Volume 66 — Tennessee Reports

<p>EROM DAYIDSON.</p> <p>Appeal from the Criminal Court. Thos. N. Frazier, Judge.</p>

<p>CRIMINAL Law. Miscegenation. Marriage in another State. The defendant, a white man, was married to a woman of color, in the State of Mississippi (where such marriages are not forbidden by law), and removed to this State with his wife, and continued to live with her as his wife. He was indicted under the act of 1870 (second session), ch. 39. Upon motion, the indictment was quashed in the court below, and the State appealed. Held, to be an indictable offense in this State for a white man and colored woman to live together as man and wife, although married according to the forms of law in another State. ...</p> <p>Cases cited: Galloway v. The State, MS., Nashville, 1872; Lonas v. The State, 3 Heis., 287; Morgan v. McGhee, 5 Hum., 13.</p>

<p>PROM MAURY.</p> <p>Appeal from the Criminal Court. W. S. McLe-more, Judge.</p>

<p>EBOM DAVIDSON.</p> <p>Appeal from the Criminal Court. Thomas W. Frazier, Judge.</p>

<p>1. Obimiítax. Law. Judgment at term subsequent to verdict good. The prisoner was convicted at May Term, 1873, his motions for new trial and arrest of judgment overruled, and was remanded to jail. At the September Term of the court judgment of conviction was pronounced upon the verdict of the jury, and the term of imprisonment fixed to commence from the day the verdict of the jury was returned: Held, a valid judgment.</p> <p>2. Same. Where the proper officer for the State signs an indictment as “ Attorney General ” it is good.</p> <p>Oases cited: Teas v. The State, 7 Hum., 174; Elkins v. The State, Meigs’ R., 109; Evans v. The State, 8 Iium., 110.</p> <p>Code cited: Secs. 5225,'317.</p>

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

<p>1. Cbimenal Law. False pretense. What. Under see. 4701 of the Code, “the ingredients of the offense of obtaining goods under false pretense and with intent to defraud, are such that if the false pretense created the credit it is within the statute,” (1 Col., 333,) but if the exercise of common prudence and caution would have enabled the party imposed upon to have avoided the imposition, it is not within the statute. It is difficult to define the offense, as clearly to distinguish the cases which do or do not fall within the general definition, and therefore the court and jury must determine in each particular case as it arises whether it comes within it or not. The “common prudence and caution ” to be exercised is not such as to impose upon the party who is the victim of the imposition, such inquiry and investigation into the facts pretended, as to secure him against the possibility of imposition or such precautions as only the very cautious resort to, but there should be something in the nature of the transaction itself to show that a person of common prudence and caution could not have been imposed upon thereby.</p> <p>Case cited: McCorlde v. State, 1 Col., 333.</p> <p>Code cited: Sea. 4701.</p> <p>2, Affidavit for continuance. Alibi. When the evidence in the bill of exceptions satisfies the Supreme Court as to the identity of the defendant, and it can see from the affidavits and from the record the most satisfactory evidence that the pretended defense of alibi is false, and the want of witnesses to prove it but a pretense for delay, this court will not disturb the action of the Circuit Judge in refusing to grant a continuance.</p>

<p>CnnvriNAi, Law. Beversible error. The failure by the court to tell the jury, when not requested to do so, that they are the judges of the law as well as of the facts, is not reversible error. ÍTor is the failure to instruct them as to what is a reasonable doubt.</p>

<p>CruhnaIi Law. Indictment. An indictment which charges separate and distinct crimes in the same count is bad; but if the defendant go to trial without objecting to the form of indictment in the court below, he thereby waives all objection to it, and the court did not err in taking no action on this informal mode of charging him.</p> <p>Oases cited: State v. Williams, 10 Hum., 102; Owen v. The State, 5 Sneed, 493.</p>

<p>CrimiNAI. Law. Bastardy. Bastardy is an offense against the State of which the Criminal Court has jurisdiction. In a bastardy proceeding the question propounded to the relator, whether she had had sexual intercourse with other persons was properly ruled out by the court. The question should have been confined to the period within which the inquiry was legitimate, viz: from the first of the tenth month to the first of the sixth month next before the birth of the child.</p> <p>Code cited: Sec. 5365.</p>

<p>1. CRIMINAL Law. Venue. The Constitution guarantees a trial by an impartial jury of the county in which the crime shall have been committed.</p> <p>2. New County line within Eleven Miles oe old County seat. The Constitution of 1870 authorized the Legislature to establish new counties, but provides that “no line of such county shall approach the court house of any old county from which it may be taken nearer than eleven miles.” The act of 1871, establishing Moore county, is not upon its face in conflict with that provision.</p> <p>The Circuit Judge charged the jury: “ If you should believe from the evidence that pursuant to the act of assembly establishing the county of Moore, the commissioners under said act proceeded to run and mark and establish the West boundary line of Moore county, between Lincoln and Moore, and run and established said line previous to the killing, and this line included the place of the killing in Moore county, and after this, and before the killing and since the killing, down to the this time Moore county has exercised jurisdiction over the territory so included within such lines, by collecting taxes, etc., the offense is properly triable in Moore county, and this although such line, so run and established, or the place of killing, was nearer than eleven miles to the court house of Lincoln county.” Held, there is no error in this charge.</p> <p>Where the act establishing a new county is constitutional upon its face, but the commissioners in laying out the county violate the Constitution by running one of the lines nearer than eleven miles to the court house of the. old county, and this line is acquiesced in by the old county, the objection cannot be taken in a collateral proceeding by a defendant who has been indicted in the new county.</p> <p>Cases cited: Ford v. Farmer, 9 Hum., 160; Armstrong v. State, 1 Col., 338; Kirk v. State, 1 Col., 344.</p> <p>Code cited: Secs. 4976, 5195.</p> <p>3. Constitution. The territory embraced within the lines of the new county belongs to the new county within the meaning of the above provision of the Constitution until the old county, in some proper proceeding asserts its right to have the line changed.</p>

<p>1. CbimiNAi. Law. BUI of exceptions. Written charge of the court. A written charge oí the court, signed by the Circuit Judge who tried the case, copied into the transcript, is no part of the record unless made so by bill of exceptions or in some other lawful mode.</p> <p>2. The act of 1873 requiring the judge to deliver his charge in writing and furnish it to the jury on retiring, does not of itself make the charge a part of the record.</p> <p>3. A bill of exceptions is a written statement of objections to the decisions of the court upon points of law made by a party to the cause, properly certified by the judge or court making the decision.</p>

<p>FROM WILSON.</p> <p>Appeal from the Circuit Court. Vm. H. Williamson, Judge.</p>

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

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

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

<p>from rutherford.</p> <p>Appeal from the Criminal Court.</p>

<p>CRIMINAL Law. Judge’s charge. Finding of jury. Where the indictment contains two counts — the first for rape, the second for assault and battery with intent to commit a rape — it is not error for the court to tell the jury, if they find the defendant guilty of “rape,” their verdict should-be “guilty as charged in the first count, or guilty as charged in the indictment generally, as the first count included the offense charged in the second count.” And if the jury return the following-verdict — “they do say that the defendant is guilty as charged in the indictment; and the jurors aforesaid do further say, that the defendant for his offense aforesaid shall suffer death by hanging ”■ — the verdict is good.</p> <p>Cases cited: Bly v. The State, King’s Dig., sec. 5066; Menly v. The State, 7 Maryland, 148; Bullock v. The State, 10 Georgia, 59; Arch. Cr. PL, 30.</p>

<p>GammAi Law. Tippling. The defendant was indicted in four different cases for tippling on Sunday. The indictments are precisely the same in each case, and charge the selling to have been to the same party. The four cases were tried by the same jury, on plea of not guilty. The jury found the defendant guilty in three eases and not guilty in one case. Upon this verdict the defendant was discharged as to case No. 711, and fined and imprisoned as to the other three. Held, there was no error in this.</p> <p>Case cited: The State v. France, 6 Baxter, 478.</p>

