Volume 65 — Tennessee Reports

<p>FROM KNOX.</p> <p>From the Chancery Court at Knoxville.</p> <p>Motion to dismiss.</p> <p>No 'counsel marked.</p>

<p>1. Jurisdiction of the Supreme Court. To award original process. TJie power of this court to award original process is limited to those cases where its exertion is required to carry out its appellate jurisdiction. Cases cited: Kingu. Hampton, 3 Hay., 59'; Cox v. Breedlove, 2 Yer.; 499; Waters v. Lewis, 9 Yer., 15; Miller v. Conlee, 5 Sneed, 434; State v. Bank of E. Tenn., 5 Sneed, 573; 1 Thomp. Cases, 61; Ward v. Thomas, 2 Col., 565; State v. Hall, 3 Col., 255; State v. Elmore, 6 Col., 528.</p> <p>2. Same. Mandamus to inferior court. When disallowed. A mandamus to compel an inferior judge to proceed to the trial of a cause disallowed, because, if granted, such action would involve the exercise of original jurisdiction.</p> <p>3. Internationad Law. Appointments of conquering power good. In times of civil war, the conquering power has the right, under the laws of war, to dispossess the legally constituted officers in the conquered territory and appoint others in their stead, whose acts, within the sphere of their authority, are’ valid and binding.</p> <p>Case cited-: Wart v. Thompson, MS., Jackson, 1872.</p> <p>Acts cited: 1815, ch. 38, secs. 3, 4.</p> <p>Constitution cited: 1870, art. 6, sec. 2.</p>

<p>PROM GREENE.</p> <p>From the Circuit Court at Greeneville.</p> <p>No record can be found.</p>

<p>1. 'Vendob’s Lien. Inferior to rights assigned widen' venders deed of trust. When. A vendor’s implied lien on land for unpaid purchase money is inferior to the rights acquired by creditors of the vendee under his deed conveying the land in trust, for their benefit, provided the conveyance in trust was made and its benefits accepted by such creditors before bill filed by the vendor to enforce his lien.</p> <p>Cases cited: Green v. Demoss, 10 Hum., 376; Ellis v. Temple, 4 Cold., 322; Tharpe v. Dunlap, 4 Heis., 674.</p> <p>2. Deed oe Trusts, flow benefits waived. Attaching creditors. A beneficiary under a deed of trust assigned his debt to parties claiming the land conveyed by the deed as redeeming creditors: Held, that this constituted a waiver or abandonment of his rights under the deed, and that by so doing he lost whatever priority he might have acquired by accepting the benefits of said deed. Such beneficiary, therefore, in a proceeding by the vendor to enforce his lien for unpaid purchase money, will not be allowed to fall back upon his rights under the trust deed, so as to overreach the lien of attaching creditors who had in the meanwhile filed their bill seeking to subject the land to the satisfaction of their debt.</p> <p>3. Redemption. Under tax sales. Effect of. The provision relating to the redemption of land sold under execution, or trust deeds, or mortgages, do not apply to sales of land for taxes. Tax sales being based on judgments against the land, not against the owners of land as judgment debtors. Bona fide judgment creditors can alone redeem under execution sales. While any person may redeem for the owner, under tax sales, without having a debt against him; therefore, where judgment creditors sought to redeem by advancing the amount of their judgments upon a purchtiser’s bid at a tax sale: Held, that such redemption was void.</p> <p>Code cited and construed: Secs. 638, 2124-2127-2130.</p>

<p>1. Seduction. Evidence. What plaintiff may be required to omvjer. A plaintiff in a seduction case, examined as a witness on her own behalf may be required to answer specific questions as to former acts of unchastity with designated men prior to her alleged seduction, there being no longer any criminal penalty attached to the offense of fornication in this State.</p> <p>2. Same. Same. Mitigation of damages. Acts of sexual intercourse between such plaintiff and others previous to her alleged seduction by defendant may be shown in mitigation of damages, whether they were known to the defendant or the public at this time or not.</p> <p>Oases cited: Beed v. Williams, 5 Sneed, 580; Thompson v. Clendening, 1 Head, 287; Lea v. Henderson, 1 Cold., 146, overruled.</p> <p>Code cited: Sec. 2801.</p>

<p>1. Chancery JURISDICTION. Fraud in obtaining endorsement of note. Where the endorsement of a party to a note has been procured through the false and fraudulent representations of the holder thereof, that he had been authorized by the maker to request his endorsement, a court of equity, upon proper application made, will perpetually enjoin such holder from the collection of the note as against the party whose endorsement has been thus obtained.</p> <p>2. Same. Misrepresentation of material fact. Effect of. Misrepresentation of a material fact by a party, whereby the action of another has been induced, is a conclusive ground for relief in equity, without regard to the character of such misrepresentation, whether made innocently, through mistake, or wilfully and with intent to deceive.</p> <p>Oases cited: Donelson v. Weakley, 3 Yer., 178; Lewis v. McLemore, 10 Yer., 206; Merriwether v. Larmon, 3 Sneed, 447.</p>

<p>FROM WASHINGTON.</p> <p>From the Chancery Court at Jonesborough. IT. C. Smith, Chancellor.</p>

<p>1. Attachment. Chancery practice Not necessary to enforce vendor’s lien against non-resident. Attachment is not necessary to the validity of a decree against a non-resident to enforce, a vendor’s lien upon land for unpaid purchase money under sec. 4357 of the Code. The court acquired jurisdiction of the person "by publication, conforming to the ' requirements of that section, and of the subject matter from the situation of the land within the chancery district.</p> <p>Case cited: Biley v. Nichols, 1 Heis., 16.</p> <p>Code cited: Sec. 3522.</p> <p>2. Same. Presumption in favor of recitals. If the record discloses an order of publication, and the decree recites that publication was made conforming thereto, the presumption is that the recitals are true, and that the publication was made as required by law.</p>

<p>PROM GREENE.</p> <p>From the Circuit Court at Greeneville.</p> <p>No record can be found.</p>

<p>1. Parol Evidence. Admissable to show that arbitrators appointed by court had been charged by consent, etc. During the pendency of a cause it was, by consent, admitted to arbitrators, and an order of court made accordingly. Plaintiff moved the entry of the award as the decree of the court, which defendants resisted, because made by arbitrators substituted for those appointed by the court. Evidence offered by plaintiff, showing that the substitution was by agreement of the parties, was rejected, and the award was set aside: Held, error.</p> <p>Case cited: Cooley v. Dill, 1 Swan, 313.</p> <p>2. Practice. Special plea of non est factum. Burden of proof. In a special plea of non est factum, alleging that the note in controversy was altered after its execution and delivery by increasing the amount for which it was given, the burden of proof is upon the defendant to establish the alteration.</p> <p>Cases cited: Brown v. Phelon, 2 Swan, 629; Bumpass v. Timms, 3 Sneed, 459; Carter v. Turner, 5 Sneed, 178.</p>

<p>1. Office axd Officees. Constable's return. What it must state. A constable’s return, under' oath, that he had executed a summons upon two defendants, supported by the justice’s endorsement of judgment thereon and the issuance of execution, cannot be overturned by the equivocal denial of one of the defendants that he had not been served with notice of the suit.</p> <p>2. Eecoees of Justice’s Coubt. Sow construed. Practice. Where the caption of the judgment embraces the names of both defendants, and the term “defendant” is employed in the body thereof, such term must be construed as referring to the names used in the caption.</p>

