Volume 68 — Tennessee Reports

<p>EROM SHELBY.</p> <p>Appeal from the Criminal Court. T. H. Logwood, Judge.</p>

<p>FROM GIBSON.</p> <p>Appeal from the Chancery Court. John Somers, Chancellor.</p>

<p>FROM SI-IELBY.</p> <p>Appeal from the Criminal Court. John D. Adams, -Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Criminal Court. J. D. Adams, Judge.</p>

<p>Attaohiitc4 CbeditoR OF Fraudulestt Vendee. Not defeated by rights of Vendor. When. Where a sale of goods is procured by fraud of the sendee, title passes, though it may be subject to the rights of the vendor to avoid the sale. But if a creditor of the vendee attach the goods before the vendor has taken any steps to avoid the sale, he'cannot be deprived oí the proceeds arising out of a sale under the attachment by the vendor.</p>

<p>Dubd 03? Tetjst. Hights of beneficiary to attach rents of property conveyed to secure his debt where trustee has only legal title vdthout possession. Denied. A trustee holding the legal title to land, under a deed of trust, to secure creditors, but not in possession, has no right to the rents, nor can the same be attached by a secured creditor for the payment of his debt.</p> <p>Case cited: Iienshaw v. Wells, 9 Hum., 568.</p>

<p>FROM HARDIN.</p> <p>Appeal from the Chancery Coart. G. H. Nixon, Chancellor.</p>

<p>■Statute op Limitations. Vendor’s lien. Where the legal title has passed to the vendee, and no lien was retained in the deed, the notes given for the purchase money may become barred by the statute. The implied lien of the vendor is then also extinguished.</p> <p>Case cited: Lincoln v. Purcell, 2 Head, 143.</p>

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

<p>Statement oe Case : Brown & Co. obtained judgment against the City of Memphis in the Circuit Court of the United States of West Tennessee for paving, etc., which court ordered a peremptory mandamus, compelling the city council to pass an ordinance levying a special tax to pay said judgment. A levy of fifty-four cents on the one hundred dollars was made in obedience thereto, which was construed also to apply, by the Federal Court, to merchants’ capital, a number of whom filed a pitition in the State Circuit Court at Memphis, praying for a certiorari and supersedeas to bring up and have superseded the distress warrants against each of them, in the hands of the city tax collector for the collection of the special tax assessed against them severally, which they aver to be illegal upon two grounds; first, because the ordinance itself is illegal, the city government having no power under the charter and laws to levy the tax; second, because the amount of the tax is too large, since the assessment of their capital for the year, which was made under the act of 1873, violates the Constitution, and assesses their capital above the proper amount.</p> <p>1. Jurisdiction. Of Slate and federal Courts. Is exclusive and independent. Where a State or Federal Court has rightful jurisdiction of parties and the subject matter, it must he allowed to proceed to judgment and execution; their jurisdiction being exclusive and independent, process issuing from the one cannot be enjoined by suit in the other.</p> <p>2. Arguendo. State court can take jurisdiction. When. Cases might arise where the State Court could take jurisdiction, that is, if the city was proceeding to collect a tax from property exempt, or to collect double the amount assessed, the taxpayer, without denying the legality of the levy, might have his remedy in a State court to avoid paying that which under the levy he was not bound to pay.</p> <p>3. Mandamus. From Federal Court. Defence against by petition, with new parties. Must be made. Where. Not necessary for petitioners to have bean parties to the original- suit. Taxpayers are entitled to no notice, am ordinance levying a tax being legislative in character. The decision of a court ordering a mandamus has the effect of a judgment. When. When a mandamus from the Federal Court orders a tax to be levied to satisfy its judgment, petitioners avoiding the payment of such tax have no relief in the State courts, since the jurisdiction to correct the judgment, or protect parties from its effect, must either be in the court rendering the judgment, or one having the revisory power upon writ of error. The questions being the same, the State courts cannot take jurisdiction merely because the petitioners are new parties; it was not necessary that petitioners should have been parties to the original suit, since the act of adopting an ordinance levying a tas is not judicial, but legislative, in character, no notice to taxpayers is requisite to give it validity. ’ The decision of the court ordering such a mandamus has the effect of a judgment, and leaves the defendant without discretion.</p> <p>4. Mandamus. Issues in nature of fieri facias. When. If a mandamus issues to compel the levying and collection of a tax to satisfy a judgment of that court, it issues in the nature of an ordinary fieri facias, and is not an original proceeding, but simply a mode of executing the judgment of the court.</p> <p>5. Constitution. Construed. Merchants’ tax. The provision of the Constitution relied upon in this case is construed to mean simply that no merchants’ tax, that is, the privilege tax upon merchants, shall be levied upon that part of their capital used in buying goods to sell to non-residents, but the property tax upon merchants shall be uniform with general property tax.</p>

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

<p>1. Chancbet Peactice. Mullifariousness. What is. A bill is multifarious when several matters of a distinct nature are complained of against divers defendants, or a bill that unites against a single defendant several distinct matters; the court must look to the circumstances of-each case to avoid multiplicity of suits on the one hand, and inconvenience to defendant and confusion of evidence on the other.</p> <p>-2. Paetnebship. Statute of six years does not rum against partner. When. No right of action for an account accrues to a retiring partner that can be “ effectually prosecuted,” until the liquidating partners, having possession of the assets, have settled the debts of the partnership; the statute of six years, in such case, does not run against the retiring partner.</p>

<p>1. Municipal Cobpobatioit. Tam paid by reason of threats of litigation, etc. 2?ot recoverable. When. A tax paid by reason of threats of litigation or the apprehension of the levy of distress warrants, cannot on this ground he recovered, although the levy and tax was illegal, there being no fraud or mistake of facts, but only mistake as to legal liability. A State or city may and ought to refund a tax so paid.</p> <p>"2. Same. A City is contracting party, and not agent. When. In a matter of taxation the city is contracting party and not the agent of the tax payers.</p> <p>S. Same. Certificates of indebtedness. Issued by city. Valid. When. A certificate of indebtedness issued by a city, upon its own ordinance, to individuals, who have paid illegal assessments, are valid and binding obligations against the city, and founded upon a valid consideration.</p> <p>4. Same. iSnme. Issued by the city of Memphis receivable for taxes. When' The certificates of indebtedness issued by the city of Memphis in 1873) were receivable for taxes on account of “ Nicholson pavement ” for the years 1873-7L-75, from those who had paid the original assessment to Brown, but while this was so, a State court would not interfere with the special “mandamus tax” levied under the mandate of the IJ. S. Court, as this would be in effect to defeat the execution of the order of said court.</p>

