Volume 3 — Shannon's Tennessee Cases

<p>(S. C., 2 Leg. Rep., 245-247.)</p> <p>TAXES. Sales. Provisions oí Code.</p> <p>The provision in reference to tax sales, that the bidder shall be the purchaser who will pay the amount duel for the least quantity of said land, etc., must be strictly complied with, and the report of sale should so show. When sale is void, and the amount paid by defendant is not tendered, complainants must pay six per cent, interest on sum, and not the penalty on redemption in valid sales, and all costs. [For collection of decisions on tax sales under the old law of proceedings in rem, see notes under sec. 642c of Thompson & Steger’s Codé of 1871.]</p>

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

<p>(S. C., 2 Leg. Rep., 231.)</p> <p>RAILROAD. Killing of stock.</p> <p>A railroad is not liable for stock killed, wlien it appears on the trade at the instant struck. [See Code, sec. 1574(5), notes 9, 10, 42; sec. 1576, notes 7, 8, 13, 14, 23; and on the subject generally, see notes g-enerally under said sections 1574-1599.]</p> <p>Cited and approved: Railroad v. Stone, 7 I-Ieis., 470.</p>

<p>(S. C., 3 Leg. Rep., 373-274.)</p> <p>STATUTE OE LIMITATIONS. Under eminent domain laws; demurrer to petition for damages, when.</p> <p>A petition by the owner for the'appointment of commissioners to assess his damages for land taken by the railroad company, tiled under a charter which, after the lapse of five years, raises the presumption of a grant of the land by the owner of the company, and gives the latter a “good right and title thereto,” for the purposes of the charter, will be dismissed on demurrer, if it show on its face the lapse of more than five years since the completion of the road through the land, without more. [See Code, sec. 1867, and notes.]</p> <p>Cited with approval: Coleough v. N. &• N. W. R. Co., 2 Head, 172; Tenn. & Ala. R. Co. v. Adams, 3 Head, 599; Simms v. Memph., Cl. & L. R. Co., 12 Heis., 631; Maury v. Lewis, 10 Yer., 113; Allen v. Word, 6 Hum., 284; Morrow v. Hatfield, 6 Hum., 108; Ivegler v. Miles, M. & Y., 436.</p> <p>Code cited: Sees. 2763, 2765 (Shannon’s Code, secs. 4456, 4458).</p>

<p>(S. C., 3 Leg. Rep., 375-383.)</p> <p>1. CHANCERY PLEADING AND PRACTICE. Bill of review. Eor error apparent.</p> <p>A bill of review will not lie for mere irregularities in the proceeding's of a cause for errors apparent. There must be error of law patent on the face of the pleading and decree specifically pointed out. (P. 24.)</p> <p>Cited with approval: Livingston v. Noe, 1 Lea, 55.</p> <p>2. SAME. Same. Eor new matter.</p> <p>To authorize a bill of review for new matter, the applicant, must not only satisfy the court of its materiality, but that he could not, with reasonable diligence, have availed himself of it before, the decree complained of was made. (P. 24.)</p> <p>Cited with approval: Burson v. Dosser, 1 Heis., 761.</p> <p>3. SAME. Same. Demurrer lies to, when.</p> <p>A demurrer will lie to a. bill of review upon the ground that it was filed without special leave. (P. 24.)</p> <p>Authority cited: Henderson v. Gook, 4 Drew, 306.</p> <p>4. SAME. Bill for dower. Demurrer.</p> <p>A bill is demurrable which claims dower, and at the same time shows on its face that, the husband did not die seized of the land, and docs not attack his conveyance for fraud. (Pp. 24, 25.)</p> <p>5. SAME. What no l ground for new trial.</p> <p>•The inexperience or neglect of a party’s own counsel is no ground ior retrying a matter of litig-ation. (P. 26.)</p> <p>6. SAME. Plea.</p> <p>WTiere a plea is held to be sufficient, the' truth of the plea is alone in issue: and if this be proven, the suit, so far as the plea, extends, is barred. (P. 25.)</p> <p>Authorities cited: Hughes v. Blake, 6 Wheat., 453; Harris v. Ingelow, 3 P. W., 94.</p> <p>7. SAME. Same. What a sufficient plea.</p> <p>The plea of á former suit pending in the same court, between the same parties, about the same subject-matter, and for the same purpose, and a fortiori a plea of a former decree in such suit, is a good plea to a bill. (P. 25.)</p> <p>Cases cited: Green v. Neal. 2 Heis., 219; Connell v. Eurgason, 5 Cold., 404.</p> <p>8. SAME. Same. Same. Embraces what.</p> <p>The estoppel of proceeding’s and decree is precisely the same as to every point which properly belonged to the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time, whether the same were actually brought forward or not. (P. 26.)</p> <p>Cited with approval: Peeler v. Norris, 4 Yer., 331; Knight v. Atkisson, 2 Tenn. Ch., 388; Aurora City v. West, 7 Wall., 102; Henderson v. Henderson, 3 Hare, 115.</p> <p>9. SAME. Decree collaterally attacked. What sufficient to maintain.</p> <p>Where a bill impeaches a previous suit upon the ground that complainant (a defendant in said suit) did not sign her answer, and because no guardian ad' litem had been appointed for the minor defendants therein, but it appeared that process had been regularly served on all of the de- . fendants in said suit, and their appearance by answers was recognized in the final decree. Held sufficient in a collateral attack. (P. 26.)</p> <p>Cases cited: Hopper v. Eisher, 2 Head, 253; Greenlaw v. Kerna-han, 4 Sneed, 371; Kindell v. Titus, 9 Heis., 738.</p> <p>10. SAME. Personal representative bound by answer of intestate.</p> <p>A personal representative is bound by the answer of his intestate, and can only take up the defense at the point at which he left it at his death. (P. 27.)</p> <p>Case cited: Lewis v. Outlaw, 1 Tenn., 140.</p> <p>11. SAME. Itevivor. When not necessary.</p> <p>A reviver is not necessary to entitle a party to redeem, whose rights had become fixed by a legal tender made in the lifetime of the deceased, for the judgment was thereby extinguished to the extent of the credit entered thereon. (P. 27.)</p> <p>12. JUDGMENT. Not invalidated by failure to sign minutes, when.</p> <p>The failure of a judge, through inadvertence or accident, to sign the minutes of the court for the day on which a judgment was recovered, does not invalidate the judgment, the provisions of the statute on this subject being directory. (P. 27.)</p> <p>13. RESULTING TRUST. Arises, when.</p> <p>A resulting trust can only arise upon the state of facts existing- at the time oí the pin-chase and passing of the title, and not upon an agi-eement made afterward. (P. 39.)</p> <p>Cases cited: Gee v. Gee, 3 Sneed, 396; Wells y. Stratton, 1 Term. Ch., 338.</p> <p>J4. RESCISSION OP CONTRACT. Ig-norance óf law not ground for. '</p> <p>Ignorance of law is no ground for rescission, in the absence of improper conduct by the opposite party. (P. 38.)</p>

<p>STATUTE OF LIMITATIONS. Forfeited delivery bond, not a judgment.</p> <p>An action upon a forfeited delivery bond is an action upon a contract, and not upon a judgment, and the limitation is six years. While a forfeited delivery bond is not a judgment, still by statute it has the force and effect of a judgment, so as to sustain an execution. [See note 16 under sec. 4779 of the Code.]</p> <p>Cited with approval: Malone v. Abbott, 3 Hum., 533, 534, 535; Lester's Case, 4 Hum., 383, 385; Freeman on Judgments, sec. 3.</p> <p>Cited and construed: Code (1858), secs. 3775, 3776, 3046; Shannon's Code, secs. 4473, 4473, 4774.</p>

<p>(S. C., 2 Leg. Rep., 287, 288.)</p> <p>CHANCERY PRACTICE-. Jurisdiction to appoint receiver to ■ impound trust property, etc.</p> <p>It is within the competency of the chancery court to appoint a receiver of property conveyed in trust for creditors, upon a bill filed .by the trustee and. beneficiaries to impound, the trust property in advance 'of thé time fixed in the deed for the trustep to take possession a-nd sell when the defendant is insolvent, the property inadequate to secure the debts, taxes Unpaid and accumulating-, or it is hazardous to leave the property in possession of defendant, or when he has absconded and left the state, and the supreme court has no power'to-sxrpervise-its action upon) an application for a supersedeas under the Code. sec. .3933 [Shannon’s Code, sec. 5737], ñor will the alleged incapacity of the g-rantor to contract change the result, that being a fact which could not be determined on such a motion. [See notes under sec. ’5738 of the Code.]</p> <p>Cited with approval: Redmond v. Redmond, 1 Leg. Rep., 359 [S. C., 9 Bax., 561]; Baird v. Cumberland and Stone’s River Turnpike Company, 1 Lea, 394; Bramley v. Tyree, 1 Lea, 531.</p>

<p>(S. C., 3 Leg. Rep., 133-135.)</p> <p>.PRACTICE. Certiorari. Eorcible entry and detainer.</p> <p>A petition to remove by. certiorari an action of forcible entry and detainer from before three justices [before one now, see Shannon’s'Code, secs. 5095 and 5105] to the circuit court-before trial will be denied. The complication and difficulty of the law and facts involved, and the'incompetency of the justices to decide correctly such questions is no reason for g-ranting' the writ of certiorari, and depriving- the justices of the jurisdiction.</p> <p>Cited and distinguished: May v. Campbell, 1 Tenn. R., 62.</p> <p>Cited and construed: Code, sec. 3124; Shannon’s Code, sec. 4854; con. (3834 and 1870), art. 6, sec. 10.</p>

<p>(S. C., 3 Leg. Rep., 137, 138.)</p> <p>1. ASSIGNMENT OP JUDGMENT. Notice to debtor necessary to perfect.</p> <p>An assignment of a judgment is not complete, so as to vest tlie title absolute]}!- m the assignee, until notice of the assignment to the debtor: and this is SO' not only as reg-ards the debtor, but likewise as to third persons. So, an attachment by a creditor, in the period inteiwening- between the assignment and the notice, will have preference over such assignment. [See notes 6-14 under sec. 3516 of the Code.]</p> <p>Cited and approved: Clodfalter V. Cox, 1 Sneed, 338.</p> <p>2. FEES. Attorney’s priority.</p> <p>An attorney who has recovered a judgment, which is snbse-qnently attached, has a lien for a reasonable fee that is prior to the rights of the attaching- creditor. [See Cunning-- . ham v. McGrady, 2 Bax., 141: Damron v. Robertson, 12. Lea, 374; Brown v. Big-ley, 3 Tenn Chy., 626.].</p>

<p>(S. C., 3 Leg. Rep., 141-143.)</p> <p>MOBTGAGE. . Attachment by mortgagee; mortg-agor cannot replevin.</p> <p>The right of a mortgagee of personal property to attach the same at law is doubted, because the legal title is in himself, and only the equitable in the mortg-agor; but where a mortg-agee has attached under such circumstances, an action of replevin will not lie in favor of the mortgagor, though he may have had relief in a court of equity.</p> <p>Cited with approval: Timmons v. Garrison, 4 Hum., 148.</p>

<p>(S. C., 3 Leg. Rep., 149-151.)</p> <p>1. SALE OP PERSONAL PROPERTY. When complete; 'presumption of fraud, when; may be rebutted.</p> <p>A contract of sale of personal property between two parties becomes complete when one of the parties offers to take and the other to give a certain sum for a specific thing, and while under certain circumstances retention of possession by the vendor of the thing sold raises a presumption of fraud, this presumption may be rebutted, and whether such presumption is rebutted or not, is a question of fact to be determined by the jury. [See Meigs, 26; 3 Hum., 342; 2 Swan, 362; 3 Yer., 475, 503.]</p> <p>Cited and approved: 9 Hum., 237; 2 Sneed, 25; Bump on Fraud. Con., 150, 151, 169.</p> <p>2, STATUTE OP FRAUDS. Consideration.</p> <p>A executed a trust deed to B for the benefit of creditors, and a day or two thereafter B agreed with A to receive goods ordered by A of C, which had not arrived, and to pay C the invoice price therefor. Upon the arrival of the goods- B directed A to take them to his (A’s) house, sell them and pay over the proceeds of sale to him. The goods were shortly after levied upon-as the property of A at the instance of his creditors, and were replevined by B, claiming them as his own. Held, that it was not essential to the validity of the agreement between A and B that it should have-been in writing, so far as the levying creditors were concerned, and that B’s undertaking to pay A’s debt to 0 was a sufficient consideration to support the sale from A to B.</p> <p>Cited and distinguished: Campbell v. Findley, 3 Hum., 330. [See McAlister v. Marberry, 4 Hum., 426; Moore v. Stovall, 2 Lea, 543 (overruling 3 Hum., 330); Snyder v. Summers, 1 Lea, 539, 540; Thompson v. Thompson, 3 Lea, 126; Baxter v. Washburn, 8 Lea, 16; Hill v. McLean, 10 Lea, 114; Railroad v. Houston, 1 Fickle, 224; O’Conner v. O’Conner, 4 Pickle, 76; Zwingle v. Wilkinson, 10 Pickle, 246, and cases cited in these cases.]</p>

<p>(S. C., 3 Leg. Rep., 162, 163.)</p> <p>LIBEL AND SLANDER. No more costs tha.n damages, when.</p> <p>The statutory provision that, “where the verdict in slander is under live dollars, the plaintiff shall recover no more costs than damages,” applies to libelous publications written or printed, as well as to slanderous word’s spoken. [See notes under sec. 4939 ot the Code.]</p> <p>Cited and construed: Code (1858), secs. 3198, 3402; Shannon’s Code, secs. 4939, 5157.</p>

<p>(S. C., 3 Leg. Rep., 198-203.)</p> <p>1. VENDOR’S LIEN. Enforced by sale of the whole land when any note is due.</p> <p>Where only one of several notes for purchase money is due, the whole of the land may be sold to pa.y the note due, and the others as they fall due, where the land is not susceptible of division into parts to correspond with the several notes.</p> <p>Cited with approval: Johnson v. Jenkins, December term, 1870.</p> <p>Cited and construed: Code (1858), secs. 3563-3565; Shannon’s Code, secs. 5326-5328.</p> <p>2. SAME. Same. Practice in supreme court.</p> <p>Where court below orders land sold to- pay note then, duo, the supreme court, on appeal, may render judgment on the ' notes maturing- since the appeal, and decree sale to pay all . the purchase money. (Pp. 50, 51.) [See notes 2, 3 under see. 5329 oí tile Code.]</p> <p>3.' SAMÉ.' Sale without division decreed from description, when,</p> <p>Where a lot,-with a house thereon, was sold for $3,495, and is described as being 41 by 151 feet, it is manifest from the character of the property, and the size of the lot, that it . cannot be divided into three parts for. sale to meet the payments of purchase money as they mature, without injury to the parties, and a sale of the whole upon the maturity of any one payment is proper. (Pp. 48, 50.) [See note 7 under sec. 5329 of the Code.]</p>

<p>(S. C., 3 Leg. Rep., 201-203.)</p> <p>PARTNERSHIP. Firm not liable as such for property put in by its members, when. .</p> <p>Partnership in property formed after it was bought does not render the firm, as such, liable for the price, since the credit was not given to the firm, but to the individual member who brought the property into the firm, and who alone can be looked to for payment.</p> <p>Cited and distinguished: Nichols v.-Cheairs, 4 Sneed, 229.</p>

<p>(S. C., 3 Leg. Rep., 239-331.)</p> <p>1. CHANCERY PLEADING AND PRACTICE. Bills and notes. Attorney and client.</p> <p>Where the bill seeks to charg-e attorneys with the amount of a draft on the ground that it might have been collected by proper diligence, an allegation in the answer that the drawer and acceptor were insolvent, is responsive, and puts the proof upon complainant.</p> <p>2. SAME. Answer as evidence.</p> <p>Mattel- oE avoidance of the admitted allegations of the bill set up in the answer must be proven by the defendant, but if the matter be in exoneration or discharge of the defendant, and be stated in reference to the allegations of the bill, whether by direct denial or a statement of facts in response, the answer is evidence Eor the defendant.</p> <p>Cited with approval: Alexander v. Wallace, 10 Yer., 109; Gass v. Simpson, 4 Cold., 288, 291, 292; Walter v. McNabb, 1 Heis., 703; Hopkins v. Spurlock, 2 Heis., 153. [See Shown v. Mc-Maclcin, 9 Lea, 606 (citing- this ease); Beech v. Haynes, 1 Tenn. Chy., 569, and citations.]</p>

<p>(S. C., 2 Leg. Rep., 289.)</p> <p>SET-OEE. Subsequent judgment- not set off against attached judgment-; lien fixes rights.</p> <p>Where a judgment is attached or impounded for a debt, and the lien is fixed on it, the equities then existing- may be asserted by the judgment debtor, but not the equities thereafter created or existing. A judgment in tort thereafter obtained by the judgment debtor against the judgment creditor cannot be set off against the judgment so attached. [See Code, sec. 4046, and notes.]</p>

<p>(S. C., 2 Leg. Rep., 290-296.)</p> <p>KIDNAPPING. Estopjiel by record.</p> <p>During the existence of slavery in the southern states, a slave could not- sue or be sued; and, therefore, the judgment of a court, in a suit to regain her liberty by one kidnapped into slavery, that the plaintiff was a slave, will not estop her from a re-examination of the same question in a subsequent suit against her kidnapper; the finding of the fact that she was a slave divesting' the court of its jurisdiction.</p> <p>Cases cited: Jenkins v. Brown, 6 I-Ium., 299; Jacob v. State, 3 Hum., 493; Brandon v. The Huntsville Bank, 1 Stew. (Ala.), 320; Avery v. Smith, 1 Litt. (Ky.), 326; Bently v. Cleveland, 22 Ala., 814; Bland v. Dowling, 9 Gill and J. (Md.), 19; Hall v. Mullen, 5 I-Iar. and G. (Md.), 190; Taylor v. Embry, 16 B, Monroe (Ky.), 340; Trotter v. Blocker, 6 Port (Ala.), 269; Lamb v. Gertman, 26 Ga., 625; Graves v. Allen, 13 B.'Monroe (Ky.), 19; Jones v. Lipscombe, 14 B. Monroe (Ky.), 296; Turner v. Smith, lb., 417; Hinds v. Brascoll, 3 Miss., 837; Cunningham v. Cunning-ham, C. and N. (N. C.), 553; Batten v. Ereneh, 4 Jones, N. C., 232; 1 Leigh (Va.), 72; Smith v. Betty, 11 Gratt. (Va.), 751; Neal v. Parmer, 9 Ga., 555; Moran v. Davis, 18 Ga., 722; Craig- v. Lee, 14 B. Monroe (Ky.), 119; Oliver v. State, 39 Miss., 526; State v. David, 4 Jones (N. C.), 535; Stenhouse v. Ba.rnum, 12 Rich. (S. C.), 620.</p>

<p>(S. C., 2 Leg. Rep., 234-243, and 97 U. S., 454 (L. ed., 24: 1071), where the dissenting opinions are also published.)</p>

<p>(S. C., 3 Leg. Rep., 114.)</p> <p>CRIMINAL LAAV. Carrying concealed weapons. Intent to go armed.</p> <p>The proper construction of the act of 1871, ch. 90, permitting the carrying of such a pistol as is used in the United States army, but requiring that it shall not be carried in any other way than openly in the hand, is that it is only intended to forbid the carrying- of those weapons with the intent of going armed. [See note 2 under sec. 6644 of the Code.]</p> <p>Cited with approval: Page v. State. 3 Ileis., 198.</p> <p>Cited and construed: Acts of 1871, ch. 90; 1870, eh. 13.</p>

<p>BILLS PAYABLE. Indorser paying dishonored bill cannot recover bade, when.</p> <p>An indorser having paid a draft which had been presented for acceptance and payment in another state, and dishonored, but not protested, cannot recover back the money on the ground that he was informed that protest in the other state was not necessary to bind him.</p>

<p>(S. C., 3 Leg. Rep., 199-193.)</p> <p>1. CONTRACTS. Construction of title bond.</p> <p>A title bond, after setting- forth, a sale of land for a certain price, part of which was paid in hand and three notes given on time for the balance, contained the following: “And if the said G. W. Morine should fail to pay said notes, he is not to lose what he has paid, but shall receive it back without -interest.” Held, that this did not give the vendee the right to rescind and recover back the money paid after he ■ had paid two of the notes and obtained a credit upon the third, and after the notes had all fallen due, he still remaining- in possession.</p> <p>2. EVIDENCE. Not sufficient to prove account just, when.</p> <p>Where A claims to have an account against B, a very old, in- ' firm, and wholly illiterate old neg-ro mail, and directs him to order .a credit to be entered on A’s note to B, ior the alleg'ed amount of the account, without reading' over any items to him, the credit entered will not be sufficient evidence of the g-enuineness of the account, when A cannot give items nor specify particulars, the account being recent, apd the leaves of the account book, where the account was alleged to have been kept, have been destroyed.</p>

<p>(S. C., 3 Leg. Rep., 193-197.)</p> <p>1. CHANCERY PRACTICE. Concurrence of master and chancellor.</p> <p>Where the master and the chancellor have reached the same conclusion upon the facts, the supreme court will not interfere, unless there is a clear preponderance of evidence against the findings. [This case is cited and approved in Fitzsimmons v. Johnson, 6 Pickle, 444. The concurrent findings of the master and chancellor upon questions of fact have the same weight as the verdict of a jury and judgment thereon at law, and will not be set aside if there is any evidenee to sustain it. See notes 2, 3 under sec. 4890 of the Code; Palmer v. Yam Wyck, 8 Pickle, 407; Dollman v. Collier,. 8 Rickie, 666, 667; Howard v. Ragon, 13 Pickle, 350; Railroad v. Knoxville, 14 Pickle, 1-10, and cases cited.]</p> <p>2. CONTRACTS. Oral, when.</p> <p>A contract partly in writing and partly oral is an oral contract'.</p> <p>Cited with approval: Bish. Con., sec. 58.</p> <p>3. ATTORNEY AND CLIENT. Client not bound by attorney’s agreement in suit, when.</p> <p>It seems that while cotinsel are authorized to control the conduct of a cause and make agreements in relation thereto ordinarily binding on the client, yet if the agreement be made without the knowledge of the client, and is prejudicial to his rights on the merits, the court may set it aside upon his application promply made, where this can be done without injury to the' opposite party.</p>

<p>1. PLEADINGS. Action of indorser against indorser. Pleas; nil debet improper; payment proper; burden of proof.</p> <p>In an action by an indorser against a prior indorser of a negotiable promissory note, with summons and declaration as prescribed by the Code, and pleas of nil debet and payment, with issues thereon, there was judgment for plaintiff, though the only evidence introduced was the note with its indorsements. The plea of payment was appropriate, but it east the burden of proof on the defendant. The plea of nil debet was not appropriate, but there was no demurrer to it, nor motion to strike it out, and for the error of taking issue upon it, and treating it as the appropriate general issue, the judgment was reversed.</p> <p>2. SAME. Same. A common law plea to an action had before the Code is bad now.</p> <p>As the law stood previous to the Code (of 1858), an action of debt did not lie by an indorser against an indorser, and as a declaration in common law form for debt upon such cause of action was not appropriate, therefore a plea of nil debet, a plea in the common law form, appropriate to actions of debt only, would not have been appropriate. As •such plea was not appropriate to such action under the law before the Code, it is not appropriate to the same cause of action under the Code.</p> <p>Cited with approval: Frierson v. Reeves, 7 Hum., 359; Jones v. Lowe, 4 Hum., 334; McGuire v. Blanton, 5 Hum., 361.</p> <p>Cited and construed: Code (1S58), secs. 2913-2915; act of 1859-GO, ch. S3 (T. & S. Code, sec. 3917a); Shannon’s Code. see». 4634-4636, 4638.</p>

<p>SMALL OFFENSES. Amendment of judgment to prevent its supersession.</p> <p>Where the warrant charges an assault with intent to kill, and the magistrate acquits defendant of the felony, and enters a judgment of fine and costs against him, not showing on its face that defendant submitted, and pleaded g'uilty of the assault, upon the trial of a certiorari to supersede the judgment and motion to quash the execution, the court may allow the justice to amend his judgment so as to show the fact of plea of quilty as to assault and battery. There can be no objection to this practice. [See Code, secs. 6953-6972, and notes, and note 12 under sec. 4854; notes 4-6 under sec. 4872. But see notes 1, 2 under sec. 4600.]</p>

<p>CHANCERY PLEADING AND PRACTICE. Demurrer must be by parties having direct interest, when.</p> <p>Where a bill is filed ag-ainst the administrator, widow and heirs of a decedent, seeking- to ha.ve a deed absolute upon its face to said decedent declared a mortgage .to secure him for money advanced for complainant to- repurchase for him the land' from a third person, demurrer by the administrator and widow relying on the statute of frauds will not lie as against the bill. If such defense can be interposed, it can only be done by the heirs in whom the legal title is vested.</p>

<p>Appeal from the chancer)'- court of Knox county.</p>

<p>1. PLEA OE NON EST PACTUM. Mere unauthorized spoliation, no delepse to note.</p> <p>A plea of non est factum upon the ground that the note sued upon was altered after its execution, and without the maker’s assent, by interlining the words, “with interest at 10 per cent, per annum after maturity,” is not a good defense, where it appears that the words were not interlined by the payee, the plaintiff, or by his authority or consent, but by a third person without authority, whose act was repudiated by the plaintiff. This is not an “alteration” in a legal sense, but in the nature of a spoliation, not defeating the right to recover upon the note as it originally existed. [See McDaniel v. Whit-sett, 12 Pickle, 10, and citations.]</p> <p>Cited with approval: Crockett v. Thomason, 342.</p> <p>2. PRINCIPAL AND SURETY. Discharge of surety by extension of time, when not.</p> <p>A contract for delay that null discharge the surety, must be a valid contract, founded upon a sufficient and lawful consideration, and a contract by which the creditor would be bound. An agreement for delay in consideration of the debtor’s parol promise to pay ten per cent, interest after maturity, when that rate was lawful, provided it was expressed in the written instrument creating the debt or “obligation, will not discharge the surety, because it was not binding on either party.</p> <p>Cited with approval: Howell v. Sevier, 1 Lea, 360; Wilson v. Lang’ford, 5 Hum., 320; Bank v. Swepson, 1 Lea, 355.</p> <p>Cited and construed: Acts 1869-70, ch. 69; T. & S. statutes, secs. 1944a-1944d.</p>

<p>1. DEEDS. POWERS OP ATTORNEY. Acknowledgment. Certificate to show acquaintance with bargainor.</p> <p>The certificate pf acknowledgment of the execution of a power of attorney which fails to show the officer before whom the acknowledgment was made to be personally acquainted with the bargainor, though made in another state, is fatally defective, and the probate is a nullity, so that a deed made by the attorney in fact, in pursuance of the power of attorney, will also be null and void as against creditors. [See notes 3, 4, under sec. 3717 of the Code.]</p> <p>Cited with approval: Bone v. Greenlee, 1 Cold., 29; Johnson v. Walton, 1 Sneed,. 258; Mullins v. Aiken, 2 Heis., 546, 547; Pall v. Roper, 3 Head, 486.</p> <p>Cited and construed: Code (1858), sec: 2080; Shannon’s Code, sec. 3757.</p> <p>2, ATTACHMENT. Of lands conveyed by defectively probated deed.</p> <p>Notwithstanding- such deeds are registered, and a creditor has notice of them, he may nevertheless file a bill, attaching . the lands so attempted to be conveyed, on the ground that the conveying debtor is a nonresident of this state, and to have the deeds set aside, and the lands subjected to the payment of his claim. The attachment on the land being valid and fixed, complainant’s rights cannot be affected by a sale of the purchase-price notes. A creditor is not affected by notice of a void deed.</p>

<p>1. GUARDIAN AND WARD. Support declared lieu ou corpus in partition suit, when.</p> <p>In a bill for partition of land in the chancery court, one of the complainants who is guardian of an insane defendant may have the amount of compensation and expenditures due him for the support and maintenance of his said ward during his guardianship ascertained, ,and the excess above the income from the ward’s estate d'eclared a lien on the land, set apart to him in the partition, and have the same sold to enforce the lien, where the compensation and expenditures are such that the chancery court approves them, and would have decreed same in advance, and allowed the intrenchment upon the. corpus, had application been made for that purpose. (Pp. 90, 91.)</p> <p>Cited with approval: Beeler v. Dunn, 3 Head, 90, 91; Rose-borough v. Roseborough, 3 Bax., 314, 315.</p> <p>2. SAME. No intrenchment on corpus before guardianship.</p> <p>Where a brother supported and maintained his insane brother from 1854 to 1865, without any guardianship, and was then appointed guardian, and continued the support and maintenance till 1873, when the said bill for compensation was filed, he was not entitled to any compensation above the rents or income of the estate for the time before the guardianship, but was during the guardianship, as shown in the last syllabus. (Pp. 88-90.)</p>

<p>1. PLEADING AND PRACTICE. No recovery, if no issue.-</p> <p>In an action by warrant to recover for “damages for breaking, or causing to be broken, and otherwise injuring a two-horse “hack, the property of the plaintiff,” there cannot be any recovery for any wrong doné him by not returning the hack, because there was no issue- presented on this question.</p> <p>2. BAILMENT. Bailee must return to bailor the property dam- „ aged without- his fault.</p> <p>Where the hirers of a hack use it with the prudence and care required by law, and it is overturned and broken .without their fault, so that they are not liable for the damages; still if they leave it, and do not return it to the bailor, they will be liable for the damages for failure to- return it.</p>

<p>I. MECHANIC’S LIEN. On land, mill, and machinery, in whose favor.</p> <p>A mechanic or undertaker, founder or machinist who furnishes machinery for a mill, has a. mechanic’s lien upon the land upon which the mill was erected, including building, machinery, etc. [See Code, see. 3531, and notes 5, 17.]</p> <p>3. SAME. Enforced by attachment regardless of merits when not objected to by motion or plea.</p> <p>When a person having- a mechanic’s lien on property sues out an attachment to enforce the same, which is levied, the complainant may have the property attached sold for the satisfaction of the debt, where no motion or plea has been made or filed to discharge the attachment. [See Code, sec. 53Ü6, and notes.]</p> <p>Cited with approval: Boyd v. Martin, 9 Heis., 383; Robinson v. Brown, 1 Bax., 307; Brown v. Jacobi, 10 Heis., 335.</p> <p>3. SAME. Exists for one year; attaches when machinery furnished. Question reserved as to when furnished.</p> <p>In this case the point was made that a mechanic’s lien did’ not exist, because tire suit was brought more than a year after the machinery was furnished. This contention was founded on the fact that complainants shipped the machinery by railroad to the depot near where it was to- be used more than a year before the bill was filed, but defendants refused to receive it, and did not receive it until within one year before the bill was filed, because sent before the time, and they were not ready to use it. But this question was not decided by the court- — the decision being put upon the ground stated in the last syllabus.</p>

<p>LIFE INSURANCE. Exempt from debts of insured, though premiums paid when insolvent.</p> <p>The proceeds of a policy of insurance on the life of a hus'band, payable to his wife, cannot be subjected to his debts, though the premiums were paid by him while indebted to insolvency to such an extent that the payments operated to hinder and delay his creditors. [See generally notes under sec. 4030 of the Code, and especially notes 36 and 37.]</p> <p>Cited and construed: Code (1858), sees. 2478, 2479 [and 2294]; Shannon’s Code, secs. 4231, 4232 [and 4030].</p>

<p>1. ADVERSE POSSESSION. Of one division of tlie original tract does not affect other divisions, .when.</p> <p>An original grant having- been divided, and each division being- owned by different parties, adverse possession for seven years of one division will not create title, in the adverse possessor to any other part of the g-rant, as where land held under a superior title by an elder grant, upon which an inferior and younger grant' laps, is subdivided, and is conveyed to different parties, among whom was the plaintiff, after which the defendant, as owner of the younger grant, enters upon and holds adverse possession of a part of the interla.p for seven years, but not on that part so conveyed to the plaintiff, the adverse possession cannot affect the title of the plaintiff. [See note 36 under sec. 4461 of the Code.]</p> <p>Cited with approval: Stewart v. Harris, 9 Hum., 714.</p> <p>.Cited and distinguished: Talbot v. McGavock, 1 Yer., 262; Waddle v. Stuart, 4 Sneed, 534; Norvell v. Gray, 1 Swan, 95; Smith v. McCall, 2 Hum., 163; Tilghman v. Baird, 2 Sneed, 196.</p> <p>2. SAME. Under deed for twenty years raises presumption of grant to boundaries.</p> <p>Twenty years’ actual possession of a part of a tract of land claiming- tinder a deed describing- the boundary, raises a presumption of a grant not only as to the land actually inclosed, but also to the extent of the boundaries of the deed. Cited with approval: Cockrill v. Seales, 3 Head, 432; Snoddy v. Kreutch, 3 Head, 301; Marr v. Gilliam, 1 Cold., 490; Chil-ton v. Wilson, 9 Hum., 399, 404, 405.</p> <p>3. EVIDENCE. No reversal for exclusion of, when.</p> <p>Reversal for exclusion of testimony cannot be had unless the testimony is pertinent and material, and such as might change 1he result.</p>