<p>FROM HAWKINS.</p> <p>Appeal from the Circuit Court. R. R. Butler, Sp. Judge. .</p>

<p>FROM HAWKINS.</p> <p>From the Circuit Court at Rogersville.</p> <p>No record.</p>

<p>Pbactice. Judgment. When not final. A judgment sustaining a demurrer to a declaration with leave to plaintiffs to amend, is not final, and no appeal will lie therefrom unless the record shows a peremptory refusal to amend, and judgment of dismissal and for costs against them.</p> <p>Cases cited: Joslyn v. Sappington, 1 Tenn., 173; State v. Dillon, 3 Hay., 411; Butcher v. Palmer, 4 Col., 248; Carney v. Murphy, 2 Baxter, 340; Sumner v. Bowers, MS., Nashville, 1872.</p> <p>Code cited: Secs. 2970-71.</p>

<p>EEOM CAKTER.</p> <p>From the Chancery Court at Elizabethton. H. C. Smith, Chancellor.</p>

<p>1. Jurisdiction or County Court. In sale of land. To what confined. The County Court cannot entertain an executor’s bill to sell the land oí his testator, its jurisdiction in this respect being limited to decrees for partition, or sales for partition when such sales are manifestly to the interest of tenants in common.</p> <p>2. Champerty. What not. An agreement by a party to attend to the prosecution of a suit for another, and to compensate himself out of the amount that might be recovered, is not champertous.</p> <p>Case cited: Moore u. Trustees of Campbell Academy, 9 Ter., 115.</p> <p>Code cited: Sec. 1781.</p>

<p>PROM GREENE.</p> <p>No record to be found.</p>

<p>PROM HAWKINS.</p> <p>From the Chancery Court at Rogersville. ' H. C. Smith, Chancellor.</p>

<p>FROM GUIDES.</p> <p>From the Chancery Court at Greeneville. H. C. SMITH, Chancellor.</p>

<p>FROM HAMILTON.</p> <p>From the Chancery Court at Chattanooga.</p> <p>No record found.</p> <p>Motion to dismiss appeal.</p>

<p>EROM</p> <p>Erom the Chancery .Court at</p> <p>No record found.</p>

<p>5\ROM</p> <p>No record found.</p>

<p>Sale op Wipe’s Interest nr Land. Proceeds, personalty when. Implied trust. A femme covert consented on privy examination to a decree for the sale of land, inherited by her and others, for partition among them. Her husband and another became the purchasers, and the sale was duly confirmed — the decree vesting the husband with the title to one-half of the land. The husband credited his purchase notes with the wife’s share of the proceeds of the sale. She was not present in court, and did not consent by privy examination to the decree vesting the title to one-half the land in the husband. Afterwards the husband’s interest was sold under execution, and purchased by the defendant Cope; Held, That the sale of the wife’s interest was a conversion of it into personalty; that the husband had no right to appropriate her interests in the notes executed in this way for the purchase money without her privy examination as required by sec. 2483 of the Code, and that the purchaser at the execution sale took the land encumbered with the implied trust in her favor for the amount so appropriated by the husband.</p> <p>Cases cited: Thomas v. Walker, 6 Hum., 93; Jones v. Wallcup, 5 Sneed) 135; Click v. Click, 1 Heis, 607.</p> <p>•Code cited: Sec. 2483.</p>

<p>FROM</p> <p>From the Circuit Court, at-.</p> <p>No record can be found.</p>

<p>FROM HAMBLEN,</p> <p>From the Chancery Court at Morristown. H. C. Smith, Chancellor.</p>

<p>B token on Peoo]?. Upon whom to show nature of delivery, where deed is in possession of the conveyee. The possession of a regularly executed deed to land hy the conveyee is prima fade evidence of its absolute delivery, and in a contest between him and the conveyor as to the nature of the delivery, it devolves upon the latter to rebut this presumption, and show that it was conditional.</p>

<p>PROM BRADLEY.</p> <p>Erom the Circuit Court at Cleveland.</p> <p>No record found.</p>

<p>Estoppel. Does not apply where title derived .from independent source. One of a family of brothers and sisters, assuming to own the tract of land upon which they lived, conveyed it to plaintiff, who afterward brought ejectment against the vendor. Both parties dying, the suit was revived in the names of their respective heirs, the defending heirs not objecting to the revivor against them as the heirs of their deceased brother. On the trial they offered evidence to .show that they derived their title to their share of the land as tenants in common by descent from their father, and not their brother, who, like themselves, had only an undivided interest in the common tract. The evidence was rejected, and the Judge charged the jury that the deed of the original defendant was conclusive upon him, and therefore upon his heirs, the present defendants.</p> <p>Held (1), the proffered evidencie was improperly rejected; (2) the doctrine of estoppel only applies where the defendants derive title from the conveying ancestor, but where they claim from an independent source the rule is otherwise; and (3) assuming the truth of the evidence offered, the defendants were only concluded by the deed of their brother as to his interest in the tract derived from their father.</p> <p>Case cited: Boyston v. Wear et.al., 3 Head, 8.</p>

<p>PROM SULLIVAN.</p> <p>From the Chancery Court at Blountville. H. C.. Smith, Chancellor.</p>

<p>Pbactice oe Supreme Court. Appeal 'bond,-recitáis not sufficient as to when. To entitle a party to an appeal the record must show that an appeal was prayed for and granted by the court before whom the cause was tried. The recitals in the appeal bond filed in the cause, and copied in the record to this effect áre not sufficient.</p>

<p>FROM BRADLEY.</p> <p>From the Circuit Court at Cleveland. J. B. Hoyl, Judge.</p>

<p>No record can be found.</p>

<p>FROM ANDERSON.</p> <p>From the 'Circuit Court at Clinton. : T. C. Lyon, Special Judge.</p> <p>No counsel marked.</p>

<p>EROM</p> <p>Prom the Chancery Court at-.</p> <p>No record found.</p>

<p>FROM HAMILTON.</p> <p>From the Circuit Court at Chattanooga.</p> <p>Río record found.'</p>

<p>1. Sheriff’s Deed. Discrepancy between and recitals of record. Parol proof. When not admissdble to correct. A sheriff’s deed recites that a justice’s execution issued November 21, 1858, and levied upon land December 9th following, was based on a similar execution from another (McMinn) county, issued November 15, 1859, and certified April 27, 1860; also recites the condemnation, order, and sale of the land, and the return of the venditioni exponas unsatisfied, because of the exhaustion of the proceeds of sale in satisfaction of previous levies; also the issuance and levy of another execution upon the land in controversy, and its sale and purchase thereunder by plaintiff, the claimant under the deed aforesaid. These recitals agree with 'those in the transcript of the proceedings in the Circuit Court, under which the land was condemned and sold, except as to the date of the issuance and levy of the first execution, the transcript showing it was issued May 9, 1860, and levied the day following: Held, the discrepancy between the deed and transcript with respect to these recitals could not be corrected by parol proof.</p> <p>2. Same. Practice. Justice’s execution freon another county. The execution from McMinn county not having been certified for transmission within thirty days from its issuance, was a nullity.</p> <p>3. Same. Wien void. As the deed under which plaintiff claims shows the subsequent proceedings to have been based on this execution, and the new execution upon which the condemnation was predicated to have been issued and levied after the issuance of the McMinn county execution but five months before its certification, said deed communicated no such title to the plaintiff as to justify recovery in ejectment.</p>

