Volume 2 — Shannon's Tennessee Cases

<p>RAILROADS. Cars must stop for passengers; injuries at depot governed by common law.</p> <p>It is the duty of the railroad ag-ents to stop trains where passengers have a right to get on, and damages may he recovered for failure to stop. But if one having a right to get on, in crossing the track in front of the train, -is injured, the claim for damages must rest on the common law principles, and not on the statute. If the injury is the result of the plaintiff’s own rash and reckless act in crossing the track, he cannot recover.</p>

<p>CHANCEEY JUEISDICTION. Attachment does not lie for locking door ag-ainst officer with execution.</p> <p>A bill by a judgment creditor simply alleging that the defendant had fraudulently disposed of his property, without seeking' to set aside any fraudulent conveyance, or reach any equitable interest of the defendant, but attaching a piano on the g'round that defendant locked his parlor door on the approach of an officer with an execution, to ..prevent a levy upon it, should be dismissed upon demurrer. [This case does not come under the provisions of sec. 6091 of the Code. See note 2 thereunder. Since the act of 1877, ch. 97, embraced in the Code, sec. 6109, the bill would lie to the extent of recovering a judgment upon the judgment sued on. See notes under said section.]</p>

<p>1. SPECIAL TAX. Commissions of trustee.</p> <p>A county trustee is entitled to no commission on a special tax which, never came into his hands.</p> <p>2. PLEADING AND PEACTICE. PAETIES. County trustee could not sue tax collector.</p> <p>The chairman of the county court, and not the trustee, is the proper party to sue the tax collector for failure to pay over to the trustee. [The county trustee is also collector of’the taxes generally, except privilege taxes, and has been since the act of 1875, eh. 91, secs. 1-3. See Code, sec. 865; acts 1897, ch. 1, secs. 50, 57, 59.]</p>

<p>1. SUPEBSEDEAS. What orders of inferior courts or judg'es superseded by supreme court or judges.</p> <p>The supreme court, or any one of the judg'es, may, under our statutes, supersede the orders of an inferior court or judge, at chambers, when the order or degree is such as may be actively and affirmatively enforced against the party. It does not involve the power to reverse or change the order or decree of the inferior court, but simply to suspend for the time its execution. But orders or decrees of merely a negative or prohibitory character, such as an order dissolving- an injunction, cannot be superseded. [See note. 2 under sec. 5738 of the Code, and note 1 under sec. 6348.]</p> <p>2. BEPLBVY OE PBOPEBTY ATTACHED. The courts cannot prescribe bond different from statute.</p> <p>The conditions and right to replevy attached property are fixed by statute, and should not be interfered with by an order of the court. [See Code, sec. 5269.]</p>

<p>1. EMINENT DOMAIN. Injunction against city taking- land for street, without, under claim of right, when.</p> <p>Injunction to restrain city authorities from widening a street, before the land is condemned and paid for according to law, will be maintained where there is proof showing- that the land has been occupied twenty-five or thirty years by complainant, and when there is not satisfactory proof that the city has a right to take the land. [See notes under sec. 1865 of the Code.]</p> <p>2. DEDICATION TO PUBLIC. Land dedicated for streets cannot be taken from city by adverse possession.</p> <p>A city has the right to take land for a street which was dedicated to the public as a street by a sale of lots according to a plat with such street marked and indicated thereon, although, inclosures encroaching upon the street have been maintained and held by the owners of the lots for twenty-five or thirty years. The statute of limitations will not run against a city, and it will not be barred by adverse possession of its streets. [See notes 43 and 44 under see. 1934 of the Code.]</p>

<p>1. BOND OE RAILROAD AGENT. Surety liable only lor default alter bond made, when.</p> <p>The law governing' collecting and receiving agents and officers is different from the g-eneral rule applicable to debtor and creditor, as to appropriation of payments. The contract of the surety of such an agent is, in effect, that he is liable only for defaults during- the period for which he is bound.</p> <p>Cited with approval: Am. Lead. Cas., 300.</p> <p>2. SAME. Same. Case in judgment.</p> <p>Where a ticket agent had become indebted to the company, and upon giving bond and seeur-ity was allowed to continue acting as such ag-ent; and the money had been paid over to the company according to the terms of the bond, but at the request of the ag-ent a portion of it is applied to- the payment of the previous default of the agent, without the knowledge or consent of the surety to have the same so appropriated or applied: Held, that to permit this would be bad faith to the surety, and that he cannot be made liable for a default which occurred before the execution of the bond.</p>

<p>PARTY WALL. Party locating estopped to assert title against, after house built, when.</p> <p>Where parties agree upon. the boundaries of a lot, with reference to land marks, and enter into a contract under which the purchaser builds a wall, both being present and assisting in fixing the proper location of the party wall, the vendor afterwards building- to and rising the partnership wall, he is estopped from claiming that such wall was placed two and a half feet over on his land, even though the claim be true in point of fact.</p>

<p>1. MUNICIPAL CORPORATIONS. Officers restrained by bill of taxpayer from unlawfully imposing' or increasing taxes.</p> <p>Any taxpayer may bring liis bill in equity to prevent the corporate authorities of a city from acting’ ultra vires, where the effect will be to impose upon him an unlawful tax, or to increase his burden of taxation.1 It is not required that the attorney g’eneral shall file such a bill.</p> <p>Cited with approval: 2 Dil. on Mun. Corp., sec. 731 [3d ed., sec. 914.]</p> <p>2. SAME. Same. Or from issuing scrip or warrants to raise money, when.</p> <p>A provision in the charter of a municipal corporation giving it full power to borrow money on its bonds does not authorize its officers to issue warrants or scrip for the purpose of raising money for its ordinary expenses.</p> <p>3. SAME. May issue warrants for debts already, incurred only, when.</p> <p>Warrants of the city treasurer may be issued by an authorized officer to pay money, but only as evidences to him that the debts had been audited by the properly authorized officers of the body, and serve as vouchers to him for his disbursements.</p> <p>Cited with approval: Nashville v. Eisher, 1 Shannon’s Cases, 347, syllabus 10.</p> <p>4. SAME. Chartea-s strictly construed.</p> <p>Municipal charters, will be strictly construed, and clear authority for the powers assumed to be exercised under them will be required.</p>

<p>1. MATERIAL ALTERATION. Ratal to recovery; instance of.</p> <p>Striking out all the names except one of several payees, to a bill single, is a material alteration, and if done by the owner, without the consent of the maker, it is fatal to a recovery, and a plea of non est factum lies.</p> <p>2. SAME. Spoliation, if done by stranger.</p> <p>If the alteration was made by a stranger, it would be termed a “spoliation,” and a recovery might Le had upon the spoliated instrument, if enough remained to determine its identity and its terms; otherwise, secondary evidence might be resorted to.</p> <p>Cited with approval: Crockett v. Thomason, 5 Sneed, 342, 344, 345.</p> <p>3. SAME. Burden of proof.</p> <p>It rests upon the holder of the paper to show that the alteration was not made by him, before he can recover on the note.</p> <p>4. SAME. Statute of limitations.</p> <p>Where the debt growing- out of the original consideration is barred by the statute of limitations pleaded and relied upon, there can be no recovery, though the note given therefor and rendered void by a material alteration, is not barred by the statute.</p>

<p>1. SUPREME COURT PRACTICE. Finding- of circuit judge given same weight as verdict, when.</p> <p>The supreme court gives to the finding of the facts by the circuit judg-e the same effect they would give to the finding of a jury, in a case which had been submitted to- him without the intervention of a jury. [See note 2 under sec. 6348 of the Code.]</p> <p>2. SAME. Same. Rule cannot be changed by agreement of parties.</p> <p>The rule in the last syllabus cannot be affected or changed by an agreement of the parties made of record, that “in case of appeal to the supreme court by either party, the appellate court shall hear and determine the cause on the second presentation, in the same manner and under the same rules as equity eases are heard and determined in said court on general appeal, and said appellate court shall render such judgment as the court below ought to- have-rendered. [See Code, sec. 4887.]</p>

<p>1. RECEIVER'S BOND. Sureties not estopped to deny liability, if condition precedent is violated, when.</p> <p>Where certain persons sign a receiver’s bond as sureties, under an agreement that as a condition precedent to their being considered as sureties, a certain other person shall be procured to sig-n the bond also, which they were assured would be done, but was in fact never done, and the bond was never ■ acknowledged by them in open court, they will not be bound as sureties. They arc not estopped to deny their liability under the statute providing- that they are estopped from denying the validity of bonds upon the faith of which money or property has been received. [But see notes under secs. 1094 and 1095 of the Code. It seems that this bond was never acted upon and approved by the court, but that it remained in the hands of the receiver; and while, it is not so stated, still this must be the reason why the court holds that the sureties are not estopped to deny their liability. Private conditional agreements of this kind without notice to the court, the public, or the parties interested, do not release the sureties, though the condition be not complied ■with. See note 8 under sec. 1094 of the Code, and note 2 under see. 1095.]</p> <p>Cited and construed: Code (1858), sec. 774 [Shannon’s Code, sec. 1095.]</p> <p>2. SAME. Same. Defense made by plea of non est factum.</p> <p>It is an elementary principle in our law that parties signing-bonds as sureties under such circumstances, upon whom liability is sought to be fixed, are entitled to relief, and will be relieved either at law or in equity upon the defense of non est factum.</p> <p>Cited with approval: Perry v. Patterson, 5 Hum., 133; Quarles v. Governor, 10 Hum., 122; Majors, v. McNeilly, 7 Heis., 294.</p> <p>3. PLEA OP NON EST PACTUM. General or special, immaterial which, when.</p> <p>It is immaterial whether the defense is by a general plea of non est factum or in the nature of a special plea of non est factum, where considering the burden of proof as upon the defendants, they have unquestionably made good their defense, and are entitled to- be relieved. [But see note 25 under sec. 4630 of the Code. The general plea of non est factum puts the burden of proof on the plaintiff, while the special plea of non est factum puts the burden of proof on the defendant. See note 14 under sec. 4630 of the Code.]</p>

<p>CHANCERY JURISDICTION. Injunction against action for debt attached in chancery, when.</p> <p>An action at law by contractors to recover the amount due them from their employer cannot be rightfully prosecuted while bills against the contractors and employer attaching the same indebtedness are pending and undetermined, and such action will be enjoined.</p>

<p>DEED. Void lor insufficient description, when.</p> <p>A deed conveying land and calling for the course oí a road hereafter to be laid out, and not made definite by other calls and descriptions, is void for uncertainty. [Eor boundaries and description, sufficient and insufficient, see notes CS-SS under sec. 3142 of the Code.]</p>

<p>1. BOUNDARY LINES. Call for “direct line” controls call for “along the road,” when.</p> <p>Where land is sold for a definite price per acre, and a definite number of acres conveyed, the deed calling for a boundary from the third corner, which is a stake at the road, “thence a direct line along the road to the beginning,” and where there is some uncertainty as to the location or permanent line of the road, the deed will be held to mean a straight line, and not a curvature along the road.</p> <p>%. SAME. Natural objects control course and distance; roads, etc., natural objects.</p> <p>A call for a natural object will control calls for course and distance. Streets, alleys, and roads definitely fixed and located are monuments of boundaries as well as walls, rivers, or any natural object.</p>

<p>HOMESTEAD. Fraudulent conveyance by husband and wife defeats; fraudulent conveyance back does not revest it.</p> <p>The wife who joins with her husband in a deed fraudulently conveying his home and only property, thereby parts with her right to homestead therein, and the fact that the land was afterward fraudulently conveyed back to her, will not entitle her to homestead. [This case is cited and approved in Gibbs v. Patten, 2 Lea, 183; JRuohs v. Hooke; 3 Lea, 305; Nichol v. Davidson County, 8 Lea, 395-398; 3 Tenn Chy., 553. See notes 51-53 under sec. 3803 of the Code.]</p>

<p>1. CHARGE OE COURT. Without error and without request for fuller, no reversal where no injury has resulted.</p> <p>Where no positive error exists in the charge, and no injury or injustice has resulted from the want of a more extended charge, the supreme court will not disturb a verdict in any case, and especially in a case where the party has not put the court in error by demanding other instructions which the court refused. [See Overton v. Bolton, 9 Heis., 762; Railroad v. Jones, 9 Heis., 27; Mann v. Grove, 4 Heis., 405; Sutherland v. Shelton, 12 Heis., 375; Thompson v. Bank, 3 Cold., 46; Robinson v. Railroad, 2 Lea, 594; Gregory v. Under-hill, 6 Lea, 211; Jones v. Cherokee Iron Co., 14 Lea, 159; State v. Hargrove, 13 Lea, 178; State v. Parker, 13 Lea, 221; King v. State, 15 Lea, 51. Charge of court tO‘ juries in civil cases. See 2 Meigs’ Dig., sec. 737, subsec. 2, pp. 917-919. Charge in criminal cases. See 2 Meigs’ Dig., sec. 1109, sub-sec. 9, pp. 1278-1282. Charge generally. See 3 Meigs’ Dig., sec. 2023, pp. 1928-1932; Marks’ Index Digest, p. 139.]</p> <p>2. SAME. Affidavit of jurors as to construction not allowable.</p> <p>The supreme court will not consider the affidavit of jurors after verdict as to their construction of the charge of the court.</p>

<p>1. CLAIM AGENT. A lawyer may be so classed.</p> <p>An attorney who prepares applications, under the acts oí congress, for payment for supplies furnished to the United States army, is a “claim agent” in the meaning of the statute. The fact that the defendant is a lawyer does not affect his character as an ag-ent.</p> <p>Referred to, and construed: Acts 1867-68,'eh. 79, sec. 5, p. 100.</p> <p>2. CONSTITUTION. Statutes exempting certain privileges constitutional.</p> <p>The exemption of bounty and pension agents from privilege taxes does not render the statute levying a privilege tax on claim agents unconstitutional.</p> <p>3. BACK PRIVILEGE TAXES. County court clerk to collect those not collected by predecessor.</p> <p>It is the right and duty of the clerk of the county court to collect back taxes due before he was inducted into- office, and which his predecessor had failed to collect. [See Code, sec. 869; acts 1897, ch. 1, secs. 24, 57.]</p>

<p>1. DOWER. Right- after levy and before sale.</p> <p>The right of a widow to dower is not defeated by the levy of an execution and condemnation in the circuit court without sale before the death of the husband. .[See note 12 under sec. 4140 of the Code; also Rose v. Rose, 6 Heis., 533.]</p> <p>Cited and construed: Rutherford v. Read, 6 Hum., 423; Harrell v. Harrell, 4 Cold., 377, cited as overruled by Rose v. Rose, 6 Heis., 533.</p> <p>2. SAME. Same. Reversion in dower land sold, when.</p> <p>The reversion in the dower lands upon which the execution was levied, and the condemnation had, may, upon scire facias, be ordered sold to satisfy the execution.</p> <p>3. PRACTICE. Justice’s judgment revived in circuit if a condemnation there.</p> <p>Where a- justice’s execution is levied on land, and the papers returned to the circuit court, and a condemnation is had there, the judgment may be revived in that court upon scire facias.</p> <p>Cited and construed: Code (1858), sec. 3076; Shannon’s Code, sec. 4804.</p>

<p>WILL. Handwriting- must be proved to be genuine and well known, when.</p> <p>It must appear from the evidence with reasonable certainty, that others beside the witnesses and the family of the testator, would testify to the genuineness of the signature, and to this end, a sufficient number of persons with whom he was usually associated or transacted business should be introduced to make it reasonably certain that the others would testify to the same effect. [While it is not so stated, yet the conclusion is irresistible that this ease involved a holographic will. See Code, sec. 3896, and notes.]</p>

<p>PRIVILEGE TAXES. County rate on liquor selling.</p> <p>Under the constitution and the act of 1869-70, eh. 81, sec. 9 [Shannon’s Code, sec. 652], the legislature had authority, and it was competent for it, to impose upon the county courts the restrictions contained in the act, in regard to the imposition of taxes for privileges, and the county court must, under this statute, observe the principle of equality and uniformity, and the slightest discrimination against any privilege will be oppressive and unlawful. The percentage of a privilege tax upon retail liquor selling’ imposed by the county court not being equal and uniform, as compared with the state tax, held to be unlawful discrimination to the amount in excess. [According to the law in force at the time of this decision, one hundred dollars was the highest sum the state levied on the privilegie of retailing liquors (T. & S. Code, sec. 691f), and on omnibuses, thirty-seven dollars and fifty cents (T. & S. Code, sec. 553a, subsec. 36, ° p. 442, -subsec. 71, p. 447). See Humphreys County v. Nolan, 3 Shannon’s Cases, p. -.]</p> <p>Cited, approved, and distinguished: Adams v. Somerville, 2 Head, 363, 367.</p> <p>Cited and construed: Const., art. 2, secs. 28, 29; acts 1869-70, ch. 81, see. 9, T. & S. Code, see. 491d, Shannon’s Code, sec. 652; Code (1S58), secs. 970, 1150; Shannon’s Code, secs. 1391, 1549.</p>

<p>1. CHANCERY PLEADING AND PRACTICE. Attachments. Plea in abatement to contest grounds of.</p> <p>Where an attachment- is obtained upon a bill in chancery on the ground that the defendant was about fraudulently to dispose of his property, the grounds of the attachment must be denied by plea in abatement, not by denial in the, answer. [See notes 7, 8 under sec. 5311 of the Code, and notes under sec. 5336.]</p> <p>3. SAME. Decree suspended reviewable more than three years afterwards, when.</p> <p>Where a decree is rendered in form, but is at the same time immediately suspended, not merely the execution thereof suspended, and remains suspended for more than three years, awaiting other proper proceedings, it may be reviewed and changed by the court upon rendering the final decree, and if not, it will be reviewed by the supreme court upon appeal from the final decree.</p> <p>3. SAME. Same. Suspended in part only, the other part is reviewable.</p> <p>Where there is a judgment for a debt against the defendant, but a decree discharging the attachment, and the money judgment only is suspended for further proceedings, still no appeal lies from the decree discharging the attachment, and it is reviewable on final hearing or upon appeal from final decree as stated in last syllabus.</p>

<p>1. PARTNERSHIP. Retiring partner loses lien uniless contracted Tor.</p> <p>In order to save his personal right to see that the partnership assets shall be appropriated to the payment of the partnership debts, the retiring partner must retain an interest in, or lien upon, such assets transferred, or a special stipulation that they shall be applied to such payment. (P. 61.)</p> <p>Cited with approval: Smith v. Edwards, 7 Hum., 107; Croone v. Bivens, 2 Head, 341.</p> <p>2. SAME. In liquidation, rights of partners and creditors preserved.</p> <p>In case of a simple dissolution of the firm to be wound up by one partner, and the assets collected and appropriated to payment of debts, the partners retain their interest in the partnership assets, and any surplus will be divided between them. The firm is simply in process of liquidation and settlement, and the rights and equities of the partners and the creditors of the partnership remain the same if the firm had continued a going concern. (P. 61.)</p> <p>3. SAME. Transfer of interest. Priorities. Individual and firm creditors.</p> <p>On dissolution of a firm by a transfer of firm effects to either another partner or a stranger, with stipulation that the party to whom the assets are transferred shall assume and discharge the liabilities of the firm, there is, on the part of the retiring partner, no lien upon or right to such effects; and partnership creditors, whose equity is subordinate to the equity of the partners, have no lien or priority to enforce, but have simply, as they had before such transfer, the right to enforce the joint and several liability of all the partners as a debt against them. (P. 61.)</p> <p>Cited with approval: Smith v. Edwards, 7 Hum., 107; Eain v. J'ones, 3 Head, 309; Croone v. Bivens, 3 Head, 341.</p> <p>4. SAME. Same. Case in judgment.</p> <p>Where a partner transferred his interest in the effects of a firm to his eo-partner, who continued business in his own name, adding to the stock by new purchases, and there was nothing to show that the transfer was not made in good faith, and the retiring’ partner had and claimed no interest in the assets after retirement. Held, that the creditors of the firm, as such, had from that date no lien or priority to enforce, and the levies of their attachments must take effect in the order of their priority in date.</p> <p>5. SAME. Same. Levy under attachment bill becomes a lien, when.</p> <p>The principle that the levy, under am attachment bill in which the property is specifically described or referred to, takes effect and becomes a lien from the date of filing the bill, does not apply to a contest between creditors, but is confined by statute to sales or transfers by the debtor. (P. 63.)</p> <p>Cited and construed: Code (1858), sec. 3507; Shannon’s Code, sec. 5367.</p>

<p>WRIT OE POSSESSION. Person not party to suit cannot be dispossessed, wlien.</p> <p>A-party in possession under a deed to himself, and not claiming under the defendant, cannot he dispossessed under a writ of possession awarded in a case to which he was not made a party, and if so dispossessed he should, upon petition and proof of the facts, be restored to the possession. [See notes under sec. 4993 of the Code.]</p>

<p>1. REWARD POR CULPRIT. Not allowed to one receiving Ms voluntary surrender.</p> <p>Where a reward has Been offered for the apprehension 'of an alleged criminal who eomés and voluntarily surrenders himself to a woman for the purpose of enabling’ her to ‘obtain the reward, and remains with her until an officer, sent for by her under his direction, comes and receives him into custody, she in no just sense arrested the culprit, and is not entitled to the reward.</p> <p>Cited, distinguished, and a-pproved: Bledsoe v. Jackson, *1 Sneed, 429.</p> <p>2. SAME. Same. Promise to pay on erroneous supposition of actual arrest, not enforceable.</p> <p>A promise made by the person offering the reward to pay the woman receiving such voluntary surrender, upon the supposition that she had become entitled to it by reason of having apprehended the robber, is without consideration, an.d cannot be enforced.</p> <p>3. SAME. Same. Policy of law to eneonrag-e arrests.</p> <p>The policy of the law which permits rewards to be offered and paid is to stimulate the citizens to greater activity and zeal in the discharg-e of their duty in the arrest of offenders. This policy 'would not be subserved by allowing- recoveries for rewards where the surrender was voluntary. [See Bledsoe v. Jackson, 4 Sneed, 431.]</p>

<p>1. CHANCERY PRACTICE. Nonresident may defend before final decree.</p> <p>The sections of the Code on the subject of practice, taken together, g-ive a nonresident, or one whose name or. place of residence is unknown, leave to defend at any time before final decree, without showing- merits in his application.</p> <p>Cited and construed: Code (1858), secs. 4376-4381, 3529-3534: Shannon’s Code, sees. 6186-6191, 5289-5294.</p> <p>2. SAME. Same. After final decree.</p> <p>But after final decree, and service of a copy of the decree upon him, he will only be permitted to defend within six months after such service, by answer, upon petition for leave, showing a meritorious defense, and giving security for costs.</p> <p>Citations same as to last syllabus.</p> <p>3. SAME. Same. Same. No demurrer allowed after final decree.</p> <p>Where such defendant is permitted to make defense after a final decree, he must do so hy an answer making an issue, and not by a demurrer to the bill.</p> <p>Cited and construed: Code (1858), sec. 4381; Shannon’s Code, sec. 6191.</p>

<p>JURISDICTION. No suit against the state.</p> <p>All jurisdiction to entertain suits against the state, without limitation or qualification, is taken from the courts by our statutes. [See notes under sec. 4507 of the Code.]</p> <p>Cited and construed: Acts 1873, ch. 13, embraced in Code, sec. 4507.</p>

<p>1. CHANCERY JURISDICTION. To remove clouds upon title gives jurisdiction of ejectment.</p> <p>A bill to remove clouds upon title may be maintained, al-thoug’h. the defendant is in adverse possession; and the court obtaining jurisdiction for one purpose will give complete relief. Semble, that the chancery court has concurrent jurisdiction with courts of law, in all cases of ejectment where the complainant can show “that his adversary’s title constitutes a cloud upon his own title.</p> <p>Cited with approval: Almony v. Hicks, 3 Head, 39; Bradshaw v. Bridwell, MS., Knoxville, 1875.</p> <p>2. SAME. Same. Void deeds and proceedings clouds upon title.</p> <p>The conveyance of land by the wife and children of the owner in his absence, and a sale thereof under an attachment against the owner while a nonresident and without his knowledge, where his name was not included in the affidavit for the attachment, are inoperative to convey his title to the land, but they constitute clouds upon his title, which a court of chancery has jurisdiction to remove.</p> <p>3. STATUTE OE LIMITATIONS.</p> <p>Where a party’s bill was dismissed upon motion, upon the ground that it was being- prosecuted upon the pauper’s oath taken before a notary public in another state," without a hearing- upon the merits, and he files a new bill praying the same relief, within one year from the final dismissal of the former, the case is within the spirit and meaning of the statute g-iving a new action within one year after arrest or reversal, or decree not concluding- rig-ht of action, and saves the bar of the statute. [See Code, sec. 4446, and notes.]</p> <p>Cited with approval: Nicholson v. Lauderdale, 3 Hum., 200; Cole v. Nashville, 5 Cold., 639.</p> <p>Cited and construed: Acts 1815 and 1819; Code (1858 and T. & S.), sec. 2755; Shannon’s Code, sec. 4446.</p>

<p>1. REVENUE COLLECTOR. Settlement must be according- to statute.</p> <p>Tbe statutes point out specifically tbe mode in which the collector’s settlements should be made, and in making them the statute must be substantially followed, so as to carry out the reason and policy of the law.</p> <p>Cited 'and construed: Code (1858), sec. 499 et seq.; Shannon’s Code, sec. 914 et seq.</p> <p>2. SAME. Case in judgment.</p> <p>A settlement made by the collector with the chairman of the county court, evidenced by a simple receipt for the amount due the county for the year 1866, signed by the chairman, is not such a settlement as makes it a complete defense to a motion ag-ainst such collector.</p> <p>3. SAME. Credits.</p> <p>But where the tax books for 1867 were not received by the collector until August of that year, and moneys received by him up to that date were entered in the book for 1866 to indicate that the payments were to be credited on that year’s taxes, the collector was entitled to be credited with ■ these payments for the year 1866, notwithstanding his receipts were not in strict accordance with the statute.</p> <p>4. APPLICATION OP PAYMENTS. Cannot be changed to bind surety, after once made.</p> <p>A surety may be barred by an application made by his principal at the time of payment, but after a surety has been diseharg-ed by a payment, his principal cannot renew the surety’s liability by ag-reeing to change the credits.</p>

<p>PRACTICE. Error to admit new testimony from a recalled witness after jury charged.</p> <p>It is reversible error to permit a witness to give new testimony on being recalled to restate his testimony at the request of the jury, after the jury have been charged and retired, when it is done over the objection of the defendant, and is not withdrawn from the jury by the court.</p>

<p>1. RAILROADS. Not required to keep bridge near public road . crossings repaired, when.</p> <p>Where there is a provision in a railroad company’s charter “that whenever it shall become necessary in the construction of said road to cross or intersect any public road, now or hereafter established by law, it shall be the duty of said company so to construct said [its] road as not to impede the passage or transportation of persons or property along the same” [the public road], and said company, having built a small bridge near (not over) its roadbed, and on its right of way, so as to make a suitable crossing for the public road, in compliance with such requirement of its charter, is not bound to keep the same in repair afterwards. It is the duty of the overseer and hands of the public road to keep the same in repair. [This ease is cited and approved in Railroad v. State, 16 Lea, 300, 303, and is cited and distinguished in Dyer Co. v. Railroad, 3 Pickle, 713, 731, 733. The case of the Railroad v. State is overruled by the case of Dyer Co. v. Railroad, 3 Pickle, 713, 731, 733. See also. Railroad Co. v. State, 3 Pickle, 746, 750, 751, 753, 754, approving case of Dyer Co. v. Railroad, and applying the same rule to street railway companies.]</p> <p>2. ARBITRATION AND AWARD. Set aside when made in conflict with the law, when.</p> <p>Where a pending suit is submitted to an arbitrator to> be tried and determined by him according’ to the law and evidence, and the award to be made the judgment of the court, and it appears from the face of the award that it was made in conflict with the law, or under a mistaken idea of the law, it will be set aside, upon a bill filed in the chancery court before its confirmation. [See notes 9, 10 under sec. 5204 of the Code.]</p> <p>Cited with approval: Nance v. Thompson, 1 Sneed, 331; Watson on Arbitration, 281; Morse on Awards, 539.</p>

<p>1. CRIMINAL LAW. No change of judgment after defendant appeals, g-ives bail, and is discharg-ed.</p> <p>Whether a judgment is authorized or not, after it has been rendered and appealed from, and bond given by defendant for his future appearance, upon which he is discharged, the circuit court has no further jurisdiction of the cause, which, in legal contemplation, is transferred to the supreme court, and any subsequent judgment pronounced by such circuit court is a nullity. After such appeal, the circuit court cannot chang-e its judgment from confinement in the workhouse to confinement in the county jail.</p> <p>2. SAME. Sentence to confinement in workhouse instead of jail, valid.</p> <p>A judgment of fine and sentencing the defendant to imprisonment in the county workhouse is valid, where the statutes authorize the court in its discretion to substitute such punishment for imprisonment in the county jail.</p> <p>Cited and construed: Code (1858), secs. 5413-5417; Shannon's Code, sees. 7393-7397. [See also secs. 7417-7421.]</p>

