to the representations of the ag-ent, but a policy different from that demanded was delivered to him, his receiving- the policy, but at the same time repudiating it as unsatisfactory, cannot be regarded as a waiver of his right to rely upon the fraud in the original transaction. He then had a right to- decline to accept any other policy, and to rest to the courts for redress. (Pp. 371-373).</p> <p>Cited with approval: Knuckolls v. Lea, 10 Hum., 582.</p> <p>3. SAME. Parties.</p> <p>In su.eh a case the beneficiaries of the policy, when they are different persons from the policy holders, are not necessary or proper parties. [P. 373].</p> <p>4. EVIDENCE. Nationality and religion of witnesses.</p> <p>In determining the weight of the testimony of witnesses, the court can look neither to their nationality nor to their peculiar religious tenets — hence, the fact that a witness is a Jew cannot affect Ms credibility. [P. 369].</p>

<p>1. CRIMINAL LAW. Continuance.</p> <p>The refusal of a court to grant a continuance on first application, and at the second term after presentment, of a . defendant charg-ed with violation of the Sunday liquor law, because of absence of counsel from sickness, is reversible error.</p> <p>2. SAME. Jury judges oí law and facts.</p> <p>The jury are judges of law .and fact as well in misdemeanor as in felony cases.</p> <p>Cited with, approval: Withers v. The State, 3 Leg. Rep., 106, and ante, page 376.</p>

<p>1. CRIMINAL LAW. Selling liquor on Sunday. Suspension oí imprisonment void.</p> <p>A judge lias no right, after a judgment of fine and imprisonment against a defendant convicted of selling liquor on Sunday, to suspend the judgment as to the imprisonment, “during his g'ood ■ behavior.”</p> <p>3. SAME.' Costs assumed, adjudged accordingly.</p> <p>Where a defendant voluntarily assumes costs in the trial of indictments under which he has been adjudged “not guilty,” it is not error to adjudge the same against him.</p>

<p>1.PLEADING AND PRACTICE. Declaration. No canse of action, judgment arrested; cause defectively stated, defect cured by verdict.</p> <p>Where the case made in the declaration does not constitute a cause of action, the judgment will be arrested notwithstanding the verdict, for the verdict only establishes the truth of the case made in the declaration; but where it appears that the case made in the declaration, giving a fair meaning’ and intendment to the g-eneral lang-uage used, is a good cause of action though defectively stated, there being no demurrer, the defect will be cured by verdict. ( P. 377.) [See note 5 under sec. 4694 of the Code; note 2 under sec. 4g32; note 2 under sec. 4594.]</p> <p>Cited with approval: 1 Chitty’s PL, 672, 673; Stephen’s 147; Horsely v. Branch, 1 Hum., 199; Brown v. Parks, I-Ium., 294.</p> <p>8</p> <p>2. SAME. Same. Good cause of action defectively stated.</p> <p>A declaration which avers that the plaintiff “delivered at the depot of the defendant,” a railroad common carrier, a certain quantity of marble, “properly prepared for market,” and requested defendant’s agent to transport it to market, which he failed and neglected and refused to do within a reasonable time, to his damage, etc., shows a good cause of action, thoug-h defectively stated. (P.377.) [See Code, sec. 4617, and notes.]</p> <p>3. SAME. Same. Measure of damages; demurrer overruled; presumption of proper charge, when no bill of exceptions.</p> <p>The said declaration, among- other damages, stated as resulting- to the plaintiff from the wrong- alleged, averred that his marble quarries really became worthless. Such supposed damage was too remote, and notwithstanding that a demurrer to this part of the declaration was improperly overruled by the court, still as it was the duty of the judge, on the trial, to instruct the jury properly upon the measure of damag-es, the supreme court will presume that he did so, where there is no bill of exceptions showing the charge of the court to the jury. (P. 378.) [As to necessity of bill of exceptions, see notes 4,11, 22 under sec. 4693 of the Code.]</p>

<p>1. NONRESIDENCE. As ground for attachment, residence maybe a question of intention.</p> <p>Where the defendant came to this state to work under a govei-nment contract, with the intention of staying here only temporarily, and to return to his home in Kentucky when work finished, which intention was never abandoned until after an attachment bill was filed against him, upon the ground that he was a nonresident, his plea in abatement denying his nonresidence will be overruled. [According to the rule established in Tennessee, the defendant was still a resident of Kentucky, and therefore a nonresident of Tennessee. See note 13 under sec. 5211 of the Code; see also notes 14-19.]</p> <p>2. SAME. Declarations of intention overcome facts indicating the contrary.</p> <p>Eacts indicating- that a party was a permanent citizen of Tennessee, such as voting in our elections, suing- and being sued in our courts, paying taxes and renting land, etc., are overcome by his repeated declarations that he was a citizen of Kentucky, and of his purpose to return to that state when his government contract was finished, in which also he declared that he was a citizen of Kentucky.</p>

<p>1. FRAUDULENT CONVEYANCES. When the fraud is denied, it must be proven.</p> <p>A lot, the legal title to which is in the wife of the defendant, cannot be decreed to be sold to satisfy the debt of a creditor of her husband, upon the allegation in the bill that the conveyance by a third party of the lot to the wife was fraudulent as against her husband’s creditors, when all the allegations are denied on oath, and there is no sufficient proof of fraud; but complainant is entitled to judgment against the husband alone.</p> <p>2. SAME. Deed by third party to debtor’s wife not fraudulent, when.</p> <p>Where a fraudulent conveyance from husband to wife is set aside at the instance of his creditors, and the land sold to pay their debts, and the purchaser thereof afterwards sells and conveys the same back to the wife for a small and grossly inadequate consideration, which is paid by her out of money received from a sale of a small portion of the land to a third party, the deed from the purchaser to the wife is not a fraud on her husband’s creditors, because the title being vested in him, he could make such disposition of the land as he chose.</p>

<p>SOLDIER. Liability of, for talcing forage.</p> <p>If the soldiers were foraging for supplies, the defendant, being- a soldier, would be strictly in the line of his duty as such, in causing- or advising- the soldiers to procure corn from the plaintiff’s farm, if corn was a necessary article of supply, and for so doing- he would not be liable.</p>

<p>CONTRIBUTORY NEGLIGENCE. Employee of railroad company. Negligence of company.</p> <p>Where the injury received by the plaintiff was the result of his own rash and reckless conduct, the fact that he was an employee of the company was conclusive of the case without reference to the question whether the company was guilty of negligence in the failure to comply with the statute by putting- up signal posts, or whether the engineer was guilty of negligence in failing to comply with a statute by putting- on brakes and blowing the whistle when approaching- the crossing or in running the train more rapidly than prescribed. Right to recover damages denied.</p> <p>Cited with approval: Rowland v. Cannon, 35 Ga. Rep.</p> <p>Cited and construed: Ga. Code, sec. 3036.</p>

<p>1. TITLE BOND. Not binding- on married woman.</p> <p>A title bond executed by a husband and wife, covenanting-for the conveyance of her land, is null and void, and a specific performance of the contract will be refused. [See notes 6-8 under sec. 3756 of the Code.]</p> <p>2. SAME. Same. No- decree against- her or her land, when.</p> <p>Where there is no fraud on the part of the wife, and the purchase money was not paid to her, no decree will be rendered against h.er for it subjecting the land to its satisfaction.</p> <p>Cited with approval: Rhea v. Iseley, ante, 220 (cited in 13 Pickle, 287).</p>

<p>1. STATUTES OE LIMITATIONS. Claimant’s death does not arrest running of, when.</p> <p>Where a right of action accrues to a person capable of suing, the statutes of limitations begin to run against it, and if not sued upon within the time limited after the accrual of the right, the action will be barred, notwithstanding his death, and the infancy of his representatives, and no grant of administration. When the statute has once begun to run, no disability subsequently arising will arrest Its prog-ress. (Pp. 389, 390.) [See Code, sec. 4450, and notes.]</p> <p>Cited with approval: 2 Gr. Ev., see. 439; Shute v. Wade, 5 Yer., 1; Jones v. Swanson, 3 Head, 161.</p> <p>2. SAME. Claimant’s death prevents the beginning to run.</p> <p>But where the right of action accrues after the death of the person entitled, as where a note falls due after the death of the payee, the statute does not begin to run until the grant of administration, because when the right of action accrues there is no person in being capable of suing. [See Code, see. 4448, and notes.] (Pp. 389, 390.)</p> <p>Cited with approval: 2 Gr. Ev., see. 435; Thurman v. Shelton, 10 Yer., 387.</p> <p>3. SAME. Suspension in consequence of civil war, effect of.</p> <p>The statute and constitution suspending the operation of the statutes of limitations from the sixth day of May, 1861, to the first day of January, 1867, did not restrict, affect, or chang-e the rule of law stated in thé first syllabus further than to give the suspension specified. So, where a right of action accrued to a party on a promissory note in 1859, who died during the suspension, and there was no administration granted until 1872, and no suit brought till 1873, the action was barred. (Pp. 389-391.)</p> <p>Cited and construed: Con., sched., see. 4; Acts of 1865, ch. 10, see. 1; Shannon’s Code, see. 4454.</p>

<p>EJECTMENT. Adverse possession. Parol sale.</p> <p>Where a husband had made a parol sale of his wife’s land, and the purchaser had gone into possession and retained it for more than seven years before the death of the wife, such adverse possession held to be a complete bar to the joint right of action of the husband and wife, under the second section of the statute of limitations. The heirs of 1he wife not having brought suit within three years after her death, under the saving- of the statute, their remedy, and probably their right, was clearly gone.</p> <p>Cited, distinguished, and approved: Miller v. Miller, Meigs, 488; McCorry v. King, 3 Hum., 266; Guión v. Anderson, 8 Hum., 298; McClung v. Sneed, 3 Head, 218; Weisinger v. Murphy, 2 Head, 674.</p>

<p>CRIMINAL LAW. On. acquittal of the felony and conviction of misdemeanor, state pays her costs as to felony.</p> <p>Where a defendant is acquitted of the felony, but is convicted of a misdemeanor, the state shall pay such costs as accrued at its instance, in attempting to malee out the felony, and the matter may be referred to the clerk to ascertain such costs. [As to power to acquit of felony, and convict of misdemeanor, see Code* secs. 7195, 7196, and notes. By whom the costs shall be paid. Code, sees. 7611-7634, and notes.]</p>

<p>CHANCERY PLEADING. Bill seeking account of administration, and partition of land not multifarious.</p> <p>A bill seeking an account of an administrator’s trust, with the view of ascertaining whether any grounds existed for an application to sell land to pay debts of the decedent, and praying for a partition of the land, if there were sufficient personal assets to have paid the debts, is not demurrable for multifariousness. [See notes under sec. 6137 of the Code.]</p>

<p>1. STATUTES OE LIMITATIONS. Personal representative’s claim against estate barred, unless he retains money, when.</p> <p>The statute of limitations in favor of personal representatives [Code, secs. 4012, 4451, 4481] is operative against himself as to any claims he may have against the estate. If money come to- his hands sufficient to pay the debt, within the time limited, he must, within that time, retain the debt due himself, and he must evince this intention to retain within the time, by claiming the same in his settlement with the county court within the two* years and six months. (Pp. 397, 398.) [See Code, secs. 3983, 3984, and notes; also 5 Lea, 508, 516-525, 522.]</p> <p>Cited with approval: Byrn v. Fleming, 3 Head, 659, 661-683; Hamner v. Hamner, 3 Head, 398, 403; Harrison v. Henderson, 7 Heis., 315, 334, 335; Wharton v. Marberry, 3 Sneed, 603, 607.</p> <p>2. SAME. Sufficient request for delay by personal representative to save bar, example of;</p> <p>Where the personal representative testifies that claims . against the decedent’s estate were presented to him within proper time, and they were not paid or sued upon because he had not the means, but to save costs he promised to pay the debts as soon as he could realize funds from the rents or sale of the land, that he does not remember his exact language, but says it amounted to a request not to» sue until funds were realized from one of the above sources for their payment, ihis is a sufficient request for delay to save the bar of the statute of limitations. (Pp. 398, 399.) [See Code, sec. 4013, and notes.]</p> <p>3. ADMINISTRATION. Costs and counsel fees allowed, when.</p> <p>Where the personal representative, in good faith and for sufficient cause, commences suit in the circuit court to sell lands of the decedent to pay his debts, the prosecution of which suit the distributees and heirs enjoin by suit in chancery, where the personal representative obtains relief by cross-bill, costs and counsel fees in the circuit court ease will be allowed him, and the costs of both suits charg-ed against the decedent’s estate, though a credit was disallowed the personal representative as barred by not retaining within the time limited. (Pp. 398, 399.)</p>

<p>CRIMINAL LAW. Keeping a ferry, without license, not indictable.</p> <p>The keeping of a ferry without license, and putting an individual across the stream for compensation, is not an indictable offense, and the indictment for such conduct should be quashed. [See Code, secs. 1617, 1696-1720, 1737, 6038, 712, and notes. By the latter section, and also by the Acts of 1897, ch. 2, sec. 4, page 59, a privilege tax is levied on certain ferries.]</p>

<p>CHANCEE Y PEACTICE. Dismissal of bill before decree; partnership account.</p> <p>As a general proposition, a complainant may dismiss his suit, as a matter of course, by a decree adjudging- the costs against himself, at any time before a decree adjudging-any rights of the parties. A decree for an account which settles no principles and adjudges no rights will not generally prevent a dismissal of the suit by complainant. But a bill to settle a partnership, after an account is ordered, generally cannot be dismissed without the consent of the defendant, yet it may, where the defendant resisted the account, and prevented the taking of the same, until, by his death, it probably became impossible to state it correctly.</p> <p>Cited with approval: 1 Dan. Ch. PI. and Pr. (3d Am. ed.), pp. 795-799 [5th Am. ed., pp. 790-801]; 1 Story’s Eq. Jur., sec. 522.</p>

<p>SEPARATE ESTATE. Power of married woman, to convey.</p> <p>Where the power of disposition is not expressly withheld in the instrument creating- the separate estate, a married woman can convey it as a feme sole without the concurrence or consent of her husband, provided her privy examination be taken by a chancellor, circuit judge, or clerk of the county court. This being so, she can certainly convey it with his consent, provided the privy examination be had as required, and the husband’s joining in the deed does not vitiate it. [Before the Act of 1869-70, ch. 99, Shannon’s Code, sees. 4242-4246, a married woman could not convey her separate estate as a feme sole, where the instrument creating the estate contained no such power of disposition. Gray v. Robb, 4 Heis., 74. See notes 16-24 under see. 4246 of the Code.]</p> <p>Cited and construed: Act of 1869-70, ch. 99 [secs. 4242-4246 of Shannon’s Code].</p> <p>Cited and distinguished: Gray v. Kohb, 4 Heis., 74.</p>