<p>1. Forcible Entry aítd Detainer. Issue involved in. The action of forcible entry and detainer involves the possession and not the title.</p> <p>2. Same. Lawfulness of possession. What evidence of. A writ of possession in favor of defendant from a court of competent jurisdiction is competent evidence of the lawfulness of his possession, without producing the whole record; but the return of the officer is not conclusive, and may be rebutted by proper testimony.</p> <p>3. Same. Writ of possession Who embraced in. Such a writ does not embrace one not specially named therein, who, being in possession when the suit in which the writ issued was brought, was not made party thereto; but the presumprtion in the absence of proof to the contrary is that he occupiied the land pendente lite, in which case he was a proper subject for removal under the writ.</p> <p>Case cited: Wallen v. Huff, 3 Sneed, 82.</p>

<p>CEnvirNAi Law. Grand jury, foreman of. It is no objection to an indictment that it is endorsed a true bill by one of the jury as “special foreman of the grand jury,” when his appointment as such pro tem. appears of record, though the record fails to show the absence of the regular foreman, or that he was excused or discharged, this being presumed the contrary not proven.</p> <p>Case cited: Perdue v. The State, 2 Hum., 494.</p> <p>Code cited: Secs. 4020, 5093.</p>

<p>Cbiminal Law. Jury. Misconduct of officer in charge of jury. Duty of. Pacts: After the evidence was closed, and the jury were in charge of an officer, they were seated on the side of a street, separated into squads of three or more, with persons standing around and passing hy in the street. The officer was at a distance of twelve steps, with his back turned, engaged in conversation with other persons, and while so engaged a squad of the jury is approached and talked to. Though the officer and juror talked to, both make affidavits that the person who approached the jury was drunk and -did not mention the case to the jury, yet the court say: “ These facts make out a strong case of misconduct by the officer, and deserve to be punished by the courts, and we think this is a clear case of misconduct in the officer' and the jury, and that the court erred in refusing a new trial.”</p> <p>Cases cited: Hines v. The State, 8 Hum., 597; McLain v. The State, 10 Yer., 241; Stone v. The State, 4 Hum., 38.</p>

<p>CRIMINAL Law. Jury. Misconduct of. What voill constitute. During the trial the jury were taken to board at a very small two-room house, at which place the prosecutor and his two daughters (both witnesses tor the State) also boarded, and it is shown by affidavit that while at their meals the jury were necessarily separated, part eating with the officer and part in the next room with the prosecutor and witnesses. Although the prosecutor and witnesses made affidavits of their noninterference with the jury, and although it is not shown that the jury were tampered with from any source, yet this conduct and circumstances are held by the court to be so suspicious, without the most ample proof, as to vitiate the verdict of the jury entirely.</p> <p>Cases cited: Hines v. State, 8 Hum., 597; McElrath v. State, 2 Swan, 382.</p>

<p>FROM MCMINN.</p> <p>Appeal from the Circuit Court. John. B. Hoyl, Judge.</p>

PROM KNOX. From the Chancery Court at Knoxville. STATEMENT OP CASE. The complainant, a college incorporated in this State under the laws thereof, has been exercising its franchise for a long time past as an institution of learning with its. college buildings on a lot of ground just outside of and adjoining the corporate bounds of the city of Knoxville, and in full view of the city, under an act of Congress of July 2, 1862.

<p>PROM</p> <p>From the Circuit Court at -.</p> <p>No record found.</p>

<p>PROM GARTER.</p> <p>From the Circuit Court at Elizabethton.</p> <p>No record found.</p>

<p>I. Cbimiítal Law. Affidavit for continuance. Wien the defendant goes into trial voluntarily and makes no application for continuance until after the jury is sworn, an affidavit to the effect that he was surprised on account of the absence of a witness is not good, the prisoner giving no excuse for entering on the trial and not swearing that he believed tire witness was in attendance, or that he did not know he was absent, though the witness be properly summoned.</p> <p>& SAME. Jury misconduct of. What not. The mere fact that the jury were kept and took their meals at the house of a person who aided the prosecution in selecting the jury, when no tampering with them is shown, or any iact showing intercourse hy him with the jury is no ground for setting aside their verdict.</p> <p>3. Same. Horse stealing. Charge of courts Where a defendant has been’ convicted at a former term of the court of horse stealing, and his punishment commuted from death to imprisonment, and a new trial is granted, it is not error upon a subsequent trial for the court to charge the jury that they have the power to commute the punishment, the former verdict is no bar to a different punishment by a subsequent verdict, the crime being one indivisable offense, a new trial is tried by a second jury as if there had been no previous trial.</p> <p>Case cited: Turner u. The State, 3 Heis, 452.'</p>

<p>No record found.</p>

<p>Lien on Land on Justice’s Execution. Mow it operates. The levy of a justice’s execution upon land, creates a secret lien in favor of the plaintiff in the execution, hut it does not' operate as notice to the public, or acquire the dignity of Us pendens, until the papers in the case are returned to the Circuit Court for condemnation of the land, as required by the statute. Where, therefore, a justice failed to return an execution of this kind at the term of the court next succeeding the levy, but allowed that term to intervene, and then returned it 'to the next term, and in the meantime the complainant bought the land, and took a deed for the same in good faith, and without notice of the levy: Meld, that he took the land discharged from the lien of the levy.</p> <p>Case cited: Anderson v. Talbot, 1 Heis., 407.</p> <p>Code cited: Sec. 3080.</p>

<p>1. Chancery Practice. lies judicata. Order of dismissal, effect of. Vendor’s lien. A vendor of land, after judgment at law for the unpaid purchase money, instituted a chancery suit to enforce his lien, and obtained a decree fixing said lien, ascertaining the amount then due, and providing for a sale of the land. No further steps having been taken, the cause remained in this condition upon the docket seven years, when it was dismissed for want of prosecution. Afterwards the chancery district was changed, and the vendor’s administrator applied to the new court, within the jurisdiction of which the land was situated, setting forth these facts and asking for a decree of sale, to which a demurrer was filed, relying upon the dismissal in the other court as a bar to the suit in this.</p> <p>■Held, 1. That if the order of dismissal was legal, its only effect was to cut off further proceedings in the court in which it was rendered, and that it did not annul or change the rights of the party as fixed by the decree. 2. That, unlike a decree dismissing a cause upon'its merits, it could not operate as a bar to a new suit, and that, conceding the order in question to have abrogated all the proceedings in the cause, the vendor’s lien was still alive, and could be enforced by the new proceeding without regard to the order, and without first exhausting his remedy by execution on his judgment at law.</p> <p>2. Chancery Pjoeading and Practice. Answer withdrawn and demurrer allowed. When. A chancellor may, at his discretion, permit the withdrawal of an answer by a defendant and allow a demurrer.</p> <p>Case cited: Lowe v. Morris, 4 Sneed, 69.</p>