<p>1. CRIMINAL Law. Surprise. Amending affidavit of defendant. Error to deny. When. Evidence. Where the committing magistrate was introduced to prove a confession by the defendant made on the committing trial, it was error to refuse to allow the defendant to amend an affidavit on motion for a new trial, alleging surprise, and offering to prove by two persons present at the trial, facts tending to rebut the magistrate’s testimony, because the affidavit failed to state exactly what the defendant proposed to prove by witnesses.</p> <p>2. Same. Bill of exceptions. Where it was afterwards interpolated into the bill of exceptions, by the clerk, that the court made a different ruling as to the affidavits, such interpolation will not be regarded as a part of the bill of exceptions.</p>

<p>EROM SHELBY.</p> <p>Appeal from the Criminal Court. JNO. E. Elip-PIN, Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court. W. H. Smith, Chancellor..</p>

<p>Obimikal Law. Carrying pistol, etc. Carrying a navy in scabbard on saddle while riding along public road is indictable. It is not necessary to describe the pistol, it being unlawful to carry any kind of a pistol except a navy six or army pistol, and they must be carried openly in the hand.</p>

<p>1. CRIMINAL Law. Indictment. An indictment charging the defendant with “ carrying upon his person a pocket pistol, other than an army pistol and such a pistol as is usually used in the U. S. army,” is sufficiently certain and descriptive of the offense under the statute.</p> <p>2. Same. Carrying pistols. A “pocket pistol” is such a pistol as a man ordinarily carries, or may conveniently carry, or actually carries, on his person in his pocket. The name of the pistol is unimportant, and the number of times the pistol shoots is immateria.1.</p>

<p>CjBTMmAL Law. Forcibly entering premises not bwrglanj. To charge the jury that the mere unlawful entering upon the premises of another, and against his consent, is such an act as the law regards as having a tendency to lead to an immediate breach of the peace, and is an indictable offense. Held, erroneous. The distinction is well settled that if the entry is made without force, although it may be unlawful, it is only a civil trespass, but if accompanied with force amounting to a breach of the peace, or such as is calculated to produce a breach of the peace, it is a criminal trespass.</p>

<p>Counties. Character of the corporation. Liability for neglect of its officers. Extent of its liability generally. Public Load. Where damage is sustained by reason of a failure to keep a public bridge in repair; Held, that the county is not liable.</p>

<p>from laueerdale.</p> <p>Appeal from the Chancery Court. JNO. W. Harris, Chancellor.</p>

<p>Homestead. Conveyance without wife’s consent. Title void. Remedy. Where - the wife does not join in a conveyance of the homestead, such conveyance' is absolutely void, so far as it abridges her homestead rights, and she may, by next friend, file a bill quia timet to have the cloud removed and her homestead rights declared, though she has never parted with the possession or occupancy.</p> <p>Code cited: Sec. 2114 a.</p>

<p>1. Surety. Liability of on note, though administrator of his deceased principal is protected by the statute of limitations. Although the administrator oí a principal in a note may defeat a recovery upon the note by the plea of the statute of limitations, yet the exoneration of such administrator does not relieve the sureties of his intestate from liability.</p> <p>Cases cited: Caplinger v. Vaden, 5 Hum., 629; Marshall «. Hudson, 9 Yer., 57; Bradford v. McLemore, 3 Yer., 319; Shropshire v. Shropshire, 7 Yer., 165; Bank v. Campbell, 7 Yer., 353; Goss v. Gibson, 8 Hum., 197; Keer v. Clark, 11 Hum., 77.</p> <p>2. Same. Bemedy of surety. When the surety on such a note is compelled to pay the debt, he then has cause of action against the administrator of either the principal for the amount so paid, or the administrator of a co-surety for pro rata contribution.</p> <p>3. Same. Bight of action acames. When. Statute of limitations. While the surety is entitled to his motion, upon rendition of the judgment, yet liis cause oí action is the payment of the judgment, and the statute begins to run from that time, and not from the rendition of the judgment.</p> <p>Case cited: Maxey v. Carter, 10 Ter., 521.</p> <p>Code cited: Secs. 8625j, 3625a, 3626, 2279, 2281, 2784, 2786.</p>

<p>1. PRINCIPAL and Surety. When agreement for delay will discharge surety. The taking of a deed of trust by the holder of a note, prima facie, is an additional or collateral security, and does not prevent the holder of the note from suing both the principal and surety, and, therefore, does not operate to discharge the surety, although taken without the consent of the surety, unless it is otherwise expressly agreed.</p> <p>Oases cited: I-Iill v. Bostick, 10 Yer., 410; Decherd v. Blanton, 3 Sneed, 376; Lea u. Dozier, 10 Hum., 447.</p> <p>2. Same. The surety called on the holder and urged him to avail himself of the benefits of a deed of trust, and file the claim; the holder replied that the surety need not trouble himself about the note, that he had it secured. Afterward, the principal to the note became insolvent, and the holder brought suits on the note against the surety, who filed his bill and x-rayed to be discharged : Held, that the surety was not discharged on this state of facts.</p>

<p>1. Criminad Law. Bape. It is competent to prove the prosecutrix to ■ have been a common prostitute.</p> <p>2. Same. And the prosecutrix may be asked, and must answer, whether she had cohabited with any other person beside the defendant about, or shortly before, the time of the alleged offense by defendant upon her, as an element which should be weighed by the jury for what it is worth, on the question of force or consent.</p> <p>3. Evideitoe. Where the object is to contradict the witness, her examination by the justice on the preliminary trial, identified by him as the testimony, and proved to have been signed by him for the witness, at her request, she being unable to write, is competent evidence, whether it is shown to her or read over to her at the time it is offered as evidence or not. The rule as to proof of letters written by the witness has no application in this case.</p> <p>Cases cited: Reid v. Williams, 5 Sneed, 580; Nelson v. State, 2 Swan,, 237.</p>

<p>1. Cbimihae Law. Robbery. Evidence. Where aiwitness, upon the question of the defendant’s identity, in order to make his recognition of him more explicit, details facts and circumstances under which he saw defendant, calculated to proye a separate substantive felony from the one charged in the indictment, such evidence is competent, the answer being brought out by defendant’s counsel on cross-examination.</p> <p>2. Same. Practice. Oharge of court. It is not always error, under the act of 1873, concerning written charges, for the court, in ruling on questions of evidence during the trial, to state verbally to the jury qualifications of such testimony and his reasons.</p> <p>3. Same. Gommute capital offenses to imprisonment. Sec. 5257, providing that the punishment for capital offenses may be commuted, applies as well to crimes made capital offenses after the act as before. In other words, that this finding, involving the life of the defendant, should not be left to the whim, caprice or prejudices of a jury, but should be based on the facts of the case; and the principles on which this finding should be based ought to be explained to the jury, so that they might act intelligently in the performance of the duty imposed by the statute, of settling the question whether the death penalty should be inflicted, or whether the circumstances and facts of the case, in view of the spirit of the law, demanded a less severe punishment, and the jury must be held to be limited by the provisions of the statute to the commutation therein expressed; but while this is the duty of the court, such failure so to charge cannot be assigned as error, when the prisoner’s counsel has failed to request an additional charge.</p> <p>Code cited: Secs. 5257, 5259.</p>

<p>erom decatur.</p> <p>Appeal from tbe Circuit Court. G. B. Black, Judge.</p>

<p>eeoM haywood.</p> <p>Appeal from the Circuit Court. G. B. Black,. Judge.</p>

<p>1. Criminal Law. Indictment. When lost. Gopy to he had in felony cases. Defendant in felony cases may lawfully be put upon his trial upon copy of indictment copied from the minutes when the original has been “ lost, destroyed, misplaced, or purloined.”</p> <p>2. Same. Where the Attorney General stated to the court that the indictment was lost, and enquired of the court if he might read it from the minutes, or would he be required to have it copied, which was done. After the jury was sworn the defendant objected to reading the copy instead of producing the original: Held, he had waived his right to demand the original.</p> <p>Case cited :• State i>. Evans, 8 Hum., 113.</p> <p>Code cited. Secs. 5138, 5139.</p>