<p>1. Subbogatiow. Mortgage. Bills and notes. Administration. Insolvent proceedings. Chancery practice. The heirs of an estate, on the assumption that it was solvent, paid off certain mortgages on lands; subsequently, on discovering their mistake, they claim to he subrogated to the rights of the mortgagors against the lands. Meld, that if the facts and circumstances show definitely that at the time of payment such right was not intended to he exercised, or could not he exercised without injustice to others, then no such right can be held to exist. They cannot claim benefit of subrogation by any post facto intention, wish or interest growing out of subsequent wants. The right and intention must both concur to make a case of subrogation.</p> <p>Case cited: Mitchell v. Mitchell, 8 Hum., 361-2.</p> <p>■'2. Same. Same. Judgments and decrees. Lien. Nor are the heirs in such case, entitled to any priority over other general creditors, because they have paid off judgments had against their intestate, during his lifetime, when the lien of the judgments so paid’ had expired, by not having been enforced within the twelve months provided by law.</p> <p>3. Same. Same. Estoppel. If the heirs have had their claims proved before the Clerk and Master, and had them allowed as simple creditors in his report, it being confirmed without exception, the court say: It is probable that this of itself would operate as an estoppel upon the heirs, as showing a purpose not to rely on the right of subrogation. The parties may come in on the footing of their claim for debts paid, by virtue of such report and its confirmation, by a decree of the court, which has not been disturbed, and cannot now he assailed.</p> <p>4. Same. Same. Suggestion of insolvency. County Court. Per Curiam. We held at the last term, in the case of Bryant v. Campbell, that by statute, suggestion of insolvency can alone be made in the County Court. But treating the suggestion as a nullity, under a hill for the administration of a complicated estate, with all parties in interest before the court, they will be bound by a decree apportioning the fund among them upon principles of equality.</p>

<p>Homestead. Dower. Widow not entitled to both. When. Administration. "Where a husband has died in 1869, the rights of his widow to homestead, etc., are determined by the act of 1868, which does not enlarge the widow’s rights or interest in her husband’s estate, as against the administrator. A homestead is not among the articles exempt from execution, which descend to the widow, and not to the administrator; her rights to such, are as the head of a family, against a creditor, who is seeking to enforce his debt, by execution or attachment.</p> <p>Case cited: Merriman u Lacefleld, 4 Heis., 220.</p> <p>Code cited: Sections 2114a, 2116.</p> <p>Acts cited: Acts of 1868; Sec. 2, 1870.</p>

<p>1. Municipal Cobpobations. Power and means of collecting taxes under act of 1873, eh. 102, etc. The city of Memphis filed a bill under the act of 1873, ch. 102, to 'which objection was made by demurrer, that the bill alleges lands and lots had been sold for taxes and hid in by the complainant, and points to no defect of title under the proceeding for sale; that, according to the allegations of the bill, complainant has acquired a perfect title, and her remedy is by an action of ejectment. Held, the act of 1873 gives the Chancery Court jurisdiction to evict persons from land in behalf of a corporation, that has bid the same in, at the prices of the taxes due thereon.</p> <p>2. Same. Same. County commissioner need not be parly. When. The power given to the county commissioner to sue is merely cumulative to that of the corporation already vested by law. It is not necsesary that the suit should be brought in his name.</p> <p>■3. Same. Same. Statute of limitations. It is not in the power of the corporation to relieve one and impose upon another a burden, and no laches on its part, or that of its officers, can defeat the right of the public to have collected and rightfully appropriated the public taxes. As against this right, there is nothing of such a character that justice requires an estoppel, or limitation should be asserted.</p>

<p>1. Fbadd and Deceit. Party making representations that afterward become false. Not liable. When. Horrigan applied to Thacker, the cashier of a bank, for information concerning the solvency of Toof, Phillips • & Co.; Thacher replied favorably as to their credit, and upon this assurance plaintiff, from time to time, purchased large amounts of the bills and acceptances of said firm. Eight months later, Toof, Phillips <& Co. failed, and plaintiff lost $2,000 by his investments; thereupon he brought suit against Thacher and the bank for deceit. Held, an honest statement of a mere opinion, however erroneous, as to the solvency or reliability of another, cannot furnish the grounds for an action of this character. A party cannot be held, in such a case, to have given a continuing guaranty against future contingencies, nor to have bound himself to notify the other of what he may well be assumed to be able to discover for himself.</p> <p>Case cited: Wynne & Co. v. Allen, MS.</p> <p>2. Pbincipad and Agent. Bank not liable for acts of cashier. When.</p> <p>Answering questions as to the solvency of partieseis no part of the business of a cashier of a bank, nor fairly included within the scope of such business. It may be, and probably is, anaaS of such position, but not an incident to it. Held, no liability attaches to the bank in such case.</p> <p>3. Bidds and Notes. Guarantor released by conduct of holder. When.</p> <p>When the holder of paper has given credit to a third party upon the recommendation of a cashier of a bank, and the debtor is ready and offers to pay the note at maturity, and the holder instructs th'e cashier to give the debtor an extension of time, which the debtor accepts, and then fails, the cashier, though he had rendered himself liable by the recommendation, is discharged by the release of the holder.</p>

<p>1. Distbict Attoeney-Genebai,.' JFees of. Costs. Office and Officers. Motions against circuit clerk. The District Attorney-General is entitled to a fee of $2.50 only in each case of failure by clerk to enroll cases determined in his court, such failure being a misdemeanor.</p> <p>Code cited: Section 4545.</p> <p>2. Same. Same. Statute of limitations. In pursuance of his duty under Sec. 3228 of the Code, the District Attorney-General can have his motion against delinquent clerks at any time, until the proper statute of limitations forms a bar.</p> <p>Code cited: Section 3228.</p> <p>3. Same. Same. Comity liable for fees. When. In cases where execution upon the motion is returned nulla bona, the county, in which such motion is made, is liable for fees of the District Attorney-General.</p> <p>.Code cited: Sections 4542, sub-sec. 15, 4543-4, 5585-6, 5569-70.</p>