<p>Criminal Law. Obtaining goods wider, fake pretenses. What is not. Where the defendant has purchased goods, representing falsely that he had in his office - a certain quantity of property liable to his debts, as a means of obtaining credit, this -will not warrant an indictment for obtaining goods under false pretenses, under the statute. Common prudence and caution would require the prosecutor to resort to other information concerning these facts.</p> <p>Cases cited: Chapman v. State, 2 Head, 36; MeCorlde v. State, 1 Col., 333.</p> <p>Code cited: Sec. 4703.</p>

<p>No record found.</p>

<p>EJROM JEEEERSON.</p> <p>Appeal from the Circuit Court. James H. Randolph, Judge.</p>

<p>FROM POLK.</p> <p>Erom the Chancery Court at Benton.</p> <p>No record found.</p>

<p>CRIMINAL Law. Malicious shooting. Indictment for. Day need not he stated. When. An indictment for malicious shooting need not state the day on which the offense was committed, where the day does not enter into and become a part of the offense. Merely stating the year will be sufficient, if it be prior to the finding, and within the statute of limitations.</p> <p>Case cited: King v. State, 3 Heis., 148.</p>

<p>1. Cbimenai, Law. Evidence to impeach a witness. In order to impeach a witness by proving that he made statements out of court contrary to what he has testified to in court, the time, place and person to whom the declarations were made must be stated, and also the words or their substance. When all of this is put to the witness and he answers that he does not recollect, evidence then may be given to prove that the witness did say what is imputed to him.</p> <p>Case cited: Nelson v. State, 2 Swan, 237.</p> <p>2. Same. Same. Evidence of lewdness. To what time limited. To sustain a prosecution for lewdness and adultery, acts of improper or indecent familiarity between the parties, both before and' after the finding of the presentment, may be proven, to be considered by the jury in connection with the evidence of facts, within twelve months before presentment, from all of which the jury must be satisfied that the offense has been committed within twelve months before the finding of the presentment, or they must acquit, although the evidence may be of such a character as to satisfy them that the offense has been committed since presentment or more than twelve months before.</p>

<p>1. Murder. Accessory before the fact. What proof is necessary. Upon the trial of an accessory before the fact, the principal not having been previously convicted, the first thing which devolves upon the prosecution is to prove before the jury that the principal was guilty of the murder, and that his crime was murder in the first degree. This' proof is a necessary prerequisite to the conviction of the defendant as an accessory before the fact.</p> <p>2. Competency oe previous declarations and threats oe the principal. It results from the nature of the case, involving as it does a double trial, that in ascertaining the guilt of the principal, which is the preliminary inquiry, the same evidence is competent that would be admitted if the principal were on trial. The declarations and threats of the principal, made before the deed was committed, are competent; not because they fix guilt upon the defendant as accessory, but because they look to the guilt of the principal.</p> <p>Cases cited: Hensley v. The State, 9 Hum., 243; Sible v. The State, 3 Heis., 137.</p> <p>3. Coneession oe dependant. Where the defendant was under arrest on a charge of being implicated in the murder, and was so situated that she could see and understand the excited temper of the crowd which surrounded her, and where the sheriff excited in her fears of imminent-danger, but held out obscurely that there was hope'in an immediate confession: Held, that the court below erred in admitting the confession as competent evidence.</p>

<p>PROM KNOX.</p> <p>Appeal from the Circuit Court at Knoxville. E. T. Hall, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court. O. P. Temple, Chancellor.</p> <p>No record found.</p>

<p>1. Title Bond. A purchaser of land sold under' execution as the property of a debtor holding an unregistered title bond thereto, acquires no legal title to the same, nor can the equitable interest in the land be reached in this manner, unless the pleadings in the suit are framed "with reference to such interest.</p> <p>Case cited: Lane v. Marshall, 1 Heisk., 30.</p> <p>2. Constitutional Law. Attachments. Who may issue. Teste. Practice. Legislation authorizing the Chancellor of this State to issue writs of attachment is-not in conflict with art. 6, sec. 12 of the Constitution requiring all writs, etc., to bear teste, and be signed by the respective clerks. Nor is it necessary to the validity of an attachment so issued that it should be tested as of the term preceding its isuance.</p> <p>Case cited: Morris v. Davis, 4 Sneed, 452.</p> <p>Code cited: Secs. 3463-65, 3474-7.</p> <p>3. Wbits oe Attachment. When not necessary to contain date of issuance.' Practice. Where a Chancellor’s fiat shows that an attachment has been granted and issued, the date of its issuance, and when return- • able, and the sheriff’s endorsement on the writ shows when it was received and the date of the levy, the omission of the date of issuance in the writ itself is not material.</p> <p>4. Notice. Who not affected by an unregistered deed. A creditor is not affected by notice of an unregistered conveyance of his debtor’s property.</p> <p>Case cited: Stanley v. Nelson, 4 Hum., 484.</p> <p>Code cited: Sec. 2075.</p>

<p>PROM GREENE.</p> <p>Appeal from a judgment of the Circuit Court at Greeneville, rendered at its February term, 1873. Hon. E. E. Gillenwaters presiding.</p>

<p>• Makriage. When itMahle. Mutual consent is the basis of the marriage contract, and when this has been given by either party under duress, the marriage is voidable.</p> <p>Cases cited: McKinney v. Clark, 2 Swan, 321; Cole v. Cole, 5 Sneed, 57.</p>

<p>Divorce A “vinculo. Alimony. How allowed. In decreeing a. divorce • a vineulo, the court may award the wife all or any portion of the husband’s estate, whether in specie or otherwise, ,and without regard to its location in this or another State, as the circumstances of .the case may demand; hut it can make no order binding his future services or earnings, as in cases of divorce a mensa.</p> <p>Case cited: Chenault v. Chenault, 5 Sneed, 248.</p>

<p>EROM GREENE.</p> <p>Appeal from a decree of the Chancery Court at Greeneville,. rendered at its November term, 1872. Hon. H. C. Smith presiding.</p>

<p>KKOM WASHINGTON.</p> <p>Appeal from a judgment of the Circuit Court at Jonesboro, rendered April 21, 1873. Hon. E. E. Gillenwaters presiding.</p> <p>No counsel marked.</p>

<p>FROM GREENE.</p> <p>Appeal from a judgment of the Circuit Court at Greeneville, rendered November 9, 1872. Hon. E. E. Gillenwaters, presiding.</p>

<p>' 1. Yendoe’s Lien. Presumption where title is retained. The presumption is that the vendor of land, keeping the title in himself, intends to retain a lien upon the land sold until the purchase money is paid.</p> <p>2. Same. Waiver of. By whom, to he shmm. What not sufficient evidence of. It devolves upon the vendee to show a waiver of the lien. The taking of a note on a third party at the time of the sale is not of itself sufficient evidence of such waiver.</p> <p>Oases cited: Campbell v. Baldwin, 2 Hum., 248; Marshall v. Christmas, 3 Hum., 616; Trent v. Kyle, 1 Heisk., 663; Denny v. Steakly, 2 Heisk., 156.</p>

<p>FROM M’MINN.</p> <p>Appeal from a decree of the Chancery Court at Athens, rendered at its November Term, 1872. Hon. D. M. Key, presiding.</p>

<p>Res judicata. When conclusive. Where a plea to a declaration 'in trespass avers a former judgment for the same cause of action, and the replication fails to deny that the cause of action in both suits was the same, but merely states that the former suit was not prosecuted for certain parts of the same cause alleged in both declarations, and that no recovery was had thereon: Held, insufficient on demurrer.</p> <p>Case cited : Carraway v. Burton, 4 Hum., 108.</p>