<p>1. BILLS AND NOTES. Executed under duress to prevent criminal prosecution, void.</p> <p>Where a debtor threatens to sue the relatives of his creditors for heavy damages, and to institute a criminal prosecution against them, upon the charge that during the war they had arrested and imprisoned him, and robbed his house, whereby he induced them to agree to substitute their notes for those held on him by his said creditors, by way of avoiding1 the suit for damages and the threatened criminal prosecution; and the creditors were prevailed upon by the threats of the debtor, and to protect their relatives from criminal prosecution, to accept their notes in lieu of those held by them on said debtor; all of which was done under such circumstances as amounted to duress over the relatives, and to an overreaching’ and defrauding of the creditors, and upon a bill filed by the creditors against the original debtor and the substituted debtors, and cross-bill by the latter against the creditors and original debtor, a judgment will be rendered in favor of the creditors against the original debtor for the amount of the original debt, but the substituted debtors will be discharged, and their notes canceled, upon the ground that they were executed under duress, and accepted by said creditors to prevent a criminal prosecution against said relatives.</p> <p>2. SAME. Same. Plaintiff enjoins his own suit at law, and parties submitting', rights of all parties determined.</p> <p>In this case the creditors first sued the substituted debtors on their notes before a justice of the peace, and the cases were appealed to the circuit court, and while the suits were pending- there, the plaintiffs, learning that defendants intended to resist judgment upon the notes upon the ground that they had been executed and delivered under duress, and to avoid threatened criminal prosecution, filed the bill as stated in the foregoing' syllabus, and upon the grounds as stated obtained an injunction against the further prosecution of their own suits in the circuit court, and prayed for a decree either against the substituted debtors or the original debtor. Whereupon the substituted debtors filed a cross-bill against the said complainants and the original debtor, charging that they had executed the notes under-duress and to avoid a criminal prosecution, and praying for their cancellation and delivery up as null and void. The relief prayed for in the cross-bill was granted, and the complainants were given a judgment upon the original notes against the original debtor.</p>

<p>1. STATUTES OE LIMITATIONS. Conversion or detention. Action for barred after three years.</p> <p>An action for the detention or conversion of personal property, if not commenced within three years from the accruing- of the cause of action, will be barred. [See note 3 under sec. 447Ü of the Code.] (Pp. 410, 411.)</p> <p>Cited and construed: Code (1858), secs. 2773, 2775; Shannon’s Code, sees. 4470, 4472.</p> <p>2. SAME.' Not dependent on form of action since the Code abolishing- forms of action.</p> <p>J3y the Code of 1858 forms of action were abolished, and the statutes of limitations adopted by said Code are not made to depend upon the form of action, thoug-h before the enactment of said Code, they were in many cases dependent upon the form of action. [See Code, secs. 4437-4444, and notes.] (P. 410.)</p> <p>3. CONVERSION OR DETENTION. Action for, and not value of the property.</p> <p>TVliere the action is for the value of goods delivered to a common carrier for transportation, averring- a contract for carrying same, but that defendant failed to- comply with it, and acted so negligently that the goods were lost, the gist of the action is the detention or conversion of the property by which it was lost to the plaintiff. (Pp. 410, 411.)</p> <p>4. COURTS. Open for institution of suits, when.</p> <p>Courts were not open for the institution of suits during the civil war whenever the clerks were in the exercise of the functions of their office, at the proper place, so that suits could be instituted, whether the judge attended to hold the court and try the cases or not. It would probably be true that the courts were open for the institution of suits, if both the clerk and sheriff were in the exercise of their functions, but not that the clerk alone was in the exercise of his functions. (P. 411.)</p> <p>5. CHANGE OE VENUE. Compurgators disinterested, thoug-Jh agents or employees of party applying for.</p> <p>A change of venue is properly made where the only objection to the validity thereof is based upon the ground that the compurgators, by whose oath the application is verified and supported, are agents and employees of the party applying- for the change, where they are shown to be respectable, and there is nothing to show that they are interested in the result of the cause. The fact of the agency or employment alone does not show interest. (Pp. 411, 412.) [See Code, sec. 4551, and notes under sec. 4552.]</p>

<p>ACCOMMODATION INDORSER. Judgment against, and judgment over, not enjoined by maker, when.</p> <p>Where the makers of a note sued on put in plea of nil debet and payment, but the accommodation indorser puts in no plea, and upon notice from the makers that they will ask leave to file pleas setting up usury in bar of the action, the plaintiff dismisses the suit as to the makers, and takes judgment by default against the accommodation indorser, whereupon, at the same term, he took judgment over by motion against one of the makers, who, thereupon, filed a bill to enjoin the judgment of plaintiff against such indorser and the latter’s judgment against himself, without alleging that he offered to- indemnify such indorser to make defense, or that the bank was insolvent, or that there was a fraudulent combination between the payee and such indorser, there is no equity in the bill, and it will be dismissed upon- demurrer. [See Code, secs. 5385-5401, and notes.]</p> <p>Cited and construed: Code (1858), sec. 3634; Shannon’s Code, sec. 5389.</p>

<p>ADMINISTRATION. Eund derived from sale of laud to pay debts to be distributed by court, not by administrator.</p> <p>The administrator of a decedent is the mere representative of the personalty, and a fund arising from the sale of land in his suit for its sale to pay debts of the decedent’s estate, must be retained and disbursed in the court where the bill is filed, and not paid over to him to be administered, even upon a special bond to secure the fund.</p> <p>Cited with approval: Kead v. Bostick, 6 Hum., 321; Car. Hist. D. S., secs. 623, 624; Dulles v. Read, 6 Yer., 65; Gillespie v. Darwin, 6 Heis., 25.</p> <p>Cited and construed: Code (1858), sec. 2267; Shannon’s Code, sec. 4000; Act of 1827, ch. 54.</p>

<p>Appeal from chancery court of Hawkins county.</p>

<p>1. DOWER. Suit for, revived to recover rents during detention.</p> <p>A bill in equity for the assignment of dower may be revived by the personal representative of the widow, after her death, for the purpose of recovering rents as damages for the detention of the dower. [See notes 14, 15 under sec. 4145 of the Code.]</p> <p>Cited with approval: London v. London, 1 Hum., 1, 9-34.</p> <p>2. CHANCERY PLEADING AND PRACTICE. Bill of revivor and order of revivor.</p> <p>Where a bill of revivor is filed by leave of the court, while a formal order of revivor would be more regular, still if the court proceeds to hearing- upon the order granting leave to file the bill of revivor, as if it had been regularly revived, it is sufficient upon the, appearance of the defendants to the bill. [See Code, see. 6241.]</p>

<p>1. STATUTE OE LIMITATIONS. Plea of, to amendment of actions, when.</p> <p>Where an amendment is made changing the form of action, or changing- the parties or natnre of the action, the change shall not he allowed to deprive the defendant of his defense of the statute of limitations which had barred the new action when it was commenced, by the amendment (P. 422.) See notes 11-18 nnder sec. 4587 of the Code.]</p> <p>Cited and approved, and distinguished: Crofford v. Cothran, 2 Sneed, 492; Flatley v. Railroad, 9 Ileis., 230, 234-237.</p> <p>2. SAME. Same. Going to whole declaration, too broad.</p> <p>Where an amended declaration is filed averring the personal assanlt as special damages, bnt the original and' amended declarations are both in the form of trespass quare clausum freg-it, and pleas of the statute of limitations applicable only to a new action commenced by the amendment are put in to the whole declaration, such pleas are no answer to such declaration, and a demurrer to such pleas should be sustained. The pleas should have been confined to that part of the amended declaration averring the personal assault. (P. 422.)</p> <p>3. PLEADING. Declaration in trespass quare clausum freg-it no damages for assault not averred.</p> <p>To the amended declaration the defendant filed two pleas of the statute of limitations, and tbat they were not guilty of the wrongs, etc., within three years next before the fifing</p>

<p>FORCIBLE ENTRY AND DETAINER. Action of, in forma pauperis.</p> <p>An action of forcible entry and detainer may be commenced in forma pauperis as otter actions. But tbe question whether, after judgment, au appeal in such case can be prosecuted in. forma pauperis is reserved. [This decision must have been based upon the ground that sec. 5097 of the Code is subject to the general provisions of secs. 4938, 5956, 4933, and 4533, although no such reason is given by the court. It is evident that the court had in mind the provisions of sec. 4938 as it then existed, but the provisions of sec. 5097 were not mentioned or discussed; yet as this is the only section upon which the contention that the action of forcible entry and detainer should not be brought in forma pauperis could have been based, it is fair to presume that its provisions were considered by the court.]</p>

<p>1. APPEALS. Modification of decree adversely to defendant appellants, does not affect other defendants not appealing.</p> <p>Where a decree rendered against several defendants is, upon appeal by part of them, modified adversely to the appellants, such modification affects only the appellants, and not the defendants who did not appeal.</p> <p>2. SAME. Same. Writ of error as to defendants not appealing.</p> <p>In such case, the complainants may take the cause up by writ of error to have the decree so modified in their favor as against the defendants who did not appeal.</p> <p>3. DECREE. Eor complainants simply is against all defendants, when.</p> <p>Where the bill seeks to recover rents from the defendants for ihe property sued for, and the decree was that “comjfiainants are entitled to the rents of said property,” without specifying the defendants who are thus made responsible, hut ordering- an account of the rents, the true construction of the decree is that all the defendants are liable.</p> <p>4. TRUSTEE. Selling- in violation of trust liable secondarily for rents of property in possession of purchaser.</p> <p>Where a person acquires title to real estate as trustee for the owners, and iu violation of his duties as trustee sells and transfers it, and althoug-h such trustee does not actually occupy the property, yet if by a violation of his duties as trustee, he puts the purchaser into possession, he thereby makes himself responsible for the rents, still his liability is not primary, but secondary — the purchaser in possession being- primarily liable.</p>

<p>EXECUTION. Money paid on, conditionally not recoverable; demurrer to bill.</p> <p>Where an officer collects money on an execution under a promise to refund it to the debtor if a supersedeas should be issued and notice received by a given day, such contract cannot be enforced because it is contrary to law and public policy, it being the officer’s duty at once to pay the money over according to law. A demurrer will lie to a bill by the debtor seeking to recover back the money so paid</p>

<p>1. GBAND JUBY. Minutes of court held to legally constitute; appointment of, etc.</p> <p>The appointment by the court of a gand jury already drawn as required by law, cannot affect the acts of a jury in all other respects regular, formal, and lawful in its constitution. The formation of the g-rand juries in courts is in one sense an appointment by the court in which they are to serve. The g-rand jury is, upon the face of the minutes, legally constituted, when they recite that “the jurors were drawn and by the court appointed, and that said grand jury, after having been duly summoned, were tried, elected, impaneled, sworn, and charged as the law requires,” etc. [See note under see. 5804 of the Code; sec. 5828 and notes.]</p> <p>2. SAME. Plea to raise question as to legal qualifications.</p> <p>Persons indicted or presented for violation of the laws may take advantage of the omission of the appointing power to compose the grand jury of good and lawful men, but the objection must be made by plea of the defendant proposing to rebut the presumption of law that all men are good and lawful. [See notes under secs. 5834, 7044, and 5823 of the Code¿ note 5 under sec. 7055.]</p>

<p>1. HOMESTEAD. DO WEE. Widow entitled to both., when.</p> <p>The right of dower is unaffected by any legislation creating a homestead, except as to the mode of its assignment prescribed by the Act of 1873. The widow of an intestate, dying seized and possessed of real estate, is entitled to both homestead and dower.</p> <p>2. MODE OE ASSIGNMENT.</p> <p>The homestead shall first be set apart, as dower is set apart by the same commissioners, and then one-third of the remainder will constitute the dower. [See note 11 under sec. 4145 of the Code. See 4 Heisk., 223; 9 Bax., 127.]</p> <p>Cited with approval: Constitution of 1870, art. xi., see. 11; Code (T. & S.), sec. 2114a.; Shannon’s Code, sec. 3798; Act of 1873, ch. 98, sec. 1 [Shannon’s Code, sec. 3808],</p>

Statement of the case. James C. Keith filed his hill in the chancery court at Clinton, alleging (among other things), that prior to 1865, he and Ms brother, W. J. Keith, were owners as tenants in common, of a tract of 200 acres of land in Anderson county; that he (complainant, James 0.), in October, 1865, purchased the undivided interest of said ~W. J., in said land, paying part cash and executing note for $281, the residue of the purchase price; that complainant received a…

<p>HOMESTEAD. Cannot be alienated by husband without wife.</p> <p>Where a wife has not consented, by conveyance as required by law for married women, the homestead cannot be alienated by the husband, though the sale be for full value in money, real estate, or other things; this rule obtains as to the right of homestead only; the fee remains qualified by the right of occupancy, which cannot be disturbed, while the relation supporting the right of homestead exists. [See notes 7, 14-17 under sec. 3803 of the Code; Mash v. Russell, 1 Lea, 543.]</p> <p>Cited and construed: Constitution, art xi., sec. 11; act of 1870, ch. 80, sec.l. [Code, sec. 3798.]</p>

<p>INJURY TO EMPLOYEE. Negligence. Improved machinery.</p> <p>No right of action exists ag-ainst an. employer for injury to an employee resulting- from the use of machinery less safe than what mig-ht have been adopted, when the employee knows all the facts, and is as well acquainted as the master with the nature of the machinery, and voluntarily uses it. [This case is cited and this rule is approved in Railroad v. Wheless, 10 Lea, 742; Railroad V. Handman, 13 Lea, 430. See 69 Fed. Rep., 559.]</p> <p>Cited with approval: Whart. on Neg'., 123-126, 211; Pierce’s R. R. Law, 296, 297, 213, 214; Slier. & Red. on Neg., see. 94.</p> <p>Cited, distinguished, reviewed, and approved: Railroad v. Elliott, 1 Cold., 611; Railroad v. Jones, 9 Heis., 27.</p>

<p>PLEADING AND PRACTICE. Scire facias to revive suit against administrator.</p> <p>When the object of a scire facias is to revive a suit in the name of and against an administratrix, and not to revive a final judgment rendered against her intestate, a plea in abatement that six months have not elapsed since her qualification is demurrable. [See Code, on scire facias, secs. 4571, 4716-4718, 5937(5), 6337-6340; on the six months, secs. 4007-4014, notes and references.]</p>