<p>1. WILLS. Intent of testator to prevail, when.</p> <p>It is well established that in the interpretation of wills, the intent of the testator must prevail, if that intention can be discovered in the instrument, and is not in conflict with some settled policy or rule. [See Williams v. Williams, 10 Yer., 26, 27; Fulkerson v. Bullard, 3 Sneed, 263; Lynch s'. Burts, 1 I-Ieis., 604; Williams v. Jones, 2 Swan, 622, 623; Thompson v. McKisick, 3 Hum., 631-636; Henry v. Hog-an, 4 Hum., 210; Covenhoven v. Shuler, 2 Paige, 122, 130; Crosby v. Wendell, 6 Paige, 548, 553; Pond v. Bergh, 10 Paig-e, 140, 152; Parks v. Parks, 9 Paige, 107; Van Nostrand v. Moore, 52 N. Y., 12, 21; Stover & Bai’r’s Appeal, 45 Am. Dec., 608; Baskin’s Appeal, 45 Am. Dec., 641; Adié v. Cornwell, 3 T. B. Monroe (Ky.), 276, 279; Stallsworth v. Stallswortli, 5 Ala. Rep., 143; Smith v. Bell, 31 U. S. (6 Peters), 68, 79 (8 L. ed., 322, 326, 327); Stewart v. Brady, 3 Bush (Ky.), 623, 624, 625.J</p> <p>2. SAME. Devise to children and heirs, and to children for life and then to their children.</p> <p>A devise of certain lands (for the recovery of which a suit was pending) to certain of the testator’s children (naming them) and their heirs forever, and in the same clause a devise to all of his children of all his real estate during-their natural lives, with remainder or fee simple of said before mentioned tracts to the children of his said named children and their heirs forever. Held, that the purpose of the testator was an absolute devise in the first instance, and a life estate with remainder over in the second.</p> <p>3. GUARDIAN AD LITEM. Solicitor of adverse party cannot be.</p> <p>It is not proper that the attorney or solicitor of the adverse party should be the solicitor or guardian ad litem of the minor defendants to a cause.</p> <p>4. SAME. One learned in the law to- be selected.</p> <p>In the appointment of a guardian ad litem, it is the duty of the court to select one learned in the law, capable of investigating and xn'otecting the interest of his wards.</p>

<p>1. BAILMENT. Indefinite, damages only after demand.</p> <p>In the ease of a bailment for an indefinite time, there can be no damages for the wrongful detention until after demand.</p> <p>2. CONDITIONAL SALE. Damages only after debt due.</p> <p>Where party is put into possession under a conditional sale, no damag-es for a wrongful detention can he recovered till the expiration of the time stipulated for payment. [For remedy of purchaser and seller in conditional sales, see Code, sees. 3666-3670, and notes.]</p>

<p>PLEADING AND PRACTICE. Evidence of damages not alleged in declaration not admissible.</p> <p>Under a declaration averring only that by reason of the negligence of the defendant, etc., the plaintiff was hindered and prevented from carrying on his business in so^ beneficial a manner as before, the removal of the business houses, or the cost of their removal was not a proper element of damages for the jury to consider, and evidence of such damages is inadmissible.</p>

<p>1. COMPROMISE. Mistake in law does not vitiate, when.</p> <p>Where the parties come fairly to an agreement or compromise as to their rights in a pending controversy, the courts will sustain the compromise; and this is so even where the conclusion of the parties, as to their respective rights as a matter of judgment, differs from that which the court might have reached, provided there is no fraud, misrepresentation, or mistake as to matter of fact, though there be a mistake of law.</p> <p>Cited with approval; 1 Story’s Eq. Jur., see. 706c.</p> <p>2. SAME. Sufficient consideration to support.</p> <p>An ag-reement by one of several defendants not to defend a suit is a sufficient consideration to support a release as to him.</p> <p>Cited with approval: 1 Story’s Eq. Jur., sec. 706c.</p> <p>3. SAME. Statute as to releases, etc., affects only parties to instrument.</p> <p>The provisions of the Code relating to settlements, releases, etc., have reference alone to the parties to the instrument as between themselves, and in no manner, affect the rights of others not parties thereto.</p> <p>Cited and construed: Code (1858), secs. 3789, 3790; Shannon’s Code, secs. 5570, 5571.</p> <p>4. SAME. Eelease of one partner releases the others, when.</p> <p>A release of one partner from liability on a partnership debt operates to release the other partners, though the intention bé otherwise. The other partner, not being parties to the release, nor in any manner bound thereby, are not concluded by the intentions of the parties to the instrument. The release of the one operates as an absolute release of all partners. [See note 2 under sec. 5570 of the Code.]</p> <p>Cited and construed: Code (1858), secs. 3789, 3790; Shannon’s Code, secs. 5570, 5571.</p> <p>5. SAME. Eelease valid without seal.</p> <p>Since the abolition of private seals in this state, releases need not be under seal to make them valid. Before the abolition of seals, it was necessary that the instrument be under seal to make it effective as a release. [See note 3 under sec. 3213 of the Code.]</p> <p>Cited as to the old law before seals were abolished: Redmond v. Coffin, 2 Dev. Eq. (N. C.), 437 [441].</p> <p>Referred to and construed: Code (1858), sec. 1804; Shannon’s Code, sec. 3213.</p>

<p>1. PRINCIPAL AND SURETY. Surety cannot recover judgment, but may attach, before judgment or imyment.</p> <p>A surety who has not paid the debt of his principal, and against whom there is no judgment for such debt, is not entitled to a recovery of the amount from his principal; but where property has been attached, the court may direct the fund to be paid to the owner of the debt. [See Code, secs. 5214 and 5385, and notes.]</p> <p>2. CHANCERY PRACTICE. Einal decree on overruling plea in abatement to an attachment, when.</p> <p>Where the plea in abatement is not sustained, and the record does not show that the defendant, upon his plea being overruled, asked leave to answer or make further defense, there is no error in the court proceeding to a final decree on the indebtedness and the replevin bond.</p>

<p>1. COUNTIES. Bound by acts of county officers, when.</p> <p>The people of a county can only act through their officers and agents, but these officers and agents can only bind the county when they act within the sphere defined and established by law.</p> <p>2. SAME. Same. Not bound by issuance of county bonds, when. . Case in judgment.</p> <p>Where the county was authorized to subscribe stock in a turnpike company, and the county court could authorize the issuance of the bonds, but the county had not subscribed the stock in any mode, nor had the county court authorized the issuance of bonds, but bonds were issued, merely signed by the chairman and clerk of the court: Held, that such bonds were not issued by proper authority, and were not binding upon the county.</p> <p>Cited, distinguished, and approved: Ross v. Anderson Co.</p> <p>Cited and construed: Acts 1866-67, ch. 27, secs. 2, 4, 5.</p> <p>3. SAME. Same. Same. Estoppel.</p> <p>The fact that coupons cut from such bonds had been for several years received for taxes does not estop the county from denying the validity of the bonds. If the officers have not the power in the first instance to bind the county, they cannot bind it by estoppel. [Contra: Anderson County (Kansas) v. Beal, 113 U. S., 227 (28 L. ed., 966).]</p>

<p>1. SUMMARY JUDGMENTS. Requisites of.</p> <p>Judgments by motion must show every fact necessary to give the court jurisdiction, otherwise they are void. [See note 3 under sec. 5348 of the Code; note 3 under sec. 5358, and note 33 under sec. 5359.]</p> <p>2. SAME. Same. Surety against principal must show notice, or that it is dispensed with.</p> <p>Such a judgment in favor of a surety, showing affirmatively that it was not taken within six months after judgment against the surety, but not showing whether it was taken within six months after the surety paid the judgment, nor • whether it was a case in which notice given, or dispensed with, is void, and not valid. [On questions of notice see notes under see. 5353 of the Code.]</p> <p>Cited and construed: Code (1858), secs. 3585-3587; Shannon’s Code, secs. 5350-5353.</p>

<p>1. FORCIBLE ENTRY AND DETAINER. Mortgagee cannot maintain, when.</p> <p>A mortgagee not in possession cannot maintain forcible entry and detainer against the mortgageor. [See notes 6 and 7 under sec. 5093 of the Code. But see Griffith v. Braekman, 13 Pickle, 387.]</p> <p>2. CONVEYANCE ABSOLUTE. A mortgage when intended to ■ secure a debt.</p> <p>Where the purchaser of land procures his vendor to convey it to his creditor to secure an indebtedness due him, and the creditor executes a paper obligating himself to convey the land to said purchaser upon his paying the said debt by a stipulated time, such conveyance is a mere mortgage. [See notes 133-134 under sec. 3143 of the Code.]</p>

<p>1. RAILROAD DISCRIMINATION. Statute against, construed.</p> <p>The legislature did not, by the act of November 33, 1865, intend to prohibit railroad companies altogether from making differences in rates charg-ed on through and local freights and passengers. Such differences might, however, be carried to such an unreasonable extent as to amount to unjust discrimination within the meaning- of this statute.</p> <p>3. SAME. Same. Renal statutes must define the 'acts of discrimination.</p> <p>But the act being- uncertain as to what is prohibited, and also as to the mode of its enforcement, and being a penal statute, it could not, in an action to recover the penalty, be left to the jury, upon pi'oof, to say whether such differences were unjust discrimination or not.</p> <p>Cited and construed: Acts 1865-66, ch. 9, sec. 10.</p> <p>3. PLEADING. Mere difference without regard to amount under videlicet considered.</p> <p>Where a declaration against a railroad company for discrimination in violation of a statute forbidding the same under a penalty, alleges the discrimination, but states the amount thereof under a videlicet, the amount cannot be considered to malte out a case of unjust discrimination. The only question is whether any difference at all in rates is a violation of the statute entitling plaintiff to a recovery.</p>

<p>1. PRACTICE. Lost records.</p> <p>A note lost after suit has been, brought upon it before a justice of the peace, may be supplied by a copy in the circuit court, like any other lost paper in the cause.</p> <p>Cited and construed: Code (1858), secs. 4157, 2876, 3907; Shannon’s Code, secs. 5970, 4596, 5701.</p> <p>2. SAME. Depositions not required to be filed five days before term.</p> <p>Depositions are not required to be filed five days before the term at which exception is taken.</p> <p>3. SAME. Caption and certificate of deposition as to where taken.</p> <p>Neither the caption nor certificate need state that the deposition was taken in the “State of Tennessee,” where the signatui-a of the officer before whom taken shows that lie is an official of a named county of this state.</p> <p>4. SAME. Questions may be verbal or written.</p> <p>The statute requiring the questions in a deposition to be written and read to the witness is merely directory to the commissioner, and the depositions will not be excluded for failure to write the questions, especially where objection is not made at the time. [See note under sec. 5650 of the Code.]</p> <p>Cited and construed: Code (1858), see. 3859; Shannon’s Code, see. 5650.</p> <p>5. SAME. Exceptions for want of formalities in depositions must be taken before clerk.</p> <p>To put the inferior court in error upon exceptions to depositions for failure of the commissioner to seal them and write his name across the seal, and indorse the style of the case, the party should take his exceptions before the clerk in the first instance.</p>

<p>TAX ON LITIGATION. Exemptions not subject to levy for.</p> <p>The taxes from which there is no exemption are not such as originate in or arise out of suits, but those in the hands of a revenue officer for collection. [See Code, sec. 706, and notes.]</p> <p>Cited and construed: Code (T. & S.), sec. 2111a; Shannon’s Code, secs. 3796 and 3799.</p>

<p>1. WRIT OR SUMMONS. Alias issued by clerk, when.</p> <p>The circuit court clerk may issue an alias writ or summons, without an order of the court, when no discontinuance has been worked.</p> <p>2. STATUTE OE LIMITATION. • Suit oí state.</p> <p>The statute of limitations in favor of personal representatives does not apply to nor run against actions brought by the state. [See O’Neal v. State, 10 Lea, 727.]</p> <p>Cited and construed: Code (1858), secs. 2784, 2762; Shannon’s Code, secs. 4481, 4453.</p>

<p>1. EXECUTION. Returned levied on land, and order of sale by clerk.</p> <p>Where execution from the supreme court is levied upon land, and without sale returned by order of plaintiff, within the time prescribed by the statute, the clerk may, without direction of the court, order the sheriff to sell the land levied upon. [See Shannon’s Code, sec. 4749.]</p> <p>3. EJECTMENT. Disclaimer. Writ of possession.</p> <p>Disclaimer by the defendant as to part oí the land sued for in ejectment, withdraws that part from the jurisdiction of-the court, unless there is proof that the disclaimer is false; and without such proof the plaintiff is not entitled to a writ of possession for the part disclaimed. [It seems that the defendant is bound by his disclaimer as effectively as he could be by the judgment of the court, and, therefore, that it would be immaterial whether the disclaimer was false or true.]</p> <p>■Cited: Code (1858), sec. 3021; Shannon’s Code, sec. 4749, as to when supreme court executions are returnable.</p>

<p>1. STATE AND EEDEEAL COURTS. State courts not deprived of jurisdiction by federal courts, when.</p> <p>Where a state court has acquired jurisdiction of the person and the subject-matter, it is not within the power of the federal courts, by an ex parte proceeding, to deprive it of such jurisdiction; and their judgments in .attempting to do so are void.</p> <p>2. SAME. Federal legislation construed by both.</p> <p>It is as much the duty of the state courts as of the federal to construe, apply, and enforce acts of congress and constitutional regulations when presented in cases before them.</p> <p>3. SAME. Same. Laws for army regulations do not supersede state laws.</p> <p>The act of congress of March 3, 1863, is merely an army regulation, designed alone for the government of those in the military service of the United States, during a state of war; it was in nowise intended to supersede existing state laws, but explicitly recognizes them.</p> <p>4. SAME. Same. Habeas corpus act of congress declaratory of existing law.</p> <p>The act of congress of February 5, 1867, providing for the granting' of writs of habeas corpus to persons restrained of their liberty in violation of the federal constitution, or of any law or treaty in pursuance thereof, is simply declaratory of a jurisdiction inherent in the federal courts, and confers no new or additional powers upon them.</p> <p>5. CONSTITUTIONAL LAW. FORMER JEOPARDY. Offense violative of laws of a state and of those of the United States punishable by each.</p> <p>The federal and state governments are each sovereign within their legitimate spheres; and the same act may be an offense against the laws of each sovereignly, thus rendering the offender amenable to the pains and penalties of both. In such ease, a conviction and punishment by the one is not pleadable in bar to a conviction by the other; for it is not the “same offense” within the meaning of the clause in the federal constitution which forbids a second “jeopardy of life or limb,” for the “same offense.” Hence, a previous conviction of defendant below, under the act of March 3, 1863, is'no bar to his subsequent trial, conviction, and punishment by the state court for the same act, it being, likewise an offense ag'ainst the laws of the state. [See note 3 under see. 10 of art. 1 of state constitution in Shannon’s Code. See State v. Rankin, -4 Cold., 147; Pearson v. State, 1 Shannon’s Cases, 311.]</p> <p>Cited with approval: United States v. Marigold, 9 How., 560, 569, 570 (13 L. ed., 257, 261); Pox v. Ohio, 5 How., 410, 433 (12 L. ed., 213, 223); Moore v. Illinois, 14 How., 13, 20 (14 U. ed., 306, 309).</p> <p>Referred to and construed: U. S. Const., 5th Amendment; State Const., a.rt. 1, sec. 10; Acts of Congress, 1863,' ch. 75; 12 Stat. at L., 731, 736; 1867, ch.'28, 14 Stay at L., 385; 1870, ch. 114, 16 Stat. at L., 141.</p>

<p>1. EVIDENCE. Unregistered deed thirty years old admissible. Where an unregistered deed is thirty years old before it is offered in evidence, it is admissible as a common law paper.</p> <p>3.Our registration laws and decisions therein reviewed and discussed.</p> <p>Cases cited: Vinson v. Huddleston, Cooke, 354; Hayes v. McGuire, 8 Yer., 93; Rogers v. Cawood, 1 Swan, 143; Green v. Goodall, 1 Cold., 404.</p> <p>Statutes cited: Acts 1715, ch. 38, sec. 5; 1806, ch. 49, sec. —: 1819, ch. 47; 1837, ch. —, sec. —; 1831 [ch. 90]; 1841-43 [ch. 13, sec. 3]; Code (1858), secs. 3005, 3073; Shannon’s Code, secs. 3671, 3749.</p> <p>3. DEED. Good as between the parties without registration.</p> <p>Greer v. Goodall, 1 Cold., 404, was a case of personal property, but under present statutes there is no reason for any distinction, and no reason to hold the effect to be different in a court of law from a court of equity, but it is held simpty as between parties, their heirs and representatives, the deed is good and passes the title without registration, saving the rights of strangers, creditors, and bona fide purchasers. [See notes under secs. 3671 and 3749 of the Code. This case is cited and approved on this point in Carson v. Browder, 3 Lea, 703; Sanders v. Everett, 3 Tenn. Chy., 533.]</p> <p>4. SAME. Same. Passes title, if not affecting other parties; parties under different title, not affected.</p> <p>A deed being good between the parties and their privies passes the title, unless there is some party affected by the want of registration; and a party claiming an entirely different title is not so affected.</p> <p>5. DEED OE TRUST. Indorsed satisfied or debt paid becomes of no effect.</p> <p>Where a deed of trust was indorsed indicating that the deed had been satisfied, although the indorsement was not proven, and the deed in possession of the plaintiff, this is sufficient to authorize the jury to find that the debt had been paid, and if so, such deed was not in the way of a recovery.</p> <p>Cited with approval: Carter v. Taylor, 3 Head, 30.</p> <p>6. EVIDENCE. Husband and wife not competent witnesses for or against each other, when.</p> <p>]Vhere the deed was made to husband and wife jointly, if the action was brought in the name of the husband alone, he would be a competent witness for himself, but where the title is'made to husband and wife jointly, and they both bring suit, then neither can be a witness for or against the other.</p> <p>7. SAME. Same. All disqualifications not removed.</p> <p>The statute removing the disqualification of interest as to witnesses does not remove all disqualifications as to husband and wife. The disqualification stands upon other and different grounds. The safe and better rule is to exclude them absolutely from testifying for or against each other.</p>

<p>(S. C., 3 Leg. Rep., 228.)</p> <p>CRIMINAL LAW. Directors of fair indictable for promoting gaming, when.</p> <p>Directors of a lair permitting, allowing, and licensing gaming- devices within their inclosure are indictable for promoting gaming. [See notes under sec. 6805 of the Code.]</p> <p>Cited and construed: Code (1858), sec. 4871; Shannon’s Code, sec. 6805.</p>

<p>(S. C., 3 Leg. Rep., 204, 205.)</p> <p>MORTGAGE. Conditional sale not, when.</p> <p>A negotiating* to buy land procured B to advance the money. B took the title to himself, hut agreed to convey to A if he made payment by a certain day.. Held, not a mortgage, and any extension of time granted A by B did not alter the ease.</p>

<p>(S. C., 3 Leg. Rep., 205, 206.)</p> <p>APPEAL. Bond fox- costs only in administration account, when.</p> <p>A bond for costs only is necessary on an appeal from a decree ordering an account of tlie administration of an estate. [See notes under secs. 4890 and 4897 of the Code.]</p> <p>Cited and consti-ued: Code (1858), secs. 3157, 3164; Shannon’s Code, secs. 4889, 4896.</p>

<p>(S. C., 1 Leg. Rep., 330-334; and see opinion dismissing petition to rehear published in 9 Bax., 331.)</p> <p>1. STATUTE OE LIMITATIONS. Not prevented by attachment against insolvent nonresident decedent’s estate.</p> <p>A creditor of a decedent is barred by the statute of limitations when he does not, within the time limited by law, present his claim in an insolvent proceeding instituted and conducted to administer the decedent’s estate as insolvent, although before the institution of such insolvency proceeding, he had filed an attachment bill attaching the decedent’s property in this state for his debt, on the ground that the decedent vi-as a nonresident of this state, and died the owner of such property here, without making the administrator a party to such suit. [See Code, secs. 4007-4014, 4451, 4481-44S3, and the notes thereunder; sec. 5211(7), and notes 37, 38.]</p> <p>Cited with approval: Martin v. Blakemore, 5 Heis., 50.</p> <p>2. SAME. Devisees protected by plea of personal representative.</p> <p>The statute of limitations is available to protect the devisees as well as the personal representative, and his plea is effectual, whether satisfaction is sought out of the personalty or realty.</p> <p>3. SAME. Not affected by devise to pay debts generally.</p> <p>Where a will directs certain lands to be sold for the payment of debts generally, no such trust is created in favor of creditors as will prevent the running of the statute of limitations against the deceased testator’s estate.</p> <p>Cited and distinguished: Mitchell v. Calloway, MS.</p>

<p>1. GUARDIAN AND WARD. Interest on money that could not be loaned, if used.</p> <p>The fact that a g-uardian could not safely loan money, is no reason why he should not he charged with interest if he use it.</p> <p>2. SAME. Same. Compound interest not charged where the interest was expended for ward.</p> <p>Where the money could not be safely loaned during the war, and the guardian was faithful in the discharge of his trust except in the matter of using his ward’s money instead of loaning it, and the full amount of the interest was paid for the necessary expenses of the ward, simple interest only and not compound interest will be charged against the guardian. [See notes under sec. 4302 of the Code.]</p>

<p>PKACTICE. Absence of counsel cause for new trial, when; reversal for failure to grant.</p> <p>Where the defendant has pleaded a set-off to an action against him, and the case is called and tried within a few minutes after court was convened in the morning, in the presence of the defendant, but in the absence of his attorney,' who came into court “within a few minutes after the cause was tried, and immediately moved the court to set aside the judgment, offering to try the case immediately and before the court without a jury,” and upon this motion made affidavit “that he resided in the country and had endeavored to reach the court room before the trial,” but had failed by a few minutes, the judgment should be set aside, and the defendant heard on his plea of set-off, for refusal to do which the supreme court will reverse the case, and remand for a new trial.</p>

<p>SUMMARY PROCEEDINGS. Judgment against officer and sureties. Notice.</p> <p>A motion against a delinquent officer carries with, it the right to judgment ag'ainst his sureties without notice, and the judgment must include all the sureties to be valid, even though some of them be nonresidents. [See notes under see. 1047 of ihe Code; note under sec. 5347; notes under see. 5348; note under sec. 5349; notes under sec. 5353.]</p> <p>Cited with approval: Pry v. Britton, 3 Heis., 606; Brown v. State, 8 Heis., 873.</p> <p>Cited and construed: Code (1858), secs. 731-733; Shannon’s Code, secs. 1044-1046.</p>

<p>(S. C., 1 Leg. Rep., 19, 20.)</p> <p>ASSAULT AND BATTERY. Justification in defense to suit for damages, when.</p> <p>Where the plaintiff suing' to recover damages for an assault and battery committed the first assault, the defendant may show, in justification, that what was done by him was in the' necessary defense of his person, and he will not be bound to show that he could not have retreated or de-dined the conflict without dang-er to his person; but the defendant would be liable for damages in such case, if his battery of the plaintiff was excessive and beyond what was apparently necessary for his self-defense.</p> <p>Cited: 2 Gr. Ev., sec. 95.</p>

<p>(S. C., 1 Leg. Rep., 47, 48.)</p> <p>1. CREDITORS OF HUSBAND. Rights of against alimony.</p> <p>Alimony cannot he assigned to the wife upon granting her a divorce, so as to defeat the claims of the existing creditors of the husband at the time the wife’s suit for divorce was commenced. [See note under sec. 4234, and note 7 under see. 3143 of the Code.]</p> <p>2. SAME. Same. Jurisdiction in equity to reach.</p> <p>When real estate subject to the debts of the husband, has been assigned to the divorced wife for alimony, and she put in possession thereof, a' creditor who has recovered judgment against the husband and had execution returned nulla bona, may come into equity and have a decree for the sale of the land.</p> <p>3. SAME. Same. Homestead exempt.</p> <p>The creditor in such case cannot reach the homestead or other property exempt from-execution; his rights are only those he might have had against the property in the hands of the husband before the decree for divorce. [Cited in Howell v. Thompson, 11 Pickle, 401.]</p>

<p>(S. C., 1 Leg. Rep., 134-137.)</p> <p>1. DECREES AND JUDGMENTS. Can be attacked collaterally, when.</p> <p>If the decree of a court for the sale of land be void for failure to show upon its face authority in the court to make such decree, a collateral attack may be made against the decree to avoid the sale, but the evidence which guided the court rendering the decree cannot be looked to in such a proceeding, and only the pleading's and the decree can be examined. [See notes 17, 12, 7 under sec. 4003 of the Code; Gordon v. English, 3 Lea, 641.]</p> <p>Cited with approval: Ereeman on Judgments, secs. 135 and 724; Kindell v. Titus, 9 Heis., 727.</p> <p>2. SAME. Void upon report and evidence embodied in decree.</p> <p>Where the report of the clerk and master, and the deposition upon which it is based, are embodied in •the decree, and made the basis for the decree, the court can, in a collateral attack, look to the facts thus embodied in the decree to see the grounds for the same. The administrator testifies in the deposition that he knew of claims against the estate to the amount of $7,631, and did not know 'that this was all. A decree for sale of land based upon such proof is void.</p> <p>3. ADMINISTRATION. Bill to transfer to chancery court, when.</p> <p>A bill cannot be filed in the chancery court to transfer the administration of an estate from the county court to that court, and to sell land to pay debts until alter the suggestion of insolvency is made to the county court as prescribed by law. [See note under sec. 4122 of the Code.]</p> <p>Cited with approval: Code (1858), secs. 2366 and 2381; Shannon’s Code, secs. 4106 and 4121.</p> <p>4. SAME. A bill to sell land, defective, when.</p> <p>A bill for an administrator to sell lands to pay debts is defective in failing- to alleg-e the exhaustion of personal assets, and not setting forth any particular debts as remaining dne and unpaid. [See notes 5, 6 under sec. 4003 of the Code; and sec. 4188, and notes.]</p> <p>5. SAME. Purchase money under void sales; lien on land, when.</p> <p>Where a sale of land is decreed to an administrator to pay debts which are a charge upon the estate, and said sale is held to be void in a suit by the heirs contesting its validity, the complainants in such litigation must account for all money paid by the purchasers which was appropriated to the discharge of bona fide debts, and so much of the purchase money as can be shown to have been thus appropriated, will be declared a lien on the land.</p> <p>Cited with approval: 3 Heis., 389; 1 Cold., 535; 3 Sneed, 471.</p> <p>6. SAME. Sale void as to some may be valid as to others. Yold as to heirs arid valid as to widow’s dower, when.</p> <p>In case of a void sale under a decree to an administrator where the widow accepts part of the purchase money as value 'of her dower, such purchasers will be entitled to have the dower laid off to them, and title vested in them in proportion to the amount paid by each as tenants in common.</p>

<p>(S. C., 1 Leg. Rep., 30, 31.)</p> <p>INSOLVENCY OF ESTATE. Sugg-estion of, protects administrator, wlien.</p> <p>In case of default by administrator to scire facias based on suggestion of devastavit, to make the administrator personally liable, suggestion of insolvency of estate will defeat such personal liability, if such sug-g-estion is made before such liability became fixed. [See note under sec. 4135 of the Code.]</p> <p>Cited with approval: Hosier et al. v. Zimmerman, 5 Hum., 65, 66; acts of 1833 and 1838 [see Code, secs. 4064-4138]: Code (1858), sec. 2394; Shannon’s Code, sec. 4135.</p> <p>Cited and distinguished: Hamilton v. Newman et al., 10 Hum., 557.</p>

<p>INTEREST ON JUDGMENTS.</p> <p>The act of 1865-66, eh. 17, repeals the twelve and one-half per cent, law, and establishes six per cent, as the legal interest on judgments. This rate of interest is not confined to cases where the judgment below is affirmed on trial, but extends to eases where certiorari is dismissed, and where by statute the judgment below is affirmed.</p> <p>Cited: Code (T. & S.), see. 3137, 3137a; Shannon’s Code, see. 4868.</p> <p>Cited and overruled on this point: Rothohilds v. Eorbes, 3 Heis., 13, 20; and Smith v. Martin, 7 Cold., 272.</p>

<p>(S. C., 1 Leg. Rep., 22, 23.)</p> <p>HOMESTEAD. Not alien all] e by husband, though reversion-ary interest is.</p> <p>It is the homestead interest, or right of use and occupation, that the constitution and statute intend to protect from sale or alienation, without the consent of the wife; but the reversionary interest of the husband in land used as a, homestead may be mortgaged and sold to pay the debts secured, otherwise the creditors’ claims, in many cases, would become stale, and barred by the statute of limitations. [This case is cited and approved in Marsh v. Russell, 3 Shannon’s Cases, p.-; Platt v. Stadler, 16 Lea, 374. See note 16 under sec. 3803 of the Code.]</p> <p>Cited: Code (T. & S.), secs. 2Í]6a, 2117a, 2106; Shannon’s Code, secs. 3804, 3805, 3072; Con., art. 11, sec. 11; 14 Cal., 472; 37 N. H., 434.</p>

<p>(S. C., 1 Leg. Rep., 37-40.)</p> <p>1. JUDGMENT. Cannot be inquired into, wiien.</p> <p>A judgment of a court having jurisdiction of the persons and the subject-matter, is conclusive between the parties as to the matter in controversy, and cannot be inquired into, if unappealed from, unless it was obtained by fraud, accident, or mistake. [See Bugg v. Norris, 4 Yer., 337; Peeler v. Norris, 4 Ter., 333; Williams v. Saunders, 5 Cold., 73; King v. Vaughn, 8 Yer., 60; Lindsley v. Thompson, 1 Tenn. Chy., 372; Parks v. Clift, 9 Lea, 528, 529; Knight v. Atkisson, 2 Tenn. Chy., 388; Jackson v. Jackson, 3 Shannon’s Cases, p. -; Hamilton v. Burum, 3 Yer., 363; Trahue v. Short, 5 Cold., 297; Byrn v. Fleming, 3 Head, 658; Lineh v. Linch, 1 Lea, 528; Williams, ex parte,"1 Lea, 530.]</p> <p>Cited with approval: Hodges v. Baughman, 8 Yer., 186; Pin-son v. Ivey, 1 Yer., 290; Kirklan v. Brown, 4 Hum., 174.</p> <p>2. JUDGMENT. Against married women, good.</p> <p>A judgment against a married woman, is not void; and, even if erroneous because based upon a contract she was not competent to make, or for any other reason, it is still binding upon her until set aside upon appeal or by other appropriate methods. A court of equity can give no relief. [To the same effect. Sheppard v. Kenale, 3 Hum., 81, 82; Howell v. Hale, 5 Lea, 408, 410, 411; Yeatman v. Bellmain, 6 Lea, 491 (S. C., 1 Tenn. Chy., 593); Cheatham v. Thornton, 11 Lea, 296; Jordan v. Keeble, 1 Pickle, 418; Chatterton v. •Young, 2 Tenn. Chy., 770; Jackson v. Everett, 3 Shannon’s Cases, p. --. As to binding- force of judgment, see authorities in note to last syllabns.]</p> <p>Cited: Freeman on Judgments, 149 and 150; 1 CMtty’s Pleadings, 476, 477, 449, 483, 484 ; 2 Tenn., 176.</p> <p>■3. HOMESTEAD. Not exempt from debts before 1868.</p> <p>Where a debt is contracted before the homestead act of 1868, and a note is given for the same, subsequent to that time, no rig-lit to homestead is created thereby. [See note 48 under sec. 3803 of the Code.]</p>