<p>PROM. HANCOCK.</p> <p>Appeal from a judgment of the Circuit Court at Sneedville, rendered at its January term, 1871. Hon. E. E. Gillenwaters presiding.</p>

<p>Landlobd and Tenant. Contract for delivery of caop. At whose risk until complied with. Where corn was agreed to be delivered by a tenant to his landlord at a certain place, in payment oí his rent, until it is tendered or delivered there in compliance with the contract, it is at the risk oí the tenant.</p>

<p>FROM IVASHING-TON.</p> <p>Appeal from the Chancery Court. H. H. SMITH, Chancellor.</p> <p>No record found.</p>

<p>Chajstceby Pbactice. Answer. Effect of when, not responsive. A statement in his answer by a surety sought to be made liable for the debt of his principal, that he notified complainant’s intestate, as the owner thereof, to sue said principal at a time when he was solvent, but which he failed to do, is a good defense, but not available as such without evidence to support it. The statement to this effect in his answer is not evidence because not responsive to any charge in the bill.</p>

<p>FROM KNOX.</p> <p>Appeal from a decree of the Chancery Court at Knoxville, rendered April 6, 1872. Hon. O. P. Temple presiding.</p>

<p>PROM 'WASHINGTON.</p> <p>A.ppeal from a judgment of the Circuit Court at Jonesboro — rendered.</p> <p>No counsel marked.</p>

<p>FROM M’MINir.</p> <p>Appeal from a decree of the Chancery Court a Athens, rendered at its November Term, 1872. Hon. D. M. Key, presiding.</p>

<p>1. Will. Intention of testator to govern. When. In construing and performing the provisions of a will, the intention of the testator, as clearly ascertained by his language, must prevail, if in doing so no rule of law or public'policy be violated, due regard being had to the precedents establishing the estates taken by beneficiaries under a will, as well in extent and quality as in the mode of enjoyment.</p> <p>2. Same. Life tenant. Perishabh properly. Rule as to. Generally, a life interest in perishable property remainder over entitles the life-tenant to the' interest on the fund derived from the sale of the property so long as his estate lasts, and when it ceases it goes to the remainder-man. But when the testator indicates that the life-tenant should enjoy the property in specie, the remainder-man is only entitled to what is left when the life estate falls.</p> <p>Oases cited: Woods v. Sullivan, 1 Swan, 506; Forsy and Wife v: Luton, 2 Head,*185-6-7.</p> <p>3. Same. Construed. A clause in a testator’s will provided as follows: “ The residue of my estate, real and personal, I give, bequeath, and dispose of as follows, to-wit: To my beloved wife Mary, the land and appurtenances situated thereon, known and described as the lot on which I now reside, in the town of B., in the County of Greene, etc., together with thirteen shares of capital, stock that I have in the E. & Y. R. R., all loaned money, and all live stock, with what money I now have in my possession, no-w possessed by me, during the term of her natural life, or remains my widow; but in the event her relation in life should become changed by marriage, she is to have all household property, and all notes that are executed in her name and after her death, or in the event of her marriage, the remainder of my estate to be devided equally among my heirs, etc., Held, that the widow is entitled to the occupancy and use of the realty and its appurtenances, the possession and use of the live stock, with absolute property in the profits of its use and its products and increase, if any, to the interest on all loaned money and dividends on stock; but in the event of marriage she is to retain the household property and notes taken in her name for the produce of property sold, or for money loaned out of dividends and interest collected during widowhood.</p>

<p>1. SUMMARY Proceedings. Sheriff’s return. When conclusive. Where an execution tos returned endorsed through mistake fully paid, where in fact a part only had been received, to exonerate the sheriff from liability a sufficient reason for failure to collect the balance must be shown by leave of court to amend and correct the return before entry of the motion for judgment against him, otherwise it is conclusive upon him.</p> <p>Case cited: Mullins v. Johnson, 3 Hum., 396; Hill v. Hinton, 2 Head, 124. '</p> <p>2. Same. Same. ' Substitution. Where the officer’s liability in such a case has been fixed by a court of competent jurisdiction, to entitle him to substitution to the rights of the execution creditor under the execution, he must first show that the judgment has been satisfied.</p> <p>3. Chancery Pleading. Cross-bill. Set-off. A legal demand having no-connection with the equities set up by a bill can not be made the subject of a cross-bill. Nor can one defendant set-off against the claim of a co-defendant, properly presented by the pleadings, a demand upon him in a representative character.</p> <p>Cases cited: Harwell v. Wosham, 2 Hum., 524; Smith v. Alexander, 4 Sneed, 482.</p>

<p>FROM WASHINGTON.</p> <p>Appeal from a judgment of the Circuit Court at Jonesboro, rendered at its - term, 1873. Hoh. E. E. Gillenwaters presiding.</p>

<p>1. Resulting Tbust. Parol agreement not affected by statute of frauds or reg~ istration laws. When. Where a husband gets control of his 'wife’s funds, not by virtue of his marital rights, but under an express promise to invest the same in land for her use, and afterwards purchases land, taking the title to himself, the law attaches a trust for wife’s benefit to the title so acquired to the extent of the application of her money in the purchase, and though the husband’s agreement rests in parol, it is not affected by the statute of frauds or the registration laws.</p> <p>Cases cited: Embry v. Robinson and Wife, 7 Hum., 444; Powell v. Powell, 9 Hum., 477; Pritchard v. Wallace, 4 Sneed, 405 ; Click w. Click, 1 Heis., 607; Sandford v. Weeden, 2 Piéis., 71.</p> <p>2. Same. What necessary to establish. To establish a resulting trust proper, the trust must arise at the date of the purchase, and attach to the title at the time. Accordingly, where a husband procures his wife to join him in a mortgage of her land, with the verbal stipulation that if said land was sold to pay the debt he should convey to her his land, and alterwards sold the mortgaged land and applied the proceeds to the payment of the debt upon it and his other debts, and on the same day, in pursuance of his agreement, conveyed his land .to a trustee for her use, which was registered subsequent to the levy of an execution upon the same by a creditor of the husband:</p> <p>Held, that the lien of the levy is superior to the rights of the wife under the conveyance.</p> <p>Cases cited: Dudley i>. Bosworth, 10 Hum., 0; Mofiitt v. McDonald, 11 Hum., 457; Gee v. Gee, 2 Sneed, 395.</p>

<p>1. Bints aktd Notes. Release. Parol evidence not competent to complete written agreement. A written release is necessary to discharge one of several obligors from joint liability on a written contract; consequently, where a credit was entered on a note by parties in favor of one of several makers “ as his part, principal and interest, of this note to this date,” and the memorandum was not signed :</p> <p>Held, that of itself this entry did not operate as a release to the party in whose favor it was made, and that parol evidence was not admissible to show that it was the intention and understanding of the parties at the time that it should have that effect.</p> <p>Code cited: Secs. 1804-5.</p> <p>2. PnEADnsre. Nil debit bad plea. When. Failure of consideration cannot .be shown under the plea of nil debit in an action on a promissory note. Such a defense is in the nature of a cross right, and to be made available, must be so pleaded.</p> <p>Code cited: Sec. 2918, sub-secs. 2 and 3.</p>