<p>1. Subety. Liability of on note. Though Administrator of his deceased principal is protected by the statute of limitations. Although the administrator of 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>2. Same. Remedy 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-security for p'o rata contribution. '</p> <p>3. Same. Right of action accrues. When. Statute of limitations. When the surety is entitled to his motion, upon rendition of his judgment, yet his cause of 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>Cases cited: Maxey v. Carter, 10 Yer., 521; Caplinger v. Vaden, 5 Hum., 629; Marshall v. Hudson, 9 Yer., 57; Bradford u. McLemore, 3 Yer., 319; Shropshire v. Shropshire, 7 Yer., 165; Bank v. Campbell, 7 Yer., 353; Goss v. Gibson, 8 Hum., 197; Kerr v. Clark, 11 Hum., 77.</p> <p>Code cited: Sections 3625a&j, 3626, 2279, 2281, 2784, 2786.</p>

<p>1. Trustees. Testamentary. Not required to give bond. When. Testamentary trustees are not governed hy the provisions of the Code, See. 1974, et seq., in regard to giving bond, filing inventories, etc.</p> <p>Code cited: Sections 1974-77.</p> <p>2. Same. Same. Ghaneery practice. Before a court of equity will interfere with the execution of a testamentary trust by a trustee, some danger from the misconduct or incapacity of the trustee must be shown, or at least apprehended, with good cause.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Circuit Court. C. W. Heiskell, Judge.</p>

<p>FEOM SHELBY.</p> <p>Appeal from the Chancery Court. R. J. Moegan, Chancellor.</p> <p>No record can be found.</p>

<p>Pleading and Pbactice. Quia, tam actions. Bonds. Pauper’s oath. Quia tam actions must be prosecuted with bond and security. The right to sue in forma pauperis is a personal right, not a privilege to be exercised in a representative capacity.</p> <p>Oases cited: Green v. Harrison, 3 Sneed, 131; McCoy v. Broderick, 3 Sneed, 203.</p> <p>Code cited: Sections 1305, 3192.</p>

<p>PROM PAYETTE.</p> <p>Appeal from the Circuit Court. T. J. Flippin, Judge.</p>

<p>1. Deed. Construed to merely retain a lien or mortgage. When. A deed of conveyance containing the following clause: “ Nevertheless, this deed of conveyance is null and void and of no effect until all the purchase money is paid, then of full force and effect,” is construed to retain merely a lien or mortgage to secure the unpaid purchase money; a non-compliance with the conditions does not avoid it absolutely.</p> <p>2. Equity. To have relief in, upon an allegation of want of title or breach of covenant of seizin. What requisite. Actions. A party can have no relief in equity for the alleged breach of the covenant of seizin, or upon an allegation of want of title, no fraud or insolvency being charged, unless a clause in the deed changes its character, from an executed to an executory contract.</p> <p>Oases cited: Barnett v. Clark, 5 Sneed, 435; Caruthers v. McBurney, 3 Sneed, 593; Law v. Mannering, 8 Yer., 435.</p>

<p>CktmhtaIi Law. Previous opinion of grand juror. Poes not disqualify. The foreman of the grand jury that found the indictment in this case was one of the committing magistrates; such fact was pleaded in abatement to the indictment, urging the incompetency of the grand jury, upon the ground that he had prejudged the case. The court say: “ We do not understand that our laws require that the grand jurors shall he free from any previous opinion, as to the guilt of the accused.”</p> <p>Code cited: Sections 4992, 4002-4002a, 4003, 4004, 5085.</p>

<p>Chancery Practice. Assignment. Pendente lite. Court not homdito-notice. A court is not bound to notice an assignment 'pendente lite. And all interest of a complainant, under a"decree in his favor, rendered after the assignment, ivill enure to the benefit of the assignee in such case. A complainant’s want of interest in the subject matter,, by reason of such fact, at the rendition of the decree, will not avoid the same.</p>

<p>1. Criminal Law. Fees. Costs. District Attorney. Previous to the act of 1875, the district attorney-general is allowed a fee of $5.00 in misdemeanors where the costs were paid or secured hy the defendants, but in no case where the county pays the costs in a misdemeanor was a fee of more than $2.50 allowed. The act of 1875 provided for defendants being compelled to work out the costs, when they failed otherwise to pay or secure them; by the 11th section it is provided, that the county shall pay all the costs in misdemeanor cases, as now, and the proceeds of said convict’s labor shall be paid into the county treasury. Though the attorney-general be entitled to a fee of $5.00, where the convict pays or secures the costs, and though the convict reimburses the county with the proceeds of his labor, and thereby indirectly pays the cost of his trial, yet the court hold, the attorney-general is entitled to a fee of only $2.50 under the partial provisions of Sec. 4515 of the Code, and the convict cannot be compelled to “ work out” any greater amount.</p> <p>2. Same. The convict homd only for State costs. Although the defendant be liable to judgment for his own costs, he cannot be held in custody until he pay or secure the same; he is only bound for costs on behalf of the State.</p> <p>3. Same. Chapter 83 of act of 1875. Void. The act of 1875, ch. 83, which provides that the convict be further held in the work-house, after working out the imprisonment affixed by the jury, and all the costs in the case to work out; “ also all costs which may accrue after conviction for clothing and other necessaries,” considered by the court to he in violation of the 8th sec. of the bill of rights, which declares that no man shall be taken or imprisoned, etc., or deprived of his liberty, but by the judgment of his peers or the law of the laud; this chapter is held by the court to be void.</p> <p>Cases cited : Act of 1875, sec. 11, ch. 83; Bill of rights, sec. 8; State v. Wm. Stanton, 6 Col.</p>

<p>FROM FAYETTE.</p> <p>Appeal from the Circuit Court. T. J. Flippin, Judge.</p>

<p>FROM FAYETTE.</p> <p>Appeal from the Circuit Court. T. J. Flippin,. Judge.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court. R. J. Morgan, Chancellor.</p>