<p>1. APPEAL BOND. From judgment on policy of life insurance under seal.</p> <p>A contract of life insurance, under the seal of the corporation, is a bond for the payment of money within the meaning of the statute, and the insurance company can ax>peal from a judgment upon the policy against it only upon giving bond with security for the amount of the debt, damages, and costs. [See notes under sec. 4897. But on appeal from a judgment on a fire insurance policy not under seal, an appeal bond for costs and damages alone is sufficient. See Ins. Co. v. Van, post, p. 443. J</p> <p>Cited with approval: Ins. Co-, v. Hamilton, 5 Sneed, 269 [274, 275].</p> <p>Cited and construed: Code (1858), sec. 3162; Shannon’s Code, sec. 4894.</p> <p>2. SAME. Appeal dismissed, when proper appeal bond is not given.</p> <p>Where, in such case the insurance company gives an appeal bond for costs and damages only, the appeal will be dismissed upon motion in the supreme court.</p>

<p>APPEAL BOND. Erom judgment on fire insurance policy not under seal.</p> <p>A contract of fire insurance, in the ordinary form, and without a seal, not being' a contract by the company to pay a fixed and definite amount of money, but to pay the actual estimated value of the property destroyed or injured, is not a promissory note nor a bond for the payment of money in the sense of the statute, and an appeal by the company upon a bond for costs and damages only may be properly granted. [But an appeal bond to cover the judgment, damages, and costs will be required where defendant appeals from a judgment on a policy of life insurance under seal. See Southern Life Insurance Co. v. Thos. O. Meux, ante, p. 440.]</p> <p>Cited and construed: Code (1858), secs. 3162, 3163; Shannon's Code, secs. 4894, 4895.</p>

<p>1. APPEAL. From judgment for conversion; liability of surety for.</p> <p>In an appeal from a judgment for the value of personal property converted, the surety for appeal is not Hable for such value, but is liable only for costs and damages; and such costs only are to be adjudged against him as had accrued at the time of the rendering of the verdict by the jury, and those incident to the execution of the judgment so modified.</p> <p>2. SAME. Same. Petition for supersedeas dismissed; writ of error.</p> <p>Where, in such case, the petition of the surety to supersede the judgment is dismissed, and the case is taken to1 the supreme court by writ of error, the judgment will be reversed in so far as rendered against the surety for more than costs and damages. -[See note 21 under sec. 4854 of the Code; McCollum v. Greeneville, 3 Shannon’s Cases, p.--j Code, secs. 4911-4922, and notes.]</p>

<p>1. MARRIAGE CONTRACT. Conditional or life estate to wife; conting-ent remainder to children; husband excluded.</p> <p>A marriage contract in the recitation of its purposes, and not in the part providing for the devolution of the estate, states that it is to secure the wife’s property to the only proper use and behoof of her and her heirs, and then in the part for the devolution of the estate provides that her property shall be and remain her own individual property in the same mannex- as if she were to remain unmarried, with power to dispose of the same either by deed or will, in any manner she may think proper, subject to the conditions, limitations, and restrictions as follows: ' (1) The property shall descend to [go to, or be vested in] the children of the marriage, if any; (2) if no children, then to be disposed of by her as above authorized [that is, by deed ox-will] ; (3) the said property to be and remain ixi the possession of the husband, and the profits thereof to be appropriated to the joint use of the husband and wife, during- coverture, and for the use and support of the children of their marriage, as well as their joint families, but the principal or capital of the property is not to be used ox-consumed without the consent of the wife first had and obtained, nor is the property to be in any manner subject to the debts of the husband contracted, or to be contracted, without the consent of the wife. Held, (1) the wife did not take an absolute estate in fee simple; (2) a contingent remainder, contingexxt on the birth of issue, is carved out, reserving a life estate to the wife, the remainder vesting-on the birth of issue, and opening to’ let in alter born children, as they come into being; (3) the whole estate is reserved to the wife to the exculsion of the husband, as to title.</p> <p>2. SAME. Limitation of estates. Rule in Shelley’s Case. The word “issue,” when meaning- child or children, a word of purchase and not of limitation.</p> <p>In a marriage contract containing a provision that “in case there should be issue of the marriage aforesaid, then said property, and every part thereof, shall descend to such child or children, share and share alike,” the word child or children is used to designate the issue referred to in the preceding part of the clause, and fixes beyond question the sense in which the word issue is used; not as an indefinite number taking- the estate in succession, indefinitely until there is an entire failure of issue, but to the children of the marriage. In this view the word child or children is meaxxt by “issue,” and is a word of purchase and not of limitation. [See notes under secs. 3673 and 3674 of the Code.]</p> <p>Cited and construed: Code (1858), secs. 2007, 2008; Shannon’s Code, secs. 3673, 3674; acts of 1784, ch. 54, sec. 5; 1851-52, ch. 91, sec. 3.</p> <p>Cited with approval; Kay v. Connor, 8 Hum., 633.</p> <p>3. SAME. Restriction on power of disposition.</p> <p>A clause after providing for the appropriation of the profits to the joint use of husband and wife, and the family, contained the qualification that “in no event is any part or portion of the principal or capital of the property aforesaid to be used or consumed without the consent of the said Eliza” (the intended wife) “first had and obtained,” and also a provision against the property being- subject to the debts of the husband without the consent of the wife. Held, that there is not an absolute^ unqualified power of disposition given the wife, such as is required under the authorities, which would defeat the remainder over and give her an absolute estate. [It is a well settled rule in Tennessee that where an absolute, unlimited, and express power of disposition of realty is, by the very terms of the will, or by a fair implication from the terms used, given to the first taker, a subsequent limitation over by way of executory devise is void; but where the power of disposition arises by operation of law, as a mere incident to, or consequence of, a fee simple estate devised, a subsequent limitation over by way of executory devise is valid. Booker v. Booker, 5 Hum., 505, 511-513; Brown v. Hunt, 12 Heis., 408, 409; Read v. Watkins, 11 Lea, 161; Bradley v. Carnes, 10 Pickle, 30, 31; Smith, T. v. Bell, M. & Y., 302; Davidson v. Richardson, 10 Yer., 290; Thompson v. Mc-Kisick, 3 Hum., 631; Meacham v. Graham, 14 Piclde, 201.]</p> <p>Cited with approval: Smith, T. v. Bell, M. & Y., 302; McGavock v. Pug-sley, 12 Heis., 689; Deadrick v. Armour, 10 Hum., 596; Pillow v. Rye, 1 Swan, 190.</p> <p>4. SAME. Rig-hts of remainderman.</p> <p>Where a life tenant of a fund invests the fund, or exchanges the property which he holds subject to a remainder in other property, this property does not take the place oE the fund so invested in it, and the remainderman is not entitled to elect whether he will take the fund or the property purchased with it. He is entitled only to the money invested in it, at the termination of the life estate. [He has no right to, or interest in, the property, except so far as it may be held, upon a'bill for that purpose, as a security for the fund. Vaden v. Vaden, 1 Head, 444; McHaney v. McNeilly, 10 I-Ieis., 539, 540; Swan v. Einney, 4 Bax., 30.]</p> <p>Cited with approval: Vaden v. Vaden, 1 Head, 444.</p>

<p>PERJURY. Plea of former acquittal when there was a fatal variance.</p> <p>An acquittal upon an indictment charging- that the oath taken was upon “the Holy Gospel,” is no har to a trial upon an indictment in which the charg-e is that defendant was “sworn with an uplifted hand.” [See Const., art. i., see. 10, and notes.]</p> <p>Cited with approval: Williams v. State, 7 Hum., 48.</p>

<p>ILLEGAL VOTING. Ward or district.</p> <p>It was intended by tbe act of 1870 that in cities or towns where tbe civil district may be divided into wards, each voter shall vote in his own ward, except in cases especially provided for.</p> <p>Cited and construed: Acts 1870, cb. 10, sec. í (T. & S. Code, see. 833d; Shannon’s Code, sees. 1108, 1169).</p>

<p>VAGRANCY. Indictable in circuit or criminal courts.</p> <p>By tbe act of 1875, ch. 105, the legislature contemplated the enforcement of the law-against vagrants in the circuit and criminal courts. ' It was not intended to confer any new jurisdiction on justices of the peace, but to impose new ditties and larger powers on the peace officers of the state in carrying out the object of preventing vagrancy. Vagrants are to be dealt with, not as this act, but 51s the general law directs. [See note under sec. 3024 of the Code.]</p> <p>Cited and construed: Acts 1875, ch. 105 [Code, secs. 3023-3025]; Code (1858), sec. 4226; Shannon’s Code, sec. 6064; acts 1801, eh. 22 [Code of 1858, secs. 1710-1719].</p>

<p>CRIMINAL LAW. Malicious stabbing-. Instrument.</p> <p>Under an indictment for malicious stabbing it is not necessary to prove that the wound was inflicted by a sharp pointed or edged instrument, provided the flesh is penetrated. [See note 7 under sec. 6450 of the Code.]</p> <p>Cited with approval: Starks v. State, 7 Bax., 64.</p> <p>Cited and construed: Code (1858), sec. 4608; Shannon’s Code, sec. 6449. „</p>

<p>1. CRIMINAL PLEADING. Indictment for disguise, etc. More than one felony in a connt, bad.</p> <p>The act of 1869-70, ch. 54, makes it a felony to enter upon the premises of another disguised or in mask; and to demand, in mask or disguise, entrance or admission into- the house of another is likewise a felony; and also to demand entrance into his inclosure, masked or disguised, is a felony, and the person or persons doing' either of said acts subjects himself to the penalty prescribed in the statute; and an indictment, charging these several felonies in a single count was properly quashed by the lower court. [Cited and approved in Walpole v. State, 9 Bax., 370.]</p> <p>Cited with approval: State v. Jopling, 10 Hum., 419; White-side v. State, 4 Cold., 183; Robeson v. State, 3 Heis., 266; State v. Irvine, 3 Ileis., 156.</p> <p>Cited and construed: Acts 1869-70, ch. 54, sec. 1; Code (T. & S.), sec. 4770b; Shannon’s Code, sec. 6669.</p> <p>2. SAME. Same. Intent not necessary.</p> <p>It is the doing- of these acts that constitutes the felonies and subjects the offenders ’ to the punishment prescribed by the statute. It is therefore not necessary to alleg-e that the forbidden acts were done with the intent to commit any other felony.</p> <p>Cited and construed: Acts 1869-70, eh. 54, secs. 1, 2; Code (T. & S.), secs. 4770a, 4770b; Shannon’s Code, secs. 6668, 6669.</p>

<p>CRIMINAL LAW. Challenges changed by a subsequent law.</p> <p>A prisoner has no vested right in the number of challenges allowed by the law at the time o-f the commission of the offense, and the number may be lessened by a subsequent law, which will control on the trial. [The statute construed in this’case is the act of 1875, ch. 75, lessening the number of challenges by defendant in criminal cases. See also Code, sec. 5826.]</p>

<p>1. CRIMINAL PLEADING. Indictment for perjury. Sufficiency of averment.</p> <p>Under the rules of criminal pleading- prescribed by the code, where the averments in an indictment for perjury showed the jurisdiction of the court before whom and the inquiry in which the perjury was committed, and the materiality and falsity of the testimony, held the indictment was sufficient. [See State v. Stillman, 7 Cold., 341; State v. Wise, 3 Lea, 38; Woods v. State, 14 Lea, 472 (dissenting opinion).]</p> <p>Cited and construed: Code (1858), sees. 5129, 5130; Shannon’s Code, secs. 7092, 7093.</p> <p>2. CRIMINAL PRACTICE. Motion for new trial, sufficient entry to sustain.</p> <p>Where, upon a motion for a new trial and in arrest of judgment, the record states: “Which motion being- argued and understood by the court, is sustained, and the cause continued,” it was the motion for a new trial that was sustained.</p>

<p>1. CRIMINAL LAW. Change of venue. Record must show it made on application of defendant.</p> <p>A change of venue can only be made upon application of the defendant, and if not so made, and so shown by the order in the record, the court to which the canse is removed has no jurisdiction thereof, and should remand the cause back to the court from which such attempted removal was made. [See Code, sec. 7159, notes 6, 9, and note 3 under sec. 7163.]</p> <p>Cited with approval: State v. Denton, 6 Cold., 539.</p> <p>S. SAME. Same. Same. Bill of exceptions must be. made in the court ordering- change of venue.</p> <p>A bill of exceptions made up in the court to which such removal was attempted to be made incorporating affidavits made by defendant for a change of venue in the court from which the removal was attempted, does, not make the affidavits part of the record.</p> <p>3. SAME. Same. Same. On appeal defendant required to appear at original lower court.</p> <p>In such case, on appeal in error by the attorney general from the order of the court, to. which such removal was attempted to be made, striking the cause from its docket, and remanding it to the court from which the removal was so attempted, the supreme court will (affirm such action, and require the defendant to appear at the next term of the latter lower court.</p>

<p>1. CRIMINAL LAW. Horse stealing is larceny.</p> <p>Horse stealing is larceny, but under our statutes a higher degree of punishment is affixed than for stealing other property. The statute making fraudulent appropriation and contracts with such intent larceny, applies as well to this as to other cases of larceny. [See notes under secs. 6544, 6545, 6552 of the Code.]</p> <p>Cited and approved: Coldwell v. State, 3 Bax., 429; State v. Knight, 3 Bax., 418.</p> <p>Cited and construed: Code (1858), secs. 4678, 4679; Shannon’s Code, secs. 6544, 6545.</p> <p>2. SAME. Good character always admissible.</p> <p>The defendant is always entitled to the benefit of his good character, and the jury may look to it with the other evidence to see if there is a reasonable doubt of his guilt; but if, notwithstanding his good character, the case be made out beyond a reasonable doubt, then, of course, the good character cannot avail him. It is incorrect to charge that the case must be a doubtful' one before the jury can look to proof of good character.</p>

<p>1. CRIMINAL PLEADING. Indictment charging house breaking and larceny, intent presumed.</p> <p>An indictment for house breaking, charging the intent to commit larceny, and further charging the actual commission of the larceny, held a good indictment not only for the larceny but for the house breaking. [See notes 4 and 5 under sec. 6537 of the Code.]</p> <p>Referred to with approval: Stevenson v. State, 5 Sneed, 681; Pardue v. State, 4 Bax., 10.</p> <p>2. SAME. Same. House breaking by day or night.</p> <p>Under the act of 1865, ch. 5, sec. 2 [repealed by acts 1877, ch. 84], it is immaterial whether the breaking be done by day or night, and it would be unnecessary to charge how the fact was in the indictment. [See Mathis v. State, 3 Heis., 127; Code, secs. 6535, 6536.]</p>