<p>(S. C., 1 Leg. Rep., 42, 43.)</p> <p>1. WITNESS. Eees taxed without resummons after new trial.</p> <p>While a witness is not bound to attend after final judgment has been rendered in the ease, and incurs no forfeiture for failure; nevertheless, having been originally summoned, he is entitled to prove his attendance without being re-summoned after a new trial granted, or after the cause has been reversed and remanded by the supreme court, if he continues to attend on the original subpoena.</p> <p>2. SAME. No fees taxed with subpoena, but it need not be on file.</p> <p>A witness not summoned but attending, cannot have his fees taxed in the bill of cost; but the fact that there is no- subpoena on file is not conclusive evidence that the witness has not been summoned. [See notes under sec. 5621 of the Code.]</p> <p>Cited: 2 Yer., 230, 323.</p>

<p>(S. C., 1 Leg. Rep., 44-46.)</p> <p>1. EVIDENCE. Of party in a suit against administrator incompetent, when.</p> <p>In a suit against an administrator, in which judgment may be rendered for or ag-ainst him, the plaintiff is not allowed to testify against the defendant, as to any transaction-with or statement by the intestate, unless called to testify thereto by the opposite party, or required to testify thereto hy the court. [See Code, sec. 5598, and notes.]</p> <p>2. SAME. Same. Mode of exceptions to.</p> <p>If testimony contravening the above rule is admitted by the court, and excepted to by the defendant in these words: “To all which testimony defendant excepted, as being evidence concerning’ conversations and transactions between witness and deceased,” the exception is sufficiently explicit and pointed. [On exceptions to evidence, see Pillow v. Shannon, 3 Yei-., 510'; Monteeth v. Caldwell, 7 Hum., 13; Garvin v. Luttrell, 10 Hum., 18-20; Hodges v. Nance, 1 Swan, 59; Whiteley v. Davis, 1 Swan, 336; Gunn v. Mason, 2 Sneed, 645; Hooper v. Bell, 1 Head, 375, 376; Ing’ram v. Smith, 1 Head, 418, 419; Birdsong’ v. Birdsong, 2 Head, 299, 300; Barton v. Trent, 3 Head, 170; Campbell v. Campbell, 3 Head, 329; German v. German, 7 Cold., 181, 182; Williams v. State, 3 Heis., 379; Taylor v. Mayhew, 11 Heis., 598, 599; Patton v. Wilson, 2 Lea, 112; Garner v. State, 5 Lea, 218; Kielly v. English, 9 Lea, 20; Pickett v. Boyd, 11 Lea, 500-502; Miller v. State, 12 Lea, 224-226; Railroad v. Stewart, 13 Lea, 439; Johnson v. Patterson, 13 Lea, 643-650; Railroad v. Eleming, 14 Lea, 156; Anderson v. Akard, 15 Lea, 192, 193; Iron Co. v. Dobson, 15 Lea, 413.]</p> <p>Cited and distinguished: Mount Olivet Cemetery v. Shubert, 2 Head, 117, 121.</p> <p>3. SAME. Same. Requirement to testify, how made.</p> <p>How the “requirement to testify” should be made by the court in any case, is not a settled matter of practice; but the court sees no objection to the practice of making application to the court to require the evidence, supported by affidavit of its materiality in the case. [The clause “or required to testify thereto by the court” is unconstitutional, but it did not affect the balance of the statute. See note 1 under sec. 5598 of the Code.]</p>

<p>(S. C., 1 Leg. Rep., 49, 50.)</p> <p>JOINT SURETIES. Right of substitution.</p> <p>Where a creditor has a judgment against two joint sureties, which is a judgment lien upon the land of one of them, anil the other pays off the entire judg'ment, the latter surety is substituted to the rights of the creditor to enforce the said lien for one-half of said judgment. [See Code, sec. 5390, and note.]</p> <p>Cited: Bjhtick v. Wilkins, 7 Heis., 307; Leading Cases in Eq , 160.</p>

<p>(S. C., 1 Leg. Rep., 179-185.)</p> <p>1. SHEREEE’S DEED. Substitution oJE Christian name of “David” for “Daniel” presumed to be mistake in registration, when.</p> <p>Where it is insisted that a sheriff's deed is not effective to convey the legal title because it describes the judgment and execution as being- ag-ainst David B. Turner instead of Daniel B. Turner, the true name of the defendant therein, it will be presumed that the mistake occurred in the registration of the deed, where the original is not put in evidence. [Cited and approved in Harlan v. Harlan, 14 Lea, 120, 121. Eor sheriff’s deed, see Code, secs. 4780-4785, and notes.]</p> <p>2. EXECUTION. Immaterial variance in recitals of, different from judgment does not avoid sale, when.</p> <p>Where a.n execution issues upon a judgment, and conforms to it in all essential particulars, a variance of the initial letter of the middle name in the execution from that in the judgment is not so material as to render a sale under it void. [Cited and approved in Harlan v. Harlan, 14 Lea, • 107, 120, 121.]</p> <p>3. EXECUTION SALE. Division of the land. Sale of two or more distinct tracts as one, void.</p> <p>In a sale of land under execution, where it is levied on as • one entire tract, it is not the duty of the sheriff, nor has he the right himself, to divide the land and sell it in parcels, though it be susceptible of division by well, defined natural and artificial boundaries, and no matter what the amount, of the debt, or the value or amount of land levied upon. If the execution debtor wishes the land to be sold in lots or parcels, he must furnish the officer a plan of division of the lands to be sold. It is otherwise where the levy is upon two or more distinct lots of land; for it is a fraud upon the right of redemption to sell together two or more distinct lots or tracts of land, and such sale is void. [See notes under see. 3847 of the Code. Eor law of redemption, see Code, secs. 3811-3824, and notes.]</p> <p>Cited with approval: 6 Cold., 328, 331-333; Code (1858), sees. 2154, 3043; Shannon’s Code, sees. 3847, 4771.</p> <p>Cited, distinguished, and disapproved: Tiernan v. Wilson, 6 John. Chy., 411.</p> <p>4. APPEAL. From interlocutory and final decrees.</p> <p>A decree of July 18, 1871, declared complainant’s right to redeem by tender of the money under an amended bill to be thereafter filed; the penalty for a failure to do so within thirty days thereafter being a dismissal of the case out of court, each ■ party to pay his own costs. A decree, of March 5, 1872, under the amended bill, finally determined the rights of the parties. An appeal from this decree carried up the whole ease and all questions involved in it. An appeal, by leave of the court, might have been prosecuted from said interlocutory decree of July 18, 1871, but it was not indispensably necessary, because the appeal from the final decree brought up the interlomitory decree for review. [See Code, sec. 4889, and notes 5-28 under sec. 4890.J</p>

<p>(S. C., 1 Leg. Rep., 48, 49.)</p> <p>1. VENDOR’S LIEN. How it may be created.</p> <p>Where a lien is reserved on the face of a deed conveying a lot of land to secure a sum of money due to the vendor, the lien is g-cod as between the vendor and vendee and their representatives, although the money constituted no part of the consideration for the land, and the deed was not signed by the vendee.</p> <p>3. ESTOPPEL.</p> <p>By accepting' the deed, the vendee and his heirs are estopped from disaffirming' the charge contained in the face of it. [The acceptance of a deed by the grantee operates as an assumption by him of all the charg-es and obligations therein imposed upon him, without his signing the deed. Snyder v. Summers, 1 Lea, 540; Moore v. Stovall, 3 Lea, 543; Thompson v. Thompson, 3 Lea, 136; Baxter v. Wash-burn, 8 Lea, 16; Hill v. McLean, 10 Lea, 114; Railroad v. Houston, 1 Pickle, 334; O’Conner v. O’Conner, 4 Pickle, 79-83; Zwingle v. Wilkinson, 10 Pickle, 350., These cases overrule Erwin v. Waggoman, Cooke, 401; Campbell v. Bind-ley, 3 Hum., 330; McAlister v. Marberry, 4 Hum., 436; Murphy v. Renkert, 13 Heis., 397 as to their holding that such a promise is within the statute of frauds. See also notes 56-58 under see. 3143 of the Code.]</p> <p>Cited with approval: 3 Head, 338; 3 Swan, 648.</p>

<p>(S. C., 1 Leg. Rep., 1-5.)</p> <p>1. VOLUNTARY CONVEYANCE. What necessary to sustain.</p> <p>In order to sustain a voluntary conveyance to a wife or child, the proof must show, not merely a sufficiency of property retained to pay the creditors assailing the conveyance, but that ample property was reserved to pay all existing creditors at the time of the conveyance. Th^ inquiry is limited to the circumstances of the donor at the time of the execution of the conveyance; such debts as he then owed are to be estimated.</p> <p>2. SAME. Liability as indorser not to be taken into account, when.</p> <p>Liabilities as an indorser, when there is no evidence that the persons for whom he was liable are unable to pay them, cannot be taken into account.</p> <p>Cited: Bump on E. C., 395. [See also 22 Ch. Div., 74; Big’. Eraud. Con.; Sanford v. Allen, 42 S. W. Rep., 183, Court of Chancery Appeals, Knoxville, June 21, 1897.]</p>

<p>(S. C., 1 Leg. Rep., 67-69.)</p> <p>1. ATTORNEY. Payment to, for client must be in money.</p> <p>An attorney is not authorized to receive anything but money in discharge of his client’s debt; and any agreement he may make with the debtor otherwise, is a breach of duty, and not binding on his client. [On the general principle, see Cooney v. Wade, 4 Hum., 444; Washington v. Johnson. 7 Hum., 470; Baldwin v. Merrill, 8 Hum., 139; Kenny v. Hazeltine, 6 Hum., 63; Maxwell v. Owen, 7 Cold., 634; Glass v. Davidson, 1 Bax., 49; Shurer v. Green, 3 Cold., 426; Scruggs v. Luster, 1 Heis., 151; Dillard v. Jared, 2 Heis., 648; Turner v. Collier, 4 Heis., 99; Clark v. Thomas, 4 Heis., 421; Sympkin v. Wilson, 5 Heis., 559; King v. Eleeee, 7 Heis., 276; Cain v. Bryant, 12 Heis., 48; Dooley v. Dooley, 9 Lea, 306; Bender v. Montgomery, 8 Lea, 592; Porter v. Vance, 13 Lea, 633; Smith v. Owen, 7 Lea, 56.]</p> <p>2. SAME. Of debtor liable to creditor for not paying over money.</p> <p>Where the attorney for plaintiff is indebted to third parties represented by the attorney for the defendant; and the defendant pays the money to his attorney to pay the plaintiff’s debt, and by agreement between the attorneys the money is applied to the payment of the debts against plaintiff’s attorney, who becomes paymaster to the plaintiff, the defendant’s attorney would probably be liable to plaintiff for same.</p> <p>3. SERVICES OE WIEE. Not basis of consideration; registration.</p> <p>A hpsband being entitled to the services of his wife, it is no basis for consideration upon which to support a contract, and all remuneration for such services by the husband must be considered as a gift, and void as to creditors unless registered according to law. [See note 13 under sec. 4246, and see. 3151 of the Code, and notes; also Snodgrass v. Hyder, 11 Pickle, 574-577; Sanford v. Allen, 42 S. W. Rep., 183, which seem to modify this doctrine.]</p> <p>Cited with approval: Dillard v. Dillard, 3 Hum., 41.</p> <p>4. FRAUDULENT CONVEYANCES. Voluntary conveyance to wife, void, when.</p> <p>A voluntary conveyance to a wife is prima facie void as to creditors existent at the time, unless it be shown that ample means for the payment of such debts was retained by the husband. [See Code, see. 3143, notes 10-34, 135, 137; Code, see. 3151, notes 1-13.]</p> <p>Cited: 4 Sneed, 134; 9 Hum., 565.</p> <p>5. EXEMPTIONS. Salary exempt before collection is not after-wards.</p> <p>Money originally derived from official salary not subject to execution, attachment, or garnishment before collection, stands, it seems, in the hands of the official after collection as any other property or fund, .and is governed by the. same rules. The exemption does not apply after collection.</p>

<p>(S. C., 1 Leg. Rep., 73-77.)</p> <p>MANDAMUS. Errors in judgment alone not contempt. Alias mandamus.</p> <p>While implicit obedience to a writ of mandamus is required, and no evasion is allowed, a strict and literal compliance is not required — as, where a change has been made in the law requiring- the performance of the particular act which has been commanded by mandamus, and the officer to whom the writ is directed, acting in good faith according to his best judgment as to the effect of such chang-e in his legal liability, refuses further obedience, he shall not be punished for contempt, although mistaken in his judgment; and where a party refusing to obey shows that he is willing to comply with the mandate of the court, he will not be punished, but will still be compelled to do the act required by the writ. An alias mandamus is the proper remedy to compel obedience where the first order has not fully been complied with.</p> <p>Cited: High on Extraordinary Legal Remedies, secs. 54S, 556.</p>

<p>(S. C., 1 Leg. Rep., 185-190.)</p> <p>1. WILLS. Rule of construction to ascertain intention.</p> <p>The intention of a testator is to be ascertained not by subtle or artificial rules of construction, but by the will itself, upon the most easy, reasonable, and natural reading of its terms as reflecting1 the intention of the testator. [On ascertainment of testator’s intention which is to prevail, see Williams v. Williams, 10 Yer., 26, 27; Thompson v. Me-Kisick, 3 Hum., 631-636; Henry v. Hogan, 4 Hum., 210; Williams v. Jones, 2 Swan, 622, 623; Fulkerson v. Bullard, 3 Sneed, 263; Lynch v. Burts, 1 Heis., 604; Cobb v. Denton, 6 Bax., 237. Last claiise of a will prevails over the first, when they are repugnant, irreconcilable, inconsistent, and contradictory. Henry v. Hogan, 4 Hum., 210; Vancil v. Evans, 4 Cold., 343; Pierce v. Ridley, 1 Bax., 147, 148; Cobb v. Denton, 6 Bax., 237; Wood v. Polk,'12 Heis., 224; Fogarty v. Stack, 2 Pickle, 612.]</p> <p>2. SAME. Devise to a class, when.</p> <p>Where the will directed that “after the death of my wife I desire my executors to take charge of my estate and divide it equally among1 my children, . . . and those of my children who are dead at the time,, I wish their children to represent their parents and take their share of my estate,” it is held, that these words vest the remainder in the children or grandchildren living at the termination of the life estate, as a class, and not in severalty. [On the class doctrine, see Davis v. Goforth, 1 Lea, 31; Dead-rick v. Armour, 30 Hum., 588; Morton v. Morton, 2 Swan, 318; Bridgewater v. Glordon, 2 Sneed, 5; Ward v. Saunders, 3 Sneed, 390, 391; Harris v. Alderson, 4 Sneed, 250; Bearden v. Taylor, 2 Cold., 137; McClung v. McMillan, 1 Heis., 659; Puryear v. Edmondson, 4 Heis., 52, 57; Franklin v. Franklin, 7 Pickle, 123-134; Blass v. Helms, 9 Pickle, 166; Parrish v. Gordon, 1 Tenn. C.hy., 584; Whitman v. Young, 1 Tenn. Chy., 587.]</p> <p>Cited with approval: 1 Jar., Wills, 295; 1 Roper, Leg., 71 et seq.; Satterfield v. Mayes, 11 Hum., 58; Womack v. Smith, 13. Hum., 483; Beasley v. Jenkins, 2 Head, 192; Fulkerson v. Bullard, 3 Sneed, 260; 1 Redf., Wills, 385; Knight v. Knig-ht, 3 Jones Eq., 167; 2 Itedf., Wills, 330; Parrish v. Groomes, 1 Term. Chy. li., 581; Puryear v. Edmondson, 4 Heis., 54.</p> <p>3. SAME. Widow takes profits of estate during' life, when.</p> <p>Where the will directs the estate, both real and personal, to be kept together for the maintenance and support- of testator’s wife during her natural life, and his executors to aid and assist her in the manag-ement of his estate during- her life, to buy or sell anything' on the place as they (the executors) may see proper, and after her death to take charg-e of his estate and divide it among- his children, etc., the widow will not take a-n absolute estate in the personalty nor a technical life estate in the realty, but only the usufruct of both to the extent of all products and profits thereof during her life.</p>

<p>(S. C., 1 Leg. Rep., 129, 130.)</p> <p>BANKRUPTCY. Discharge in, may be set up by bill in chancery against decree, when.</p> <p>Bankruptcy proceedings having been instituted before final decree in the court below, and suggestion thereof made, and the assignee made a party defendant, though the proceedings were not then stayed to await the decision of court of bankruptcy as to a discharg-e, but decree was afterwards rendered against the bankrupt without noticing the as-signee, the bankrupt may, nevertheless, by bill in chancery, set up his discharge against said decree. [See Riggs v. White, 4 Heis., 503; Kirtland v. Railroad, 4 Lea, 418; Dodds v. Duncan, 12 Lea, 734.]</p>

<p>1. STATUTES OE DESCENT. Illegitimate children. Act of 1819. Code.</p> <p>Under the general repealing' section of the Code of 1858, the act of 1819, which provided for descent of the property of the mother to natural born children where there were no legitimate children, being a “public and general act,” and in conflict with the Code, was repealed, and was not in force until its re-enactment by the acts of 1866-67, eh. 36, sec.. 10. [See notes under sec. 4169 of the Code.]</p> <p>Cited with approval: Webb v. Webb, 3 Head, 68-70; Woodward v. Duncan, 1 Cold., 564.</p> <p>Cited and construed: Code (1858), secs. 41, 3433; Shannon’s Code, secs. 58, 4166, 4169; acts 1819, ch. 13, sec. 1; 1866-67, ch. 36, see. 10.</p> <p>2. SAME. Rules of inheritance changed before ancestor’s death, but not after.</p> <p>The rules of law in existence at the death of the ancestor must he looked to in ascertaining the rights of parties claiming' as heirs or distributees. The legislature has complete control over the matter except after descent cast.</p>

<p>1. NAVIGABLE STREAMS. Lands of riparian owners extend to low water mark, when.</p> <p>Owners of land on navigable streams have title to ordinary low water mark, when their title papers call for the bank, unless a line is run and marked upon the bank. [See notes under see. 1808 of the Code.]</p> <p>Cited with approval: Martin v. Nance, 3 Head, 649; Stuart v. ' Clark, 2 Swan, 1; Elder v. Burrus, 6 Hum., 358.</p> <p>2. SAME. Low water mark defined.</p> <p>Low water mark may be defined to be the usual and common or ordinary stage of the river when the volume of water is not increased by rains or freshets, occasioned by melted snow, or diminished below such usual stage by long continued drouth to extreme low water mark.</p>

<p>1. JUSTICE OE THE PEACE. Loss of papers. Evidence. Affidavit.</p> <p>Where the justice who rendered a judgment is dead, so that the statute requiring' the loss or destruction of the papers to he shown by his affidavit cannot be literally complied with, the next best evidence may be resorted to; that is, the affidavit of persons who themselves knew the fact.</p> <p>2. SAME. Successor.</p> <p>A justice elected after the death of the justice rendering the judgment, in the same district, is as much the successor of the latter as any other justice could be under the circumstances. [See notes under sec. 4800 of the Code.]</p> <p>Cited and construed: Code (T. & S.), sec. 3070a; Shannon’s Code, sec. 4800.</p>

<p>(S. C., 1 Leg. Rep., 10-12.)</p> <p>1. JUROR. Disqualified by opinion formed in a criminal case, when.</p> <p>Although the opinion of a. juror be formed upon rumor, and not upon hearing facts detailed, yet, if the juror’s opinion is so fixed that it must require proof to remove it, he is not impartial, and is incompetent. It is the fact that such opinion or prejudice exists in the juror’s mind, that disqualifies him, and not the question whether such opinion is founded upon rational g-rounds. [On the general principle, and also that the judge is the trier of the competency of the jurors, and if he improperly rejects one, the defendant must exhaust all his challenges to get the benefit of the error, see McGowan v. State, 9 Yer., 184; State v. Wall, 9 Yer., 349; Carroll v. State, 3 Hum., 315; Wright v. State, 4 Hum., 198; Henry v. State, 4 Hum., 370; Moses v. State, 10 Hum., 456; Preswood v. State, 3 Heis., 470; Eason v. State, 6 Bax., 466; Conatser v. State, 13 Lea, 436; Spence v. State, 15 Lea, 539, 543-546.]</p> <p>Cited with approval: Lowder v. State, MS.; Miller v. State, MS.</p> <p>Cited and distinguished: Alfred v. State, 3 Swan, 581; Moses v. State, 11 Hum., 333; Payne v. State, 3 Hum., 375.</p> <p>3. REVERSAL. Regardless of guilt, .if defendant has not had a fair trial. ,</p> <p>The defendant in a criminal case is entitled to a fair trial by an impartial jury, and if it appears to the supreme court that he has not had such trial, that court will reverse and remand the case for a new trial, it matters not how clear his guilt may appear to the court.</p> <p>3. MAYHEM. Indictment for must charge it done unlawfully, maliciously, and feloniously.</p> <p>An indictment for mayhem, for cutting off the prosecutor’s ear, is bad when it simply charges that the defendant made the assault unlawfully, maliciously, and feloniously, but fails to charge that the prosecutor’s ear was cut off unlawfully, maliciously, and feloniously. (See notes under sec. 6450 of the Code.]</p> <p>Cited: Act of 1829; Code, see. 4606; Shannon’s Code, sec. 6447.</p>

<p>(S. C., 2 Leg. Rep., 108, 109. The opinion of Chancellor Cooper in the court below is published in 3 Tenn. Chy., 131.)</p> <p>1. ATTACHMENT. Nonresident may set aside judgment by default, when.</p> <p>Under the provisions of Code, see. 3529 [Shannon’s Code, sec. 5289], it must appear as a matter of fact that the defendant was a nonresident, and the good cause to be shown for not defending- must have reference to the merits of the litigation. [See notes under sec. 5289 of the Code.]</p> <p>Cited with approval: Gill v. Wyatt, 6 Heis., 91; Smith v. Poster, 3 Cold., 144; State, ex rel., v. Hall, 3 Cold., 265.</p> <p>2. SAME. Setting aside decree by default.</p> <p>The defendant in such an attachment suit who fails to dispute or contest the justice of the debt on which the suit is based, and shows no excuse for not making' defense, after full notice, does not show good cause for setting aside a decree by default.</p> <p>3. PRACTICE. Final decree preventing nonresident from defending.</p> <p>A decree for complainant and against defendant for the debt, and for a sale of the property attached to satisfy the same, is a final decree in the sense of the statute allowing a nonresident defendant not served with process to make defense at any time before final decree, although further action in regard to another fund impounded is suspended till another suit about same is terminated.</p> <p>Cited and construed: Code (1858), sec. 4376; Shannon’s Code, sec. 6186.</p>

<p>1. JUDGMENT BY DEFAULT. Vacated for good cause shown.</p> <p>The vacating a judgment by default is a matter of discretion with the circuit judge. He may exercise in any case upon good cause shown. They exercise a very large discretion in vacating judgments by default for the purpose of permitting a defense to be made on the merits shown by affidavit of debt or a third party; but a defendant in default comes with a bad grace to ask the exercise of this discretion where gross laches are imputable to him.</p> <p>Cited with approval: King v. Merchants Exchange Co., 2 Sandf., 697; Gay v. Gay, 10 Paige, 374; Freeman on Judgments, secs. 541, 542; Bank v. Sldllern, 2 Sneed, 698; Car. Hist. L. S., sec. 279.</p> <p>2. TAX SALES. Statutes requiring least amount to be sold for the taxes, mandatory.</p> <p>Under a statute which provides that no land or lot shall be sold for less than the amount of taxes, costs, and charges due thereon, and that bidder shall be the purchaser who will pay the same for the smallest number of acres; held, to be mandatory, and to be strictly followed by the collector, unless waived by the defendant, but neither it nor any other law of the state requires the collector’s deed to recite the fact that it was followed, and the want of such recital does not avoid the deed.</p> <p>Cited with approval: French v. Edwards, 13 Wall., 506 [20 L. ed., 702]; Clark v. Crane, 5 Mich. R., 154.</p> <p>Cited and construed: Code (1858), sec. 621.</p> <p>3. SAME. Necessary recitations of deed prescribed by statute.</p> <p>The statute prescribes the recitals of a tax deed, and only requires that it recite the compensation paid, a description that will sufficiently identify the land, the judgment on which the sale was made and the date thereof, in what court it was rendered, tlie fact of legal notice having been given, the sale and date of the sale.</p> <p>Cited with approval: Black on Tax Titles, 364.</p> <p>Cited and construed: Code (1858), secs. 638, 641.</p>

<p>HOMESTEAD EXEMPTION. Prevails over debts contracted after act of 1868, though before act of 1870.</p> <p>In all cases where the debt has been contracted subsequent to the homestead act of 1868, the homestead right is saved, though the contraction of such debts be prior to the act of 1870. [Cited and approved in Nichol v. Davidson County, 3 Tenn. Chy., 550. See notes 48-50 under see. 3803 of the Code.]</p> <p>Cited with approval: Deatherage v. Walker, 11 Heis., 45; Kennedy v. Stacy, 1 Bax., 330.</p>

<p>1. CONTRACTS. Illegal does not vitiate legal, if separate anil distinct, though, about same subject-matter.</p> <p>Where two contracts are made at the same time, and relate to the same subject-matter, the one legal and the other illegal, the latter will not vitiate the former if they are separate and distinct. Thus if a note, fair upon its. face, be given for loaned money, and underneath on the same paper, and at the same time, is written the farther ag-reement that the maker will, in addition to the interest, pay whatever tax the payee may be required to pay on the note; held, that this agreement did not vitiate the note.</p> <p>2. FRAUDULENT CONVEYANCE. In law, security for real debt; in fact, no security for real debt.</p> <p>A conveyance made for the benefit of a creditor, which is fraudulent by construction of law, may stand as security for the real indebtedness. Not so, however, if it be fraudulent in fact. [See notes 51-55 under sec. 3143 of the Code.]</p> <p>3. SAME. Case of fraud upon the facts.</p> <p>Conveyances and transactions between father and son raising' suspicion which it was in their power to explain, and about which neither testified, held fraudulent as against the father’s creditors.</p>

<p>(The opinion of Chancellor Cooper in this case is published in 2 Tenn. Chy., 190.)</p> <p>1. MECHANICS’ LIEN. Liability on contract in absence of written contract.</p> <p>Where the written contract is not before the court, it will be assumed the contract was what the law would imply to be the duty of the undertaker — that is, the work was to be in workmanlike manner, out of g-ood material, according to the style of the art as adapted to such a building as was being- constructed.</p> <p>2. SAME. Compensation according to benefit conferred.</p> <p>Where the contract is performed, but not according to its terms, a recovery can be had, not upon the contract, but-the compensation is measured by the value and extent of the benefit conferred.</p> <p>Cited with approval: Pettee v. Tenn. Manufacturing Co., 1 Sneed, 385, 386.</p> <p>3. SAME. Same. How determined.</p> <p>The rule of compensation in such case is the value of the work done, as done, and which, the defendant enjoys the benefit of, and not the contract price. This value is to be ascertained by deducting- from the contract price the difference in value between the work as done and the work as contracted to be done. This satisfies the defendant’s claim for damages.</p> <p>4. SAME. Same. Same. Evidence of experts.</p> <p>This value should be ascertained from testimony of experts qualified to judge of such work, in such a building as it was when the work was completed.</p> <p>5. SAME. Evidence of acceptance.</p> <p>If no objection is taken, and part of the contract price is paid, with the idea that the work was satisfactory, during the execution of the contract, the party being- present and looking on, he cannot then refuse to pay for the work done, on the ground that he has not accepted it, after having appropriated and used the same.</p> <p>Cited with approval: Smith’s Leading Cases, vol. 2, p. 48, sec. 3.</p>

<p>1. PLEADING. Declaration, properly filed before third day o£ term.</p> <p>Though a declaration be filed before the third day of the term, it is not vitiated thereby, and is sufficient, and a judgment by default thereon will be sustained.</p> <p>2. SAME. Same. Defendant bound by failure to> plead, though misled by decisions.</p> <p>In such ease where the defendant failed to plead to the declaration, with the expectation of appealing from the judgment by default to the supreme court, and thus getting the advantage of his adversary by delay in this way, he is bound by the judgment, though he was misled by what purported to be an opinion of the supreme court which was published by mistake.</p>

<p>1. ARBITRATION AND AWARD. Exceptions must be made before decree on the award.</p> <p>Irreg-ularities in arbitration and award proceedings must be taken advantage • of before the decree is entered upon the award.</p> <p>3. SAME. Submission to, irrevocable, when.</p> <p>A submission to arbitration cannot be revoked after the decision.</p> <p>Cited: Code (1858), sec. -3439; Shannon’s Code, sec. 5195.</p> <p>3. PRACTICE. No new suit for negligence of party or counsel.</p> <p>Want of diligence, care, and attention by a party, or his attorney, in the management of his cause cannot give him the right to another trial in a new suit to cure these omissions in the absence of fraud.</p>

<p>(S. C., 1 Leg. Rep., 15-19.)</p> <p>CONSTITUTION. Legislature canuot prescribe judgment to be rendered by courts.</p> <p>Tlie act of 1875, eh. 19, prescribing and directing wbat kind of judgments or decrees shall be rendered in the supreme court in cases in which the judges are equally divided is unconstitutional and void. Such judgments or decrees would be those of the legislature, and not of the court nominally rendering them. The legislative department cannot constitutionally exercise the powers properly belonging to the judicial department.</p> <p>Cited with approval: Mabry v. Baxter, 11 Heis., 682; Con., art. 2, seos. 1 and 2; schedule, sec. 2.</p>