<p>Cbiminal Law. Selling liquors. Where the proprietor of a theatre oivnes a bar-room for the sale of liquors, etc,, with convenient steps leading to a wine room up-stairs, located in an adjoining building to the theatre, and persons go into the wine room on tickets, and drinks are sent up from the bar, the establishment being kept mainly for the purpose of furnishing wines and liquors to visitors of the theatre, being of easy access from the theatre, and a part of its fitting up, and liquors are furnished in the wine room under these circumstances, the proprietor is guilty of furnishing liquors to visitors inside of such, place of amusement, or in an apartment opening into the same, under act of 1869-70.</p>

<p>CRDinsrAL Law. Assault with inte/nt to commit felony, etc. The offense of malicious shooting is a statutory offense, punishable by imprisonment in the penitentiary; and an assault to commit that offense falls directly within the provisions of the statute (Code, 4630) making an assault to commit felonies of itself a felony, and prescribing the punish-mentwhere not already prescribed by statute. And, in indictments charging assaults, or attempts to commit offenses in themselves indictable, the same particularity is not necessary as is required in indictments for the offense itself.</p> <p>Case cited: John Jones v. The State, 3 Heis., 445.</p> <p>Code cited: Sec. 4630.</p>

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

<p>1. Cbiminal Law. Practice. An order to file a bill of indictment ex offiaio need not show cause; it is sufficient, where it appears to the court that the person has committed the offense, to authorize the Attorney General to prosecute ex offiaio; nor is it essential that the order should state the person on whom the offense has been committed.</p> <p>Cases cited: Simpson v. The State, 4 Hum., 456; Bennett v. The State, 8 Hum., 123.</p> <p>Code cited: Secs. 5996, 5097.</p> <p>2. Same. Abbreviation. “ A & B ” is a legitimate abbreviation for assault and battery.</p>

<p>1. DIVORCE and Alimony. The amount of alimony to be allowed is a matter for the discretion of the court, in view of the particular circumstances of each case. The fact that the wife had been the owner of a large portion of the property out of which alimony is to be allowed, always constitutes a ground for making the allowance liberal, and under some circumstances of special fault on the part of the husband, and peculiar merit on the part of the wife, will justify the giving to her the entire estate that came by her. In general, it is not usual to allow the wife more than one-half of the husband’s estate, after making proper deduction for his indebtedness existing before the divorce.</p> <p>2. Estoppel. Evidence. It is manifest that complainants Julia E. and Sarah are estopped irom setting up claim to the property in opposition to their sworn statements in their depositions in 1866.</p> <p>Case cited: Cooley i>. Steele, 2 Head, 605.</p>

<p>Will. Life estate. Unlimited power of disposition. A devise of real or personal property for life, with, unlimited power of disposition to the de-visee, at his death vests the absolute title to the property devised.</p> <p>Cases cited: David v. Bridgman, 2 Yer., 557; Davis v. Richardson, 10 Yer., 290; Thompson v. MeKissack, 3 Hum., 636; Bean v. Myers, 1 Col., 228; Henderson v. Vaulx, 10 Yer., 33.</p>

<p>CORPORATIONS. Road overseer. Charter exemption. The defendant, who was a section hand on the if. C. & St. L. R. R. Co., was assigned to the plaintiff, who was a road overseer, to work the public roads. On being summoned by the plaintiff, the defendant refused to work, and alleged as an excuse that the railroad upon which he worked was originally the Nashville and Northwestern Railroad Company, the charter of which exempted the president, directors, clerks, agents, officers and servants from road duty. XLeld, that defendant was exempt, under the charter, from road duty, and that notwithstanding the consolidation of the Nashville and Northwestern Railroad with the Nashville, Chattanooga and St. Louis, it not appearing that the charter of the latter had been repealed, the new company took the old road burthened with the restrictions as well as protected by the terms and conditions of its charter.</p>

<p>■ 1. Lien. Mechanie’s. Sub-cmtractor entitled to without written notice. Where a sub-contractor gives the owner of a house being built, verbal notice that he looks to him for payment of his services rendered on the building, written notice is not necessary in order to entitle him to the mechanic’s lien, as the act of 1859 repeals sec. 1986 of the Code, under which a notice in writing was necessary.</p> <p>Cases cited: Greenwood v. Tenn. Manf’g Co., 2 Swan, 136; Barnes v. Thompson, 2 Swan, 315; Alley & Bush v. Lanier, 1 Col., 541; Brown v. Brown, 2 Sneed, 437.</p> <p>Code cited: Secs. 1981-5-6 and 1981 a.</p> <p>2. Same. Attachment Ancillary. The recitals necessary in ancillary attachments and affidavits are not required in the attachments and affidavits in cases for the enforcement of mechanics’ liens, as the facts are required to be stated in the bill and sworn to.</p> <p>Case cited: Brown v. Brown, 2 Sneed, 437.</p> <p>Code cited: Secs. 3455, 3474, 3543.</p>

<p>EROM SHELBY.</p> <p>Appeal from the Chancery Court. A. M. CAMPBELL, Chancellor.</p>

<p>1. Fobeigit GoabdiAN. Authority to file hül. a guardian who resides in another State with his wards, and has been regularly and properly appointed and qualified in such State, may file his bill in this State for the sale of real estate belonging to his wards.</p> <p>2. Same. Terms upon which he is allowed to receive funds. While the foreign guardian may procure the sale, he can only receive the funds arising therefrom upon the execution, in the court having control of them, of a bond, under the direction of such court, for their proper management and application.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court. W. L. Scott, Chancellor.</p>

<p>Ejectment. Title of plaintiff. Estoppel. It is the rule in ejectment, that the plaintiff must recover, if he recover at all, on the strength of his own title. And, although it is well settled that where the plaintiff and defendant derive title from a common source, the defendant cannot, for the purpose of defeating the plaintiff, impeach the validity of the title of source whence both derive their titles, yet he can show that the plaintiff by some subsequent act has parted with his title, and has none a.t the time the action is brought.</p> <p>Cases cited: Bochelle r. Benson, Meigs B.., 6; Wortham v. Cherry, 3 Head, 469; Bowers v. Bowers, 10 Hum., 50.</p> <p>Code cited: secs. 3229, 3248.</p>

<p>PROM DYER.</p> <p>Appeal from the Circuit Court. .G. B. Black, Judge.</p>

<p>FROM GIBSON.</p> <p>Appeal from the Chancery Court. R. E. Raines, Chancellor.</p>

<p>Ejectment. Pleading. Tlie defendant in an action of ejectment, filed two pleas, one of not guilty, and the other a disclaimer. The plaintiff moved to strike out the latter plea on the ground that it was repugnant to the plea of not guilty. The Circuit Judge refused to allow the motion, but made the defendant elect which of the pleas he would rely on. Held, that this was error. The plea of disclaimer should have been stricken out and the leave granted the defendant to amend his plea of not guilty by stating therein the extent of his possession.</p> <p>Code cited: Sec. 3239-40.</p>

<p>1. Railroad CORPORATION. Damages. Under Code, sec. 2291, which provides that the right of action which a person who dies from injuries received would have had, had death not ensued, shall pass to his personal representative; the right of action with all its incidents passes to the personal representative, and must he treated as if the injured party had brought it.</p> <p>Code cited: Sec. 2291.</p> <p>2. Same. Same. ■ A corporation is as liable for vindictive damages for the wrongful acts of its servants or agents as natural persons. .</p> <p>3. Same. Same. Under the section of the Code above cited (2291), if fraud, malice, gross negligence or oppression existed on the part of the wrongdoer, exemplary damages may be recovered by the personal representative whether the injury to the deceased caused instantaneous death or not.</p> <p>4. Same. Same. The directions of sec. 1166 of the Code for the prevention of accidents on railroads, do not apply to the running of engines and cars about the depots and ysrds of railroad companies, and in relation to the hands and employees of the companies, who are moving about or across the tracks in the performance of their several duties.</p> <p>Code cited: Sec. 1166.</p> <p>Case cited: L. & ÍT. R. R. Co. v. Mary Robinson, 9 Heis., 276.</p>