<p>1. SEPARATE ESTATE. Not bound except by express contract or st-iprdation.</p> <p>There is no express contract and stipulation on the part oil a married woman that a debt, contracted by her as a store account for goods sold to her for her own use and that o£ her family, should be a charge ux^on her separate estate, where she simply said to the merchant that she owned property of her own, given her by her father, that she was able to pay for such goods as she and her daughter might purchase, and that she would do so, and that she wanted her account ’Kept separate from her husband’s, and where the proof fails to show that she made any express stipulation that her separate estate should be charged with the payment of the account, or what particular part of the account was made by her for her own use, but on the contrary the proof shows that it was all charged to her husband. [See notes 39, 31, under sec. 4346 of the Code.]</p> <p>2. MARRIED WOMAN. Judgment against, valid, where cover-ture is not pleaded.</p> <p>Where a married woman is sued with her husband, and she does not plead her coverture as a defense to- the action, a judgment rendered against her is not void by reason of her coverture, but it will be valid, and execution thereon may be levied upon property owned by her in her absolute right.</p> <p>Cited with approval: Crawford v. Crawford, 2 Shannon’s Cases, 156; Freeman on Judgments, 149, 150.</p> <p>3. SAME. Same. Judgment as such not binding on separate estate.</p> <p>But where such judgment is rendered against a married woman upon a contract- which was not a charge upon her separate estate in land, and could not have been enforced as such before the judgment was rendered, according to the course of decisions adopted in this state, the execution would not reach her separate estate, and the chancery court will not, in such ease, subject her separate- estate to the payment of such judgment. [See note 38 under sec. 4246 of the Code.]</p> <p>Cited with approval: Ghatterton v. Young, 2 Tenn. Chy., 771; Bank v. Garlinghouse, 36 How. (N. Y.), 369; Swayne v. Lyon, 17 P. P. Smith, 436.</p> <p>4. SEPARATE ESTATE. Power t-o convey except when restricted.</p> <p>The sepiarate estate is subject to the restrictions upon the power of the feme covert to convey o-r charge the same embraced in the deed or conveyance under which she claims. But irrevious to the act of 1869-70, ch. 99 (Shannon’s Code, secs. 4242-4247), no such power of sale or charge existed when the deed or conveyance was silent upon the subject, a.nd she had no- power to act as a feme sole except where such power was expressly conferred by the deed. [See notes 16-44 under sec. 4246 of the Code.]</p> <p>Cited with approval as to- the law before the act of 1869-70, ch. 99: Gray v. Robb, 4 Heis., 74; Morgan v. Elam, 4 Yer., 375; Litton v. Baldwin, 8 Hum., 209.</p> <p>5. SAME. Bound by wife as surety for husband’s debts, when and when not, and how.</p> <p>Before the act of 1869-70, ch. 99 (Shannon’s Code, secs. 4242-4247), a married woman could not, as surety for her husband, by a simple promissory note, with such stipulation upon its lace, bind and charge her separate estate for the payment of his debts, and since such statute, she cannot do so, unless her privy examination is taken as provided in see. 4246 of said Cbde, and not even in that mode when the deed, by a fair construction, repels the idea that the g-rantor intended that the estate should, in this mode, be made subject to the husband’s debts. [Cited and distinguished in Webster v. Helm, 9 Pickle, 329, 330. See note 42 under sec. 4246 of the Code.]</p> <p>Cited with approval: Mayberry v. Neely, 5 Hum., 337; Chatterton v. young, 2 Tenn. Chy., 768, and citations; Molloy v. Clapp, 2 Lea, 586.</p>

<p>CONSTITUTION. Act embracing more than one subject, or subject not expressed in title, is unconstitutional.</p> <p>An act entitled “An act to prevent the wilful and wanton killing- [of] the stock of another,” which forbids the killing of the stock, forbids the cutting- off of the tong-ue, ear, or tail, or putting out the eye, or dismembering or even disfiguring- or wounding any beast of another, or giving poison to such animal, and providing- that the party convicted shall pay the value of the stock killed or the damages sustained for the injuries, is unconstitutional, because the title does not express the subjects thus embraced and included in the body of the act, and because it contains more than one subject. [This ease is cited and doubted in Garvin v. State, 13 Lea, 167.]</p> <p>Cited and construed: Acts 1879, ch. 86; const., art. 2, sec. 17.</p>

<p>1. CRIMINAL LAW. Person assaulted may kill in self-defense, when.</p> <p>A person assaulted by another will be justified in using, in the first instance, such violence in his resistance as will produce death, if the nature and character of the assault, and the circumstances under which it is committed, are such that the party assaulted may reasonably apprehend death, or g-reat violence to his person. [The violence, or g-reat bodily harm, need not be such as would give one reasonable apprehension that his life was in danger, for a reasonable apprehension of great violence, or g-reat bodily-harm, to one’s person will justify killing- in self-defense. Young- v. State, 11 Hum., 20(1; Greer v. State, 6 Bax., 629-631; Hall v. State, 6 Lea, 260. Neither dethronement of reason, nor a whirlwind of passion is necessary to reduce homicide to manslaughter. Young- v. State, 11 Hum., 201; Hale v. State, 1 Swan, 252; Seals v. State, 3 Bax., 463.]</p> <p>Cited with approval: Young- v. State, 11 Hum., 200.</p> <p>2. SAME. Same. One assaulting- witli Ms fists.</p> <p>“Where great “bodily violence is being threatened or inflicted upon a weak person by one much strong-er and heavier, with his fists, and with such determined energ-y that the person assaulted may reasonably apprehend death or great bodily injury, lie is justifiable in using- a deadly weapon upon his assailant. It makes no difference whether the bodily violence is being inflicted with a bludgeon or with the fists of an overpowering- adversary of superior strength and g-rea-ter size.</p> <p>3. SAME. Same. Same. With pistol unlawfully carried.</p> <p>The fact that the assaulted person was unlawfully carrying a pistol cannot interfere with his right to use it, in his proper self-defense, where the facts justify his action to save his life, or person from great violence.</p>

<p>1. MUNICIPAL BONDS. In aid of railroads, void if not ex-pressty authorized by law.</p> <p>A municipal corporation cannot legally issue bonds in aid of railroads, either directly or in payment of subscriptions to their capital stools;, without an express authority given either by a general law of the land, or by a special law for this purpose. No such power can be implied, or can-be inferred from any of the ordinary powers of such corporations. There is nothing in the constitution, art. 2, sec. 29, or the act; of 1870-71, chi 50, to enforce it, nor in the Code (of 1858), secs. 1142-1165, to authorize municipal «rr-porations to .issue such bonds. [See notes under sec. 29 of art. 2 of the const., and Shannon’s Code, seos. 1542a-1573, and notes. Taxpayers of Milan v. Railroad, 11 Lea, 329. This ease is cited in Kelly v. Town of Milan, 21 Eed. Rep., 854, 870, 871.]</p> <p>Cited with approval: Cook v. Sumner Spinning & Manufacturing Co., 1 Sneed, 714; Citj’ of Memphis v. Memphis Gayoso Gas Co., 9 Heis., 534.</p> <p>Cited and construed: Code (T. & S.), sec. 491a, and the statute cited in syllabus and nóte thereto..</p> <p>2. SAME. Same. Defense made against innocent purchaser.</p> <p>The want of authority in a municipal corporation to issue such bonds in aid of railroads, is a defense at all times available by the corporation against the holders into whose hands they came before cine as innocent purchasers for value. [See Taxpayers of Milan v. Railroad, 11 Lea, 329; Ruohs v. Town of Athens, 7 Pickle, 20.]</p>

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

<p>EFEECT OF VEKDICT. Drunkenness. Disqualification, for office.</p> <p>The following- verdict of a jury, “that they find the said T. D. Cassetty was a magistrate of Davidson county on the day named in the indictment, and was drunk, hut not discharging the duties of said office on that day, but do find him g-uilty of common misdemeanor,” where the indictment was found under the statute against official drunkenness, is not a conviction of a misdemeanor in office subjecting- such officer to the penalty of dismissal from his office and future disqualification, but is merely a conviction for a “common misdemeanor.” [See Carpenter v. State, 6 Bax., 535-537.]</p> <p>Cited and. construed: T. & S. Code, secs'. 4817, 4818a; Shannon’s Code, secs. 6781 and 6783; acts 'of 1859-60, ch. 10.</p> <p>Cited: State v. Smith, 3 Heis., 465.</p>

<p>1.-UNIVERSAL PARTNERSHIP. Dissolved by a division and partition oí part of the partnership property, when.</p> <p>A universal partnership, providing- for a dissolution by either party at any time, is of that peculiar character that any modification must at once end it. Any modification of a universal partnership, to be effectual. according- to the intent of the parties, must destroy the universality, and create a new contract, which may consist of the old agreement with the modification. A division of part of the partnership property terminates the universal partnership, and creates an ordinary partnership as to the undivided property.</p> <p>2. SAME. Same. Parol partition and adverse possession for seven years creates indefeasible title, when.</p> <p>A parol partition of land between universal partners is defective, and may be impeached by either of the parties within the time allowed by law, subject to the rule of equity in .cases of making- a subsequent partition conform as nearly as possible with the parol partition, but where the parties acquiesce in what is done, and one holds the continuous adverse possession of the land allotted to him for more than seven years before any suit is brought to recover the land, or to have a. new partition thereof, an indefeasible title is vested in him, although the other party refused to- execute a deed of partition and insisted that the division was not binding until the title had been perfected by the statute of limitations. [On statute of limitations, see Code, secs. 4450-4401, and notes, and especially note 27 under sec. 4461. On parol partition, see notes 48, 49, under sec. 3142 of the Code.]</p> <p>Cited with approval: Tyner v. Eenner, 4 Lea, 474; King- v. Rowan, 10 Heis., 675; Saunders v. Hackney, 10 Lea, 194, 203; Hubbard v. Wood, 1 Sneed, 279.</p>

<p>Appeal in error from circuit court of Knox county.</p>

<p>1. STATUTE OE EBAUDS. Parol contracts enforceable, if statute not relied on; third parties cannot object.</p> <p>A parol contract for the sale of land is not absolutely void, for it may be specifically executed as ag'ainst either party if he fail or refuse to rely upon the statute of frauds; and if the parties themselves choose to execute the contract, third persons cannot object. [Cited and approved in Brake-field v. Anderson, 3 Pickle, 211, 212. See notes 50, 51, under sec. 3142 of the Code. See Big-g-s v. Johnson, 1 Shannon’s Cases, pag-e 622.</p> <p>2. SAME. Part performance does not take case out of.</p> <p>Part performance of a. parol contract for the sale of land will not take the case out of the statute, and, therefore, neither the taking- of possession of the land by the parol vendee and permanently improving- it, nor the payment of purchase money, will prevent the vendee from” electing- to avoid the contract. [Cited and approved in Brakefield v. Anderson, 3 Pickle, 209. See note 92 under sec. 3142 of the Code.]</p> <p>Cited with approval: Patton v. McClure, M. & Y., 333; Pipkin v. James, 1 Hum., 325.</p> <p>3. SAME. Parol recognition of parol contracts does not take case out of. Estoppels must be mutual.</p> <p>Transactions between the parties which recognize the validity of a parol contract required by the statute of frauds to be ■ in writing-, but fall short of the requirements of the statute, will not estop either party from avoiding- the contract. Therefore, transactions by'one of the parties with third persons, although in recognition of the contract, cannot have a greater effect than the transactions with each other. Estoppels must be mutual, and one party cannot be estopped by an act which leaves the other party at liberty.</p> <p>4. SAME. Vendee avoiding parol sale of land must restore the possession; one seeking equity must do equity.</p> <p>That a person who comes into chancery for equity must do equity, and must consequently show that he is in a condition to comply with the requirement before he can put the machinery of the court in motion in his favor, is a fundamental principle of equity which often closes the door of a court Of chancery against a party when seeking relief in that forum, however clear may be his legal rights, which is independent of the doctrine of estoppel in its usual sense. Although a vendee may file a bill to avoid a parol contract for the sale of land, and to recover the purchase money paid, yet he can only obtain relief in equity by placing- the vendor in statu quo, and restoring to him the possession of the land, at least, at the end of the litigation. If he has parted with the possession of the land to a third person by a contract binding ejión him, he is of course no longer in that condition. He is consequently asking- equity when unable to comply with the necessary pre-requisite to its attainment. And he may lose some of his usual rights in equity by inequitable conduct to th.e prejudice of tlie other party, even where the parol contract is avoided.</p> <p>Cited with approval: Eainer v. Huddleston, 4 I-Ieis., 233; Guthrie v. Holt, 9 Bax., 527.</p> <p>5. SAME. Bights of vendee avoiding- parol sale of land.</p> <p>A vendee of land by parol contract is entitled to elect by bill to avoid the parol sale of the land, and to recover the purchase money paid with interest from the timé of payment, together with any permanent enhancement of the value of the land by improvements, accounting- for reasonable rents and profits.</p> <p>Cited with approval: Winters v. Elliott, 1 Lea, 676; Hayes \\ Worsham, 9 Lea, 591; Treece v. Treece, 5 Lea, 221.</p>

<p>CHANCERY PLEADING AND PRACTICE. Res adjudícala against wife made defendant with, husband. Homestead. Bill of review.</p> <p>Where the creditors of a husband file a bill against him, his wife and son, to set aside a conveyance made by him to them, on the g-round that it was voluntary, and intended to hinder and delay his creditors, and praying- for a sale to pay their debts, and the bill is taken for confessed as to the husband and wife, and, the cause is heard upon the bill, order pro' confesso, and answer by g-uardian ad litem of the infant son, and a decree is rendered declaring .the conveyance fraudulent, and ordering- the land sold, which was done, and a writ of possession was issued, and the wife turned out of possession in the absence of her husband, the question of the right to homestead is adjudicated. The wife being- a party to the suit, was bound to have interposed her claim for homestead, and not having- done so, she is precluded from asserting any right to homestead. A bill of review will not lie to review such a decree for error of law on the face of it.</p>

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

<p>1. PRIVATE CORPORATIONS. Stockholders may be permitted to malee defense to suits, when officers fail to defend.</p> <p>In a bill by a stockholder to settle and adjust the debts and liabilities of the corporation and its stockholders, and asking' to be permitted to. defend suits against the corporation on behalf of himself and other stockholders, if the officers thereof did not defend, he will be permitted to make such defense, and a claim sued on by another stockholder may be shown to be invalid by him and the other stockholders under-such a bill.</p> <p>2. SAME. Same. Debt not sired on cannot be allowed.</p> <p>Where, in such case, the claim of the party so- suing is disallowed, he is not entitled to a reference for a debt not sought to be established.</p> <p>3. SAME. CHANCERY AND SUPREME COURT PRACTICE. Decree confirming' master’s report reversed.</p> <p>Where, in such ease, a creditor’s claim consisting of judgments is disallowed by the report of the clerk and master, which is confirmed by the court, and the creditor excepts to the report and appeals, the supreme court will reverse such decree and allow the claim. •</p> <p>4. SAME. Same. Same. Exceptions to report founded on erroneous decree, or order of reference, not necessary.</p> <p>Where, in such case, a creditor files a petition making no defendant to it, and to -which no defense is made, and there is no order allowing' it to be filed, or petitioner to become a party, and no judgment for confessed, and no issue made on it, or order about it, and no proof taken, a decree rendered in favor of petitioner for the alleg-ed debt, which is afterwards reported by the master as a debt due petitioner, though the report is unexcepted to, will, upon appeal, be reversed by the supreme court. A report of the clerk and master, founded on an erroneous decree preceding-, or made under an erroneous order of reference, although confirmed without exception, will be set aside on appeal, if the decree or order of reference is reversed.</p>

<p>1. ADMINISTRATION. Appeal from allowance of compensation of personal representative on settlement vacates the entire judgment.</p> <p>Where the personal representative excepts to- the settlement of the estate made with the clerk of the county court on the ground that his compensation should be a certain amount more than was allowed him, and his exceptions are overruled, the settlement approved and confirmed, and he is ordered to pay over to the clerk the sum found against him, and from the decision of the court disallowing his exceptions he appeals to the chancery court, the appeal has the effect to suspend or vacate the entire decree or order of the county court, so long as this exception remains undisposed of and undetermined in the appellate court. '</p> <p>2. SAME. Same. Proceeding- to have an affirmance is a proceeding- to revive a pending suit, and no-t’barred by statute, when.</p> <p>Where the personal representative so appealing- dies, and the record is not filed in the chancery court, and the dis-tributees of the estate of the first decedent file the record for the purpose of having the decree of the county court affirmed, and by scire facias against the personal representative of the said deceased representative foa- a revivor, the proceeding is in the nature of a proceeding to revive a pending- suit, and the statute of two years in favor of personal rexn-esentatives is not a bar.</p> <p>3. SAME. Same. Same. Distributees proper parties to- seek revivor and affirmance.</p> <p>On an appeal by the administrator from the decree of settlement of his accounts with the decedent’s estate in the county court to the chancery court, the distributees of the estate, and not the successor to the deceased administrator, are the proper parties in a, proceeding- to- revive ag-ainst the administrator oí the deceased administrator, and to have an affirmance oí the decree of the county court.</p> <p>4. SAME. Same. Same. Same. Parties ax^pearing- in county court as distributees without question will be so prima facie treated on appeal.</p> <p>Where parties appear in the county court, and as distributees, except, or offer to except, to the settlement of the administrator's accounts, or to appeal from the decision of the court in such case, their right to do so must be decided by the court, and the court must determine whether they are in fact distributees or not; and where they are treated as distributees without question in that court, they will, on an appeal, be treated prima facie as distributees in the chancery court, and it will not be required that they first-show that they are distributees.</p> <p>5. SAME. Judgment on administrator’s settlement for those entitled, not for any particular individuals.</p> <p>The order of the court to compel the administrator to pay into the office of the clerk the balance that may be found ag-ainst him upon the settlement of his accounts is not in forxiy or nature of a judgment in favor of any particular individuals, but an order to pay the money into the clerk's office for the benefit of those entitled, where the proper parties must appear and satisfy the court of their right to the fund.</p> <p>Cited and construed: Code (1858), sec. 2307; Shannon’s Code, sec, 4043.</p> <p>6. SAME. Either party may appeal from settlement of administrator’s accounts, when.</p> <p>On the settlement of the administrator’s accounts, the parties interested, ux>on notice of the clerk, may axspear, but it is not absolutely essential' that they appear, but they may appear, and either party may appeal as provided by statute.</p> <p>Cited and construed: Code (1858), secs. 2303, 2304; Shannon’s Code, secs. 4039, 4040.</p>

<p>Appeal from chancery court of Shelby county. R. J. Morgan, chancellor.</p>

<p>DEEDS OE CONVEYANCE. Construction of. Rule in Shelley’s case. Restraints on alienation. Statement of case.</p> <p>Where the deed conveys lauds to the grantor’s children, their heirs and assigns forever, vesting- in them by the terms of the first or conveying part of the deed an absolute fee simple title, with the following clauses added: '“(1) But it is nevertheless understood, and hereby expressly named, that the said grantor reserves to himself, natural guardian, the sole and exclusive right and privilege of renting or leasing- for a term of years the said premises above described, and of receiving- the rents and profits thereof, to be used and applied by him at his discretion for the support, main-ten anee, and education of said children during the natural life of the said grantor. (2) And it is further hereby expressly stipulated, covenanted, and agreed that the said property hereby conveyed is not. to be subject to the control or disposition oí any one, or all, or either of the grantees above named; nor shall they, or either of them, have or possess the power or authority to convey, sell, mortgage. deed, convey, or otherwise dispose of the same, (3) 'but it is to be held for the sole and exclusive use and benefit of them, the said g-rantees, during their lives, and of the legal heirs of their bodies, (4) and their own proper descendants forever; (5) nor shall the said property be bound or in any manner subject to any debt or debts, contract or contracts, of the said grantees, or either of them, in any manner or form whatever,” it is held:</p> <p>3. DEED OP CONVEYANCE. Construction of language giving-legal title to grantees, though certain trusts reserved by g-rantor, when.</p> <p>Upon the lang-uag-e of the first of the above clauses, that the title of the children, the first takers, was a legal title from and after the death of the grantor, for the right of control reserved was during- the life of the grantor, and not the 'life of the grantees. This legal title, by implication vested in the grantor to support the trust, would end when the purposes of the trust were accomplished, at the death of the grantor; so the grandchildren would take the legal title directly from their ancestors, precisely as by descent, and thus come strictly within the reason of the rule ni Shelley’s case.</p> <p>2. SAME. Rule in Shelley’s case giving- first takers absolute estate; example of.</p> <p>Upon the language of the third and fourth of the above clauses, it is said that, taking this language without reference to other portions of the deed, it must be held, either by operation of the rule in Shelley’s case, or by operation of the statute upon estates tail, to vest the first takers with the absolute fee. This result was not chang-ed by other portions of the deed. [This deed was made on the twenty-seventh day of September, 1837;- and before the rule in Shelley’s case was abolished, and was, therefore, construed according- to the law before ,'said rule was abolished. See Code, sec. 3674, and notes.]</p> <p>Cited with approval: Polk v. Paris, 9 Yer., 210.</p> <p>3. SAME. Same. Language not taking case out of the rule in Shelley’s case; example of.</p> <p>The language of the fourth clause can have no other effect than to indicate the line of descent in which the property was to gO' — tha,t is, To .the descendants as heirs. It does not, as argued, take the case out of the rule in Shelley’s case, nor make the estate of the first takers only for life, nor ingraft thereon a new inheritance in favor of the descendants.</p> <p>*. SAME. Restriction on alienation of an absolute .estate is void.</p> <p>If bj a fair construction of the whole deed, an absolute fee simple legal title is conveyed, with a mere restriction upon the power of alienation or disposition, the restriction must fail, as both cannot stand. Such a restriction would b'e contrary to the spirit and policy of our law, and cannot prevail, and at the same time carry out the purpose to vest a fee simple title. By a fair construction of the whole deed in this case, an absolute fee simple estate is conveyed to the first takers, and the restrictions on their alienation or disposition contained ip the second and fifth of the above clauses a.re null and void. [In the case of Fowlkes v. Wag-goner, decided by the court of chancery appeals of Tennessee, and affirmed orally by the supreme court, and reported in 46 Southwestern Reporter, 586, it-was held that where a father devised land absolutely in fee simple, with a direction “that he shall not sell or dispose of the. said land until after he arrives at the age of twenty-five years,” without more, the restriction upon alienation was void, and that his sale and conveyance and death before reaching said age gave the purchaser a good title.]</p>

<p>1. LIFE INSURANCE. Guardian cannot assign and surrender a paid-up policy payable to bis wards.</p> <p>Where the husband procures a paid-up policy of insurance on his life, payable at his death to his wife and children, he cannot, as guardian of his children, assign and surrender the same or their interest therein to the insurance company for its estimated present value. The policy has become a vested interest in his wife and children, over which he cannot exercise any control.</p> <p>2. SAME. Wife not bound' by assignment of policy consummated in New York, when.</p> <p>Where, under the laws of New York, a married woman cannot assign a policy of insurance on her husband’s life, a married woman living in Tennessee cannot, by a contract-consummated in New York, assign or surrender to the insurance company' there a paid-up policy of insurance on her husband’s life, payable to herself and children, for its estimated cash value, because in such case the laws of New York, where the contract is consummated, must govern. [In this state the wife may assign such policy, if consummated here. See notes 10-12 under sec. 4030 of the Code.]</p> <p>Cited with approval: Risou v. Wilkerson, 3 Sneed, 568; Eadie v. Slimmon, 20 N. Y., 9.</p> <p>3. SAME. Same. Assignment of policy procured by fraud or duress, void.</p> <p>In this case, the court was satisfied that there was a combination of influences and appliances brought to bear upon' the wife by the creditor and her husband, with the knowledge and acquiescence of the insurance company, which would justify the court in declaring the assignment void for fraud, if there was no legal duress.</p>

<p>1. COUNTIES AND MUNICIPAL COEPOBATIONS. Becitals in county and municipal bonds pa-otect bona, fide holders, when.</p> <p>If an election or other fact is required to authorize the issue of the Donds of a municipal corporation or county, and if the result, of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer, or tribunal, and that judge, officer, or tribunal, on behalf of the corporation, executes or issues the bonds, with a recital that the election has been held, or that the fact exists, or has taken place, this will be sufficient evidence of the fact to all bona fide holders of the bonds.</p> <p>Cited with" approval: Kenieott v. Supervisors, 16 Wall., 464 (21 L. ed., 320).</p> <p>2. COUNTIES. Indorsement of railroad bonds 'by chairman of county court binds county, when. .</p> <p>Under the constitution and statutes of Tennessee providing • that “the credit of no county, city, or town shall be given or loaned to or in add of any person, company, association, or corporation, except, first, upon the consent of a majority of the justices of the peace of the county at a quarterly term of the coxmty court of such county, or a majority of the board of the mayor and aldermen, as the case may he, of such city or town, and upon an election afterwards held by the qualified voters of said county, city, or town, and the assent of three-fourths of the votes cast at said election,” an indorsement upon bonds issued by a railroad company payable to a certain named county or order, made by the county before said bonds were negotiated or delivered, and as an original contracting party for the purpose of imparting value thereto, under the hand and seal of the chairman of the county court thereof, in these words: “The credit of the county of Shelby, State of Tennessee, under and by virtue of an act of the general assembly of the State of Tennessee, approved January 33, 1871, is hereby pledged for the payment of this bond, and coupons attached, at maturity, in accordance with an order of the court of said county, passed October 5, 1871, and approved by the people at an election held in said county on the eleventh of November, 1871. Witness my hand and seal, at Memphis, this July 1, 1871. [Signed] T. C. Bleckley, Chairman of County Court. [Seal],” is sufficient evidence of the facts therein recited and the authority of the chairman to make such indorsement. Everything- is stated to. show the object for which the indorsement was made.</p> <p>Cited and construed: Acts 1870-71, ch. 50, sec. 1 [see Shannon’s Code, secs. 1543b, 1547; T. & S. Code, sec. 491a]; const., art. 3, sec. 39, cl. 3.</p> <p>3. COUNTIES. Profert of coupons sued on and the bonds. Averment and evidence of recitations and indorsements.</p> <p>Where the holder of the coupons of such railroad bonds sues thereon and in his declaration makes profert of the bonds, and the indorsements thereon, not only for the purpose of showing his title, and the liability of the county to pay the coupons, but also that the bonds were issued for the purpose of building- a certain railroad, and that the county had, by its indorsement, thereby lent its credit to the railroad company in aid of the construction of the road, and all this appearing- clearly upon the face of the bonds and the indorsement or guaranty thereon by the county, it is sufficiently averred what the county purpose was, and that the county is liable on the coupons, and a demurrer to the declaration will he overruled.</p> <p>4. COUNTIES. Construction of railroads through it is a county purpqse.</p> <p>The indorsement and guaranty of railroad bonds by a eounty to aid in the construction of its road is a legitimate county purpose, and binds the county to pay the bonds and coupons.</p> <p>Cited with approval: Railroad v. Counties, 1 Sneed, 638.</p> <p>5. SUPREME COURT PRACTICE. Appeal without bill of exceptions as to trial on merits presents questions on demurrer only.</p> <p>Where a demurrer was overruled, and the defendant pleaded, and upon a trial judgment was rendered in favor of plaintiff, upon an appeal by the defendant, without bill of exceptions and without charge of court, the only question presented .to the supreme court is whether the court below erred,m overruling the demurrer, and if not, the judgment of the lower court will be affirmed.</p>

<p>Appeal from chancery court of Sbelby county. "W. L. Scott, chancellor.</p>

<p>Appeal in error from circuit court, Shelby county.</p>

<p>Appeal from circuit court, Shelby county. Irving Halsey, Judge.</p>

<p>Appeal from circuit court, Shelby county. Irving Halsey, Judge.</p>

<p>1. WILLS. Testator’s intention to prevail as law lie is allowed to make.</p> <p>The intention, of the testator must he the paramount guide in all eases. The courts must look for that intention in the will itself, and when it is apparent, that intention must not he lightly reg-arded or reluctantly executed, for “men’s deeds and wills by which they settle their estates, are the laws which private men are allowed to make, and they are not to he altered even by the king- in his courts of law or conscience.” But the intention must be so plain on the face of the instrument, or capable of being- made so plain, that tlie executor may proceed to execute his trusts without the slightest misgiving-, and with the absolute conviction that he is doing- exactly what his testator intended he should do, no more and nothing- less.</p> <p>Cited and quoted with approval: Plowd., 345.</p> <p>2. SAME. Patent ambiguity defined.</p> <p>A patent ambiguity does not mean a mere inaccuracy of expression, or such uncertainty as arises from the- use of peculiar words, or of common words in a peculiar sense. It occurs when the expression of the instrument is so obscure that the court construing it, placing- itself in the situation of the parties, cannot ascertain therefrom the intention of the parties. In order to relieve the instrument of that degree of uncertainty which in law would render it null and void, its susceptibility of definite and accurate explanation by parol must be apparent.</p> <p>Cited with approval: Wig-ram on Wills, 174; 1 Greenl. on Ev., 202, 300; 8 Mete. (Mass.), 576.</p> <p>3. SAME. Same. Example oí.</p> <p>Where a testator malting- his will in February, 1873, and dying- a few days thereafter, directs in the third clause of the will that “the real estate, property, mill, and lands known as the Ray and Ridg-eway be sold at the most convenient time that may be agreed upon by his executor, and the guardian of testator’s children. But that said sale is not to interfere with the arrangement already made in regard to said pro-perty for the year 1873.” The fourth clause following immediately after this in these words: “I will whatever amount said property may bring more than it cost me, be equally divided between my estate and the parties who have lost money on the same, giving to those who have lost in proportion to their respective interests and losses.” The manifest obscurity of this clause is nowhere removed or relieved by any other clause of the will. It is held that this foxu-th clause is absolutely void for uncertainty, and that the obscurity is not such a latent ambiguity as may be elucidated by parol evidence aliunde.</p> <p>4. SEPARATE ESTATE. Created for life with remainder to children, when.</p> <p>Where a testator in his will directs that his “property titles shall be vested in his daughters, and their children, and not to their husbands,” the intention was to. secure the respective shares of his daughters to their sole and separate use, with remainder to their'children, free from all liability for the debts and contracts of their husbands, and the court will so declare and adjudge.</p> <p>5. HOMESTEAD. Technical meaning’ given to the word as defined by our laws, unless context show's ordinary meaning intended.</p> <p>The rule of law' is that words, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification; but if technical words are used, they are to be taken in their technical sense, unless a contrary intention shall clearly appear. The construction is a matter of intention, and must be gathered from the context. In this state the law itself has defined the word “homestead,” and it has a strict technical meaning. The constitution makes it a matter of constitutional right in the head of the household, wi1h survivorship in the widow in the case of husband and wife. Thus, where a testator in his will, ma.de in 1873, just a few days before his death, uses these words: “I will that my other real estate, except my wife’s homestead, be sold at any time by the mutual consent of my executor and the guardian, and the means reinvested in real estate when it is best for my heirs to do so; and the homestead to be sold only by the concurrent consent of my wife, executor, and guardian, and reinvested in real estate,” indicates his intention to let the law carve out the homestead for his -wife, and he used the words “my wife’s homestead” in their technical sense,, meaning- the land, mansion, and its appurtenances which the law secures to her, and not the place upon which the testator and wife resided at his death, regardless of its size or value.</p> <p>Cited and approved on rule as to meaning- of words: 27 N. H., 241; 15 Johns., 471.</p>