<p>(S. C., 1 Leg. Rep., 5-8.)</p> <p>1. VENDOR’S LIEN. Does not exist, when.</p> <p>The indorsee of a note, given for land, growing ont of a verbal contract of sale, made by a married woman of an interest in land descended to her, no deed or conveyance being executed pursuant to our statute regulations, effective to convey such interest, has no lien upon said land, when her husband transfers the note without her joining in the indorsement, and such indorsee has not been influenced by her active interference and representations to purchase said note, for in that case she would be estopped by the fraud from asserting the contrary.</p> <p>2. CHANCERY PLEADING. No relief upon proof without allegations.</p> <p>Where the complainant rests his case on certain grounds as the basis of relief, he must be held to it, and cannot by proof alone make out another and different case, and have a decree in that, for allegations without proof, or proof without allegations of facts, cannot he the basis of relief in a court of equity. [See notes under sec. 6124 of the Code.]</p>

<p>(S. C., 1 Leg. Rep., 79-83. See also in 1 Tenn. Chy., 342.)</p> <p>1. ESTOPPEL. Expressed opinions of law not, when.</p> <p>If a party presents facts correctly in his bill, and expresses an erroneons opinion as to a conclusion of law upon the facts thus stated, he is not estopped thereby from having' the correct judgment of the law upon the admitted facts. Cited with approval: I-Ierm. Estoppel, 8, 245.</p> <p>2. VENDOR’S LIEN. Does not exist against intervening equities for failure of title to land taken in payment, when.</p> <p>When a purchaser of land conveys another tract to his vendor in payment of the purchase money, and title to the last •conveyed property fails, the vendor having accepted this •conveyance from his vendee in full payment, must look to the covenants of warranty in the last conveyance for his indemnity; and he cannot, when other equities have intervened, set úp lien upon the property conveyed on account of failure of title to property transferred to him. The principle is, that where a lien has been expressly retained to a specified extent, it is equivalent to a waiver of that lien to any greater extent.</p> <p>Cited: Sm. and Marsh., 465; 2 Vern., 281; 1 Paige, 32; 2 Leigh, 353; 4 Wheat., 291.</p>

<p>(S. C., 1 Leg. Rep., 193, 194.)</p> <p>1. TESTIMONY. Objections to, must be made, when.</p> <p>A party cannot, either in a civil or criminal suit, sit by without objecting' to testimony, take his chances of acquittal ov conviction, upon evidence deemed incompetent, and then ask a reversal for such testimony.</p> <p>2. WITNESSES. Subpoenaed by state must be summoned by defendant, when.</p> <p>The state is not bound to introduce any witness, however important, but if defendant wishes the testimony of a witness summoned by the state, he must subpoena him or call him as a witness himself, and cannot complain if the state fails to furnish testimony for his defense.</p> <p>Cited with approval: Eason v. State, 6 Bax., 431, 435-438.</p> <p>3. JURORS. Objections to, must be made, when.</p> <p>A defendant cannot remain quiet and by his conduct accept a juror after an objection comes to his knowledge, especially when the fact is known before the jury is made uj), or trial commenced, and then have a new trial when verdict is found against him. [Cited with approval in Tinkle v. Dunivant, 16 Lea, 506, 507.]</p>

<p>(S. C., 1 Leg. Rep., 261, 262.)</p> <p>ATTORNEY AND CLIENT. Client may dismiss suit over objection of bis attorneys, when.</p> <p>The suit was brought upon an apprentice bond for the use of Scott, but no fund was impounded and held under orders of the court upon which the attorneys might have a lien. Afterwards the parties signed a writing directing the suit to be dismissed. Scott’s lawyers interposed, and the court declined to dismiss. Held, a party has a right to dismiss a suit of this character, to compromise and arrange his own rights, and no agent or attorney of his, he being sui juris, can control his action in such a matter, the attorneys having no lien except on recovery, not before. [In a suit where no property is attached or impounded by injunction, or other process, and nothing is actually brought into the custody of the law or court, the attorney has no lien until it is declared upon the final recovery, and cannot resist his client’s compromise and dismissal of his suit. Sharp v. Allen, 11 Lea, 518, 522, 524. If a fund is impounded by-attachment and injunction, or other impounding process, the client cannot, by a compromise and dismissal of the suit, take from the custody of the court so impounded, and thereby deprive the attorney of his lien for services rendered. Pleasants v. Itortrecht, 5 I-Ieis., 694; Sharp v. Allen, 11 Lea, 522; Brown v. Bigley, 3 Tenn. Chy., 621. An attorney is entitled to a lien on the land recovered for his fee, which may be declared in the judgment or decree-. He has an equitable lien on the subject-matter soug-ht to be recovered for his fee, of which lien he cannot be deprived by his client’s disposition of the subject-matter pending the suit, nor afterwards to any purchaser, with notice. The pendency of the suit is, of itself, notice to all persons, and the lien may be preserved and the notice extended, by stating its existence in the judgment or decree, when it will relate to the commencement of the service. Hunt v. McClanahan, 1 Heis., 503, 510; Pleasants v. Kortrecht, 3 Heis., 696, 697; Brown v. Bigley, 3 Tenn. Chy., 618, 624; Shacklett v. Polk, 4 Heis., 113; Perkins v. Perkins, 9 Heis., 97; Vaughn v. Vaughn, 12 Heis., 475, 476; McCanay v. Key, 3 Lea, 250; Winchester v. Heiskell, 16 Lea, 565; Garner v. Garner, 1 Lea, 30; Pierce v. Lawrence, 16 Lea, 575; Grant v. Lookout Mountain Co., 9 Piclde, 701; Keith v. Pitzhugh, 15 Lea, 50; Cunningham v. McGrady, 2 Bax., 142; Damron v. Robertson, 12 Lea., 374; Blackburn v. Clarke, 1 Pickle^ 506. An attorney has a lien on his client’s recovery, although he be nominally a defendant in chancery. Damron v. Robertson, 12 Lea, 374. Where a debtor’s land is subjected to the payment of his debts by a decree in a suit for that purpose, the creditor’s attorney has no lien on the land, but has a lien on the fund derived from a sale of the land. Perkins v. Perkins, 9 Heis., 95, 99.]</p>

<p>STATUTE OE LIMITATIONS. Estates of decedents protected alter seven years by.</p> <p>The seven years’ statute oí limitations in favor of estates of decedents protects the heir at law and distributees as well as the administrator ag-ainst the claim of all creditors after the lapse of seven years. Such suits are defended by these statutes. [This case is cited and approved in Woolridge v. Page, 1 Lea, 141, and in Venable v. Estell, and Loug-hmiller v. Estell, 2 Shannon’s Cases, p. -. See notes under sec. 4014 of the Code.]</p> <p>Cited with approval: Stone v. Sanders, 1 Head, 248.</p> <p>Cited and construed: Code (1858), secs. 2§81, 2786 (act 1715); Shannon’s Code, secs. 4014, 4483.</p>

<p>(S. C., 1 Leg. Rep., 122.)</p> <p>INDICTMENT. Eor obstructing public road., sufficiency of.</p> <p>In an indictment for obstructing a public road it was alleged that the road was laid out by the county court. This is tantamount to the charge that it is a public highway.</p> <p>Cited: Code (1858), sec. 4913(4); Shannon’s Code, sec. 6869(4). See also Shannon’s Code, sec. 2565.</p>

<p>1. CHANCERY PRACTICE. Order of sale setting out note on which interest can be calculated, is valid.</p> <p>An order of sale is not vitiated, because the exact amount has not heen ascertained, if the amount can he arrived at from mathematical calculation; such as the calculation of interest on note which is set out in the decree. [See note 1 under sec. 5329 of the Code.]</p> <p>2. SAME. Personal judgment not essential to enforcement oE vendor’s lien.</p> <p>In a bill to enforce a vendor’s lien, a personal judgment is not essential.</p> <p>3. SAME. Decree of sale for part cash, equity of redemption two years from affirmance.</p> <p>Where an order of sale provides for part cash payment, and the balance on time, the equity of redemption is not out off thereby, and the defendant has two years of redemption from ihe confirmation of the decree in the supreme court. [See notes 10-19 under sec. 3812 of the Code.]</p>

<p>1. CHANCERY PRACTICE. Order pro confesso set aside before final decree, when.</p> <p>A defendant who has been served with process may at any time before final decree, on g-ood cause shown, have the pro confesso set aside. This is a matter of discretion with the chancellor, and his action would not ordinarily be reversed.</p> <p>2. SAME. Same. But not after final decree and adjournment of term.</p> <p>But after the final decree, and the adjournment of that term of court, the chancellor has no power to set aside the order pro confesso. If the defendant is entitled to any relief then it will be by bill of review, or original bill in the nature of a bill of review, or some other similar proceeding.</p> <p>3. SAME. Amount of debt to be ascertained before a sale; two tracts not to be sold together.</p> <p>A decree for the sale of property is erroneous, unless the precise amount- for which the sale is declared be first ascertained; also, if the sale be for two or more tracts together.</p> <p>Cited: Lewis v. Baker, 1 Head, 385.</p> <p>4. SAME. Notice to take an account not necessary, when.</p> <p>Notice to take an account is not necessary by the fifth chancery rule, adopted by the act of December 14, 1871 [ch. 97; Shannon’s Code, page 1780], where the cause is standing upon a pro confesso, unless the party resides in the county.</p> <p>5. CHANCERY PLEADING AND PRACTICE. Bill taken for confessed must show data for decree.</p> <p>If there be no data in a hill by which to arrive at the award of the chancellor’s decree, the fact cannot be established by a pro confesso, and such decree is erroneous.</p>

<p>1. PRACTICE. Motion to dismiss petition, for certiorari and supersedeas may be continued.</p> <p>When a motion to dismiss a petition for certiorari and super-sedeas is made at the return term of the certiorari, or at the first term' after the service of the supersedeas, according- to the settled rule of practice, the- motion stands as any other cause on the docket, and is subject to the ordinary delays incident to judicial proceedings, such as continuances by consent, or postponement, in the discretion of the court.</p> <p>Cited with approval: Chappell v. Jones, 8 Hum., 1Q7; Copeland v. Cox, 5 liéis., 174.</p> <p>2. MUNICIPAL TAXES. Assessment. Allegation of petition resisting collection.</p> <p>An assessment of taxes by the corporate authorities of a city, and the distringas to enforce its collection, are in legal effect a judgment and execution; and a mere belief of the petitioner that the amount is excessive, without a statement approximating certainty as to the amount complained of, is not sufficient as a ground for writs of certiorari and supersedeas. [See notes 6-10 under see. 4854 of the Code.]</p> <p>Cited with approval: O’Sullivan v. Larry, 2 Head, 54.</p> <p>Cited and construed: Code (1858), sec. 3129 (act 1827, ch. 26, sec. 1); Shannon’s Code, sec. 4860.</p> <p>3. SAME. Obligations of the corporation not receivable for taxes. Setoff.</p> <p>A city government, like the state, cannot be compelled, without its own consent, to accept its own obligations in lieu of taxes due to it. A debt due from a city to one of its taxpayers is not a matter of lawful set-off against the taxes due from such creditor, and cannot be enforced without the consent of the city.</p> <p>Cited with approval: Cooley on Tax., 13; Trenholm v. Charleston, 3 Richardson [S. C.], 394; McCracken v. Elder, 34 Penn. St., 239; Peirce v. Boston, 3 Mete. [Mass.], 520; Johnson v. Howard, 41 Vt., 122; Himmelman v. Spanagel, 39 Col., 389.</p>

<p>(S. C., 1 Leg. Rep., 87-94.)</p> <p>1. REVENUE STAMPS. Not necessary to validity oí deed.</p> <p>The want of revenue stamps does not affect the validity of a conveyance. [See 1 Heis., 637-639; 5 Heis., 689; TO Heis., 321.]</p> <p>2. VENDOR’S LIEN. Subsequent purchaser who has sold not allowed set-off.</p> <p>The purchaser of land incumbered with a vendor’s lien, who has sold, cannot set up a set-off against such lien when sought to be enforced against the land in the hands of his purchaser.</p> <p>3. JUDGMENT LIEN. Exists, when, and how long.</p> <p>Where the issuance of execution, within twelve months after the affirmance of judgment in the supreme court, is obstructed by an injunction or otherwise, the judgment lien still exists for twelve months after the removal of such obstructions, and if execution be issued (not levied or satisfied) contrary to legal prohibitions, it will not operate as a -waiver of the judgment lien; while it would subject the party to punishment, it will not affect the legal consequences of the judgment. [See notes generally, and especially notes 3, 19, 28, 29, 34, and 35 under sec. 4714 of the Code.]</p> <p>Cited with approval: 1 Swan, 518; 8 Yer., 459; 5 Hum., 304; Code (1858), secs. 2980, 2982, 2983; Shannon’s Code, secs. 4708, 4710, 4711.</p> <p>4. SAME. Acquired in lifetime of insolvent decedent not affected by insolvent statutes.</p> <p>The statute [Code, sec. 4065] providing for the ratable division 'of insolvent estates of decedents among their creditors, was not intended to affect liens acquired in the lifetime of the insolvent deceased debtor. The act was designed merely to abolish the preference which existed at common law, but not to affect any lien acquired in the lifetime of deceased. [See notes under sec. 4073 of the Code, and Bacchus v. Peters, 1 Piclde, 680, 681, citing this case.J</p> <p>Cited: 4 Hum., 368; 1 Sneed, 354; 3 Head, 361; Code (1858), secs. 2326, 2983, 3003; Shannon’s Code, secs. 4065, 4711, 4733.</p>

<p>(S. C., 1 Leg. Rep., 303, 304.)</p> <p>SALE OE LAND. Deficiency in quantity. Abatement in price for, not allowed, wlien. Chancery sale.</p> <p>The purchaser of land at a chancery sale bought by a plot giving the number of acres and boundaries; the number of acres given were 267, while in fact the lot contained only 224 acres, as was discovered by the purchaser about two years later, and after the report of sale had been confirmed and the title vested in him. The cleric, by order of court, reported the land worth $7 per acre as a minimum price. Upon calculation based upon this price the purchaser boug'ht, but the sale was in gross and not by the acre. The mistake as to quantity was made by the surveyor, without fault of either commissioner or purchaser, and all the parties were sui juris. Held, the purchaser is entitled to no reduction in price for such deficiency in quantity. [See notes 66-80 under sec. 3142 of the Code; Witherspoon v. Porter, 1 Shannon’s Cases, 666; Shields v. Thompson, 4 Bax., 227; Myers v. Lindsay, 5 Lea, 333-335; Moses v. Wallace, 7 Lea, 413; State y. Keller, 11 Lea, 403; White v. Blakemore, 8 Lea, 67; Lunsford v. Jarrett, 11 Lea, 196, 197; Henderson v. Donovan, 13 Lea, 292, 293.]</p> <p>Cited with approval: 1 Story, Eq., 195; 4 Mason, 414; Meek v. Bearden, 5 Yer., 471, 474; Horn v. Denton, 2 Sneed, 133.</p>

<p>(S. C., 1 Leg. Rep., 99, 100.)</p> <p>1. WRIT OF ERROR. Supersedeas dismissed, when.</p> <p>Where a cause is pending in the supreme court "by writ of error and supersedeas, generally the supersedeas will not he discharged on motion because there is no error in the decree sought to be reversed; this would be to determine the entire case upon the motion; but where a supersedeas has been improperly granted, the decree being insufficient to warrant a writ of eri-or, it may be discharg-ed by the court.</p> <p>2. INDIVIDUAL CREDITORS.</p> <p>Individual creditors are entitled to priority over firm creditors in the distribution of the individual estate of a decedent. [Eowlkes v. Bowers, 11 Lea, 146; Carver v. Bannon, 1 Bielde, 712, 719.]</p> <p>Cases cited: Jackson Ins. Co. v. H. A. Partee et al., 9 Heis., 296; Pennington v. Bell, 4 Sneed, 202.</p>

<p>(S. C., 1 Leg. Rep., 100, 101.)</p> <p>EOBFEITUEE OF FEES BY OFFICES, WHEN.</p> <p>In oases where the legislature has made the performance of any duty pertaining to an office a condition upon which fees or salaries are to be paid, the officer is not entitled to demand his fees until such duties are performed; and the statute [Code, sec. 7218] providing that clerks of circuit or criminal courts shall forfeit all their fees in the case for certain neglects or omissions [Code, sec. 7217, subsecs. 6 and 7] will be enforced. [See note on page 226 of 9 Bax.].</p>

<p>(S. C., 1 Leg. Rep., 143-148.)</p> <p>1. EVIDENCE. Whether claims taken by creditors are payment or security is a question of fact.</p> <p>When a creditor takes notes or claims from his debtors, the question whether such claims were taken as a security simply, or accepted in absolute satisfaction of the debt, is one of fact.</p> <p>Cited with approval: 1 Sneed, 514.</p> <p>2. MISREPRESENTATION OE PACTS. Ground lor relief in equity, when.</p> <p>A misrepresentation of facts, whether with or without knowledge of their falsity, upon which a party is induced to act, is as conclusive a ground in equity for relief as an assertion wilfully false. [See Chester v. Canfield, post, p. 309.]</p> <p>Cited with approval: Heis. Dig., p. 483.</p> <p>3. SAME. Where subject open to both parties, not fraud, when.</p> <p>In a transaction where the subject is equally open to both parties, neither party is presumed to trust the other, but to rely on his own judgment, and if it be a matter of law it does not constitute fraud, because the law is presumed to be equally in the knowledge of both parties, where the facts are known, and there is no special confidence or trust violated. [See Chester v. Canfield, post, p. 309.]</p> <p>Cited with approval: Heis. Dig'., 438; Blease v. Garlington, 3 Otto, 9; Kerr on Erauds, p. 90.</p> <p>Cited and distinguished: Smith v. Click, 4 Hum., 186.</p>

<p>(S. C., 1 Leg. Rep., 172-174.)</p> <p>1. INJUNCTION BOND. No damages for loss of property without fault, when.</p> <p>Where a plaintiff is put in possession of property, in the char - acter of a receiver, by the court’s fiat granting’ an injunction, such party is not liable to damag-es upon the injunction bond, g-rowing- out of the destruction of said property, without his fault, pending- the litigation; the injunction being issued with probable cause, his liability is such as the law imposes upon receivers, and yet his responsibility to damag-es, to some extent, in an action on the bond on the mere g'round that the injunction was sued out without legal cause might be conceded. The court hold, the defendant is entitled to the rental value of the house from the time of the injunction to the time of its destruction by fire, except for such time as defendant was in possession or received rents.</p> <p>Cited with approval: Mosely v. Baker, 2 Sneed, 369.</p> <p>2. SAME. Attorney’s fees not recoverable.</p> <p>The defendant to an injunction suit is not entitled to recover from complainant, or on his injunction bond, attorney’s fees properly expended in successfully defending the suit and having- the injunction discharged. [See String-field v. Hirseh, 10 Pickle, 425. For damages on injunction bonds, see Code, secs. 6256-6259, and notes. For damages on attachment bonds, see Code, see. 5231, and notes.] _</p>

<p>(S. C., 1 Leg. Rep., 205, 206.)</p> <p>APPEAL. Appeal bond must be made before justice, when.</p> <p>Where an appeal is demanded, and the justice grants it when bond and security is given according to law, the bond must be given within the time allowed for appealing, and the time cannot be extended by the justice. [The cases of Howard v. Long, 3 Lea, 207, and Chapman v. Howard, 3 Lea, 365, cite and approve this case, and the first case holds that no appeal can be g'ranted except upon bond or pauper oath within the prescribed time. See also Douglass r. Neguelona, 4 Pickle, 773; notes under sec. 4872 of the Code.]</p> <p>Cited and distinguished: Gilbert v. Driver, 3 Head, 463; Mo-Carver v. Jenkins, 2 Heis., 629; Code (1858), secs. 3140, 3141, 3394-3399; Shannon’s Code, secs. 4871, 4872, 5149-5154.</p>

<p>(S. C., 1 Leg. Rep., 211.)</p> <p>ATTORNEY’S PEES. Lien for, enforced, how.</p> <p>The duty of the court is to declare a lien for attorney’s fees, where the amount of the fee is not fixed by contract, and parties are under no disability, and leave the attorney to enforce this lien by appropriate proceedings in a court having jurisdiction of the question. [Cited in Brown v. Bigley, 2 Leg. Rep., 38, post, p. —, S. C., 3 Tenn. Chy., 626.]</p> <p>Cited with approval: Perkins v. Perkins, 9 Heis., 95.</p>

<p>(S. C., 1 Leg. Rep., 224-226.)</p> <p>1. VENDOR’S LIEN. Passes by assignment of note, when.</p> <p>Where a deed to land retains npon its face a lien for parchase money, an assignment of the vendee’s notes will pass the lien, with all the rights of the assignor ag-ainst the land, and the assignee will have the same power to sell the land in its enforcement, and in the same way, as the vendor might have done, had he retained the notes. [See Ross v. Young, 5 Sneed, 628; Thompson v. Pyland, 3 Head, 539; Tharpe v. Dunlap, 4 Heis., 682; Cowan v. Sharp, 11 Heis., 450.]</p> <p>Cited with approval: Graham v. McCampbell, Meigs R., 55, 56; Green v. Demoss, 10 Hum., 374.</p> <p>3. SAME. Implied lien passes by express assignment of it.</p> <p>While the implied lien of the vendor does not pass by the transfer of the note to the assignee by virtue of the simple assig-nment or indorsement, yet the vendor may by contract expressly transferring- such lien, pass it as well as any other right or element adding- value to the paper. No rule of law or public policy forbids such an assignment. [On the first point, see authorities to last syllabus, and Mc-Whirter v. SwafEer, 6 Bax., 346; Pillow v. Helm, 7 Bax., 546. On the second point, see Bowlin v. Pearson, 4 Bax., 343. Where the vendor transfers the note that is an implied lien on land for the purchase price thereof, and is made liable on his indorsement by judicial ascertainment, or voluntarily takes back the note, he may enforce the lien. Green v. Demoss, 10 Hum., 375; Adams v. Brown, 4 Bax., 138-130. Xhe vendor and the assignee of the note cannot join in a bill to enforce the implied lien, before the vendor is adjudged to be liable on his indorsement. Green v. Demoss, 10 Hum., 375; Adams v. Brown, 4 Bax., 139. The vendor cannot, for the use cf the assignee, ^naintain a bill to enforce the implied lien. Bowlin v. Pearson, 4 Bax., 341. The implied lien is not extinguished by the vendor’s assignment of the note as collateral security. Cate v. Cate, 3 Pickle, 41. The implied lien is not lost where the note is made payable to a third person, nor by judgment taken thereon. Zwingle v. Wilkinson, 10 Pickle, 346.]</p> <p>3. SAME. Dower subject, and in surplus only.</p> <p>The dower, in such land, entitles the widow to only one-third of the surplus, after thg note has been liquidated, her interest being subordinate to its payment-. [See notes 33-36 under sec. 4140 of the Code; Thompson v. Cochran, 7 Hum., 73; Boyd v. Martin, 9 Heis., 385.]</p> <p>Cited with approval: Williams v. Wood, 1 Hum., 414.</p>

<p>(S. C., 1 Leg. Rep., 226-236.)</p> <p>1. BILL OF EXCHANGE. Demand and notice. Drawer not "bound by promise to pay after dishonor, when.</p> <p>Where the drawer of a bill of exchange is discharged by neglect of the indorsee, to give notice of nonpayment, no promise to pay will be binding' upon him, unless it be shown by satisfactory proof that the sxrbsequent promise was made with a full knowledge of his discharg-e. It is wholly immaterial whether his ignorance of release resulted from an ig'norance of the law or facts that removed his liability. [See Rosson v. Carroll, 6 Fickle, 133, 134, and cases there cited.]</p> <p>Cited with approval: Spurlock v. Union Bank, 4 Hum., 336; Golladay, Cheatham & Co. v. The Bank of the Union, 2 Head, 58; Ford v. Dallam, 3 Cold., 67; Story on From. Notes, secs. 275, 362; Low v. Howard, 10 Cush., 159; Warder1 v. Tucker, 7 Mass., 449; Freeman v. Boynton, 7 Mass., 483; Fleming' v. McClure, 1 Brev. So. Rep., 428; Miller v. Hackley Auction, N. Y. S. C. Rep., 68.</p> <p>Freeman, J., dissents upon this question.</p> <p>2. SAME. Notice of demand and protest; Drawer of bill o£ exchange is entitled to, when.</p> <p>The drawer and indorser of a bill of exchange is entitled to notice of demand and protest, if at the time the bill was drawn he had reasonable grounds to expect its acceptance, and payment at maturity. Upon the following state of facts, the court held he had reasonable grounds: Between the drawer and acceptors there had been a long series of transactions; the acceptors had, as factors of the drawer, received from him, at different times, large consignments of cotton; the drawer had, from time to time, drawn upon said cotton; the acceptors had long been in the habit of accepting the drawer’s draft; the acceptors had in their possession cotton belonging to the drawer while the bill of exchang'e was maturing in their hands, and they had instructions to sell the same to meet the bill.</p> <p>Cited with approval: 1 Fars. on Bills and Notes, 535, 540: Oliver v. Bank of Tenn., 11 Hum., 74; 2 Brock, 20; 9 Gill., 350; 3 La. Ann., 385; 8 Pick., 79; 10 Pet., 572; Edwards on Bills, 601, 602, 603; Chitty on Bills, 357a, 359; Smith’s .Mercantile Law, 252; Bagnell v. Andrews, 7 Bing., 109; Story on Bills, sec. 311; Mobley v. Clark, 2S Barb., 390.</p> <p>3. SAME. Accommodation acceptance, what constitutes not a matter of fact for a jury.</p> <p>What constitutes an accommodation acceptance is not properly a matter of fact for a jury, but a conclusion of law upon a certain state of facts to be found by the jury. An acceptance under the circumstances of such facts, as stated in the last syllabus, is held not to be an accommodation acceptance.</p>

<p>(S. C., 1 Leg. Rep., 258-261.)</p> <p>1. MISREPRESENTATIONS. Ground lor relief in equity, when.</p> <p>Whether a party misrepresenting a fact, knows-it to he false, or made an assertion without knowing it to he true, on which another relies, is immaterial in a court of equity. It equally operates a surprise and imposition on the other party, and is ground for relief. [See Oliver v. McLean, ante, p. 380.]</p> <p>Cited: Heis. Dig-., p. 376, and cases cited.</p> <p>3. PLEADING. Answer not properly sworn to must stand as an unsworn answer, when.</p> <p>A party’s answer, though the oath he not waived, must stand as an unsworn answer when it is not certified to, so as to make the affidavit effective, the prothonotary not showing that he was a clerk of the court in which the justice of the peace presided, as required ky the Code, sec. 4398 [Shannon’s Code, sec. 6208], so that the answer but makes an issue. [See 3 Heis., 534.]</p> <p>3. ERAUD. Conspiracy. Statement of facts.</p> <p>Canfield and Hull were acquainted — had been together some two weeks — they went together to Chester, when the negotiation commenced. Hull sat by during the trade and heard all that was said, and remarked that the lots were probabjy worth the money. He claims to have had no interest in the matter. He seems to have known that the trade was to be • made, and to have arranged for his share of the land transferred to him by Canfield; the deed was directed to be made to him. Held, that it appears, from a fair preponderance of the proof, that Hull was a party to- the misrepresentation and fraud of Canfield; that he took the benefit of the same under circumstances of suspicion that cause him to stand or fall with his confederate.</p>

<p>(Abstract of S. C., 1 Leg. Rep., 318-320.)</p> <p>INFANCY AND COVERTURE. Sale of land. Innocent, purchaser. Burden of proof. Estoppel.</p> <p>A bill to confirm the sale of an infant’s land must allege that it is to the minor’s interest to confirm the sale. In the defense of innocent purchaser the burden is upon defendant to make it out by poof, and he must show that he paid the purchase money before notice of complainant’s claim. Complainant is not estopped by the admission that while an infant she knew of the proposed sale to a third party, though she did not inform the purchaser of an intention to dis-affirm. [See Barker v. Wilson, 4 Heis., 268; Dodd v. Ben-thal, 4 I-Ieis., 608; Scott v. Johnson, 5 Heis., 634; Swafford v. Ferguson, 3 Lea, 294, 295; Hook v. Donaldson, 9 Lea, 56; Lancaster v. Lancaster, 13 Lea, 131; Robinson v. Coulter, 6 Rickie, 705; Walton v. Gaines. 10 Rickie, 420; Bradshaw v. Van Valkenburg, 13 Pickle, 316.]</p> <p>Cited with approval on the question of estoppel: Scott v. Buchanan, 11 Hum., 468; Matherson v. Davis, 2 Cold., 443; 1 Story, Eq. Jur., sec. 391.</p>

<p>(S. C., 1 Leg. Rep., 354-358.)</p> <p>1. TAX TITLE. Ejectment. Collector’s deed.</p> <p>The terms of the statute, which make the recitals of a collector’s deed prima facie evidence of the facts contained therein, apply only to the collector who makes the sale, and cannot be extended to his successor.</p> <p>Code (1858), secs. 627, 628, 640, and 641; act of 1843, ch. 92, act of 1809, ch. 84,, sec. 1; Code (1858), secs. 3056 and 3058 [Shannon’s Code, secs. 4783 and 4785].</p> <p>2. SAME. Same. Same.</p> <p>A tax collector has no such power as will enable him to make a deed conveying title, when out of office, to a party who purchased from him during his term of office. Section 640 of the Code requires the deed to be made by the collector or his successor, as an officer, in office at the time.</p> <p>Cited and construed: Code (1858), secs. 640, 661, 662.</p> <p>3. EJECTMENT. Deraignment of title.</p> <p>Where two parties claim title under the samé third person, it is sufficient to prove the derivation of title from him, without proving his title. [See Corder v. Dolin, 4 Bax., 241, 242; Moss v. Bank, 7 Bax., 218, 219; Early v. Beecher, 7 Lea, 256, 257.]</p> <p>Cited with approval: Wortham v. Cherry, 3 Head, 470; Moss v. Bank, 7 Bax., 216.</p>