<p>Scire Facias. What it must contain. Writ of scire facias by the State ■ against Patterson and his sureties upon a forfeited bail bond. This ■writ is in the nature of a declaration, in which the State must set forth circumstantially and correctly the matters of record upon which judgment is demanded. The failure to do so is a fatal defect.</p> <p>Case cited: State v. Arledge, 2 Sneed, 229.</p>

<p>FROM PAYETTE.</p> <p>Appeal from the Circuit Court. Thos. J. Flip-piN, Judge.</p>

<p>FROM MADISON.</p> <p>Appeal from the Chancery Court. Henry J. Livingston, Chancellor.</p>

<p>Attachment under Act oe 1871, ch. 134. The act of 1871, ch. 134, provides, in substance, that in cases commenced in a court of record, or before a justice of the peace by original attachment, on application of the plaintiff a summons shall issue also against the defendant for the same cause of action, and if the summons is executed, no publication or stay of judgment shall be had, as formerly required in attachment cases; and that the summons shall be in the usual form, but, in addition, shall notify the defendant that an original attachment has been issued against him, and be returned before the same court or justice before whom the attachment is returned: Held, that the intention of the statute is, that if the summons is served on the defendant, then this becomes the leading process in the case, the attachment, if levied, taking the position equivalent to an ancillary attachment, and holding the property until the termination of the litigation; and if the summons is not served, and the attachment is levied on the property, then the case is to proceed as in other cases of original attachment.</p>

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

<p>PROM TIPTON.</p> <p>Appeal from the Chancery Court. James Fen-tress, Chancellor.</p>

<p>PROM MADISON.</p> <p>Appeal from Circuit Court. G. B. Black, Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Circuit Court. Irving Halsey, Judge.</p>

<p>FROM MADISON.</p> <p>• Appeal from the Circuit Court. G. B. Black, Judge.</p>

<p>FROM HAYWOOD.</p> <p>Appeal from the Circuit Court. G. B. Black, •Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court. R. J. MORGAN, Chancellor.</p>

<p>FROM FAYETTE.</p> <p>Appeal from the Chancery Court. Henry J. Livingston, Chancellor.</p>

<p>PROM HAYWOOD.</p> <p>Appeal from the Circuit Court. G. B. Black, Judge.</p>

<p>Lost Papjsbs. Mddence to sustain copies. Under an order to supply lost papers, the evidence of the clerk of the court, or of the solicitor in the cause, to the fact that the copies presented to the court are true copies of the lost papers is sufficient.</p>

<p>Oeeice AND Oeeicebs. Register. B. F. Tatum was elected register of Fayette county at the election for county officers, held on March 26, 1870, and was inducted into office on April 5, 1870. In October, 1871, B. F. Tatum died, and his son, E. W. Tatum, was appointed to fill the vacancy by the County Court. At the regular election in August, 1872, W. S. Rivers was elected register to fill out the unexpired term. He applied to the County Court to be inducted into office at the September Term, 1872, but his right was contested by E. W. Tatum, who claimed that his term, under the appointment of the County Court, had not expired: Held, that under the provisions of the Constitution of 1870, relating- to registers, E. W. Tatum’s term of office expired September 1,1872, and that the election of Rivers in August, 1872, was valid and constitutional, and he was entitled to be inducted into office by the County Court September 1, 1872.</p>

<p>FROM GIBSON.</p> <p>Appeal from the Law Court. G. B. Black, Judge.</p>

<p>FROM FAYETTE.</p> <p>Appeal from the Chancery Court.</p>

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

<p>EJROM SHELBY.</p> <p>Appeal from the Chancery Court.</p>

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

<p>PROM HAYWOOD.</p> <p>Appeal from the Chancery Court. B. P. Boyd, Special Chancellor. *'</p>

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

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

<p>. FROM SHELBY.</p> <p>Appeal from the Criminal Court. JNO. K. Flip-PIN, Judge.</p>

<p>1. ChaNcery Practice. Multifariousness. A bill against several parties is not multifarious where all their respective rights and equities are so connected that the court can determine and adjust them.</p> <p>2. Chancery Jurisdiction. Mistake. A court of equity has the jurisdiction to grant relief where an act is done, or a contract is made, under mistake or ignorance of a material fact. Thus, money paid under a mistake of fact is recoverable both at law and in equity, unless it be clear that a party making the payment intended to waive all inquiry into the fact. It is not enough that he may have had the means of learning the truth if he had chosen to make inquiry. The only limitation is that he must not waive all inquiry.</p> <p>. Case cited: Henry v. Keys, 5 Heis., 488.</p> <p>3. Sale oe Land. Redemption. Payment. Mistake. Where a creditor paid money in redemption of land sold under an execution under tire belief that the land had been regularly condemned, but which in fact was not, he may recover the redemption money so paid, and he is not barred of a recovery by the rule of caveat emptor.</p> <p>Cases cited: Townsend v. Townsend, Peck’s R., 1, 17; Lipe v. Mitchell’s Lessee, 2 Ter., 399 ; Reid v. House, 2 Iium., 576.</p>

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

<p>Supebsedeas. Interlocutory decree. The Supreme Court has no authority to supersede an interlocutory decree made by a Chancellor for the dissolution of an injunction. Nor has that court any more jurisdiction or authority to supersede a judgment entered as the legal consequence of the dissolution of an injunction. To supersede such a judgment would be, in legal effect, to restore the injunction.</p> <p>Code cited: Sec. 4447-8.</p>

<p>CommoN Cabbieb. Connecting lines. A common carrier, who receives freight for transportation over his own route and the lines of other carriers, cannot bind such other carriers as to the rate to be charged for transportation, unless there is an agreement to that effect between them. And such other carriers will not be held to have impliedly assented to the rates charged by the first carrier, if, in receiving freight to be shipped over their routes under a bill of lading issued by the first carrier, they discover that the articles shipped are of a different character than those named in the bill of lading, and upon which the rates are higher. In such case they can transport the goods to their destination and charge and collect the increased rate.</p>

<p>L Bailment. Demand. In an ordinary case of bailment or deposit of money or goods to be kept for the depositor, and delivered when called for, no action will lie for the conversion of the deposit, until there has been a demand and refusal.</p> <p>2. Debt. Demand. Where a debt is created, payable on demand, no demand is necessary: the demand made by the suit is sufficient.</p> <p>Case cited: Bryant v. Puckett, 3 Hay., 252.</p> <p>Code cited: Sec. 1947.</p> <p>3. WRITING. Construction. The following paper writing construed to be a simple acknowledgment, on the part of the maker, of a debt due on demand, to-wit: “§100. Brownsville, Tenn., March 1, 1870. Deceived of Haney Fitzpatrick, colored, at the hands of Win. Scott, one hundred dollars, on deposit, for the use of which I am not to pay any interest. Signed, G. W. Moore.”</p>

<p>1. Equity. Trusts. B held money in trust lor his mother to be invested in a home for her use during her life, and alter her death to go to her children. B owned a farm of 272 acres, which he had not fully pi id for, the title of which was in him. By agreement with his mother, the money was used in paying off the debt on this farm, and he, in consideration thereof, agreed to set apart 100 acres of the tract as a home for her, which was done. She moved on the land so set apart, and lived on it a number of years with her family.</p> <p>Meld, that after her death her heirs could assert a resulting trust to her and them in the 100 acres of land set apart as a home.</p> <p>Case cited: Turner v. Pettigrew, 6 Hum., 439.</p> <p>2. PARTITION. Infants. Practice. In partition cases it is not improper to make infants parties complainants.</p> <p>Cases cited: Davidson v. Bowden, 5 Sneed, 129; Winchester v. Winchester, 1 Head, 460.</p> <p>Code cited: Sec. 3270.</p> <p>3. Costs. The victorious parties to the cause filed as evidence a record which had no relation to the issues involved.</p> <p>Meld, that they should be taxed with the costs of the record so introduced.</p>