<p>CRIMINAL LAW. Writ of error lies from final judgment only.</p> <p>Where the defendant moved to be discharg-ed upon the ground that the jury was discharged without his consent and without sufficient reason, which motion was refused, and a prayer for an appeal from such order was refused, there was no final judgment from which a writ of error would lie. [See Code, see. 4911, and notes.]</p>

<p>RAILROADS. Liability of the railroad company for accidents to strangers within its yards.</p> <p>A railroad company, for accidents to strangers, will not he held to so stx-ict and literal a compliance with the statutory regulations, when making up trains, pumping up the engine, switching trains, etc., within its yard, as in the regular movements of trains on the g-eneral highway. The public have no rig-ht to make a footpath of a railway track at any time or place. The right and easement in ihe track as a hig-hway is in the company alone; except where it crosses by highways common to the g-eneral public. [See Code, sec. 1574(3), note 2; sec. 1574(4), notes 21, 22; .Railroad v. Pugh, 11 Pickle, 419; Railroad v. House, 12 Pickle, 552, 553-556, 558. A railroad company is liable in damages for injuring or killing- a trespasser, if the accident might have been avoided by the use of ordinary care and caution by it. See notes 49, 50 under sec. 1574, page 447, of the Code.]</p> <p>Cited, criticised, and distinguished: Louisville & Nashville Railroad Company v. Mary Robertson, 9 Heis., 276.</p>

<p>1. CONSTITUTION. COURT. JUDGE. Judge appointed by g-overnor for newly created court, when.</p> <p>The common, law and chancery court of Madison county, being- established and its jurisdiction defined by statute passed in pursuance of constitutional provision, it was in the power of the governor to appoint the judg-e to hold the office until the next biennial election. [See note 3 under sec. 1 of art. vi. of State Const.]</p> <p>Cited and construed: Acts 1875, cli. 60; Const., art. vi., sec. 1; art. vii., sec. 5 [sec. 4, and Shannon’s Code, sec. 381].</p> <p>3.SPECIAL JUDGE. Elected by the attorneys present, when.</p> <p>The election of a member of the bar as special judge is valid, where the majority of the bar* had an opportunity to vote but declined to do so-, and the election was ordered and conducted in the maimer prescribed by law.</p> <p>3. CRIMINAL LAW. Trial at special or adjourned term.</p> <p>Where the court adjourns to meet at a future date, the trial may be' had then, and it makes no difference, whether it be a special or adjourned term.</p> <p>4. SAME. Correction of juror’s initial, not error.</p> <p>It is not error, in the election of a jury, to. make correction in initial of juror who had been summoned on the panel of jurors.</p> <p>5. SAME. Rights of accused when part of panel is absent.</p> <p>By law the accused is entitled to a panel of a fixed number of names, and when that jjanel is furnished him he may demand the presence of those named, or a substitution of others for the absent ones. The furnishing Mm a panel does not give to Mm a vested right to- those names and none other, from whom the jury is to' be drawn. All he can claim is a panel of good and lawful men.</p> <p>6. SAME. No peremptory challenge after acceptance.</p> <p>The accused is entitled to a list of the jurors summoned, to be furnished him a reasonable time before the formation of the jury is commenced. .No peremptory challenge can be permitted, after a deliberate election of a juror, when it is announced there is no ground of challeng-e for cause. [See Code, sec. 7Í81.]</p> <p>7. SAME. Court’s announcement of a rule of law during- argument not objectionable.</p> <p>During- the argument on the. proof of insanity, and of the weág-ht due to the fact of suicide by a member of defendant’s family, a statement by the court that “suicide per se is not evidence of insanity” is merely the announcement of a rule of law, and is not objectionable.</p> <p>S. SAME. Evidence of means to' commit the crime admissible.</p> <p>It is legitimate to show the prisoner had the means of committing the crime, and afterwards to show the shot extracted from the wound corresponded with those bought by the prisoner.</p> <p>9. SAME. Peremptory challenges reduced after crime and before trial.</p> <p>The statute reducing the number of peremptory challenges is constitutional [and applies to cases where the crime was committed before the enactment of the law. See Burke v. State, ante, p. 465.]</p> <p>Construed: Acts 1875, ch. 75 [Code, see. 5826].</p> <p>10. SAME. Juror not made incompetent by mere rumor. -</p> <p>A juror, after being summoned, received a statement of the case, based merely on rumor, such statement not being derived from one who either knew the facts of the case, or learned them from persons professing- to know them, it did not render him incompetent as a juror.</p> <p>11. CHARGE. Organic law.</p> <p>To charge the jury that they are the sole judges of the facts, and that" the court is a witness to them as to the law g-overning- the case, which statement of the law by the court as given to the jury, and as applicable to the facts of the case, they may disregard and adopt their own views of the law, is not error. This rule claims derivation from the constitution, art. i., sec. 19, of the declaration of rig-hts, and was meant simply to confer upon the jury Ihe right and' duty of finding- a general verdict under the law and facts, under the direction of the court. [The jury are the judges of both the law and facts in misdemeanor cases as well as in felony eases. Withers v. State, ante, n. 876. Counsel in argument may read law to the jury. Hannah v. State, 11 Dea, 201.]</p> <p>Cited and construed: Const., art. i., sec. 19.</p>

<p>1. CHAMPERTY. Maker of trust deed estopped to set up, and execution purchaser stands no higher.</p> <p>The grantor in a champertous deed of trust is estopped to actively set .up the champerty against his own deed; and a purchaser, with a sheriff’s deed, at a sheriff’s sale under a judgment against the grantor obtained after the execution of the deed of trust, and when the grantor is contesting the deed, stands in no better attitude than the grantor in the deed of trust through whom his title comes, and cannot take advantage of the champerty to defeat the title of the trustee or those deriving title under him. [See notes 21, 22 under sec. 3172 of the Code.]</p> <p>Referred to and approved: Ruffin v. Johnson, 5 Heis., 604.</p> <p>2. SAME. Sale under deed of trust not champertous when adverse possession collusive.</p> <p>A sale of the property by the trustee while it is in the possession of a third party claiming under a sheriff’s deed is not champertous, where the possession was acquired j>eiiding1 the grantor’s suit to prevent a sale, under the deed of trust, while the trustee was enjoined from, selling, and with the consent and by collusion of the attorney acting for both the grantor and such third party. [See note 5 under sec. 3172 of the Code.]</p>

<p>1. CBIMINAL PLEADING. Indictment for misdemeanor charging it “feloniously” done, good. Word “feloniously” rejected as surplusag-e.</p> <p>The word “feloniously” is neither necessaiw nor ax>propriate in the charge of a misdemeanor, and it may be rejected as snrplusag-e, and the use of it will not render the indictment bad if it would be good without it.</p> <p>Cited and construed: Acts 1875, ch. 84 [repealed by acts 1877, ch. 65].</p> <p>:2. CRIMINAL LAW. Felonies and misdemeanors defined and distinguished.</p> <p>The distinction between felonies and misdemeanors under our statutes depends upon the character of the punishment annexed to the offense. Felonies are offenses punished capitally or by imprisonment in the penitentiary, and misdemeanors are punished by fine or imprisonment in county jail, or both. [See Code, sec. P-85» ancl note 4 under sec. 6528.]</p>

<p>CBIltilNAL PLEADING-. Indictment for misdemeanor need not charge it was feloniously done.</p> <p>It is neither necessary nor appropriate that an indictment for a misdemeanor should charg'e that the act was “feloniously” done.</p> <p>Cited and construed: Acts 1875, oh. 84 [which was repealed by acts 1877, eh. 65].</p>

<p>1. POWERS OP MUNICIPAL CORPORATIONS. Sinking fund, definition and use of the term.</p> <p>The law has impressed upon the term “sinking- fund” a fixed, technical signification. It is a fund arising from particular taxes, imposts, or duties, which is set apart for the payment of the interest on a public debt, and for the gradual payment of the principal itself, at the discretion of the state or municipality creating it. Where the term is used in a statute it must be understood to have been used in its technical sense, unless it otherwise clearly appears.</p> <p>Cited with approval: 2 Bouv. L. D., 524 [“Sinking Pund,” 15th ed., p. 642.]</p> <p>2. SAME. Sinking' fund inviolable.</p> <p>It is competent for a municipal government to set apart a portion of its revenue in the hands of commissioners for the purpose of creating a sinking fund to pay such of its debts as it may designate, and in the manner prescribed by the city ordinances. No single creditor or class of creditors has a right to disturb such a fund in the process of its creation, for the payment of his or their debts; but the fund is for the benefit of all the creditors intended to be secured, and is inviolable in the hands of its managers so long- as they administer it within the spirit of the law which creates it</p> <p>Cited with approval: The People v. Mead, 24 N. Y., 119; State v. Supervisors of Washington, 2 Chand., 250; Pree Press Association v. Nichols, 45 Yern., 7; People v. Solomon, 46 111., 419; People v. Mayor of Chicago, 51 111., 28; High Ex; L. R., secs. 6, 9, 340; State v. Warmoth, 23 La. An., 76; State v. County Judge of Floyd, 5 Iowa, 380; People v. Clark Co., 50 111., 213.</p> <p>3. SAME. Charter, construction of.</p> <p>A charter power given to» a city government to create a sinking fund “to retire the bonds of the city as they may become due,” is intended as an indemnity to a.ll the bond creditors of the city, whether their bonds are due or not due. The city government in such ease has the incidental power, by ordinance, to appoint sinking- fund commissioners to manage the fund in their sound discretion, so» as to secure its gradual increase, and 1o extinguish the debt by the best means possible, either by buying in. the bonds or coupons in market, due or not due, or by its investing the fund in some productive security so as to realize a sum sufficient to discharg-e all of the bonds by the time of the maturity of the last one.</p> <p>Cited with approval: U. S. Rev. Stat., secs. 3694-3696; act 1841-42, ch. 180, Nich. Sup., 42, 43; Board of Liquidation v. Municipality, 6 La. An., 21; act 1837-38, ch. 107, sec. 26, Nich. Sup., 32; act 1835-36, ch. 22, Nich. & Car. Rev., 408, 409.</p> <p>4. STATUTES. Provisions made effectual by common law.</p> <p>It is a general rule in the construction of statutes that where their provisions are g-eneral, everything which is necessary to make such provision effectual is supplied by the common law, and when a power is given by statute, everything necessary to make it effectual is given by implication.</p> <p>Cited with approval: Coke Litt., 235; 2 Coke Inst-., 222; Bac. Ab., Stat. B.; 12 Coke, 130.</p> <p>5. MANDAMUS. Not a writ of right. Practice.</p> <p>In cases where a remedy is sought by mandamus, the relator must stand upon the strict law, and show himself clearly entitled to the remedy. It is not so much a writ of rig-ht in the party as a writ of discretion in the court. 11 should be issued only where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. It should never, be awarded in a doubtful case.</p>

<p>1. DYING DECLARATION. Incompetent if not the whole conversation, or is mere opinion.</p> <p>Where a witness hears a conversation between deceased and others about the difficulty, as a dying declaration of the deceased, hut remembers only the “substance of one expression” of the deceased, it is error to allow him to detail the substance of one expression without giving the whole conversation. When the deceased, in answer to question asked him by witness, made a statement as a dying declaration, “and was about to say something more when witness stopped him,” it was error to let the statement made go to the jury. The declaration was fragmentary and too incomplete to he received as evidence. A dying declaration of the deceased that “he was an innocent man” is mere opinion, and is not admissible, and that “he went there with no evil intention” is not admissible.</p> <p>Cited with approval: 1 Gr. Ev., sec. 159; Whart. Am. Crim. Law, sec. 674.</p> <p>2. GENERAL CHARACTER OP DECEASED. Por piety not admissible for peaceableness.</p> <p>It is error to permit evidence to go to the jury as to the general character of the deceased for piety, and ¡hat he is a member of the c-hureh. It is not warranted under the rule admitting- evidence of the character of deceased for peaceableness.</p> <p>3. SELF-DEPENSE. Justifiable killing notwithstanding fault.</p> <p>The court’s charg-e to the jury, “If you find the defendant Richard, upon learning that the deceased, together with Vinson, was coming toward his mother’s house, and that they were either armed or unarmed, and thereupon defendant armed himself with a deadly weapon and advanced towards the deceased as far as his mother’s gate, and stationed himself there to await the coming of deceased, with the view and intent of engaging in deadly combat with deceased, provided deceased should assault him with a deadly weapon; and thereupon the deceased advanced near the gate and either did or did not assault the defendant, and thereupon the defendant shot and killed the deceased, he is guilty of murder,” is erroneous and calculated to mislead the jury. The charge should have been, “If the defendant advanced to the gate, determined or .intending-not to fight, unless for his defense and ¡protection, and a violent and dangerous assault was made upon him, which threatened him with death or great bodily harm, without his seeking or provoking it, and he killed his adversary to prevent his own death or save himself from great bodily harm, it would he killing- in self-defense.”</p> <p>Cited with approval: Copeland v. State, 7 Hum., 479.</p> <p>Cited and approved on this j>oint in-Foutch v. State, 31. Pickle, 711, 719; State v. Foutch, 12 Pickle, 242, 247.</p>