<p>Bills and Notes. Assignment of. Evidence. Pleading and practice. Magistrate. "Where a party sues upon a note that has been assigned to him, it is necessary that he should prove the assignment, if contested; in order to establish his claim to the paper sued on; yet such assignee will not be required to prove the assignment, unless it be denied by plea. If the suit originates in the circuit court, the plea should be in writing; if before a justice of the peace, the plea may be oral, either before him or on appeal to the circuit court.</p> <p>Cases cited: Richardson & Price v. Cato, 9 Hum., 460; Stone v. Bond, 2 Heis., 425.</p>

<p>1. CíCAíTCEBY Pbactice. Principal and surety. Guardian and ward. Administrator. Insolvent estate. A bill for an account may be maintained against a surety of a deceased guardian, without making the administrator a party, where the insolvency of the guardian is alleged.</p> <p>Cases cited: FostersMaxey’s Ex’r,6Yer.,224; Passu.Dibrell,8Yer.,470. Code cited: Sections 2784, 2787.</p> <p>2. Same. Same. If the interest sought to he reached hy the hill so filed, is for the benefit of a distributee of the deceased ward, the complainant must pursue his right through that person’s representative.</p>

<p>Mabkeed Women. Sills and notes. Public policy. A note executed by a husband, living separate from bis wife, to a trustee for ber, as an inducement for ber to return to bim, is vrndum pactum, and contras-venes public policy, and is not tolerable in law.</p>

<p>1. Ol'l’ICB AND OluriCER. Forfeiture of fees. by officers. When. In cases ■where the Legislature has made the performance of any duty pertaining to an office, a condition upon which fees or salaries are to he paid, the officer is not entitled to demand his fees until such duties are performed.</p> <p>2. Same. Olerks of Gireuit Gourt. Clerks of Circuit Court shall forfeit their costs, as provided in Section 5242 and sub-secs. 6 and 7 of Code-</p> <p>Code cited: Section 5242, sub-secs. 6 and 7.</p>

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

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

<p>PROM MADISON.</p> <p>Appeal from the Chancery Court. H. J. Livingston, Chancellor.</p>

<p>Special Legislation. Unconstitutional. Mumievpal corpomtims.- Bond for costs. An act providing that cities of a certain population and ovei' may institute suits, etc., without giving bond for costs, is unconstitutional and void.</p>

<p>CrimuíAL Law. Judgments and decrees. Nolle prosequ/i. Nrror to set aside. When. A nolle prosequi was entered at one term of the court through mistake. During that term, in the absence of defendant, it was set aside, and the case reinstated on the docket. At the next term the defendant moved to set aside the order reinstating the cause, which was done. Held: this was error.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Circuit Court. C. W. Heiskell, Judge.</p>

<p>Pbopeety not in Esse. 2s the subject of a valid mortgage. A crop yet to-be planted is the subject of a valid mortgage. Such an assignment is held by the court to be lawful.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Criminal Court. T. H. Logwood, •Judge.</p>

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

<p>1. Ceimiítal Law. Bail. Surety. Olerle’s power to arrest defendant. A clerk of the court is not authorized to direct the arrest of a defendant where he has been released on giving security, or to direct his imprisonment in the county jail as a means of collecting a judgment rendered against him and his surety.</p> <p>Code cited: Sections 5166, .5829.</p> <p>2. Same. Resisting arrest. Office and officers. A miiimus issued by the clerk of a court improperly and in violation of law, and directing the sheriff to arrest and imprison the party named, will not justify the officer in attempting to make such arrest; and the resistance of the party by killing the officer does not amount to murder. The officer must at his peril see that he has valid process in his hands to authorize an arrest.</p> <p>3. Same. Evidence. Severance. Competent xvitness. A party jointly in- ' dieted for the same offense, but who has obtained a severance, and is not put on joint trial, is a competent witness for defendant. •</p> <p>Cases cited: Delozier v. State, 1 Head, 46; Rice v. State, 1 Yer., 432.</p> <p>4. Same. Same. Dying declarations. The dying declarations of a witness to a homicide are not admissible in evidence. Only such are admissible as are made by him for whose homicide the prisoner is on trial.</p> <p>Case cited: Hudson v. The State, 3 Col., 359.</p>

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

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court. R. J. Morgan, Chancellor.</p>

<p>EROM SHELBY.</p> <p>Appeal from the Criminal Court. T. H. Logwood, Judge.</p>

<p>PROM MADISON.</p> <p>Appeal from the Law Court. H. W. McCorry, Judge.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Bartlett Circuit Court. J. E. R. Ray, Judge.</p>

<p>Bills Am> Rotes. Principal and sweiy. Negotiable paper transferred as collateral secwity. Negotiable paper transferred as collateral security, for subsisting indebtedness and future advances, is subject to all equities tben existing, and tbe maker is protected if be bas paid tbe note to tbe rightful bolder before tbe transfer, though tbe transfer was before maturity.</p> <p>Cases cited: Gosling v. Griffin, MS., Nov., 1864; Yatterlien v. Howell, 5 Sneed, 441. These cases reviewed.</p>

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

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

<p>EROM MADISON.</p> <p>Appeal from the Chancery Court. H. W. Mc-Corry, Chancellor.</p>

<p>PROM G-IBSON.</p> <p>Appeal from tbe Humboldt, Chancery Court. John Somers, Chancellor.</p>

<p>EROM MADISON.</p> <p>Appeal from the Law Court. E. W. Haynes,. Special Judge.</p>

<p>•FROM MADISON.</p> <p>Appeal from the Law Court. H. E. ■ Jackson, Special Judge.</p>