<p>1. MARRIED Womar. Contracts. Separate estate. Property in the hands of a trustee for the sole and separate use of a feme covert, and subject to her absolute disposition, will be held liable in a court of equity for any debt she may contract, with an understanding, express or implied, that they are to be paid out of such property. But the separate estate is not liable generally for her personal engagements, but only where the debt is charged specifically upon the separate estate, with the concurrence of the trustee, if their be one. She cannot charge or dispose of it in any way except in the particular mode indicated in the deed.</p> <p>Oases cited: Catron v. Warren, 1 Col., 358; Litton v. Baldwin, 8 Hum., 209; Morgan v. Elam, 4 Ter., 375.</p> <p>2. Same. Smne. Remedy. The remedy of the creditor in such cases is not in personam, but in rem in a proceeding against the property itself. For, her contract is, in law, a nullity, and the matter is cognizable in equity only.</p> <p>3. Same. Same. Abandonment by husband. Where a husband, has deserted his family, the wife may prosecute or defend any action he might have prosecuted or defended. She may also sue and be sued in her own name for any cause of action accruing subsequent to such desertion. In such a case the wife would occupy, with reference to her property, precisely the same situation as a feme sole.</p> <p>Code cited: Sec. 2805.</p>

<p>1. Joint Interest. Ghaneery. Law. At law, if several persons have a joint interest in a fund, they must all, if living, join in the action for the recovery of the fund. But in equity, if one of the persons desire to recover his interest, and the others interested will not join with him in the action, he may resort to a Court of Chancery, and there alone assert his rights.</p> <p>Cases cited: Kirkman v. Snodgrass, 3 Head, 372; Parker v. Elder, 11 Hum., 547.</p> <p>2„ Courts oe Law and Courts oe Equity Compared. In all ordinary cases the remedy in a Court of Chancery is as cheap and speedy, under our practice as in a court of law, and, generally, much more certain and accurate in reaching the -justice of the case.</p> <p>3. Chancery Practice. Mvltifariousness. A bill which seeks two separate accounts from two distinct persons upon matters having no connection is multifarious. A demurrer to such a bill ought to be sustained, but the correct practice, after sustaining the demurrer, is, not to dismiss the bill, but to allow the complainant to amend by filing separate bills, without new process as to the parties before the court, or to separate the case so as to allow the proper adjudication of the rights of the parties.</p> <p>Code cited: Sec. 4326.</p>

<p>Levy of Execution. Satisfaction. The principle upon which a levy of an execution on sufficient personal property to discharge the debt is held to satisfy the judgment is, that the title to the property has been divested out of the debtor and vested in the sheriff, so that the creditor has his remedy against the sheriff, if he fail to appropriate it to the payment of the judgment. But this principle can have no application to a case where the party has not been in fact deprived of his property as the result of the levy.</p> <p>Case cited: Williams v. Bowdon, 1 Swan, 285.</p>

<p>1. Justice’s Warrant. Abbreviation “ Tenn.” The abbreviation Tenn. for Tennessee, in a justice’s warrant, does not invalidate the warrant. The abbreviation is of such universal use that its meaning cannot be misunderstood.</p> <p>2. Execution. Officer’s return. Amendment. Pending a motion, in the Circuit Court, to condemn land upon which a justice’s execution had been levied, it appeared that the officer's return had not been signed by him. The court allowed the officer to amend the return by signing his name: Held, that this was proper.</p> <p>Cases cited: Broughton v. Allen, 6 Allen, 6 Hum., 98; Atkinson v. Rhea, 7 Ilum., 60.</p> <p>3. WARRANT. Judgment. Note. The fact that the warrant does not show affirmatively that the note sued on, and upon which judgment was rendered, is within a magistrate’s jurisdiction, does not vitiate the judgment. Every intendment is in favor of magistrates’ judgments, and the presumption would be that the note was for an amount which would give the magistrrte jurisdiction.</p> <p>Case cited: Baker v. Allen, 2 Tenn. R., 553.</p> <p>4. Judgment. Officers’s return. A judgment rendered by a magistrate upon a summons to the defendant to appear before him immediately is not void.</p> <p>5. Same. A magistrate’s judgment is not void for the failure of the magistrate to note the fact of issuance on the back of the warrant.</p> <p>Case cited: Hollins v. Johnson, 3 Head, 348.</p> <p>Code cited: Secs. 3080-2, 4129.</p> <p>6. Condemnation oe Land. Supplying defeet in papers. It appeared, upon motion to condemn land, that the magistrate had failed to endorse his judgment on the warrant. This defect was supplied by the Circuit Court allowing (the defendant objecting) the plaintiff to file a certified copy of the judgment as it appeared on the justice’s docket: Held, that this was proper.</p> <p>Case ctied: Turner v. Ireland, 11 Hum., 450.</p> <p>7. Justice's Judgment. The following entry on a justice’s docket constitutes a valid judgment, to-wit: Elliott & Co. v. W. B. Jordan, judgt., 348.82.</p> <p>Cases cited: Johnson v. Billingsly, 3 Hum., 153; Hubbard v. Birdwell, 11 Hum., 221; Bell v. Williams, 4 Sneed, 199.</p> <p>Code cited: 4129, 4176.</p>

<p>PROM TIPTON.</p> <p>Appeal from the Chancery Court. Henry J. Livingston, Chancellor.</p>

<p>EROM CARROLL.</p> <p>Appeal from the Circuit Court. Jas. D. Porter, Judge. '</p>

<p>FROM MA BISON.</p> <p>Appeal from the Chancery Court. Jas. FeNtress, Chancellor.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court. W. H. Smith, Chancellor.</p>

<p>Will. Partition. County Court. Jurisdiction. A. died leaving a will, in which he devised his real estate to his widow for life, and directed his executor to sell, after the widow’s death, the real estate, and distribute the proceeds equally among his children. After the death of the widow, the land not having been disposed of in accordance with the directions of the will, B., who had purchased the share of several of the children, filed a bill, in conjunction with the executor, in the County Court, for a sale of the real estate for partition among those interested therein. All parties in interest were made defendants, and the suit was regularly conducted, and a sale obtained. B. became the purchaser at the sale. Upon a bill filed by the children whose shares had not been imrehased by B., to have the sale set aside and the proceedings in the County Court declared void, it was</p> <p>Held, that B., the purchaser, had no such title interest in the real estate as entitled her to either a partition or a sale. She simply stood in the shoes of the persons from whom she purchased, and they, under the provisions of the will, had no title or interest in the realty itself, but only in the proceeds; and, therefore, the County Court had no jurisdiction to sell for partition under the bill of B. and the executor.</p> <p>Case cited: Helm u. Franklin, 5 Hum., 405.</p> <p>Code cited: Secs. 3262-3.</p>

<p>Tbtjst. Notes. Notice. A., a trustee, transferred to B., in payment of a personal debt due from Mm to B., a note executed to Mm as trustee. In a contest between the beneficiaries and B., it was held that the beneficiaries had the superior right, and that, the note showing on. its face its trust character, B. was chargeable with notice, and could not cl aim it as an innocent holder.</p>