<p>1. CHARTER OE PRIVATE CORPORATION. Forfeiture of, for ’ neglect or misuser. Jurisdiction of the circuit coxirt.</p> <p>The circuit court has no authority to- grant a corporation time to comply with the requirements of its charter in the construction, extension, and repair of its road, [f the failure to consti’uet or keep its road in repair had subjected the corporation to a forfeiture of its charter, the court has no power to relieve it or condone the forfeiture. The legislature alone possesses dispensing power.</p> <p>Cited with approval: People v. King-ston & Middleton Turnpike Co., 23 Wendell, p. 211; 27 Barbour, N. Y. Rep., pp. 453, 454; People v. Hillsdale & Chatham Turnpike Co., 23 Wendell, p. 258.</p> <p>2. SAME. Same. Same. Not conferred by giving eura.nla.tive remedy before justices of the peace.</p> <p>A provision in a turnpike charter authorizing a justice of the peace,. upon complaint made by affidavit of the nonrepair of the road, and found to be true, to open the- company’s gate till repairs were made, is merely a cumulative remedy in no way interfering- with or taking- the place of others, and does not confer upon the circuit court jurisdiction to relieve it or condone the forfeiture, though an appeal lies from the justice to the circuit court.</p> <p>Cited with approval: High. Extra. Rem., see. 651; 28 Wendell, pp. 223, 243, 245, 254, 537; Redf. Law of Rwys., p. 705, sec.12.</p> <p>3. SAME. The rule in reg-ard to forfeiture.</p> <p>The true rule upon this subject is, that all the duties or requirements enjoined by an act of incorporation are conditions attached to the grant of the franchise conferred, and, whether they are conditions precedent or subsequent to the corporate existence, must be substantially performed or the corporation will subject itself to forfeiture.</p> <p>Cited, criticised, and modified: The State v. C. & H. Turnpike Company, 2 Sneed, 245, modified.</p> <p>Cited and construed: Code (1858), secs. 3409, 3413-3416, 3425; Shannon’s Code, secs. 5165, 5169-5172, 5181; acts 1866-67, ch. 50, sec. 3, p. 135.</p> <p>4. SAME. Same. Mistake or good faith does not excuse forfeiture.</p> <p>In order to obtain a decree of forfeiture of a charter, it is not necessary to show that the failure to comply with the requirements and conditions annexed to the charter was wilful, or was not the result of an honest mistake in the construction of the charter. [Modifying the law as stated in. note 1 under sec. 5181 of the Code.]</p> <p>Cited and distinguished: State v. Merchants’ Insurance and Trust Co., 8 Hum., 235; State v. Columbia & Hampshire Turnpike Co., 2 Sneed, 254 (qualified); State v. Scott, 2 Swan, 332; People v. Kingston & Middleton Turnpike Co., 23 Wendell, 193; Id., 204-211; 27 Barbour (N. Y.), 445-453; 9 Mich., 285; 41 N. Y., 328-330; Angelí & Ames on Corp., sec. 776.</p> <p>Cited and construed: Acts 1835-36, ch. 54, sec. 4; Code (1858), sec. 3425; Shannon’s Code, sec. 5181.</p> <p>5. SAME. EfEect of subsequent legislative recognitions.</p> <p>Legislative recognitions may operate to waive defects in the due organization of corporations, and there may be express or implied legislative waiver of forfeiture. But acts extending the franchise over three other roads, and merely referring to the original act to show what the corporation’s rights, privileges, and immunities were over the three new roads thus brought within its charter, held to present no such waiver.</p> <p>Cited with approval: 23 Wendell, 193, 212; 35 Wisconsin, 602; 27 Barbour, 454.</p> <p>Cited and construed: Acts 1868-69, ch. 45, sec. 20, p. 208; acts 1869-70, ch. 59, sec. 21, p. 396.</p> <p>6. SAME. Same. No effect in future.</p> <p>A waiver of forfeiture by a legislative act does not cover or cure the cause of forfeiture occurring afterwards, such as a continuing failure to comply with a continuing condition.</p> <p>Cited with approval: Thompson v. People, 23 Wendell, 538.</p> <p>7. SAME. What neg-lect works forfeiture.</p> <p>A company under a franchise to construct and maintain four certain roads, cannot, at its option, abandon one or more of them without subjecting1 itself to a forfeiture of its charter.</p> <p>Cited with approval: People v. Albany & Vermont 11., 24 N. Y., 261, 268.</p> <p>8. PRACTICE. Verdict modified by consent binding- on consenting party.</p> <p>Where, upon a motion for a new trial, the judge being of the opinion that there was error in his instructions to the jury on certain issues, announced that a new trial would be granted defendant because of such error, unless plaintiff would consent to a modification of the verdict on said issues, so as to- conform to the views of the court, to which modification the plaintiff consented, and the motion for new trial was overruled, the plaintiff is bound by this consent, and can only rely in the supreme court foi relief upon such rights as he may have under the verdict as modified.</p>

<p>1. DAMAGES. Por killing’ stock by railroad. Jury judg-es of negligence, etc.</p> <p>In an action for damag-es against a railroad company for killing stock, the inquiry for the jury is whether the accident was occasioned by the negligence of the company; and they are the judges whether the witness (the engineer) did all he could do, and not the witness.</p> <p>Cited and construed: Code (1858), secs. 1166, 1168; Shannon’s Code, 1574, 1576.</p> <p>2. SAME. Same. Speed governed by circumstances.</p> <p>The question of speed is left to the discretion of the company, under liabilities imposed by law for a reckless abuse of that discretion; and it is for the jury to judge whether, under all the circumstances, the company is guilty of negligence in running its trains at a certain rate of speed. [See note 25 under sec. 1574 of the Code.]</p> <p>Cited with approval: Morse v. Road B. R. R. Co., 27 Vt., 49;. 13 Ohio R. R., 66; 46 Miss., 573.</p> <p>3. SAME. Same. Best headlight to be used.</p> <p>There being no law prescribing the character of headlight the company shall use, the general principle would apply that it is the duty of the company to- use the best the state of the art affords. [See note 6 under sec. 1574 of the Code.]</p>

<p>RAILROAD. Special precautions against accidents; engine not to be reversed, when.</p> <p>Where all tbe other precautions were used to stop the train, except tbe engine was not reversed, because the danger apprehended therefrom was that of being thrown from the track and destroying bnman life on board, tbe statutes intend that this is one of tbe means to> be resorted to only when it can be done with safety. Tbe protection of property is a secondary consideration, tbe paramount object of onr rig-id statutes being- tbe protection of bnman life. [See notes 11-14 under sec. 1574 of the Code. This ease is cited and approved in Railroad v. Troxlee, 1 Lea, 521. Sea also Railroad v. Selcer, 7 Lea, 557.]</p> <p>Cited with approval: Railroad v. Ballard, 2 Mete., 176; Renis v. Railroad, 42 Ver., 375.</p>

<p>RESALE OE LAND. Surplus reached by creditors over rights of surety of purchaser, when.</p> <p>A surety on the purchase money notes for land sold under decree of court, who has paid nothing' on the notes, hut has simply paid a note on which he had become surety with the purchaser to borrow money with which to. repay a debt for money borrowed by the purchaser and paid on the said purchase money notes, has no lien on the surplus proceeds 'resulting- from a resale, under ,decree of the court, to satisfy the balance of the purchase money due. Such surplus belongs to- the original purchaser, and his judgment creditors, with executions returned nulla bona, upon filing hills before the resale seeking to reach his interest in the land and to appropriate the surplus arising upon the resale to their debts, acquire a lien on such fund superior to that of such surety who filed his petition in the cause after the sale. [Eor remedies of judgment creditors with executions returned nulla bona, see Code, secs. 6091-6095, and notes.]</p>

<p>EVIDENCE. Declaration of party in possession of property.</p> <p>Whenever the qustion as to the possession of property is involved, the declarations of the party, accompanying’ the possession and explanatory thereof, are admissible to show the character of the possession. But such statements are not to be taken as evidence of anything- more than the nature of the possession. The declarations were admissible to rebut evidence of others that the party in possession had declared that he had purchased the property and that he was holding it as his own.</p> <p>Cited: Wheaton v. Weld, 9 Hum., 773.</p>

<p>1. USURY. Appearing' on face of note makes it void, and not cured by law taking effect in future. Ignorance of law no excuse.</p> <p>Wben the legal rate of interest is six per cent., and a note stipulates for interest at the rate of ten per cent, “according to an act of the legislature” providing' for a conventional rate of interest as high as ten per cent., which act is not to take effect until after the .date and maturity of the note, such note is usurious on its face, and is therefore null and void. The ,fact that the parties most probably thought the act referred to was in force, cannot excuse them, as ignorance of law cannot be presumed as an excuse. [See notes 37, 38 under sec. 3493 of the Code. But see the acts of 1897, ch. 81, since enacted.]</p> <p>Cited and construed: Acts 1859-60, ch. 41.</p> <p>2. SAME. Same. Action upon the original consideration by amended counts after demurrer to declaration.</p> <p>While an action cannot be maintained on a note void for usury, still an action may be maintained upon the original consideration. If the declaration on the note is demurred to, because of the usury, the plaintiff may file an amended count upon the original consideration. [See notes 37, 38 under sec. 3493 of the Code. But see Bang v. Windmill Co., 12 Pickle, 361.]</p> <p>3. SAME. Same. Same. Surety not liable upon the original consideration, because of statute of frauds.</p> <p>Where the note is void for usury, an action upon the original consideration cannot be maintained against the surety on the note, because he did not receive the original consideration, and does not owé it; and no recovery can be had ag-ainst him upon any other promise not in writing he may have made to pay it, because the promise is to pay the debt of another which is void under the statutes of frauds.</p> <p>4. SAME. Same. Amended count averring mistake as to usury demurrable.</p> <p>An amended count averring that the illeg-al provision in the note was inserted by inadvertence and mistake, and seeking a recovery on the note as thus corrected, is demurrable.</p> <p>Cited with approval: Wood v. Goodrich, 9 Yer., 266.</p> <p>5. CONTRACTS. To be construed as legal instead of illegal and void, if allowable.</p> <p>It is a sound rule that, when a contract is susceptible of two constructions, one in conformity with the law, and the other illeg-al, that the construction should be given which will make it valid; that every presumption is in favor of the construction which will avoid the illegality, but a strained construction should not be given in order to avoid the illegal feature.</p>

<p>1. SURETY. Not released by mere delay of creditor.</p> <p>Mere delay on. part of creditor will not discharge a surety, more especially after judgment. And even delay in pursuance of an- agreement not binding on the creditor, that is, one not supported by a valuable consideration, or void as being- in violation of law, will not have that effect.</p> <p>Cited with approval: Watson v. Reed, 4 Bax., 49; 2 Am. L. Cases (ed., 1871), 466, 470.</p> <p>2. SURETY. Released by creditor’s relinquishment of securities or liens.</p> <p>The creditor cannot relinquish any right or security which would conduce to the safety, or inure to the benefit of the surety, who is entitled to the benefit of all securities taken by the creditor for the safety of his debt, whether the surety Knew of them when taken or not. A release of a lien, fixed by a levy upon land, by the active interference of the creditor, whereby the land was prevented from being appropriated to the payment of the debt, will release the surety to the extent of the value of the land.</p> <p>Cited with approval: Watson v. Reed, 4 Bax., 49.</p> <p>3. SURETY. Not released by neglect of officer when creditor not in fault.</p> <p>Where the creditor himself is guilty of no wrong towards, the' surety, releases no lien, is not guilty of any gross neglect by which one is lost, on the contrary is active in endeavoring to enforce his rights, but is prevented by the officer’s neglect of duty to execute the process in Ms hands from realizing his money out of the principal, tue surety is not released. The creditor’s remedy against the defaulting officer in such case does not release the surety’s obligation.</p>

<p>PAETNEKSHIP., Mistake in settlement between partners on dissolution, not corrected unless mutual.</p> <p>Where partners had not, on dissolution, settled their business by any adjustment of the accounts of the firm, or of the individual partners, and had not agreed upon or ascertained a valuation of the assets, nor endeavored to ascertain the true balance between them, but made a lumping trade, and it was not shown that there was a mutual mistake as to the matter complained of, a bill by one of the partners to have an alleged mistake in the settlement corrected, supported only by the complainant’s statement, cannot be maintained. [See Bankhead v. Alloway, 6 Cold., 56; Beady v. Munday, 1 Tenn. Chy., 453; Stark v. Sperry, 2 Tenn. Chy., 315.]</p>

<p>1. WARRANTY OF TITLE. For breach, of, proof of eviction necessary.</p> <p>In an action for breach of covenant of warranty, it is incumbent upon the complainant to show an eviction, or the establishment of a paramount title in another by some judicial proceeding, or, to establish by competent evidence the superior title which he alleges is vested in the third persons named. [See note 110 under sec. 3142 of the Code.]</p> <p>2. WRITTEN. CONTRACTS. Not to be interpreted by parol testimony, when.</p> <p>Where a promissory note provides that it may be discharged in claims on the payee which the maker may hold or may obtain at any time before payment, by a. fair interpretation, it must be taken to mean that the maker may discharge the note in claims against the payee at par. The contract as evidenced by the note is controlling, and is to be interprted from the language used, and not by parol testimony.</p>

<p>1. GUARDIAN AND WARD. Securities marshalled at the instance of a third party, when.</p> <p>Where a g-uardian conveys land absolutely to a surety on his g-uardian bond, but which is intended in fact as a mortgage to indemnify the surety, who sells and conveys the land to a third party, the purchase money debt for the latter sale may be impounded and applied to the payment of the guardian liability, by the way of marshalling assets or securities, at the instance of another purchaser of other land from such surety, which land the wards are proceeding to subject to the payment of the guardian liability owing- to them under claim of a lien.</p> <p>2. SAME. Other creditors may reach the remainder of the fund for whose benefit the securities were marshalled.</p> <p>Where judgment creditors of both the said guardian and his-said surety levy upon said tract of land, the proceeds of the sale of which are applied to the payment of rhe guardian liability as shown in the foregoing syllabus, and purchase the same at the execution sale, but fail to get any title, they are entitled, upon bill filed for that purpose, to have the satisfaction of their judgments set aside, and having attached the fund owing from the second purchaser of the other land as stated in foregoing syllabus, subject to the claim of the wards thereon, and both debtors being insolvent, and there being no attempt to discharge or resist the attachment, whatever amount of this second fund remains after paying the said wards what the other first fund fails to pay them, will be applied and appropriated to the payment of said judgments.</p> <p>3. SATISFACTION OF JUDGMENTS. Set aside at instance of plaintiff, when title fails.</p> <p>Creditors purchasing land at their execution sales who fail to g'et any title to the land, have no Hen thereon. [See Code, secs. 4719-4722, and notes.]</p> <p>Cited with approval: Dane v. Marshall, 1 Heis., 30.</p>

<p>BILLS AND NOTES. PRINCIPAL AND SURETY. Verbal notice to sue principal releases surety, when. Damage.</p> <p>Where a surety seeks to be discharged on the ground of verbal notice to the creditors to sue the principal, it must not only appear that the holder of the note failed to sue, but that the money could have been made by reasonable diligence. In order to obtain equitable relief, he must show not a probable, but an actual loss. [See notes 13-21 under sec. 3518 of the Code.]</p> <p>Cited, approved, and distinguished: Hancock v. Bryant, 2 ■Yen., 476; Tliomxjson v. Watson, 10 Yer., 362; Burrow v. Bank, 6 Hum., 440; Hopkins v. Spurlock, 2 Heis., 1.52.</p>