<p>1. Confederate Notes. Their value to he measured hy TJ. 8. treasury notes. In a suit to recover the value of Confederate notes they are to be estimated at their value in United States treasury notes, not in gold.</p> <p>2. Variance between declaration and proof. Where a declaration avers the payment of money to the defendant, to be applied in a particular way, and the proof shows the payment to have been made in Confederate treasury notes, it is doubtful whether this discrepancy does not constitute a variance fatal to the case, and the plaintiff is advised to amend his declaration in this respect.</p>

<p>1. Constitutional Law. Judgment in another State. When conclusive. Under see. 7, art. 4 of the Federal Constitution and accordant Federal legislation, it is settled that a valid judgment rendered by a court in one of the United States having jurisdiction of the person and subject matter is conclusive in every other State.</p> <p>Cases cited: Stegall v. Wyche, 5 Yerg., 83; Estes v. Kyle, Meigs’ R., 34.</p> <p>2. Same. Same. Not conclusive. When. This principle is not applicable, however, to instances where the judgment is against a citizen of another State, without service of process under the laws of the State in which it is rendered, dispensing with personal service. In such cases the judgment is not conclusive.</p> <p>Case cited: Brown v. Brown & McCullough, 2 Sneed, 435.</p> <p>3. Same. Same. Same. The rule is subject to the further qualification that if the judgment was procured by the fraud of the party obtaining it, it may be impeached in' this State for the same reasons that would justify a court of equity in enjoining a judgment at law here. Case cited: Coffer v. Neely, 2 Heis., 304.</p> <p>4. Chancery PíeadiNG and Pbactice. Jurisdiction to enjoin judgment at law. Surprise. Equity will enjoin a judgment in this State in cases where the defendant in the judgment was ignorant of the fact in question pending the suit, or was prevented from making his defense by surprise, in the legal acceptation of that term, occasioned by the misconduct of the opposite party, unmixed with negligence on his part.</p> <p>5. CONTRACT. Construction of. Promissory note. A note payable on its face, when due in current bankable funds, is disehargable in such funds as are current and bankable at the time of its maturity, although the consideration originally given for it was Confederate treasury notes.</p> <p>The case of Thorington v. Smith cited, and held not to apply.</p>

<p>Ejectment. Execution sale. Recovery fatal. When. In ejectment, where plaintiff claims under sheriff’s deed, which recites that the lot in controversy was sold as the property of one other than the defendant, the failure to connect the defendant with the execution sale, or to establish any privity whatever between him and the party as whose land it was sold, is fatal to plaintiff’s recovery.</p>

<p>Chancery Practice. Annulling judgment at law. Surprise. The rule governing a court of chancery in annulling a judgment at law on the ground of surprise in the introduction of testimony, is more stringent than in cases where a new trial is demanded there for the same cause.</p> <p>Cases cited: Morrow v. Hatfield, 6 Hum., 108; Sharp v. Treece, 1 Heis., 447.</p>

<p>FROM POLK.</p> <p>Appeal from the Chancery Court.</p> <p>No counsel marked.</p>

<p>Sale oe Land. Affidavit of lost judgment. To whom to he made. It is error in the Circuit Court to condemn and order the sale of land levied upon by execution on a magistrate’s judgment, where the record of the judgment and the papers in the cause are lost, and supplied by the affidavit of the magistrate by whom it was rendered,.he being at the time out of office. In such cases the affidavit should be made by the incumbent then in office.</p> <p>Case cited: Chaffin v. Garret & Alderson, MS.</p> <p>Code cited: Sec. 3070 a.</p>

<p>FROM M’MINN.</p> <p>Appeal from the Chancery Court. D. M. Key, Chancellor.</p>

<p>Redemption op Land. What not sufficient excuse for failure to redeem within the time allowed. 'Defendant purchased complainant’s land at execution sale, who, a few days thereafter, executed a written agreement to convey him his equity of redemption therein in consideration of defendant becoming jointly bound with him on another’s bond. Shortly after this defendant applied for specific execution of this contract, and obtained attachment and injunction, &c., insisting in his bill that it vested the equity in him absolutely, while complainant claimed that it operated only as a mortgage. Pending the suit, the time for redemption expired, and afterward the Chancellor sustained complainant’s view of the contract, and he was directed to pay defendant the sum for which the latter was liable on the bond, a tender of which complainant accordingly made and paid into court. The complainant now offers to redeem the land from the defendant, alleging as a reason for not having done so within the time allowed, the existence of the suit just mentioned, by which he was prevented from selling the land to realize means for redemption.</p> <p>Held, that although a case of hardship, the excuse was not sufficient, and complainant not having complied with the statute, his right of redemption was gone, but that he was entitled to be repaid the amount tendered and decreed to defendant in satisfaction of his liability on the bond.</p>

<p>CORPORATION. Banks. Properly not exempt from taxation. When. Where a clause in the charter of a bank exempts from taxation a building which the company are allowed to erect under the charter for the purpose of carrying on the business of the bank, if any part of such building be not so occupied, but is leased out, the exemption will reach and cover only so much of the building as is necessary for the use of the bank.</p>

<p>FROM SHELBY.</p> <p>No record to be found.</p>

<p>PROM SHELBY.</p> <p>From the Criminal Court. JNO. B,. Flippin, Judge.</p>

<p>Cbiminai, Law. Practice. Attorney General. Pro tem. While a conviction would be void based upon an indictment signed and preferred by a person acting as Attorney General pro tem, without being regularly appointed, yet, under sec. 5242 of the Code, no reversal can be had for such error where the prisoner has submitted to a regular trial below without objection. Under such circumstances the Supreme Court will presume, in the absence of anything to the contrary, that the appointment was regularly made.</p> <p>Code cited: Sec. 2542.</p>

<p>1. CrtmNAI. Law. Less than twelve months imprisonment. Forgery. Sec. 5232a of the Code, which provides for the punishment of felonies, leaving it discretionary with the jury to fix the punishment at less than twelve months in the county jail, is construed to apply in this respect only to cases where twelve months in the penitentiary is fixed as the minimum punishment, and will not apply to a case of forgery. Code cited: Sec. 5232a.</p> <p>2. Same. Failure to furnish indictment to prisoner. To entitle the prisoner to the benefit of a failure to furnish him with a copy of the indictment, the record must show that the copy was not furnished, otherwise the Supreme Court will presume that it was furnished or waived.</p> <p>Case cited: ífobes v. The State, 6 Cold, 297.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Criminal Court. Juo. R. FlippiN, Judge.</p>

<p>No record found.</p>

<p>Principal and Stjretv. Bilk and notes. Notice. How it must be given to discharge surety. Upon the ground of notice to sue, a surety can only be discharged in a law court by giving the notice prescribed in sec. 1968, and proving it in the very mode required by sec. 1969 of the Code.</p> <p>Cases cited: Miller v. Childress, 2 Hum., 320; Thompson v. Watson, 10 Yer., 362.</p> <p>Code cited: Secs. 1968-9.</p>

<p>TAXATION. Capital stock. Charter exemption. An exemption from taxation contained in a railroad charter, embracing capital stock, with the road, fixtures and appurtenances, does not cover a hotel building erected within the space which the company is entitled to hold for right of way, though it was built under a lease from the company, and is a convenience to passengers and a means of profit to the road. It does properly include ticket offices in the same building.</p>