<p>1. Admiotstratob’s Account. Qounty Court. The confirmation of the report of the clerk of the County Court on the accounts of an administrator, made in pursuance of sec. 2342 of the Code, is final if not appealed torn.</p> <p>Code cited: Sec. 2342.</p> <p>2. Code, secs. 2351-2-3, construed. The order of the court upon the-administrator to make distribution of the assets in his hands, made after the confirmation of the clerk’s report, operates as a judgment against the administrator in favor of the creditors of the estate, upon which any one of them may have an execution issued for the amount of his debt against the administrator, upon affidavit made to the clerk that the administrator has had ten days’ notice of the creditor’s intention to apply for it. And, after the return of the execution by the officer (nulla bona?), the creditor may then, by motion, without, notice to the sureties, have a judgment .for the amount of his debt against them, which judgment is based on the order of the court directing the administrator to distribute the assets.</p> <p>Code cited: Secs. 2351-2-3.</p>

<p>Married Womest. Contract of wife. Inability of husband. Presumption. If a married woman, with the knowledge, consent, and ratification of her husband, contract for labor on her real estate, a presumption would arise that he thereby made it his own contract, for which he would be liable, unless the presumption should be rebutted by proof that the contract was made exclusively with the wife, and upon her credit alone. But if the credit be given to her alone, the' husband will not be liable, although his wife lives with him, and he sees her in the enjoyment and use of the fruits of the labor, without objection. In such case the husband can be made liable only upon a new contract, based on a proper consideration.</p> <p>Case cited: Catron v. Moore & Warren, 1 Col., 364.</p>

<p>Tax Saies. Report and judgment. Recitals. Collector’s deed. Since the act of 1844 it has been the settled rule that as to irregularities in tax sales occuring before judgment and order of sale, no enquiry can be made, except it he shown that the taxes had been paid before judgment of condemnation; and if the collector’s deed recite the facts essential to the validity of the proceedings, such recitals are prima facie evidence of the existence of the facts. If the deed recite that the sale was duly advertised, this recital may he rebutted by proof, because it is a proceeding subsequent to the judgment. But if the collector recite in his deed that the report of the list of Unpaid taxes was duly made, this fact cannot he rebutted, because it is a proceeding anterior to the judgment of condemnation, and on which the order of sale is based.</p> <p>Cases cited: Tharp v. Hart, 2 Sneed, 670; Henderson «. Staritt, 5 Sneed, 472.</p>

<p>1. Sale of Patent Eight. Failure of consideration. The rule, where a failure of consideration is relied on as a defense to a note given for a patent right, is, that if the petent is valid, the consideration is good, although practically it may he of no great utility; and the question whether the patent is valid in this sense depends upon whether the thing patented is a “new and useful invention.” The letters patent are only prima fade evidence that the invention isrnewuand useful.</p> <p>Gases cited: Cowan v. Dodd, 3 Col., 278.</p> <p>2. Bras AND Notes. Purchaser of note before maturity. The purchaser of a note, before maturity, at a heavy discount, without notice, is an innocent purchaser only to the extent of the amount actually paid therefor, where the consideration upon which the note was executed fails.</p> <p>Cases cited: Petty v. Hannum, 2 Hum., 102; Holeman v. Hobson, 8 Hum., 127; May v. Campbell, 7 Hum., 450.</p>

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

<p>1. PiiBAniNG. Set-off. The plea of set-off being in the nature of a cross action must be put in issue by replication or otherwise. • The word “ issue,” without more, cannot be construed as a substitute for a formal replication to the plea of set-off.</p> <p>2. Verdict. Set-off. If the verdict of the jury does not show that plaintiff recovers something from the defendant, the defendant can have no judgment on his plea of set-off against plaintiff. (Changed now by act of 1879, ch. 222. — Ed.)</p> <p>Cases cited: E. T. & V. E. E. Co. v. Galbreath, 1 Heis., 482; Brazelton v. N. & N. E. E. Co., 3 Head, 570.</p> <p>Code cited: Sec. 2922.</p>

<p>eeoM haywood.</p> <p>Appeal from the Chancery Court. H. J. LiviNG-TON, Chancellor,</p>

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

<p>FROM HARDEMAN.</p> <p>Appeal from the Circuit Court. G. B. Black, Judge.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court. A. M. Campbell, Chancellor.</p>

<p>1. OhANCEby Pbactice. Parties. Assignee in bcmkni/ptéy. The general rule in equity that all persons having an interest in the subject matter of the suit shall he made parties, does not apply to the assignee of a bankrupt who has no beneficial interest to he secured, or liability to avert.</p> <p>■ 2. VEUDoit’s Lies. Married women. The fact that a vendee of land-is a married woman does not defeat the lien of the vendor for the unpaid purchase money. Although notes for the purchase money executed' hy her are void, and no recovery can be had on them against her, yet the land itself is bound, and may be sold for the payment of the purchase money. And such lien enures to the benefit of the assignee of notes for the purchase money executed by her.</p> <p>Cases cited: Litton v. Baldwin, 8 Hum., 214; Kirby v. Miller, 4 Col., 5.</p> <p>3. Husband. iÁabiliiy. And if a husband become security on such notes executed by his wife, he is liable thereon, although she herself is not personally bound.</p>

<p>.1. BIll of Exchange. Guarantee. B. & Co., merchants at Memphis, presented to the defendant for discount a draft drawn on the complainants, merchants at Philadelphia, for $8,100 at ten days after sight. To the draft was attached hills of lading of ninety bales of cotton, which B. & Co. said they had shipped to complainants, and against which the draft was drawn. The bills of lading were in fact fictitious, but this was not known to defendant. The amount drawn for upon each bale was ninety dollars. The complainants had had previous dealings of like character with B. & Co., and had authorized them to draw on them for ninety dollars for each bale shipped. Soon after the draft was discounted B. & Co. notified the defendant that they had received a telegram from complainants limiting them to eighty dollars per bale, thereupon the president of defendant wrote the following letter to its correspondent at Philadelphia, and enclosed it in the same letter which conveyed the draft, to-wit: “If Messrs. R. & Jenks object to accepting the bill on account of amount being ninety dollars instead of eighty dollars pier bale, guarantee them that we will have other cotton or margin sent, and have them accept. Signed, W. H. Cherry, Pres’t.” "When presented for acceptance by defendant’s correspondent complainants refused to accept the draft, but upon defendant’s correspondent presenting the above letter, complainants accepted and after-wards paid the draft. Upon bill filed to hold defendant liable as guarantor for the full amount of the draft; held, that the letter made the defendant guarantor for only tea dollars per bale.</p> <p>2. Same. Acceptance of. Innocent holder. Arguendo. The court say, that if the draft had been accepted by complainants without the guarantee, that the complainants would have no recourse upon defendant, it being an innocent holder.</p>

<p>1. Supbeme Coubt. Jurisdiction to vacate decree. This court has jurisdiction, on motion, under sec. 4501 of the Code, to vacate a decree, upon the ground that the judgment or decree was rendered through inad-vertance and oversight, when on the face 'of the record no cause of action existed. The decree was rendered at a former term.</p> <p>Cases cited: Bond v. Greenwald, 4 Iieis., 453, 464, 470.</p> <p>Code construed: Sec. 4501.</p> <p>'2. Contbacts. Entirely and indivisibility of. What will not constitute. Chan-eery practice. Where cotton was sold for about 40 cents per pound, and the proof showing that it was sold at 26 cents in gold or its equivalent (39 cents), does not bring the case within the rule of variance between the contract and that stated in the pleadings. The court say: “ The cause of action stated in the bill, is the sale and delivery of cotton to defendant, not gold or greenbacks; they are but the mediums or means by which the demand of the plaintiff is to be satified. Complainant brought his action because the defendant, Greenwald, had bought and received his cotton and failed and refused to pay for it; and if the consideration alleged is substantially proved, it is sufficient. The price is alleged to be about 40 cents, and the decree of this court was rendered at 39 cents, which is in substantial accordance with the contract as proved and so held to be in the opinion.”</p> <p>3. Chancery Practice. Injunction. Where a party has title to property about to be sold by a decree of the Chancery Court seeking to settle the rights of other litigants, he may file his bill to enjoin the sale of the same in the same court, and have his rights decided.</p> <p>Case cited: Deaderick v. Smith, 6 Hum., 147.</p> <p>4. Same. Olerk and Master. Report of. The master is not allowed to go outside of instructions in his report, but must pursue such as are given him.</p>