<p>1. EXECUTION. Levy on personalty releases debtor and his surety, when.</p> <p>It is well settled that the levy by an officer upon personal property of sufficient value, ordinarily is a satisfaction of the judgment and execution. If, however, the property has been restored to the debtor, he cannot claim that the levy is a satisfaction. Put this principle does not apply to a surety. He is discharged unless he agrees to the restoration of the property to his principal, or does some act that estops him to allege satisfaction. [See notes 14-19 under sec. 4755 of the Code; note 26 under sec. 4854.]</p> <p>Cited with approval: Finley v. King, 1 Head, 123; Pigg v. Sparrow, 3 Hay., 144.</p> <p>2. SAME. Same. Exception in case of delivery bond.</p> <p>To this rule there is one exception. Where the principal debtor makes a delivery bond for the property levied on, his surety not joining- in the bond is liable after the remedies on the bond are exhausted. [See note 2 under sec. 4779 of the Code.]</p> <p>Cited as changed by statute: Brown v. McDonald, 8 Yer., 160.</p> <p>Cited and construed: Acts 1801, ch. 13; 1831, eh. 25; Code (1858), secs. 3044-3049; Shannon’s Code, secs. 4772-4779.</p> <p>3. SAME. Same. Stayor released, thoug-h judgment debtor enjoins sale.</p> <p>Filing a bill and suing out an injunction by a surety judgment debtor in which the stayor does not join, restraining a sale of personalty levied on, does not prevent the levy from satisfying the judgment and execution as to such stayor. [See notes 20-22 under sec. 4755 of the Code.]</p> <p>4. JUDGMENT. Satisfaction of,-set aside, when.</p> <p>Where a judgment creditor acquires no title to- property by his purchase at execution sale, he is entitled to have satisfaction of his judgment set aside, and another execution awarded. [See Code, secs. 4719-4726, and notes.]</p> <p>Cited with approval: Henry v. Keys, 5 Sneed, 488.</p>

<p>1. CHANCERY PLEADING AND PRACTICE. Persons not made defendants to an amended bill not affected by it.</p> <p>Where the sureties of an executor were made defendants to an original bill filed by a legatee, seeking a decree against the executor and his sureties for balances due him, but were not made parties to an amended bill bringing other legatees before the court and making other charges of maladministration by the executor, an order pro confesso1 upon such amended bill did not give the court jurisdiction to pronounce a decree against such sureties as to the matters therein contained.</p> <p>2. SAME. Decree modified to conform to original bill, when.</p> <p>On the petition of one of the sureties for a rehearing in the supreme court, a decree against them in favor of the legatees, made parties by such amended bill, will be so modified as to charge for a proper recovery under the original bill.</p> <p>3. SAME. Defendants may be made complainants, when.</p> <p>Parties made defendants to a bill in chancery may, upon their own application, he made complainants, where they are entitled to a recovery against their co-defendants. [See Ingram v. Smith, 1 Head, 427, 428.]</p>

<p>1. CHANCERY PRACTICE. Complainant may dismiss Ms bill, when and when not.</p> <p>It is well settled as a general rule of practice in the chancery court that before a final decree, or before the trial of an issue directed by the court on the hearing of the cause to be made up and tried, the complainant may, upon motion, dismiss his bill, but after a final decree or a trial of such issue, or -after a general decree for an account, or after a decree establishing rights of the defendant, the complainant cannot so dismiss his bill, without the consent of the defendant.</p> <p>Cited with approval: 2 Dan. Chy. PI. and Pr., 965 [5th Am. ed., 1st Yol., 793, 794, 811]; Saylor’s Appeal, 39 Penn. St., 498; Conner v. Drake, 1 McCook (Ohio), 170.</p> <p>2. SUPREME COURT PRACTICE. Appellant may dismiss Ms appeal, but not Ms bill in supreme court.</p> <p>Where a decree is rendered against the complainant, and he appeals to the supreme court, he will not be permitted in that court to dismiss his bill upon motion. The appeal only may be dismissed.</p> <p>Cited, approved, and distinguished: Maskall v. Maskall, 3 Sneed, 208.</p> <p>3. SAME. Appeal vacates decree for purposes of the appeal only.</p> <p>While a decree of the chancery court is vacated by an appeal, still it is only for the purpose of having' the whole matter of law and fact appearing in the record re-examined in the supreme court, and if the appeal, for any reason, shall be dismissed, the effect is to affirm the decree, and leave it in ihe same condition as if the appeal had not been taken. In the supreme court it is the appeal, and not the original bill, that is to be prosecuted.</p> <p>Cited and construed: Code (1858), secs. 3155, 3160, 3161, 4514; Shannon’s Code, secs. 4887, 4892, 4893, 6349.</p> <p>Cited with approval: Franklin v. Franklin, 2 Swan, 524; 2-Dan. Chy. PI. and Pr., 1578, 1579 [5th Am. ed., 1497, 1498].</p> <p>4. FRAUD, DURESS, AND MISTAKE. Testimony required to-set aside contracts for, after long acquiescence-.</p> <p>Where, upon dissolution and in settlement of a partnership business a son executed Ms note to his father in 1864, and acquiesced in the transaction by paying the interest annually on the note until after his father’s death in 1871, and then seeks to have the note canceled upon the ground of mistake, duress, and fraud, and the true amount due ascertained, and it not appearing that the contract was ■obtained by fraud or duress, he will not be allowed to overhaul such settlement and transaction, upon the groimd of mistake, without some explanation of the delay and proof of the mistake alleged, by the clearest and most satisfactory testimony.</p> <p>Cited with approval: Story’s Eq. Jur., secs. 1540, 1545, 1551.</p>

<p>VENDOR’S LIEN. Judgment not declaring, cannot be made a lien by a creditor subjecting it.</p> <p>Where the creditor oí a vendor oí land, by decree, subjects the debt for the purchase money to the payment of his claim, without having any lien declared on the land, and a creditor of this creditor seeks to subject this decree to the pajrment of a claim of his ag-ainst such first creditor, and to enforce it as a lien on the land by a sale of the same which had been sold and conveyed to another party, the relief will be refused, because the decree declared no lien on the land.</p>

<p>1. DEMURRER. Its office. Bill of review.</p> <p>Upon a demurrer to a bill of review, as to- a bill of any other nature, tbe court cannot look to anything outside of the bill itself. Whetlxei the complainant has presented, the record complained of fairly or falsely, is not a question to be considered under a demurrer. If the defendant is content to demur without plea, the court is confined to the bill itself, and. must determine the case upon the allegations of the bill itself.</p> <p>2. SAME. Mnst show law to deny relief.</p> <p>The demurrer must he founded on some strong- point of law, which goes to the absolute denial of the relief soug-ht, and not on circumstances, in which a minute variation may incline the court either to,grant, modify, or refer the application.</p> <p>Cited with approval: Verplank v. Caines, 1 Johns. Chy., 58: 1 Dan. Ch., 565 [2 Dan. Ch. PI. and Pr., 1583].</p> <p>3. SAME. Special fault-finder.</p> <p>The demurrer, under our practice, is a special fault-finder, and the demurrant must put his finger upon the fallacy in the bill trpon which he predicates his theory that the bill, assuming all its averments to be true, cannot be sustained.</p> <p>Cited with approval: 3 Paige, 370; 7 Cold., 430; Adams Eq., 640.</p> <p>4. PRACTICE. Errors assigned in bill of review and demurrer to it.</p> <p>The several errors apparent assigned by complainant, and the several grounds of demurrer assigned by defendant, are set out in the opinion, and considered, which are too numerous for a syllabus.</p>

<p>1. FRAUDULENT CONVEYANCES. Voluntary conveyances without consideration are void as to creditors.</p> <p>A father made a conveyance of all his real estate to his several children, upon the alleged consideration of having' received large amounts of money and other property which were given and bequeathed to his wife for life, with remainder to her children, and that he desired to pajr each child the amount justly due, the mother being dead, when in fact the only property bequeathed to his wife for life, and remainder to her children, was some slaves which were emancipated, and the balance of the property was bequeathed to her in general terms. As there was nothing to fix any trust upon the property so received, the several deeds were voluntary and void as to creditors, and subject to be set aside by creditors of the.conveyor after his death. [See Code, sec. 4136, notes 3, 4; sec. 6094, notes 5-7; sec. 3143, and notes.]</p> <p>2. SALES OF PERSONALTY. When complete and title passes.</p> <p>A sale of cotton is not complete before it- is set apart from the other cotton, and if destroyed before the separation, the loss falls upon the seller. [On the question as to when the title to personal property passes by sale or when the sale is compíete, see Williams v. Allen, 10 Hum., 337; Bush v. Barfield, 1 Cold., 93; Bond v. Greenwald, 4 Heis., 456-464, specially 460; Bawls v. Patterson, 1 Bax., 373.]</p>

<p>1. TORT. Owner of the property must sue for damages.</p> <p>The action for a tort must in general be brought in the name of the person whose leg'al right has been affected, and who was legally interested in the property when the tort was committed.</p> <p>2. SAME. Same. Owner must separate his from the lot of property attached.</p> <p>Where a lot of property attached is part that of the debtor and part that of his vendor, from whom he purchased the part attached, to entitle such vendor to recover for such of the property as was not embraced in the sale, he must by proof separate it and ascertain its value.</p>

Statement of the case. Defendant was presented at the July term, 1874, of the circuit court of DeNalb county, for open and notorious lewdness with one Nancy Moore. At the July term, 1876, of said court, defendant Young pleaded in abatement to the presentment 'alleging that it was not found and presented by a legal grand jury, James Terrel having acted on and signed the same, and he being incompetent on account of relationship to defendant within the sixth degree.

<p>APPEAL. By husband alone is not effective as to Ms nonappealing wife, when.</p> <p>Where a judgment is rendered against a guardian and the sureties on his guardian bond by a decree of the chancery court, an appeal by them “from so much of the decree as affects them” does not bring the case up as to the non-appealing wife of c-ne of the sureties against whom there was a decree that she was not entitled to any of the funds or rights therein as a conting-ent remainderman, but that the same had vested absolutely in the first takers; and, therefore, such appellants cannot assign as error that the-decree should not have been in favor of complainants, but in favor of said wife as conting-ent remainderman, whose right was negatived by the decree, and who did not appeal.</p>

<p>■SCHOOL LAW. Teacher may whip pupil, when.</p> <p>A teacher has the right to punish within bounds prescribed by law, notwithstanding- the instruction from the father to theyhild “not to take a whipping- unless he deserved it,” where the rule of a public school does not interfere with the exercise of this right. [See note 2 under sec. 1449 of the Code.]</p>

<p>1. INDICTMENT. Plea in abatement. Objection to married woman prosecxxtx-ix.</p> <p>A plea in abatement by permissioxx of tbe count may be filed at axiy time before a verdict. Tbe fact that tlxe prosecutrix on an indictment is a mari-ied woman, may be given in evidence on the trial. [See notes under see. 7058 of the Code.]</p> <p>Cited with approval: Watting-bam v. State, 5 Sneed, G4.</p> <p>Cited and constrixed: Acts 1801, ch. 30; Code (1858), sec. 5342; Shannon’s Code, secs. 7217(2), 7058.</p> <p>2. SAME. Married woman may be prosecutrix, when.</p> <p>A married woman may be a prosecutrix on an indictment, who has been deserted by her husband, if the offense was committed subsequent to such desertion. [See note 2 xxnder see. 7058 of the Code.]</p> <p>Cited and construed: Code (1858), sec. 2805; Shannon’s Code, sec. 4505; acts of 1835, ch. 56.</p>

<p>EXEMPT IONS. Citizen entitled to, until actual removal to another state.</p> <p>A citizen entitled to the exemptions is protected in them, thoug-h he is removing the exempt property from this state, with the purpose and intent to change his domicile to another state. lie is protected until actual removal. A fixed purpose to change one’s domicile to another state will not operate to deprive a party of his rights as a citizen of this state.</p>

<p>1. PLEADING AND PRACTICE. Appointment oí trustee on ex parte proceedings without parties in interest is void.</p> <p>The creation of a trust estate by a judicial proceeding necessarily involves a divestiture of the antecedent estate, and the parties in interest must be parties to the cause and before the court. A trustee appointed upon an ex parte proceeding- must be treated as an officious actor in his own wrong, and can only be held a trustee so far as it may be necessary to avert or correct the wrongs which are done or may be done under color of the usurped authority.</p> <p>2. SAME. Same. Whether done by mistake or design, the consequences are the same.</p> <p>Whether such appointment was obtained upon such ex parte proceeding by mistake or design, its consequences must be the same in a court of equity; and while such appointed trustee may have been honestly mistaken as to his authority in his transactions in the management of the trust property, and had no purpose to absorb the estate and defraud the parties in- interest, still he must be held to the consequences.</p> <p>3. SAME. Incidental questions not res adjudicata; no estoppel to show mistake in pleading, when.</p> <p>The record in another suit interposes no estoppel to contest the validity of such appointment-, when such question was only incidentally involved in that suit, and the fact of the appointment is only incidentally mentioned, which suit was not instituted for the purpose of adjudicating- that point, but for another purpose. An estoppel cannot be predicated upon an innocent mistake, as where it does not appear that the parties were advised of their rights. [See Singleton v. Ake, 3 Hum., 626; Washington v. Conrad, 2 Hum., 562; Decherd v. Blanton, 3 Sneed, 373; Seay v. Ferguson, 1 Tenn. Chy., 294. But different, when under oath. Cooley v. Steele, 2 Head, 605; Hamilton v. Zimmerman, 5 Sneed, 39.]</p>

<p>1. PRACTICE. Judgment by default set- aside on motion, bow and when; by supreme court, when.</p> <p>Where a motion to set aside a judgment by default is made at the term rendered, supported by a sufficient affidavit excusing the failure to plead, accompanied by a tender of a sufficient defense to the action, it is almost a matter of course to set aside the judgment, and let the party into his defenses. But it would be idle to set aside a proper judgment rendered, without a sufficient defense appearing to the action. The supreme court will reverse, set aside the judgment, and remand the cause, where the defendant has a good defense to the suit.</p> <p>2. SAME. Scire facias to hold administrator or executor personally liable on judgment to issue upon sugg-estion of devastavit of record.</p> <p>Before a scire facias can issue to hold an administrator or executor personally liable on a judgment against him in his such representative character, there must be a suggestion of devastavit first made of record as the ground for it’s issuance, for the writ must be based upon some matter of record. An entry of record that the personal representative had converted to his own rise the goods, chattels, etc., is not the suggestion of a matter of devastavit.</p> <p>Cited with approval: Cope v. McJB'arland, 2 Head, 544; Hillman v. Hickerson, 3 Head, 577.</p>