<p>1. Statute on Limitations. Executors and administrators. Insolvent proceedings. Ghancery practice. Judgment on suit against Executor mth/in seven years. Bill filed after seven years to subject realty. Where suit against a personal representative is brought within the time prescribed by law for such actions, the bar of the statute is saved as to the whole assets of the estate, embracing realty, descended to the heir, which, upon exhaustion of the personalty, may be reached by bill in chancery for that purpose, filed more than seven years after death of the testator, the running of the statute being defeated by the commencement of the original suit within two and a half years from the qualification of the executor, which was diligently prosecuted to judgment.</p> <p>Oases cited: Smith v. Hickman’s Heirs, Cooke’s B., 329; Pea v. Wag-goner, 5 Haywood, 1; Johnson v. Dew, 5 Haywood, 224; Peck «.Watson’s Heirs, M. & Yer., 353; Williams v. Conrad, 11 Hum., 412; Stone v. Sanders, 1 Head, 249; Earles v. Earles, 3 Head, 366; Wayne Davidson v. Evans, Adm’r, et als., MS.; Venable v. Estill, MS.</p> <p>Code cited: Sections 51, 2252, 2281, 2786.</p> <p>2. Same. Same. Supreme Gourt. Scire facias.. The judgment creditor in this case sued out a scire facias in the supreme court, against the heirs, to show cause why the judgment should not be revived, and satisfied out of the real estate descended to them. The court say: To a scire facias sued out by a judgment creditor, to subject the realty descended to the heii’, the latter may make all defenses that were, could or should have been made by the personal representative in the original action, the judgment against the personal representative being only prima facie evidence of indebtedness against the heir. He-may also make an issue with the personal representative as to the mismanagement and waste of the personalty. It is doubtful, therefore, whether the supreme court, a court of appellate jurisdiction only, has jurisdiction of such writ of saire facias. In this case the question need not be decided, because there was no plea of fully administered in the original action, without which there can be no fui'ther proceeding at law against the heir.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court. K. J. Morgan, Chancellor.</p>

<p>FROM MADISON.</p> <p>Appeal from the Law Court. H. W. McCorry, Judge.</p>

<p>Pleading AND PRACTICE, Judgments and deerees. Actions. Justice of the peace. An action may be maintained, in the circuit court, on a judgment had before a magistrate, under which execution has issued and levied upon land, and returned into the circuit court for condemnation.</p> <p>Cases cited: Smith v. Pearce, 2 Swan, 127; Gardner ¶. Henry, 5 Col., 458.</p>

<p>1. Married Women. Evidence. Contracts. The suit being against the defendant personally, and not as the representative of her husband, plaintiff could testify as to a contract made with the deceased husband.</p> <p>2. Pleading and Practice. Svpplying lost papers. Affidavit. The fact that a party to a suit, instead of the clerk, makes affidavit of loss of papers, is not reversible error.</p>

<p>Cbiminai, Law. Bringing stolen property into this State. Infamy. A person may be convicted under the act of 1875, ch. 31, for bringing stolen property into this State, but the judgment of infamy cannot be prescribed as part of the punishment.</p> <p>Case cited: Simpson v. The State, 4 Hum., 459.</p>

<p>FROM OBION.</p> <p>Appeal from the Circuit Court. Jos. R. Hawkins, Judge.</p>

<p>■ Chancery Practice. Administration. Administrator im, collusion with debtor. If the administrator collude with a debtor of the estate, not to collect a debt from or to recover assets from him, a creditor or dis-tributee of the estate may file a bill to compel a settlement, making the administrator and such debtor defendants.</p>

<p>Judgments and Decbees. Office and officers. Service of process. Chancery practice. A judgment cannot be vacated in chancery, on the simple, unsupported evidence of the judgment defendant, that he was not served with process, where the writ shows the officer’s return, though he may not remember the fact of service.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Criminal Court. T. H. Logwood, Judge.</p>

<p>PROM MADISON.</p> <p>Appeal from the Chancery Court. H. W. Mo Corry, -Chancellor.</p>

<p>Cktmttjat. Law. Kuklux law. Section 4770 of the Code construed. The prisoner was indicted under Section 4770 of the Code and convicted. The indictment reads as follows: “ The defendant on the 5th day of November, A. D., 1877, in the county and jurisdiction aforesaid, then and there unlawfully and feloniously being masked and in disguise, unlawfully and feloniously then and there did enter upon the premises of one Ellis Davis, in said county situate, against the peace and dignity of the Slate.” The facts were, that the prisoner entered the hen-house of the prosecutor, for the purpose of stealing chickens, as acknowledged by himself. Held, that the indictment was proper and the conviction correct.</p> <p>Case cited: , The State v. Box, MS., Jackson, 1875.</p> <p>Code cited: Section 4770.</p>

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

<p>Deed oe Trust. Sale of land. Under after death of maker. Blight to-proceed not waived by judgment at law. Bights of parties. The power of a trustee to sell land for the purpose of paying a debt, is a power to sell coupled with an interest, and is not revoked hy the death of the maker of the deed. The creditor secured by the deed may proceed against the trust property pas the primary fund, whether before or after the death of the debtor; and this right is not waived by obtaining a judgment at law.</p>

<p>FROM ICNOX.</p> <p>Appeal from the Circuit Court. E. T. Hall,. Judge.</p>

<p>FROM MONROE.</p> <p>Appeal from the Circuit Court. E. T. Hall, Judge.</p>

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

<p>1. Buis and Notes. Mortgage. -Renewal of note secured by. If a mortgage is given to secure a note, and at the maturity of the note it is renewed, the renewal does not release the mortgage unless such is clearly shown to be the intention of the parties.</p> <p>2. Same. Homestead. Voluntary alienation of. When a husband and wife execute a conveyance, and the same is acknowledged as required by law, they part with their right of homestead, although the deed may contain no express stipulation conveying the homestead.</p>

<p>EROM BRADLEY.</p> <p>Appeal from the Chancery Court.</p>

<p>FROM GBEENE.</p> <p>Appeal from the Circuit Court. E. E. Gillenwatebs, Judge.</p>

<p>EROM GREENE.</p> <p>Appeal from the Chancery Court. H. C. Smith, Chancellor.</p>

<p>FROM BRADLEY.</p> <p>Appeal from the Circuit Court. JOHN B. Hoyl, Judge.</p>

<p>EROM "WASHINGTON.</p> <p>Appeal from the Circuit Court. J. A. McKinney, Judge.</p>

<p>FROM HANCOCK.</p> <p>Appeal from the Chancery Court. H. C. Smith, Chancellor.</p>

<p>Redemption op Read Estate. Partial payments. The purchaser may receive partial payments or demand the full amount. In the absence of any other agreement, partial payments must be understood, with reference to the redemption laws, and by the favor of the purchaser. If at the end of two years the whole amount be not paid, the purchaser becomes debtor to the original owner to the extent of the amount paid, which may be recovered either in chancery or by an action at law.</p>

