Volume 70 — Tennessee Reports

<p>FROM SUMNER.</p> <p>Appeal from the Chancery Court at Gallatin. H. H. Lurton, Ch.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal from the Chancery Court at Franklin. W. S. Fleming, Ch. . .</p>

<p>Eesoission. Lien of Execution. The levy of an execution, -without sale, but fixes a lien, attaching to the legal title, and is subject to any equity against the debtor, relating to the right of the grantor to rescind for duress or fraud.</p>

<p>Bastardy. Appeal. Appeal from the county court in bastardy cases lies to the criminal court, and not to the circuit court, in a county having a criminal court.</p>

<p>Chajtobby Pheadiugs axd Pjkacticio. Statute of Limitation. Amended Answers. An amended answer, relying upon the statute oí limitations, ought not to be allowed three years after the filing oí the original answer, although the latter be not under oath, merely upon the affidavit of the defendant’s solicitor that the original answer was filed in the absence of his client, and that the omission of the defense of the statute was inadvertent.</p>

<p>FROM HICKMAN.</p> <p>Appeal from the Chancery Court at Centerville. G. H. Nixon, Ch.</p>

<p>PROM PUTNAM.</p> <p>Appeal in error from the Circuit Court of Putnam county. E. L. Gardenhire, Sp. J.</p>

<p>How to pat the State Debt. Lightning-rod Peddlers to he taxed. To peddle lightning rods is such an occupation or business as is declared to be a privilege, and is forbidden to be exercised without license.</p>

<p>PROM MONTGOMERY.</p> <p>Appeal in error from tbe Criminal Court of Montgomery County. C. W. Tyler, Judge.</p>

<p>1. Subety. Will not be released. When. It is no ground for relief of a surety in equity, that he called the attention of the officer who summoned him to trial jointly with the principal, to the fact that he was marked as security on the face of the note sued on, and told him to proceed to collect the debt as soon as possible, that he would neither stay the judgment nor procure its stay, and protested against haying it stayed ; nor that he told the officer, who came to him with the execution after judgment, that he neither stayed it, or had it stayed, that the stayor was liable before him, and to tell the owner of the judgment ■ to proceed to make his money.</p> <p>2. Same. Holding up execution by creditor will not release surety. A surety after judgment, haying the remedy in his own hands under our statutes, will not be released by the delay of the judgment creditor to proceed against the principal, nor by the issuance and return of executions without anything being done under them, nor by a positive order of the creditor to hold up the execution.</p> <p>3. Same. Right to be subrogated upon voluntary payment. The original surety, who is entitled to be subrogated, upon payment of the judgment, to the creditor’s right against the stayor, may assert this right after a voluntary payment, and need not wait until compelled to pay by execution. 4</p>

<p>Will. Construction. The second item of a will gave land to the testator’s wife “ during her natural life and she lives on it, and not rent or sell, it; ” the third item gave the land which the wife “ has while she lives” to E. S. “ after her death.” Held, that the words added to the devise for life restricted the use and alienation of the land, not the estate, and that the life estate continued, notwithstanding a removal of the widow from the land, and renting it to others.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal from the Chancery Court at Eranklin. W. S. ElemiNG, Chancellor.</p>

<p>FROM DICKSON.</p> <p>Appeal from the Chancery Court at Charlotte. G. H. Nixon, Ch.</p>