<p>1. HOMESTEAD. Owner without wife may convey and deprive children of it.</p> <p>While the act of 1870 exempts the homestead from being sold by legal process, during the life of the head of a. family, and gives the benefit of the exemption to the widow, and continues the exemption until the youngest child arrives at ag-e, there is no statute that prevents the husband convey-the property as he may choose, if he has no wife; nor need the children join in the conveyance. Under such circumstances no right of homestead exists in favor of the children.</p> <p>Cited and construed: Con., art. 11, sec. 11; act of 1870, ch. 80. [See Code, secs. 3798, 3799, 3S07.]</p> <p>2. ABOUT. In note approximates amount.</p> <p>The word “about” includes an approximate amount; that is, a note for a few dollars, more or less, is within its meaning', but cannot be held to include one for more than double the sum.</p>

<p>CHANCERY SALE. A purchaser failing- to comply with terms of sale, liable for deficiency of resale, when.</p> <p>In order to bind a noncomplying purchaser, at a chancery sale, for the difference between his bid and the amount for which the land sold for a-t the second sale, the decree for the second sale must decree the sale to be at the risk of such noncomplying- purchaser, and he is entitled to notice that the resale is at his risk, and such notice should be set forth in the decree. [This doctrine is reaffirmed in Allen v. East, 4 Bax., 308. But see Williams v. Whitmore, ante, p. 241, syllabus 6, and notes.]</p> <p>Cited: Dan. Ch. PI. & Pr., 1281-1284.</p>

<p>GARNISHMENT. Answer of garnishee is conclusive, when, and as to whom.</p> <p>The answer of a garnishee, in eases involving more than fifty dollars [one thousand dollars since the act of 1883, eh. 11, Shannon’s Code, see. 4831], is conclusive as between garnishee and garnishor onty, and not as to strangers to the litigation; and unless it appear to the court that the effects or money in the hands of the garnishee are liable 1o the plaintiff’s debt, the garnishee will be discharged. The money or property of a third party will not be impounded to pay the plaintiff’s debt, and if the garnishee is mistaken as to the ownership thereof, he will be discharged. [See notes under sec. 4831 of the Code.]</p> <p>Cited: Conner v. Allen, 3 Head, 424; Code (1858), secs. 3103, 3092, 3094, and 4236; Shannon’s Code, secs. 4831, 4820, 4822, 6074.</p>

<p>JURISDICTION. Over certain civil districts cannot be affected by county court changing districts, when.</p> <p>Where, by statute, jurisdiction is given a court over certain civil districts of a county by their then known number, after which one of these districts is included in the territory of a new county organized, whereupon the county court of the old county malves a new district out of fractions of other districts left within its territorial limits, a portion of which belonged originally to the jurisdiction so conferred upon the court, and a portion not, which newly created district is numbered the same as the district cut off and included in the new county, the substituted district, except the portion of its territory originally in such jurisdiction, is not within the jurisdiction of such court. Question reserved as to effect on jurisdiction by bona fide change of the lines of civil districts which remain substantially intact.</p> <p>Construed: Acts 1868-69, ch. 22, see. 12; 1870-71, ch. 24, see. 1; 1871, ch. 149, see. 1. See also Acts 1889, ch. 90, sec. 2; Shannon’s Code, sec. 161.</p>

<p>1. BILLS AND NOTES. Transferred after maturity, demand and notice to malee indorser liable.</p> <p>The indorser of a past due note is liable for the payment thereof where the indorsee makes demand of payment in a reasonable time after such indorsement, and on failure of payment gives the indorser notice on the same or next day. [See note 20 under sec. 3205 of the Code. See Rosson v. Carroll, 6 Pickle, 90, and citations.]</p> <p>Cited with approval as to what is a reasonable time: Union Bank v. Ezell, 10 Hum., 386.</p> <p>2. PRACTICE. Affidavit for new trial based on newly discovered testimony, insufficient, when.</p> <p>An affidavit tendered on -motion for a new trial proposing merely cumulative testimony, and without the affidavits of the witnesses showing that such proof could be made by them, is insufficient.</p>

<p>1. ASSESSMENT OE TAXES BY COUNTY COURT. Circuit</p> <p>court has no jurisdiction to review upon appeal or certiorari. The eirenit conrt has no jurisdiction, either by appeal or certiorari, to review the action of the county court in levying' taxes.</p> <p>2. SAME. Not a judgment or decree from which an appeal lies.</p> <p>The action of the county court in assessing- taxes being1 legislative, is neither a judgment nor decree within the meaning' of the statute from which an appeal will lie. [See notes 18, 19 under sec. 4879 of the Code.]</p> <p>Cited with approval; Obion County v. Marr, 8 Hum., 634; Marr v. Enloe, 1 Yer., 452; Carey v. Campbell County, 5 Sneed, 515.</p> <p>Cited and construed: Act of 1844, ch. 99; Code (18.58), sec. 3147; Shannon’s Code, sec. 4879.</p> <p>3. SaME. Party with whom to contest the validity of.</p> <p>The justices of the county, as such, are not proper parties ' to a proceeding to litigate the validitjr of an assessment of . taxes. But, semble, the clerk of the county court is the proper party with whom to litigate the validity of the assessment.</p>

<p>1. ADMINISTRATION. Administrator can bind the estate, and not himself individually.</p> <p>In compromising claims against an estate the administrator distinctly protected himself against personal liability on the face of the paper, and then signed his name, putting the letters Adm’r. after it. In a suit to hold him personally upon such a contract, he should be allowed to prove that no assets of decedent came into his hands. Such contracts are to be construed according to the intention of the parties.</p> <p>Cited with approval: Comb’s Case, 9 Coke’s R.; Erwin v. Carrol, 1 Yer., 145; Jordan v. Trice, 6 Yer., 479; Kain v. Humes, 5 Sneed. 611; 2 Kent’s Com., *pp. 630, 633', and notes; Owen v. Gooch, 2 Esp. R., 567; Story on Contracts, see. 101, et seq.; Car. L. S., 83; Hite v. Goodman, 1 Dev. & Bat. Eq., 364; Delius v. Cawthorn, 2 Dev. Law R., 100.</p> <p>Cited and construed: Code (1858), sec. 2012; Shannon’s Code, sec. 3679.</p> <p>2. PLEADING. Plea of non est factum denying execution of paper as individual, allowable.</p> <p>To the same contract appears the name of the administrator as an individual immediately following that as administrator, and he pleaded non est factum as to this, contending that it was intended for the name of his intestate, the only difference in their names being- in one initial, which was T. in one and J. in the other, and denying that he had signed the paper in his individual capacity. It was error to strike this plea from the files on motion. There should be a trial of the issue of non est factum so tendered upon the merits. [See notes 14-27 under sec. 4630 of the Code, and also sec. 5556, and notes.]</p>

<p>1. CHANCERY PLEADING. Sufficiency of avei-ment in bill. No recollection not, wlien.</p> <p>A stayor alleging' that be has no recollection of having- stayed the judgment, and denying his liability according to his best recollection and belief, is not entitled to an injunction against an execution issued from the judgment.</p> <p>2. SAME. Same. Stayor not released by disclaimer, nor by delay of creditor, when.</p> <p>A release cannot be based upon a disclaimer of having stayed the judgment, and a direction, to the creditor to proceed against the principal debtor.</p> <p>Cited with approval: Watson v. Reed, 4 Bax., 49.</p>

<p>CHANCERY PLEADING. ATTACHMENT. Sufficiency of plea.</p> <p>To an attachment bill on the g-round that the defendant is a nonresident, a plea in abatement, alleging' that the dedendant was, at the time the bill was filed, and the attachment issued and levied, a citizen of Haywood county, Tennessee, and not a nonresident of the state, is sufficient, and good in form and substance.</p>

<p>STATUTE OF LIMITATIONS. New promise or acknowledgment of debt takes case out of statute.</p> <p>To take a debt out of the statute the promise to pay should be positive and unconditional; or if conditional, the condition must appear to have been performed; but a direct and unqualified acknowledgment of a previous subsisting debt which the party is willing to pay will be sufficient, thoug'h there be no express promise to pay. [Mere payment will not stop the statute. See note 13 under sec. 4472 of the Code.]</p> <p>Cited with approval: 3 King’s Dig'., sec. 8312 (citing- Dune v. Edmiston, 5 Sneed, 159; Thompson v. Drench, 10 Yer., 452; Belote v. Wynne, 7 Yer., 534).</p>

<p>1. STAY OF EXECUTION. Variance in order for, parol evidence to show judgment referred to.</p> <p>Where there is a variance between the judgement and the reference thereto in the order of entering the stay, parol proof may be heard to- show that the order referred to such judgment. [For examples of stay orders, see notes 19-24 under sec. 4787 of .the Code.]</p> <p>2. CERTIORARI AND SUPERSEDEAS. Petition for, alleging</p> <p>payment without credit on judgment to be heard on proof. Upon an allegation in a petition for certiorari and supersedeas that petitioner is informed and believes that a large payment had been made on the judgment for which no credit had been given, the petition should not be dismissed without giving; an opportunity to establish the fact alleged. [See notes 23-31 under see. 4854 of the Code.</p>

<p>1. STATUTE OF FRAUDS. Rights of parties under void contract for sale of land.</p> <p>Where land is sold under a contract void under the statute of frauds, the vendor has a right to sue for his land, and the vendee the right to recover hack the purchase money paid, upon notice of abandonment of the invalid agreement made by the parties, without tendering the land back or restoring possession.</p> <p>Cited with approval: Redmond v. Bowles, 5 Sneed, 553; Sullivan v. Ivey, 2 Sneed, 489; Beard v. Bricker, 2 Swan, 50; Hurst v. Means, 2 Swan, 599; 6 Blackf. R., 22.</p> <p>2. SAME. Same. Such suits should be brought in chancery.</p> <p>The better practice, in all cases of this kind, is to file a bill in equity disaffirming- the contract, where all the matters can be adjusted in one proceeding.</p> <p>3. SAME. Contracts not in compliance with, nonenforceable.</p> <p>It is well settled by a large mass of decisions that contracts not piade in compliance with the statute of frauds have no legal force or oblig-ation binding on either party — that is, neither party can bring any action by which such» agreement can be enforced, either directly or indirectly. Either party may rescind the contract over the protest of the other.</p> <p>[Cited and approved in Winters v. Elliott, 1 Lea, 676; Hays v. Worsham, 9 Lea, 593; Brakefield v. Anderson, 3 Pickle, 210; Bloomstein v. Clees, 3 Tenn. Chy., 439, 440. See also 3 Meigs’ Dig-., sec. 2574, p. 2229; Jennings v. Bishop, 2 Shannon’s Cases, -. Cited and overruled at to the dictum that the purchaser is bound if the vendor will perform the parol contract: Sneed v. Bradley, 4 Sneed, 305; Hilton v. Duncan, 1 Cold., 320.].</p> <p>4. SAME. Same. Purchasers of property paid on a void and rescinded sale of land not liable to original owner.</p> <p>Where a sale of land, void under the statute of frauds, on which the purchaser had made a payment in lumber, is rescinded, he cannot recover the lumber or its value from third parties who had purchased the same from the vendor of the land*</p> <p>Cited with approval: Arendale v. Morg-an, 5 Sneed, 713.</p> <p>5. SAME. Insufficient description of land renders contract void, under.</p> <p>Where the only description of land in the contract of sale is, “the vendor’s tract of land in District Ho. 7, one mile south of Trenton,” the contract is inoperative under the statute of frauds.</p> <p>6. SUPREME COURT PRACTICE. Reversal for jury’s arbitrary rejection of evidence.</p> <p>While the jury are judges of conflicting testimony, they cannot arbitrarily reject testimony uncontradicted, of a witness unimpeached by any of the modes known to the law, and for such rejection the case, will be reversed and remanded by the supreme court.</p>

<p>I. CHANCERY PLEADING AND PRACTICE. A cross-bill of discovery is not demurrable for indefiniteness, when.</p> <p>Where the sureties on a- note payable to the defendant’s testator are seeking, by their original bill, to be discharged from liability thereon, and the defendant as executor files an answer as a cross-bill charging-, upon information and belief, that said sureties were fully or in part indemnified against their liability by a sufficient amount of assets, or effects, or means placed in their hands by their principal to save them harmless and to pay said note for which purpose they were received by them; that the kind and amount of such property are unknown to the executor, who has no personal knowledge of the facts charged, and praying that the defendants therein be required to answer on oath the amount and kind of said property so received by them for said purpose. A demurrer to such a cross-bill, upon the ground that there are no specific allegations of the facts sought- to be put in issue by it, will be overruled.</p> <p>2. SAME. Answer filed as a cross-bill, and all statements cdnsidered part of cross-bill, when.</p> <p>Where in the answer to an original bill this languag-e is used: “Respondent having- fully answered, prays to be permitted to file this as a cross-bill,” etc., and then proceeds to make additional charges, it is clear from the languag-e used that- the answer was filed as a cross-bill under our statutes, and that all the alleg-ations and averments therein may be considered and looked to as part of the cross-bill. [See Code, sec. 6133, and notes and references.]</p>

<p>1. FORCIBLE ENTRY AND DETAINER. Unlawful detainer lies against purchaser by parol repudiating contract.</p> <p>Where the purchaser of land by parol repudiates the contract by refusing to comply with his part of the same, his possession becomes unlawful, and the vendor can maintain an action of unlawful detainer against him. [See note 2 under sec. 5093 of the Code.]</p> <p>Cited with approval: Sidlivan v. Ivey, 2 Sneed, 487.</p> <p>2. SAME. Same. . Action revived and prosecuted by administrator.</p> <p>Where, during- the pendency of an action of unlawful detainer, the plaintiff dies, the suit may be revived and prosecuted by his administrator. [But see notes 1, 2 under sec. 5118 of the Code.]</p> <p>Cited with approval: Winning-ham v. Crouch, 2 Swan, 170.</p> <p>Cited and construed: Code (1858), secs. 3368, 3369; Shannon’s Code, secs. 5118, 5119.</p>

<p>1. REPLEVIN. Right ot widow before appointment of administrator.</p> <p>The widow is entitled to the possession of property until the appointment of an administrator, and an action of replevin brought by her will not be defeated by the subsequent appointment of an administrator. [See note under sec. 4019 of the Code.]</p> <p>Cited and distinguished: Staggs v. Eerguscra, 4 Heis., 690.</p> <p>Cited and construed: Code (1858), sec. 2284; Shannon’s Code, sec. 4019.</p> <p>2. SAME. Same. May bring suit without demand for property surrendered up, when.</p> <p>When the defendant wrongfully demands and obtains the possession of property from plaintiff, the latter acting under a misapprehension of the right of the former, is not deprived of her right of possession, and need not demand the return of the property before bringing- suit.</p>