<p>FROM GREENE.</p> <p>Appeal from the Circuit Court. E. E. Gillenwaters, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court. O. P. Temple, Chancellor.</p>

<p>Minor. Gounty court may bind, when. Gkild not to be bound without mother’s consent, when. An order oí the county court binding a minor to involuntary servitude, is not conclusive upon him or the mother, when made upon the court’s own motion, without notice to either the minor or the mother, and the court having determined the existence of none of the facts necessary to make their action proper in sucli cases</p> <p>The court say: “The failure of the mother, upon being subsequently informed of the order of the court, to take action to repudiate the binding, would not necessarily render the action of the court valid, especially as against the minor himself, upon the supposition that he had been abandoned by the mother. If the mother be able to support the child, it cannot be bound without her assent in open court. If the mother be not able, or if she has abandoned him, yet if the child is able to support and take care of himself by his own labor, we think the court has no power to bind him, without, he is in some way a party to the proceeding so as to bind or estop him, whicli we think does not appear in this case.”</p> <p>Case cited: Lawson v. Scott, 1 Yer., 92.</p> <p>Code cited : Secs. 1622, 2547-9.</p>

<p>Bills and Notes. Condition. Default. Wioh sum due. Waiver. Malcw’s rights. A stipulation in a promissory note, bearing interest payable annually, that upon a failure to pay interest annually the note shall be due, is a provision for the benefit of the payee, which he may waive, and cannot be taken advantage of by the maker of the note.</p> <p>Case cited: Caruthers v. McBurney, 3 Sneed, 590.</p>

<p>1. Constitutional Law. Gomtruetion. Legislative power. Power to grant charters, with exemption from taxation. The Legislature possesses inherently all legislative power, and the Constitution is to be construed as limiting or restricting, but not as granting the power. The power to grant charters of incorporation, with exemptions from taxation, binding upon the State, so that the charter, after acceptance, becomes a contract and irrepealable, falls properly under the head of legislative power.</p> <p>Cases cited : Union Bank v. State, 9 Yer., 490 ; Hope v. Deaderick, 8 Hum., 1.</p> <p>2. Same. Constitution of 1834 did not restrict the power. Section 28, of Article 2, of the Constitution of 1834, to-wit: “All lands liable to taxation, held by deed, grant or entry, town lots, bank stock, etc., and such other property as the Legislature may, from time to time, deem expedient, shall be taxable,” imposed no restriction upon the power of the Legislature to stipulate for total or partial exemptions from taxation in charters of incorporation.</p> <p>3. Same. Sale of property. When it passes this immunity. Under an act of the Legislature the State loaned its bonds to a railroad corporation, which by its charter, was exempt from taxation; said act reserving a right in pursuance of which a subsequent act was passed, providing for the enforcement of the State’s lien in a court which was expressly empowered to determine all questions touching the rights of the State, and all other parties. In a proceeding instituted by the State against said corporation, it was adjudged, in pursuance of said act, that a sale of the property and franchises of the company would vest the purchasers with “ all the rights, privileges and immunities,” appertaining to the same. Meld, that under the decree immunity from taxation passed to the purchasers; that the State having provided for the adjudication of these questions, and the purchase having been made on the faith thereof, it cannot question the validity of the adjudication.</p> <p>Case cited : E. T., V. & (fa. R. R. Co. v. Hamilton County, MS., Knox..</p>

<p>FROM SMITH.</p> <p>Appeal from the Circuit Court.-, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court.-, Ch.</p>

<p>1. Constitutional Law. Mandamus against State officer. Not maintainable. When. A proceeding by mandamus to compel an officer of the State to do that which the Legislature has prohibited him from doing, is in effect a suit against the State, and was not maintainable prior to the act of 1855, (Code, sec. 2807), nor subsequent to the repeal of that act by the Legislature in 1865. It therefore follows that a tax collector cannot be required, by this form of action, to receive notes of the Bank of Tennessee, emitted after May 6th, 1861, in payment of relator’s taxes, under the 12th section of the Bank charter, enacted in 1838, in the face of legislative instruction to the contrary, even though the notes were issued during the time that see. 2807 of the Code was in force, that section being considered as an ordinary act of legislation in regulating the jurisdiction of the courts of the State, and not such an act as would so incorporate itself with the 12th section of the Bank charter as to constitute a part of the contract between the State and the holders of the notes.</p> <p>Cases cited : Williams v. The Register of West Tennessee, Cooke, 218 ;</p> <p>M. &. C. R. R. v. The State and the Bank of Tenn., 3 Baxter, 395. Statutes cited: Chapters 13, 44 and 118, acts of 1875.</p> <p>2. Same. Obligation of contracts. Not impaired by laws prohibiting receipt of new issue Sanie of Tennessee notes for taxes. There is no obligation on the part of the present State government to receive the notes of the . bank issued after the inauguration of the rebel State government, in payment of taxes due the State. For, although as between the bank and the holders, these notes are valid and protected from impairment through hostile State legislation, by the Federal Constitution, yet. sec. 12 could only have been operative upon the bills or notes emitted during the existence of the illegal State government through the re-enactment or tacit recognition thereof, by such State government, which had no power to commit the State to the terms of the contract imposed thereby for a period longer than its own existence. It was therefore competent for the restored State government to repudiate these notes, so far as its liability to take them for taxes was concerned, the guaranty of the illegal State government not having been under the protection of the Federal Constitution.</p> <p>Case cited: The State and Watson, trustee, v. The Bank of Tenn. et oí., 5 Baxt., 1.</p>

<p>1. Criminal Law. Ministerial acts. When not invalid. An indictment for a felony against a party, the filing of a plea of “not guilty” thereto, and the order of the judge to spread the indictment upon the minutes of the court, are mere ministerial acts, in no wise affecting the interest of the accused. Such proceedings are therefore not invalid because had while a judge was presiding, incompetent to sit upon the trial of the cause.</p> <p>2. Same. Failure to spread indictment upon minutes does not invalidate the cause. Nor does the omission to have spread the indictment upon the minutes of the court either enlarge or diminish the rights of the accused, since the object of such a proceeding is simply to provide against the consequences of the loss, abstraction or destruction of the orignal.</p> <p>3. Same. Appointment of special judyes. Authority for must he strictly pursued. Consequences of omission so to do. In the appointment or selection of special judges in criminal cases, the law authorizing it must be strictly pursued. Neither does the Constitution nor any statute of the State provide .for the appointment of a special judge, in' such a case, by the agreement of the parties. The verdict and judgment rendered, while a special judge so appointed was presiding, are therefore held void, the prisoner declared never to have been in jeopardy, and remanded for trial de novo.</p>