<p>1. CONSTITUTIONAL LAW. Constitution supreme law of the land, and constitutional questions demand grave considera- . tion.</p> <p>Constitutional questions in a republican form of g-overnment like ours, always demand grave consideration. The constitution of our state is not to be lightly esteemed, but must be held, both in great and small matters, to be the supreme law of the land. (Pp. 237, 251.)</p> <p>2. SAME. Freedom g-uaranteed, and limitations imposed.</p> <p>Our constitutions, state and federal, embody the great guarantees for freedom of the citizen that have been wisely wroug-ht out by the experience of ag-es past. Not only this, but they contain the limitations which the people have imposed upon their official ag'ents as well as upon themselves through their representatives in our legislature, which cannot be disregarded. (P. 237.)</p> <p>3. SAME. Legislative power unlimited except as forbidden by the constitution; limitations imposed’ are imperative, and acts violative thereof are void.</p> <p>It is true, as an axiom admitted everywhere by the courts of the United States, that the legislature of a state may exercise- all legitimate powers appertaining to the government of a free people representing as it does the sovereign will of such a people, except what is expressly or by fair implication forbidden by the constitution of such state, yet limitations therein imposed must always be held as imperative, the supreme law of the land, which no legislature can disregard. If it should be done, then it is the duty of any or every court in the land to declare such act void as beyond the power of the legislature and in violation of the embodied will of the people as expressed in their constitution of government. (P. 237.)</p> <p>4. SAME. All laws to be constitutionally tested, and if forbidden by the constitution, to be held void.</p> <p>Every act of the legislature, when before our courts for interpretation or application, must be brought to the test as to whether its provisions are in accord with the requirements of the constitution. If the law be forbidden by that instrument, the enactment must be held void, regardless of all .other considerations. (P. 238.)</p> <p>5. SAME. Ownership of property cannot be taxed as a privilege, but the business in which it is used may be taxed as a privilege.</p> <p>The legislature cannot, under our constitution, declare the simple enjoyment, possession, or ownership of property of any kind a privilege, and tax it as such. It may declare the business, occupation, vocation, calling, pursuit, or transaction, by which the property is put to a peculiar use for a profit to be derived from the general public, a privilege, and tax it as such, but it cannot tax the ownership itself as a privilege. The ownership of the property can only be taxed according to value. (P. 245.)</p> <p>6. SAME. Same. Dogs may be taxed as other property, but the ownership of them cannot be taxed as a privilege.</p> <p>Dogs are property, and under the constitutional provision that “all property shall be taxed according' to its value, that value to be ascertained in such manner as the legislature shall direct, so that taxes shall be equal’ and uniform throughout the state,” dogs may be taxed as such, if taxed according to value as other property, but they cannot be taxed at so much per head for the privilege of keeping them, regardless of value. A dog is property, notwithstanding the fact he is not property of general use, or has no market value. (Pp. 245, 246.) [In the case of the State v. Brown, 9 Bax., 53, 56, it was held that a dog, if he have an owner, is personal property, and if of any value, is the subject of larceny. See Wheatley v. Harris, 4 Sneed, 468; Citizens’ Rapid Transit Co. v. Dew, 16 Pickle, 322, 325; Sentell v. Railroad, 166 U. S., 698 (L. ed., Book 41, p. 1169.]</p> <p>7. SAME. Same. Same. An enactment taking dogs for the privilege of keeping them, is unconstitutional and void.</p> <p>A revenue act declaring' the keeping of dog's a privilege, and taxing the owner or harborer of dogs so much per head for the privilege of keeping or harboring them, is a tax on the simple ownership of property, or the harboring of it, as a privilege regardless of value, and not a tax upon any peculiar use of it for profit to be derived from the general ' public, nor a tax upon a vocation, calling, or pursuit as a privilege, and is therefore unconstitutional and void. (Pp. 238, 239.)</p> <p>Cited and held unconstitutional: Act 1875, eh. 67 [repealed by act 1877, ch. 8].</p> <p>8. STATUTES. Body of act may show one of two objects in title thereof to be the leading' object and the other the incident or result.</p> <p>Where the title of an act is “An act to increase the revenue of the state, and to encourage wool growing,” it indicates two objects, namely, the increase of state revenue and the encouragement of wool growing; but where the body of the said act shows that the leadjng object is the increase of the revenue.of the state, and that the encouragement of wool growing is only an incident or probable result of the leading obje'ct of the enactment, th,e act must be treated as a reyenue act, one in which the legislature intended and has exercised the taxing power, and not an act in the appropriate exercise of the police power of the State. (Pp. 237, 250.)</p> <p>Cited and construed: Acts 1875, ch. 67 [repealed by act 1877, ch. 8].</p> <p>9. PRIVILEGES. Definition of the term “privilege” as used in the state constitution.</p> <p>The settled judicial construction, interpretation, and definition of the term “privilege” a,t the time of the adoption of our constitution in 1870, in which sense the term was used in that instrument, was, “the exercise of an occupation or business, which requires a license from some proper authority, designated by a general law, and not open to all, or any one, without such license.” The essential element of the definition is occupation and business, and not the ownership simply of property, or its possession or keeping it. The tax is on the occupation, business, pursuits, vocation, or calling, it being one in which a profit is supposed to be derived by its exercise from the general public, and not a tax on the property itself, or the mere ownership of it. (Pp. 242, 243.)</p> <p>Cited wdth approval: Mabry v. Tarver, 1 Hum., 94; Cate v. State, 3 Sneed, 121; State v. Schlier, 3 Heis., 283; French v. Baker, 4 Sneed, 193 [see Robertson v. Heneger, 5 Sneed, 258; Columbia v. Guest, 3 Head, 414; Jenkins v. Ewin, 8 Heis., 4?&; Clarke v. Montague, 3 Lea, 277; Dun v. Cullen, 13 Lea, 204; Railroad v. Harris, 15 Pickle, 702].</p> <p>Cited and construed: Code (1858 and T. & S.), sec. 550; M. & Y. Code, sees. 604, 617; Shannon's Code, secs. 692, 712.</p> <p>10. SAME. Same. Legislature cannot declare anything else not included in the definition a privilegie and tax it as such, and destroy ad valorem and uniformity of taxation.</p> <p>To assume as correct the proposition argued, that whatever the legislature shall so declare, is a privilege, is to make the clause of the constitution, providing that “all property shall be taxed according to its value, that value to be ascertained in such manner as the legislature shall direct, so that taxes shall be equal and uniform throughout the state” (const., art. 2, sec. 28) as conferring a power, or limiting or defining a power in the legislature; useless, -inoperative, and absurd. If the power conferred to tax in this mode is only equivalent to' the will or discretion of the legislature, then this clause of the constitution is practically a nullity, ceases to be any rule, or to operate at all over the subject, but only the will of the legislative body would be. supreme over the question so that in fact anything- and all property could be taxed exclusively in this way, and thus the rule of taxation according to value be annulled. This cannot be the proper construction of the said clause under consideration. (Pp. 244, 245.)</p> <p>11. SAME. Actually issued license or tax receipt only evidence of the grant of the privilege, and not an essential feature of it.</p> <p>It seems that it is not an essential feature of a privilege that an actual license be issued to the party, for it is only the evidence of the grant of the right to follow the occupation or business, and while the usual and perhaps universal incident to such grant, yet a tax receipt even is or may be the evidence of the grant; still the thing declared to be a privilege is the occupation or business, the license but the incident to its engagement, prescribed by statute, assuming, however, that the licens’e in one form or the other is to be had. (P. 243.)</p> <p>12. POLICE POWERS OP THE STATE. Different from taxing-power, though taxes may tend to reach same end in some cases.</p> <p>The police power of the state is a very different one from the taxing- power, in its essential principles, though the taxing power, when properly exercised, may indirectly tend to reach the end sought by the other in some eases. (P. 246.)</p> <p>13. SAME. Same. Privilege and license laws not an exercise of police powers, when.</p> <p>Where revenue is the leading object of the privilege and license laws, thoug-h they may, as a mere incident or result thereof, to some extent, in some cases, as in that of the sale of intoxicating liquors, check or prevent the business, it does not follow that because this effect may in some degree follow, .that it is the end of the law, nor that it is done in the exercise of the police power of the state. (Pp. 350, 251.)</p> <p>14. SAME. Based on certain maxims.</p> <p>The police power of the state is based on the maxims that a man must so use his own as not to dO' wrong to another, that the individual citizen shall so enjoy his own rights as not thereby to infringe upon the rights of others, that the. interest and rights of the individuals or a class of individuals is to be made subservient to the higher interest of the whole or a majority of the people of the state, whenever the minor interest shall conflict in the judgment of the legislature with that of the greater. (Pp. 246, 247.)</p> <p>15.. SAME. Same. Principle on which founded.</p> <p>The police power of the state is a principle g-rowing out of the nature of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right, to the enjoyment of their property, nor injurious to the rights of the community. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and reg-ulatdons established by law as the legislature, under the governing and controlling' power vested in them by the constitution, may think necessary and expedient. (P. 247.)</p> <p>Cited with approval: Commonwealth v. Alger, 7 Cush., 53, 84, 85.</p> <p>16. SAME. May be exercised in the 'suppression, repression, and regulation of dogs, and in other instances.</p> <p>In the exercise of the police power of the state, the legislature may, by a proper enactment, declare ihe keeping of dogs a nuisance, or limit the number to be kept, or particular species of, them with known tendencies to. do injury by devouring sheep; it may impose penalties for keeping such animals, to be enforced by fine or otherwise, on conviction; it may regulate the manner in which such animals shall be kept, as by forbidding them to. be allowed to go-at large except when in use and under control of competent persons, or require them to be kept muzzled or collared so as to be incapable of doing- mischief, and, in fact, may make whatever kind of regulation or requirement in this direction that may be adequate to the end to be attained; for instance, the protection of that valuable and increasing-indtistry, wool growing, in our state. Several instances of the exercise of the police power are g-iven in the text and authorities cited. (Pp. 247. 249, 251.) [Our statues agaiDst sheep killing dogs. See Shannon’s Code, sees. 2871-2873, ' 6527, 6528.]</p> <p>Cited and construed: Acts 1875, ch. 67, sec. 4; acts 1865-66, ch. 3, sec. 1; T. & S. Code, sec. 4665a; Shannon’s Code, sec. 6527; M. & V. Code, sec. 5428.</p> <p>Cited with approval: Cooley’s Const. Lim., 572 et seq., 594, 595 (6th ed., 704 et seq., 712 et seq., 739-741); 100 Mass., 136.</p> <p>17. SAME. No destruction of property without a previous adjudication.</p> <p>Except in the well known cases, recognized at common law, of g-reat emergencies, such as the demolition of a house in a city to check the progress of a fire, etc., neither dogs nor any other property shall be destroyed without a previous adjudication to that effect. In the case of the destruction of any property, with the exception stated, the rule of the constitution of our state must be followed, which is that “no man shall be . . . deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land.” (Pp. 243, 249, 250.)</p> <p>Cited and construed: Const., art. 1, sec. 8 [see art. 1, sec. 31, and art. 11, sec. 8].</p> <p>Cited and disapproved as to destruction of dogs without previous adjudication: 100. Mass., 136.</p> <p>IS. SAME. Same. “The law of the land” and “due process of law” defined.</p> <p>The phrase “the law of the land,” as used in the constitution, is equivalent to the phrase “due process of law,” and does not mean a statute passed for the purpose of workilfg wrong, lor such construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense, and would but be to say to the legislature, “You shall not do the wrong, unless you choose to do it;” but the meaning- is, that no member of the state shall be disfranchised or deprived' of any of his rights and privileges, unless the matter shall be adjudged against him upon trial had according- to the course of the common law. 11 must be ascertained judicially that he has forfeited his rights, before he can be deprived of them. It cannot be done by mere legislation, but only by adjudication, with the well known exception mentioned and referred to in the last syllabus. (Pp. 243, 249, 250.) [See Const., art. 1, sec. 8, and notes, and Henley v. State, 14 Pickle, 667.]</p> <p>Cited with approval: Taylor v. Porter, 4 Hill (N. Y.), 140; Sedg-w. on Const, and Stat. Law, 478 et seq.</p>

<p>1. SUBROGATION. None in favor of heirs disincumbering' their inheritance, when done without intention of subrogation.</p> <p>Where the heirs come forward and out of the rents and profits of the estate, and from other moneys advanced by them, pay off a large amount of the debts of the estate, assuming or supposing the estate would be solvent, and leave them a larg-e inheritance; but it truns out unfortunately that by reason of shrinkag-e in values, caused by changed state of the times, that the estate ultimately proves insolvent, they cannot be preferred as against other creditors, and have a claim allowed as a charge on the real estate to the extent of the moneys advanced by them, because the payments were made by parties claiming- an interest in the property for the purpose of relieving their own estate voluntarily made, and with no view or purpose at the time of fixing or keeping- up a charg-e on the estate, but on the contrary to relieve it from such charge, and such charge cannot afterwards be raised contrary to the purpose at the time of payment, because of subsequent changes in the state of the property arising out of chang-e of times and shrinkage in value. [See Mitchell v. Mitchell, 8 Hum., 361; Motley v. Harris, 1 Lea, 582.]</p> <p>Cited with approval: Belcher v. Wickersham, 9 Bax., 111.</p> <p>2. SAME. Same. Same rule as to widow.</p> <p>Where testator devises his real estate to his wife during her natural life, or widowhood, for the use- of her and his children, with a provision for an equal division of it among her, and his children in case she cannot malee a support, or is wasting or squandering- the estate, or in case of her marriage; and after his death, she voluntarily pays off and discharges out of the proceeds and profits of the estate, the balance of an express vendor’s lien on the land, remaining after tire personalty of the estate was exhausted in payments thereon, with no purpose or view of keeping up or fixing a charge on the land at the time of payment, but to disincumber it of its burdens, and relieve it of the specific charge on it in her hands, whether as trustee for her chil- . dren or as owner for life or widowhood in her own right, she cannot be substituted to the rights of the holder of the vendor’s express lien, and have the money so- paid declared a lien on the land as against her children. It is too late, ten years after such payments, to resuscitate or bring into existence such a claim, having no basis for its support in the facts of the transaction at the time the payments were made. See note and citations under last syllabus.</p> <p>3. WILLS. Rule of construction to ascertain. intention, but little aid from precedents.</p> <p>The intention of the testator gathered from the whole scope and the tenor of the will, to be construed in the light of the surrounding facts, is the paramount rule in the construetion of a testamentary paper, and, except in. cases where technical language is used, having-, as a matter of law or public policy [acquired a fixed and peculiar meaning- distinct from the popular sense], the lang-uag-e used by one man in his will, and the construction given it by courts, can furnish but little aid in arriving- at what is meant by another disposing- of his property under different surrounding's. [See Morgan v. McSpadlen, if Shannon’s Cases, 86, and notes under first syllabus; Connell v. McKenna, 3 Shannon’s Cases, 190, and-note under first syllabus.]</p>

<p>(S. C., 3 Leg. Rep., 135-137.)</p> <p>PRACTICE. Appeal by principal 3oes not effect appeal for surety jointly sued.</p> <p>Where a principal and surety are sued, and both pray an appeal, which is perfected by the principal only, such appeal does not take the case up as to the surety. It is otherwise with sureties given on bonds in the progress of the canse, conditioned upon recovery against the principal. [See Code, seo. 4891, and notes.]</p> <p>Cited and distinguished: Whiteside v. Hickman, 2 Yer., 358.</p>

<p>ADMINISTRATION. Reasonable compensation for administrator ; example of.</p> <p>Wlrere an administrator, within sixteen months, without more than ordinary trouble, realizes out of the assets of-the estate the sum of $43,426.84, of which $15,479.79 was cash on deposit in bank at decedent’s death, over $4,000 received from sales of bank stock and scrip, and much the larger part of the remainder was received for the sale of a large and valuable stock of liquors, etc., in a saloon. Within the same time the administrator paid out $31,226.94 to ninety-six different persons. The compensation allowed him by the county court was two and one-half per cent, on the amount on deposit in bank, and five per cent, on the remainder of the reseipts — total $1,784.34, besides the expenses, and counsel fees. This allowance of compensation was affirmed by the supreme court, on the g'round that there was nothing in the facts calling for any more compensation, or to justify a change of the amount fixed by the court below, which has a large discretion in fixing the amount.</p>

<p>DAMAGES. Verdict not sustained by evidence. Judgment reversed and new trial-' awarded.</p> <p>In an action to recover damages for injuries- done to the crops of the plaintiffs by the cattle of- the defendants, wherein all the' testimony found in the record in relation to the injury sustained by the plaintiffs, was that of one of the plaintiff’s who “testified that they rented fourteen acres of land adjoining the defendants; that defendants’ cattle broke over the fence: that they damaged his crop of corn fifty per cent., and be would have raised fifty bushels per acre; that they damaged his peas and millet at least fifty per cent., and these were worth thirty dollars per acre; that the next fall they got in and utterly destroyed his oats crop, which would have been worth thirty dollars per acre,” the testimony is too vague and uncertain to predicate a verdict upon as to 'the amount of damages sustained, and there is no sufficient evidence to sustain the verdict fixing the damag-e at three hundred dollars,. and the judgment must be reversed, and a new trial awarded.</p>

<p>1. MASTEE AND SERVANT. Master’s liability for servant’s negligence, brat not for bis torts, when.</p> <p>A master is-liable for the injuries done to others by his servant’s negligent conduct while in his employment, but he is not liable for his servant’s torts, or willful acts, done without his authority.</p> <p>Cited with approval: Puryear v. Thompson, 5 Hum., 397; Kirby v. State, 7 Yea., 267; Cantrell v. Colwell, 3 Head, 474; Lowe v. State, 14 Lea, 204; Story’s Ag\, 470, note, 474, 47F: Story’s Bailm., 266.</p> <p>2. SAME. Same. Charge without error, example of.</p> <p>In an action by a. “rouster” against a steamboat company for damages to the person for a blow given him by the mate, there is no error, of which plaintiff can complain in the following part of the charge: “If you findu the mate was employed or directed by the defendant to do this wrong, or that it was within the ordinary course of the duties which he was employed to do,” the defendant is liable; if not, the defendant is not liable. It is, in substance, if the mate was directed to commit the assault, or if it was committed in the course, and within the scope, of his employment, defendant would be liable; if not, he would not. be liable. There is certainly no error in the charge.</p>

<p>1. ADMINISTRATION. Interest chargeable to administrate r on sums paid to him as distributee, when other distributees are so charged. Maimer of stating account.</p> <p>Where the administrator is a distributee, and in the administration settlement the clerk charges him with two. sums, and the interest thereon, paid to him as distributee, thereby increasing the balance in his hands as administrator, and in the final account with him as distributee charges him with the balance found against him in the admini;-tration settlement, it is equivalent to striking these two sums, with the interest thereon, out of the administration settlement, and charging him with them, as separate items, in tbe account with him as distributee, especially whe.' e all the other distributees are charged interest on all the sums paid them pending the administration to the time of the final settlement and distribution.</p> <p>2. ADVANCEMENTS. Do not bear interest as such, but dis-tributees share in profits of corpus in proportion to their respective shares.</p> <p>Advancements do not bear interest from the date made, nor, it seems, do- they themselves carry interest after the two years allowed for the administration, but the property as it exists at the death of the intestate, subject to. the claims of creditors and expenses of .administration, constitute the fund for division, and the distributees are entitled to. share in any subsequent profits in the proportion in which they were entitled to share the corpus. If, for any reason the distribution of an estate be postponed beyond the time when it ought to be made, and in the meantime the corpus of the estate produces income or profits, the parties entitled should share those profits in the proportion of their respective shares of the corpus, upon the obvious principle that the law’s delay will not be allowed to work injury to any party. [In the case of Steele v. Frierson, 1 Pickle, 436, 437, it is held, without citing any authorities, or without noticing this case, or those cited in it, that advancements as a matter of law bear interest from the date of the ancestor’s death.]</p> <p>Cited with approval; Burton v. Dickinson, 3 Yer., 112; Mc-Nairy v. McNairy, 1 Shannon’s Cases, 329; Rice. v. Steger, 3 Tenn. Chy., 328.</p> <p>Cited: Code (1S58), sec. 2493; Shannon’s Code, sec. 4175.</p> <p>3. SAME. Same. Division of surplus, with advancements collated, equalizes the parties, when.</p> <p>If there be no profit, or if the profit be used for specific purposes by agreement of the parties, the reason of the rule fails, and its observance would be a useless form. Where, by a consent decree, the profits are paid out in compromise of adverse claims for the benefit of all the heirs and dis-tributees equally, and for counsel fees in the administration, a division of the balance of the fund, with a collation of the advancements without interest, equalizes all the parties.</p>

<p>Appeal from circuit court, Slielby county.</p>

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

<p>"Writ of error to circuit court of Knox county.</p>

<p>1. EJECTMENT. Evidence must identity land with title papers, and witnesses must show knowledge.</p> <p>The testimony of a witness, in an ejectment suit that the land in dispute in the suit is within the buundary of land claimed by the complainant, without identifying the land as the same described in his title papers exhibited, and the testimony of a witness showing- that he never saw the grant or title papers, and the testimony of a witness that the complainant had had possession for twelve or fifteen years of certain enumerated places, not identified as same sued for, prove nothing, and the complainant attempting to prove his title with such testimony must fail in his suit.</p> <p>2. SAME. Same. Examples of insufficient identifications.</p> <p>A witness testified that the land in dispute is inside of the boundaries of the land claimed by complainant, but being asked on cross-examination as to his knowledge of the fact, says: “I saw the corner, or what they say was the corner, and from what they told me, and from what I know of the corners and distances, it is inside. I never saw the land measured.” This obviously proves nothing. If the witness had stated positively, and with knowledge, that the land was within the boundary claimed by complainant, this would have been no evidence that it was within any boundary of title exhibited in the suit. It does not identify the land as the same described in the title papers exhibited. A witness testified that he was acquainted with the land in dispute, and that it was covered by a certain grant under which complainant was claiming, but on cross-examination said: “I have never seen the grant. I made a survey in accordance with a deed from John Lyon to R. J. Arnold.” This testimony does not identify the land with the grant, and proves nothing. The testimony of a witness, in reference to certain enumerated places, not identified as same sued for, that the complainant has had possession for twelve or fifteen years, proves nothing.</p> <p>3. SAME. Outstanding title relied on as a defense, though defendant procures deed from holder thereof after suit.</p> <p>The defendant in an ejectment suit can rely upon a superior outstanding- title to defeat the suit of the complainant. Where the defendant has been holding- possession under purchase from one holding- the superior outstanding title for more than seven years at the commencement of the action of ejectment, but does not obtain any deed until after suit brought, he may rely upon his deed and the said superior outstanding title.</p> <p>4. DEPOSITIONS. Correction or change not permitted, when.</p> <p>After a deposition has been taken, the witness cannot be allowed to change or correct the same. The witness cannot appear on the hearing of a chancery suit, and by oral testimony correct his deposition on file-.</p>

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

<p>Appeal from chancery court of Hamilton comity.</p>

<p>INJUNCTION. Parties in contempt not entitled to recover damages, when; stockholders may, thong’h corporation cannot, when.</p> <p>Where an injunction not only forbids the receipt of the income of a corporation by its treasurer, but likewise prevents such income from being’ distributed and paid out by said treasurer, as dividends, among- the stockholders of said corporation, both the treasurer and corporation are likewise guilty of contempt of court for receiving and collecting- such income pending- the injunction, and upon a dissolution, neither is entitled to recover damages for the detention of the funds in their own hands, and in their own treasury; but the other stockholders are entitled to recover simple interest upon the amount of each dividend from the time the same was declared, and the payment thereof was restrained under the injunction.</p>

<p>WILLS. CLASS DOCTRINE. Devise to daughter for life and to her children at her death vests the remainder in presenti in them, when.</p> <p>A devise of land to testator’s two daughters “during- their natural life, and to- their children respectively at their death,” vests the remainder in the children of the life tenants, on the death of the testator, descendible to their heirs, although the ancestor remainderman may have died before the termination of the life estate, especially when the clause immediately preceding this one in the will by which testator devised land to another- daughter, “to her and to her children living- at the .time of her death,” that is, devised the remainder to vest in a class in futuro, shows that by the language of the clause under consideration, he intended to vest the remainder in presentí in his grandchildren as tenants in common. [See Calcóte et ux. v. Elkin et al., and Carsey et ux. v. Calcóte et ah, post, page 319.]</p>

<p>1. RAILROAD. May contract, against liability after delivery to connecting lines.</p> <p>A clause in a bill of lading- limiting the liability of a railroad common ’ carrier, and providing- that its liability shall cease upon delivery to- the consignee or carrier over whose connecting line the freight is to be shipped, is' valid.</p> <p>2. SAME. Same. Reversible error not to so charge.</p> <p>The failure of the circuit judge to instruct the jury as to the effect of the clause in the bill of lading providing against the liability of the defendant railroad company after delivery to a connecting line, is error for which a judgment ag-ainst the railroad company will be reversed, and the case remanded for a new trial.</p>

<p>1. LARCENY. Finder of lost property not guilty of larceny for refusing- to surrender it to- subsequently ascertained owner.</p> <p>Under the statute (Shannon’s Code, sec. 6551), providing that “if any person come, by finding, to the possession of any personal property of which he knows the owner, and unlawfully appropriates the same, or any part thereof, to his own use, he is guilty of larceny, and shall be punished accordingly,” it is reversible error in the charge of the court, wherein it is said, after a correct statement of the law: “But if, after finding it, he” [the accused] “afterwards ascertained that it was the property of the prosecutor, and still concealed it, and fraudulently kept it, intending to deprive the true owner of his property, he would then be guilty.” [The finder of lost personal property, the owner of which is unknown to him at the time, is not guilty of larceny, because he refuses to surrender it to the subsequently ascertained owner. See Morehead v. State, 9 Hum., 637; 2 Bishop Crim. Law, sees. 877-883.]</p> <p>Cited and construed: Code (1858 and T. & S.), sec. 4685; M. & V. Code, see. 5451; Shannon’s Code, sec. 6551.</p> <p>2. SAME. Conviction under indictment tor larceny not alleging a, loss and finding under statute.</p> <p>It is not necessary that the indictment should charge a loss and finding under the statute (Shannon’s Code, sec. 6551) providing that “if any person come by finding to the possession of any personal property of which he knows the owner, and unlawfully appropriates the same, or any part thereof, to his own use, he is guilty of larceny, and should be punished accordingly.” A conviction can be had on an ordinary indictment for larceny, upon proof of facts that bring the case within said slatute.</p> <p>Cited and construed: Code (1858 and T. & S.), sec. 4685; M. & V. Code, sec. 5451; Shannon’s Code, sec. 6551.</p>

■ Mrs. Mary Jane Oocke, by a deed of gift from her husband, Thomas H. Oocke, to a trustee in trust for her benefit, was the owner of land as her separate estate, with power of absolute conveyance, as if she were a feme sole.

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

<p>1. MUTUAL INSURANCE COMPANIES. Guaranty or indemnity bond on reorganization enforceable as sustained by consideration and authorized by charter, i when.</p> <p>Upon the reorganization of a financially embarrassed insurance company by the formation of a new company, some of the stockholders in the old company executed a bond to indemnify the new company and the stockholders therein against loss on account of the liabilities of the old company, oblig-ating- themselves to pay such loss or damag-e in proportion to the amounts unpaid-upon their subscriptions to stock in said compiany, not to exceed the amount so due by them respectively, and to secure a loan of money from the new company not to exceed in the ag-g-regate the sum of ten thousand dollars for the purpose of paying off the liabilities of the old company.. The bondsmen resisted the enforcement of said bond, upon the ground that it was not binding on them because, (1) that such a contract was not binding under the charter of the corporation, and (2) that no consideration passed to sustain the contract. Held: (1) That the corporation was a mutual insurance company, and by section 10 of its charter, providing- “that for the better security of policy-holders, the said company may add thereto a guaranty or stock capital, not éxceeding two hundred thousand dollars,” it was authorized, in addition to its other resources, to establish by subscriptions a capital stock. This provision of the charter authorized a g-uaranty. The bond is a guaranty bond, and so- authorized by the charter. (2) That there was sufficient consideration to sustain the bond.</p> <p>2. SAME. Same. The corporation proper party to she on the bond.</p> <p>The intention of the parties to the bond was that the corporation should pay. the debts with the right to reimbursement from the bondsmen, and, therefore, the right of action on the bond existed in the corporation, and not in the stockholders exclusively, nor in them and the corpq-ration jointly.</p> <p>3. SAME. Same. Bondsmen estopped to. rely on iailure of other stockholders to sign bond, when.</p> <p>The bondsmen i-esisted the enforcement of the bond, upon the ground that the bond was not to be effective until it was signed by all the stockholders of the old company. It is questioned if this defense could have been made available had the allegations upon which it was based been established. But inasmuch as the bondsmen were aware for a number of years of the operations of the corporation under the reorganization which was continued for their benefit, under said contract and bond, and that on the faith thereof, many jiersons had been induced during- that time to subscribe and pay for stock in the new company, the court held that it would be inequitable to permit such defense to be effective.</p> <p>4. REVIVOR. Against administrator de bonis non, sufficient. when.</p> <p>A cause is properly revived against an administrator de bonis non with the will annexed, where the bill was filed against the executor, whose death was sugg-ested on the twenty-third da.y of December, 1878, and scire facias issued ag-ainst such ■administrator on the sixth day of February, 1880, and served, and the cause revived as to him on the twenty-fourth day of November, 1880. [See Code, secs. 4570-4579, and notes.]</p> <p>Cited with approval: Erwin v. Foster, 6 Lea, 187.</p>

<p>Apxieal from chancery court of Anderson county. Henry K. Gibson, Chancellor.</p>

<p>1. SUPREME COURT PRACTICE. Application for writ of error, supersedeas, and restitution considered by whole court, when in session.</p> <p>Where a petition is presented to one of the judges of the supreme court for a writ of error, supersedeas, and restitution, it is the practice of that court, when in session, to consider the application in consultation. [See Code, secs. 5737, 5738, G347, G348, and notes.]</p> <p>2. SAME. Same. Executed order superseded and restitution granted when the only remedy.</p> <p>On an application for a writ of error, supersedeas, and restitution, if it appears to the supreme court that a super-sedeas is the only remedy, with a restitution where the order or judgment has been executed, the court will order it 1o so operate, and thus preserve the rights of the parties as they were before judgment.</p> <p>3. SAME. Same» Same. Case in judgment.</p> <p>Before the expiration of the term of ’office of a clerk and master, his successor was appointed, who, thereupon, instituted proceedings to recover the books and papers of the office, and obtained a search warrant directing their seizure, under which he got possession of them. On application for a writ of error from the judgment executed by said warrant, the supreme court will order a sux>ersedeas to issue directing’ the restoration of. the hooks and papers taken from, the office of the clerk and master, that being the only remedy for preserving- the rights of the parties as they were before the judgment.</p> <p>Cited and construed: M. & V. Code, secs. 993, 994, 998; Shannon’s Code, secs. 1126, 1127, 1131.</p> <p>4. SUPERSEDEAS AND RESTITUTION. Granted as to executed final decrees, when the only remedy.</p> <p>Where interlocutory decrees have been executed, a super-sedeas cannot be issued, but where the decree is final, and executed, the supreme court will grant a suxiersedeas, with restitution, where that is the only remedy to preserve the rights of the parties. [See Code, secs. 5737, 5738, 6347, 6348, and notes.] ✓</p> <p>Cited with approval: Kearney v. Jackson, 1 Yer., 294.</p> <p>5. SAME. An order is not executed when not fully complied with, and when anything- remains to- be done by the court.</p> <p>An order directing- the issuance of a search warrant to search the office of the clerk and master, and an old office near his residence, the residence itself, and that of the deputy cleric and master, and a seizure of “all the books, papers, records, property, furniture, and everything- of, and belonging to, ' the office of clerk and master,” on the return of which an inquiry and examination will be had before the court, in accordance with which order the warrant was issued, the return on which shows only a search of the “office in the. courthouse, and a turning- over of the books and papers in said office, as commanded within,” and that “a list of the books is contained in a receipt g-iven by J. W. Stafford to S. A. Smith,” while the record does not show any judicial inquiry and examination, and award of the books and papers to complainant after seizure, the order remains un-executed, and upon this ground a supersedeas will be effectual to reach their disposition, as well as to prevent the further execution of the order by additional seizure. [See Shannon’s Code, secs. 1131, 1132; and notes under secs. 573S and 6348.]</p> <p>6. CLERKS OF COURT. Appointment for constitutional term of six years, when appointive and not elective.</p> <p>When there is a vacancy in the office of a clerk appointed under the constitution, the appointment is for the full constitutional term of six years from its date. [See Const-art. 6, sec. 13, and notes.]</p> <p>Cited with approval: Gold v. Fite, 2 Bax., 250; Williams v. Cox, unreported. -</p>

<p>1. INJURIES BY ANIMALS. Evidence of ownership; declaration of drivers competent, when.</p> <p>While four bulls were being- driven through the city streets ■ of Nashville, in charge of two negro- drivers, but without-being- secured in any way, one of them broke away from, the others and escaped, and being- abandoned by those in charge, as uncontrollable, committed various depredations that day, and on the next da.y attacked and badly injured plaintiff. In an action to recover damages for the injuries inflicted, defendants denied ownership. Plaintiff offered to prove what the negro drivers in charge said while driving the animals as to where from and where to they were driving them. This wa.s objected to by defendants, and the court sustained the objection. Held: It was error to exclude this evidence.</p> <p>2. SAME. Defendant estopped to deny ownership after having caused himself to be sued as owner, when.</p> <p>When the plaintiff asked defendant, before bringing suit, if he was the owner of the animal, and the defendant, knowing that the inquiry was made with the purpose and view of bringing suit for the injury, represented himself as the owner for the purpose of misleading' plaintiff, who thereby lost his right of action against the true owner by loss of time and ignorance of the real owner, the defendant is estopped to deny that he is the owner, and his said repre- . sentation to plaintiff is conclusive against him. It is error to refuse a request to so charge the jury.</p> <p>3. SAME. Owner’s liability not dependent on previously known vicious propensities of animal; error to so charge.</p> <p>A charge in such case that malees the liability of defendants dependent upon the vicious propensities of the animal previously existing,. with knowledge thereof by the defendants, and states the rule applicable to the ease of owners allowing- animals at large and driven through the streets of the city, not properly attended or controlled, is reversible error.</p>

<p>Appeal from chancery court of Davidson county. J. M. Dickinson, Special Chancellor.</p>

<p>BANKRUPTCY. Factor not such fiduciary as to prevent his 'discharge.</p> <p>A factor or commission merchant who converts to his own use the goods consigned to him for sale on commission, or ■appropriates the proceeds of such g-oods, does not thereby become such a fiduciary debtor, within the. meaning of the bankruptcy act of 1867, as to prevent his discharg-e from the same in bankruptcy. The words “fiduciary capacity” refer to technical or express trusts.</p> <p>Cited with approval: Chapman v. Forsyth, S How., SOS, S08; Pankey v. Nolan, 6 Hum., 154; Nicholson v. Lauderdale, 3 Hum., SOO; Armstrong v. Campbell, 3 Yer., SOO; Williamson v. Dickens, 5 Iredell L. R., S6S; Haymon v. Pond, 7 Metcalf, 3S8;'Cronan v. Colting, 104 Mass., S47.</p> <p>Cited with disapproval: Lerucke v. Booth, 47 Mo., 385.</p> <p>Cited and construed: Bankruptcy Acts of Congress, 1867, chile, sec. 33.</p>

<p>1. CRIMINAL LAW. Verdict of jury supported by facts.</p> <p>Identification of the defendant and the fact of the house- . breaking is considered sufficiently proven to support the verdict of a jury finding- the defendant guilty of housebreaking-, upon the facts set out in the opinion of the court in this case.</p> <p>3. SAME. Charge that counsel concedes a fact not reversible error, when.</p> <p>It is not reversible error for the judge to state to the jury, on the trial of a defendant under an indictment charging him 'with housebreaking, that it was conceded that the building broken into was a dwelling- house where the reference was to such concession made in the argument of counsel for accused, and not to any such concession contained in the bill of exceptions.</p> <p>3. SAME. Noi variance between averment and proof of ownership of house broken into, when.</p> <p>Where in an indictment for housebreaking it is averred that Robt. R. Durant is the owner, and in the proof R. R. Durant is named as owner, and upon a proper charge the jury finds the defendant guilty, they necessarily find that Robt. R. Durant and R. R. Durant are one and the same man. Therefore there was no variance between the averment and proof as to the ownership.</p> <p>4. SAME. Proper charge as to alibi.</p> <p>It is eminently proper that juries should be put on their guard, and instructed to scrutinize the evidence to make out the defense of alibi with close attention. Such caution should be accompanied with the qualification that when such defense is clearly and fully made out, it is very conclusive.</p> <p>Cited with approval: Thompson v. State, 5 Hum., 138.</p> <p>5. SAME. Refusal of new trial not reversed', when.</p> <p>The supreme court will be slow to hold that the judge of the lower court abused his discretion in refusing a new trial where he takes special pains to hear the witnesses by whom it was proposed to prove the newly discovered evidence. Refusal of new trial on the facts proven held not to- be an abuse of trial judg-e’s discretion.</p> <p>6. SAME. Same. Waiver of affidavit not waiver of facts to be passed upon by court.</p> <p>Upon application for a new trial for newly discovered evidence, a waiver by the attorney-general of the usual affidavit of the defendant of newly discovered evidence and its character, and the reasons why the defendant had been guilty of no fault or negligence in not having produced it on the trial, is not an admission that the evidence was newly ‘ discovered, nor that there had been no fault or negligence in not producing- it on the trial. Such matters, as in cases where the affidavit of the defendant is filed, are to be determined by the court when the newly discovered witness is examined before the court.</p>