<p>FROM MADISON.</p> <p>Appeal from a judgment of the Circuit Court. G-. B. Black, Judge.</p>

<p>1. CRIMINAL Law. Jwor. Mentally incapacitated during trial. Practice. If a juror is found to be mentally incompetent during the progress of a criminal trial, it is discretionary with the court to supply the place of the juror and proceed with the trial de novo, or to discharge the jury and continue the cause.</p> <p>Code cited: Sec. 4028 and notes.</p> <p>Case cited: State v. Curtis, 5 Hum., 601.</p> <p>.2. Joint Indictment eor Larceny. Admissions of one defendant in absence of the other inadmissible. Whm. It is not competent for the State to prove confessions of a co-defendant made in the absence of the prisoner to the effect that the prisoner and the other defendants had agreed to steal cattle for a butcher, and that the cattle stolen in this case was for the butcher, and that the prisoner had procured a note to be written that would enable them to sell the cattle; the confession having been made after the cattle were stolen, if or is it made competent by proof that the witness had a conversation with the prisoner, and that after first denying that he had it, finally found and produced the note above referred to.</p> <p>3. Conspiracy. What admissions not competent. When the common purpose is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others.</p>

<p>EROM DYER.</p> <p>Appeal from the Circuit'' Court. Jas. D. Porter, ' Judge.</p>

<p>Navigable Stbeams. Test. The common law rule as to what is a navigable stream — viz: the flow and reflow of the tide — has never been recognized or adopted in this State as the test; but the civil law definition has been adopted, ivhich is, that a navigable stream is one that is capable of being navigated, or is navigable in the common sense of the term.</p> <p>Cases cited: Elder v. Burras, 6 Hum., 358; Stuart v. Clark, 2 Swan, 15.</p> <p>Code cited: Sec. 4913.</p>

<p>Bilis ahd Notes. Endorsement. Demand. Notice. Waiver. “For value received I assign the within note, on condition that the property of the maker and endorsers be exhausted before recourse on me.” The above assignment of a promissory note by an endorsee of the same does not dispense with the necessity of demand and notice on the part of a subsequent holder in order to make' him liable.</p>

<p>1. ChaNcery Practice. Leasehold estates. Minors. During the minority of infants the Chancery Court has jurisdiction to authorize or confirm leasehold contracts for the protection and preservation and for the enhancement of the real estate of such infants, when it is made manifestly to appear that contracts for either of these purposes is for the interest of the minors.</p> <p>Case cited: Thompson v. Mebane, 4 Heis., 377.</p> <p>2. Same. Bill of review and original bill. To set aside decree. The court cannot look to the proof in a cause upon bill of review to set aside a decree, much less upon an original bill seeking to set aside such a decree for errors which do not reach to the question of jurisdiction;</p> <p>3. Same. Fraud. Decree attached for. Entire proceedings open to examination.. Where a decree is attacked for fraud, the entire proceedings in the original causes are open to examination, not to determine whether there was error in the decree, but to determine whether the decree was procured by undue means.</p> <p>4. Same. Guardians. Powers of. The act of 1762 does not limit or control the jurisdiction of the Chancery Court, but was designed to operate alone upon and to limit the powers of guardians.</p> <p>5. Same. Trustees. Agents. Power of to contrast with beneficiary. Generally trustees and agents are incapable of purchasing the trust property,, etc., except where it appears that the transaction was entirely free from fraud, etc. Facts that will not support such a contract.</p> <p>Case cited: Coffee v. Ruffin, 4 Col., 514.</p>

<p>1. Cbimihai. Law. Indictment. Where two distinct offenses are charged in an indictment, but as parts of the same transaction, and as one offense, proof of either offense so charged would be sufficient to support a conviction, and such an indictment would be good.</p> <p>Case cited: The State v. Ailey, 3 Heis., 9.</p> <p>Code cited: Sec. 4913.</p> <p>2. Same. Same. If the statute does not set forth all the ingredients of the offense, or enough to constitute the crime, the indictment must add them.</p> <p>Case cited: The State v. Ladd, 2 Swan, 226.</p> <p>3. Same. Same. The indictment must charge the crime with certainty and precision, and must contain a complete description of such facts and circumstances as will constitute the crime, and not merely state a legal result.</p> <p>Case cited: Pearce v. The State, 1 Sneed, 65.</p>

<p>feoM latjderdale.</p> <p>Appeal from the Circuit Court. Thos. J. Flip-PIN, Judge.</p>

<p>EROM HARDEMAN.</p> <p>Appeal from the County Court.</p>

<p>1. ResuIíTINg Trust. Widow. Bailment. Where a -widow has taken possession of the assets of her deceased husband’s estate before the appointment of an administrator, she becomes a special bailee or trustee of the same for the use and benefit of the creditors and dis-tributees of the estate, and if she converts the assets into other property, the personal representatives may sue for and recover such property.</p> <p>Cases cited: Hawthornes. Brown, 3 Sneed, 465; Killebrew v. Murphy, 3 Heisk., 550.</p> <p>2. Same. Lien. Principal and Surety. Bents. If the widow has used the assets (notes) of the estate in partially paying for land purchased by her, and gives her note for the remainder, with security, which the endorser afterwards pays, taking from the widow a title bond of the vendor, who also executed to him a deed, the surety in such case will hold the land in trust for the benefit of the creditors and distributees of the decedent, subject to a prior lien in favor of himself to the extent of the sum paid by him, which may be set off by the rents of the land which accrued subsequent to his deed, and should the rents exceed such sum he will be liable for the excess.</p> <p>3. Same. Inter-State law. Comity of States. Administrator. Chancery practice. As the land in this case is lying in both the States of Mississippi and Tennessee, the Chancery Court cannot decree a sale of that portion located in Mississippi, but it may coerce the surety thus holding the land in trust, and residing in this State, to make a conveyance of the entire tract of land to an administrator of the estate, to be sold by him under the order of the court, for the benefit of the creditors and distributees of the estate, first discharging the sureties prior lien for the money paid by him in the purchase of the property.</p> <p>See Treadwell v. McKeon, ante, p. 201.</p>

<p>EROM SHELBY.</p> <p>Appeal from the Chancery Court. E. • J. Morgan, Chancellor.</p>

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

<p>EROM laulerdale.</p> <p>Appeal from the Chancery Court. JNO. "W. Harris, Chancellor.</p>

<p>FROM CROCKETT.</p> <p>Appeal from the Circuit Court. G. B. Black, Judge.</p>

<p>1. Wills. Revocation of: What will not constitute. The testator signed his surname to his will immediately after his given name, which had . been written by the draftsman in writing the attesting clause, in the presence of two witnesses, who subscribed the attesting clause at his request. Two days thereafter, being doubtful as to the validity of such a signature, he sent for two other witnesses, one of whom erased the surname at testator’s request, when he signed his full name. These two witnesses, at his request, and in his presence, signed their names under those of the former witnesses: Held, that the erasure did not amount to a revocation of the will, as it did not appear to be his intention to cancel his will, and all the facts and circumstances may be looked to in arriving at the testator’s intentions.</p> <p>Code cited: Sec. 2162.</p> <p>2. Same. Insanity of testator. Bwden of proof. Where a will is contested on the ground of testator’s insanity, the formal execution of the will having been proved, the presumption of sanity arises, and the will may be read to the jury, without requiring the executor to further prove the sanity of testator.</p> <p>3. Same. Same. Same. Where the executor fails to prove the sanity of the testator by the subscribing witnesses, he is not precluded from resorting to other witnesses to establish such fact.</p> <p>See Murdock v. Leigh, 10 Heis., 166.</p>