<p>1. Duck River Valley Narrow Gauge R. R. Charter. The Charter of the Duck River Valley Narrow Gauge Railroad discussed, and held valid except as to powers sought to be conferred by it, which are included in the charters granted by the Legislature to the Nashville and Decatur and Tennessee and Alabama Railroad Companies.</p> <p>2. Same. Marshall county bonds. The bonds issued by Marshall county in payment of her subscription to the capital stock of said company, held valid and binding on-the county.</p>

<p>Pi.eadiNG and Phaotioe. Before Justices. Certiorari. Petition for. Mis~ take not sufficient to'sustain. Plaintiff, in a petition for certiorari to bring up cause from a justice of peace, alleged that he had a good de-fence to the action, but understood the case to be set for the 26th, when it was tried on the 19th, and that he did not discover his mistake until too late to appeal. Held not sufficient to support the petition.</p> <p>Case cited : Copeland v. Cox.</p>

<p>1. Liability oe Municipal Corpobation. Power of Committee to bind corporation. Water-works. Improvement. The power to make a contract for the introduction of a new and expensive improvement in a system of water-works, being equivalent in general to the power to levy, collect and disburse taxes, must be exercised in the same manner and by the same authority, that is, by a corporate act. There being no general law or ordinance modifying this rule, a water-works committee had no power to bind a corporation by a contract of this character,</p> <p>2. Same, Same. Ratification of contract by city government. The court below instructed the jury that the failure of the city authorities within a reasonable time to disaffirm what the committee had done, would be a ratification ; and refused to charge, that the ratification could only be by the action of the two boards of Aldermen and Councilmen approved by the mayor, and that the mayor and members could not commit or estop the city by any conduct or expressions of the water-works : Held, error.</p> <p>Case cited : The State v. Ward & Briggs. 9 Ileisk., 100.</p> <p>5. Same. Use of machine. Patent right. The use of a patent machine does not necessarily imply, in the absence of a contract, that the patent is to be paid for.</p>

<p>Telegraph lines. Taxable. Telegraph lines are considered as partaking of the nature of realty, in analogy to the new doctrine that railroads and rolling stock are so treated, and consequently under the act of March 24, 1875, such property is held hy the court liable to State and county tax, notwithstanding it also pays a privilege tax.</p>

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

<p>Ikburaitce, Life. Assignment of polity. During husband’s life. A bus-baud wbo has taken out a policy of insurance on his own life, payable in the usual form to him, his executors, administrators and assigns may dispose of the same by will. The provisions of the Code, secs. 2294 and 2478, directing that such a pioliey shall survive to the benefit of the widow and children, and shall not be subject to the debts of the husband, only apply when the policy remains undisposed of by the husband in his life time.</p> <p>Case cited: Bison v. Wilkerson. 3 Sneed, 569.</p> <p>Code cited: Sections 2294, 2478.</p>

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

<p>EROM DAVIDSON.</p> <p>Appeal from the Criminal Court at Nashville. T. N. Frazier, J,</p>

<p>Sale oe Lakd. Verbal contract. Improvements. When a vendor of land by-verbal sale, puts the vendee in possession, and the vendee occupies and uses the land for a time, and then abandons the contract and refuses to take the land, in suit by the vendor against the vendee for use and occupation (the vendor being in no default), the vendee will not be allowed to set off the value of improvements, made by him while in possession, against the vendor’s claim for use and occupation.</p> <p>Oases cited: Humphreys v. Hottsinger, 3 Sneed, 228; Merritt v. Parks, 6 Hum., 324; Wilkins v. May, 3 Head, 173 ; Baines v, Huddleston, 4 Pleis., 323 ; Henning & Bird v. Palland, 4 liéis., 362.</p>

<p>1. PRINCIPAL and Surety. Set-off. Bills and notes. In an action against principal and surety, a debt due to the principal alone, may he set-off against the plaintiff’s suit.</p> <p>2. Contract. Evidence. Statute of frauds. It will be competent to seek to establish plaintiff’s contract, to be responsible to his principal for goods credited by him as a clerk, by evidence showing that other clerks had entered into a similar obligation, and had actually paid for articles so sold. Such a contract if made is not in violation of the statute of frauds by the clerk becoming responsible for the debts of an other, under the conditions of the contract.</p>

<p>EROM WILLIAMSON.</p> <p>Appeal from the' Chancery Court of Williamson, county.</p> <p>No record can be found.</p>

<p>1. Taxation. Exemption. Corporation. Railroad. Charters. The -word “exemption” is not comprehended within the words “rights and privileges,” as applied to a corporation claiming a right of exemption from taxation by virtue of a section of its charter, conferring upon it the rights and privileges of a like cop oration, which latter corporation was by express terms of the charter exempt from taxation.</p> <p>Oases cited: Mississippi & Tennessee Railroad v. The State, at Jackson ; East Tennessee, Virginia & Georgia Railroad v. Hamblin county, at Knoxville; Constitution of the State, sec. 7, of art. 11; also, sec. 8, art. 11; Act of Legislature, December 11,1845, sec. 38.</p> <p>2. Exemptions erom Taxation. Public policy. Exemptions from taxation are contrary to public policy, and can only be allowed when granted in clear and unmistakable terms. If the language in which they are claimed to be granted leaves it doubtful, the benefit of the doubt must be given to the State, the life of which is taxes.</p> <p>3. Exemption ebom Taxation not Assignable. An exemption from taxation is iiersonal to the corporation or individual possessing it, and is not assignable.</p> <p>Case reviewed : Knoxville & Ohio Railroad Company v. TIicks, th volume.</p>