<p>1. GARNISHMENT. Irregularities in original judgment not rendering it void not noticed,, when.</p> <p>In. a garnishment proceeding predicated upon an execution, irregularities in the original judgment not Tendering the same void cannot be noticed, where the court had jurisdiction of the defendant, and of the subjeehmatter, and there was- no appeal from it.</p> <p>2. SAME. Garnishee cannot pay out money after notice, when.</p> <p>After the garnishment notice is served, the garnishee cannot pay out any money in his hands due or belonging- to the defendant in the execution, unless in discharge of liabilities contracted by him before service of the notice.</p>

<p>1. LEASES. Lessee’s right of removal of dwelling, etc., erected by Mm, denied. Case in judgment.</p> <p>Where, in a conveyance of “all the pine and poplar timber suitable for saw purposes for making- lumber” on land, with “the privilege of building- a steam saw-mill, and other necessary buildings attached to the same on any part of said land,” and use of water “and timber necessary for building purposes, in addition to- the saw timber that may be on said land,” and where in a subsequent sale and absolute conveyance of the land to a third person, there was excepted from the conveyance “the pine and poplar timber suitable for present saw-logs, a sufficient quantity of any other timber ■ required to build houses and mills, etc., for sawing- said timber,” with use of lands and water necessary for the erection and running- of said machinery, mills, dwelling- houses, etc., while sawing- and hauling- of£ said timber, etc., the purchaser of the timber and lessee have- no- right to remove from said land the dwelling house, kitchen, cabins, stables, corn crib, and other outhouses erected thereon by him under said lease, and for removing- same he is liable in damages.</p> <p>Cited with approval: 1 Arch. K. P., 15.</p> <p>Cited, approved, and distinguished: 1 Wash. It. P., 17; Mc-David v. Wood, 5 Heis., 95, 96, 98, 99.</p> <p>2. PLEADING. Forms of action abolished. Quare clausum fregit declared, and damages for removal of house only, when.</p> <p>By the code all distinctions between forms of action are abolished, and the plaintiff may file a declaration stating- substantially the facts of his case, and if Ms proof corresponds substantially therewith, it will be admissible, and a x-ecovery may be had. Where a declaration is in common law form of trespass quare clausum freg-it, and the proof clearly shows that the defendants entered the premises under contract and license of the owner, but shows a wrongful removal of the plaintiff’s houses by them after their lawful entry, there may be a recovery fox- the wrong-ful removal of the liouses, if none for the entry.</p>

<p>I. ADMINISTRATION. Bill for appointment of administrator by chancery court abandoned, when.</p> <p>A bill for the appointment of an administrator by the chancery court is abandoned, where no administrator is appointed and qualified by the chancellor for more than three years, and no relief can be then granted under the bill, especially after an amended bill is filed against an administrator appointed by the county court during the pendency of said application for appointment of an administrator by the chancery court.</p> <p>Cited: Code (1858 and 1871), secs. 3209 et seq.; Code (M. & V.), sec. 3050 et seq.; Shannon’s Code, sec. 3943 et seq.</p> <p>3. SAME. Same. Appointment by county court pending such suit valid, though done without notice.</p> <p>Where, pending an application by a bill for the appointment of an administrator of a decedent’s estate by the chancery court filed by a creditor against the heirs and distributees, one of the defendants is secretly appointed and qualified as administrator of the estate, the complainant cannot impeach the regularity and validity of such appointment, because he had no notice of it. And where such appointment has been made for more than two years and six months before suit by the creditor against the administrator, a plea of the statute of limitations is a complete defense to such suit, though it be by an amended bill in'the said suit for the appointment of an administrator.</p>

<p>1. CRIMINAL LAW. Letting house with knowledge that it will be used as a bawdy house, not' indictable.</p> <p>The act of letting- a dwelling house with knowledge on the part of the lessor that the lessees intended to use it as a place of resort for the purposes of prostitution and lewdness, or as a bawdy house, without more, is not an indictable offense at common law, and there is no statute in this state making such act of letting an indictable offense.</p> <p>Cited with approval: Ross v. Commonwealth, 3 B. Monroe (I<y.), 417; Brockway v. People, 3 Hill, 558.</p> <p>3. SAME. Same. Lessor not principal by aiding and abetting, when.</p> <p>The principle that whoever aids and abets in the commission of a misdemeanor shall be g-uilty as principal offender, will not aid the averments of an indictment charging that defendant let a dwelling- house, well knowing that the lessees intended to use it for purposes of prostitution, where it is not averred that the intended offense was actually committed. [In the case of the State v. Wheatley, 4 Lea, 330, it is held that, where the indictment charged that the offense was committed as intended, the lessor was not indictable. In this case it seems that if the premises were let to be used for the illegal purpose, the indictment would be g-ood, where it averred they were so- used. A distinction is made (though a dictum) between a letting with a mere knowledge of the illeg-al purpose, and a letting to be used for the illeg-al purpose. See note 1 under sec. 6769 of the Code].</p> <p>3. SAME. Same. Same. Lessor not indictable as instigator.</p> <p>This class of cases is not included in that other class in which it is criminal-to instigate or incite others to- commit crime; although the person instigated did not afterwards commit the crime.</p>

<p>STAYOR." Not released by mere suspension of execution.</p> <p>The mere agreement of the judgment creditor, made with the principal judgment debtor, without the consent of the'surety judgment debtor, or the stayor of the execution of the judgment, to suspend the issuance of the execution, in consideration of the principal judgment debtor’s promise to pay ■ten per cent, interest under the act of 1869-70, ch. 69, will not release the stayor.</p> <p>Cited with approval: Peay v. Poston, 10 Yer., Ill; Grimes v. Nolen, 3 Hum., 413; Sharp v. Eagan, 3 Sneed, 541. [See Code, sec. 4790, and notes.]</p>

<p>JUDGMENTS AND DEGREES. Blanks not filled up as clerical' error.</p> <p>A judgment left blank as to the amount of the recovery is void, and after the adjournment of the term, the blank cannot be filled up with the sum adjudged to be due, for then no amendment of the judgment can be made, except for mistake where there is sufficient matter apparent on the record, the papers in the cause, or entries of the presiding judg-e, upon notice. Such judgment so< improperly amended is void, and the execution of it may be enjoined.</p> <p>Cited with approval: Elliot v. Cochran, 1 Cold., 389; State v. Disney, 5 Sneed, 598; Bell v. Williams, 1 Head, 229; Ridge-way v. Bank, 11 Hum., 523; Ingle v. McCurry, 1 Heis., 26.</p> <p>Cited and construed: Code (1858 and 1871), sec. 2877; Code (M. & V.), sec. 3588; Shannon’s Code, sec. 4597.</p>

<p>1. BILLS AND NOTES. Holder of collateral note to- secure debts of its maker cannot sue indorsers, wben.</p> <p>Tbe bolder of a collateral note indorsed to bim as collateral security to secure a debt against the maker thereof, cannot maintain an action ag-ainst. the indorser thereon without showing that the principal debt is due and unpaid. [The maker of the collateral note owes the debt which the in-dorsers undertook to secure by indorsing the same to the complainant. Hence tbe collection of it was not necessary to protect the maker.]</p> <p>2. SAME. Same. Indorsement showing note bo be held as collateral.</p> <p>Where complainant sues the indorsers on a note made by J. W. Rog-ers, then indorsed as follows: Above the first in-dorser’s name is this memorandum, “This is collateral for $950.00 and five hundred.” Then follows the names of three indorsers, and immediately following his name and his post office is this memorandum, “Collateral to' secure J. W. Rogers.” This makes it reasonably certain that the two thousand dollar note was held by'complainant as collateral security for debts due from said J. W. Rog'ers — said note being- made exhibit to, and part of the bill without any explanation whatever.</p>

<p>3. INJUNCTION. No appeal from interlocutory order dissolving-.</p> <p>An appeal does not lie from an interlocutory order dissolving' an injunction upon motion npon the ground that it was im-proviclently granted. If the chancellor in terms grant an appeal from such order, it is not effectual to restore the injunction because there is no. power to g-rant such appeal, and the supreme court acquires no. jurisdiction. When the injunction is dissolved by the final decree denying- any relief upon the hearing, an appeal vacates the decree, and keeps the injunction in force. Where the injunction is dissolved before the hearing, the cause- stands at the hearing with no injunction in force, and the order dissolving- the injunction, and the final decree were entirely distinct, and an appeal from both cannot have the effect to- restore the injunction. [See note 6 under sec. 6264 of the Code.]</p> <p>2. SAME. Same. Nor supersedeas by supreme conrt, when.</p> <p>The supreme court cannot supersede an order dissolving- an injunction merely where no- affirmative action is ordered. [See note 6 under see. 6264 of the Code.] -</p>

<p>1. CONSTITUTIONAL LAW. Legislature can abolish particular circuit and chancery courts.</p> <p>The legislature has the ■ constitutional -power to abolish particular circuit and chancery courts, and to .require the papers and records in them toi he transferred to other courts, and the pending- cases to he heard and determined in the courts to which they are transferred.</p> <p>Constitutions construed: 1796, art. 5, sec. 1; 1834 and 1870, art. 6, see. 1.</p> <p>Acts construed: 1869-70, ch. 28 [see 9 Heis., 799]; 1875, ch. 23.</p> <p>2. SAME. Same. But cannot abolish the distinctive characters of the circuit and chancery courts.</p> <p>As to the power vested in the inferior courts, there is this difference in the language used in the constitutions of 1834 and 3870: In that oí 1834, the judicial power was to* be vested in such inferior courts as the legislature from time to time might ordain and establish; in that of 1870, the power is to be vested in such circuit, chancery, and other inferior courts as the legislature might from time to time ordain and establish. The only difference in the meaning of the two clauses in the two constitutions is, that in that of 1834 there was no restriction upon the legislature as to the character of the system of inferior courts which it might ordain and establish; but in that of 1870 it was prohibited from so ordaining and establishing inferior courts as to disreg-ard the distinctive characters of circuit and chancery courts, but that the power, in ordaining and establishing circuit, chancery, and other inferior courts was intended to be same so far as abolishing existing courts and ordaining and establishing- others was involved, under the constitution of 1870, as under the constitution of 1834.</p> <p>Constitutions construed: 1834 and 1870, art. 6, sec. 1.</p> <p>3. SAME. Same. Same. Supreme court a constitutional court, circuit- and chancery courts so only in a limited sense.</p> <p>The supreme court is a constitutional court; it is the direct creature of the constitution; it is protected by the same against any infringement or invasion by the legislature. While the circuit and chancery courts are constitutional courts in the sense that they are recognized as species of courts with distinctive characters that are to continue, and are ordained and established by constitutional authority, through the action of the legislature, but they are not constitutional courts in the sense that they cannot be abolished in some future process of ordaining- and establishing courts.</p> <p>4. SAME. Power to ordain and establish courts includes the power to abolish.</p> <p>The power of the legislature to ordain and establish circuit and chancery courts includes the power to abolish existing courts, and to increase or diminish the number.</p> <p>5. SAME. Construction- long acquiesced in is of much weight.</p> <p>The contemporary and long acquiesced in construction by the legislature, judicial dicta, and the legal profession from the constitution of 1796 to the year 1875, that the legislature had the power to abolish existing particular circuit and chancery courts in ordaining and establishing other courts, or . in diminishing- or increasing the number of courts, while not conclusive of the construction of said clauses of the constitution, is entitled to much weight in determining the meaning of the same.</p> <p>Cited with approval: Stuart v. Laird, 1 Cranch, 299; Moore v. City of Beading, 31 Penn., 188.</p> <p>Constitutions construed: 1796, art; 5, sec. 1; 1834 and 1870, art. 6, sec. 1.</p> <p>6. SAME. Upon abolition of courts, salary of the incumbent judge ceases.</p> <p>The judge's right to his lull term and his full salary is not dependent alone upon his good conduct, but also upon the conting-ency that the legislature may, for the public good, in ordaining- and establishing the courts, from time to time, consider his office unnecessary, and abolish it. The exercise of this power by the legislature is neither such as interferes with the independence of the judge, or with his tenure of office, as can be complained of. When the court or courts over which a judge presides are abolished, the salary ceases.</p>

<p>1. BANKS AND BANKING. General depositor a simple creditor of bank.</p> <p>The relation existing between a general depositor and a bank is that of creditor and debtor,, and. the money is in effect loaned to- the bank to be mingled and used with its own money.</p> <p>Cited with approval: Marine Bank v. Fulton County Bank, 2 . Wall., 256.</p> <p>2. SAME. Bank subject to garnishment.</p> <p>A bank is subject to the process of garnishment, as the word “person” includes a “corporation.”</p> <p>Cited and construed: Code (1858 and 1871), sec. 50; Code (M. & V.), sec. 48; Shannon’s Code, sec. 62.</p> <p>.1. GARNISHMENT. Debt due to a city subject to.</p> <p>A debt due from its debtor to a municipal corporation is subject to garnishment in favor of its creditor.</p> <p>Cited and construed: Code (1858 and 18-71), sec. 3090; Code (M. <& V.), sec. 3803; Shannon’s Code, sec. 4818.</p> <p>4. MUNICIPAL CORPORATIONS. Taxes and revenues not subject to seizure under process against them.</p> <p>The taxes and public revenue of municipal corporations cannot be seized under process against it, either In the treasury or in transit to it.</p> <p>Cited with approval: Dillon on Municipal Corporations, sec. 64.</p> <p>5. SAME. Same. Sx>ecial deposits in bank not subject to garnishment.</p> <p>If the revenue of a city is placed in a bank as a special deposit, it will, in legal contemplation, be in the treasury, and in that case cannot be reached by garnishment.</p> <p>Cited with approval: McGraw v. Railroad, 5 Cold., 434.</p>

<p>TBADE-MARKS. Injunction against infriug’ement of.</p> <p>The manufacturer of a cooking stove which he has been selling for many years under the trade-mark of “The Charter Oak,” with the design of an oak leaf upon the doors, which he used and adoxxted prior to any similar'use of this name by the defendants or any other person, which use was continuous, and gave him the exclusive right to use the same, will be entitled to an injunction to restrain another manufacturer from the use of the name of “Charter Oak” on -his stoves, when he had never acquiesced in such use.</p> <p>Cited with approval: Eilley v. Easset, 44 Mo., and also- Trademark Cases, 530.</p>

<p>WILLS. Construction. Dower in realty and personalty gives widow one-third absolutely, when. Life estate with remainder over.</p> <p>Where a testator in his will gives to his wife “a dower right and title” in his real estate, and also' “a dower right and title” in his personalty; and gives the balance of his property, real and personal, to his two brothers (except a legacy to a nephew), with a provision that the same left to- them for life is upon their death to be equally divided amongst all his nephews and nieces; the testator's widow is entitled to the foe simple title of one-third of the real estate, and to talce absolutely one-third of the personal estate, while the brothers took the balance of the real estate for life, which at their death should be divided amongst testator’s nephews and nieces, and that they took the balance of the personal estate absolutely, except such as was susceptible of- a bequest for life with remainder over.</p>

<p>1. SUPERSEDEAS. Judge of supreme court cannot issue, without record.</p> <p>A writ of supersedeas to an interlocutory order or decree cannot be granted by one of the judges of the supreme court, unless the petition therefor is accompained by a transcript of the whole record or so much of it as is essential to enable the judge to pass upon the alleged error, and both filed. Cited and construed: Code (1858 and 1871), secs. 3933, 4513; Code (M. & V.), secs. 4701, 5265; Shannon’s Code, secs. 5737, 6348.</p> <p>2. SAME. Same. Motion to discharge for want of record. Con-tinúan ce of.</p> <p>A motion will lie to discharge a writ of supersedeas to an interlocutory order or decree, where it was granted by one of the supreme judges, where no transcript of the record is filed with the petition therefor in the supreme court. In this ease the motion was postponed to give the party in whose favor the writ was issued an opportunity to file a. transcript of the record.</p>

<p>3. BILLS AND NOTES. Waiver o-f protest is waiver of demand and notice, and may bo proven by parol evidence.</p> <p>An indorser may waive demand of payment and notice of nonpayment, and parol proof of such waiver may be made. Any conduct on the part of the indorser calculated tO' induce, and actually inducing', the holder not to protest the note will have the same effect. All the circumstances of the case must he taken into consideration, in order to ascertain whether there was a. waiver or not. A waiver of protest dispenses with the necessity of demand and notice, unless the language is qualified expressly by the idea that demand must be made. Pacts in this case held to amount to' a waiver.</p> <p>Cited with approval: Dick v. Martin, 7 Hum., 264; Coddington v. Davis, 1 Comst. (N. Y.), 190; Edwards on Bills and Notes, top p. 595; Story on Promissory Notes, sec. 279. ■</p> <p>Cited and construed: Code (1858 and 1871), sec. 1801; Code (M. & V.), sec. 2472; Shannon’s Code, sec. 3206.</p> <p>2. FRAUDULENT CONVEYANCES. Voluntary conveyance not fraudulent upon the facts.</p> <p>Where a bill is .filed to set aside a voluntary conveyance of property worth fifteen thousand dollars, made by a father to- his daughter, as fraudulent against his existing- creditors, and the father testifies that he was worth more than two hundred and forty thousand dollars when the conveyance was made, and files a schedule of his property showing its nature and kind to' the value of two hundred and thirty-nine thousand dollars, with an indebtedness between thirty-five thousand or forty thousand dollars only, though- a large portion of the property had been sold, when the deposition was given, to meet his liabilities unexpectedly ai'ising’, and which were not anticipated when the conveyance was made, the burden of proof is then cast upon complainant to show that the property reserved was not of sufficient value to liquidate his then existing obligations.</p> <p>3. SAME. Judgment for debt, when conveyance not fraudulent. Costs adjudg-ed.</p> <p>Where a bill is filed to set aside a conveyance as fraudulent as to creditors, and this relief is refused, a personal judgment may be rendered against the debtor defendant fox the amount of the debt, and all costs, except that accruing as incident to the charge of fraud, as far as separable from the g'eneral costs. [See notes under sec. 6101 of the Code.]</p> <p>Cited and construed: Code (1858 and 1871), sec. 4292; Code (M. & "V.), sec. 5035; Shannon’s Code, sec. 6101.</p> <p>4. ATTACHMENT. Not discharged in supreme court, where no application or issue for that purpose was made below.</p> <p>Where no application was ever made to discharge an attachment in the court below, or issue made for that purpose, though the writ may have been granted on false or unsus-tained allegations of the bill, as shown by a decree discharging the attachment of another piece of property conveyed under the same circumstances, still, having been levied, it would be operative until discharged.</p> <p>5. SUPREME COURT PRACTICE. No> remandment for newly discovered evidence.</p> <p>The supreme court will not remand a case for the purpose of allowing newly discovered evidence to be taken, upon an application and motion based upon the affidavit of the newly discovered witness, because this would necessarily involve the court in the exercise of original jurisdiction. Remand-ments are made for additional proof only where the evidence used below has been lost, or where it is apparant from the record that there is other evidence which could probably be procured, and which is necessary for the attainment of justice. [See notes 7-9 under sec. 4905 of the Code, and Anderson Co. v. Hays, 15 Pickle, 544 (syl. 12); Bond v. Montague, 13 Pickle, 727.]</p>

<p>1. PAUPER OATH. By husband sufficient for appeal by him and wife.</p> <p>Where an appeal is granted a husband and wife, on their filing the pauper oath in lieu of a bond for costs, the appeal is perfected upon the required oath being taken by the husband alone.</p> <p>Cited with approval: Grills v. Hill, 2 Sneed, 711; McPhatridge v. Gregg, 4 Cold., 324.</p> <p>2. SAME. Affidavit of right of redress necessary.</p> <p>Where the pauper oath in lieu of an appeal bond for costs fails to follow the requirements of the statute, in the essential particular that affiant is justly entitled to the redress sought, etc., which is expressly required to entitle a party to an appeal without bond and security for costs, the appeal will he dismissed for the defect. [See Code, sec. 4928.]</p>

<p>1. PAUPER OATH. Taken before clerk without direction, of court, but afterwards ratified, does uot perfect appeal.</p> <p>Where an appeal is granted from a decree in chancery upon the appellant’s g-iving- bond within a prescribed time, which he fails to do, but afterwards, and during the same term of court, takes the pauper oath before the clerk and master, without any previous order of, the co-urt authorizing- it, which is, after that and during the term, approved and adopted by the court as thoug-h taken under the direction of the court, and ordered the pauper oath so taken to operate a,s an appeal bond, the appeal will he dismissed in the supreme court, for the reason that the chancellor cannot adopt and make valid a pauper oath which is null and void because taken without authority. [See Morris v. Smith, 1 Shannon’s Cases, 27.]</p> <p>Cited with approval: Davis v. Dyer, 5 Sneed, 679; McDhatridge v. Gregg, 4 Cold., 326; Andrews v. Page, 2 Heis., 634.</p> <p>2. SAME. Same. Oatli must be sufficient to constitute perjury, if corruptly false.</p> <p>A pauper oath, in lieu of an appeal bond taken before the clerk and master without any authority or direction from the court, although afterwards recognized as valid and sufficient by the court, could not be made the foundation of an indictment for perjury, and it is essential that the oath should be such that the affiant would be subject to criminal prosecution in event of its being’ corruptly false, to make it sufficient as a basis of an appeal.</p> <p>Cited with approval: Morris v. Smith, 11 Hum., 135.</p>

<p>ADMINISTRATION. Statute of limitations in favor of decedents run against an indorser not from judgment against him hut from payment.</p> <p>Where the payee of a note indorses it to a third person before the death of the maker, and after the death of the maker, and after the note is barred by the statute of limitations in favor of his estate, the indorsee sues the said Indorser upon his indorsement and recovers judgment against him, which he subsequently pays, and within two years after such payment, but more than two- years and six months after the rendition of the judgment, files his petition in a proceeding by bill in chancery to settle the estate under the insolvent laws, to assert his claim against the estate for reimbursment, his claim is not barred by the statute of limitations in favor of estates of decedents, for such statute did not beg-in to run at the rendition of the judgment, but only from his payment thereof. [See notes 5, 6, 7, 14, 15 under sec. 4012 of the Code, and note 23 under sec. 4472.]</p> <p>Cited with approval: Maxey v. Carter, 10 Yer., 522.</p> <p>Cited, distinguished, and doubted: Marshall v. Hudson, 9 Yer., 62.</p> <p>Cited and construed: Code (1858 and 1871), secs. 2279, 2784; Code (M. & V.), secs. 3117, 3481; Shannon’s Code, secs. 4012, 4481, 5385, suhsec. 1, 5390. Acts 1789, ch. 23, secs. 2, 3, 4; acts 1809, ch. 69, sec. 1.</p>

<p>1. BILLS AND NOTES. Payable in “dollars,” parol evidence to show Idnd of money.</p> <p>Where a promissory note is made payable in “dollars,” it is competent to look to the surrounding circumstances as well as the facts of the transaction and the understanding of the parties, as shown by parol evidence, in ascertaining and determining the sense in which the parties used the word “dollars” in reference to the kind of specie or currency the note should be paid in. [On the general subject of what notes are payable in, and the amount of the recoveries, see notes 20-39 under see. 3506 of the Code.]</p> <p>2. SAME. Same. Tender must be in the kind of money payable in.</p> <p>Prom the facts and circumstances of this case the court concluded and determined 'that the parties used the word “dollars” in the note to mean such a currency as should bex passing currently as money in the common transactions among- business men at the place of payment when the note should become due. Therefore, relief by perpetual injunction of a judgment at law was refused the complainant on the ground that he tendered the amount of the note at the time and place of payment in Confederate treasury notes, where he failed to prove that such notes were current then and there among business men in common.</p> <p>3. SAME. Same. Not property contracts.</p> <p>A contract to pay in “dollars,” with the understanding- that any currency which should pass current as money among business men should be regarded as “dollars” is not a property contract, and the law governing property contracts has no application to such a contract.</p> <p>4. SAME. Reference to ascertain value of depreciated currency, when; remandment for this purpose.</p> <p>Where it appears from the proof that the price agreed to be paid for the property was fixed in view of the depreciation in the currency, and that the vendor was entitled to the value of the circulation current as money at the place and time of payment, a reference should be made for the- purpose of ascertaining- by proof the value of the currency which the vendor Was bound by the contract to receive as determined in the ease as shown in the second syllabus, for which amount so ascertained the vendor will be entitled to judgment; and to such end the case will be remanded for further xDroceeding's.</p>

<p>1. PAUPER OATH. Eor aj>peal may be taken after adjournment of court when so decreed.</p> <p>An appeal may be granted from a decree in chancery upon condition that appellant give an appeal bond or take the pauper’s oath, and may grant time beyond the term (in this case twenty days) in which to give the bond or take the oath, the doing- of either of which within the prescribed time perfects the appeal. [See Code, sec. 4898.]</p> <p>2. SAME. Same. Defective or irregular, amended in supreme court.</p> <p>If such bond or oath given or taken out of term time, but within the time allowed by the decree -of the court, is defective or irregular, it may be amended in the supreme court by tiling a sufficient bond or oath under the decree of the court.</p>

<p>3. ADMINISTRATION. Liability of one executor and their sureties for devastavit of a co-executor before their qualification.</p> <p>Where two executors are nominated or appointed by the will, without waiving bond and security, and one of them commits a devastavit, or appropriates to his own use property of the testator’s estate, before the probate of the will and their qualification as such executors, he is liable personally and individually in the first instance to the estate for such devastavit, but the other executor and the sureties on their joint bond will be liable also if it' appears that the executor committing the devastavit was solvent, and that the amount due from him could have been collected by suit within a reasonable time after the qualification of said executors.</p> <p>Cited: 2 Wms. on Exrs., 1649 [3d vol. bottom p. 3820], 1649, note 1 [not verified]; 1 Perry on Trusts, secs. 426, 424.</p> <p>2. SAME. Same. Credits against devastavit for debts paid, and for services. Remandment for reference, when.</p> <p>Where executors are sought to be held liable for a devastavit, or for appropriation of the property of the testator’s estate, upon an order of reference to ascertain the value of the same, they are entitled, upon request, to have included-in the reference instructions to the master to- give them credit in his report for all just claims and debts which they paid for sa.id estate, for which they' had not been credited, and for services, and where such request was refused by the court below, the supreme court will remand the cause for that purpose.</p>

<p>JUDGMENTS AND DECREES. Valid where ease erroneously styled in caption is correctly styled in body.</p> <p>Where the body oí the judgment, shows the case in which it is rendered and entered, the judgment is valid, although the style oí the case as given in the caption of the decree is erroneously entitled as another case. Eo'.r instance, when property is sold in a suit, and in taking' judgment on the purchase money notes the decree, is style in the caption in the name of clerk (who was the commissioner tó sell) for use, etc., against the purchaser, but in the body of the decree it is fully shown in what case the sale was made and the notes executed, the judgment is valid.</p> <p>Cited and distinguished: Rucker v. Moore, 1 liéis., 726.</p>

<p>1. CHANCERY JURISDICTION. To subject land held by unregistered title bond or deed by bill to. discover same upon a “nulla bona” return. Registration of memorandum of judgment does not prejudice right.</p> <p>Where the execution issued from a judgment of the circuit court is returned “nulla bona,” and the judgment creditor, within less than sixty days from its rendition, causes a mem-oranclum of his judgment to be registered under the provisions of the statute, and thereupon files a bill in chancery ag-ainst the judgment debtors and their vendor alleging that said debtors are the owners of real estate conveyed to- them by unregistered title bond or deed, and! that he does not know which, and praying for a disclosure of the character and nature of the title to said real estate, whether held by title bond or deed, and for an account to ascertain the amount due the vendors, and for a sale of the property, and after paying the vendor’s lien, for the balance to be applied to his judgment and costs, and though it appears from the answer of defendants that the land is held by an unregistered deed not exhibited, and, therefore, by a legal title subject to execution, still complainant is entitled to the relief asked for, and will not be denied his relief after obtaining the discovery sought. Registration of memorandum of his judgment cannot prejudice complainant. [See Code, secs. 6092-6096, and notes.]</p> <p>Cited: Code (1858 and 1871), see. 2984; Code (M. & V.), sec. 3698; Shannon’s Code, sec. 4712.</p> <p>2. SAME. Same. Land not sold subject to vendor’s lien, but lien ascertained and sale to satisfy it, and judgment.</p> <p>Where a judgment creditor with an execution returned nulla bona seeks to have land held by the debtor upon which there is a vendor’s lien sold to satisfy such lien, and the balance applied to his debt, and the court orders the land sold subject- to the lien, upon appeal the supreme court will order a reference to ascertain the amount of the lien, and also the judgment, and will decree the property to be sold to satisfy the lien, and the balance to be applied to- the said judgment.</p> <p>3. CHANCERY PRACTICE. Exceptions to clerk’s report for failing- to. refer to. evidence overruled, when.</p> <p>An exception to the clerk’s report upon the g-round that it does not refer to the evidence sustaining same, will be overruled where the amount is ascertained by a simple calculation oí interest from allegations made in the hill and admissions in the answer.</p> <p>4. SAME. Exceptions to clerk’s report in accordance with credits indorsed on notes overruled when no evidence to support exceptions.</p> <p>An exception to the clerk’s report upon the ground that the notes a.re not due will be overruled where the notes themselves filed by the holders show that they are due. Exceptions that the notes are not due because it is stipulated upon the back of them that the payment of the notes might be postponed from six months to six months, not exceeding ten years, upon the payment of the interest accrued every six months, will be overruled where credits of interest were not indorsed on the note in accordance with such stipulated conditions, and there is no other evidence of such payments. Exception' that payments credited on notes were not applied in accordance with contract will be overruled where there is no evidence showing the truth of facts alleged in the exception.</p>

<p>1. MOTIONS. Judgment against supreme court clerk and sureties sustained, when.</p> <p>Where a defendant’s property is sold to satisfy a judgment in the supreme court, and there is a surplus left which is attached and impounded by another creditor of said defendant, and a decree obtained for the same, and upon the failure of the clerk to pay the same, a motion in the name of said defendant for the use of said attaching' creditor against the clerk and his .sureties will lie, and.'a judgment thereon will be sustained, and a bill enjoining the execution thereof will be dismissed.</p> <p>2. INJUNCTION. Judgment on bond, on dismissing bill enjoining' judgment at law.</p> <p>Upon dismissing a bill, and dissolving the injunction enjoining- a judgment at law, the chancery court should render judgment ag-ainst complainant and sureties on the injunction bond for the amount of the judgment enjoined, and where this is not done, upon appeal by complainant and writ of error by defendant, the supreme court will modify the decree so as to render such judgment.</p>

<p>1. APPEALS. Circuit judg-e could not authorize taking appeal bond after his term before act 1871, ch. 59.</p> <p>Before the act of 1871, eh. 59, \ a circuit judge could not authorize an appeal bond to be taken by the clerk after the expiration of the term, and it did not alter the case that his court was in session at a subsequent term, when he approved the bond made within the time prescribed, because his jurisdiction and power as to the business of the previous term ceased with the adjournment of that term.</p> <p>2. SAME. Same. Eecord must show appellant entitled to benefit of act of 1871, ch. 59.</p> <p>Where, under the act of 1871, ch. 59, the record shows that the circuit judge granted the appellant an appeal “upon giving bond within thirty days as required by law, which time is allowed said defendant within which to give said bond,” the appeal is not perfected by giving the bond after the expiration of the -term of the court, though within the prescribed time, because said law is a special law, and an exception to the g-eneral law, and it does not appear in the record that the time given was for one of the reasons specified in said act. [See Code, sec. 4898, as said act amended by acts 1885, ch. 65.]</p>

<p>1. ADMINISTRATION. STATUTE OE LIMITATIONS. Nonresident creditor’s- suit in federal court same as if in state court, wlien.</p> <p>A nonresident creditor’s claim against a decedent’s estate is not barred by the statute of limitations, where, before such bar, he commences a suit in the federal court having- jurisdiction against the personal representative of such estate, and during the pendency and prosecution of such suit, and with-<mt dismissing it, but after his claim -would have been barred had he not Instituted such suit, he suggests the insolvency of the estate, and files a bill in the state chancery court to have the estate administered there as an insolvent estate. His claim is saved from the bar of the statute of limitations by his suit in the federal court, and a demurrer to his bill in the chancery court on the ground that the claim is barred, will be overruled.</p> <p>Cited and construed: Code (1858 and 1871), secs. 2279, 2784, 2366; Code (M. & V.), secs. 3117, 3481, 3211; Shannon’s Code, secs. 4012, 4481, 4106. [See also secs. 4123, 4124.]</p> <p>2. FEDERAL COURT. Hot a foreig’n court in the state where sitting.</p> <p>A federal court sitting- within the state is not a foreign court, and where its jurisdiction is concurrent with the state courts, a nonresident creditor may elect to- sue to> recover his debt against a decedent’s estate in either the federal or state courts.</p>