<p>CHANCERY JURISDICTION. None to review road proceedings in county court.</p> <p>The chancery court has no jurisdiction to revise the action of the county court in laying out public roads.</p>

<p>'V'E'RDICT. When supported only by suspicions, cause reversed and remanded by supreme court.</p> <p>It is with great reluctance that the supreme court disturbs verdicts of juries upon the evidence, and never when it is a mere ease of conflict of testimony. But when the conclusion reached is a mere inference drawn from certain circumstances in proof, which do not legitimately warrant the conclusion and create only a suspicion not amounting-to proof of. the proposition, the verdict will be set aside, the case reversed and remanded for a new trial. The judgment in this case was reversed and a new trial awarded upon the ground that the verdict was not sustained by the evidence. [See note 2, and references, under sec. 634S of the Code.]</p>

<p>1. MORTGAGE. Description of property in, sufficient, when.</p> <p>Any description which will enable third persons to identify the property, aided by inquiries which the description itself indicates, is sufficient. A description in a mortgag-e as follows: “Seventeen head of horses, three, mules, ,eight wagons complete, six carts and horses complete, eighteen scrapers and attachments,” is sufficient. [See notes 106, 115(a), and 119 under sec. 3143 of the Code, and notes 51-57 on pag-e 823 of the Code. Eor description of real estate in conveyances, see notes 62-S8 on pages 706-709, and notes 55, 56 on page 823 of the Code. Eor description in general assignments, see notes 15-24 on pages 824, 825 of the Code.]</p> <p>Cited: Barker v. Wheelip, 5 Hum., 329; Hilliard on Mortgages, Vol. 2, 374, et seq.; Burrill on Assignments, p. 262; Mc-Gavock v. Deery, 1 Cold., 265. See Scheibler v. Mundinger, 2 Pickle, 682, 683.</p> <p>2. SAME. Parol proof, admissible.</p> <p>Parol evidence is admissible to identify the property, which the mortgag-e itself indicates. [See note 52 on page 823 of the Code. As to real estate, see notes 81-86; Witherspoon v. Porter, Shannon’s Cases, post, p. 666.</p> <p>See citations above.</p> <p>3. SAME. Eor future advances, valid when.</p> <p>Provisions in a mortgage for future advances, if free from fraud, is not objectionable. [See notes '4 and 5 under sec. 3149 of the Code, and notes 46-50 on pages 822, 823 of the Code.]</p> <p>See citations above.</p>

<p>1. MOTIONS. Eor nonreturn of execution triable before judge without intervention of jury, when.</p> <p>In the trial of a motion against.au officer for nonreturn of an execution, the matter should not he submitted to a jury; hut such improper practice is not alone reversible error. If disputed facts are submitted to the jury, it is nevertheless the duty of the judge to render proper judgment on the facts before him. [See note 5 under sec. 535$ of the Code.]</p> <p>2. NONRETURN OE EXECUTION. Not excused by defendant’s insolvency.</p> <p>It is no excuse for failure to return an execution, that tbe plaintiff in the motion told the constable, when he gave him the note for collection, that he would give him half of it if he would collect it, as the payor was probably insolvent. [See note 6 under see. 5359 of the Code.]</p> <p>'3. RETURN OE PROCESS. What is a proper return.</p> <p>A propel’ return should be written on the process, and it should then be delivered to the office or court to which it is returnable, and within the time prescribed by law. [See note 4 under sec. 5359 of the Code.]</p>

<p>TRUSTEE UNDER DEED OB TRUST. Not liable for property perishing' without his fault, beforé taken Into possession, when.</p> <p>Where the trustee under a deed of trust defers taking the property conveyed thereby into his possession by the assent of the beneficiaries, and the same dies or is destroyed without his default or negligence, he will not be liable for its value.</p>

<p>ATTACHMENT. Decree in favor of creditors first attaching, binding on those subsequently attaching.</p> <p>Creditors who. first levied their attachments upon a fund in the hands of a trustee, and obtained decrees that they were entitled to have satisfaction out of this fund, and these decrees being' unappealed from and still in force, cannot be postponed to a judgment creditor of the grantor in the deed of trust whose judgment was obtained, and whose bill was filed and attachment levied subsequently to the levy of the first mentioned attachments. The defectiveness of the allegations of the bill for the first attachment cannot be considered on the hearing of the second bill attacking- it for that reason. The decree being binding on the defendant, is binding on his creditors.</p>

<p>1. MECHANICS’ LIEN. Eia.t of a judge necessary for attachment to enforce.</p> <p>The clerk and master has no power to issue a writ of attachment under a bill to enforce a mechanics’ lien, but it must be granted as extraordinary process by order of a chancellor or judge. [See note 4 under sec. 6097 of the Code.]</p> <p>Cited with approval: August v. Seeskind, 6 Cold., 178.</p> <p>Cited and construed: Code (1858), sec. 3455; Shannon’s Code, sec. 5311.</p> <p>3. SAME. Question reserved.</p> <p>The question whether the lien attaches to the fixtures and machinery furnished and erected in the form of a mill on the lands of a party, independent of and beyond the lien given by statute, upon any lot of ground or tract of land on which such machinery or structure may be erected, reserved. [See note 5 under sec. 5211 of the Code.]</p> <p>Cited: Code (1858), sec. 1981; Shannon’s Code, sec. 3531.</p>

<p>1. MISTAKE. Credit on judgment set aside for, and enforced against surety.</p> <p>Where the owner of a judgment against the estate of a decedent and his surety, buys land sold to pay the decedent’s debts, and a credit is entered on the judgment and his purchase money notes for the pro rata due him from said estate, and the sale is afterwards set aside, he is entitled to have the credit on the judgment set aside, and to be reinstated to his rights, and to have the amount thus allowed by mistake enforced as a debt against the surety.</p> <p>2. SURETY. Bad faith in, to insist on discharge, when.</p> <p>It is bad faith on the part of the surety to insist on a discharge of his liability without consideration or payment, and without fault on the part of the creditor, and the discharge cannot be allowed under such circumstances.</p>

<p>REPLEVIN. Judgment beyondi verdict error, corrected by supreme court.</p> <p>Court cannot enter an additional judgment for the detention of the property without the verdict of the jury; but the supreme court will strike curt the item in the additional judgment, and affirm, it as to the amount properly found by the jury, adjudging costs as on reversal.</p>

<p>ASSESSMENT OF TAXES. County court has power to revise, when.</p> <p>The county court had power, under the acts of 1870-71, ch. 59, sec. 5, and the act of 1871, ch. 147, sec. 4, as a revising court, to change an assessment for taxes, and the meeting of the assessors for this purpose was not required.</p>

<p>PAROL SALE OE LAND. Rents and betterments when the contract is repudiated.</p> <p>Where a parol sale of land is repudiated, in estimating rents of a tract of farming land and dwellings and out-buildings upon it, the building should be included as part of the premises, and taken into the account in fixing the rents; and the improvements should be estimated not by what they cost, but how much they permanently enhance the value of the premises. [See notes 50-55 under see. 3142 of the Code.]</p>

<p>3. PLEADING. Action on officer’s bond in the name of state for use of person aggrieved.</p> <p>A suit against an officer for the insufficient return of an execution should be brought in the name of the state for the use of the plaintiff in the execution.</p> <p>2. SAME. Same. Amendment should be allowed, and supreme court will remand for amendment, when.</p> <p>But if such suit is brought in the name of the party aggrieved, the court should permit an amendment so as to make, the suit in the name of the state for the use. of such party, and upon reversing the case for such a formal defect, the. supreme court will remand the case for such amendment and further proceedings.</p> <p>Cited and construed: Code (3 858), secs. 2875, 4175; Shannon's Code, secs. 4595, 5987.</p>

<p>STATUTE OE LIMITATIONS. New promise before bar, without new consideration.</p> <p>A verbal promise to pay a note, made before the bar of the statute of limitations is complete, without any new comsideration, stops the operation of the statute.</p>

<p>LAND SOLD FOR TAXES, DESCRIPTION OF. Act of 1873 construed.</p> <p>Where in the assessment of land for taxes is given the name of the owner, the number of acres, the civil district of the county, a description by general boundaries on the north, south, east, and west, and the value, '-the description is sufficient and the assessment is valid. fAs to sufficiency and insufficiency of description, see notes 62-65, 87, 88 under sec. 3142 of the Code.]</p> <p>Cited and construed: Acts 1873, ch. 118, secs. 59-72.</p>

<p>1. CHANCERY PLEADING AND PRACTICE. Judgment oí costs on a continuance not reviewed by original bill.</p> <p>A bill will not lie as an independent proceeding, even in the same court, to review the action of the chancellor, or to test the correctness of his action, in taxing- a party with costs on a continuance of his case, and to enjoin the collection of the costs. The question of the proper exercise of discretion on the part of the chancellor in taxing costs upon a continuance is a matter of review by the supreme court as any other decree entered in the cause by appealing from the final decree of the court.</p> <p>2. SAME. Same. Remedy as to such costs wrongfully taxed by the cleric.</p> <p>Nor will such a bill lie as to items wrongfully charged or taxed in the bill of costs by the clerk and master. The remedy is by petition to the chancellor for relaxation of the costs and supersedeas in the meantime as to the erroneous items.</p> <p>‘Cited and disting-uished: Woodward v. Williams, 11 Hum., 323; In re Thos. Chadwell et al., 7 Heis., 630.</p>

<p>TRESPASS VI ET ARMIS. Common law form. Code system. Variance.</p> <p>A declaration qua re clausum freg-it, in common law form, assuming- entry with, force, arms, etc., is supported by proof of an unlawful removal of plaintiffs’ house by defendant after a lawful entry, so as to support a recovery for the wrongful removal of the houses, and not for the wrong-ful entry.</p>

<p>1. PLEADING. Plea in abatement. Counterpart summons.</p> <p>Where two defendants are summoned, the one by original and the other by counterpart summons, an abatement of the suit as to the first is not of itself an abatement as to the latter.</p> <p>2. SAME. Agreement not to delay for want of issue.</p> <p>After an ag-reement by a defendant that the pleadings may be made up at the next term, so as not to delay the hearing-, a plea in abatement by the party so agreeing cannot be received.</p> <p>3. SAME. Plea after continuance.</p> <p>Pleas in abatement being- merely dilatory, cannot be received after a g-eneral continuance. [See note 11 under sec. 4622 of the Code.]</p> <p>Cited with approval: 1 King’s Dig., sec. 106 (citing- Chambers v. Haley, Peck, 159; Roberts v. Stewart, 1 Yer., 390; Shaw v. Bowen, 1 Tenn., 249).</p> <p>4. SAME. Pleas in abatement are allowed stricti juris.</p> <p>Pleas in abatement are allowed stricti juris, and no latitude in practice is extended to them; they must always be filed in the right time, in the right form, and verified properly before the court will entertain them. [See note 15 under sec. 4622 of the Code.]</p> <p>Cited with approval: Grove v. Campbell, 9 Yer., 10; Little v. Little, 10 Hum., 504.</p>

<p>1. LAND SALE. In g’ross and not by the aere, when.</p> <p>Where title bond described the land in these words: “Known as Wolf Island tract, lying in the Tennessee River between Savannah and Crump’s Landing', and containing 214 acres less tide washes,” there is no stipulation or warranty that the island should contain 214 acres. [See notes 66-80 under sec. 3143 of the Code;' Hillis v. Martin, 3 Shannon’s Cases, —, and notes. J</p> <p>Cited with approval: Allison v. Allison, 1 Yer., 16; Miller v. Bentley, 5 Sneed, 674, 675.</p> <p>3. SAME. Same. Shown by parol evidence.</p> <p>But in such case, notwithstanding- the title bond shows the sale to be in gross and not by the acre, parol or extrinsic written evidence may be looked to, to determine whether a sale of land was intended to be by the acre or in gross, and if shown by the proof to be by the acre, an abatement will be allowed for any deficiency. [On admissibility of parol and extrinsic evidence, see Miller v. Bentley, 5 Sneed, 671; Barnes v. Gregory, 1 Head, 236, 237; Deakins v. Alley, 9 Lea, 494; Atwood v. Brown, ante, p. 639, and notes). But parol evidence is not admissible to contradict the court record in judicial sales. Myers v. Lindsay, 5 Lea, 331, 335.J</p> <p>Cited with approval: Ba.rnes v. Gregory, 1 Head, 237; Horn v. Denton, 2 Sneed, 125; 1 Lead. Cas. in Eq., 71.</p>

<p>1. HILLS AND NOTES. Orders. Difference between. When suit is on original liability instead of order, demand and notice not necessary.</p> <p>Ordei s are not pnt upon the footing of bills of exchange, and differ from bills and notes, in that they are not negotiable, and are only prima facie evidence of a debt, of itself not sufficient to sustain a recovery without proving a considera- ' tion. It is not an extinguishment of the precedent demand, and if an action be brought on the original liability, evidence of demand, protest and notice is not necessary. „ [See Code, secs. 3508-3510, and notes.]</p> <p>Cited with approval: Porter v. Dillahunty, 8 Hum., 575; Harwell v. McCulloch, 2 Tenn., 275; Kennel v. Muncey, Peck, 273; Nichol v. Thompson. 1 Yer., 151. [See also Lancaster v. Arendell, 2 Heis., 439; DeLiquero v. Munson, 11 Heis.. 17.]</p> <p>Construed: Code (1858), sec. 1961; Shannon’s Code, sec. 3510.</p> <p>2. JURY IN CHANCERY. When demanded. Testimony before, may be viva voce without notice.</p> <p>If, when the case is called, a jury is demanded in chancery to try the issues of fact, notice of viva voce testimony is not necessary. [See notes under sec. 6287 of the Code-Cited with approval in Cheatham v. Pearce, 5 Pickle, 688.] Cited: Code (1858), sec. 4467 et seq.; Shannon’s Code, sec. 6284 et seq.</p>

<p>HOMESTEAD. Rights oí widow to, though moved, off during husband’s lifetime. Rents.</p> <p>The widow is entitled to her homestead, though she was moved off the land by her husband during his lifetime; but she is not-entitled to an account for rents against the vendee of the husband, whose possession was during the lifetime of the husband. [This case is cited and approved on the first point in Mash v. Russell, Shannon's Cases, and in Collins v. Boyett, 3 Pickle, 338. See note 57 under sec. 3807 of the Code, and Carrigan v. Rowell, 13 Pickle, 190-193.]</p> <p>Cited: Carter v. Notham et al., and Williamson v. Wood, MSS., and Hicks v. Pepper, 1 Bax., 43.</p>