<p>1. Makkeed Women. Probate and registration of deeds made by married •women living in oilier States. What necessary. Non-residents. Comity of States. A conveyance ol land in this State hy a married woman living in another State, is valid when made upon the certificate of a notary public, under his seal of office, that she, upon privy examination, acknowledged that her deed was freely and voluntarily executed, and without compulsion on the part of her husband. Such a deed is properly probated and acknowledged for registration, and when so registered the title passes.</p> <p>Facts: A deed of a married woman, executed in 1847, with a certificate of acknowledgment thereon containing the following — “ and she being by me examined, out of the presence and hearing of her husband, whether she does execute and acknowledge the same freely, voluntarily, and without being induced to do so by fear or threats of, or ill usage by, her husband, or by fear of his displeasure, declareth and saith that she does” — under the seal of a notary public in Maryland, was properly registered in Tennessee, and passed the title to the purchaser.</p> <p>Cases cited: Perry v. Calhoun, 8 Hum., 556; Mount v. Kesterson, 6 Col., 452; Eainey i>. Gordon, 6 Hum., 345.</p> <p>Acts cited and construed: 1715, ch. 28; 1751, ch. 3; 1813, ch. 79, sec. 1; 1820, ch. 20, sec. 2; 1831, ch. 90, sec. 9; 1833, ch. 92; 1839, ch. 26, sec. 6.</p> <p>2. Same. Deeds. Probate. Pzeeution. Distinction between execution of deeds and their probate or acknowledgment for registration, discussed, citing authorities above.</p> <p>3. Same. Same. The sufficiency of the execution of the deed must be determined by the laws of Tennessee.</p> <p>4. Same. Separate estate. Tenants in common. Where two tenants in common — one of them a married woman, having a fee simple estate in her undivided interest in the land — agree upon a division of the premises, and the co-tenant with her husband join in a deed conveying one of the shares in severalty to her, such deed does not impose the character of a separate estate in the land so conveyed to the married woman. It was without consideration, and the husband employed no express terms necessary to impose upon the property the character of a separate estate. The husband had the same interest in the property after the conveyance as before. A separate estate cannot be created by implication. The wife had the absolute fee simple estate, and could well convey it.</p> <p>Case cited: Powell v. Powell, 9 Hum., 477.</p>

<p>1. Wilis. Evidence. Devisavit vel non. Want of testamentary capacity. When a will is impeached for want of testamentary capacity of testator, and it is left doubtful whether such capacity existed, it is not error to instruct the jury that the propounder of the will must meet such proof by evidence and satisfy them that the testator had knowledge of the contents of the will, and that he would not be confined to the evidence of subscribing witnesses or other persons that it was read to the testator, but they might look to all the facts and circumstances surrounding its execution, to see whether or not, in point of fact, he had a knowledge of its contents.</p> <p>2. Same. Same. Sanity. Presumption from. Where the jury is satisfied that the testator was sane when the will was executed, the presumption is that he knew the contents of the will, and proof of such knowledge is not required until this presumption is rebutted.</p> <p>3. Same. Same. Same. After an explanation of what is meant by a formal execution of a will, if the proof showed that the testator could read and write, it was not error to instruct the jury that on proof of due and formal execution, the law would presume, in the absence of other proof, that the testator was of sound mind and disposing memory, and that he had knowledge of the contents of the paper.</p> <p>4. Same. Same. Executor. An executor of a will is a competent witness in a contest over the same except as to transactions with or statements made by the tastator.</p> <p>5. Same. Effect of verdict against thepxeeutor where formal execution of the will is proved. It is not error to charge that the meaning of a verdict of “ no will ” is that it was executed under such circumstances as that by law it cannot take effect as a will, the formal execution having been proved.</p> <p>6. Same. Sceme. Same. It is only necessary for the executor to prove the formal execution of a will in the first place, and if he introduces testimony of subscribing witnesses as to the testamentary capacity of testator, he is not precluded from introducing other evidence on that question in rebuttal of contestants’ evidence.</p> <p>See Frear v. Williams, Z Baxter, 550.</p> <p>7. Same. Same. Drtmlcenness. That a testator was under the influence of liquor will not invalidate a will, unless he was in such a condition that he had no intelligent comprehension of the nature of the transaction.</p> <p>8. Same. Same. Irrelevant testimony. What is such evidence. Practice. It is not error to refuse to allow a witness to answer the question, “ how H. got T’s. property ? ” after saying that the testator had told witness that II. would never get his estate as he had gotten T’s., and that witness knew how II. had gotten T’s., such an inauiry is irrelevant.</p> <p>9. Same. Same. Same. The Circuit Judge acted properly in excluding evidence that the executor had been an agent of the Freedman’s Bureau ; that the testator was a Southern man, and to a Southern man such a person was odious.</p> <p>10. Same. Same. Full proof as to testator’s knowledge of his witt required. When. When the testator is in extreme old age, imbecile in mind, surrounded by interested parties, incapable of reading or writing, etc., something more than ordinary ground of assurance that he had knowledge of the contents of his will must be required.</p> <p>Case cited: Patton v. Allison, 7 Hum., 335.</p>

<p>1. Bills and Notes. Vendor's lien. Statute of limitations. The holder of notes, by assignment, given for the purchase money of land, will not he barred by the statute of limitations in their collection, where a lien was retained by the vendor on the face of the deed for payment of the purchase money, the lien in such case accompanies the transfer of the notes.</p> <p>Cases cited: Thompson v. Pyland, 3 Head, 539; Gudger v. Barnes, 4 Heis., 580; Bay v. Goodman, 1 Sneed, 587-</p> <p>2. Same. Non assignavit. Burden of proof. Incompeteney of assignor'. Pleading. Practice. When the transfer of a note is admitted, but the competency of the assignor to make such assignment is denied, in such case the party making the affirmative allegation assumes the burden of proving it. The court say : “It might be a serious question as to whether a third party could avoid the assignment on the ground alleged, not being a privy of the assignor.</p> <p>Cases cited: Shaw v. Brown, 1 Tenn., 249; Bichardson v. Cato, 9 Hum., 466; Whitesides v. Caldwell, 9 Yer., 421; Carter v. Turner, 5 Sneed, 182; Brown v. Phelon, 2 Swan, 629.</p> <p>3. Supreme Court. Practice in. JRemanding of cause. What is sufficient grounds. Where a party has a clear right, so that injustice will be done by dismissing his bill, but his suit fails from a neglect not culpable, it is the duty of the court to remand in such case, that justice can be done.</p> <p>Code cited: Sec. 3170.</p>

<p>1. Statute oe Limitations. Payment. Admits what. The endorsement of a payment on a note by one of the payors after maturity, is only an admission of the justice of the same to the extent of the payment, and without other admissions or acknowledgments, would not arrest the running of the statute of limitations.</p> <p>Case cited: Lock and wife i>. Wilson, 10 Heis., 441.</p> <p>2. Same. Partnership dissolution. Effect of. Nor would an agreement, on the dissolution of a firm, that one of the partners should take the assets and pay the liability of the firm, no particular debts of the firm being specified in the agreement, prevent the running of the statute upon debts due third persons, and admissions or promises made by the partner continuing in business as to the payment of the firm notes, under these circumstances, will not bind the retired partner, notice of the dissolution being given.</p>

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

<p>EBOM MADISON.</p> <p>Appeal from the Circuit Court.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court.</p>

<p>1. Chancery Court. Jurisdiction of for the correction of errors of fact in the records of other courts. The court of chancery has jurisdiction to correct errors of description of land sold under proceedings for partition thereof instituted in the County Court. Thus, where the report of the commissioners describes the land as being in district 2, when in fact it was in district 3, the owner under said proceeding may have the error corrected in a court of chancery.</p> <p>'2. Innocent Purchaser. Notice- A vendor of land is chargeable with notice of all defects appearing in the chain of title under which he claims, and cannot avail himself of the plea of innocent purchaser.</p> <p>S. MuMrcABiotrsNESs. TF7(crf is. Where a bill has but one object it is not multifarious. Facts that will not constitute, see Heis. Digest, 540; Code, sec. 4327.</p>