<p>1. MISTAKE IN SALE OE LAND BY ACRE. Vendor entitled to no relief for excess after sale in gross before mistake discovered, when.</p> <p>Where a mistake as to the quantity of land sold by the acre is made in the survey and deed of conveyance, and the ven- ■ dee, before the mistake is discovered, with the knowledge, approval, and acquiescence of his vendor, sells and conveys the land in gross to a third person as an innocent purchaser, describing- the land and number of acres as the same was described in the deed of the first vendor, without receiving any benefit from the mistake, the original vendor cannot recover from the original vendee for any surplus over the number of acres recited in the deed, nor can he recover from the second vendee and the subsequent vendees, or assert any lien against the land. [See notes 66-79 under sec. 3143 of the Code.]</p> <p>Cited with approval: Hudson v. King, 3 Heis., 569; McCarty v. Kyle, 4 Coid., 349; Phillips v. Hollister, 3 Cold., 369; 5 Jones Eq., 179.</p> <p>3. SAME. Same. Aendor entitled to no relief on repurchase by vendee from his vendee.</p> <p>Where, in such case, the orig-ina-1 purchaser is guilty of no violated trust or meditated fraud, and repurchases a portion of the land so sold by him, the original vendor cannot recover from him, nor assert any claim against the land so repurchased.</p> <p>Cited with approval: 1 Story Eq. Jur., secs. 410, 139, 138i, 138g, note 3.</p>

<p>1. CBIMINAL LAW. Prosecutor not taxed with costs fox mere abandonment of case as for a frivolous or malicious prosecution, when.</p> <p>The proof should he clear and conclusive that the prosecution was frivolous and malicious, and known to the prosec cutor to he without foundation, to authorize the costs to he adjudged ag-ainst him. The facts that the prosecution is frivolous and malicious must appear from the proof in the case, as where the defendant is tried and acquitted upon an indictment or presentment, or tried and discharged before a committing- magistrate. The power to tax the prosecutor with the costs in a criminal proceeding- is a statutory power, and the statute must be strictly pursued. The fact that the prosecutor, who- is not a witness, abandons the prosecution is no evidence that the prosecution is frivolous or malicious. So, where no- evidence is heard in the case showing- the prosecution to be frivolous or malicious, the prosecutor cannot be taxed with the costs for his nonattendance, at the trial or mere abandonment of case.</p> <p>Cited with approval: State v. Green, 2 Head, 356; Erazer v. State, 2 Swan, 536.</p> <p>Cited and construed: Code (1858 and 1871),-sec. 5579; Code (M. & V.), sec. 6457; Shannon’s Code, sec. 7611.</p> <p>2. SAME. ' Same. Appeal from taxation of costs against prosecutor to circuit court, and to supreme court.</p> <p>Where the justice of the peace erroneously taxes the- prosecutor with the costs of the case as for a frivolous or nm-licious prosecution, and an appeal is taken to the circuit court, where the attorney-general waives the question of the right to appeal, and the judgment of the justice is affirmed, an appeal will lie to the supreme court.</p>

<p>1. EXECUTION SALES OE LAND. Set aside as cloud, where required statutory notice is not given.</p> <p>A judgment debtor whose land has been sold under execution, while he occupied it, and without the statutory notice of twenty days, is entitled, upon a bill filed in chancery for that purpose, to have the sale set aside as a cloud upon his title, and to have the sheriff enjoined from executing .a deed to the purchaser. [See Code, sec. 4770, and notes generally under sec. 4771, but particularly notes 3 and 7.]</p> <p>2. SAME. Same. Satisfaction of judgment set aside where creditor purchased.</p> <p>Where, in such case, the judgment creditor became the purchaser and credited or satisfied his judgment pro tanto-, with the amount of his bid, he is entitled, upon his answer filed as a cross bill, to have said satisfaction set aside. [See Code, secs. 4 719-4722, and notes.]</p>

<p>1. WILLS. CHARITABLE TRUSTS. Valid where fund vested in trustee.</p> <p>Devises and bequests to pious and charitable uses, if the fund be vested in a trustee to be managed and controlled by him for a lawful, definite, charitable use, will be valid though there be no person in being capable of suing for the enforcement of the trust. And these trusts are favored by courts of equity, and will be supported, even where the trust would fail for uncertainty, were it not charity. It is the very nature of charity that the individual beneficiaries of the charity are unknown. If the trust itself be certain, fixed, and definite, and there be a latent ambiguity as to who’ were to enjoy it, which is susceptible of explanation by proof, the trust will be sustained.</p> <p>Cited with approval: Dickson v. Montgomery, 1 Swan, 348, 370; Gass v. Ross, 3 Sneed, 211; Green v. Allen, 5 Hum., 204; Franklin v. Armfield, 2 Sneed, 305 [see 1 Cold., 636]; Frierson v. General Assembly, etc., 7 Heis., 683.</p> <p>2. SAME. Same. Same. Case in judgment. •</p> <p>A bequest as follows: “I give and bequeath to- Joel R. Chappel and John Glass three thousand dollars, in trust and for the sole purpose of buying or building a permanent parson-ag-e for the Baptist Church worshiping in Jackson, and their successors, who shall hold the same Calvinistic doctrine as recognized by them and by' the old and regular Baptist Church in the United States,” is a valid trust, and the trustees can recover the same from the executor.</p> <p>3. INTEREST ON LEGACIES. From one year after testator’s death g-enerally. Rules.</p> <p>A leg-acy given generally out of the testator’s personal estate without specification of any time of payment, bears interest from the expiration of one year next after his death. The executor is allowed that time for the collection of the effects. The sounder rule would seem to be that interest should accrue according to the exigencies of the estate in regard to its debts, and the situation of its assets. A leg-acy severed from the rest of the testator’s estate-, and specifically appropriated to the benefit of the legatee, bears interest from the testator’s death. A legacy to be paid out of certain non-interest bearing notes payable after testator’s death, which were collected in partial installments in one, two-, and three years, respectively, will begin to bear interest at the end of one year from death of testator. [See notes 14-19 under sec. 3494 of the Code.]</p> <p>Cited with approval: Mills v. Mills, 3 Head, 706; Hunt v. Jacks, 1 Hay. (N. C.), 173; State v. Blount, Id., 4.</p>

<p>1. PRO CONEESSO. Prevents raising questions of facts charged in bill by exceptions to master’s report.</p> <p>After a bill is taken for confessed against a defendant, the allegations are conclusive against him, and he cannot, by-exceptions to the master’s report, raise questions of facts charged in the bill. [See Code, see. 6181, and notes.]</p> <p>2. EXCEPTIONS TO MASTER’S REPORT. Not filed in proper time, stricken from files; example.</p> <p>Where the master’s report was filed on the 13th of December, 1870, and on the 15th day of said month an intervener was allowed to file a “supplemental bill in the nature of a supplemental or cross bill, but with express refusal to make any order staying proceedings in the cause, which bill was dismissed upon demurrer on the 14th of April, 1871, which decree was affirmed by the supreme court on the 21st of October, 1873, and the original cause remanded on the 20th of November, 1873, exceptions filed to the master’s report by the defendant to the original cause on the 17th of December, 1873, were not filed in proper time, and on motion should be stricken from the files. The bill filed by the interveners was no impediment to the filing of exceptions to the report, especially as a stay of proceedings was expressly refused.</p>

<p>1. TAXATION. Privilege tax for state “in lieu of all other taxes" precludes, city from imposing privilegie tax.</p> <p>A statute providing that for tbe privilege'of doing business in this state there shall be paid to the state by foreign insurance companies a tax of two. and one-half per centum on their gross premiums, “which shall be in lieu of all other taxes,” precludes a city or county from imposing or assessing any tax in the nature of a privilege tax for doing business within their territorial limits. [See Code, secs. 713, 722, and note, and sec. 33Ó2.]</p> <p>Cited with approval: Memphis v. Hernando. Ins. Co., 6 Bax., 527.</p> <p>Cited and construed: Acts 1875, ch. 109, see. 8.</p> <p>2. SAME. Same. Such provision in statute repealable, in charter not.</p> <p>The difference between a like provision in the charter of a domestic insurance company, and in an act of the legislature, is, that the act is repealable, and the charter is not, but while the act is in force, its meaning as to the extent of the exemption from further taxation, it seems manifest, must be the same. [See Home Ins. Co. v. Taxing District, 4 Lea, 644; Memphis v. Carring-ton, 7 Pickle, 515.]</p> <p>3. SAME. Same. Question reserved as to property tax.</p> <p>The question as to the right of the city or county to impose a property tax upon any property such foreign insurance companies might acquire or own within the city or county was reserved.</p> <p>Cited: 17 Grattan (Va.).</p>

<p>1. TAXES. Action oí sureties of collector against nonpaying taxpayer when they have paid judgment for such nonpayment.</p> <p>The sureties of a tax collector having paid a judgment against them in favor of the state for the failure of their principal to collect the public taxes due the state for the year 1867, were entitled to a recovery by an action against a person who had failed to pay to the collector the taxes due from him to- the state for that year. The sureties were substituted to ail tbe rights that the collector mig-h have had against the taxpayer at common law. [See Code (1858 and 1871), sees. 607-642e, 661-667b.] The statutory remedy given for the collection of taxes was merely cumulative, and did not abrogate the remedy at common law. The payment of the taxes assessed on the property of the defendant was the payment of a debt due by him, it was a discharge of a burden upon his estate, and for his benefit the lifting of a lien. [See statute authorizing this kind of action now. Shannon’s Code, secs. 958-960.]</p> <p>Cited with approval: Jonesborough v. McKee, 2 Yer., 167.</p> <p>2. SAME. Same. Extension of time of collection not a statute of limitations.</p> <p>The time of two years given to tax collectors and their sureties in which to collect arrearages of taxes is merely an extension of official existence, and is not a repeal or modification of the general statutes of limitations, só as to require all suits growing- out of their responsibilities and liabilities to- be commenced within that time. The right of action by the sureties ag-ainst defaulting taxpayer accrued at the date of payment of the judg-ment of the state against them for the principal’s failure to make collection, and the statute of limitations did not begin to' run till then. [See Code (1858 and 1871), secs. 661, 662; also. Shannon’s Code, sec. 953.]</p> <p>3. SAME. Nature of bond of collector.</p> <p>The bond of the tax collector is intended to secure the collection and payment of the public revenue over according to law. The amount in the bond is not in the nature of a penalty in its correct sense, but is a security. The payment of the taxes secured by it, by the collector or his sureties, is a discharg-e of the claim of the state as against the property assessed and its owner.</p>

<p>1. PARTITION. Evidence necessary to sustain sale of land for.</p> <p>Before a sale for partition can be decreed there must be satisfactory evidence of facts upon which to base a conclusion that the land cannot be partitioned in kind, or that “it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned,” for the right to sell for division instead of partitioning is made to depend upon one or the other of these facts. A sale made for partition, where there is no evidence to show its necessity, will be set aside when the case is brought into the supreme court for revision. [See notes under sec. 5042 of the Code.]</p> <p>Cited with approval: Davidson v. Bowden, 5 Sneed, 133.</p> <p>Cited and construed: Acts 3827, ch. 54; Code (1858 and 1871), sec. 3293; Code (M. & V.), sec. 4024; Shannon’s Code, sec. 5042.</p> <p>2. SAME. Making minor heir of deceased complainant defendants not objectionable.</p> <p>In a proceeding for a sale of land for partition, there can be no objection to the order of the court making' the minor heirs at law of a deceased complainant, against whom the cause has been revived, defendants, for it is at least irregular and objectionable, if not erroneous, to make minors complainants in such suits, as the attitude of defendants in a suit in equity is in various respects safer and more advan-tag'eous for infants than that of complainants. [See Code, sec. 5018, and notes.]</p> <p>Cited with approval: Davidson v. Bowden, 5 Sneed, 133.</p> <p>3. DOWER. Costs of assigning paid out of the decedent’s estate, when.</p> <p>Where the administrator who is an heir, and other heirs and the widow join in a petition against the other heirs for a partition of the land, and to have dower set apart to the widow, the court may adjudge the costs of setting apart the dower against the administrator to be paid out of the assets of the estate. [See Code, sec. 4161.]</p>

<p>1. ACKNOWLEDGMENT OE DEEDS. Before notary public by husband and wife, valid.</p> <p>Under the act of 1870, ch. 71, notaries public in this state have power to take acknowledgments of all instruments required for registration, in the same manner and under the- same rules and regulation® as given county court clerks by existing Jaws, and by this act the registration laws are SO' amended as to give the notaries public power to take acknowledgments in all cases comprehended in secs. 2030-2106 of the Code of 1858, which includes, among others, instruments executed by husband and wife.</p> <p>Cited and construed: Acts 1.870, ch. 71; Code (1871), secs. 2039a-2039d [Shannon’s Code, sec. 3714]; Code (1858), secs. 2030-2106. [See Shannon’s Code, secs. 3697-3793.]</p> <p>2. SAME. Same. Good without certificate of clerk as between parties.</p> <p>The certificate of acknowledgment of a married woman by a notary public was valid as be-tween the parties with the certificate of the county court clerk under the said statute (act 1871, ch. 71, sec. 2) requiring the certificate- of the county court clerk as to his official character to authenticate instruments for registration.</p> <p>Cited and construed: Code (1858 and 1871), sec. 1799; Code (M. & V.), sec. 2470; Shannon’s Code, sec. 3203.</p>

<p>1. PARTNERSHIP. Each member can bind the firm in its scope oi business.</p> <p>The right of one partner to- bind the other grows out of their partnership agreement to carry on the partnership business, in which each partner becomes the equal and representative of the entire firm; but one partner has no right to bind the firm by a contract entirely outside the scope of the business of the firm.</p> <p>2. SAME. Same. Contract outside of scope of business, when binding or not.</p> <p>If the contract is outside of the scope of the partnership business, it is prima facie without authority, and not binding upon the other members. They might be bound if it were shown that the previous transactions of a similar character had been permitted without objection, or the previous course of dealing- between the parties justified the belief that the transaction was authorized on the firm account. But if the member proposed to deal on his own account, this fact would put the other party upon inquiry, and such party would have to sec that the autnority of the firm was given to the transaction, before the firm would be bound.</p> <p>3. SAME. Same. Same. Verdict not sustained by evidence, new trial granted.</p> <p>Where 1he plaintiff admits that a member of the defendants’ firm tried to deal in a transaction ou-tside of the scope of the partnership business, on his own credit, which was refused, and afterwards sold him the same bill of goods, marked them with his initial, and sent them to- a steamboat on the river, without further inquiry as to the fairness of the transaction, although the defendants’ house was in the same city, the defendants’ firm is not liable, and a verdict against the firm, or other members thereof, will be set aside, the ease reversed and remanded for a new trial.</p>

<p>MUNICIPAL ORDINANCE. Requiring' dogs to. be muzzled not violated, when.</p> <p>A city ordinance requiring dogs to be muzzled, and inflicting a penalty where a dog shall be found running' at large without a muzzle, and without the inclosed premises of the owner or possessor, is not violated by the owner in keeping his unmuzzled dog' tied on his own premises, and not permitted to run at large.</p>

<p>1. CRIMINAL LAW. Plea, in abatement to presentment, where one juror incompetent.</p> <p>A presentment by a grand jury where one member is incompetent to join in making the same because he was the de-feirdant’s uncle, will be quashed upon the fact so appearing upon a plea in abatement. [As to indictment, see State v. Baker, 4 Hum., 12.]</p> <p>Cited with approval: State v. Duncan, 7 Yer., 271; State v. Baker, 4 Sum., 12.</p> <p>2. SAME. Same. State’s replication stricken orxt, when bad. The state’s replication to the plea in abatement that said juror</p> <p>was not present and took no part in the consideration of the charge against defendant, will, upon defendant’s motion, be stricken out, and the presentment quashed, especially where it appears the presentment and the minutes of the court show that the incompetent juror did concur in the presentment.</p>

<p>1. PROMISSORY NOTE. Makers described as directors liable individually, when.</p> <p>Where the makers of a promissory note describe themselves, “the directors” of a corporation or association named, the note is the individual obligation of the several parties signing it, and not the promise or agreement of said corporation or association.</p> <p>2. SAME. Same. Parol evidence inadmissible to vary.</p> <p>Parol evidence is not admissible on a trial at law to show that the note sued on was intended or construed as importing a different contract from that appearing upon its face.</p>

<p>1: BILLS AND NOTES. Protest of foreign bill to render drawer , liable.</p> <p>The drawer’s liability upon a foreign bill must be made out by the notary’s certificate of the demand, protest, and notice. [See note 2 under sec. 3205 of the Code.]</p> <p>2. SAME. Same. Chancery pleading and practice. Exhibit with bill; certificate filed as proof.</p> <p>Where the notary’s certificate of protest was exhibited with the bill, but not showing that notice had been given, a certified copy from the original entry on the notary’s books showing the further certificate of the notary that notice was duly g-iven, may be produced as proper evidence at any time, subject only to the general rule as to' documentary evidence. It was not essential that -it should have been exhibited with the bill. The issue was made by the pleadings, and- complainant was entitled to sustain his side of it in this way.</p> <p>Cited and distinguished: Winchester ,v. Winchester, 4 Hum., 51.</p> <p>3. SAME. Notary’s protest proven by copy from books.</p> <p>The notary’s certified copy of the protest from the original entry on his books, made in another state-, will be received as evidence in the courts of this state if the same is admissible as evidence under the laws of the state where made, though the copy may be proven as a sworn copy by deposition, or by an authentication under the act of congress. [See Shannon’s Code, p. 112, sec. 2; notes 14, 22-25 under sec. 3205 of the Code-.]</p> <p>Cited with approval: Thompson v. Bank, 3 Cold., 46; McAfee v. Doremus, 5 How., 53.</p> <p>4. SAME. Demand for acceptance must be made of drawee or his agent.</p> <p>Demand for acceptance must be made on the drawee in person, or an authorized ag-ent. Where the bill was presented at the office of the drawee to his clerk, and acceptance demanded, and the clerk answered that the drawee was not in, and had instructed him to state that the draft could not be accepted, the protest showing these facts was sufficient. [See notes 49, 50 under sec. 3205 of the Code.]</p>

<p>1. FRAUDULENT CONVEYANCES. Deed of trust void for retention of property for benefit of maker and other causes; example.</p> <p>A deed of trust to secure a debt conveyed “all the stock, wagons, utensils, cord wood, crops, houses, mules, cows, hogs and all other personal property upon the grantor’s place containing 1,878 acres in Tipton County, Tennessee, about 40 miles above Memphis, or that may hereafter be put upon said place, or grown there, or all cord wood to be hereafter cut as hereinafter described. . . . This conveyance is made to enable the trustee to take charge of said place, all personal property and wood thereon, and all crops grown thereon, and bring- the same to market at Memphis, Tennessee, or elsewhere as it may be most advantageous, and sell said cord wood and crops to the best advantage, privately or publicly at wholesale or retail, and after paying all expenses of marketing and selling the same, apply the surplus lo the payment oí the aforesaid debt. And the trustee is hereby authorized and directed to keep up said place, and continue the cutting of wood, and growing of crops, and marketing and selling the same, and apply as fast as possible after deducting the expense of same, the proceeds of said wood and crops to the payment of said debt.” The deed contained a further provision authorizing and empowering said trustee to employ such agent or agents as may be necessary to carrjr out the objects of the trust, and waived the necessity of the trustee’s, giving bond or making oath as required of trustees by the laws of the state. This deed of trust is void upon its face, because: It vests in the trustee the title to all the property conveyed with power to sell only the “cord wood and crops;” the other property is withdrawn from the reach of his general creditors without subjecting it to the payment of the debts, intended to be secured by the deed, to be used for the profit and advantage of the grantor indefinite! y, which profits were to be applied to the debt secured; there is no time limited for closing the trust, no bond and oath required, unlimited discretion, insufficient description.</p> <p>Cited with approval: Doyle v. Smith, 1 Cold., 20; Overton v. Holinshade, 5 Heis., 683; Tennessee National Bank v. Ebbert, MS.</p> <p>2. SAME. Clause in deed of trust to cover future acquired jjroperty does not affect existing property conveyed.</p> <p>A -provision in a deed of trust that it should cover all personal property hereafter put upon said place, or grown there, or all cord wood to be hereafter cut, does not render it fraudulent on its face as to property in existence and embraced by the conveyance.</p>

<p>1. CONTRACTS. Where seal required, agent’s authority must he under seal.</p> <p>Where a contract is required by law to be executed under seal, an agent, in the absence of authority under seal, has no power to enter into one so as to- bind liis principal. [Private seals abolished. See Code, see. 3213.]</p> <p>Cited with, approval: 6 Greenleaf, 160; Boyd v. Dodson, 5 Hum., 37.</p> <p>2. SAME. P.arol evidence inadmissible to charge disclosed principal when contract binds agent individually.</p> <p>When an agent disclosing his principal makes a written, contract with a third person binding himself individually on the face of the contract, parol evidence is inadmissible to show that by said contract it was intended to bind the said principal as obligor therein. The true construction of the terms of a written instrument is a question of law, and the court should have construed said contract for itself, and should' have' instructed the jury that by its express terms and legal effect it was binding alone upon the party executing it, instead of leaving to. the jury the construction and interpretation of the written contract in the light of the parol evidence explanatory thereof.</p> <p>Cited with approval: Ahrens v. Cobb, 9 Hum., 645.</p>

<p>1. CRIMINAL LAW. Attorney-general's iee against county for petit larceny, when a misdemeanor.</p> <p>Under the act of 1875, ch. 84, declaring petit larceny a misdemeanor, where the county .paid the costs, the attorney-general’s tax fee was two- dollars and fifty cents, and no • more.</p> <p>Cited and construed: Code (1858 and 1871), sec. 4545; Code (M. & V.)> sec. 5292; Shannon’s Code-, sec. 6379; acts 1875, ch. 84 [repealed by Acts 1877, oh. 65].</p> <p>2. SAME. Same. Defendant not required to. work out more than county pays.</p> <p>In such case where the defendant was sentenced to the county workhouse to- work out the fine and costs, and the costs adjudged to he j^aid by the county, the attorney-general’s fee as against the defendant, to be worked out by him for the county, should be two dollars and fifty cents — the same amount as taxed against the county to he paid by it. ’ ’</p> <p>3. STATUTES. Express language not disregarded because o-f “bungling” provision or expression.</p> <p>Though, the statute declaring petit larceny a misdemeanor may be a “bungling” provision or eximession, the court has nothing to do with the “bungling” of the legislature, and will not disregard the express language of the statute.</p> <p>Cited and construed: Acts 1875, ch. 84, sec. 2 [repealed by acts 1877, ch. 65].</p>

<p>1. STATUTES OF LIMITATIONS. Suspension on account of war applied to decedents as well as the living'.</p> <p>Wherever the courts were closed during the war between the states, the operation of the statutes, of limitations was suspended. Before the courts were reopened, and the statutes of limitations again begun to operate against the claim, the statutes and the constitution suspended the operation of the statutes of limitations from, the sixth day of May, 1861, to the first day of January, 1867. This suspension operated against estates of decedents as well as against the living. [See Code, secs. 4454.]</p> <p>Cited with approval.: Yancy v. Yancy, 5 Heis., 364; Harrison v. Henderson, 7 Ileis., 315.</p> <p>Cited and construed: Acts 1865, ch. 10.</p> <p>2. SAME. Same'. Case in judgment.</p> <p>A claim is not barred by the statutes of limitations under, the facts as follows: Claim due Aug. 26, 1856; debtor’s death Sept., 1866; administration granted Nov., 1866;. insolvency suggested March, 1867; claim filed October, 1867; bill filed by creditors Jan. 24, 1872, to. sell land to pay decedents’ debts.</p> <p>3. SAME. Suspended by sugg-estion of insolvency and filing ' claims, when.</p> <p>After the suggestion of the insolvency of an estate, the filing of claims not then barred by the statutes of limitations, in the county court, preserves them from the bar until the filing of a bill to sell land to. pay decedent’s debts five years after his death. [Such claims would be barred if bill not filed to sell land within seven years after filed in county court and allowed. See Code, sec. 4014, and not© 15, and other notes.]</p> <p>4. SAME. CHANCERY PLEADINGS AND' PRACTICE. Suspension of statute of limitations shown without direct issue as to suspension.</p> <p>Where a creditor files a bill in chancery court to. sell land to pay a decedent’s debts, charging the existence of his debt against the estate, which the answer denies and relies upon the statute of limitations, either party may show by evidence any fact or law which would tend to support his claim, and though the years of the statute had passed, complainant might' show his claim not barred, by showing the suspension of the operation of the statute: (1) by the closing of the courts during- the war; (2) by statute; (3) by suggestion of insolvency of decedent’s estate; (4) by filing claim; or (5) bring' suit thereon.</p> <p>5. ADMINISTRATION. Proof of suggestion of insolvency.</p> <p>The suggestion of insolvency ■ of a decedent’s estate may be proven without record evidence by depositions where there are no exceptions.</p> <p>6. CHANCERY PLEADING AND PRACTICE. Same. Same. Allegations of bill proven though no- issue by denial of answer.</p> <p>Where the creditor’s bill filed in chancery court to sell decedent’s lands to pay debts, alleges that the insolvency of tire estate had been suggested by the administrator, and the answer is silent as to this allegation, the same ma.y be proven, as it was not necessary that an issue should have been made by the answer as to this question. [See note 4 under see. 6125 of the Code.]</p>

<p>1. CRIMINAL LAW. Indictment g'ood though grand jury not charged.</p> <p>A plea in abatement to an indictment averring that the grand jury, or any number of them, were not charged by the court touching their duties before the finding of the indictment, is bad, and a demurrer to it will be sustained. The defendant cannot malee this question by plea in abatement or otherwise. The court will presume that the grand jury were properly instructed. But if the grand jury is not instructed or charg-ed at all, the indictment cannot be quashed for that reason.</p> <p>Cited and construed: Code (1858 and 1871), sec. 5076; Code (M. & V.), see. 5901; Shannon’s Code, sec. 7035.</p> <p>2. SAME. Indictment quashed if grand jurors disqualified.</p> <p>An indictment found by a grand jury, when part of the jurors are not legally qualified to- act as such, may be abated upon the plea of the defendant, as where the juror was ;not twenty-one years old, or not a resident of the county. [See Code, sees. 5834 and 7044, and notes.]</p> <p>3. SAME. Credibility of witness not tested by proof that he was eharg-ed with crime. General character proven.</p> <p>The credit of a witness may be tested by a cross-examination with mueh latitude, but it is not competent to^ read in evidence an indictment charging him with a particular crime, or to prove by witnesses that he had been so charged with the crime, in order to weaken his testimony. The truth of such charg-e could not be inquired into. His g’eneral character may be proven.</p>

<p>1. CRIMINAL LAW. Confession of guilt as charged not sufficient to convict unless defendant understood the charge.</p> <p>Where the defendant is arrested under a warrant charging him with the burglarious entry of a dwelling house in the night time with the iutent to commit a rape, and makes a confession that he had entered the house as charged, whether the prisoner understood the contents of the warrant, and the nature of the charge therein contained, was a question to be left to the jury, under the evidence of all the circumstances attending- the reading- and explanation to him, and the jury ought to be well satisfied that the prisoner understood from the reading of the warrant to. him the extent of the offense charged, before they would be authorized to accept as full confession of guilt, his admission that he was guilty, as charged in the warrant.</p> <p>2. SAME. Separation of jury and conversations witli others must be explained or verdict vitiated in felony case.</p> <p>Where jurors separate while trying' a felony case and hold conversations or have communications with other citizens or outside parties other than the members of the jury or their officer, such conduct, if unexplained, will vitiate the verdict and entitle the px-isoner to a new trial. And thfe prisoner is not bound to show that the jury had been tampered with, it being sxxfficient that they might have been, for the law in effect presumes they were tampered with, in the absence of explanation. [See King v. State, 7 Pickle, ‘ 624-627, and cases there cited.]</p> <p>Cited with approval: McLain v. State,' 10 Yer., 241; Stone v. State, 4 Hum., 27; Hines v. State, 8 Hum., 597; Edley v. State, 9 Hum., 6,46; Luster v. State, 11 Hum., 169; Wesley v. State, 11 Hum., 502; Pritchett v. State, 2 Sneed, 285.</p> <p>3. SAME. Same. Not waived by defendant by failure to object during trial, when. S'*</p> <p>Where during’ the progress of the trial, the presiding- judge stated that the jurors had separated and held convert sations with outsiders and asked defendant’s counsel “what course they would pursue in the matter, whether the jury should be discharged and a mistrial entered,” whereupon defendant, by his counsel, replied that “he neither gave his consent nor objected to- a discharge of the jury, nor did he wish 1,a waive any rights of his from the conduct of the jury.” The trial then proceeded. This was not a waiver of exceptions on account of the separation of the jury, because he was not taking- the chance of acquittal with the certainty of a new trial, in the event of a conviction, for the reason the conduct of tbe jury might have been shown to have been no prejudice to the defendant, as shown in last syllabus.</p> <p>Cited and distinguished: Jarnagin v. State, 10 Yer., 530; Nor-fleet v. State, 4 Sneed, 340.</p>

<p>1. CONSTITUTIONAL LAW. Compensation ol judges and chancellors fixed "by law, and cannot be delegated to county courts.</p> <p>A provision in a statute authorizing the county court to allow the judges and chancellors holding’ the circuit, criminal, and chancery courts for the county extra compensation in addition to their regular salary as fixed by g-eneral law of the state, is unconstitutional. The compensation of the judg-es is to be ascertained by law. This law must be enacted by the legislature, and cannot be delegated to- the county court or other body. This result cannot be avoided by assuming’ that the statute was in the nature oí a conditional law, to take effect upon the happening’ of the contingency, that is, upon the appropriation being’ made by the county court, and then stand as if the statute had definitely fixed the salaries at the limit.</p> <p>Cited and construed: Acts 1869-70, ch. 38, sec. 11; const., art. 6, see. 7.</p> <p>Cited in dissenting- opinion: Cooley’s Const. Lim., secs. 116, 117; Brig- Aurora v. TJ. S., 7 Cranch, 383; Ball v. Bead, 13 Grat., 78; State v. Parker, 36 Vt., 357.</p> <p>3.SAME. Same. Compensation of judges cannot be increased during’ term.</p> <p>Under the said statute authorizing’ the county court to> make an appropriation to increase the salaries of said judges as fixed by general law, the county court, after the said judges were elected, qualified, and inducted into office, made an appropriation to so increase their compensation. This increase of salary was a violation oí thei constitution, which provides that the compensation of judges shall not be increased or diminished during the time for which they are elected.</p> <p>Cited and construed: Const., art. 6, secs. 1, 7.</p> <p>Cited with approval: Sto. Const., sec. 1629, quoting from Federalist.</p> <p>3. SAME. Same. Same. Appropriation by county to increase compensation rescinded during term of judges.</p> <p>An appropriation made under said statute by the county court after the election of the judges, to give the compensation in addition to their salaries as fixed by general law, was merely voluntary, and was subject to be rescinded at any time during the term.</p> <p>4. SAME. Power of taxation delegated to counties for county purposes only; salary of judges not county purpose.</p> <p>The eotmty court had' no power to levy a tax to pay the sums appropriated for the additional compensation of the judges. The power of taxation belongs to the legislature, and it can delegate this power to counties only to the extent of imposing taxes for county purposes. A judg-e is not a county officer, although he presides in a single county. He is a state officer. Therefore the payment of his salary is not a county purpose.</p> <p>Cited and construed: Const., art. 2, sec. 29; art. 7, secs. 1, 3.</p> <p>Cited in dissenting- opinion: 15 Mo. Eep., 1.</p> <p>5. SAME. Same. Courts determine what is county purpose; legislature not exclusive judges.</p> <p>It is the province of the courts to determine whether or not the purpose for which the county may be authorized by the legislature to levy a tax is a county purpose, and if it be not a county purpose, the law to that extent must be declared void. The legislature is not the exclusive judges of what is a county purpose. What are county purposes defined, disctissed, and illustrated in the opinion of the court.</p> <p>Cited and construed: Const., art. 2, secs. 29, 28.</p> <p>6. SAME. Compensation of probate judge of Shelby County same as that of judges and chancellors.</p> <p>"While the subsequent act establishing the probate court of Shelby County provides that his salary shall be paid by the county, yet as the act fixes the amount of his salary to be the same as the salaries of the judges and chancellors of said county, which is the amount fixed by general law of the state as determined by the court in this case, he is within the constitutional rule, and his compensation cannot be added to by the county court-.</p> <p>■ Cited and construed: Acts 1870, ch. 86 [Shannon’s Code, sec. 387J, in connection with acts of 1869-70, ch. 38, see. 11.</p> <p>7. SAME. Courts may be created specially for one county.</p> <p>The territorial limits of the jurisdiction, and the extent and description of the jurisdiction that the several courts shall have and exercise, are referred exclusively to the wisdom and discretion of the legislature. Therefore an act is free from constitutional objection on the g-round that it is specially confined to the creation and establishment of courts in one county. [Dissenting opinion.]</p> <p>Cited with approval: Bank v. Cooper, 3 Yer., 615.</p>

<p>1. CONSTITUTIONAL LAW. Repeal of statute authorizing action against state effective as to previously, accrued rights of actions.</p> <p>A statute giving a right of action against the state may be repealed, and thereafter no suit can be brought ag-ainst the state for cause of action arising before such repeal. The act of 1865, ch. 36, sec. 31, repealing sec. 2807 of the Code of 1858, was constitutionally passed, and was valid. [See Code, sec. 4507, and notes; Walters v. State, 2 Shannon’s Cases, 69; Price v. State, Id., 322; Bnttram v. State, Id., 337; State v. Bank of Tennessee, 3 Bax., 395.]</p> <p>Cited and construed: Acts 1865, ch. 36, sec. 34; Code (1858), see. 2807 (repealed by said act).</p> <p>2.- SUPREME COURT PRACTICE. May hold up.case awaiting decision in supreme court of the United States.</p> <p>Where a casé has been appealed from our supreme court to the supreme court of the United States, and is there pending, and another case is in our supreme court involving the ver-y same questions, it may set aside the decree or judgment that 1he case may abide the decision of the question in the case pending in the supreme court of the United States.</p>