<p>PROM RUTHERFORD.</p> <p>Appeal from the Circuit Court of Rutherford county. W. H. Williahson, J.</p>

<p>PROM JACKSON.</p> <p>Appeal from the Chancery Court.</p> <p>No record can be found.</p>

<p>1. Public School Law. Violated. When. A contract to set out trees, shrubbery and evergreens around a school-house, or a contract to enclose a school-house with a fence, and to furnish furniture for the room, is such a contract as the Board might make, but, when made with a director, it is in violation of the 19th section of the public school law, and is a misdemeanor under sec. 4596 of the Code.</p> <p>. 2. Contract. Consideration implied. When. The making of a contract implies a consideration, and the charge of taking a contract imports, ex vi termini, an agreement to do on a sufficient consideration.</p>

<p>1. Supersedeas. How and in what cases supreme court can exercise it. Under the authority given the supreme court by secs." 3933, 3934, 4512. and 4513 of the Code, to supersede interlocutory orders and decrees, that court can simply suspend or supersede, for the time being, the execution of such orders and decrees as are of a nature to be actively and affirmatively enforced, and are in fieri; but have no power, in this mode, to reverse the action of the inferior court, or to set aside, or annul, or supersede orders or decrees, which are merely of a negative or prohibitory character, or such as have been executed.</p> <p>Cases cited: McMinnville & Manchester R. R. Co‘. v. Huggins & Price, 7 Cold., 217; Mabry v. Ross, 1 Heis., 769.</p> <p>2. Same. Ohanaellor’s fiat. Nor has the supreme court, in a proceeding of this character, the power to supersede the fiat of a chancellor awarding extraordinary process.</p>

<p>Cl-XAisrcEBY Salts. Surety on notes. The surety on notes given for land bought al a chancery sale cannot be freed from his liability by averring or showing that his principal will not get a good title to the land bought. If the principal does not ask that the sale be set aside, the security cannot.</p>

<p>LatTi Bond. Judgment on. Security on appeal. Liable for. What. A bail bond is a bond for tbe payment of money within the meaning of the Code, sec. 3162, and on appeal from a judgment thereon, the security is bound for the whole debt, damages and costs.</p> <p>Case cited: Banks v. Brown, 4 Yer., 198.</p> <p>Code cited: Sec. 3162.</p>

<p>Chancery Practice. Creditor by deed. Redemption. Reed of trust. Principal and surety. A security upon a debt which is set out in a deed of trust, and who purchases the land at the trustee’s sale, is not a creditor by “debt acknowledged by deed ” within the meaning of the Code, sec. 2127, which permits such creditor and purchaser to advance upon his bid.</p>

<p>PROM COPPEE.</p> <p>Appeal from the Circuit Court. W. P. Hickejr-son, J.</p>

<p>1. Cbtminat. Law. 'Keepers of hotels. Rights. The 2d section of the act of 1875, oh. 180, which gives a right of action to the keeper of any hotel, theater, public house, restaurant or common carrier, against any person guilty of turbulent or riotous conduct, within or about the same, etc., does not violate Sec. 17, Art. II. of the Constitution, forbidding the passage of an act embracing more than one subject; nol-is it in violation of the 16th section of the Bill of Rights, forbidding excessive fines and punishment.</p> <p>2. Constitution, Art. II, Sec. 18. Per Curiam. “ The evil intended to be remedied by this provision, is to prevent laws upon one subject being tacked on to a bill upon a wholly different subject, and in this way, sometimes elude the attention of the Legislature, and pass without sufficient consideration.”</p>

<p>Okdebs. Assignment of claim. Office and offikers. Clerk and master„ Where a clerk and master accepts an order on him, for a fund to be . collected by. him, on condition that the order is presented on the day the notes fall due: Held, that his liability depends upon the presentation of the order at that time.</p>

<p>Homestead. Debt contracted before passage of law. Statute of limitations. New p'omise after passage of law. Tlie statute of limitations operates only to bar the remedy ; a new promise, therefore, is not the substantive cause of action, but the original debt. Hence, under the act of 1870, a homestead is not exempt from the payment of a debt contracted before its passage, although the bar of the statute has been completed, if the new promise is made subsequently thereto.</p> <p>Oases cited: 7 Yer,, 543; 4 Yer., 74; 9 Yer., 63; 2 Swan, 513.</p>

<p>Pleaking akd Pbaotioe. Bastardy. Defendant not entitled to the benefit of reasonable doubt. Bastardy cases are in tlie nature of civil redress, although the form, of enforcing the remedy is hy a State proceeding. Notwithstanding this fact, the defendant is not entitled to the benefit of the doctrine of reasonable doubt, applicable in criminal cases.</p> <p>Case cited: O’Neal v. The State, 2 Sneed.</p>

<p>Bilis and if otes. 3/itle. JSvidence. The title to a promissory note may he passed -without delivery of the note. Evidence was permitted to go to the jury, tending to show a transfer of the note, which was supposed to be destroyed by fire, with instructions from the judge that they were only to consider it as showing a transfer of the note, and not the fact of its existence; held not to be error.</p>

<p>1.JWn/L. Evidence. It is admissible to prove the statement of the testator that he signed the will in the presence of the subscribing witnesses.</p> <p>2. Same. Evidence. Act of 1569-70 construed. Under the act of 1869-70, T. & S. Code, sec. 8818, a, b, c, d, the devisees and legatees under the will are competent witnesses to prove the declarations of the testator.</p> <p>3. Same. Evidence. Presumption. When the fact that the signature of the subscribing witnesses are genuine is established, and nothing else appears, the presumption that the attestation was in the presence of the testator is conclusive. But if there be positive testimony on the subject by the subsceibing witnesses or otherwise, it then becomes a question for the jury to settle upon all the evidence.</p>

<p>MEECHAiTT’s Tax. Merchant. Trustee to sell. A trustee to whom goods are assigned, and who sells them from the store, but without replenishing the stock, is not a merchant, within the meaning of the law, so as to be bound to take out license or pay tax in order to sell the goods.</p>

<p>Homestead. Possession. Renting out land, or farming it upon shares without living upon any part of it, though residing in a house adjoining the same, is not a possession of said land as a homestead, and does not give the homestead right.</p> <p>Code cited: Sec. 2114a.</p>