<p>(S. C., 1 Leg. Rep., 370.)</p> <p>THE STATE. Suit does not lie against.</p> <p>The state cannot be sued by ber citizens in ber courts, even in a defensive suit; and a demurrer interposing tbis defense will be sustained. [See Code, sec. 4507, and notes.]</p> <p>Cited with approval: Buttram v. State, post, p. 337; Foley v. State, at Jackson.</p>

<p>(S. C., 3 Leg. Rep., 8-12.)</p> <p>INTEREST EROM DATE OE JUDGMENT.</p> <p>The creditor first attaching a reversion in a fiimd not bearing interest is entitled to interest from date of his judgment, at the expense of subsequent attaching creditors of the. same fund. [See Code, sec. 3497.]</p> <p>Cited and approved in dissenting opinion: 3 Dali. Penn., 103, 133; 1 Pet. C. C., 534; 4 Dali. Penn., 286; Code, sec. 1943 [Shannon’s Code, sec. 3493]; Harrison v. Bowie, 4 Jones’ Eq., 261.</p>

<p>(S. C., 1 Leg. Rep., 130-133.)</p> <p>1. INSURANCE. Contracts of insurance not abrogated, when.</p> <p>Contracts of insurance are not abrogated by reason of failure to pay premiums, when such failure was consequent upon the war.</p> <p>3, SAME. Rig-fits of representatives of policy holder dying during- the war.</p> <p>When the policy holder, in such cases, dies during- the war, his representatives are entitled to the value of a paid-up policy on the day the premium was first omitted to be paid, with interest.</p> <p>3. PROCLAMATION OF THE PRESIDENT. Enemy relation of the parties continued.</p> <p>The proclamation of the president of Aug'ust 18, 1861, and March 31, 1863, did not do away with the enemy relation of the parties. By the act of secession and the declaration of war they had already become citizens of opposing powers or governments; their contracts had been suspended.</p>

<p>(S. C., 1 Leg. Rep., 272-274.)</p> <p>LEVY ON LAND. Insufficiency of. Assurance of title. Statute of limitations.</p> <p>The description in the levy in controversy was as follows: “Levied October 7, 1857, on one hundred acres of land, the property of Salathiel Biley and Francis Fannin, adjoining lands of Joel W. Jarvis, in the fifth district.” Held, the levy is insufficient, and the sheriff’s deed upon the same is inoperative, and not an assurance of title, or an effective muniment to create a title under the statute of limitations. [For sufficient and insufficient descriptions of lands in levies, see notes 32-52 under sec. 4755 of the Code.]</p> <p>Cited with approval: Henderson v. Overton, 2 Yer., 394, 397; Vance v. McNairy, 3 Yer., 177, 178; Parker v. Swan, 1 Hum., 80; Gibbs v. Thompson, 7 Hum., 181.</p>

<p>(S. C., 2 Leg. Rep., 9, 10.)</p> <p>SUIT AGAINST STATE. Cannot be maintained.</p> <p>Tbe state cannot be sued, either in a defensive suit or any other, and a demurrer by the state to a suit against it will be sustained. [See Price v. State, ante, p. 322; Moore v. Tate, 3 Pickle, 725; Shannon’s Code, sec. 4507, and notes.]</p>

<p>(S. C., 2 Leg. Rep., 12, 13.)</p> <p>1. MISDEMEANORS. Trial.</p> <p>Misdemeanors are not -within the meaning of the fourteenth clause of the bill of rights [Con., art. 1, sec. 14], ordaining that no person shall be put to answer any criminal charge, but by presentment, indictment, or impeachment; nor within the clause ordaining- that the right of trial by jurjr shall remain inviolate. [See notes under secs. 6 and 14 ot art. 1 of the Constitution.]</p> <p>Cases cited: McGinnis v. The State, 9 Hum., 43; Trigally v. Mayor and Aldermen of Memphis, 6 Cold., 382.</p> <p>2. CRIMINAL JURISDICTION OE RECORDERS OE TOWNS. What.</p> <p>Recorders of towns are not vested with criminal jurisdiction to try offenses against the state, except concurrently with magistrates in cases of submission, or to require the defendant to enter into bond for his appearance m court.</p> <p>Cited and construed: 1869-70 (private laws), ch. 4, sec. 27, page 169.</p> <p>S. PENALTIES. Suit for. Warrant.</p> <p>If a penalty is prescribed by ordinance of a city in accordance with the laws of the state and its charter for offense, it may be recovered by suit in the nature of an action of debt, which should be commenced by a warrant. [See Greenwood v. State, 6 Bax., 572; Bristol v. Burrow, 5 Lea, 129; Neely v. State, 4 Bax., 180; Code, sec. 4878, and notes 1-3, and notes 1, 2 under sec. 6953 of the Code.]</p> <p>Cited with approval: Mealier v. Mayor and Aldermen oí Chattanooga, 1 Head, 76; Wood v. Mayor and Aldermen oí Grand Junction, 5 Heis., 440 [442].</p>

<p>(S. C., 2 Leg. Rep., 14.)</p> <p>EVIDENCE. Preponderance of testimony, meaning of.</p> <p>By a “preponderance of testimony” is .not meant a mere numerical preponderance of witnesses, but rather the weight, credit, and value of the aggregated testimony ou either side, and of this the jury must be the exclusive judges.</p>

<p>(S. C., 2 Leg. Rep., 15, 16.)</p> <p>1. APPROVING BOND. Statute. Implied acceptance.</p> <p>The statutes directing the mode of receiving and approving bonds do not prevent the implied acceptance of such bonds not properly approved. [See Code, secs. 1082-1097, and notes.]</p> <p>Cited with approval: McLean v. State, 8 Heis., 22.</p> <p>2. SURETY UPON BOND. Conditional signing.</p> <p>The understanding of a party signing- a bond as to who were, or were to be the other sureties upon it, does not affect his liability. [See notes under sec. 1094 of the Code.]</p> <p>Code (1858) cited and construed: Secs. 771-776; Shannon’s Code, secs. 1092-1097.</p>

<p>(S. C., 2 Leg. Rep., 16, 17.)</p> <p>CLERKS. Costs. Eees.</p> <p>Several questions of costs, are decided in this opinion to,) numerous to be included in a head note.</p>

<p>(S. C., 3 Leg. Rep., 186-190.)</p> <p>WITNESS. Rower of court to imprison for contempt of court to secure attendance.</p> <p>In order to authorize the imprisonment of a person to secure his attendance as a witness, he must be shown to be in actual contempt of the court, in refusing to obey the process of the court. A mere conjecture that he will or may flee the country or defy the mandates of the court, is not sufficient; and where a party is unable to give bond for his appearance he must be discharged upon his own personal undertaking' to appear, having committed no contempt warranting his imprisonment. [See notes under secs. 5924 and 7048 of the Code, and the section cited, and notes.]</p> <p>Cited with approval: State v. Galloway, 5 Cold., 329; Cash v. Quenichett, 5 Heis., 737.</p> <p>Cited and construed: Code (1858), secs. 5069, 5071, 3823, 3824, 3392, 4106; Shannon’s Code, secs. 7028, 7030, 5612, 5610, 5147, 5918.</p>

<p>(S. C., 3 Leg. Rep., 245.)</p> <p>1. GARNISHMENT. County warrant.</p> <p>Possession oí a county warrant lor the benefit oí a third person is not a ground of garnishment. [See Code, secs. 4838, 4825, and notes.]</p> <p>2. SAME. Corporation. Mayor as justice of the peace.</p> <p>An answer to a garnishment before a mayor acting as justice of the peace must be in writing, and signed by him. [See note under sec. 4817 of the Code.]</p> <p>Cited with approval: Pickier v. Rainey, 4 Heis., 335.</p> <p>3. PLEADING AND PRACTICE. Void judgment.</p> <p>A void judgment will be vacated- on certiorari to quash an execution when it can fairly be taken as an application to bring- up the judgment. [See note 21 under sec. 4854 of the Code. See also I-Ceizer v. Cooper, 1 Shannon’s Cases, 444.]</p>

<p>(S. C., 3 Leg. Rep., 246-251.)</p> <p>1. INJUNCTION. Rule to require bond’on dissolution, when.</p> <p>The rule of chancery practice is to require a refunding bond on the dissolution of an injunction, when there are reasonable grounds to suppose that the parties will not be in statu quo at the hearing-.</p> <p>Cited with approval: Davis v. Eulton, 1 Tenn., 131.</p> <p>8. SAME. Terms on granting- or dissolving.</p> <p>The terms on which an injunction is g-ranted (or dissolved) are in each case a question of discretion for the chancellor; but the general principle upon which the court proceeds is to put the party applying upon such terms as will enable the court to do justice to his adversary in the event of his failure to make out his case at the hearing.</p> <p>Cited with approval: Kerr Inj., 19.</p> <p>3. SAME. Dissolved on answer denying allegations of bill.</p> <p>It is almost the universal practice to dissolve the injunction when the answer fully denies all the facts on which the equity of the bill is founded.</p> <p>Cited with approval: 1 Johns. Chy., 811; 4 Ired. Eq., 105.</p> <p>4. SAME. Dissolution effectual in part, when.</p> <p>The order of dissolution of an injunction may be effectual in part, and ineffectual in part, according- to the compliance of the party moving it, with the terms and conditions imposed by the chancellor. Where an injunction embraces several matters, and the order dissolving it is general, but imposes certain conditions as to some of the matters, and is silent as to the others, and none of the conditions are performed; the injunction is nevertheless dissolved as to those matters as to which no conditions were imposed.</p>

<p>(S. C., 3 Leg. Rep., 267-275.)</p> <p>1. VOID JUDGMENT. Appearance by attorney without authority. Remedy in equity.</p> <p>A complainant will be allowed by a bill in equity to dispute the authority of an attorney to appear for him, and thus show the judgment ag-ainst him founded upon such appearance, to be absolutely void. (P. 365.)</p> <p>Cited with approval: Ridgeway v. Bank, 11 Hum., 523; Shelton v. Tiffin, 6 How. (U. S.), 163.</p> <p>2. TRUSTEE. Paying over money under void judgment of court.</p> <p>A trustee holding property for a cestui que trust, who in good faith turns over said property to the clerk of the. court under an order of the court, in a case where apparently the court had the authority to make the order, but it after-wards turned out that said order was void, is protected by said void order, and cannot be held liable as for a misappropriation. (Pp. 365-368.)</p> <p>3. SAME. Same. By trustee to co-trustee.</p> <p>Where in such case, one trustee turns over the property to his co-trustee under orders of the court, to be held by the latter as his own, free from the trust, the former is not liable for the same. (Pp. 367, 368.)</p> <p>4. STATUTE OE LIMITATION. Action accrues to legatee, when.</p> <p>The right of action of a legatee against the executor begins to run from the time he was capable, under the will, of taking the legacy. [See notes under sec. 4472 of the Code.]</p> <p>Cited and construed: Code (1858), secs. 47, 2775; Shannon’s Code, sec. 4472.</p> <p>5. SAME. Same. Since Code on bonds before.</p> <p>By a general provision of the Code of 1858, see. 47, actions accruing- after the first of October, 1858, were to be governed by the limitations prescribed by the Code. A right of action accruing after that date on an administration bond executed before that Code is governed by the limitations therein prescribed. (Pp. 368, 369.) [See note under sec. 59 of the Code.]</p>

<p>(S. C., 3 Leg. Rep., 292-295.)</p> <p>ASSIGNMENT OF CHOSE IN ACTION. Notice to. debtor, es-topped from taking- advantag-e of want of, when. Case in ' judgment.</p> <p>On the eig-hteenth of April, 1865, F. assigned a claim against S.; the assignment was registered and also, filed with the papers in a suit by S. against F. On the tenth of May, 1866, a decree was rendered S. for $1,320.67, and in the same decree it was adjudged that said fund should be paid to F.’s assignee. On the eleventh of May, next day, in a different suit, but in the same court, S. answered F.’s creditor, as garnishee, that he was indebted to F. $1,190. The creditor, and his counsel who drew S.’s answer, knew the fact that on the day before a decree had been rendered in favor of F.’s assignee, but this was not communicated to S. For a period of eighteen months complainant, F.’s creditor, abandoned the prosecution of his claim on the answer of S. as garnishee, and soug-ht satisfaction of his debt from other sources. He also, apparently, acquiesced in the appropriation of S.’s liability to the payment of F.’s assignee. Held, that notice to the debtor is essential to the validity of an assignment of a chose in action, but under the circumstances of this case, complainant led defendant to believe he had abandoned his claim against him upon his answer as garnishee, and that it would be inequitable to hold said S. liable to pay the debt due a second time.</p>

<p>(S. C., 1 Leg. Rep., 279, 280.)</p> <p>1. SHERIFF. Motion aguinst for insufficient return.</p> <p>A petition for writ of error coram nobis wliicli assigns as the only reason for the nonexecution of process, that the . sheriff's term of office would expire very soon after it came to his hands, is insufficient. In contemplation of law he was still the sheriff, and his official term continued, as a matter of law, until the qualification of his successor. He should have made the levy, and not have risked the contingencies by which the plaintiff may have lost his debt.</p> <p>2. RETURN. Example of insufficient, on execution.</p> <p>Where an execution is ret-urnabie on the fourth Monday in September, 1876, a return thereon in these words: “Came to hand August 23, 1876, too late to be executed, therefore is not satisfied. September 2, 1876. (Signed) W. P. Tes-taman, sheriff,” is on its face insufficient. If the return had set forth all the facts in exculpation that are shown in the petition in the last syllabus, it would not have excused him. [For returns of executions, see notes 4-25 under sec. 5359 of the Code.]</p> <p>3. EXECUTION. Personalty levied on to be sold by officer though term expires.</p> <p>The officer who commences the execution of a writ of fieri facias is bound to finish it, and he cannot deliver the writ and the goods levied on to his successor in discharge of himself, but must sell the goods and make return as though his office had continued. [See notes 2 and 3 under sec. 459 of the Code.]</p> <p>Cited with approval: Campbell v. Cobb, 2 Sneed, 18; Bradley v. Kesee, 5 Cold., 223; Code (1858), secs. 368, 369; Shannon’s Code, secs. 458, 459; Con., art. 7, sec. 5.</p>

<p>SALES OE PERSONALTY. Sound price does not imply warranty of soundness of article sold.</p> <p>The sale of an ascertained and specific chattel which the "buyer has inspected is without any implied warranty as to quality, and a sound or high price does not imply a warranty of the soundness of the article sold, the unsoundness of which was not visible to the purchaser.</p> <p>Cited with approval: Benjamin on Sales, secs. 644, 670-672; King’s Dig-., sec. 12000 et seq., and citations. [See Crabtree v. Cheatham, 2 Yer., 138; Westmoreland v. Dixon, 4 Hay-223; McEarlane v. Moore, 1 Tenn., 174; Glasscock v. Wells,» Cooke, 262; Donelson v. Young, Meigs, 155; Overton v. Phelan, 2 Head, 448; Cardwell v. McClelland, 3 Sneed, 150: Eranldin v. Ezell, 1 Sneed, 500.]</p>

<p>SET-OFF. Prospective recovery not set off ag-ainst a judgment, when.</p> <p>A hill will not lie to set off a mere prospective recovery ag-ainst a judgment which is not attached for fraud or otherwise for its invalidity, if it does not allege the insolvency of the judgment creditor or his inability to dis-charg-e any recovery that complainant may obtain ag-ainst him. [When equitable set-off may be allowed, see notes 44-54 under sec. 4640 of -the Code.]</p> <p>Cited with approval: Smith v. Ross, 3 Hum., 220.</p>

<p>(S. C., 1 Leg. Rep., 264-269.)</p> <p>1. ADMINISTRATOR. Judgment ag-ainst, but prima iacie evidence of the estate’s liability in suits against the heir to satisfy ancestor’s debts. Administrator personally liable, when.</p> <p>Judgments against administrators are, at most, but prima facie evidence of debts against the. estate, which the heir is entitled to contest, and show to be incorrect, in proceedings to subject his land to the payment of his ancestor’s debt, as provided for by sec. 2267 of the Code [Shannon’s Code, sec. 4000]. A judgment confessed contrary to the truth of the case as understood by the administrator at the time, can only affect him, but can have no weight whatever against the heir. [See notes under secs. 3991 and 4003 of the 'Code, and especially note 2 under sec. 3991, and note 22 under sec. 4003.]</p> <p>Cited with approval: 6 Yer., 53, 66, 68; 1 Yer., 287-289; 2 Yer., 65; M. & Y., 354-360; 2 Swan, 168; Code (1858), sees. 2267-2269, 2258, 225'9, 2262; Shannon’s Code, secs. 4000-4002, 3991, 3992, 3995; acts of 1S27 [eh. 54, sec. 4]; acts of 1784 [eh. 11., secs. 2, 5].</p> <p>2. PRACTICE. In sale of land of decedents to pay debts.</p> <p>The proper practice in suits to sell lands of decedents to pay their debts is stated. (Pp. 265, 266.) See also 7 Lea, 323.</p>

<p>1. ATTACHMENT. Amendment of affidavit after defense.</p> <p>After appearance and defense to the merits in an' original attachment suit, an amendment to the affidavit showing- the debt due by account, and the claim just, may be properly allowed.</p> <p>3.SAME. Publication unnecessary after appearance.</p> <p>Where suit is commenced by original attachment as against a nonresident debtor, and after the levy of the attachment on his property, he enters his appearance, publication is unnecessary.</p> <p>Cited and construed: Code (1858), sec. 3534; Shannon’s, Code, sec. 5384.</p> <p>3. SAME. Tort waived, and suit for debt, when.</p> <p>The owner of land may waive the tort and sue in debt for the value of his timber wrongfully cut by the defendant, and may commence his suit by attachment as in other cases of debt.</p> <p>4. 'EVIDENCE. Parol incompetent to prove facts in record of court.</p> <p>Parol testimony is incompetent to prove a discharge in bankruptcy, because the record is the appropriate evidence to prove this fact. For instance, the defendant cannot show that the plaintiff’s title to his property had been vested in his assignee by a dischax-g-e in bankruptcy proven by parol testimony over plaintiff’s objection.</p> <p>5. DEED OE TRUST. Title reverts to maker when debt paid.</p> <p>When the debt secured by a deed of trust on land is paid or satisfied, the title to the land reverts to the maker of the deed.</p> <p>6. PRACTICE. Insufficient affidavit for new trial.</p> <p>Affidavit in support of a motion for a new trial, uncorroborated by affidavit of the witness by whom the proof is proposed to be made, and only containing an expression of belief that on another trial the fact in question can be shown to be otherwise, is insufficient, especially where the proof does not go to the very right of the case, but is a technical defense alone.</p>

<p>ADMINISTRATOR. Sale of land to pay decedent’s debts. Return of nulla bona not proof of exhaustion of personalty.</p> <p>A judgment against tlie personal representative of a decedent, with the return of nulla bona, upon an execution issued thereon, is not sufficient evidence of the exhaustion of the personal assets to authorize a decree for the sale of the realty. The decree must be preceded by an investigation of the administrator’s accounts and report thereon by the clerk. [See Wade v. Fisher, 10 Heis., 493; Bloom v. Cate, 7 Lea, 473; Frazier v. Pankey, 1 Swan, 75; Linnvill&v. Darby, 1 Bax., 311; Young- v. Young, 12 Lea, 335. See also notes generally, and especially note 21, under sec. 4003 of the Code.]</p> <p>Cited with approval: Dulles v. Read, 6 Yer., 63, 68. See 12 Lea, 335.</p> <p>Cited: Code (1858), sec. 2268; Shannon’s Code, sec. 4001.</p>

<p>1. TAXATION. Exemption from, by charter not included in terms same “rights, powers, and privileges.”</p> <p>A railroad corporation, vested by its legislative charter with all the rights, powers, and privileg-es contained in the legislative charter of another railroad corporation previously granted, providing that the capital stock, dividends, roads, fixtures, depots, workshops, warehouses, and vehicles oE transpoi tation should be exempt from taxation, is not ex-envpt from taxation. The terms “rights, powers, and privileges” in the subsequent charter do not include exemptions in tha previous charter. [This case is affirmed by the supreme court of the United States on the ground that the immunity from taxation will not pass by a sale, and not on the ground here stated. This ease is cited and approved in Memphis v. Insurance Co., 7 Pickle, 571, and in Memphis v. Bank, 7 Pickle, 590. See 103 U. S., 373 (36 L. ed., 152). This case is cited in Wilson v. Gaines, 9 Bax., 546-549, which was affirmed in the supreme court of the United States, 103 U. S., 417-436 (L. ed., 401), and criticized and distinguished in Tennessee v. Whitworth, 117 U. S., 139 (29 L. ed., 833, 835, 836). See 7 Lea, 665; 9 Lea, 613, 614; 12 Lea, 592; 33 Lea, 405; 16 Lea, 122; 7 Pickle, 562, 571, 572, 579, 590; 3 Tenn. Chy., 597.]</p> <p>Cited and construed: Acts 1849-50, ch. 76, sec. 40; 1853-54, ch. 301, sec. 8.</p> <p>2. SAME. Exemption from, presumed against.</p> <p>It is a settled and uniform rule of construction according- to all the authorities, that no exemption from taxation can be allowed unless it be granted in plain fund unambiguous terms. Every presumption and intendment is against it, and every doubt in the language used is to be resolved against exemption. *</p> <p>Cited: Const., art. 11, see. 8. [See notes thereunder.]</p>

<p>1. BILLS AND NOTES. Eor bank notes at par, judgment foi’ full amount.</p> <p>Wliere a note is payable “in bank notes which, shall be ai par,” the judgment thereon must be for the full amount, and not merely for the value of current bank notes. This contract means that the bank notes must be of equal value with lawful money [which is carried out by rendering judgment for the amount in dollars and cents, which can only be discharged in lawful or legal tender money].</p> <p>2. SAME. Bank notes and Confederate money, sufficient consideration, when.</p> <p>Such note is not affected by the fact that the consideration thereof was bank notes and partly Confederate money, where not so inadequate as to shock the conscience, where the maker used the. money in paying for land, and where there was no fraud or unconscionable advantage taken of him, though it was a hard and improvident bargain on his part.</p>

<p>Appeal from the circuit court of Monroe county.</p>

<p>1. BILLS AND NOTES. Hypothecator of bonds to secure note may pay same, take assignment of it, and sue maker.</p> <p>Where the president of a railroad company hypothecates his own individual bonds as security for the payment of his company’s note, with power in the payee, upon the company’s failure to pay the note, to sell the bonds at private or public sale without notice, he, or his personal representatives, may, when necessary for the redemption of the bonds and the prevention of their sacrifice by such sale, pay such note, take an assignment or transfer of it, and sue the company maker, and recover the amount thereof. Such payment is not officious.</p> <p>2. SAME. Same. Suit against maker, after his claims, distinct and independent of this against maker are barred, maintainable.</p> <p>Where the payment of the note as stated in the last syllabus was made by the hypothecator’s personal representatives soon after their qualification, and they sued thereon more than two years and six months thereafter, such delay in bringing- suit did not prevent them fronj pleading the statute of limitations of two years and six months to claims against their testator, sued on by the company maker of the note, g-rowing out of other matters having no connection with, or relation to, the transactions connected with this note. [See notes 8, 54 under sec. 4640 of the Code. Where the matter of set-off is evolved from the consideration sued upon, the institution of the original suit stops the running of the statute of limitations. See note 10 under said section, and also Lewis v. Turnley, 13 Pickle, 197, 202-205.]</p> <p>3. STATUTE OE LIMITATIONS. Set-off. Statute runs against independent claims which parties may set off or bring independent suits for.</p> <p>Where the transactions, out of which the litigation grows, are totally distinct in their natures and characters, and come of wholly different dealings between the parties, and were not had in view of each other’s existence or because of it, in a suit by either the other- may rely upon a set-off. Still the parties can elect independent suits, and cannot be compelled to plead set-off. So, the personal representatives, paying said note as stated in the foregoing syllabi, were not compelled to credit the payment on their testator’s indebtedness to said company, nor is there any presumption that the payment was to be so credited. [See note 8 under see. 4640 of the Code.]</p> <p>4. SAME. Same. Payment of debt by holder of debtor’s estate no discharge of his obligation to said debtor.</p> <p>Where one holds money, bonds, or property of another, and while so holding pays the -debt of the other, there is even no prima facie presumption of law that such payment is a discharge of the obligation as to the estate so held by the. party paying- the debt. Therefore, the payment of said note as stated in the foregoing- syllabi, was not presumed to be made or applied as a credit on the alleged indebtedness of the company maker against the estate of the hypothecator of the bonds.</p> <p>5. SAME. Holder of barred claim may enjoin prosecution of unbarred counter claim, when.</p> <p>A bill by the maker of such note, alleging that the payment thereof by the said personal representatives was made with the understanding- and agreement that the same should be allowed as so much paid by them on the amount due from their testator to said maker, and enjoining the prosecution of the suit by them to recover of the maker for the amount so paid, upon the ground that the institution of such suit was fraudulently postponed, and not brought until after the maker’s claims against th.eir testator were barred by the statute of limitations, is maintainable, if the allegations are true.</p>

<p>1. CHANGE OE VENUE. Made upon facts, not mere conclusions.</p> <p>A chang-e of venue must be made upon facts produced, and not upon mere conclusions of fact.</p> <p>2. SAME. Differences in politics, churches, etc., not sufficient for.</p> <p>The facts must fix some g-ood reason personal to the applicant why he cannot have a fair and’impartial trial in the county where the. suit is pending other than a general statement that on account of differences in politics, churches, trades, professions, etc., he cannot have such a trial.</p>

<p>(S. C., 1 Leg. Rep., 277.)</p> <p>CROSS-ACTION. May be maintained, when.</p> <p>Nave sued Harkleroud for balance due as price of mill wheels. The defense was a warranty as to the wheels, and a breach of said warranty. Held, in such case a party has the rigiit to show damag-es by way of cross-action, arising from breach of warranty, thoug-h he had not first tendered back or offered to return the wheels purchased. [See notes 16-23 under sec. 4640 of the Code.]</p> <p>Cited, distinguished, and doubted: Rosson v. Hancock, 3 Sneed, 434.</p> <p>Cited with approval: Eord v. Thompson, 1 Head, 366; Conner v. Crunk, 3 Head, 248, 349; Code (1858), sec. 2918; Shannon’s Code, sec. 4639.</p>

<p>(S. C., 1 Leg. Rep., 283-286.)</p> <p>1. INFANCY. Parents liable for maintenance, when.</p> <p>A brother, as a volunteer, undertook the maintenance and education of his sister, who had abandoned her father’s home, and without- his fault. Held, under such circumstances no promise to pay a mere volunteer for the maintenance of the child can be implied on the part of the parent. He who intervenes in such a case, to- malee the child independent of the parent, does but encourage, its alienation from the line of filial duty, and stands in np relation to be favored by the law.</p> <p>2. SAME. Same. Arguendo.</p> <p>The father was bound to support his child, and that obligation might be enforced against him as a legal duty. „ If she had been comnpelled, by bad treatment, to- abandon the paternal roof, the law would compel him to furnish the infant daughter, under such circumstances, the necessaries of life. The parent is bound by positive law to protect, to educate, if able to "do so, and to. maintain his child during-its minority, or until its voluntary abandonment of the parent’s protection. But the duties of the relation are mutual and reciprocal. The parent is bound to provide for the child; but. he is, on his part, entitled to. the obedience, ■ to the custody, and to the services of the child. If the authority of the parent is abjured by the child without any necessity occasioned by the parent, all legal obligation to provide.for the child is at an end; and, in such a case, the parent cannot be made liable for even necessaries furnished his child by a volunteer, except by his consent.</p> <p>Cited with approval: Tyler Inf., 101, 111; Par. Cont., 305; Chitty Cont., 119; 2 Story Bq., 1347a; Gordon v. Potter, 17 Verm., 348, 358; Raymond v. Loyl, 10 Barb., 483; Morti-more v. Wright, 6 M. & W., 482; Schoul. Dom. Rel., 328 et seq.</p>

<p>1. CRIMINAL LAW. Evidence oí other offenses not admissible, when.</p> <p>In criminal cases the general rule is that proof of other transactions, especially proof of the commission by the defendant of other crimes, ong-ht not to be allowed, where it does not bear upon or in any way elucidate the case on trial. (Pp. 4L4, 415.)</p> <p>2. SAME. Evidence of facts leading np to the crime admissible, when.</p> <p>Where the defendants came to the prosecutor's house at night, awakened him, and inquired for his son James, and being' told that he was not at home, fired a volley of thirty or forty shots into the house, one passing' through a window over prosecutor’s head, and one through the room in which his son James usually slept, testimony of prosecutor’s said son James that during- the day he had an altercation with two of the defendants six miles from his father’s residence, that he stopped at a house on his way home and heard the defendants stop there and inquire for -him, while he concealed himself; that they again passed him on the road while he was concealed; that he saw and heard them at other points on the road, and was concealed within one hundred and fifty yards of his father’s house while they were there, and heard the shooting, was admissible and pertinent as to the identity and animus of the defendants. (Pp. 414-416.)</p> <p>3. SAME. Same. When and when not, illustrated.</p> <p>The testimony of another witness that he lived near the prosecutor, and on the nig-ht in question he heard the shooting, and afterwards four persons came to- his house, and were shooting around his house, one of whom he identified as one of the defendants; that they were shooting at and trying to catch witness’ turkeys, and when he went out they ran off, carrying with them four of his turkeys, was pertinent and admissible on the question of identity, and also in corroboration of the prosecutor, but was not admissible as to carrying off the turkeys, and the admission of this part of the evidence was reversible error, because it threw no light upon the main question, and was calculated to prejudice the defendants. (Pp. 415, 416.)</p> <p>4. SAME. Specific intent to kill essential to murder in first degree, or an assault to commit.</p> <p>Specific intent to take life is essential to murder in the; first degree, or an assault with intent to commit murder in the first degree. (P. 416.)</p> <p>Cited with approval: Bratton v. State, 10 Hum., 103 [cited in Cowley v. State, 10 Lea, 284, and ICannon v. State, 10 Lea, 389].</p>