<p>1. CONVEYANCES. Deed to R., president oí a 'named bank, vests in bim legal title, and equitable title in bank if paid for by it.</p> <p>Where real estate is conveyed to Rutler, president of a certain named bank, and the warranty of the title is to Rntler, president, etc., and not to the bank, tbe legal title is vested in Rutler, and if it is paid for by the bank’s stock issued to the conveyor, the equitable title is vested in the bank.</p> <p>2. SAME. Same. If contract was conditional and executory, conveyor entitled to reconveyance on R.’s failure to comply with conditions.</p> <p>But where the conveyor’s subscription of stock was upon condition which Rutler failed to comply with, the contract to subscribe for the stock and pay for it in real estate was not an executed, but a conditional and executory contract, and therefore when the conveyor delivered up the certificate of stock, andl took a conveyance of the real estate to his wife, he did no more than he had a right to do under bis contract, and hence the bank therefore ceased to have any interest, legal or equitable, in the real estate.</p> <p>3. ATTORNEY’S LIEN. On defendant’s property in custody of court preserved by sei'vices of Ms lawyer.</p> <p>AVhere suit is brought, to recover land from a married woman, which land is brought under the custody of the court by the bill, and the same is protected and preserved to her by the services of her attorney, they are as much entitled to their lien as in cases where property is recovered by a plaintiff in a cause. The reason of the rule allowing a lien is the same in both cases, when the property is in the custody of the court. In this case funds derived from the sale o1 the land were in the custody of the court, and a lien declared on it. [Contra.: See Garner v. Garner, 1 Lea, 29; Sharp v. Fields, 5 Lea, 336; Winchester v. Heiskell, 16 Lea, 565.]</p> <p>Cited with approval: Hunt v. McClanahan, 1 Heis., 503.</p> <p>4. SAME. Declared, and how enforced.</p> <p>It is only when attorneys represent clients under some disability, such as married women and infants, that the courts make references to. ascertain a.nd fix the fee. When the clients are sui juris, no more is done than to. declare the lien, and the attorneys must enforce it in the regular way. [See Perkins v. Perkins, 9 Heds., 95.]</p>

<p>SUPREME COURT PRACTICE. Case cannot be tried by motion to discharge supersedeas, when.</p> <p>'The question whether the court below erred in superseding and quashing an execution cannot be reached by motion in the supreme court to* discharge the supersedeas in t]je cause there by appeal, but only when the cause is tried regularly on its merits.</p>

<p>1. ADMINISTRATION. Personal representative’s unsuccessful attempt to enjoin judgment does not make it Ms individual debt.</p> <p>Where a personal representative enjoins the execution of a judgment against him as such, which he has a right to do, if he believes it was unjust, a failure in such suit, by á dissolution of the injunction and a judgment on the injunction bond against him as such personal representative and the surety, does not make the judgment enjoined his individual debt.</p> <p>2. SAME. Judgment against personal representative on appeal bond of decedent as surety by scire facias.</p> <p>On the death of a surety on an appeal bond, the law authorizes a judgment against his personal representative, upon scire facias from the appellate court. [See Code, secs. 4575, 4001.]</p> <p>3. SAME. SAME. JUDGMENTS AND DECREES. Satisfaction set aside, and substitution in favor of purchaser.</p> <p>Where the personal representative fails in his suit to enjoin the execution of a judgment against him as such, and judgment is rendered on the injunction bond ag-ainst him, in his representative character, and the surety thereon, from which execution is issued and levied on property as that of the surety, which is sold for a sum sufficient to satisfy the execution, the purchaser, a stranger to' the execution, upon failure of the title to the sai’d property, is entitled to have satisfaction of the judgment set aside, and himself substituted to the rights of the said execution or judgment creditor. [See Code, see. 4726, and notes.]</p> <p>4. SAME. Same. Same. Same. Valid claim, against estate; harden on heirs to contest.</p> <p>The purchaser so substituted has a'claim against the estate, which he may file in an insolvent proceeding to sell lands to pay debts and receive his pro rata. The judgment proves itself, and should be allowed without further proof. The burden is upon the heirs to show that the estate is not liable.</p> <p>Cited and distinguished: Neal v. McCombs, 2 Yer., 10.</p>

<p>1; CONSTITUTIONAL LAW. Legislature cannot empower counties to subscribe for railroad stock by a special law.</p> <p>Under the constitution of 1834, and while the general internal improvement law was in force, the legislature had no power by a special act to- empower a particular county, or counties, not applicable to all the counties in the state, to subscribe stock to a railroad to be run through the- same, without first submitting the question to the people. The county court cannot subscribe to stock in a railroad, except under some statute which is the “law of the land.”' Such special act was not the “law of the land.” And county bonds issued under such act are actually- void, and cannot be made . valid by any subsequent action of the county court. [This case, so far as holding’ the Private Acts of 1866-67, ch. 48, sec. 6, and 1867-68, ch. 6, sec. 1, unconstitutional, is overruled expressly in Lauderdale Co. v. Fargason, 7 Lea, 153. See also' Burnett v. Maloney. 13 Pickle, 697, and Const, of 1870, art. 2, sec. 29.]</p> <p>Cited with approval: Railroad v. Davidson Co., 1 Sneed, 637, 677; McKinney v. Hotel Co., 12 Heis., 104; Morgan v. Reed, 2 Head, 276.</p> <p>Cited as not applicable: MeCallie v. Chattanooga, 3 Head, 323.</p> <p>Cited and construed: Private Acts 1866-6?, ch. 48, sec. 6; Private Acts 1867-6S, ch. 6, sec. 1; Acts 1851-52, ch. 117; Code (1858), see. 1143 et seq. [See Shannon’s Code, sec. 1542a et seq.]; Const. (1834), art. 2, sec. 29; art. 1, sec. 8; art. 2. see. 7; art. 11, sec. 7 [see sec. 8 in const, of 1870],</p> <p>Taxpayer may enjoin collection of taxes under such void statute. [See Winston v. Railroad, 1 Bax., 60.]</p> <p>2. COUNTY COURT. Acts ministerial in submitting question of railroad subscription to people.</p> <p>The duties imposed by the general internal improvement law upon the county court in submitting the question of subscription to stock in a railroad to the people, and in other thing's, is ministerial or instrumental only.</p> <p>Cited with approval: Railroad v. Davidson Co.., 1 Sneed, 637, 680, 681.</p> <p>Cited and construed: Acts 1S51-52, ch. 117.</p> <p>3. COUNTY COURT. Cannot ratify its own act void for want of power.</p> <p>The county court has no authority to ratify its own void acts. It has no more, power to ratify its own void acts than it has to perform the original void acts.</p> <p>Cited and distinguished: Ross v. Anderson Co-, (unreported.)</p> <p>4. COUNTY PURPOSE. Construction of railroad is.</p> <p>The construction of a railroad through a county is a county purpose for which the legislature may authorize counties to impose taxes.</p> <p>Cited with approval: Railroad v. Davidson Co., 1 Sneed, 637. Cited and construed: Const. (1834), art. 2, sec. 29.</p> <p>5. PARTIES TO-SUIT. All county bondholders not necessary parties, when.</p> <p>In a suit attacking' the validity of a county’s subscription to stock in a railroad, the issuance of bonds, and the levy of taxes to pay same, it is not necessary to have all the bond, holders before the court in order to- determine the questions, especially when the bondholders not before the court are shown to be citizens and residents of other states who became parties by intervention upon their own petition and motion, and then had the cause, so far as they were concerned, removed into the federal court. The taxpayer, the railroad company, and the county being all before the court, the necessary parties are before the court to- enable it to pass on the constitutionality of the legislation in question.</p> <p>Cited with approval: Sto. Eq. PL, secs. 72, 77. 78, 82, 135a; 1 Dan. Ch. PI. & Pr.. 181, 182, 238, 239.</p> <p>6. DISCLAIMER. Jurisdiction not defeated by, where interest parted with after suit, when.</p> <p>The railroad company, being made a party defendant to. the bill in the first instance, cannot oust the court- of jurisdiction by a disclaimer setting forth that since the filing of the original bill it liad sold and disposed of all the bonds in contest. A party may disclaim an interest in the fund in dispute, but cannot disclaim a liability.</p> <p>Cited with approval: 1 Dan. Ch. Pi. & Pr., 787 et seq.; Sto. Eq. PI., sec. 838 et seq.</p>

<p>SUPREME COURT PRACTICE. Appeal not dismissed tor clerk’s mere failure to file transcript, when.</p> <p>The fact that the clerk below has been guilty of gross negligence in delaying for nearly a year to make out and send up the transcript of the record cannot prejudice the appellant and deprive him of a trial of his cause, when no steps had been taken by the appellee to bring’ up the record and have an affirmance. [See Code, sec. 5858, notes and references.]</p>

<p>SUBETY. May pay liability without judgment and sue co-surety for contribution.</p> <p>A surety on a guardian bond may, before the rendition of judgment against him, or beipre suit, pay off the liability and sue his co-surety for contribution.</p> <p>Cited with approval: State v. Blakemore, 7 Heis., 651, 652.</p>

<p>INJUNCTION. Void judgments and decrees enjoined where attempted to be executed.</p> <p>Where a court of law, or a. court of chancery, has no jurisdiction, its judgment or decree is void, and the execution thereof may be enjoined , by the chancery court-. The bill may be filed in 'the county where the execution is levied. A new suit is a proper mode in which to be relieved from a void judgment or decree. Where the courts have unquestioned jurisdiction of the person and subject-matter, to render judgments or decrees in suits then pending, the execution thereof will not be enjoined.</p> <p>Cited, approved, and distinguished: Deadericlt v. Smith, 6 Hum., 138; Whiteside v. Latham, 2 Cold., 91.</p>

<p>1. SUPERSEDEAS. Granted by supreme court to supersede interlocutory orders or decrees, when and when not.</p> <p>The supreme court may in term time, or either of the judges in vacation, grant writs of supersedeas to the execution of such interlocutory o-rders or decrees of inferior courts as are to be carried out or- executed by some further act of said inferior courts, but cannot supersede negative or prohibitory orders, or orders simply and only removing' the inhibition of an injunction. If the chancellor’s order is nothing' more than the removal of the injunction, which leaves the defendant free to prosecute his remedy at law, it cannot be superseded. But if the order dissolving- an injunction gives a judgment on; the injunction bond for the debt enjoined, the writ of supersedeas may be granted to supersede its execution. [See note 1 under sec. 1348 of the Code, and note 2 under sec. 5738.]</p> <p>Cited with approval, and distinguished: Railroad v. Hug-gins, 7 Cold., 217; Mabry v. Ross, 1 Ileis., 769.</p> <p>Cited and construed; Code (1858 and 1871), secs. 4513, 3933 ; Code (M. & V.), sees. 5265, 4701; Shannon’s Code, secs. 6348, 5737.</p>

<p>1. CRIMINAD LAW. Omission of caption of court in transcript, immaterial.</p> <p>The fact that there is an omission to insert in the transcript of the record the caption showing' the org'anization of the court at the term and place of trial, does not entitle defendant to a new trial, or to an arrest of judgment, or to a reversal of judgment on account of this omission, for the presumption is that the omitted caption shows that the court was held at the place prescribed by law.</p> <p>Cited and construed: Code (1858 and 1871), sec. 5242; Code (M. & V.), sec. 6083; Shannon’s Code, see. 7217.</p> <p>2. SAME. Venue sufficiently proven to’ support verdict of jury, when.</p> <p>The venue is sufficiently proven to authorize the jury to find that the killing occurred in Shelby county, Tennessee, where it is proven that deceased and defendant lived on the same place, twenty-five or thirty steps of each other, with their fences joining in Shelby county, Tennessee ; that the killing took place near the chimin ay of defendant’s house, and that deceased died at his home in said county.</p> <p>3. SAME. Evidence supporting’ verdict of jury.</p> <p>Evidence set out and reviewed as sufficient to support the verdict of the jury.</p>

<p>1. EXECUTION SALES. Of several tracts of land in gross, void; not ratified by presence of owner.</p> <p>A sale in gross of several tracts of land under execution is void as ag-ainst the debtor. The silent presence of the parties at a void sale doe.s not affect them.</p> <p>2. SAME. Void, writ of venditioni exponas to issue.</p> <p>If the sale of land under an execution is void for any cause, as when several distinct tracts are sold together, the- judgement and execution creditor must apply to the court for an order declaring' the sale void, and awarding a venditioni exponas.</p> <p>3.- SAME. Same. Failure to apply for writ must be explained in bill to enforce lien of levy.</p> <p>Where a judgment and execution debtor resorts to. a court of chancery to enforce the lien of the levy on account of the sale being void, sufficient grounds must be shown by the bill for the failure to apply for the venditioni exponas, or the relief will not be granted.</p> <p>4. EXECUTION. Lien pf levy must be -enforced in reasonable time.</p> <p>The lien acquired by a levy of an execution upon land may be lost by neg'lig-ence in its enforcement. Where a sale under an execution is void because several distinct tracts were sold in gross, a delay of three years and ten months to enforce the lien of the levy is too long, and the bill' will be dismissed, especially where, the debtor had sold the land.</p> <p>5. REDEMPTION. None by creditors where execution sale is void.</p> <p>Redemption must be predicated of a sale, and where there is no sale, or the sale is void, there can. be no redemption by creditors.</p>

<p>1. DEEDS OE CONVEYANCE. Rents to wife during coverture for support of herself and children, and then to' children, rig-hts declared. Resulting trust not in favor of children, when.</p> <p>Where the deed declares that the property is conveyed “in trust to allow M. S. (the wife) to receive the rents and profits of the land and hires of the slaves, during coverture, free from the debts of J. H. S. (her husband and the conveyor), for the support and maintenance of her, the said M. S. and her children, and upon the termination of the coverture, to convey the property to the children of said M. S. and J. H, S.,” the children were not vested with any express equity in the rents and hires during the coverture, and if the wife permitted the husband to receive the rents and hires, and he, without any express contract to- invest them for the benefit of the children, invested them in land and took the title in his own name, no resulting trust is thereby created in favor of the children. The equity secured to them by the deed, was the property itself upon the termination of the coverture.</p> <p>2. RESULTING TRUST. EVIDENCE. Declarations of person creating not admissible after a sale as ag’ainst his purchaser.</p> <p>The declaration of the person alleged to have invested the funds of another so as to create a resulting trust, made after his conveyance to third parties of the land in which the resulting trust is sought to be set up, are not admissible to prejudice their rights, and would be entitled to. but little weight, if admissible.</p> <p>3. EV1DENGE. Wife cannot testify as 'to husband’s declarations dui'ing coverture.</p> <p>The testimony of a wife as to statements made to- her by her husband during coverture are incompetent.</p>

<p>COSTS. Divided on. affirmance because of remittitur, when.</p> <p>Where the appellee is forced to a remittitur in order to obtain an affirmance of the judgment below, the costs will be divided. The rule is that costs follow the judgment in favor of the successful party, but where both parties are partly successful, -the costs are in the discretion of the court.</p> <p>Cited and construed: Cede (1858 and 1871), sec. 3320; Code (M. & V.), sec. 3945; Shannon’s Code, sec. 4962.</p>

<p>L BLEADINOS. Profert of indorsed note is profert of indorsement.</p> <p>Where a declaration properly describes a note with its indorse-ments, and makes profert of the note, this is sufficient without making- special profert of the indorsement. The indorsement is part of the note, and profert of the note is profert of the indorsement. [See Code, sec. 4660 (2).]</p> <p>2. SAME. Statute of limitations must be pleaded at law; judgment by default good.</p> <p>The statute of limitations in a suit at law m-ust be pleaded, and this whether the cause of action as stated appears to be barred or not, because the plaintiff may reply and prove a subsequent promise to pay the debt. So, a judgment by default is valid, although it appears upon the face of the declaration that the statute of limitations had barrel the action.</p> <p>Cited with approval: Allen v. Word, 6 Hum., 284.</p> <p>3. PLEADING AND PRACTICE. Judgment by default against indorser without jury.</p> <p>Where the declaration by an indorsee against the indorser avers every thing to- fix the liability of the indorsee, it is proper to enter up judgment upon the default of defendant, without a jury.</p>

<p>1. PROFERT. Loss accounted for, and contents proven, when.</p> <p>Where the declaration makes profert of a note sued on, and it is lost or mislaid a.t the trial, and its loss accounted for by testimony, evidence of its contents may be received.</p> <p>2. NATIONAL BANKS. Assignee of note held by insolvent, may sue debtor.</p> <p>Persons liable on a note held by a national bank cannot rely as a defense to the suit by its assignee of the same on the fact that the transfer is void, because made after or about the time of its becoming' insolvent. The receiver of the bank could malee this question, but the debtor cannot.</p>

<p>REMANDMENT. To supply lost or defective judgment of justice o£ the peace.</p> <p>Where objection is made in the supreme court that the judgment rendered by a justice of the peace, on motion, because it was not sufficiently full and formal in its recitals, to constitute a valid judgment in a summary proceeding, and it is suggested to tlie 'court that the justice ot the peace had not returned into the circuit court the proper judgment, and that the real judgment rendered was in all respects full and ample, the supreme court will remand the cause in order that the real judgment of the justice of the peace may be supplied and sent to the supreme court. [See Code, sec. 4905, and note 9.]</p>

<p>1. EMINENT DOMAIN. Wife may enjoin insolvent railroad till compensation made or secured, when.</p> <p>Where the husband, without the consent of his wife, by his contract with an insolvent railroad company gives it the privilege or right to construct its road over her land, and the company, without resorting to the method prescribed in the statute or its charter, attempts to construct its road over the wife’s land in pursuance of the said contract, she can file a bill in the chancery court to enjoin the railroad from so constructing' its road until it compensates her therefor, or secures her for the damages. [See Const., art. 1, sec. 21, and notes; Code, secs. 1844-1880, and notes.]</p> <p>2. SAME. Commissioners appointed on reference in chancery as jury at law.</p> <p>Under a reference in chancery to. ascex’tain the compensation to be paid the owner of land taken for public use, there is no objection to appointment of commissioners to view the premises to ascertain the damag-es, as prescribed by statute for proceedings at law. But this would not preclude the parties from the introduction of other* evidence for the purpose of an account. [See Code, secs. 1849-1860.]</p>

<p>,1. CONVEYANCES. Executory contract of minor wife to- convey not enforceable.</p> <p>A minor wife and. her husband joined with other tenants in common in selling her and their undivided interests or sliares in land, with a provision in the deed that if within a stipulated time after the said minor wife shall become of age, she and her husband shall make a deed of affirmance to the said purchaser, then the purchaser is to pay a stipulated consideration, otherwise he is to be discharged; and the minor wife died during' her infancy. This was only an executory agreement for the conveyance of the wife’s title at a future day, and did not pass even the equitable title to the vendee, for the want of power in the wife; and she having died before reaching- her majority, and before executing the deed, there existed no claim on the vendee for the purchase money, as her undivided interest passed to her heirs.</p> <p>S. SAME. Same. No vendor’s lien to be enforced.</p> <p>Upon a bill filed by the-guardian of deceased wife’s minor child, in affirmance of the contract, to enforce an- alleged lien on the whole land for the payment of the sum ag-reed upon, with a. prayer for general relief, it was held that there was no claim against the purchaser for the purchase money, but under the prayer for general relief, the- heir was entitled to a decree for the interest in the land, with rents.</p> <p>S-. SAME. Same. Same. If vendor’s lien existed it could not be enfoeed ag-ainst other shares.</p> <p>Where a deed is executed .jointly by several tenants in common, and the consideration is paid to all the parties except one, the lien exists only on the share of that one, and not on the whole tract or the other -shares conveyed by the same deed.</p>

<p>ABATEMENT. By death of violator of city ordinance after appeal to circuit court.</p> <p>An appeal from a judgment of a police or recorder’s court for a fine for violation of a city ordinance vacates the judgment, and upon the death of defendant before judgment in the circuit court, the action died' with him, and the suit should be ordered abated.</p>

<p>1. JURISDICTION OE JUSTICE OE THE PEACE. On indorsement on a note.</p> <p>Where, before the act of 1875, ch. 11, the plaintiff sued the defendant before a justice of the peace “to answer the plaintiff in a plea of debt due by note under five hundred dollars,” which was a suit on the indorsement on the note where demand and notice were not waived, the justice of the peace had no jurisdiction of the suit to render judgment for four hundred and eighty-five dollars. [See now Code, sec. 5935, and note 7 under sec. 5936, increasing the jurisdiction to five hundred dollars on indorsements where demand and notice are not waived.]</p> <p>2. SAME. Same. Where justice has none, circuit court has none, even by remittitur.</p> <p>Where a justice of the peace has no jurisdiction of the in-dorsement on a note, the circuit court acquires none by appeal, and none can be acquired by a remittitur by the plaintiff.</p> <p>Cited with approval: Dixon v. Caruthers, 9 Yer., 30; Crow v. Cunningham, 5 Cold., 255.</p>

<p>1. VERDICT. For plaintiff on first count is in effect verdict for defendant on second count, when.</p> <p>Where the declaration contains two counts, one on a note, the other on an account, and the verdict was: “We find the issue in favor of the plaintiff, and that the defendant is indebted to him for $1,S65 principal, and $792.23 interest on the note sued on,” in leg-al effect it is a finding for the plaintiff on the first count, and for the defendant on the second count.</p> <p>2. PARTNERSHIP. Liable for goods charged to one member only by mistake, or note given by one member charged by him to firm note, when.</p> <p>Where goods are sold to a firm, and by mistake charged on the books "of the vendor to one member of the firm, this will not preclude a recovery against the firm for the debt, neither will the execution of a note by mistake by the said member of the firm. In such case, the individual note may be made the firm note by said member signing the firm name to same.</p>

<p>NUISANCES. No judgment of abatement of bawdy bouse where no description.</p> <p>Where there is no description of the locality of the house by number or otherwise in the indictment for keeping a bawdy house, and the number of the house is left blank in the judgment of abatement upon the conviction of defendant, the judgment of abatement will be reversed and set aside by the supreme court. [See Code, secs. 6870, 6871, and notes.]</p>

<p>CRIMINAL LAW. Justice of the peace cannot require bond or imprison defendant to iDrevent Ms keeping- a bawdy house.</p> <p>A justice of the peace has no power to convict a person of a misdemeanor for keeping a bawdy house and to commit him to jail in default of a bond for his good behavior; not even by way of preventive justice to prevent a repetition of the offense; but. if reasonably satisfied of his guilt, his only X>ower was to bind defendant over to court under bond, or on failure to give bond, to commit him to- jail to secure his apx>earance at court. [See Const., art. 1, secs. 8 and 9, and notes. Small offenses: Code, secs. 6952-6973, notes; peace proceeding’s: Code, secs. 6904-6925, notes. See Wetter v. State, post, 599.]</p>

<p>1. CBIMINAL LAW. Oath of officer in charge of jury.</p> <p>The officer in charge of the jury in criminal cases must he sworn “to keep the jury separate and’ apart from other citizens, that he will suffer none to speak to them, nor will he speak to them himself, upon the subject of their consideration further than to ask them whether they are agreed.” It is the duty of the court not only to see that this oath has been administered, but to instruct the officer as to his duty in the premises. The practice of administering such oath is derived from the common law, and is an indispensable . safeguard thrown around the life and liberty of the ac- - cused, and the interest and welfare of the state and society; . one that cannot in safety to either be dispensed with or too rigidly enforced. The failure to administer such oath is reversible error, which will not be cured by evidence that no communication was had with the jury. [See Howell v. State, 2 Shannon’s Cases,, 535; Sanders v. State, Id., 606; Wallace v. State, Id., 616.]</p> <p>Cited with approval: McCann v. State, 2 Morris’ State Cases (Miss.).</p> <p>2. SAME. Same. Insufficient affidavit of officer to meet objection for want of said oath.</p> <p>Where to meet the grounds for a new trial for want of the above oath,' the affidavit of the officer in charge of the jury was offered, read, and filed, stating' “that he bad been solemnly charged by the court to keep said jury together and .apart from all other persons; . . “that he had fully performed said duty, and that they did not separate, nor did they, or either of them, have any communication with any other person,” the omission of the affidavit to state that the officer had had no communication with the jury upon the matter of their consideration is a pregnant silence that is sig.nifi.cant, and is sufficient to arouse the jealousy with which the purity of trials in state cases is watched.</p>

<p>CRIMINAL LAW. Good behavior; bond camnot be required on conviction of keeping' gaming house.</p> <p>Upon conviction of the offense of keeping a gaming’ house, the court cannot require the defendant to give bond for his good behavior in, the.future, as a means o,f preventive justice, A bond to keep the peace may be required on conviction of offenses against the person or property of another only, under sec.. 6930 of the Code. [See State v. Eavenport, ante, 593.]</p> <p>Cited with approval: Estes v. State, 3 Hum,, 498.</p> <p>Cited and construed: Code (1858 and 1871), sees. 4873, 4959) 4963; Code (M. & V.), secs. 5690, 5787, 5790; Shannon’s Code, secs. 6806, 6920, 6923.</p>

<p>1. CRIMINAL LAW. .Reversal for lower courts’ refusal to grant continuance.</p> <p>The discretion of the judge of the court below in refusing a continuance may be controlled by the supreme court in clear cases, and cause reversed because the judge refused the continuance on a proper case therefor made. The sup-reme court decided that a continuance should have been granted by the court below on the facts of this case.</p> <p>2. SAME. Indictment for murder in common law form, good.</p> <p>An indictment in the common, law form for murder is sufficient, and will support a conviction for murder in the first degree. [See Code, secs. 6439, 7082 and notes.]</p> <p>Cited with approval: Mitchell v. State, 5 Yer., 340 and 8 Yer., 533.</p> <p>3. SAME. Same. “Feloniously, wilfully and of malice aforethought d-id kill and murder,” essential.</p> <p>In the indictment in the common law form for murder, the averment that the defendant “feloniously, wilfully and of malice aforethought did kill and murder” is essential. And it is not sufficient that the assault and the striking or shooting- are so charged to have been done, and that the killing and murdering- was done in the manner and form aforesaid.</p> <p>Cited with approval: Mitchell v. State, 8 Yer., 515; 1 Arch., Cr. P. & P. (ed. I860), 285, 290; Id. (Wat. notes), pp. 301, 881; Wh-ai-. Am. Cr. L., 196.</p> <p>4. SAME. Same. Same. Omission of “feloniously” and “malice aforethought” reduces murder to manslaughter.</p> <p>If tlie murder is not charged in the indictment in the common law form to' have been done “feloniously” and with “malice aforethought,” the offense will be no more than manslaughter.</p> <p>Cited with approval: ,Whar. Am. Cr. L., 489; 1 Arch’. Cr. P. & P. (Wat. notes), p. 881.</p> <p>5. SAME. Indictment for murder in first degree according to statute, sufficient.</p> <p>In an indictment for murder in the first degree, according to the statutes, neither the words “unlawfully” nor “feloniously” are necessary, for it is sufficient to charge-the'offense as described in the -statute, [See Poole v. State,. 2 Bax., 288;' notes under see. 6439 of Code.]</p> <p>Cited with approval: Williams v. State, 3 Heis., 37, 376; Kid-dle v. State, Id., 401. • .</p> <p>Cited and construed: Code (1858 and 1871), sec. 4598; Code (M. & V.), sec. 5349; Shannon’s Code, see. 6439.</p>

<p>1. ABBITBATION AND AWABD. No appeal from judgment on, though expressly provided for.</p> <p>Where the parties submit the matters in litigation, before a justice of the peace to. the arbitration and award of their arbitrators, their award to be made and entered as the judgment of said justice, and the judgment is entered .accordingly, no appeal lies to the circuit court, although an appeal is expressly reserved or provided for in the agreement of submission. The award is the decision of the cause, upon which .the court merely enteps judgment, and tbe appeal is from the award, and not from the judgment of the court, and the appellate court has jurisdiction of appeals from judicial tribunals only. [See Code, see. 5205 and notes.]</p> <p>Cited With approval: Bone v. Bice, 1 Head., 149.</p> <p>2. SAME. Same. No appeal for other reasons. Other remedies.</p> <p>The appellate court cannot know what questions of law or fact may -have arisen before the arbitrators in arriving at their conclusions, and if it does not appear that the award was intended to be made in conformity to the rules of law, but according to the opinions of the arbitrators as to what is right between the parties, even if the award is not in strict conformity to the rules of law, it will be valid. Arbitrators have a larger latitude of discretion in deciding controversies than courts of law. Other modes of rectifying grossly erroneous and unjust awards of arbitrators are provided by law.</p>

<p>BELLIGERENT RIGHTS. Tax collector for Confederate States and pur chaser from him protected.</p> <p>During- the war between the States, the Confederate government was entitled to belligerent rights, and, therefore, had the power and right to assess- and collect taxes, and the officers assessing- and collecting the taxes were fully protected from liability to the taxpayer. As, where a Confederate tax collector collected cotton as a “tax in kind,” and sold the same, both he and the purchaser are protected from liability to the owner of the cotton, although the collector converted the money to his own nse, without accounting to the Confederate government for it.</p> <p>Cited with approval: Smith v. Brazelton, 1 Heis., 44.</p>

<p>REMAINDER. TRUSTS AND TRUSTEES. Vests without conveyance of trustee, when; conveyance presumed when trust accomplished.</p> <p>Where a husband conveyed real estate to a trustee, in trust, to hold the same during- the 'life of his wife Mary and himself, to the only proper use and behoof of both his said wife and himself, and in case of his death leaving his wife surviving, the said trustee is then to convey the property to her absolutely and forever, or to such person or persons, in such manner as she may direct, wish, and appoint, etc., upon the death of the husband leaving- his said wife surviving, the purpose of the trust was accomplished, and it became the duty of the trustee at once to make an absolute title to said surviving wife; and she became vested with an absolute fee simple title to the property, either upon the ground, that the purpose of the trust having been accomplished, the legal title vested in her, or upon the presumption that the trustee discharged the obligarion imposed upon him by making the conveyance as required by the deed. [This case differs from the others on this subject, in the fact that the deed 'might be made to “such person or persons, in such manner as sire- nray direct, wish, and appoint,” etc. But this difference is not mentioned or discussed by the court, but is evidently held not to change the rule.]</p> <p>Cited with approval: Aikin v. Smith, 1 Sneed, 304.</p>

<p>DOWER. EIRE INSURANCE, Widow entitled to fund derived from husband's policy as dower, when.</p> <p>Although the policy of insurance on real estate is a personal contract, yet being a contract in respect to real estate and intended to secure the value of the real estate against diminution by reason of the destruction of the improvements tbeireon, which constitutes part of the realty, the proceeds of such contract are properly treated as a substitute for so much of realty as was covered by the insurance. It follows that when the loss occurs after the death of the assured, his personal representative receives the proceeds of the policy as realty, for the benefit of the heirs and widow, the interest of the heirs being subordinate to the rights of the creditors of the assured, but that of the widow being superior to them. Where a house is destroyed by fire after the same is assigned to a widow as her dower, and during the life of a fire insurance policy, taken out by her husband, the widow is entitled to the use of the insurance money during her life, just as she was entitled to the house destroyed.</p> <p>Cited: 1 Phil. Ins., 66, 67; Fland. Eire-Ins., 349; Wyman v. Wyman, 26 N, Y., 253; Wyman y. Prosser, 36 Barb., 368.</p>

<p>NEW TRIALS. Granted, for newly dicovered evidence from a witness examined, when.</p> <p>Where a witness fails to disclose evidence within his knowledge under examination, his subsequent disclosure of the proof will not be a ground for anew trial, unless satisfactory reasons are given by counsel for his failure to- interrogate the witness as to the newly discovered matter and there are strong circumstances in favor of a new trial found in the .general character of the case.</p> <p>Cited with approval: 3 Gra. & Wat. N. T., 1029, 1041.</p>

<p>X. ATTACHMENT. Writ and affidavit amended before or during trial, but not afterwards.</p> <p>The writ of attachment and the affidavit therefor may be amended at any time before or during trial, but not after-wards. [See notes under sec. 5337 of the Code.]</p> <p>Cited and consumed: Code (1858 and 1871), sec. 3477; Code (M. & V.), sec. 4318; Shannon’s Code, see. 5337.</p> <p>2. SAME. Ancillary attachment void, unless suit is properly described.</p> <p>An ancillary attachment is void, if it is not stated in the affidavit and writ of attachment that a suit has been commenced, with such description thereof as shows definitely the suit to which the attachment is ancillary. Where the only reference to a pending suit in the affidavit, bond, or writ is a recital in the writ of attachment that “this is an ancillary at-tacliment to two suits in said court where the same parties are plaintiffs and Redmond & Jones defendants,” the attachment is void. [See notes under sec. 5330 of the Code, and especially note 4.]</p> <p>Cited with approval: Thompson v. Carper, 11 Hum., 543; Morris v. Davis, 4 Sneed, 453; Swan v. Roberts, 3 Cold., 157; Gibson v. Carrol, 1 Heis., 25; Ogg' v. Lednart, 1 Heis., 40.</p> <p>3. SAME. Object of ancillary attachment.</p> <p>The object of the ancillary attachment is to fix a lien on the property of the debtor, and to impound it for the security of the creditor. [See note 1 under sec. 5220 of the Code.]</p> <p>4. SAME. Ancillary attachment illegally issued, dismissed at any time on motion.</p> <p>If the proceedings upon which the ancillary attachment issues are illegal, no iien is fixed by its levy, and the defendant can, at any time, avail himself of the illegality by moving- to dismiss the attachment before or after trial, relying upon Xiiaintiif’s attachment bond for damages.</p> <p>5. SAME. Replevy, bond, no estoppel to deny legality of ancillary attachment.</p> <p>The defendant is not. estopped from objecting to the legality oí the ancillary attachment proceedings by the execution of a replevy bond, but is thereby estopped from disputing the validity o£ the replevy bond on the faith of which he obtained the property.</p> <p>Cited and construed: Code (1858 and 1871), secs. 773, 774, 3512; Code (M. & V.), secs. 961, 962, 4253; Shannon’s Code, secs. 1094, 1093, 5272.</p>

<p>STATUTE OF I,IMITATIONS. Bars action against administrator’s surety and deceased surety’s estate, when.</p> <p>The rig-ht of action ag-ainst a living surety on the bond of a personal representative is barred in six years, and the- rig-ht of action against the personal representative of a deceased surety on such bond is barred in two and one-half years as to resident creditors, and three and one-half years as to nonresident creditors.</p> <p>Cited and construed: Code (1858 and 1871), sec. 2775; [see secs. 2279, 276Ü]; Code (M. & V.), sec. 3472. [see secs. 3117, 3454]; Shannon’s Code, sec. 4472 [see secs. 4012, 4451.]</p>