<p>CbimiítaXí Law. Carrying weapons. Under the 3d sec. of sec. 4759 b, e, d of the Code, a justice of the peace is exempt from punishment for carrying weapons when engaged in taking a prisoner, charged with an offense, to jail, and he may still wear the weapon on Ms way home if he return in a reasonable time after depositing the prisoner. This exemption only applies, however, when the magistrate is actually engaged in taking a prisoner to jail or returning home immediately after having discharged such duty.</p> <p>Code cited: sec. 4759 b, e, d, sub-sec. 3.</p>

<p>No record to be found.</p>

<p>FROM LAUDERDALE.</p> <p>Appeal from the Circuit Court.</p>

<p>■CbimiNAX, Law. Jwry. Newspaper account will disqualify. When. Jurors are not impartial who have formed or expressed an opinion, either from hearing the evidence, or from hearing others detail it who did hear it, or from conversing with those who professed to know the facts and to give a detail of them, or from hearing such persons in conversation with others giving such details, and a juror who has thus formed or expressed an opinion, cannot render himself impartial by expressing his belief, on his examination, that he can render a fair and impartial verdicb according to the law and the proof, notwithstanding the opinion then in his mind. A trial by such a jury is not a fair and impartial one. An impartial juror is one who enters the box indifferent between the parties, indifferent in feeling and in opinion. Either partiality or prejudice, in the usual acceptation of these words, or an opinion based on the supposed facts, existing in his mind, renders it impossible for him to be indifferent, and, therefore, to be impartial. The. act of 1870-71 is therefore unconstitutional and void, which provided that no juror should be disqualified by any opinion which he may have, based upon any published account of the facts of the offense with which the prisoner is charged.</p> <p>■Oases cited: Eice ¶. State, 1 Yer., 432; McCowan v. State, 9 Yer., 192; Payne v. State, 3 Hum., 375 ; Brakefield v. State, 1 Sneed, 215 ; Nor-fleet v. State, 4 Sneed, 340.</p>

<p>1. Crimdstax Law. Pleading amd Practice. Lottery ticleetc. Sufficient description, etc. An indictment for the sale of lottery tickets -which merely uses the language employed by the act in creating and defining the offense is good, though it fails to set out the ticket, and aver where the lottery was to be drawn, or its name and purpose. The word “lottery” implies a game of hazard.</p> <p>Case cited: Meigs’ B., 421.</p> <p>Code cited: Sec. 4890.</p> <p>2. Same. Verdict sufficiently certain. When. Where the prisoner was indicted for selling lottery tickets in five cases, all being identical except in the day of sale, a general verdict of guilty in four cases will be sufficiently certain to predicate a judgment upon, they all being tried together.</p> <p>3. Same. Fine of over §50. Where the fine of $500 for the sale of lottery tickets has been peremptorily fixed by the Legislature, such act is not unconstitutional, and a fine, therefore, of more than $50, though it be not assessed by the jury, mil lie.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Criminal Court. PIN, Judge. JohN R. Flip-</p>

<p>1. Criminal Law. Uneommunicated threats. Character of deceased for violence. Instruction to jury. In trials for homicide, evidence of the violent and dangerous character of the person slain is admissible, without reference, it seems, to the question whether there is any evidence in the case showing that at the time of the killing the defendant was in danger, real or apparent, of death or great bodily harm at the hands of the deceased.</p> <p>Case cited: Hippy v. State, 2 Head, 217.</p> <p>2. Same. Same. Same. In trials for homicide, evidence of threats made by the deceased person against the prisoner, but not communicated to the prisoner before the killing, is admissible in all cases where the acts of the deceased in reference to the fatal meeting are of a doubtful character.</p> <p>Cases cited: Copeland v. State, 7 Hum., 479; Jackson v. State, ante; Nelson v. State, 2 Swan, 237.</p> <p>3. Chabg-e op Cotjrt. The refusal to instruct the jury upon the law of manslaughter. In 'trials for murder the refusal to instruct the jury upon the law of manslaughter is erroneous, because it discloses the opinion of the judge upon a material question of fact, and is hence an invasion of the province of the jury.</p> <p>Case cited: Pool v. State, 2 Baxter, 294.</p>

<p>FROM M’NAIRY.</p> <p>Appeal from the Circuit Courf. -, Judge.</p>

<p>FROM SHELBY.</p> <p>No record found.</p>

<p>No record found.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Criminal Court. Jno. R. Flippin, Judge.</p>

<p>PROM CARROL.</p> <p>Appeal from the Circuit Court.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Criminal Court. JNO. R. Flippin, Judge.</p>

<p>1. Cbimieae Law. Lottery tickets. Sale of many but one offense if they be attached. Where three lottery tickets are sold to one person at one time, and are attached by the paper on which they were printed, this constitutes hut one selling, and will support but one indictment.</p> <p>2. Same. Practice. Where the defendant, by agreement, submitted several cases for the same offense, and was found guilty in one, without it appearing of record in which case he was found guilty, he cannot object to the judgment being affirmed for uncertainty, since it was occasioned by his own agreement to submit them all at the same time. The court say, however, when several indictments are tried together, the jury should discriminate by numbers on the docket in their verdicts, and the court should see that it is done.</p> <p>3. Same. Same. Jury waived. Gompeteney of. The court say: We think it was competent for the defendant to waive the intervention of a jury.</p> <p>See France v. The State, ante.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Criminal Court at Memphis.</p>

<p>1. CRIMINAL Law. Evidence as to what an absent witness testified on the committing trial. Not admissible. It is error to permit a person to detail what he heard a witness on the committing trial state, when such witness is still living, because at the time of the trial he is not in attendance, being a resident of another State.</p> <p>Cases cited: State v. Atkins, 1 Tenn. (Overton), 229 ; Kendricks v. The State, 10 TIum., 479.</p> <p>2. Same. Same. A witness who has described a game or trick may state what he afterwards ascertained to be the name by which it was called. A professional gambler may state the mode of playing such game or trick.</p> <p>S. Same. Juror. When competent. Householder. A juror who resides in part of a house occupied by himself as a grocery, his widowed sister and her two children living with him, he paying the rent and furnishing the supplies, is a “ householder,” and a competent juror as to that question.</p> <p>4. Same. Playing cards. Larceny. Whan. Where a person is fraudulently induced to play at cards when he has no chance to win may be larceny, and in such 'case the game or trick is the device resorted to to get possession of the money or other stakes, and having no chance to win, falls within the principle decided in 3 Heis., 53.</p> <p>Case cited: Defrese v. The State, 3 Heis., 53.</p>

<p>Cobpobatioss. Constitutional law. Taxation. City has no right to levy tax where State -is estopped. When. The city of Memphis has no right to exact payment of a license tax of the Hernando Insurance Company and others for exercising their respective franchises within its corporate limits, when the State of Tennessee has exempted said corporations by the terms of their charters from a greater tax than one and one-half per centum. The State is, therefore, estopped from levying an additional tax, and the municipal government being merely an agency of the State, is also estopped.</p> <p>Cases cited: Nashville' v. Thomas, 5 Cold., 600; Union Bank v. The State, 9 Yerg., 490.</p>

<p>EROM SHELBY.</p> <p>Appeal from the Circuit Court. C. W. Heisicell, Judge.</p>