<p>1. CRIMINAL LAW. Circumstantial evidence incompatible with innocence.</p> <p>The instruction to the jury “that to justify the inference of ' g-uilt from circumstantial evidence, the existence of the inculpatory facts must be incompatible with the innocence of the accused,” would be proper in a case depending' wholly upon circumstantial evidence, but the rule does not apply to a case where there is direct evidence of the facts to be established, as well as circumstantial evidence in aid thereof. In such cases all the evidence must be considered, and from it the jury must be satisfied beyond a reasonable doubt. (Pp. 417, 418.)</p> <p>Cited, approved, and distinguished: 2 Rus. on C., 727; 1 Gr. Ev., sec. 13a; Burr ón Cir. Ev., 226, 227.</p> <p>2. SAME. Refusal to charge ease doubtful, and if no motive to acquit, not error.</p> <p>It is not error in the court to refuse to charge the jury propositions of defendant asking the court to state to the jury that the case was one of doubt, and that they ought to acquit unless some motive for the act was proved. (Pp. 418, 419.)</p> <p>3. SAME. Refusal to charge that guilt of a third party acquits defendant, not error, when.</p> <p>Where the offense charged is one of which two or more might be guilty, there will be no error in. refusing to charge that “the fact that a third party was guilty, if proven will operate to acquit defendant.”</p>

<p>CRIMINAL LAW. Jurisdiction, not defeated because defendant was brought from another state without its consent.</p> <p>A defendant indicted for crime committed in this state cannot escape trial and punishment upon a plea that he is a citizen of another -state, where he has his residence and domicile, and where he was forcibly arrested by an armed body of men of this state, and brought here by force and without authority from his state; that the governor of his state has demanded of the governor of this state his release, which has been refused, and praying that he be discharged. The court cannot inquire into the manner,and place of the defendant’s arrest, nor how or when or in wha.t manner the presence of the accused within the jurisdiction of the court was brought about. [See U. S. Const., art. 4, seo. 3, cl. 2; Code, secs. 7313-7331, and notes.]</p>

<p>1. CRIMINAL LAW. Ownership must be proved as alleged in indictment for arson or barn burning.</p> <p>Where an indictment for barn burning alleges the ownershij) to be in a certain person, and the proof shows it to be in that person and another, the variance is fatal, and the defendant should be acquitted. The rule of the common law that it is essential to prove the ownership of the property destroyed still prevails in Tennessee. And the proof of the ownership must correspond with the allegations of the indictment.</p> <p>Cited with approval: 1 Gr. Ev., sec. 65; 3 Gr. Ev., sees. 10 and 57, and note 1; 2 Whai. Cr. L., sec. 1671.</p> <p>Cited and construed: Code (1858), sec. 4668; Shannon’s Code, sec. 6531.</p> <p>2. SAME. Conviction on proof of one circumstantial fact only, with good character and no motive, cannot stand.</p> <p>Where a conviction of barn burning- rests wholly upon circumstantial evidence; and- upon one single circumstance, namely, tracks found the next day after the burning exactly corresponding- with those made by defendant’s boots, leading within thirty yards of the burnt barn, and traced from there to within two hundred or three hundred yards of where defendant lived, one and a quarter miles from the barn, and the defendant is proven to have a good character, and to have no motive to commit.the crime, the supreme court will reverse the judgment, and remand the cause for a new trial.</p> <p>3. SAME. Same. Character of circumstantial evidence necessary to convict.</p> <p>In case depending wholly upon circumstantial evidence, there are usually more circumstances than one; often they arc-, numerous, all pointing- to the guilt of the defendant, and where they are of such a nature as not to be consistent, upon any reasonable hypothesis, with the innocence of the prisoner, and perfectly reconcilable with his guilt, a jury may well convict. The proof is more cog-ent when the circumstances are numerous, and are derived from different and independent sources, than when they are few.</p> <p>Cited with approval: 1 Ph. on Ev., 614, and note.</p>

<p>1. SUPREME COURT PRACTICE. Judgment rendered by supreme court upon verdict set aside by lower court, when.</p> <p>The supreme court will revise the discretion oí the court below in granting new trials, and where a new trial has been improperly granted, and a regular bill of exceptions to the judgment awarding a new trial is taken, signed, and filed, the supreme court will set aside the rule granting a new trial, and render judgment upon the verdict. [See notes 16-20 under sec. 4852 oí the Code.]</p> <p>Cited: Acts 1875, ch. 106 [Shannon’s Code, secs. 4851, 4852], changing- the rule announced in case of Huggins v. Moore, 3 Head, 427.</p> <p>2. PRACTICE. Affidavit for new trial for newly discovered material evidence.</p> <p>An affidavit for a new trial upon the ground of newly discovered testimony which is set forth, and which appears to he manifestly material, is sufficient, though it does not in terms allege the materiality of the testimony, or that it would be sufficient to produce a different result.</p> <p>3. ADMINISTRATION. Limitation of actions. Special request of personal representative for delay, example of.</p> <p>Where it is proven on the trial that the defendant, a personal representative, promised to pay the notes against the decedent sued on as soon as he could collect the money, but no specific request for delay is proven to have been made, newly discovered testimony to the effect that he requested delay and promised to pay the notes as soon as a certain party paid the debt be owed the estate; the newly discovered proposed testimony is not cumulative, but original, and very essential to' the plaintiff’s case, for which a new trial should be granted. [See notes generally, and specially note 11 under sec. 4013 of the Code.]</p> <p>Cited with approval: Trott v. West, 9 Yer., 435; Puckett v. James, 2 Hum., 566; Bank v. Death, 11 Hum., 517; McKizzaek v. Smith, 1 Sneed, 470; Chesnutt v. McBride, 1 Ileis., 389.</p> <p>Cited and construed: Code (1858), sec. 2280; Shannon’s Code, sec. 4013.</p>

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

<p>1. CRIMINAL LAW. Evidence about a “curly headed girl,” not shown to be applicable to deceased, should be rejected or ■withdrawn. ,</p> <p>Where the motive for the killing, according to the theory of the prosecution, was that the defendant having impregnated the deceased, killed her to conceal his criminal intimacy with her, it is reversible error to- admit evidence of the defendant’s declarations or confessions of criminal intimacy with a “curly headed g'irl,” where there is nothing- in the record pointing- to her as the deceased, unless the court withdraws the same from the jury and carefully cautions it to disregard the evidence entirely in their deliberation upon the facts.</p> <p>2. SAME. Same. Relevancy of evidence shown before admission.</p> <p>In such eases the much safer and better rule is to require the relation of the testmony to the merits of the case to be shown before its admission, and thus avoid all danger of bias and prejudice to the minds of the jury.</p> <p>3. SAME. Evidence of tacit confession, charge of court as to.</p> <p>Where the mother of the deceased testified that, on the day before the killing-, the defendant was at her house, and as he went out of the gate she said to him: “Go on, you old Spencer, you have got my gal in a family way,” whereupon he turned around and said: “Are you talking to me?” and that she replied: “No, I was speaking to Cilia” (.(the deceased), without anything more showing^.that he understood her first expression, such testimony to fix upon defendant a tacit confession of his impregnation of the deceased, if properly qualified and guarded, with instructions to the jury that they must give nO‘ weight to it, unless they believe he heard and understood the mother’s expression, without denial, which, if so, would be a circumstance from which confession of the truth of the charge mig-ht be inferred, unless other circumstances excused a reply from him. The rule as to the character and weight of confessions should be given in such cases. It is reversible error to admit such evidence broadly, without these qualifications and instructions to the jury.</p>

<p>1. VENDOR’S IMPLIED LIEN. Ear profit in selling land back to bis conveyor.</p> <p>Where the conveyor of lands repurchases the same and procures a reconveyance thereof by canceling the debt for its sale, and g-iving- his note for an additional sum as a bonus or profit, whatever be the form in which witnesses express it, the same is, in legal effect, part of the price of the repurchase of the land, and stands on the footing of purchase money, and it is an equitable or implied lien on the land where no express lien is retained.</p> <p>2. SAME. Does not pass by mere assignment of note for purchase money.</p> <p>The vendor’s equitable or implied lien on land for the purchase money does not pass to the assignee by mere assignment of the note evidencing debt, in the absence of any special assignment of S3i.ch equity. [See Cate v. Cate, 3 Pickle, 43, and citations; Graham v. MeCampbell, Meigs, 55; Gann v. Chester, 5 Yer., 205; Ross v. Young-, 5 Sneed, 628; Eeatherston v. Boaz, ante, p. -.]</p> <p>3. SAME. Same. Surety paying- same to assignee, not substituted to vendor’s lien.</p> <p>Where the vendor assigns the note that is an equitable or implied lien on land for the purchase price thereof, without any special assignment of the lien, and the surety on said nota pays the same to the assignee or any subsequent as-signee or holder, he cannot be substituted to the lien, because the creditor to whom he malees payment has no such lien.</p> <p>4. SAME. Same. Same. Homestead not exempt from debt for purchase money though not a lien.</p> <p>While the surety in the case stated in the last syllabus has not the vendor’s equitable or implied lien on the land, still in a suit to subject the land to the payment of the debt contracted for its purchase, the debtor cannot claim the homestead exemption, for the homestead is not exempt from sale for the payment of debts contracted for the purchase money of the land. It is immaterial in what form the debt is presented, or how its enforcement is sought, so it is contracted for the purchase money. [See notes 39-44 under sec. 3803 of the Code.]</p> <p>Cited and construed: Con., art. 11, sec. 11; act of 1870, ch. SO, sec. 1; T. & S. Statutes, sec. 2314a; Shannon’s Code, sec. 379S.</p> <p>5. HOMESTEAD. Husband not estopped to claim ag-ainst his deed of trust, unless to secure purchase money.</p> <p>Where a husband conveys his land by a deed of trust to secure debts, without his wife joining in the same with him, it is good to convey the remainder or reversion after the termination of the homestead, for the land may be sold under judicial process subject to the homestead exemption; but as against his such deed of trust the husband may claim the homestead, unless the debt so secured was contracted ior the purchase money of the land. [See notes 7, 14-16, 39-44 under sec. 3803 of the Code; note 18 under sec. 3808; note 2 under sec. 11 of art. 11 of the Con.]</p> <p>6. DOWER. In land mortgaged to secure repayment of purchase money to surety, when.</p> <p>Where the surety on the notes given by the purchaser at a judicial sale of land on which an express lien was retained to secure the purchase money, pays the same, and takes from the purchaser a deed of trust to secure the repayment of the amount, and the purchaser dies before foreclosure of the deed of trust, his widow, having- not joined in the same, will be entitled to dower in the land. [See Code, sec. 4140, and notes 29, 34-40(a).]</p> <p>7. PRINCIPAL AND SURETY. Surety paying after released by extension of time, entitled to rights of a surety.</p> <p>Where the surety on a note has paid it, the maker cannot, in the surety’s suit against him for reimbursement, even though it be a suit in rem, make the question that the surety paid it in his own wrong, because he had been released from the payment of the note by the payee’s accepting- other security and g-iving further time. A surety paying- a debt under such circumstances is entitled to all the rig-hts of a surety.</p>

<p>1. STATUTES OE LIMITATIONS. Having begun to ran, continue to ran.</p> <p>Where a right of action accrues in favor of a person then alive and capable of suing-, the statutes of limitations then begin to run, and having begun to run, will continue to- run, notwithstanding- the payee’s death, or that a personal representative payee in that character is succeeded by another personal representative. [See Code, see. 4450, and notes; and notes 56-59 under sec. 3943 of the Code.]</p> <p>3. SAME. Suspension of, does not extend the “six months” exemption from suit in favor of personal-representatives.</p> <p>Where the six months within which the personal representative is exempt- from suit elapsed before the expiration of the time during which the statutes of limitations were suspended in consequence of the civil war, a creditor of a decedent’s estate was bound to bring his action within the time limited, or be barred, and the additional six months were not allowed in such case. [See note 2 under sec. 4451 of the Code; Con., Sched., sec. 4; Code, sec. 4454.]</p> <p>3. SAME. In favor of personal representatives do not apply till appointed.</p> <p>It seems that the statutes of limitations of two- and three years, and of seven years, in favor of the estates of decedents, do not apply until a personal representative is appointed, as they are in terms in his favor; but that the statutes of six years, with an additional year given by Code, sec. 4451, applies where no administration is granted. [See note 1 under sec. 4451 of the Code.]</p> <p>Cited: Code (1858), secs. 2279, 2784, 2281, 2786, 2775, 2760; Shannon’s Code, secs. 4012, 4481, 4014, 4483, 4472, 4451.</p> <p>4. STATUTES OF FRAUDS. Heir’s promise to pay ancestor’s debt binds him as heir.</p> <p>The promise of the heir to pay the debt of the ancestor, made within six years before suit brought to enforce same, and in consideration of lands descended, where there were no personal assets, is not within the statute of frauds, and binds him to the extent he was or might have been made liable as heir or as one of the heirs.</p>

<p>APPEAL. On pauper oath from decree to sell land to enforce vendor’s lien.</p> <p>Where there is a decree for the sale of land to enforce a vendor’s lien, the defendant may appeal in forma pauperis. [See notes 3-5, 16 under sec. 4897 of the Code.]</p> <p>Cited and construed: Code (1858), sec. 3192; Code (T. & S.), sec. 3164a; acts 1870-71, ch. 106; Shannon’s Code, secs. 4897, 4928.</p>

<p>1. FKAUDULENT CONVEYANCES. Eelationship, delay, and use and possession by grantor, evidence of.</p> <p>Where by a deed of trust silent as to the possession and use of the property, realty and personalty including property consumable in its use, are conveyed to- a brother in law to secure debts then due him and others, the execution of which deed is postponed two years, and the property is used by the conveyor as if the deed had not been made, and this is continued for more than seven years, and all the debts secured are paid except part of that due the trustee, such deed is fraudulent and void against such trustee as to the unsecured creditors existent when made.</p> <p>2. SAME. Eelationship, two years! delay, and embrace of consumable property not alone sufficient to prove fraud.</p> <p>The fact that the deed of trust is made to, and for the benefit of, a near relative, the fact that the execution thereof is postponed two years when the debts are all then due, and the fact that part of the property included therein is consumable in its use, are all circumstances of fraud, but insufficient of themselves to establish that the conveyance is fraudulent.</p> <p>3. SAME. Parties bound by legitimate and permitted result of their 'acts.</p> <p>Where, from all the facts and circumstances, the parties to a deed of trust are found to intend the legitimate and permitted result of their acts, which is, that while the property is covered and apparently shielded from unsecured creditors, yet at the same time it is, and was intended to be enjoyed, used, and possessed by the grantor as his own, and as if no conveyance had been made, the deed must be held fraudulent and void as to unsecured creditors existent when made.</p> <p>4. SAME. Embracing- property consumable in its use, when fraudulent, and when not.</p> <p>The simple fact that property consumable in Its use is embraced in a deed of trust, is not of itself conclusive evidence of fraud, unless it is stipulated therein that it shall remain in the possession and use of the grantor. The mere fact that such property is allowed to remain in the possession of the grantor when not stipulated for in the deed is not conclusive evidence of fraud, and it may be shown to be fair. But where there is a stipulation for the possession and use of such property by the grantor, it is conclusive evidence of fraud as to such property; or if the grantor be permitted to use such property without any stipulation to that effect, it is evidence of fraud.</p> <p>Cited with approval: Wade v. Green. 3 Hum., 549; Somerville v. Horton, 4 Yer., 550; Simpson v. Mitchell, 8 Yer., 419.</p> <p>5. VENDOR’S IMPLIED LIEN. Abandoned by takings deed of trust on the land.</p> <p>Where land is conveyed without the reservation of a lien, and the implied or equitable lien is abandoned by the vendor taking’ from the vendee a deed of trust on the land to secure the payment of the purchase money, he must stand on that, and no lien exists for the payment of this debt as purchase money for the land.,</p>

<p>1. PARTITION. Chancery court has jurisdiction to remove cloud on title, and to make partition.</p> <p>The chancery court has jurisdiction of a bill filed to remove a cloud upon the title created by alleged adverse possession and a fraudulent deed, and to have the land partitioned. Having removed the cloud upon the title, the court has jurisdiction to adjudge any other matter of equity property presented in the bill, as a partition of the land among the owners. [See Code, sec. 5014, note 3; sec. 6109, note 6. All question of the power of the chancery court to determine conflicting titles in partition cases has been removed by the act of 1877, ch. 97, embraced in Shannon’s Code, see. 6109; Walsh v. Crook, 7 Pickle, 394.]</p> <p>Cited with approval: Donnell v. Mateer, 7 Ired. Eq., 94; Dean v. Snelling, 3 Heis., 490; Carter v. Taylor, 3 Head, 35; Lever-ton v. Waters, 7 Cold., 33; Buck v. Williams, 10 Heis., 361, 377; Graham v. Caldwell, MS., Knoxville, 1876; 1 Story’s Eq. Jur., sec. 650; Code (1858), sec. 3377; Shannon’s Code, sec. 5035.</p> <p>2. CHANCERY PLEADING AND PRACTICE. Necessary parties to bill for partition made by amendment. Remand for.</p> <p>All the owners of land as tenants in common are necessary-parties to a bill for partition, and where it appears upon the face of the bill that all such owners are not made parties, a demurrer to the bill will be sustained; but on sustaining’ the demurrer the supreme court may remand the cause with leave to amend the bill by making all the joint claimants parties.</p>

<p>Appeal from tbe chancery conrt'o-f Greene county.</p>

<p>1. CHANCERY JURISDICTION. Abatement of private nuisances, as dams below mills.</p> <p>A dam erected below a water-mill, by which, the water is dammed up and thrown back on the mill, obstructing- its operations by “drowning- its wheel,” and the height of which, upon the owner of the mill attempting to avoid the ■ trouble by raising its wheel, is increased, causing the back flow of water to- be as injurious as ever, will be declared a private nuisance, and abated by the chancery court, without a judgment first had at law. [See notes under sec. 3460 of the Code. See also Clack v. White,. 3 Swan, 543-545; ■ Brew v. Deman, 6 Heis., 439, 440. But see now Code, sec. 6109, enlarging the jurisdiction of chancery courts, and notes thereunder.]</p> <p>Cited with approval: 3 Story’s Eq. Jur., secs. 935-937; Vaughn v. Law, 1 Hum., 133; Caldwell v. Knott, 10 Yer., 310; Kirk-man v. Handy, 11 Hum., 406.</p> <p>3. SAME. Same, or fallen tree increasing the injury.</p> <p>A fallen tree across a stream below the mill which increases the injury resulting from such dam, and which the defendant not only refuses to remove, but refuses to permit the owner of the mill to remove, may be abated and removed by the orders and decrees of the chancery court.</p> <p>3. SAME. To abate continuing nuisances, when.</p> <p>Courts of equity will interfere by injunction to abate or prevent the continuance of a private nuisance, where, from its nature, it is not susceptible of being adequately compensated in damages, or such as from its continuance must occasion a constantly recurring grievance, as the obstruction of water courses, the diversion of streams from mills, and the “back flowage on mills,” without judgment at law. [See notes and citations to first syllabus.]</p>

<p>PRACTICE. CRIMINAL LAW. No testimony in .ag-gravation after verdict.</p> <p>It is error in the court, after the verdict is returned and a motion for a new trial is overruled, to call a witness and examine -him to. find matter of aggravation to fix the amount of punishment to be imposed on a defendant in a misdemeanor case, and the supreme court will fix the proper pnnishment in accordance with the proof npon which the verdict was rightly found.</p>

<p>1. RESCISSION. Of contract for purchase of land where main inducement fails.</p> <p>A contract for the purchase of a tract of land with a mill on it, where the mill is the main inducement to the purchase, will he rescinded at the instance of the purchaser, where the vendor agreed to make certain changes and to: put the mill in a certain good condition ready to be delivered by a fixed day, but failed 1o do so, and offered to deliver the mill to the purchaser in nearly a worthless condition, which was materially injurious to the purchaser. [On rescission, see notes 106, 114, 117, 119 under sec. 3142 of the Code.]</p> <p>2. SAME. Same. Conditional acceptance, no estoppel to relief by rescission.</p> <p>Where, in such ease, the mill was delivered to the purchaser, but it was not considered as finally accepted by him, as the vendor had additional work to do on the race to complete his agreement, which he continued to do for some time, the purchaser will not be estopped to seek relief by a rescission of the contract.</p> <p>3. EVIDENCE. Parol admissible to prove independent agreement collateral to written contract, when.</p> <p>Where the contract of sale of land is evidenced by a title bond which does not contain the terms of the. collateral contract by which the vendor undertakes to do- certain work on the mill, and to put it in a certain good condition by a fixed day, this collateral contract may be proven by parol testimony. The rule excluding parol evidence does not apply to a case where only a part of the contract was in writing, nor does it exclude proof of an independent collateral contract with reference to the same subject-matter, where the statute of frauds does not require such contract to be in writing. [See Hines v. Willcox, 12 Pickle, 148, and the cases there cited and reviewed; Lewis v. Turnley, 13 Pickle, 197; Lyons v. Stills, 13 Pickle, 514.]</p> <p>Cited with approval: Leinau v. Smart, 11 Hum., 309, 310.</p>

<p>(S. C., 2 Leg. Rep., 81, 82. Questions about this same sale were before the court in 1878 in Maloney v. Bewley, 10 Heis., 642.)</p> <p>VENDOK’S IMPLIED LIEN. None in conveyance by gift, where personal obligation alone is taken for part of consideration.</p> <p>“Where a party conveys land to the wife and children of his son, by deed purporting- on its face to be a gift, and reserving- no lien, and takes the joint notes of the son and wife for an amount equal to the value of the land over and above the son’s share of the father’s estate, the transaction is not a gift of part of the land, and a sale as to. the remainder, but a gift as to the whole. This being so, the note is merely a personal obligation, and no implied vendor’s lien attaches to the land to secure its payment. [See Marshall v. Christmas, 3 Hum., 617; Eogg- v. Kogers, 2 Cold.. 295; Burson v. Dosser, 1 Heis., 759; Brevard v. Summar, 2 Heis., 105; Denny v. Steakly, 2 Heis., 159; Hines v. Perkins, 2 Heis., 401; Irvine v. Muse, 10 Heis., 479; Sehorn v. Mc-Whirter, 6 Bax., 312; Whitehurst v. Yandall, 7 Bax., 232; Sehorn v. MeWhirter, 8 Bax., 205; Hagar v. Hag-ar, 2 Tenn. Chy., 76; Bentley v. Jordan, 3 Lea, 356; Baxter v. Washburn, 8 Lea, 16; Hill v. McLean, 10 Lea, 113; Zwingle v. Wilkinsou, 10 Pickle, 246. Vendor’s implied lien is not lost where the purchase money note, by agreement, is made payable to a third person. Zwingle v. Wilkinson, 10 Pickle, 249-251, and cases cited. Vendor’s express lien may be waived by conduct. Butler v. Williams, 5 Heis., 241; Boyce v. Stanton, 15 Lea, 360.] _</p> <p>Cited with approval: Campbell v. Bald-win, 2 Hum., 248; Thompson v. Dawson, 3 Head, 384; Hagar v. Hagar, 2 Tenn. Chy., 76.</p>

<p>Appeal from the criminal court of Knox county.</p>

<p>Appeal from circuit court of Claiborne county.</p>

<p>NOTE. — This case was previously before the court in 6 I-Ieis., 465, on the appeal of the defendant, N. G. Taylor, on a question of amending his answer so as to set up claims which were' barred, which was refused him on the principle stated in syllabus 13 of this case and references. — ED.</p> <p>1. ADMINISTRATION. A sale of land to pay debts before debts and assets adjudged, void.</p> <p>A sale of a decedent’s land to pay his debts, made under a decree of court before the amount of the personalty is ascertained, and before the debts against the estate are adjudicated, is void. As where the decree of sale is pronounced upon the clerk and master’s report of the indebtedness of the estate, which is not confirmed by the court, but is expressly left open, in the decree of sale, to exceptions “on all sides,” so that nothing is determined as to the indebtedness or assets.</p> <p>Cited, distinguished, and approved: Gilchrist v. Cannon, 1 Cold., 588.</p> <p>8. SAME. Same. Void sale set aside in the cause, when.</p> <p>Such sale is void as to' a minor defendant, and, upon her death, is void as to her heir who had not before been a party to the suit, and such heir may, upon answer and cross-bill filed in the cause, have the sale so far as it affects the land descended to her, set aside as void.</p> <p>3. SAME. Same. Personal assets and debts must be ascertained in any proceeding1 to sell land to pay debts of deceased.</p> <p>Whether as a bill of conformity to settle up the trusts of an administration, or as a bill to sell land under the statute (act of 1887, Shannon’s Code, secs. 4000-4003), or as an insolvent bill, there can be no decree for the sale of the land descended without showing the necessity for it; in the ease of a bill of conformity to settle the administration in chan-eery, by first ascertaining tbe amount of personal assets, and the amount of the debts due, so' that it can be clearly seen that the personal estate (the primary fund for this purpose) is insufficient for the purpose, and how much land shall be sold to meet the deficiency. [See notes. 21, 16, 6 under sec. 4003 of the Code.]</p> <p>4. CHANCERY PLEADING AND PRACTICE. Amended bill incorporates itself into original bill, making one bill.</p> <p>The original bill and amended bill must be treated as one bill — that is, that the latter incorporates itself into the formal-, and so far as it is different from it, modifies it, by the addition of such modifications, and to the extent of the new matter added. [See notes 5 and 13 under sec. 6145 of the Code.]</p> <p>5. SAME. How a minor is made a defendant, to a bill.</p> <p>A minor cannot be made a party to a bill without, in addition to naming him as such in the bill, having process served upon him, and defense made by a guardian or guardian ad litem appointed for him. [See notes under sec. 4113 of the Code.]</p> <p>6. SAME. Amended bill recognizing creditors as parties, not recognizing the justness of their claims.</p> <p>Where the administrator, by his amended bill, treats the creditors who had filed their claims as being before the court, they must, so far as he is concerned, be recognized as parties to the suit and to the amended bill; but this is no recognition of the correctness of their claims ag-ainst the estate, especially where it is expressly stated “they will be materially reduced upon exceptions to be taken,” and the right to do this “on all sides” is expressly reserved by the decree granting leave to file the amended bill, upon the clerk and master’s unconfirmed report of indebtedness.</p> <p>7. SAME. Trustee bill to administer decedent’s estate changed by amended bill to insolvent bill. Insolvency suggested to chancery court.</p> <p>An original bill filed by an administrator as a bill by a trustee to settle up and administer his intestate’s estate, may, by an amended bill suggesting the insolvency of the estate to the chancery court instead of the county court, be changed to an insolvent bill for the administration of an insolvent estate under the statute.</p> <p>8. SAME. How creditor becomes party to an administration bilJ, and establishes his claim.</p> <p>Whether the bill be by the administrator as a bill by a trustee to settle up and administer his intestate’s estate, or whether an insolvent bill under the statute to wind up the estate, a creditor must, if it is not waived by the parties, present his statement of facts on which his claim rests, sworn to, showing- the ox-ig-in and character of the same, or a petition embodying the same thing- substantially, ac,-. companied by the evidences of the claim, as notes or bills of exchange, or other evidence must be made and introduced as proof of the claim if objected to. or contested. If tie creditor is made a party, he can set up his claim in his answer; if not a party, he must become such by petition setting up his claim. [See notes under sec. 4116 of the Code.]</p> <p>Cited with approval: 2 Dan. Ch. PI. and Pr. (3d Am. ed.), p. 1205 et seq. [5th Am. ed., pp. 1205, 1209-1214]; Reid v. Huff, 9 Hum., 363; Campbell v. Hancock, 7 Hum., 76; Marley v. Cummings, 5 Sneed, 481, 482.</p> <p>Cited and construed: Code (1858), secs. 2363, 2373; Shannon’s Code, secs. 4103, 4113; act of 1827 [Shannon’s Code, secs. 4000-4003],</p> <p>9. SAME. ADMINISTRATION. Piling claim to prevent bar;' and how established.</p> <p>Where a creditor presents his claim t-o the clerk and master, and applies to become a party, to save the operation of the statute of limitations, the clerk and master should enter on the rule docket the fact of such presentation and application, and show thereon that such creditor is thus made a party to the suit, with the date thereof. Such party must then file a statement or petition sworn to, giving the origin and nature of his claim, and prove his demand, if eon-tested. By complying with this statute the creditor is only made a party to prove his demand, and must file the statement or petition as above shown, and establish his claim under it. The evidence supporting the claim should be reduced to writing-, and filed by the clerk with the papers in the cause. [See note 4 under sec. 4116 of the Code.]</p> <p>Cited and construed: Code (1858), sec. 2378; Shannon’s Code, sec. 4118.</p> <p>10. SAME. Administrator binds personal assets by waiving exceptions to claims.</p> <p>Where the administrator in an insolvent bill to administer the estate in the chancery court fails to plead the statute of limitations in his favor as to claims, or waives exceptions to claims, which, in consequence thereof, are allowed, he cannot except to their allowance. They are thus proved as to him, and must be paid out. of the personal assets of the estate; for he is responsible to those entitled for his failure to plead the statute in his favor in a proper case, or for fraudulently admitting or paying claims not due. [See Code, sec. 4012, note 25; sec. 4481.]</p> <p>11. SAME. Heir not bound by administrator, nor by suit unless a party to it; decree set aside by cross-bill.</p> <p>But the heirs are not bound by the action of the administrator, nor even by a judgment against him, so as to affect the real estate descended to him (the heir); and where in an insolvent suit to sell land and pay debts, an heir is not made a party, the proceedings and decrees of the court allowing claims, and selling- the land, are not binding on him, nor after his death, upon his heir, who, then becoming a party, may by answer contest the claims as though no steps had been taken in regard to them, and, by answer as cross-bill, may have the sales of the land set aside, because void as to him. [See note 22 under sec. 4003 of the Code; note 9 under sec. 4046.]</p> <p>Cited with approval: Peck v. Wheaton, M. & Y., 353, 358-360; Sneed v. Mayfield, Cooke, 60; Gilman v. Tisdale, X Yea-., 288; Anderson v. Clark, 2 Swan, 160; notes to T. & S. Code, sec. 2280.</p> <p>12. SAME. Petition showing claim barred not allowed to be filed to make creditor party to suit.</p> <p>Where the creditors of a decedent’s estate failed to present and prove their claims in an insolvent proceeding, as indicated in syllabi 8 and 9, but presented their petitions at the hearing- of the cause, when the claims appeared to be barred by the statutes of limitations, it was proper for the court to refuse to allow the petitions to be filed. [See notes under sec. 4014 of the Code.]</p> <p>Cited and construed: Act of 1715 [Shannon’s Code, secs. 4014, 4483].</p> <p>13. STATUTE OE LIMITATIONS. Amendments of suits do not relate back as to, so as to save bar of.</p> <p>Amendments of suits, so far as the statute of limitations is concerned, only take effect from the time the amendment, is made, and do not relate back to the commencement of the suit. [See notes 11-18 under sec. 4587 of the Code.]</p> <p>14. SAME. Heirs may plead where administrator fails to do- so. when.</p> <p>Where the administrator fails to plead the statute of limitations of six years, the heir, when his land is sought to be subjected, may make the same defense the administrator might have made by pleading- the statute of six years, as well as the statute of seven years. [See note 9 under sec. 4014 of the Code; notes 25, 26 under sec. 4012.]</p> <p>Cited with approval: Peck v. Wheaton, M. & Y., 360; Woodfin v. Anderson, 2 Tenn. Chy., 339, and citations.</p> <p>15. CHANCERY PRACTICE. Void sale set aside, with account for purchase money, rents, and improvements.</p> <p>Where for the reasons stated in syllabus 2 a sale of land is set aside as void, the repayment of the purchase money will be decreed, with an account of rents, with allowance impermanent improvements so far as they enhance the value of the land. Such decree will not be disturbed by the supreme court where the purchaser has not appealed.</p> <p>16. SAME. Gold and silver coin not presumed to be different from currency.</p> <p>Where a note ag-ainst the decedent’s estate payable in gold or silver coin is allowed for the nominal amount in dollars and cents, an exception by the ereditoa* claiming the value of the coin, without submitting any evidence as to its value, or that it was different from currency, could not prove itself, nor could the court take judicial knowledge of the facts, and said exception was properly disallowed.</p>