<p>1. PARTNERSHIP. Surviving- partner may sell the realty to pay debts; surplus g-oes to heirs oí deceased.</p> <p>The surviving- partner takes the leg-al title to the real estate held as partnership property, and may sell it to pay the partnership debts, and after the payment of the debts and the settlement of the partnership affairs, the surplus arising-from such sale [belonging- to the deceased partner], will go to the heirs of the deceased partner.</p> <p>Cited with approval: McAlister v. Montgomery, 3 Hay., 97, 98: Yeatman v. Woods, 6 Yer., 20; Barcroft v. Snodg-rass, 1 Cold.. 445.</p> <p>2. SAME. Profits after payment of debts g-o to personal representative. oi deceased partner.</p> <p>But any profits or rents realized from such partnership realty after the winding- up and settlement of such partnership, will g'o to the personal representative of th® deceased partner as personalty, and in his hands are assets for the payment of the debts of such deceased partner, whether they were received before or pending- a bill filed to settle up the partnership.</p> <p>3. SAME. Same. Time of accounting-; construction of opinion of supreme court.</p> <p>Where a bill is filed in part to effect the payment of the firm debts and the settlement of the partnership business, upon the filing- of which the partnership property is taken out of the possession of the surviving- partner and placed in the hands of a receiver, and the opinion of the supreme court re-versing- the cause on appeal, directs “account to be taken of the profits of the partnership property in the hands of the surviving partner, after payment of partnership debts, up to the time of filing- the bill.” the direction does not declare or adjudge that the debts were paid and partnership business wound up when the bill was filed, but fixes the time up to which the surviving- partner should account.</p>

<p>[This case is again before the court and the opinion reported in 7 Lea, 91. See also Bleidorn v. Pilot Mountain C. & M. Co., 5 Pickle, 171 (syl. S3)].</p> <p>1. LAND LAWS. PRINCIPAL AND AGENT. Owner bound by remarking- of lines by his ag-ent, when.</p> <p>Where the owner of land employs an. ag-ent to establish and remark the boundaries, he is bound by and estopped by the acts of the agent, done in g-ood faith, in remarking- within the scope of his authority, as much as if he had done the remarking- himself, where the acts of the ag-ent are- not dis-affirmed by the owner and principal before the intervention of other rights founded upon such, remarking by the agent, and subordínale to it.</p> <p>3. SAME. Granted lands remarked by owner in good faith estop' him.</p> <p>If granted land, not originally marked by the surveyor, or where the marks have become obliterated by time, be after-wards remarked by the owner of the whole or part in good faith, and in reasonable conformity with the calls of the patent, such private marking- or remarking operates as an estoppel on the owner, the state, and subsequent grantees, precluding- the owner from claiming land not included therein.</p> <p>Cited with approval: Riggs v. Parker, Meigs,- 43. 51; Davis v. Smith, 1 Yer., 490; Sing-leton v. Whiteside, 5 Yer., 39; 1 Meigs’ Dig., p. 154.</p> <p>3. SAME. What constitutes g-ood faith in remarking.</p> <p>What marking or remarking- is bona fide, or in reasonable conformity with the calls of the grant are questions of fact, depending on the circumstances of each case.</p> <p>Cited with approval; Riggs v. Parker, Meigs, 43.</p> <p>4. ESTOPPEL. Signifies what.</p> <p>Estoppels signify that a man, for the sake of good faith and fair dealing, should be estopped from saying- that to be false which by his means has been accredited for the truth, when, by his representations he has led others to act.</p> <p>Cited with approval: Herman’s Law of Estoppel.</p> <p>5. CONVEYANCES. Hecitation of consideration not conclusive on parties.</p> <p>A recitation in a deed that it is made in consideration of services performed by the .eonveyee in establishing the lines of the grant of the conveyor, of which grant the conveyance is a part, is a strong circumstance to be considered in proving the agency, if unexplained, but it is not conclusive upon the parties themselves, and cannot be held to be so as to their privies in estate, the recitation being a mere statement of a consideration.</p> <p>Cited: Her. Est., 232, 234.</p>

<p>1. STATUTE OE LIMITATIONS. Adverse holding under ekamperious deed, g-ood. No exceptions.</p> <p>An adverse holding- o£ land for seven years under a champer-tous deed purporting- to convey a fee simple estate, is a holding under color of title, and will give the holder a good title to the land so held. The legislature having- made no exception,-the courts can make none. [See notes 48, 52, 53, 54. Under sec. 4861 of the Code.]</p> <p>Cited with approval: Clark v. Chase, 5 Sneed, 638; Love v. Shields, 3 Yer., 405; Patton v, McClure, M. & Y., 333; Cocke v. McGinnis, M. & Y., 361; Love v. Love-, 2 Yer., 288; Lawrence v. Bi-idleman, 3 Yer., 501; Guión v. Bradley, 4 Yer., ■ 253; Blantire v. Whitaker, 11 Hum.., 313.</p> <p>Cited and construed. Acts 1819, eh. 28, sec. 1 [C'octei secs. 4456, 4457.] • '</p> <p>2. SAME-. Void deed no. protection, and no champerty predicated of it.</p> <p>A deed that identifies no particular tract or parcel of land is void for vag-ueness, and a possession thereunder will protect the possessor only to the extent of his inclosures, and a conveyance of the land by a third person will be ckampertous only to the extent of the said actual inclosures.</p> <p>Cited with approval; Pickens v. Delozier, 2 Hum., 400.</p>

<p>L EVIDENCE. Deposition rendered inadmissible by subsequent legislation.</p> <p>A deposition oE a personal representative, taken in a suit against, him by legatees while he was competent to testify, is not admissible as evidence on the hearing' as to conversations or transactions with testator, where his such, testimony had beeii rendered incompetent by subsequent legislation. A deposition competent where taken may be rendered incompetent, on the hearing, by subsequent legislation. [The intimation in this case that the court may, in its discretion, call a party in interest to testify in his own behalf ag-ainst a decedent’s estate is not the law, and has since been so declared. See note 1 under sec. 5598 of the Code.]</p> <p>This decision is based on the act of 1869-70, ch. 78 [Code, secs. 5596, 5598.]</p> <p>2. SAME. Answer of defendant on oath evidence, when discovery was sought of him.</p> <p>Where a discovery is sought from the defendant under his oath, his answer on oath, so far as it is responsive to the allegations and prayer oí the bin for discovery, becomes evidence for him, and must xorevail, unless overcome by X>roof made by complainants.</p> <p>Cited with approval: Lindsley v. James, 3 Cold., 477; Apper-son v. Harris, MS. opinion, Jackson, 1873; Woodcock v. Bennett, 1 Cowen, 744.</p> <p>3. ADMINISTRATION. WILLS. Charge of debts on real estate prevents bar of statute; and retainer mot necessary.</p> <p>A charge by will, for the payment of debts out of real estate will prevent the statute of limitations from running against such debts as were valid and subsisting- at testator’s death, and the doctrine of retainer by the personal representative would have no application, where there were no other leg-al assets out of which he could retain his debts, for he could not retain his debts out of the equitable assets arising- from the sale of the land, but could only do so through the court of chancery.</p> <p>Cited with approval: Hnghlett v. Hug-hlett, 5 Hum., 469; Harrison v. Henderson, 7 I-Ieis., 329; Hill on Trustees, 345, 348, 341; 2 Sto. Eq. Jur., secs. 1245, 1247.</p> <p>4. SAME. Same. Same. Example of charg-e of debts on real estate.</p> <p>Where the testator directs “that his real estate be sold and after his debts are paid, the balance to be applied” to the various leg-a-tees named; “that what notes and accounts are due him to be collected and the proceeds apx>lied to Ms relations,” by these provisions and terms of his will, testator made his debts a charg-e on all his real estate.</p> <p>Citations: Same as under last syllabirs.</p>

<p>CRIMINAL LAW. GAMING. Each bet a separate offense.</p> <p>In. the continuous playing' of the g-ame called chuck-luck, each bet is a distinct offense, and. as such subjects the offender to punishment, and is indictable as a separate offense.</p> <p>Construed: Code (1858 and 1871), see. 4870; Code (M. & V.), sec. 5688; Shannon's Code, sec. 6804.</p>

<p>1. JUSTICE’S WARRANT. Must, be signed by tlie justice; date as to statute oí limitations.</p> <p>A warrant unsigned by a justice of the peace is a nullity, and all proceeding's under it are void, unless the objection, be in some manner waived by the party. It is the duty of a justice of the peace issuing a warrant not only to sign it himself, but to indorse on the back of it the date of its issuance, which becomes an important matter* under the plea of the statute of limitations. [See Code, secs. 4519, 5938 (9).] Justice cannot authorize another to sign warrant in his absence. [See note 4, under sec. 5958 of the Code.]</p> <p>Cited with approval: Reed v. Brewer, Beck, 375.</p> <p>Cited and construed: Code (1858 and 1871), secs. 3819, 4145, 4146; Code (M. & V.), secs. 3534, 4930, 4931; Shannon’s Codie, secs. 4534, 5957, 5958.</p> <p>3. SAME. Parol evidence to show it forged or fraudulent.</p> <p>Parol evidence is admissible to prove that a justice’s warrant is forged or fraudulent, as well as to show that it is genuine. On a plea of the statute of limitations, the defendant is entitled to prove, by parol evidence, when the suit was, in fact, commenced, especially when the date of the issuance of the warrant is not given.</p> <p>Cited with approval: McCully v. Malcom, 9 'Hum., 187.</p> <p>3. PLEA IN ABATEMENT. Must be formally pleaded before justice.</p> <p>It seems that matter in abatement, even before a justice of the peace, must be specially and formally pleaded, and unless it be done in that forum, it comes too late upon appeal to the circuit court. [Must be in writing and sworn to.. See note 3 under sec.. 4622 of the Code.]</p> <p>VTUTE OE LIMITATIONS. Presumption of honest defense.</p> <p>When a party, in his own rig-ht, relies upon the defense of the statute of limitations, the courts ought, in charity, to presume that there is some honest defense behind it.</p>

<p>1. MASTER AN.D SERVANT. Master may punish, servant, when.</p> <p>In, eases of permanent and general hiring’, as a hiring generally lor one year, in the absence of restrictions by the parent, or the person standing in the place of the parent, the master may administer to his apprentices and menial servants, who are not of frill age, and are members of his family, moderate and reasonable corporal punishment commensurate with and not exceeding the ofEense of disobedience to Ms lawful commands, negligence in Ms business, or insolent behavior.</p> <p>Cited with approval: Reeves Dom. Eel., 534; 2 Kent Com., 281.</p> <p>2. SAME. Master cannot punish servant, when.</p> <p>Brit this rule does not apply where the parent has not parted with Ihe control of the child, except for a definite purpose for a short time, a,s where the child is hired by the day to work in a brick-yard. In such case, the hirer has no authority to inflict personal chastisement.</p> <p>Cited with approval: Cooper’s Case, Knoxville, 1875, unreported.</p>

<p>1. TOUTS. Officer and party in interest both, liable for wrongful seizure of property under process, when.</p> <p>Where personal xu’ox^ertj'-, belonging to a third party, and not the debtor, has been wrongfully and illegally seized by an officer under x>rocess, either execution or attachment, both the officer and the party at whose instance and under whose direction the wrongful seizure was made are liable for the damages consequent on the unlawful act in the conversion by means of a misapplication of legal process.</p> <p>Cited with ax^proval: Wiildns v. Gilmore, 2 Hum., 140; Stiles v. Davis, 1 Black, 101; 1 Chit. PL, 185.</p> <p>2. SAME. Same. For loss of fund garnisheed in bank, when.</p> <p>Where a garnishment by attachment was levied on a fund belonging' to the debtor’s wife, deposited in 'the joint names of the husband and wife in bank, and after the levy of the attachment, the bank failed, whereby the deposit was lost, the party at whose instance and by whose authority the attachment was wrongfully levied, as well as the officer, is liable in damages for the loss sustained.</p> <p>3. RETURN. Of officer falsified in suit to¡ hold him and the parties interested liable.</p> <p>In a direct proceeding to hold the parties liable for the unlawful seizure and conversion by means of a misapplication of leg-al process, the return of the officer is not conclusive, and may be shown to be false.</p> <p>Cited with approval: Ridg-eway v. Bank, 11 Hum., 523; Hil-liard on Remedies for Torts, 391.</p> <p>4. HUSBAND AND WIDE. Deposit of her money by husband with his, in their joint names, does not affect her rights, when.</p> <p>Where a wife places her money, derived from the sale of her land, in the hands of her husband, as her ag-emt t© pay on the homestead on which they then lived, and he deposits the same with other money of his own- in bank in their joint names, her money is still her property, and is not liable to process ag-ainst the husband for his debts.</p> <p>5. SAME. Same. Levy on deposit by garnishment, and loss by bank’s failure, officer and parties liable, when.</p> <p>If the process is against the husband alone, and is actually levied by garnishment, on the joint deposit, as the property of the husband to test the ownership, and the bank so notified, it will be justified in retaining the joint deposit under the process ag-ainst the husband until the further order of the court, and it is its duty to do' SO' and to answer, giving the facts, and if the bank fail in the meantime, the parties making and authorizing the unlawful levy will be liable for the loss.</p> <p>Cited with approval: Stiles v. Davis, 1 Black, 101.</p> <p>6. SAME. Same. Same. Bill in chancery to- recover loss.</p> <p>And in such case the wife, the' owner of the fund wrongfully seized, may maintain a bill in equity against the parties liable for the recovery of the loss sustained. [See now Code, sec. 6109. and notes.]</p> <p>7. SAME. Rights in deposit in their joint names subject to seizure.</p> <p>Husband and wife may be the joint owners or tenants in common of a deposit in bank, and in the absence of proof to the contrary, each will be entitled to one-half thereof, and each one’s part of such fund is subject to process against the respective owners in proper cases.</p> <p>Cited with approval: Drake on Attachments, sec. 572 (citing Theuenlike v. De Wolf, 9 Bickering, 120); Waddell v. Cook, 2 Hill (N. Y.), 47.</p> <p>8. TORTS. Wrong-doer cannot defend on possibility of loss without his acl.</p> <p>To an action for loss conseqnent on the act of a wrongdoer, be cannot set up in defense the bare possibility of the happening of the loss, if his wrong-ful act had never been done.</p> <p>Cited with approval: Davis v. Garrett, 6 Bingh., 713, Sedg-wick on Damages, 83.</p> <p>9. SAME. Liability for wroug-ful seizure not released Toy release of levy on replevy bond, when.</p> <p>Where a liability has once been fixed by the wrongful seizure of property by levy under pirocess of attachment or execution, a release of the levy by the execution of a replevy bond does not release the liability already incurred, unless the injured party accepted the release and thereby waived hjs right to hold the wrong-doer responsible.</p>

<p>1. BAILMENT. Special deposit of money held by owner as ag-adnst receiver, thoug-h converted by bailee, when.</p> <p>B. deposited with M. packages of money for safekeeping for a few days, to be placed in his iron safe and not to be used. M., in violation of the trust, deposited the money in bank to his credit, mingling it with his other deposits to swell his bank account. M. afterwards checked out all his deposits, and failed, and his remaining funds (more than B.’s deposit) so checked out, 'went into the hands of a receiver for M. and his creditors. Held, that B. might, at his election, claim that the indebtedness of the bank evidenced by tbe pass-book of M., belonged to- him as beneficiary of the trust fund,' treating- M. and those holding under him as trustees of the fund, the question of innocent purchaser being out of the way.</p> <p>Cited with approval: Moffitt v. McDonald, 11 Hum., 460; Sto. Ag-., sec. 229; 2 Sto. Eq. Jur., sec. 1258; 1 Perry Trusts, sec. 463; Thompson v.-Parker, 3 Mason, 232; 1 Sto-. Eq. Jur., secs. 4C8, 623; Whitley v. Foy, 6 Jones Eq., 34.</p> <p>2. TRUSTS AND TRUSTEES. Deposit.of trust funds in bank in trustee’s name followed, when.</p> <p>Where a trustee deposits trust funds with his own in bank, . and afterwards draws cheeks on the bank, and then becomes insolvent, the rule is, that at the eléction of the cestui que trust, in a contest between him and the g-eneral creditors of the trustee, the earliest items of deposit are first to be extinguished by the checks, and if under this rule any of the trust fund remains, it will be applied to the purposes of the trust.</p> <p>Citations: See same under last syllabus.</p>

<p>WRIT OE ERROR CORAM NOBIS. Proper judgment when in favor of petitioner.</p> <p>In a proceeding by writ of error coram nobis, tbe proper judg-ment to be entered, if in fa.vor of the petitioner, is that the judgment, complained of, and soug-ht to be avoided, be revoked- and annulled, and -for the costs of the proceeding. The suit in which the judgment complained of was rendered is not to be reinstated on the docket for a, new trial. [See Code, sees. 4838-4S46, and notes.]</p> <p>Cited with approval: Crawford v. Williams, 1 Swan, 344.</p>

<p>1. RAILROAD’S OBSERVANCE OF STATUTORY PRECAUTIONS. EVIDENCE. Witness must state facts, net conclusions, as to negligience.</p> <p>Tlie engineer of a railroad company cannot state Ms mere conclusion of facts to the jury that he did all in his power to prevent the accident. I-Ie must state the facts. The jury are the judges whether what he did was all he could do in the premises, and not himself as a witness.</p> <p>2. SAME. Railroad not liable when statutory precautions are observed; evidence of, competent.</p> <p>If- a railroad company keeps a lookout ahead for obstructions upon its track, and when any person, animal, or other obstruction. appears upon the. road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent the accident, the company is by law absolutely absolved from all liability. And it is competent to prove by its engineer that all these thing-s ware done. [See notes 13, 14 under sec. 1576 of the Code.]</p> <p>Cited and construed: Code (1858 and 1871), secs. 1166-1168: Codie (M. & V.), secs. 1298-1300; Shannon’s Code, secs. 1574-1576.</p> <p>3. SAME. Rate of speed g-ovemed by facts and circumstances.</p> <p>There is no statute in this state regulating- the rate, of speed at which a railway train shall be run upon its highway. Therefore the question of speed is left to the discretion of the company, to be regulated according to the exigencies of commerce or travel, under the liabilities imposed by law for a reckless abuse of this discretion. The question whether under all the circumstances the company is guilty of neglig-ence in running its train at a certain rate of speed, is a question of fact for the jury. [See note 25 under see. 1574 (4) of the Code.]</p> <p>Cited with approval: Moore v. Railroad, 27 Verm., 49; 13 Ohio St. Rep., 66; 46 Miss., 573.</p> <p>4. SAME. Headlight must be the best.</p> <p>It is the duty of the railroad company to use the best headlight the state of the art affords, and this rule is applicable in every appointment of the locomotive. [See note 6 under see. 1574 (4) of the Code.]</p>

<p>1. CRIMINAL LAW. Clerical error in names of grand jurors not fatal to indictment, when.</p> <p>' Where there is a mere clerical error in the names of grand jurors finding- an indictment, as where one is written A. A. Moore, when it should have been A- P. Moore, and another is written W. li. Shelton instead of H. W. Shelton, yet they are the men who were selected and acted as g-ramd jurors in finding- the indictment, there can. bei no advantage taken of such error by exceptions therefor.</p> <p>2. SAME. Pistol may be carried to be repaired.</p> <p>A person may lawfully carry a pistol to a gunsmith. to- have it repaired. The fact he shot the pistol is not conclusive evidence of a guilty intent in carrying- it.</p> <p>3. SAME. Same. Defendant's declarations admissible, when.</p> <p>The defendant’s declarations, made contemporaneously with the act of carrying- a pistol, while shooting, or on, Ms way to the gunsmith’s, are admissible in evidence to illustrate the character of the act. Whether such declarations were made in g-ood faith, o,r were untrue was a question, for the jury to determine.</p> <p>Cited with approval: Yeatman v. Hart, 6 Hum., 375; Carroll v. State, 3 Hum., 315; Kirby v. State, 9 Yer., 383; 1 Gr. Ev., sec. • IOS, and note, sec. 109; 1 Stark. Ev., 48.</p>

<p>FEES. Supreme court cleric entitled to- fees in appeals, and writ of error as separate proceedings, when.</p> <p>Where the appellant dismisses his appeal in the supreme court, and files the transcript of the record for a writ of error, which is granted, the cleric of the supreme court is entitled to fees for making out and entering on execution docket each bill of costs, aucl for copying bill of costs on back of execution, for each is a separate proceeding to correct errors of lower court.</p> <p>Cited, and construed: Code (1858 and 1871), sec. 4551, subsecs. 4S, 49; Code CM. & V.), sec. 5301, subsecs. 48, 49; Shannon's Code,' sec. 5388, subsecs. 48, 49.</p>

<p>INTEREST. Conventional rate till payment or judgment.</p> <p>This is a dissenting’ opinion from the majority opinion of the court published in 9 Hais., 762, on the point that where a note bears a lawful conventional rate of interest higher than the uniform lawful rate from a certain date before its maturity without any express contract as to what rate it shall bear after maturity, the conventional rate is recoverable do-wn to- the date of the jxidgment, and not merely to the maturity of the note, and from then till judgment the uniform legal rate — the contract carrying the conventional rate after maturity as well as before. This dissenting-opinion was not published with the majority opinion, but the question being- one about which there is much controversy. the dissenting- opinion is deemed worthy of publication.</p>

<p>1. PRACTICE. Appearance waives jurisdiction, of person; may not as to property attached.</p> <p>While in original attachments the proceedings may be so defective as to be ineffectual to hold the property attached, if the party appear and make defense to the suit upon its merits, hie will be bound by his appearance so far as the jurisdiction of the court over his person is concerned.</p> <p>2. PLEADING AND PE ACT ICE. Verdict and judgment without issue reversible, but not subject to collateral attack.</p> <p>Where no- issues have in fact been made up, as where no' plea is filed to the declaration, the verdict and judgment are erroneous, and the judgment will be reversed upon appeal or writ of error. But it is only an. error, and the judgment will not be held to be void, upon a collateral attack, for want of formal pleas, where the defendant appeared by his attorney and there was a trial. [See notes 3 and 7 under sec. 4592 o'f the Code.]</p> <p>Cited with approval: Hopson v. Fountain, 4 Hum., 243; May-field v. Beech, 2 Sneed, 446; Doyle v. Smith, 1 Cold., 22, 23.</p>

<p>INJUNCTION. Not granted against merei expected repetitions of trespass, wlien.</p> <p>Upon, a charge that defendant has committed two distinct acts of trespass in throwing down complainant’s fence on each of two successive days, which complainant believes will be repeated, a court of chancery will not enjoin such further feared acts of trespass. -To invoke the injunctive powers of the chancery court in suck case, there must be alleg-a-tions of threats to do some irreparable injury, or of insolvency of defendant, or such allegations as would warrant interference to prevent multiplicity of suits.</p>

<p>1. REPLEVIN. Procedure upon death of co-plaintiffs; liability of sureties on bond.</p> <p>Where two of four plan-tiffs in a replevin suit die, and there is no revivor by their personal representatives or by their surviving- co-plaintiffs in the names of such, representatives, the defendant may have the -suit revived as to the decedents, or, after twoi terms, after sng-g-estáon and proof of death, defendant may have the suit abated as to- the decedents, and proceed with the -survivors, and if they fail to prosecute the suit, defendant may have judgment by default against them, and a writ of inquiry to ascertain his d'amag-es. But defendant cannot, after abatement -of the suit .against the decedents, abandon the suit as to the survivors and one of the decedents, and proceed simply upon bis order of abatement to have his damages inquired of, as against one of the deceased plaintiffs. Such judgment is null and void, and no judgment can be had in such case against the sureties on the replevin bond.</p> <p>3. SAME. Release of surety by substitution of defendants.</p> <p>The surety on a replevin bond is, as a general rule, released by the substitution of a third person for the- original defendant. But the question is reserved whether the^ surety would be released by the substitution of the plaintiff in the process in the. place of the sheriff who had, by virtue thereof, levied on the goods replevined. [The substitution of the party in interest as defendant instead of the officer does not release the surety. See note under sec. 4500 of the Code.]</p> <p>Cited with approval: Smith v. Roby, 6 Heds., 546.</p>

<p>1. MUNICIPAL CORPORATIONS. Payment of illegally assessed special taxes allowed as credits on future legul assessments.</p> <p>Where a special assessment or levy of taxes hy a city for the pavement of its streets are declared illegal by the supreme court, because made under an unconstitutional legislative act taxing by the foot frontage of lots, and in consequence another legislative act, constitutional and valid, is passed authorizing assessment or levy of taxes for such improvements, and also authorizing the city to allow any payments made under the unconstitutional act as a credit on the additional taxes levied, the certificates of such payment or indebtedness issued under ordinances of the city are valid, and receivable for such improvement taxes. [See Acts 1866-67, ch. 8, sec. 4, declared unconstitutional in Taylor v. Chandler, 9 Heis., 349. See also Lea v. Memphis, 9 Bax., 103; Memphis v. Brown, 20 Wall. (87 U. S.), 289 (22 L. ed. 264); State v. Butler, 11 Lea, 418.]</p> <p>Cited and construed: Acts 1873, ch. 67 [repealed by Acts o£ 1877, ch. 92, sec. 81].</p> <p>2. SAME. Same. Change warrants to assignee of certificates of payment of the illegal taxes.</p> <p>Where by a subsequent ordinance under said legislative act authorizing the mayor of the city to issue change warrants ta the holders of said certificates, the holder of a certificate by assignment is entitled to the change warrants and the benefit of the said legislative act allowing the payments under said illegal special assessment as a credit on the future assessments for the improvements of the streets, etc., said certificates are assignable, and it is not necessary that they should be negotiable to entitle the assignee to the change warrants, and the benefits of said legislative acts.</p> <p>3. MANDAMUS. To require mayor to perform ministerial duty under an ordinance.</p> <p>The ordinance authorizing and requiring the mayor to> issue said change warrants to persons holding said certificates of indebtedness, imposed a purely ministerial duty upon him, for the nonperformance of which .the writ of mandamus was the proper and appropriate remedy.</p>

<p>1. STAYOR OE EXECUTION OP JUDGMENT. No* discharged "by levy subject to prior levy, when.</p> <p>A stayor is not discharged by a levy on the principal’s properly subject to prior levies, when there is no surplus from a valid sale under such prior levies. [See note 7 under sec. 4700 of the Code.]</p> <p>2. SAME. Same. Waiver of advertisement of sale under prior levy, no discharge.</p> <p>Parties interested under an execution may agree to a sale without advertisement, and the sale will be valid, and pass the title. Such sale will not discharge a stayor of another execution subsequently levied on the property subject to such prior leivy. [See Code, secs. 4767, 4769, 4812, 3841.]</p> <p>3. SAME. Same. Same. Officer’s collusion and insufficient return, no discharge.</p> <p>I!; tbe officer is guilty of collusion in selling' without advertisement under a waiver thereof, or .makes himself liable for an insufficient return on the last execution, the execution creditor is not bound to pursue Ms remedies ag'ainst the officer for the benefit of the stayor, and the stayor is. not thereby discharged. [See note 7 under see. 4790 of the Code.]</p>

<p>1. WILLS. Leg-acy enforced ag-ainst real estate of executor’s deceased surety, -without judgment.</p> <p>It is not-necessary that a legatee should first obtain a judgment for his leg-acy in order to subject the real estate of a deceased surety on the executor’s bond to the payment of the legacy.</p> <p>2. ADMINISTRATION. Personalty appropriated to heirs makes personal representative and heirs both liable for debts; realty liable after exhaustion of personalty.</p> <p>Where the personal representative has appropriated all the personal property of the decedent to the payment of debits of his estate, and to the benefit of the heirs, an unpaid creditor may hold the personal representative liable as for a devastavit for any personal assets he may have delivered to the heirs which ought to have been applied to the. payment of the decedent’s debts, or he may hold the heirs accountable for it, and if the personalty appropriated to- the heirs was the exemptions and year’s support allowed by the statute, the real estate descended to the heirs would be liar ble for the satisfaction of any claim established ag-ainst the estate. Such would show an exhaustion of personal assets as required by law.</p> <p>Cited with approval: 1 Sto'. Eq. Jur., sec. 581, and note 4.</p> <p>3. SAME. Bill against executor, Ms living surety, and personal representative -and heirs of his deceased surety to recover legacy not multifarious, when.</p> <p>A bill by a legatee ag-ainst the executor and his living- surety, and the personal representative a.nd heirs of his deceased surety, for the recovery of his leg-acy, alleging- the appropriation of the personal assets of the deceased surety in the payment of his debts or for the benefit of his heirs, and seeking- to subject bis real estate to the payment of the legacy, is not multifarious, nor is it demurrable for not showing an exhaustion of the personalty in the payment of debts.</p> <p>Cited with approval: Sto. Eq. PI., sec. 178.</p>

<p>1. CRIMINAL PRACTICE. Former verdict taken, out by jury not reversible error, when.</p> <p>The mere fact that when- the jury retired to consider of their verdict, they were permitted to take with them, an envelope containing' the papers of the cause, on which was indorsed the verdict of guilty of murder in the first degree, rendered by a former jury on a former trial, where there is nothing showing that the indorsement in any way influenced the jury in making up their verdict finding the defendant guilty of murder in the first degree, is not a reversible error.</p> <p>2. CRIMINAL EVIDENCE. Testimony of accomplice must be corroborated.</p> <p>The evidence of an accomplice is not sufficient to authorize a conviction, unless corroborated as to material facts or circumstances indicating' the- g-uilt of the accused, either before -or after the tragedy.</p>

<p>LANDLORD AND TENANT. Landlord not liable to tenant for neg-lig-ence of contractor, when.</p> <p>If a tenant consents for repairs, ohang-es, or improvements to be made on the leased pi-emises, and the landlord makes a contract with a contractor to do' the work, and injury results to the tenant from the neg-lig-ence of the contractor, the landlord is not responsible. But if the landlord causes the repairs to be made without the consent of the tenant, or with his consent, and by his own ag-ents and servants, or by a plan or chang-e in itself dang-erous, he will be liable to the tenant for any damages resulting- to him.</p> <p>Cited with approval: Slier. Red. on Neg\, sec. 79, and notes.</p>

<p>1. PARTNERSHIP. Purchaser ol a partner’s, interest assuming his liabilities, liable as partner, when.</p> <p>A person buying a partner’s interest in, a partnership' business, and assuming’ his liabilities, and being’ accepted and received by the other partners into the firm, and being substituted as a partner in the place ol the retiring partner, succeeds to all his rights and liabilities, and is liable for the debts ol the partnership existing when he came into the firm as though he had been a member when the debts were created.</p> <p>2. SAME. Same. Partners and other creditors preferred to individual creditors ol members.</p> <p>Such purchaser and substituted partner cannot defeat the rights of the creditors or members of such firm by a conveyance in trust of his interest in the partnership to secure his individual creditors. The creditors’ lien through the partners is the superior right. So-, also, the partners hold the partnership property as a pledge or security lor any balance which, may be found to- be due to them.</p>

<p>1. PROVEN ACCOUNTS FROM OTHER COUNTIES OR STATES. Must be so declared on and profert made; waived, when.</p> <p>A proven account coming from another county or state must be declared on as such, and profert made thereof, so as not to. tali© the defendant by surprise. If not so declared on, nor profert made, but the account is filed, and read to the jury, and the defendant files an affidavit intended to deny the justice of the account, as required by statute, the irregularity is thereby waived. [See notes 7 and 8 under sec. 5561 of the Code.]</p> <p>Cited, approved, and distinguished: Hunter v. Anderson, 1 Heis., 1.</p> <p>Cited and construed: Code (1858), sec. 3780; Shannon’s Code, sec. 5561.</p> <p>3. SAME. Ag’ainst a firm, how denied; denial of partnership, when.</p> <p>The justness of an account coming from another county Disrate made out and proven against parties as a firm, when sued on, may be denied under oath by one member of the firm, but the correctness of it as against the firm, must be denied. If the correctness of it is denied as against the affiant only, he must also deny the partnership by a plea in the nature of a plea of non est factum, or the plaintiff will be entitled to judgment. [See notes 6, 14 under sec. 5561 of the Code.]</p> <p>3. SAME. Properly made out, clerical error in affidavit immaterial.</p> <p>Where the proven account coming from another county or state is made out against “H. E. Eamsworth & Co.,” and in the affidavit proving thie same it is described as an account ag'ainst “W. E. Farnsworth & Co.,” and it appearing that there was no such firm as the latter doing business in the city where the former was doing business, the mistake of “W.” for “H.” will be held a clerical error, and immaterial.</p>

<p>GAMBLING IMPLEMENTS AND DEVICES. No- appeal lies from court's ex parte instructions to sheriff to burn.</p> <p>An order of court instructing the sheriff, on his application for advice, that he hath the power by law to burn or otherwise destroy articles seized by him which he regards and adjudges to be gaming implements and devices, is not a judgment or decree in the sense oE the law, and has not the remotest resemblance to a judicial proceeding, but is a mere nullity, and no appeal or writ of error lies.</p> <p>Cited and construed: Code (1858 and 1871), secs. 1730-1722; Code (M. & V.), secs. 2286-2288; Shannon’s Code-, secs. 302G-3028.</p>

<p>APPEAL. Bond for costs only sufficient in discretionary appeals from order of reference in administration causes.</p> <p>Upon an .appeal by the sureties on the administrator’s bond granted in the discretion of the court from a decree in chancery entered against thie administrator and his sureties, ordering an. account of the administration of the estate of the decedent, an- appeal bond for costs only is sufficient, because there is no decree for a specific sum of money, and cannot be till a report is made on the reference.</p> <p>Cited and construed: Code (1858 and 1871), secs. 3157, 3164; Code (M. & V.), secs. 3874, 3S80; Shannon’s Code, secs. 4889, 4895.</p>