<p>FROM HARDEMAN.</p> <p>Appeal from the Circuit Court. Thos. J. Flippin, Judge.</p>

<p>Criminal Law. Misdemeanor in office. Indictment for profanity. In order to dismiss a justice of the peace from his office for profanity, etc., he must he indicted for the particular offense, and as a justice of the peace for a misdemeanor in office. An indictment against him as a private citizen will not support such a verdict.</p> <p>Code cited: Sec. 4817,18a.</p>

<p>Criminal Law. Special venire. Sheriff entitled to fifteen cents for summoning each juror. Costs. In all oases during the term of a court, if a special venire is required for the trial of a cause, and one is ordered by the court, the sheriff is entitled to a compensation of fifteen cents for each juror summoned.</p> <p>Code cited: 4564.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Criminal Court. Jno. R. Flippin, Judge.</p>

<p>EROM TIPTON.</p> <p>Appeal from the Circuit Court. Thos. J. Flip-pin, Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from the, Criminal Court. Jno. R. Flip-pin, Judge.</p>

<p>1. Capital Stock; and Shakes op Stocki-ioldbks. Distinction between. Capita] stock is the whole individual fund paid in by stockholders, the legal right to which is vested in the corporation, to he used and managed in trust for benefit of members. Shares of stockholders are the individual interests of a party in dividends, as they are declared, and the remote right to a pro rata distribution of the effects of the corporation on hand at the expiration of the charter.</p> <p>% Taxation. Shareholders in a moneyed corporation are liable to be taxed on the market value of their stock, regardless of the fact that the capital stock invested in the property of the corporation has also been taxed and the same has been paid.</p> <p>3. Tax on Income. A tax on income derived from property can be sustained, notwithstanding the property from which that income is derived has also paid a tax, whether the same in amount or not.</p> <p>Cases cited: Union Bank of Tennessee v. The State, 9 Yerg., 490, reviewed and re-affirmed.</p>

<p>EROM SHELBY.</p> <p>Appeal from the Criminal Court. Jiro. FlippiN, Judge.</p>

<p>Ceimiitax. Law. Corporations. Double punishment. Offenses punished by corporations may be punished by State also. Where a party has been convicted and punished for keeping a gaming house by the municipal authorities of a town or city, this is no bar to a prosecution for the same offense by the State.</p> <p>Cases cited: The State v. Reynolds, 4 Hay., 110; Meacher v. Mayor of Chattanooga, 1 Head., 74; Nolin v. Mayor of Franklin, 4 Yer., 163 j State n. Shelbyville, 4 Sneed, 176.</p>

<p>1. CbijiiítaIí Law. Assault with intent to commit murder in first degree. What indictment must state. That it was committed with a certain weapon, etc. An indictment for an assault with, intent to commit murder in the first degree which charges that the defendants on, etc., “feloniously and with malice aforethought did assault W. M. Smith with intent to commit murder in the first degree upon him, the said W. M. Smith, contrary to the form of the statute,” etc., is bad. This offense was only a misdemeanor at common law, and was made a felony by sec. 4626 of the Code, and is not aided by sec. 5119, and the manner of the assault must be set out and described in the indictment as that it was committed with a loaded gun, knife, or pistol, or other instrument capable of producing death; that it was made deliberately on premeditation to commit murder in the first degree. Sec. 5128 construed.</p> <p>Case cited and overruled: Harrison v. The State, 2 Cold , 232.</p> <p>Code cited: Secs. 4626, 5119-23, 4615-27-28.</p> <p>2. Same. Same. Bill of exceptions. Imperfect transcript. How it will be treated by Supreme Gowrt. Where the transcript contains no bill of exceptions, but does contain a paper styled in the margin “ charge of the judge,” the court say this paper could only be made part of the record by bill of exception. Possibly, if it had been set out upon the minutes it would have been regarded as part of the record. Where the minutes of the court below and the bill of exceptions have not been signed by the judge of that court, from such an imperfect record, the court will treat the deficient transcript as having been filed as a writ of error; and though no reason be stated for the same, the court will arrest the judgment and remand the prisoner to jail for another indictment, where a conviction was had upon a defective one.</p> <p>3. Same. Minutes not read and signed each morning. Consequences. Failure to read and sign minutes each morning in open court by judge discussed at length and much reprehended; .many questions unsettled suggested growing out of the contingencies of such failure.</p> <p>Code cited: Sec. 4101.</p> <p>4. Same. Clerics. Recitals made by. How regarded. The court say: “ The uniform course of decision in this State has been to disregard recitals made by clerks, outside of the certificates which they are expressly required by law to make. But in a case of such magnitude and importance as this, we cannot utterly ignore the statements of the clerks.”</p> <p>Oases cited: McConnell v. Bead, Mart. & Yerg., 225; Hunt v. Lyle, 6 Yerg., 417; Miller v. Holt, Cooper, Overton, 86; Craig’s lessee v. Vance, lb., 141; Burton v. Pettibone, 5 Yerg., 443.</p> <p>5. Same. Jwy. Where record fails to show affirmatively that the entire jwy were sworn is error. Where the jury were selected on two different days, and it appears only of record that those last selected were sworn, this statement excludes the idea that the others were duly qualified, and the error is not cured by Code, sec. 5242.</p> <p>Code cited: Sec. 5215-42.</p>

<p>EEOM JACKSON.</p> <p>Appeal from a judgment of the Circuit Court.</p> <p>No record found.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Criminal Court. Thos. N. Frazier, Judge.</p>

<p>No record to be found.</p>

<p>FROM GILES.</p> <p>Appeal from the Criminal Court.</p>

<p>1. Cbimmax. Law. Rape. 'What is not. Force being a necessary element in the crime of rape, where the intercourse is had with a very weak-minded woman, and her yielding to the wish of the party was obtained by gross fraud, this will not constitute rape. In this case the fraud consisted in a fictitious marriage.</p> <p>Case cited: Wyatt v. State, 2 Swan, 396.</p> <p>2. Same. Jury. Competency of. It is no ground for a plea in abatement to an indictment that one of the grand jurors who acted on and found the bill of indictment, had served on the jury within twelve months; also, in case of a petit jury, the verdict will be valid unless objection is made by challenge in the proper time.</p> <p>Code cited: Secs. 3988, 4009-10.</p>

<p>FROM GILES.</p> <p>Appeal from the Criminal Court. Thomas M. Jones, Judge.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Criminal Court. Thos. 1ST. Fra-jzier, Judge.</p> <p>No counsel marked.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Criminal Court. Thos N. Frazier, Judge.</p>

<p>1 Geiminaii Law. Bvidence. Part of a conversation brought out does not entitle the opposite party to the whole. When. Where counsel for the defense asked a witness if he had made a certain statement to “A,” to-wit ■ “ that he only wanted to get one swear at defendant, and he would hang him, etc.” Held, that this did not entitle the prosecution to the entire conversation over the objection of defendant when “A” was not - introduced to contradict witness, who denied positively the expression to “A” of such a desire. Had the witness been contradicted the rule might have been otherwise.</p> <p>2. Same. Self-defense. Ch'eat bodily harm. Bow defined. It is error to define “ great bodily harm ” to be such as would give one reasonable apprehension that life was in danger.</p> <p>Case cited: Young v. State, 11 Hum., 201.</p>