<p>Appeal from tbe chancery court of Greene county.</p>

<p>1. CRIMINAL LAW. Petit larceny a felony. Disqualification to give evidence.</p> <p>A person convicted and sentenced for petit larceny is infamous, and incompetent as a witness, though the offense was not punishable by confinement in the penitentiary, but by imprisonment in the county jail or county workhouse only, and though, he was not rendered infamous and disqualified to give evidence in the judgment of the court.</p> <p>Cited with approval: 2 Rus. on Cr., 974; 1 Wh. Am. C. L., sec. 760; 1 Bish. Cr. L., sec. 743 [7th ed., sec. 972].</p> <p>Cited and construed: Code (1858), secs. 3812, 5226; Shannon’s Code, sees. 5595, 7199; act of 1875, ch. 84 (repealed by act of 1877, ch. 65).</p> <p>2. SAME. Accomplice. Evidence of, and its weight.</p> <p>Though an accomplice is a competent witness, still the accused should not be convicted of any felony upon the sole and uncorroborated testimony of an accomplice, and the judge should so advise the jury.</p> <p>Cited with approval: 1 Gr. Ev., secs. 380, 381.</p>

<p>Appeal from the circuit court of Claiborne county.</p>

<p>1. CRIMINAL LAW. Ignored indictment. Judgment ag-ainst state for costs reviewed by appeal or writ of error only.</p> <p>Where tin indictment is ignored by the g-rand jury, and judgment is rendered against the state for the costs including that of the witnesses attending in obedience to summons in pursuance, of an order indorsed on the indictment, a motion will not lie at the next term for judgment against the county for these costs. If such judgment against the state is erroneous, it can only be reviewed by the supreme court upon appeal or writ of error, and it cannot be reviewed upon an appeal from the judgment on such motion refusing- to tax the county with the costs. [Costs upon an ig-nored indictment must be paid by the county now, and not the state. Code, secs. 7619-7622, and notes; also note 1 under sec. 7629.]</p> <p>2. COMPTROLLER. Bound by the judgments of the courts.</p> <p>The comptroller has no jurisdiction to revise, reverse, or vacate the judgments, orders, or decrees of the courts established by the law of the land, or to disregard or disobey their mandates given in the exercise of their lawful jurisdictions; but his observance and obedience may be compelled by mandamus. [See Code, sec. 7594, prescribing the powers and duties of the comptroller as to bills of costs ag-ainst the state as enacted since this decision.]</p>

<p>INJUNCTION. Against suit at law; on condition of confession of judgment. Without condition, decree is res adjudicaba against defendant at law.</p> <p>An injunction to stay proceedings in an action at law, applied for by the defendant therein, should be granted only on condition of confession of judgment by him in such suit at law. But where the injunction was granted •vyithout such condition or requirement annexed, and the injunction suit was finally dismissed, the plaintiff in the action at law may introduce into his suit at law the record and final decree in the injunction suit as res adjudicata of the questions therein involved, and thus prevent the defendant from re-litigating these questions further in the suit at law. [See Mathews v. Douglass, Cooke, 136; Hendrick v. Dallum, i Tenn., 427; Cocke v. Dotson, 1 Tenn., 169; Code, sec. 4835, and notes.]</p>

<p>CRIMINAL LAW. Law as to housebreaking' not changed by-change of law as to larceny.</p> <p>The breaking into a house with intent to steal less than thirty dollars is a felony, and the offense is not reduced to a misdemeanor because the legislature has reduced the offense of stealing less than thirty dollars to, a misdemeanor. There was no purpose to change the law in regard to housebreaking. [The act construed in this case is that of 1875, ch. 84, which was repealed by the act of 1877, ch. 65. While it is stated in the opinion that the question decided in this case has been several times so- decided, the reporter has been able to find but one case on the question, the case of Stevenson v. State, 5 Bax., 681, in which there' is only a dictum so holding, the decision being put upon the ground that the indictment charg-ed an intent to commit a felony.J</p>

<p>I. COUNTIES. Bower to have register’s records transcribed, when.</p> <p>By statutes (Shannon’s Code, secs. 3770-3786), before the act of 1877, ch. 83 (Shannon’s Code, secs. 3787-3791), the counties were authorized to contract either with the register or any other person for the transcription of the records of the register’s office when they were likely to become useless from use, regardless of what caused such condition of the records.</p> <p>2. SAME. Corporations with powers of preservation, and representatives.</p> <p>Counties are public corporations invested by positive law with the express powers essential to their existence, and by implication, with the varied attributes necessary to the preservation of the corporate life, and the justices of each county in the county court assembled are the representatives thereof authorized to act for it.</p> <p>Cited with approval: 1 Yer., 387; 1 Sneed, 637; Code (1858), secs. 402, 403; Shannon’s Code, secs. 493, 494.</p> <p>3. SAME. Clothed with police powers.</p> <p>Counties, like states, are clothed with certain police powers, independent of legislation, -which, may be asserted, as their exig-encies may demand, for public purposes, within the scope and compass of their organization. The principle, upon which these police powers are exercised is the safety and welfare of the people, a sort of jus excelsior that cannot wait upon delay, a necessity which makes that lawful which seemeth unlawful, and that even overcomes the law and defends what it compels; a law of a particular time and place.</p> <p>Cited with approval: 8 Coke, 68; Hale, 3?. C., 54; Hobart, 144.</p> <p>4. SAME. Act as other corporations by representatives, or their ag-ents, committees, etc.</p> <p>The justices of the county in county court assembled may appoint a committee and delegate to it the power to malee a binding contract on the county pertaining to any matter about which they themselves as such court might make a binding contract on behalf of the county. A county may act by ag-ents and committees, as other corporations. The contract of a committee: for the transcription of the records of the register’s office is binding on the county whose justices in county court assembled appointed the committee for such purpose.</p> <p>Cited with approval: Smiley v. Chattanooga, 6 Heis., 604; Railroad v. Davidson Co., 1 Sneed, 687; 1 Dil. Mun. Cor. (3d ed.), sec. 450; Fanning' v. Gregoire, 16 How., 524; Abbey v. Billups, 35 Miss., 618; Alton v. Mulledy, 21 Ill., 76; Clark v. Washington, 12 Wheat., 40; Hamilton v. Railroad, 9 Ind.. 359; Story’s Ag\, 52; Selma v. Mullen, 46 Ala., 411.</p> <p>5. SAME. Same. Subsequent statutes impairing' contracts inoperative to that extent.</p> <p>Where a committee, appointed by the justices oí the county-in county court assembled, for that purpose, entered into a mutually binding' contract with a person other than the county register, under the law as it existed before the act of 187V, ch. 83, embraced in Shannon’s Code, secs. 3787-3791, for the transcription of the records of the register's office to preserve them for use, both parties had vested rights in the contract, of which they could not be deprived by the said statute subsequently enacted, for, as it concerned this contract, it was utterly inoperative, nugatory, and void, because it impaired and abrogated said contract, which is prohibited by the constitution.</p> <p>Cited with approval: Con. of U. S., art. 1, sec. 10; con. of Tenn., art. 1, sec. SO; Cooley Con. Lim., 274, S75.</p> <p>6. CONSTITUTIONALITY OE LAWS. Not passed upon, when.</p> <p>A statute will not be- declared unconstitutional by the. courts, unless it becomes absolutely indispensable to the administration of justice; and though the constitutionality of a statute is legitimately presented by the record, yet if the judgment of the court may satisfactorily repose upon any other question which may determine the case, the constitutional question will be waived, and will only be adjudged when it is presented in a case which cannot otherwise be disposed of, and in which a decision upon it becomes absolutely necessary. The constitutional question was waived in this case, though it was intimated that the act was obnoxious.</p> <p>Cited with approval: Townsend v. Shipp, Cooke, 294; Hoover v. Wood, 9 Ind., 287; ex parte Randolph, 2 Brock., 447; Erees v. Eord, 6 N. Y., 177; White v. Scott, 4 Barb., 56; Railroad v. State, 29 Ala., 573; Cooley’s Con. Lim., 162, 163 [6th ed., pp. 196, 197].</p> <p>7. MANDAMUS. To compel county register to surrender records to transcriber, when.</p> <p>Where under the statutes (Shannon’s Code, secs. 3770-3786), before the act of 1877, ch. 83 (Shannon’s Code, secs. 3787-3791), a county made a mutually binding contract with a person other than the county register for the transcription of the records of the register’s office, to preserve them for use, and the register'refused to deliver the records to said transcriber, a mandamus was awarded to compel the register to surrender said records to such transcriber.</p>

<p>CONSTITUTIONAL LAW. Private way. Statute providing for, is unconstitutional and void.</p> <p>The statute (act of 1868-69, ch. 14, embraced in Shannon’s Code, sec. 1634) making it the duty of the county court to open a private way for the owner of lands over the lands of others surrounding or inclosing his lands, and though providing for compensation, is repugnant to the constitution, and void. [See Con., art. 1, secs. 8, 81, and notes, and note under sec. 1634 of the Code; notes 2-4, 6 under sec. 1844; note under sec. 3435.]</p> <p>Cited with approval: Clack v. White, 2 Swan, 540, 547-550; Eice v. Alley, 1 Sneed, 51,' 57, 58; Memphis Freight Co-, v. Mayor and Aldermen of Memphis, 4 Cold., 419, 425. [See also Harding v. Goodlett, 3 Yer., 40, 51-54; Anderson v. Tur-beville, 6 Cold., 150, 157; Eeynolds v. Baker, 6 Cold., 221, 228, 229; Brown v. Berry, 6 Cold., 98; Wally v. Kennedy, 2-Yer., 554; Stratton v. Morris, 5 Pickle, 535.]</p>

<p>CRIMINAL LAW. INDICTMENT. Not had for duplicity because charging two offenses in same count, when.</p> <p>An indictment ag-ainst a road overseer charging in one count that the road was allowed to he obstructed by stumps, trees, etc., was not properly mile-marked and indexed, was not provided with foot logs or bridges or causeways, is good, and not had for duplicity where these duties are prescribed by the same statute, are of the same character, and the failure to perform any one or all of them are punishable by the same penalty. [See State v. Ailey, 3 Heis., 8; State v. Irvine, 3 Heis., 155; State v. Callicut, 1 Lea, 714; State v. Eerris, 3 Lea, 706- see note 1 under sec. 6450 of the Code; note 3 under sec. 6792.]</p> <p>Cited with approval: State v. Jopling, 10 Hum., 418.</p> <p>Cited and distinguished: Greenlow v. State, 4 Hum., 26.</p> <p>Cited and construed: Acts 1804, ch. 1, secs. 4, 9; 1819, ch. 26, secs. 4, 5; [Code (1858), secs. 1209, 1216; see Shannon’s Code, secs. 1673, 1678.]</p>

<p>CRIMINAL LAW PRACTICE. Lost indictment not supplied on affidavit oí attorney-general.</p> <p>A lost indictment íor a misdemeanor even cannot be supplied on affidavit of the attorney-general tendering a copy. This cannot be done except on the memory of the judge — the record showing explicitly and with certainty it was so done. The propriety of this holding is doubted as an original question, but is adhered to as a precedent establishing such a rule.</p> <p>Cited and doubted, but followed: State v. Harrison, 10 Yer., 548.</p>

<p>Appeal from tbe chancery court of "Washington county.</p>

<p>Appeal from the chancery court of Greene county.</p>

<p>1. CHAMPEETY AND MAINTENANCE. Interrogatories cannot be exhibited after return term of process executed.</p> <p>A petition, accompanied with interrogatories, alleging cham-perty and maintenance against the plaintiff, cannot be exhibited at a term subsequent to that at which the process in such suit is returnable, if it has been served or executed.</p> <p>Cited and construed: Code (1858), sec. 1784, subsec. 2; Shannon’s Code, sec. 3179, subsec. 2.</p> <p>2. SAME. Interrogatories to defendant filing cross-bill.</p> <p>It seems that interrogatories, for the purpose of detecting champerty and maintenance, cannot be exhibited to a defendant who files a cross-bill as a defensive pleading seeking- affirmative relief, for the reason, it seems, that such charge cannot be predicated of such a proceeding.</p>

<p>1. EXECUTION SALES. Caveat emptor applies. No> recovery by redeeming creditor for failure of title, when.</p> <p>The rule of caveat emptor as to purchasers at execution sales of lands applies to redemptions made by a creditor from the execution purchaser or from a previously redeeming creditor, and the redeeming creditor has no right to recover back from the original purchaser or the previously redeeming- creditor, from whichever- he redeemed, the redemption money paid by him, whether there was failure of title because thSre was no- title in the debtor, or because the proceedings were so- defective as not to pass his title, where there were valid and subsisting judgments upon which the sales and previous redemptions wex-e based, and where there was no fraud or misrepresentation. [See note 7 under sec. 4785 of the Code.]</p> <p>Cited with approval: Whitmore v. Park, 3 Hum., 95; Reid v. House, 2 Hum., 576; Bostick v. Winton, 1 Sneed, 534. [See Bumpas v. Greg-ory, 8 Yer., 46, 58; Kimbroug-h v. Benton, 3 Hum., 117 (see now Code, secs. 4719-4726); Hayes v. Cartwright, 6 Lea, 139-145; Evans v. Belmont Land Co., 8 Pickle, 360, 361.]</p> <p>Cited with approval, and distinguished: Henderson v. Overton, 2 Yer., 394; Keeling v. Heard, 3 Head, 592. [See also Henry v. Keys, 5 Sneed, 488; Smith v. Hinson, 4 Heis., 250; Anderson v. Lyons, 2 Tenn. Chy., 61; Neal v. Read, 7 Bax., 336-339.]</p> <p>Cited and construed: Code (1858), sec. 2996; Shannon’s Code, sec. 4726.</p> <p>2. SAME. Same. Satisfaction of judgment set aside, and re-vivor of judgments for last redeeming creditor.</p> <p>In such case where the title has failed, the last redeeming creditor is entitled to have the Satisfaction of his own judg- ' ment ag-ainst the debtor set aside, as well as to have the judgments upon which the original sale was made, and the judgments of all previously redeeming creditors, against the common debtor as whose land was so sold and redeemed, set aside and have all the judgments other than his own revived for his benefit as against the debtor. [See Code, secs. 4719-4726, and notes.]</p>

<p>Appeal in error by defendant from the circuit #ourt of Greene county.</p>

<p>1. PRINCIPAL AND AGENT. Agent liable for credit extended to insolvent persons, when and when not.</p> <p>The merchant and manager of a mercantile firm, who is also the purchasing- agent, general bookkeeper, and superintendent of sales for the same, having- general authority to extend credit to the customers of the firm, cannot be held as insurer of their solvency, and if forbidden to sell to insolvent persons, then it must be shown that he was guilty of bad faith in selling to persons notoriously insolvent at the time of the sale, in order to hold him responsible for such debts thus created. (Pp. 523, 525, 526, 528-530.)</p> <p>2. SAME. Agent not liable for losses from overpurchases, when.</p> <p>If such ag-ent incurs debts for the firm in excess of his authority for goods purchased, of which the firm knew and ratified, and got the benefit of the merchandise thus purchased, it would be unconscionable to hold the agent liable to the firm for any loss in consequence of such purchases. (Pp. 523; 526, 529, 530.) •</p> <p>3. SAME. Acts of agent ratified by suffering a repetition after knowledge thereof.</p> <p>If the members of the firm had knowledge of the sales on a credit to the insolvent parties, and of the overpurchases of merchandise by the said agent, and still suffered them to go on, then the negligence of the agent is condoned by the laches of the principals. (Pp. 528, 529.)</p> <p>4. CHANCERY PRACTICE. Order of reference for account too general and ambiguous, example of.</p> <p>A decree which directs an account of the amount of the firm assets lost on account of such agent’s violation of instructions, and the well known wishes of the firm, and also on account of his negligence, and other wrongful acts in the management of the business of the firm; and the amount lost to the firm by reason of the said agent selling- goods of the firm to persons not good and solvent in law, is too speculative, general, and ambiguous. (P. 528.)</p> <p>5. PARTNERSHIP. Partner may sell his interest; rights of his purchaser.</p> <p>One partner cannot, 'without the consent of the other members of the firm, introduce a stranger into the firm, biit a partner is not precluded from selling his interest in the firm, unless a sale is a violation of the good faith imposed upon him by the articles of partnership and by the law itself; and if he does sell bona fide, the purchaser has all the rights of the party selling out in the surplus profits of the concern. (Pp. 530, 531.)</p> <p>Cited with approval: Collyer on Part., 94; Pars. Cont., 133: Pars. Part., 168, 169; Mathewson v. Clark, 6 How. (47 U. S.). 139 [13 L. ed., 377]; Lind. Part., 483 et seq.</p> <p>6. SAME. Same. Contract indemnifying a partner selling out. and not released by other members, is valid.</p> <p>■Where such sale is made to the business manager of the firm, who continues in that relationship to the firm, and the sale is recognized by the other partners, except that the partner selling out is still held by them as bound for his proportion of the losses as a partner, and in consequence of such failure to release him from liability-as partner, the purchaser of his interest delivered to him a promissory note on a third party as indemnity against his loss, such indemnity contract and security is valid, and cannot be repudiated by such purchaser, nor the indemnity appropriated by the firm as part of the firm assets. (Pp. 533, 524, 526, 529-532.)</p> <p>7. BILLS AND NOTES. Secured by mortgage renewed, continue to be so secured.</p> <p>'The execution of a new note for; an old one, secured by a mortgag-e, does not amount to a waiver or abandonment of the security unless such be shown to be the intention o£ the parties. If a note be secured by a mortgage, and the mortgag-eor at its maturity give a new note which is regarded by him and the mortgagee as a renewal of the old note, and even repeat this many times, still the original debt is not paid, so as to discharge or affect the mortgage, nor will that be discharged unless by payment in money of the first note with interest, or some other payment which the parties agree upon as satisfying- the mortgage. [A mortgage to indemnify sureties on a guardian bond inures to the benefit of a renewal bond. Bobbitt v. Elowers, 1 Swan, 512. The same rule applies to renewal of purchase money lien notes on land. Cleveland v. Martin, 2 Head, 131; Burson v. Dosser, 1 Heis., 759; Mulherrin v. Hill, 5 Heis., 59; Bentley v. Jordan, 3 Lea, 360; Bank v. Bradley, 15 Lea, 290. But see Bradshaw v. Aran Valkenburg, 13 Pickle, 316.] (P. 533.)</p> <p>Cited with approval: Lover v. Bessenger, 9 Bax., 393; 2 Pars. Bills and Notes, 150, 154.</p> <p>8. SAME. Same- Same rule applies where some of several . creditors secured by deed of trust take renewal notes.</p> <p>So where a deed of trust is made to secure several creditors, and some of them suffer a renewal of their notes with the express understanding' that the claims were to continue a charge upon the property conveyed by the trust, they do not waive their rights under the trust deed, and they cannot be excluded from participating in the property or fund. [See last syllabus, citations, and notes.] Pp. 532, 533.)</p>

<p>CRIMINAL LAW. Indictment for perjury must aver facts showing- materiality of issue about which it was committed.</p> <p>An indictment for perjury, in addition to> the other requisites, must show by a statement of facts what thé issue was, and tliat it was material. It is not sufficient to aver that K became material in the suit to know a certain fact in respect to which the perjury was committed, for this is only a conclusion of law, the mere opinion of the pleader. There should be such a summary statement of the matter in issue in the case that the court cam see the materiality of the matter sworn to. [See Ross v. State, ante or post p. -, and cases cited under sec. 7093 of the Code.]</p> <p>Cited and construed: Code (1858), secs. 5129, 5130; Shannon’s Code, secs. 7092, 7093.</p>

<p>1. CRIMINAL LAW. Oath, of officer in charge of respited jury.</p> <p>In criminal cases where the jury is respited, and placed under the care of an officer, he should not only be sworn to keep them separate and apart from all other, citizens, but to prevent any other citizens from talking- to them, and not lo talk to them himself about the case, except to ask them it they have agreed. This is necessary to an impartial trial, to which every defendant is entitled.</p> <p>2 SAME. Transcript of record. No pay for unnecessary papers and orders, when.</p> <p>Where the subpoenas and indorsements thereon, the orders remanding the prisoner to jail, and the order removing him from the jail are copied in the transcx-ipt of the record, when no question is raised in regard to- the same, no compensation will be allowed the clerk for such portion of the transcript.</p>

<p>.1. GUARDIAN AND WARD. Timst character of note proven by evidence aliunde.</p> <p>Where the guardian oí minors receives from their former guardian a note payable to himself individually, and made by a third party, in satisfaction of his indebtedness to them as such former guardian, and there is nothing- in the note or its assignment to stamp it as trust property, evidence may be received to- prove these facts and the trust character of the note.</p> <p>2. SAME. Same. Conversion with knowledge by purchasers, or as collateral security.</p> <p>A g-uardian has no right to sell and convert such trust property note to his individual use, and purchasers from him for value with knowledge of such trust character, or those receiving it as collateral security, without notice, do not hold it as purchasers for value - without notice, and the wards may, hy suit by next friend, follow the note as trust property illegally sold and transferred by their g-uardian.</p> <p>3. SAME. Same. Same. Pro confesso as evidence against other-defendants, when.</p> <p>Where the guardian assigns such note to one who assigns to another, and the latter assigns it as collateral security, and the wards, by next friend, file a bill against the maker, the guardian, and all the said assignees, charging- the assignments to have been taken with knowledge of the trust character of the note, and an order pro confesso, is taken against all the defendants except those receiving- it as collateral security, which fact they admit, but deny knowledge of its trust character, the judgment pro confesso settles the fact that the first two assignees took with knowledge, and the answer of the third assignees shows that they only received it as collateral security.</p> <p>4. SAME. Same. Same. Judgment for wards ag-ainst maker.</p> <p>In such case, the wards, by next friend, may, by bill, enjoin the prosecution of the suit for the collection of the note by the assignees of it as collateral security, and recover judgment against the maker, all proper parties being made defendants to the bill.</p>

<p>(S. C., 1 Leg. Rep., 324-326.)</p> <p>1. BIGAMY. Attempt to commit, a felony.</p> <p>Where a married man procures the consent of a woman to marry him, obtains license for the marriage, and procures a person authorized by law to perform the ceremony, and goes to her, with the license and such authorized person, with the intent to marry her, which' is prevented by certain developments, he is guilty of an attempt to commit bigamy, an offense indictable and punishable under' the statute [Code, sec. 6471] providing punishment for an attempt to commit a felony, where the punishment is not otherwise prescribed. [See notes under sec. 6471 of the Code.]</p> <p>Cited with approval: 1 Bish. Cr. L., secs. 365, 366, 689, 690; 1 Buss, on Cr., 46, 47; Code (1858), sec. 4630; Shannon’s Code, sec. 6471.</p> <p>2. ABGUENDO. Offenses against the person and property.</p> <p>Such crimes as are injurious to the person, as contradis-tinguished from property, are offenses against the person. [This distinction is exploded now, and an attempt to commit any felony, where the punishment is not otherwise' prescribed, is punishable under sec. 6471 of the Code. See notes under said section.]</p> <p>Cited with approval: Jones v. State, Quarles’ Digest, 61; Code (1858), secs. 4630, 4836-4843; Shannon’s Code, secs. 6471, 6757-6766.</p>

<p>(S. C., 1 Leg. Rep., 363, 364.)</p> <p>1. SUPERSEDEAS TO AN INTERLOCUTORY DECREE. Practice.</p> <p>The petition for supersedeas to- an interlocutory decree or order, under secs. 3933 and 3934 of the Code [Shannon’s Code, secs. 5737 and 5738, and notes], should be accompanied , by a transcript of the record, or at least so- much thereof as will show clearly the error complained of.</p> <p>2. SAME. When granted.</p> <p>Where an interlocutory 'decree orders property to be sold in advance of the final hearing or determination adjudicating the rights of the parties, it may be superseded by the supreme court, where the execution of such order would deprive the party of his property. [See Baird v. Turnpike, 1 Lea, 397; Downing v. Dunlap, 9 Pickle, 221, both citing this case; and see notes under sec. 5738 of the Code.]</p> <p>3. INFERIOR COURT. Binding decision.</p> <p>Until a previous decision of the supreme court is reviewed and reversed by that court, it is error in the court below to disregard it.</p> <p>4.' MORTGAGED PROPERTY. Exemption of.</p> <p>The rights of a mortgagor to reclaim, before sale, exempted property included in the mortgage, discussed. [See notes 25, 47, and 48 under sec. 3794 of the Code. Waiver of benefit of exemption laws is contrary to public policy, and is void. Mills v. Bennett, 10 Pickle, 651.]</p> <p>Case cited: Denny v. White, 2 Cold., 283.</p>

<p>(S. C., 1 Leg. Rep., 368, 369.)</p> <p>WILLS. Executor’s power to sell land, etc.</p> <p>Whether an executor is to distribute the fund need not be. found expressed in direct terms on the face, of the will, but is to be arrived at from the whole scope and context of the will, the fairly inferred intention of the testator; in other words, such a power to. sell land on the part of the executor ínay be g-athered from the will by necessary implication, as well as by express designation.</p> <p>Cited with approval: 4 Kent’s Com., 326; Mealdng-s v. Cromwell, 1 Selden (N. Y. Rep.), 139, 140.</p>

<p>(S. C., 1 Leg. Rep., 371-374, and 3 Leg. Rep., 278-282.)</p> <p>CONSTITUTION. Act embracing subject not in title, or more iban one subject unconstitutional.</p> <p>An act entitled “an act to define tbe rights and duties and regulate the liabilities of warehousemen and factors,” which makes it a felony to fail to comply with contracts made by persons for the delivery of produce, merchandise, or property to parties advancing on the same, is unconstitutional, because the bill embraces more than one subject, and a subject not in the title. [See notes under sec. 17 of art. 2 of the Constitution.]</p> <p>Cited with approval: Constitution, art. 2, sec. 17; Cooley Const. Lim. (6th ed.), 169, 172, 173; Ind. Cen. R. R. Co. v. Rotts, 7 Ind., 681.</p>

<p>(S. C., 1 Leg. Rep., 374-378.)</p> <p>CHARTER. A contract not to be impaired; turnpike cannot be deprived of its tolls; police power of the state.</p> <p>A charter which is passed, accepted, and an organization perfected under it, is a contract, and cannot be impaired by the state granting it. The right g-ranted by charter to a turnpike company to charge certain toll rates, cannot be taken away from it by a subsequent legislative act exempting persons going- to or returning from grist mills, etc., from the payment of tolls. The police power of the state cannot be invoked to malee such subsequent exemption effective, because to do so would not be an act of regulation, but a deprivation of rights.</p> <p>Cited with approval: Cooley’s Const. Lim., 572, 573, 577 (6th ed., pages 704, 706, 710).</p> <p>Cited a<ncl construed: Code (185S), sees. 1434, 1436, 1437 (Shannon’s Code¿ secs. 2454, 2456-2461, 2463); acts oí 1849-50, ch. 72, sec. 18; acts of 1836.</p>

<p>(S. C., 2 Leg. Rep., 21, 22.)</p> <p>APPEALS. Time within which bond for .appeal is to. be executed.</p> <p>The time for executing a bond for an appeal, given under the act of 1871, ch. 59, must be computed from the adjournment of the court, and not from the day on which the judgment is rendered. [See now Code, secs. 4898, 4899, and notes.]</p>