<p>1. RESCISSION. Of conveyance of land by reconveyance only.</p> <p>Where a deed of conveyance of land is duly executed, and delivered and accepted with the purpose of thereby passing the title from the conveyor to the conveyee, the leg-al title is vested in the co-nveyee, and a rescission of such a contract so executed and completed cannot be by parol, but must be by a reconveyance to complete it. A redelivery of the deed cannot effect a rescission, however intended by the parties.</p> <p>Cited with approval: Howard v, Huffman, 3 Head, 563.</p> <p>2. SAME. Same. By parol, no defense to vendor’s suit at law for purchase money.</p> <p>In an action at law by'the vendor for the purchase money, the vendee cannot rely on the defense of a rescission by parol or redelivery of the deed to the vendor. In equity, relief might be afforded the vendee, if the facts of the case brought him within the rules on the subject of equitable estoppel or the enforcement of agreements to rescind.</p> <p>Cited, approved, and distinguished: Walker v. Wheatly, 2 I-Ium., 119; England v. Jackson, 3 Hum., 584.</p>

<p>i. EBCOEDEE EX OFFICIO JUSTICE OF THE PEACE. Entitled. to fees a.s justice, in addition to salary as recorder.</p> <p>Where the recorder of a city is by the term® of the city charter ex officio a justice of the peace, he is entitled to the fees provided by law for justices of the peace for services rendered in that capacity in addition to his compensation as recorder, although there is a clause in the act creating-the offices that “he shall receive no compensation except as fixed by ordinance,” and the ordinance of the city fixes the salary of the recorder at fifty dollars per month without perquisites from any source. The clause of the statute relates only to his services as recorder, and the city cannot lawfully compensate him out of its treasury for his services as justice of the peace.</p> <p>Cited and construed: Acts 1875, ch. 93, sec. 50; Private Acts 1857-58, ch. 50, sec. 19.</p> <p>3. JUSTICES OE THE PEACE. Fees cannot be diminished by special laws.</p> <p>The fees and perquisites of justices of the peace are fixed by general laws, and no special legislation can diminish them without infringing the spirit of the provision of the organic law, which inhibits special legislation.</p> <p>Cited and construed: Const., art. 11, sec. 8.</p> <p>3. SAME. Ma.y hold other offices.</p> <p>The office of justice of the peace is not one of those places of trust or profit contemplated by that clause of the constitution which forbids one person at the same time to hold two offices.</p> <p>Cited a.nd construed: Const., art. 3, see. 36.</p> <p>4. SAME. Elective g-enerally, but appointive by legislature in incorporated towns.</p> <p>The g-eneral provision is that the office of justice of the peace is elective by the people, but the legislature may provide for the appointment of justices of the peace in incorporated . towns.</p> <p>Cited and construed: Const., art. 6, sec. 15, last clause.</p>

<p>JUSTICES OE THE PEACE. Cannot increase their compan-sa-tdon for attendance at quarterly court.</p> <p>Justices o£ the peace are entitled to no compensation except what is allowed by statute. When the statute fixes the compensation, it is not within the powers of the justices sitting-in quarterly session to ehamg-e it, and vote themselves additional compensation for their attendance at such court.</p> <p>Cited and construed: Acts 1866-67, ch. 3, sec. 1; acts 1867-68, ch. 14, sec. 1; Code (1871), secs. 4549 (33), 4549a, 4549'b. See Shannon’s Code, sec. 6386.</p>

<p>EJECTMENT. Deradgnment of title from person' botli claim tmcler, sufficient. Case in judgment.</p> <p>In an action of ejectment, where both, parties claim title under the same third person, it is only necessary to prove the derivation of the title from him, without proving his title. As where the heirs sue to recover land in possession of the defendant, the title to which he claim® to have obtained from their ancestor by virtue of judicial proceedings against .him and a sheriff’s deed, which are void, the heirs, as plaintiffs, need only prove their inheritance, and need not show title in their ancestor. [See Allen v. Moss, 2 Shannon’s Cases, 317, syl. 3, and cases cited in note.]</p> <p>Cited with approval: Wortham v. Cherry, 3 Head, 468.</p>

<p>1. HABEAS CORPUS. No appeal from judgment for costs, when.</p> <p>As there is no appeal from the judgment upon a writ of habeas corpus, there can be none from the judgment for costs in such case. [An appeal lies now by statute since enacted. See Code, sec. 5546, and notes 1 and 2.J</p> <p>Cited and construed: Acts 1875, ch. 83. ' [See now Code, sees. 7S98-7428, and notes.]</p> <p>2. SAME. Costs in discretion of court.</p> <p>In habeas corpus cases, the costs ma.y be adjudged as the court or judge may think right.</p> <p>Cited and construed: Code (1858 and 1871), sec. 3762; Codie (M. & V.), sec. 4512; Shannon’s Code, sec. 5542.</p>

<p>CHANCERY SALES. After confirmation, purchaser entitled to no relief ag-ainst dower- rig-ht, wfien.</p> <p>After tire confirmation of a chancery sale the purchaser who bought with a knowledg-e of the facts on which the widow , of the deceased owner is entitled to dower, is entitled to no relief on account of the said dower rig-ht. Such a case is different from the case where the purchaser buys in ignorance of the fact the land is incumbered with unpaid taxes.</p>

<p>MUNICIPAL CORPORATION. Person, living- and owning property beyond boundaries cannot enjoin election embracing his territory, when.</p> <p>A person who claims to reside and own real estate outside of the true boundaries of a municipal corporation cannot by a bill in chancery, enjoin and restrain an officer, pro-posing- to hold a.n election for municipal officers according to boundaries which would include complainant and Ms real estate within the corporate limits, from holding- such election. Such complainant has no interest in such election, and Ms remedy is not by injunction ag-ainst same.</p>

<p>EXECUTION. Motion for insufficient return; example of what is such.</p> <p>Where an execution was issued from a judgment before a justice of the peace, and come to tire constable’s hands on the 3d of December, a.nd was levied on. property on the 30th of that month, and returned the 3d of January following, without giving any reasons for not having levied in time to sell within thirty days, the return is insufficient on its face, for which a motion will lie ag-adnst the constable and his sureties.</p> <p>Cited with approval: Eakin v. Boyd, 5 Sneed, 304.</p>

<p>1. WRIT OE ERROR. RES AD JUDICATA. Error in name oi one suing- ont writ held clerical error, when.</p> <p>Where, among' several other defendants to. a suit in chancery, there were two by the names oí Mary E. Trigg and Martha L. Trig'g', but no other parties with similar names, and according' to the entry of record a writ of error was prosecuted in the name of Martha E. Ttigg, and the matters involved adjudicated against Mary E. Trigg-, on a plea of res ad judicata, where it appears from the whole record that Mary E. Trig'g- was the one intended, and not Martha L. Trigg, the court will hold that the word “Martha” was a clerical error intended for “Mary.”</p> <p>Cited and distinguished: Mary N. Young v. James Young, un-repoa-ted, Jackson, April term, 1874.</p> <p>S. DOWER. Widow of heir or devisee taires subject- to debts of his ancestor.</p> <p>Where proceedings are commenced to- subject the lands of a decedent, to the payment of his debts before the death of an heir or devisee, and the rights against him fixed, his widow is not entitled to dower in the lands descended or devised to her deceased husband until his ancestor’s debts -are paid or settled. Such widow could not avoid the result by claiming- dower in the lands as he<r own under a deed from her husband, which had been held invalid as against the debts of the estate of her husband’s ancestor. [But see notes 27-29 under sec. 4003 of the Code.]</p> <p>3. APPEALS. SUPREME COURT PRACTICE. How interlocutory decree reviewed on appeal from it.</p> <p>Upon an appeal from an interlocutory decree, the supreme court can only review it so far as it settles principles, and cannot undertake to determine disputed questions of fact.</p> <p>4. ADMINISTRATION. Executor not liable for failure to> administer foreign assets.</p> <p>Where a will contains no devise or bequest to the executor, but expresses merely a general desire that the debts be paid by the executor, he is placed upon the footing' of an administrator, and must qualify and give bond in the proper probate court before he acquires any title to the personalty or right to interfere with, it, or to act as personal representative, but he has no authority to take possession of assets in another state, and if he should bring- assets from another state, his sureties here would not be liable therefor. Therefore, the executor is not liable for failure to take possession of such foreign assets.</p> <p>5. WAR. Contracts between subjects of the enemy countries, void. So in W'ar between the states.</p> <p>The existence of war interdicts absolutely all commercial intercourse between the subjects of the two countries, and renders null and void all contracts between them during the wair. The rule is rigid and unyielding, and subject to but one exception, namely, contracts of necessity, as where a prisoner in the enemy’s country draws a bill of exchange for his own subsistence, etc. A contract for sale of cotton within the Confederate States between a citizen of a loyal state and a citizen of one of the Confederate States, made on the 5th day of July, 1864, in Memphis, Tennessee, then occupied by the federal forces, at which time all commercial intercourse was, by proclamation of the president, forbidden, without special permit, was illegal and void. [See Crawford v. Insurance Cos., 3- Shannon’s Cases, 339.]</p> <p>Cited with approval:. Graham v. Merrill, 5 Cold., 633; Halleck’s International Law, 357-359.</p> <p>6. SAME. Same. Result not avoided by providing- for delivery after close of war.</p> <p>A sUpulation in the contract that the cotton was not to be delivered until after the termination of the war, would not take the case out of the rule.</p> <p>7. SAME. Same. Money paid not recoverable; mortgage void.</p> <p>Where money was paid by the purchaser on such contract, and his note is given thereon, and a mortgage executed by the vendor to secure tire return of the money and note, or the delivery of the cotton, the mortgag-e is void, and the contract cannot be enforced nor the money collected.</p>

<p>1. EMBEZZLEMENT. Statutory. Defined and' distinguished from larceny.</p> <p>Tlie offense of embezzlement is purely statutory, and the statutes creating the offense are derived from the English statutes 21 Hen. 8, eh. 7; 39 Geo. 3, ch. 85; 7 and 8 Geo. 4, ch. 29, modified by the late statute 24 and 25 Viet., ch. 96. The object of the statutes was to meet and obviate the de^ fects in the law of larceny, and to protect employers against the frauds of those in whom confidence is reposed, and when the element of confidence does not exist, there can he no such thing as embezzlement. If the money or property goes into the possession of the employer before it goes into the possession of the employe’, his taking and appropriating it does not constitute embezzlement, but larceny. Embezzlement is the fraudulent a.px>ropriationi of such property as the statutes make the subject of embezzlement, under the circumstances in the statutes pointed out, by the person embezzling, to the injury of the owners. To constitute embezzlement the money or property must come directly from a third person into the hands of the employe, in the course of his employment, and be appropriated by him. A larceny cannot be perpetrated when the servant, in- the course of his duty, takes his master’s property from a third person, though he means to' appropriate it to’ his own use, and does so, for he commits no trespass.</p> <p>Cited with approval: Beg, v. Haywood, 1 Car. & B., 518; Beg. v. Watts, 1 Eng. L. & Eq., 558; 2 Bish. Cr. Law, secs. 352, 330; People v. Sherman, 10 Wend., 296; 2 Whaa-t. Cr. Law, sec'. 1941; Arch. C. P., 266.</p> <p>Cited and construed: Code (1858 and 1871), sec. 4708; Code (M. & V.), sec. 5475; Shannon’s Code, sec. 6576.</p> <p>2. SAME. Of property of third person in course of employment.</p> <p>The essence of the offense is that a trusted agent and representative of his employer has received as such the money or g'oods of another, and betrays this trust by fraudulently appropriating said money or goods to his own use. It lies for thus converting 1he property of either the employer or of a third person, received in the course of his employment. The words “any other person” in the statute mean any person other than the employer.</p> <p>Cited with approval: People v. Hennessey, 15 Wend., 147; People v. Sherman, 10 Wench, 296; 2 Bish. Cr. Law, sec. 330.</p> <p>3. SAME. Defendant must show himself within the exception of statute.</p> <p>The burden is not upon the state to show that the defendant does not come within the exception of being an apprentice, or under the age of eighteen years; but if the defendant wishes to avail himself of this defense, he must show that he is within the exception of the statute, and the state need not show that he is without the exception. This is the sounder rule, though there is holding to the contrary.</p> <p>Cite.d: Stephenson v. State, 28 Ind., 272; 4 City Hail Recorder, 159.</p> <p>4. SAME. Indictment may alleg’e title in whom,.</p> <p>Where the employe of an express company, as its messenger, by virtue of his employment receives money or property from a third person, to be carried and delivered to' the company a,t another point for delivery by it to another, and he appropriates the same to Ms own use, in an indictment for embezzlement the title to the property may be laid in either the company or the owner.</p> <p>5. SAME. Jurisdiction where offense consummated.</p> <p>Where an express agent or messenger receives packages of money from third persons for Ms company in the State of Mississippi to be carried and delivered to the agency of the company in Memphis, Tennessee, to be there delivered to another person, which he abstracted and appropriated in the State of Mississippi, and failed to render an account of the same in Memphis, the offense was a contimiing one, and was only consummated at Memphis, and the jurisdiction of the offense was in, the courts there.</p> <p>Cited with approval: 2 Bish. Cr. Law, p. 360.</p> <p>6. SAME. Omission to account for, and pay over, evidence.</p> <p>Where a person by virtue of his employment receives money for his employer, and renders a true account of all the money received, he is not guilty of embezzlement if he absconds and does not pay over the money; but if hie had received the money, and had rendered an account in which it was omitted, this would be evidence to show that he had embezzled the amount.</p> <p>Rex v. Creed, 1 C. & K., 63.</p>

<p>Í. FRAUDULENT CONVEYANCES. Voluntary conveyance presumed fraudulent, when.</p> <p>A voluntary conveyance by a husband to his wife and children is presumed to be fraudiiient as against- existing creditors, which presumption may be rebutted by proof that the donor had a-t the time ample assets to discharge his debts. Where the husband buys real estate, and procures, the conveyance to be made to his wife and children, it is of the same effect as a conveyance made directly by himself. [See note 12 under sec. 3143 of the Code.]</p> <p>2. CHANCERY PLEADING AND PRACTICE, Heir takes up defense where ancestor left it; guardian ad litem, need not answer, when.</p> <p>Where a defendant has answered the bill and made defense thereto, and dies, and the cause is revived against his minor heirs for whom a guardian ad litem is appointed, it is not necessary for him to answer, for the heirs must take up the defense of the ancestor as they find it. A formal answer of the guardian ad litem could add no strength whatever to their defense as already asserted by the answer of the ancestor.</p> <p>3. SAME. Same. Want of pro confesso against administrator not fatal, when.</p> <p>The want of a pro confesso against an administrator in a suit ag-ainst his intestate to- set aside a conveyance as fraudulent, and to subject the land to the payment of a debt, is not reversible error, where the suit was revived against the heir, and defense was made in behalf of the heir- and the estate of the decedent, and the merits of the litigation were clearly attained by the decree.</p>

<p>RECORDER EX OFEICIO JUSTICE OF THE PEACE. Acting mayor acting as such, without authority not entitled to fees.</p> <p>Where a person acting' as mayor of a city during the absence of the mayor assumes to act as recorder in the absence of the recorder, who was also ex officio a justice of the peace, the person so acting’ as mayor having no authority to so^ act as recorder, is not entitled to the feeis provided by law for justices of the peace for trying- state cases as ex officio justice of the peace.</p>

<p>WILLS. CONSTRUCTION. Devisees and legatees take per capita. Case in judgment.</p> <p>Where the words of a will are as follows: “I devise, will, and • direct that my . . . sisters Elizabeth, Jane, and Sarah, if living', receive and ha.ve one-fourth of my estate, after all debts and expenses are paid, and the remaining' three-foxirths to be equally divided between them, my three above named sisters, and my nephews and nieces, children and grandchildren, of my deceased brother William, and my deceased sister Mary.” the three sisters Elizabeth, Jane, and Sarah take first one-fonrth of the whole of the estate after payment of debts and expenses, and then they and the said children and grandchildren of the deceased brother and sister take an equal share per capita of the remaining- three-fourths.</p>

<p>RESCISSION. OF LAND SALE. Where part of land had' been sold to an innocent purchaser, judgment against original vendee for the amount on facts appearing in reference after remandment or by supplemental bill.</p> <p>Where a sale and conveyance of land is, at the instance and suit of the vendor, rescinded, and a restoration of the possession of the land decreed by the supreme court, and the cause remanded for the execution of the decree as to. rents, improvements, and purchase money paid, etc., and it coming to the knowledge of the complainant after such remandment, for the first time, that part of the land had passed by conveyance of the defendant to an innocent purchaser before the filing of the bill, who had paid defendant for the same, it is proper to allow the complainant to file a supplemental bill setting- np such fact, and asking- a money decree against the defendant (complainant’s vendee) in lieu of the land held by the innocent purchaser from him, but this relief may be granted upon the facts appearing in proof on the reference, without the supplemental bill. In such case the complainant is entitled to recover from defendant (complainant’s vendee) the value of the land so conveyed, and may elect to take- the amount for which the defendant- sold tbe land as its value, with interest. In such case no account would be taken as to the rents, improvements, ate., as to that part of the land so- sold. Such relief is not contrary to tbe spirit and true meaning of the decree and procedendo of the supreme court on the said remandment of the cause, but is in principle and spirit an -execution of it. As the said innocent, purchaser was noit a party to the suit, the decree of restoration could not be- literally executed. and the money received from the sale will be substituted for tbe land.</p> <p>Cited with approval: 11 Wend., 460, 461; Nelson v. Bridges, 2 Beavam, 343; Hime-ly v. Rose, 5 Cranch, 313, 316, 317;'Rose v. I-Iimiely, 4 Cranch, 341.</p>

<p>1. RAILROAD. Mortgage of property pertaining to main, line does mot pass subsequently acquired property in another state, when.</p> <p>A mortgage made by an incorporated railroad company conveying- “all the lands, franchises, rolling stock, iron rails, cross ties, road bed, rig-ht of way, and depots and depot buildings as well as any other species of property owned by the company, or which it may hereafter acquire by purchase or otherwise, pertaining to- the main line of said road from Memphis to Little Rock, and also to pledge net receipts of said road,” where its charter fixes its beginning or initial point on the west bank of the Mississippi river opposite to the city of Memphis, with a westerly course, and terminal point at Little Rock, on Arkansas river, does not operate to pass subsequently acquired real estate, depot and buildings and trackways in the city of Memphis, used by the company in connection with its main line in Arkansas, but which does not pertain to- the main line.</p> <p>2. SAME. Same. Mortg-ag-e of after acquired rolling stool? not affected by removal of same from its line.</p> <p>A railroad company may mortgag-e subsequently acquired rolling stock. Oars purchased and placed on the mortgag-ed road subsequent to the mortg-ag-e pass under the mortgage as an appurtenant aaid part of the equipment of the road. If such road is a foreign corporation, and brings such cars into this state on its tracks, and property here not embraced in the mortgage, they are not subject to attachment by a creditor of this state for a general debt of the company- not secured by the mortgage. They are still embraced in the mortgage to secure the mortgag-e debt. [See note- 31 under sec. 3143 of the Code.]</p> <p>Cited with approval: Clay v. Railroad, 6 Heis., 421; Pannock v. Coe, 23 I-Iow., 117, 130 [16 L. ed., 436, 441, 442], and citations.</p> <p>3. SAME. May mortgag-e net earnings, and they cannot be reached by general creditor.</p> <p>A railroad company may mortgage its net receipts, and a g-enera-1 creditor of the company, whose debt was created before the execution and registration of the mortgage, and not secured by the mortgage, questions of fraudulent conveyance -out of the way, cannot subject such -earning-s to the payment of his debt, although they may not have reached the hands or possession oí the mortgagee.. Such earnings of a foreign railroad corporation in the hands of its treasurer or agent here, cannot be so subjected by attachment sued out by such resident creditor.</p> <p>Cited with approval: Pennoclc v. Coe;, S3 How., 130 [16 L. ed., 441, 44S]; and distinguished, Clay v. Railr oad, 6 Heis., 421.</p> <p>4. SAME. What are net earning-s.</p> <p>The net earnings of a railroad are the balance that remains after paying tbe legitimate current expenses of runming’ the road, and keeping- it repaired and equipped, and the proper expienses of creating the profits.</p> <p>5. SAME. Who are necessary parties in litigation about mortgaged property.</p> <p>A mortgage by a railroad company to secure its bonded indebtedness will not be declared fraudulent in fact or in law, when the bill does not purport to make the holders of the bonds, the beneficiaries, parties, nor give any excuse for not doing so. But for the purpose of determining what property passed by the mortgage, the trustee may litigate that question without making the bondholders, the beneficiaries, parties to the suit.</p>

<p>DOWER. Liability of bedr or devisee and his collecting agent for rents to widow, in Arkansas, when.</p> <p>Where the testator’s widow dissents from the will, the devisee takes lands in Arkansas subject to her right to dower, and if the devisee takes possession of the land, or rents it, she may compel him to account for one-third of the rents and profits from the death of her husband. The devisee has the legal title, and as an incident thereto, the right- of possession and control, and he may lawfully receive the proceeds ■of the rent of the land, and a co-tenant or agent may lawfully pay the same to him, Tyithout subjecting himself to any liability to the widow who had taken no steps to enforce her claim.</p> <p>Cited with approval: Gould’s Dig'., 455; 5 Arle., 619; 3 Eng'. (Ark.), 41, 43; 22 Ark., 263.</p>

<p>1. RECORDER AS EX OFFICIO JUSTICE OF THE PEACE. Entitled to same fees as other justices.</p> <p>The recorder of Memphis being' am ex officio justice of the peace, under the laws of the state is for services: in that capacity entitled to receive the fees incidnt to such service in like amount and extent as other justices. [See In Re- Duff, ante, page 721.]</p> <p>2. SAME. Same. When disallowed, and on motion to retax are allowed, clerk entitled to his fees same as the justice.</p> <p>Where the fees due the recorder as ex officio- justice of the peace for sendees rendered in that capacity in the preliminary examinations of cases against parsons accused of violation of the felony laws of the state, and holding them to answer before the criminal court, are disallowed by that court on final disposition of the cases, and on an agreed case and appeal to the supreme court, the same are finally allowed. and the case, remanded, and on motion the clerk is ordered io r-etax the said costs, the clerk, for his said services in retaxing the costs is entitled to his fees, to- he paid by the state in the same manner as the justice is to be paid his.</p> <p>3. CRIMINAL COSTS. May be taxed against the state in the discretion of the court.</p> <p>It is not true that, the state pays no costs unless there he some, express statute authorizing- it, and specifically defining the character of case in which it shall be done. It was seen to be simply impossible to foresee all the contingencies in the progress of sfate prosecutions where, as a matter of justice and right, the state should he required to- pay the co-sts, and therefore the law has lodged- in the courts some • discretion on'the subject.</p> <p>4., SAME., Not to exceed specific fees in statute.</p> <p>The provision in the statute that officers are entitled t-o- no other fees in criminal cases -except such a-s are expressly . allowed by law, simply means that no other fee or greater sum shall be paid th© officer than the specific fee allowed by statute.</p> <p>Cited -and construed: Code (1858 anid 1871), sec. 5561 (1st clause); Code (M. & V.), sec. 6433; Shamnan’s Code, sec. 7583.</p> <p>5. SAME. Must be expressly allowed by court in discretionary cases.</p> <p>The pro visión in the statute that in- no case shall the officer be entitled to payment from the state or county unless expressly allowed, has reference to other provisions in which the courts have the discretion to tax costs against the state or counts'- in all proper oases, and means such costs must be allowed by the order or direction of a competent court.</p> <p>Cited and construed: Code (1858 and 1871), secs. 5561 (3d clause), 5573; Code (1871), see. 5581a., acts 1859-60, ch. 76, sec. 1; Code (M. & V.), sees. 6433, 6461; Shannons Code, secs. 7583, 7615.</p>

<p>1. CONFEDERATE MONET. Sufficient consideration to- support contracts during- -war, -when.</p> <p>A sale of property where the consideration was paid in Confederate money, passing- current in all transactions of the country at the time, caunot be set aside for want of consideration, because it subsequently became entirely worthless as the result of the war between, the states. Contracts tainted by Confederate money were not always set aside for that reason alone.</p> <p>2. CONTRACTS. Mere inadequacy of consideration no cause for rescission.</p> <p>Mere inadequacy of consideration does not constitute-, per se, a ground to avoid a barg-ain, and is not, of itself, a distinct principle of relief in equity.</p> <p>Cited with approval: 1 Sto. Eq. Jur., secs. 244, 245.</p> <p>3. SAME. Same. Unless such as to be a fraud.</p> <p>There may be such an unconscionableness or inadequacy in. a bargain as to- demonstrate some gross imposition, o-r some undue influence, and in such cases courts -o-f equity ought to interfere upon the satisfactory ground 0-f fra-ud. But then such unconscio-na-b-leness or inadequacy should be made out as would shock the conscience, and amount in itself to conclusive and decisive evidence- o-f fraud.</p> <p>Cited with-approval: 1 Sto. Eq. Jur., sec. 246.</p> <p>4. SAME. No, rescission for fraud or duress unless disaffirmance made, when.</p> <p>A person wishing to avoid or rescind a contract because of fra-ud or duress, must, within a reasonable time after the discovery of the fraud or the removal o-f the- duress, notify the other party o-f his disaffirmance o-f the contract, and tender the consideration back. Thus, a person remaining in the country f.or three years after knowledge of the alleged fraud, and after the removal o-f the alleged duress during the war, and after its close, from 1863 to 1866, without disaffirmance or complaint, it was too late to ask for a rescission on the grounds stated. [See Scott v. John-son, 5 Heis., 636, 638, 64?, citing- this case.]</p> <p>Cited with approval: 1 Sto. Con., sec. 497.</p> <p>5. SAME. Tender of Confederate money for- rescission after it became worthless too late, when.</p> <p>The retention of Confederate money fox- three years after knowledge- o-f the fra,ud, and removal of the- duress, and until it had become worthless, and them tendering th-e same back to the party for a rescission of the contract, is not a sufficient return of what he had received.</p> <p>Cited with approval: Masson v. Bovet, 1 Denio, 69.</p> <p>6. SAME. Duress must "be what.</p> <p>Iu all oases of duress the threatening or imprisonment must be the alternative held out by the other party to the end of enforcing the making of the contract.</p> <p>Cited with approval: 1 Sto. Con., see. 403.</p>

<p>1. ERAUDULENT CONVEYANCES, Conveyance by husband to wife to secure trust debt, or to carry out original agreement, not, -when.</p> <p>Where the husband receives money derived from the sale of his wife’s land, upon an agreement to invest it in a house and lot for her own separate use, the money is affected with a trust in his hands, and if he fails to invest it as agreed, but appropriates it to his business purposes, and uses a like amount of his own means in paying' tor the house ana lot conveyed to himself, then he thereby makes himself her debtor for that amount, but there is no title to the property in the wife by resulting trust. A conveyance of such house and lot twenty years thereafter by the husband to his wdfe, in satisfaction of such debt, or to carry out the original contract, when the husband is largely indebted more than he is able to pay, but before any liens by judgments or otherwise existed on the property, will be sustained, and the wife held to have a rig-lit to retain the legal title to the property for the satisfaction of her claim.</p> <p>2. .EVIDENCE. Competency of witness waived in deposition, when.</p> <p>When a deposition is taken by consent of parties, notice, caption, and certificate being waived, and it is agreed that it may be read in the cause, the court intimates that the parties had waived any objection to the competency of the witness.</p>

<p>1. CBIMINAL LAW. What corroboration of accomplice’s; testimony is essential.</p> <p>In order to convict it is not sufficient to corroborate an accomplice as to the facts of the case generally, nor as to the mode in which the felony was committed, but he must be corroborated as to some material facts which go to' prove tliat the accused was connected with the crime charged, in a word, the confirmation or circumstances and facts to sustain the credit of the witness, should be such independent facts as of themselves tend to connect the accused with the charge, or the deed for which he is being- tried. [See Hall v. State, 3 Lea, 564; Hobinson v. State, 16 Lea, 146; Clapp v. State, 10 Pickle, 194-196.]</p> <p>Cited: 1 Greenl. on. Ev., sec. 381; 2 Bussell on Crimes, 952.</p> <p>2. SAME. Same. Charge of court as to; corroboration of ac-comxjlice’s evidence; refusal of request.</p> <p>Where the judge instructed the jury “that in order to give force and credit to the testimony of an accomplice it should be taken with a great deal of caution, and should be scrutinized with great care, and that it should he corroborated and sustained by other evidence and circumstances, so as to satisfy the minds of the jury that the witness spoke the truth; when this is done, the jury, if they are satisfied beyond a reasonable doubt that the witness spoke the truth, although an accomplice in the crime, yon may receive and give full credit to her testimony,” is a statement of the rule, as far as it goes, though inartifieially worded, is not of itself subject to criticism. But where, in addition to this charg-e, it was requested by defendant’s counsel that the conrt. charge the principle in substance laid down in the last syllabxxs, which was refused, such, refusal is a fatal and reversible error.</p> <p>Cited: 1 Greenl. on Ev., sec. 381.</p> <p>3. SAME. Juror incompetent for having expressed an- opinion.</p> <p>Where one of the jury trying the accused qualifies himself on his examination by the court as free from bias, and not having formed or expressed au opinion as to the guilt or innocence of the accused, and is shown" to have expressed an opinion, and to have said that if ha should be on the jury he should g'o for hanging' the accused, or be for hanging him, and that he was conscious of his fault in no-t disclosing' the fact on his examination, he was incompetent as a juror, and a new trial should have been granted. [See Norfleet v. State, 4 Sneed, 340, 344; Mann v. State, 3 Head, 375.]</p> <p>Cited with approval: Kiddle v. State, 3 H-eis., 407; Brakefield v. State, 1 Sneed, 219; Fitzgerald v. State, MS., April, 1871.</p> <p>4. SAME. Evidence of confession competent, when.</p> <p>Confessions under duress, or obtained by promises ox' threats, or influences held out to a prisoner, are not admissible in evidence against Mm. But if the prisoner nas made Ms own conclusions of the advantages to be derived from confessing-, and has thereupon confessed the crime, there is no reason to say it is not voluntary. If a confession be free and voluntary, if it appears to proceed from a sense of guilt, and not from the influence of hope ox- fear in any degree; it is competent evidence. The fact that the pifisoner was told by a guard that his accomplice had told all about a matter, and that he had just as well tell for that reason, would not tend to excite hope or fear, but would only give the pinsoner knowledge of the facts, which would naturally prompt an innocent man at once to deny the statement made rather than admit a falsehood which might imperil his life. [Green v. State, 13 Pickle, 62-66; Donaldson v. State, 2 Shaxxaion’s Cases, 427.]</p> <p>Cited: 1 Greenl. on Ev., secs. 219, 220; Deatkridge v. State, 1 Sneed, 76; Maples v. State, 3 Heis., 412.</p>

<p>From the chancery court of Davidson county.</p>

<p>1. BILLS AND NOTES. Demand and notice "by bolder; pi-o-test by notary not indispensable.</p> <p>Tbe demand of payment of a i>romissory note may be made by tbe bolder ox- by any one as bis ag-ent; and notice given by the bolder of tbe dishonor, as required by law, if proven by any competent evidence of the fact, is equally as effective to fix the liability of the indorsers as that given by a notary public. The only advantag-e of having- the protest made by the notary is the convenience of making- proof of the demand and notice. The fa,ct that there is no notary public does not excuse demand and notice. [See notes 12 and 13 under see. 3205 of Code.!</p> <p>Cited and construed: Code (1858 and 1871), sec. 1800; Code (M. & V.), sec. 2471; Shannon’s Code, sec. 3204.</p> <p>2. SAME. Holder’s duty as to protest to be made after- removal of hindrances.</p> <p>The holder should give willing-, earnest, active, and real energy and effort to malte presentment to the payor a.t the time prescribed- by law. If such presentment be prevented or hindered, by legal excuse, for the time, then it must be made within a reasonable time after the hindrances are- removed. A delay of twelve months after the excuse ceases is too g-reat.</p> <p>Cited -with approval: Polk v. Spinks, 5 Cold., 433.</p>

<p>1. CERTIORARI AND SUPERSEDEAS. No recollection ot service, insufficient ground for.</p> <p>A petition for writs of certiorari and supersedeas stating that petitioner has no recollection of ever having been notified of tbe trial or judgment, although the warrant appears to have been returned executed; that he “was taken completely by surprise, when the execution was issued and levied on his property;” and that he “would have seen to his interest long since, but for his want of knowledge of the existence of said liability,” and praying relief, “as be never was cited to trial, a.s be mow recollects,” tbe application being- made more than -five years after judgment, did not show a sufficient cause for not appealing-, especially where it was admitted on tbe trial below that tbe warrant was duly executed upon the petitioner as shown by the return of the officer. [See note 7 (j) under sec. 4857 of the Code.]</p> <p>Cited with approval: Gillam v. Looney, 1 Heiis., 319.</p> <p>3. SAME. Confined to grounds stated in petition.</p> <p>Where the object of the petition for writs of certiorari and supersedeas is not to obtain a new trial on the merits, but to use the said writs for the purx>ose of annulling the judgment and quashing- the execution for the want of jurisdiction in the justice g-rowing out of the alleged failure to serve process, tlie petitioner cannot shift his ground entirely in the circuit court, abandon the question of jurisdiction, and obtain a new trial on the merits.</p> <p>Cited with approval: Noel v. Scoby, 2 Heis., 20; Hollins v. Johnson, 3 Head, 347.</p> <p>3. SAME. Constitutional rig-ht, but petition must show merits.</p> <p>Although ihe certiorari is, under tire constitution, pre-emi-nently a writ of rig-ht, it has always been held in this state that the petition should show merits and sufficient cause for not appealing-. [See Const., art. 6, sec. 10.]</p>

From the criminal court of Greene county. A. W. Howard, J., presiding. The defendant, at the November term, 1869, was convicted of murder in the first degree, and sent tO' the penitentiary.