<p>(S. C., 2 Leg. Rep., 24.)</p> <p>COMMISSIONS ON EXECUTION. Sheriff not entitled to, when.</p> <p>A sheriff is not entitled to commissions where he has advertised land for sale by virtue of an execution, which sale was rendered unnecessary by payment of the debt to plaintiff by defendant. [But by the act of 1887, ch. 344 (Shannon’s Code, sec. 6406), the plaintiff is liable to> the officer for his commission, when he (the plaintiff) receives any or all of the judgment after the execution has gone into the hands of the officer.]</p>

<p>(S. C., 2 Leg. Rep., 24, 25.)</p> <p>INDICTMENT. Ear receiving- stolen property must aver name of owner.</p> <p>In an indictment for receiving stolen property the ownership ■should be averred, unless unknown, and then this fact should be stated. [See Code, secs. 6549, 6550, and notes.]</p>

<p>(S. C., 2 Leg. Rep., 25.)</p> <p>SALE. Before fmai decree, when.</p> <p>Beal estate, in the hands of receiver, pendente lite, deteriorating- and depreciating in value, requiring funds to insure and guard it, and no one being obliged to advance such funds, and which must ultimately be sold, may be sold before final hearing. [Cited and approved in Stewart v. Love, 3 Lea, 375. On questions of receivership, see notes under sec. 6270 of the Code.]</p>

<p>(S. C., 2 Leg. Rep., 26-28.)</p> <p>MUNICIPAL CORPORATIONS. May malee sidewalks at expense of owners, when.</p> <p>The legislature has the constitutional power to confer upon a municipal corporation authority to make foot-pavements or sidewalks at the expense of the owners of lots, where they fail to do so within the time to be prescribed by its ordinances or by-laws. [See Code, sec. 1915, subsec. 7, and note.]</p> <p>Cited with approval: Mayor and Aldermen v. Maberry, 6 Hum., 368; Washington v. Mayor and Aldermen of Nashville, 1 Swan, 177.</p> <p>Cited, reviewed, and distinguished: Taylor, McBean & Co. v. Chandler et al., 9 ILeis., 349. [See Reelfoot Lake Levee District v. Dawson, 13 Pickle, 162-171.]</p> <p>Cited and construed: Acts of 1875, ch. 59, sec. 22.</p>

<p>(S. C., 2 Leg. Rep., 28-32, and 9 Bax., 546.)</p>

<p>(S. C., 2 Leg. Rep., 32.)</p> <p>LAND LAW. Grants on younger entry not vitiated by legislature.</p> <p>Where a party has obtained a grant, although on a younger entry, the legislature cannot revive the title of an older enteren, who< has permitted the time stipulated in which to procure the grant to expire, by an extension of the time in which he might perfect his title, and thus thke away from the younger enterer the title vested and perfected in him by the grant issued to him within the prescribed time. [See Sampson v. Taylor, 1 Sneed, 605; Blevins v. Crew, 3 Sneed, 152; Bullock v. Tipton, 2 Head, 408; Tipton v. Sanders, 2 Head, 691; Henegar v. Matthews, 4 Pickle, 132.]</p> <p>Cited with approval: Williamson v. Throop, 11 Hum., 265.</p> <p>Cited and construed: Acts 1839-40, ch. 12; 1841-42, eh. 15.</p>

<p>(S. C., 2 Leg. Rep., 42-45.)</p> <p>ASSIGNMENT OE AN ILLEGAL NOTE.</p> <p>A party purchasing property, and paying for it by assignment of a note indorsed “without recourse,” and which bears on its face the rate of interest not allowed by law, and which, consequently, cannot be enforced by law in our courts, cannot, in the absence of fraud, deceit, or other ground of like kind, be held liable, either on an implied warranty growing out of such a contract, or for. the original consideration. Where the note is gennine, and" not a forgery, the parties to it are competent to contract, and the like.</p> <p>Cited, reviewed, distinguished, and approved: Boyd v. Ander- . son, 1 Tenn., 437.</p> <p>Cited and approved: Byles on Bills and Notos, 252.</p>

<p>(S. C., 2 Leg. Rep., 47-51.)</p> <p>VENDOR’S LIEN. Release or assignment of, is frandnlent and void as to creditors, when.</p> <p>Graves made a deed to Eolwell, and retained a lien npon the face of the deed for the unpaid purchase money. This deed was registered, and a conveyance afterward by Eolwell to Graves’ daughter Florence, did not displace such lien m favor of Graves, nor did Florence’s will to her mother have that effect, but the lien in favor of Graves was valid and subsisting up to the time that he united with his wife and daughter in a deed of February, 1868, to the Sewanee Company, of the same property. Up to that time Graves had an interest in the whole property, by reason of his lien, which could have been reached by his creditors. Graves being still indebted a“t the time beyond his ability to pay, he unites with his daughter and wife in the conveyance to the Sewanee Company, he without consideration, and for the purpose of securing to his wife the proceeds of the transaction divested himself of all interest in, or lien npon said land to the prejudice of the rights of his creditors. It was a fraud upon his creditors thus to dispose of his rights and interests in the land thus conveyed — the fraud consisting in the renunciation of the lien in his favor, and the provision in the deed that the consideration should be paid to his wife. It is this lien that his creditors seek the benefit of, without asking to disturb the sale to the Sewanee Company. He had a beneficial interest in the thirty acres, of which he attempted to divest himself in favor of his wife, and his creditors are entitled to the benefit of such interest. [For fraudulent conveyances to defeat creditors and purchasers, see Code. sec. 3143, and notes.]</p>

<p>(S. C., 2 Leg. Rep., 52, 53.)</p> <p>STATUTE OF LIMITATION. Heir at law. Per curiam.</p> <p>It lias been repeatedly held that the statute of seven years, act of 1715 [Code, secs. 4483 and 4014], protects the heir at law, when his real estate is soug-ht to be reached for the ancestor’s debts, and there is no cause to- reconsider these decisions. [See notes under sec. 4014 of the Code. This case is cited and approved in Woolridg-e v. Page, 1 Lea, 141.]</p> <p>Cited: Davidson v. Evans, Administratrix, 2 Shannon’s Cases, 253.'</p>

<p>(S. C., 2 Leg. Rep., 69, 70.)</p> <p>1. SALE OF WIFE’S LAND. Purchase money received by husband. Good payment.</p> <p>Where a husband and wife join in a power of attorney to convey the wife’s land, and the purchase money is received by the husband, such is held to be a good payment. The statutes directing how the proceeds of the property of a married woman shall be paid to her, apply only to proceeds of sales by order of court, and not to sales by the parties themselves. See Code, secs. 4236, 5068, 5069, 5867, notes 5 and 6 under sec. 4236, and note 2 under sec. 4319.].</p> <p>2. EVIDENCE. Competency of witness waived by not excepting in lower court.</p> <p>Where no exceptions are taken in the court below as to the competency of witnesses, none can be taken in the supreme court.</p>

<p>(S. C., 2 Leg. Rep., 74, 75.)</p> <p>FRAUDULENT CONVEYANCE. Conversion of personalty into homestead is, when.</p> <p>A debtor cannot convert property which is subject to execution into a homestead, and hold same as exempt from his debts to which his converted property was subject. tt seems if he should buy a homestead with money he has on hand, that he might hold same as against his creditors. [For fraudulent conveyances, see Code, sec. 3143, and notes.]</p> <p>Cited with approval: Bump on F. Con., 268, 269. [See Wait Fraud. Con., sec. 47; Weaver v. Hawley, ante, p. 176.]</p>

<p>(Abstract of this ease was published in 2 Leg'. Rep., 78, 79.)</p> <p>1. FRAUD AND DECEIT. Action for, when; consideration not necessary.</p> <p>An action upon the case for fraud and deceit lies whenever a person is damaged thereby. There need be no consideration for a fraudulent promise where the action is not upon the contract but upon the tort.</p> <p>Cited with approval: Allison v. Tyson, 5 Hum., 450; Bond v. Hilton, Bush. (N. C.), 308; 1 Com. Dig., 230; Bagley v. Merritt, 3 Butch., 95; Paisley v. Freeman, 3 T. R., 51; 2 Smith’s L. C.; Upton v. Vail, 6 Johns. Rep., 183.</p> <p>'2. DESCRIPTION OF DEFENDANT AS PUBLIC OFFICER. Effect of.</p> <p>The allegations that defendant was register in bankruptcy, and that he falsely, and with intent to defraud, represented to plaintiff that a proceeding was commenced against a bankrupt, by plaintiff’s depositing a petition with defendant, as register, and that he undertook to file said petition, and failed to do so in time to give plaintiff the benefit of it, is merely a description of the defendant, by way of inducement, and the action does not depend on his duties as register, and is not intended to charge him in his official capacity, but the offense is complete, as in the case of any individual when loss results from the deceit.</p> <p>Cited: U. S. Rev. Stat., sec. 5129.</p>

<p>(S. C., 2 Leg. Rep., 105, 106.)</p> <p>LARCENY. Description of bank bills.</p> <p>In an indictment for stealing bank bills, it is a sufficient description to state their denomination, without stating- oC what bank they are the issue. [See notes under sec. 6541 of the Code.]</p> <p>Cited with approval: Pyland v. State, 4 Sneed, 359.</p>

<p>(S. C., 2 Leg. Rep., 203, 204.)</p> <p>CO-SURETIES. Contribution among, on guardian’s bond.</p> <p>A court of chancery cannot give a surety upon a guardian bond relief under the Code, sec. 3678 [Shannon’s Code, sec. 5448], asking contributions from co-sureties and sureties upon former bonds, unless he has' been compelled to make payment. They cannot be brought into court to malee contribution to an anticipated recovery against said surety. [See notes under sees. 5390 and 4265 of the Code.]</p> <p>Cited with approval: 1 Story Eq. Jur., sec. 492 et seq.</p> <p>Cited and construed: Code (1858), secs. 3678, 3625; Code (T. & S.), sec. 3625a; Shannon’s Code, secs. 5448, 5390; acts 1809, ch. 69; 1841-42, ch. 117 [Shannon’s Code, secs. 4265-4267, 4294.]</p>

<p>(S. C., 3 Leg. Rep., 282.)</p> <p>CRIMINAL PRACTICE.</p> <p>A plea in. abatement ten dering an issue of fact must be tried by a jury, unless a jury is waived. [The jury is now waived unless demanded as provided by law. See Code, sees. 4611-4616, and notes.]</p>

<p>(S. C., 3 Leg. Rep., 283-291.)</p> <p>1. EVIDENCE. Testimony of accomplice.</p> <p>It is usual and proper for the court, out of abundant caution, to admonish the jury, as was done in this case, not to convict upon the uncorroborated testimony of an accomplice; but the corroboration need not extend to the whole body of the testimony. (P. 598.)</p> <p>Cited with approval: 1 Greenl. Ev., p. 381; Coman v. Boswarth, 22 Pick., 397; Ros. Cr. Ev., 120.</p> <p>2. EVIDENCE. Res g-estae.</p> <p>Whatever was then and there said and done immediately before or after the transaction, which is inseparably identified with and calculated to explain it, may be properly classified as part of the res g-estae. The following testimony was held properly admitted as part of the res gestae: “After some firing, I don’t know how many shots, the deceased ran into the dining rbom. As he went through the door Joseph Braswell fired at him. He returned in a little time. As he came in, the Braswells went out, and a pistol or two fired out of doors. As he came in from the dining room he said: ‘Angie, I am shot. Teek and Jos. Braswell are the ones that shot me.’ When the deceased came in the door and told me he was shot, he said he was hurting. The defendants could have heard him. They were right about the door.” (Pp. 599-601.)</p> <p>Cited with approval: Quarles’ Dig., 887; 2 Yer., 110; 1 Greenl. Ev., p. 456, note, p. 459; Parkhurst v. Lawton, 2 Swumerst, 216.</p> <p>Cited with approval: Enos v. Tuille, 3 Conn., 250; 11 Pick., 309; 1 Phill. Ev., 151; 1 Greenl. Ev., p. 108; Thompson et ux. v. Trevanion, 6 East, 138; 1 Skinn., 402; Rex v. Foster, 6 C. & P., 325; Mitchem v. State, 11 Geo., 615; Sample v. Robb, 16 Penn. St., 305.</p> <p>3. EVIDENCE. Witness may or may not decline giving incriminating answers; what are not such.</p> <p>The privilege of a witness to decline to answer any questiou tending to his own crimination is personal, and if he interposes no objection, the counsel of either litigant cannot invoke the rule by interposing his objections to his answering the question. When the answer to- a question does not render the witness liable to penalties, or a criminal prosecution, and does not directly and certainly show his infamy, but will only tend to* disgrace him, or to> expose his unreliability as a witness, he may be compelled to answer; e. g., a witness was asked if he had not been indicted for counterfeiting. (Pp. 601-603.) [See Hill v. State, 7 Pickle, 523, 523; Zanone v. State, 13 Pickle, 110-119; Ryan v. State, 13 Pickle, 213-216.]</p> <p>4. EVIDENCE. Withheld, against alibi.</p> <p>Wherever pertinent and material evidence, by which an alibi might, if true, have been supported, is withheld, it is a cir-cumstanee against the truth of the alleged alibi. (Pp. 603, 604.)</p> <p>Cited with approval: Crane v. Astor, 6 Pet. (31 U. S.), 598; 1 Stark. Ev., 488; People v. McWhorter, 4 Barb., 438; People v. Bodine., 1 Druid, 281; People v. Dyle, 21 N. Y., 578; 1 Phill. Ev., 516.</p> <p>5. EVIDENCE. Reasonable doubt,</p> <p>A reasonable doubt as to' the truth of an alibi must be generated, not alone upon the testimony as to the alibi, but the testimony must all be considered together. (P. 604.)</p> <p>6. EVIDENCE. Of other offenses not admissible; but objection must come in lower court.</p> <p>Evidence of a distinct substantive offense shall not be admitted in support of a charge for another offense; and, a fortiori, evidence of an intention to commit another offense shall not be received. But where such testimony is admitted in the lower court without objection at the time, and without any request for its exclusion afterwards, the exception comes too late when made in the supreme court for the first time. (Pp. 604, 605.)</p> <p>Cited with approval: Kinchelow v. State, 5 Hum., 9; 2 Hum., 86; 4 Hum., 27. [See also 3 Cold., 373; 7 Lea, 679; 8 Lea, 656.]</p> <p>7. CHARGE. As to fleeing and resisting arrest.</p> <p>If the accused flee after the crime is committed, or if he arm himself and resist arrest, such acts, will be circumstances against him. But if he neither flees, nor resists arrest, these will be circumstances in his favor. (P. 605.)</p> <p>Cited with approval: 1 Phill. Ev., 497; 1 Wheel- Cr., ch. 91; 3 Starkie Ev., 492.</p>

<p>(S. C., 3 Leg. Rep., 296-298.)</p> <p>1. CRIMINAL LAW. Larceny. Prosecutor not consenting- to, when.</p> <p>By direction of the prosecutor thieves were informed that on a given night he would be away from home; the thieves came and were taken in the act. Held, that the prosecutor did not consent to the taking-, and the thieves were properly convicted.</p> <p>Cited with approval: Dodg-e v. Brittain, Meigs, 84; Kemp v. State, 11 Hum., 320.</p> <p>2. -EVIDENCE. Positive testimony prevails over negative.</p> <p>Where, on an indictment for larceny, the defendants are caught in the prosecutor’s smoke-house, the verdict of guilty will be sustained upon the testimony of one witness that he found a sack in the smoke-house, after the defendants were arrested, or identified there, with a piece of meat in it, and' another partly in it, and upon the testimony of the prosecutor that other pieces of bacon had been removed, although other witnesses did not see anything of this sort after careful search.</p> <p>3. OATH OF OFFICER IN CHARGE OF JURY. Insufficient ground for new trial.</p> <p>When the officer in charge of the jury is sworn; “To- keep them separate and apart from other citizens nntil they agree, or are otherwise discharged by the court, with instructions to bring them into court to-morrow morning at the meeting thereof.” Held, this is not the oath required, and is fatally defective, and on this ground the prisoners are entitled to a new trial.</p>

<p>(S. C., 3 Leg. Rep., 299.)</p> <p>VERDICT. Proof insufficient to support, new trial granted.</p> <p>Judgment of death for murder reversed and a new trial ordered for want of satisfactory proof to support the verdict.</p>

<p>(S. C., 3 Leg. Rep., 300, 301.)</p> <p>CRIMINAL LAW. Indictment quashed when offense barred by statute of limitations.</p> <p>Indictment for a misdemeanor will be quashed because the prosecution was not commenced within twelve months [or within the time prescribed for commencing a prosecution for the particular offense] after the commission of the offense. [See note under sec. 6943 of the Code.] ,</p> <p>Cited and construed: Code (1858), secs. 4983, 4984, 4987, 4988; Shannon’s Code, secs. 6943, 6943, 6946, 6947.</p>

<p>(S. C.. 3 Leg. Rep., 301, 302.)</p> <p>CRIMINAL PLEADING. Plea in abatement for relationship of grand jnror.</p> <p>The defendant pleaded that one of the grand jurors who found the bill, naming him, was at the time of said finding related to him by affinity within the sixth degree. The state demurred to the plea. Held, the plea was bad for not stating the relationship, but defendant will be allowed to perfect his pleading.</p>

<p>J. BASTAKDY. No imprisonment for mere failure to execute bond.</p> <p>Where the defendant is found guilty of bastardy, he cannot be imprisoned for mere failure to give the required bond for the maintenance of the child and for the indemnity of the county, when he is unable to do so1. For it is not a fine or forfeiture, but a debt of indemnity due the county, which in such a proceeding is adjudged against the defendant.</p> <p>Cited aaid construed: Act 1741, eh. 14, sec. 10; Code (1858), secs. 5367, 5371; Shannon’s Code, secs. 7345, 7349.</p> <p>S. SAME. Same. Imprisonment for contempt in refusing to execute bond when able.</p> <p>Where the defendant is convicted of bastardy, and ordered to execute the required bond, for the maintenance of the child and the indemnity of the county, which he is fully able to do, but contumaciously refuses to do so, he stands in open and willful contempt of the court, and may be committed to prison Cor the contempt.</p> <p>Cited and construed: Same as under first syllabus.</p>

<p>(S. C., 2 Leg. Rep., 62, 63.)</p> <p>BILL OF EXCEPTIONS. Mandamus to compel judge to sign, not granted, when.</p> <p>To authorize a mandanras to compel a circuit judge to sign a hill o£ exceptions, a clear abuse of his discretion must appear. The mandamus will be refused, though the petition states it was impossible to prepare the bill of exceptions after verdict and before adjournment, where it does not appear that any effort was made to do so, and where the supreme court can see that it might have been done within the time. From live o’clock in the afternoon till seven o’clock the next morning- was held to be sufficient time. [On subject of 3uandamus to sign bill of exceptions, see note 21 under sec. 4693 of the Code, and notes 5-9 under sec. 377. For bill of exceptions generally, see Code, sec. 4693 and notes, sec. 4696, see. 7222 and notes, and sec. 4851. On the subject of mandamus generally, see Code, secs. 5331-5339, notes; sec. 6109, note 6; secs. 682-684, notes; sec. 1556, note; sec. 1004; note 2 under sec. 4312.]</p>

<p>(S. C., 3 Leg. Rep., 376-278. This case was before the supreme court again in 2 Lea, 29.)</p> <p>1. CRIMINAL PLEADING AND PRACTICE. Indictment for obtaining signature by false pretenses.</p> <p>It is indispensable in an indictment for obtaining by false pretense the signature of any person to a written instrument, ihe false making of which would be forgery, that the instrument should be set out with literal accuracy if within the prosecutor’s control, or, if not, the indictment must state an excuse for the omission. Because of a defect in this reg-ard judgment was arrested and the prisoner remanded to be proceeded against by a new indictment. [See notes under sec. 6568 of the Code.]</p> <p>Cited with approval: 1 Head, 139; 2 Bussell, 373, and notos.</p> <p>Cited and construed: Code (1858), sec. 4701; Shannon’s Code, sec. 6568.</p> <p>2. CRIMINAL PRACTICE. Oath of officer in charge of jury.</p> <p>The officer should be sworn not only to keep the jurors separate and apart from other citizens, and not to allow them to have any communication with others, but also, that he himself will not converse with them upon the subject of the cause then under consideration.</p> <p>3. SAME. Same. What record must show.</p> <p>It will be sufficient that the record shall show from day to day that the officer having the jury in charge was duly sworn.</p>

<p>(S. C., 2 Leg. Rep., 61, 62.)</p> <p>REGISTRATION. Correction of clerical error. Mortgage.</p> <p>Correction by register of a' mistake in recording a mortgage cannot operate to overreach a levy made before the correction. [This case is cited and approved in Pierce v. Lawrence, 16 Lea, 579. See also note 8 nnder sec. 3760 of the Code; Baldwin v. Marshall, 3 Hum, 116; Lally v. Holland, 1 Swan, 401-403; Strcrad v. McDaniel, 13 Lea, 619; Boyce v. Stanton, 15 Lea, 399.]</p>

<p>(S. C., 2 Leg. Rep., 56, 57.)</p> <p>CRIMINAL LAW. 'Practice. Charg-e of court- in eases of circumstantial evidence.</p> <p>A charg-e upon the doctrine of reasonable doubt does not supersede the necessity of a charg-e, that to authorize a conviction upon circumstantial evidence, the circumstances must be such as to exclude every other reasonable hypothesis than the prisoner’s g-nilt. [See Turner v. State, 4 Lea, 206; Barnards v. State, 4 Pickle, 183, 235-238.1</p>

<p>(S. C., 2 Leg. Rep., 57.)</p> <p>CRIMINAL LAW. Evidence. Accomplice.</p> <p>Tie uncorroborated testimony of an accomplice is insufficient to sustain a conviction.</p>

<p>(S. C., 2 Leg. Rep., 58, 59.)</p> <p>MARRIED WOMAÍT. Land conveyed by, may be recovsred from subsequent purchaser, when.</p> <p>A married woman in whom title to. land is vested, on condition of her paying' a certain sum, who lives separately from her husband, and conveys the land without his joining in the deed with her, may recover it from her purchaser’s vendee upon paying' that sum, with interest, as the condition of title, and the enhanced value of the land by improvements, less the rents and profits. [By statute, a married woman twenty-one years old, living separately from her husband, may now convey her lands without his joining in the deed with her. See Code, secs. 4242, 4243.]</p>

<p>(S. C., 2 Leg. Rep., 71, 72.)</p> <p>1. APPEAL BOND. Error in date of.</p> <p>An appeal bond dated before judgment may be shown by the record and recitals in the bond itself to be a clerical error, and judgment will be rendered against the surety for the same.</p> <p>2. SAME. Language of the bond. What necessary.</p> <p>Where the obligation of the bond is in this language: “To well and truly abide by such judgment as may be rendered by the court in the cause,” it is equivalent to an express obligation to pay the debt or judgment, and is sufficient to make the surety on such bond liable for the amount found due by the jury, with costs to the extent of the penalty of the bond.</p>

<p>(S. C., 2 Leg. Rep., 72, 73.)</p> <p>CHANGE OF VENUE. Practice. Evidence.</p> <p>To authorize a change of venue, the circuit judge must be satisfied that an impartial trial cannot be obtained, and counter testimony may be considered by him in order to determine the fact, but his discretion may be revised, and his action reversed by the supreme court, when his discretion has been incautiously or improperly exercised. [See Code, secs. 4549-4567, and notes.]</p> <p>Cited with approval: Weakley v. Pearce, 5 Heis., 401.</p> <p>Cited as overruled: Blackburn v. Hawthorne, 4 Cold., 214; Gassaway v. Smith, 3 Hum., 154.</p> <p>Cited and construed: Code (T. & S.), secs. 2837, 2838; Shannon’s Code, secs. 4551, 4552; act of 1825, ch. 78, sec. 1.</p>

<p>(S. C., 2 Leg. Rep., 83.)</p> <p>LANDLORD AND TENANT. Sale of crop. Purchaser gets title, when.</p> <p>If the landlord directly or indirectly authorizes the tenant to sell his crop, the purchaser gets a good title to the same. [See Code, sec. 5302, and notes.]</p>

<p>(S. C., 2 Leg. Rep., 95-97.)</p> <p>1. PRACTICE. Reinstatement of ease after final decree.</p> <p>A case which has been finally terminated, and the objects for which it was brought attained, cannot, after it has been stricken from, the docket, be reinstated by tlie court, and other relief granted, even if the relief sought to be given is such as the court might have granted before-, or at the time the final decree was rendered.</p> <p>Cited with approval: Wardlow v. Steele, 7 Cold., 573; Franklin v. Franklin, 2 Swan, 521.</p> <p>2. SAME. Prayer, general and special.</p> <p>Tlie prayer for general relief has the virtue to justify such relief as is consistent with the scope and object of the bill, and it is only where the. equities of the bill plainly authorize other relief than such as is specifically prayed, that the prayer for general relief is efficacious and availing; but the oomplainant can have no aid from a prayer for general relief to effect another and a totally different thing not contemplated in the bill.</p>

<p>(S. C., 2 Leg. Rep., 104.)</p> <p>CHARGE OF THE COURT. Slang, “Whip the devil aronnd the stump,” not reversible error, when.</p> <p>Where t-he court- charged the jury that “he would not allow plaintiff to ‘whip the devil around the stump,’ and make the defendant liable indirectly, when he could not do so directly;” held, that the substance of the charge- being-correct, the fact that the eo-urt had used such an inelegant phrase as “whip the devil around the stump,” was not so calculated to mislead the jury, as that a new trial should be granted.</p>

<p>(S. C., 2 Leg. Rep., 121, 122.)</p> <p>DEED OK WILL. Construction.</p> <p>An instrument in the form of a deed reciting that in consideration of love and affection the author conveys to certain parties all his title, etc., to a tract of land, but providing- that he. is to hold in his own name, and have all ihe i-ents of the tract of land until his death, then to. be divided between the donees, is a deed conveying a present interest, and not a testamentary paper. [See Armstrong v. Armstrong-, 4 Bax., 357.]</p>

<p>(S. C., 3 Leg. Rep., 12-15.)</p> <p>PLEADING AND PRACTICE. Persons not parties to a suit bound by decrees, when.</p> <p>Where a will is not clear, and the executor files a bill to have it construed as to his right to' sell certain property, and a sale is authorized, the decree binds children then unborn claiming a remainder interest under the will, the mother, who holds the life estate, and her husband being parties to> the executor’s bill. If all the parties in being having an interest in the subject-matter of the bill are made parties, the decree will be binding on all those subsequently coming into being who majr have an interest in such subject-matter. [See Code, sec. 5086, and note; and note 2 under sec. 5011; Brown v. Brown, 14 Lea, 255.]</p> <p>Cited with approval: Freeman v. Freeman, 9 Heis., 306; Story’s Eq. PI., sec. 145, and notes.</p>

<p>(S. C., 2 Leg. Rep., 214, 215.)</p> <p>SHERIFF. No motion against, for taxes collected without authority of law.</p> <p>No motion lies against an officer whO' collects taxes, where he is not authorized to do so by law. [See note 10 under sec. 1047 of Code, and notes under sec. 1056 bearing somewhat upon this subject in a general way.]</p> <p>Cited and construed: Code (1858), secs. 3594, 3600, and 3614; Shannon’s Code, secs. 5359, 5365, and 5379.</p>

<p>(S. C., 3 Leg. Rep., 18.)</p> <p>ERAUD. No judgment for debt, when complainant is a participant in fraud.</p> <p>The complainant being repelled on account of participation in the fraud, is not entitled to his judgment against defendant under the statute for judgment, where in a suit to set aside a fraudulent conveyance no fraud is established.</p> <p>Cited and construed: Code (1858), sec. 4292; Shannon’s Code, sec.' 6101.</p>

<p>(S. C., 3 Leg. Rep., 16, 17.)</p> <p>FRAUDULENT CONVEYANCE OF LAND. Will not be set aside, when.</p> <p>A party who has participated in the fraudulent intent of a conveyance, or his assignee with knowledge1, cannot como into a court of equity to have it set aside.</p> <p>Cited with approval: Smith’s Manual of Equity, 23; 1 Story’s Eq. Jur., sec. 695.</p>

<p>1. REGISTRATION. No objection for want of, where no. question is made in the pleadings.</p> <p>Where no question is made in the pleadings that an ante-nuptial contract was not registered, but its existence is stated, and no objection to its validity Is intimated, the objection in the supreme court that it was not registered is not tenable.</p> <p>2. SAME. Marriage contract registered after marriage, is valid, when.</p> <p>A marriag-e settlement is void as to creditors and purchasers without notice and without registration, but it is not absolutely essential that it be registered before marriage. If it be registered upon proper probate after marriage, it seems it will be g-ood against all who have not acquired intervening rights.</p> <p>3. ANTENUPTIAL CONTRACTS. Marriage a legal consideration for, and enforced as against creditors.</p> <p>Marriage is in law a legal consideration to support the rights purchased by the wife, and make them superior to the claims of creditors. An antenuptial contract by which the intended husband agreed to secure to the wife at his death $10,000, in consideration of which she agreed to release her right of dower and other rights of law is valid, and will be enforced as against the rig-hts of creditors, though no priority was specially prayed for.</p> <p>4. SPECIFIC PERFORMANCE. Decreed notwithstanding chang-e of valnes of property, when.</p> <p>A mere change in value of property, by which the contract turns out to be a hard one on one of the parties, is no ground to refuse a specific performance, for if it was fair and reasonable when made, without fraud or undue influence or unconscionable advantage obtained by either, and no change of condition or other circumstances rendering it inequitable, the contract should be performed notwithstanding it finally proves disastrous to one of the parties.</p>

<p>(S. C. 2 Leg. Rep., 11, 12.)</p> <p>CHANCERY COURT. Jurisdiction. Sale.</p> <p>The chancery court having obtained jurisdiction to set aside satisfaction of a levy, may order a sale of the land.</p>