<p>1. Wills. Construction. A testator devised all his estate, real and personal, to Ms wife during widowhood, to hold the same to help her school and raise her children, with power to give them “their portion,” or as much as might he agreed upon by her and the executors, and with power in the executors to sell or trade any of the property that they might think for the comfort and interest of the wife and children, but said nothing more in his will in relation to the “ portion ” of the children. Held, that there was a partial intestacy, and that the property, subject to the estate given to the widow, vested at the testator’s death in his children, each child taking an equal share in remainder, to be enjoyed on the termination of the widow’s estate, or sooner by the exercise of the power of making advancements.</p> <p>2. Same. Same. Estate in, remainder. Vested, when. A testator devised certain land to his wife for life, and “ at the death ” of the wife, to his only surviving child for the joint and several lives of herself and her husband, “with remainder over” to his grand children then in being, and to the heirs and representatives of those grand children who may have died. Held, that the estate in remainder vested at the death of the testator’s widow.</p> <p>3. Code. Construction. Inheritance. The Code, section 2420, undertakes to provide in what manner the land of an intestate owner shall be inherited by his lineal descendants, collateral kindred and ascendants, and makes sub-divisions which require to be construed together as parts of a common plan, and has used in its second sub-division the word “ acquired,” as including all lands which came to an intestate in any other way than “by gift, devise or descent’from a parent or the ancestor of a parent.” The dictum in Penniman v. Francisco, 1 Heis., 511, to the contrary is incorrect.</p> <p>4. Wipe’s Vested Estate ht Remahtdee. Personally. A wife’s vested estate in remainder in personalty goes, upon her death, to her husband jure mai'iti, and, upon his death, to his personal representative for the benefit, after the payment of all debts, of the distributee under the statutes of distribution, and if the distributee be his only child, who dies without issue, brother or sister or their issue, or parent, leaving as its next of kin a maternal 'grandfather, and paternal or maternal uncles and aunts, the maternal grandfather would be the distri-butee of such personalty.</p> <p>5. Statutes oe Distribution. Intestacy without issue, brother or sister or their issue. An intestate died without issue, brother or sister or their issue, or parent, leaving a maternal grandfather and paternal uncles and aunts surviving, and having land inherited from the intestate’s father, and land inherited from the intestate’s half-brother. Held, that the land which came to the intestate by descent from the father would go, under the Code, section 2420, sub-section 3, to the paternal uncles and aunts exclusively, and the land inherited from the half-brother would go, under the Code, section 2420, sub-section 2, one moiety to the paternal uncles and aunts, and the other moiety to the maternal uncles and aunts, and that two aunts who were equally related to the father and mother, .would take severally a share in each moiety.</p>

<p>Supreme Court Practice. Writ of Restitution. A writ of restitution will, on motion, be issued by this court to restore an applicant to the possession of land in litigation, of which the applicant was deprived by writ of possession granted by the court below before, but executed after appeal perfected.</p>

<p>EEOM ROBERTSON.</p> <p>Appeal from the Chancery Court at Springfield. C. G. Smith, Ch.</p>

<p>1. Evidence. Widow. When a competent witness in a suit against her deceased husband. In a suit brought by the personal representative of the intestate, to recover a debt created in the lifetime of the latter, the widow of the intestate is not a competent witness to depose to any statement of the husband, or any fact which came to her knowledge by means of the marital relation, but she would be competent to prove facts which came to her knowledge from other sources.</p> <p>2. Same. Married woman. Competent witness when. Upon a bill filed by a mechanic to enforce the lien given him by law for labor and material in the erection of a house, where the land sought to be reached has been conveyed to the sole and separate use of a married woman, the wife is a competent witness on her own behalf, although the deposition of the husband, who is a nominal party to the suit, has also been taken by her without objection by the other side.</p> <p>3. Same. Husband and wife. When competent witness for each other. Previ- . ous to the recent statutes declaring that no person shall be incompetent to testify because a party to the record or interested in the issue, the husband or wife was, in this State, incompetent to testify for or against each other in any suit in which the other was a party or interested ; since these statutes, the husband or wife who is a party to the suit and directly interested, may testify on his or her own behalf, but the other would not be a competent witness, either for or against such party, to prove any fact which came to his or her knowledge by means of the marital relation, and the incompetency will continue after the marital relation has terminated.</p>

<p>1. CmMiNAL Law. Plea m dbalemmt and plea of not guilty. When a plea in abatement to an indictment is submitted to the jury, together with the plea of not guilty, and the jury find the issue on the plea in abatement in favor of the defendant, he should be held for another indictment, though the jury be discharged without his consent.</p> <p>2. Same. Indictment. Grand jury. An indictment for a felony should be drawn and witnesses examined upon the indictment. An indictment for larceny cannot be found upon the testimony of a witness summoned before the grand jury to testify as to offenses as to which they have inquisitorial jiowers, who upon his examination testified as to the felony, and upon such testimony the indictment was afterward drawn and found.</p>

<p>FROM HUMPHREYS.</p> <p>Appeal from the Chancery Court at Waverly. G. H. Nixon, Ch.</p>

<p>FROM GILES.</p> <p>Appeal from the Chancery Court at Pulaski. W. S. FlemiNG, Ch.</p>

<p>1. Husband and Wife. Separate estate. A parol gift of a chattel to create a separate estate, must be clearly expressed at the time so as to cut off the marital rights of the husband.</p> <p>2. Same. Same. Where the intention of the donor is not clearly expressed at the time, the silence or acquiescence of the husband will not invest the wife with a separate estate.</p> <p>3. Same. Same. A settlement made by the husband to the separate use of the wife, will be held to be in consideration of the money or property received from the wife; and if of equal value, will be held to satisfy the wife’s equity growing out of money or property received by her from her father.</p>

<p>PROM WILLIAMSON.</p> <p>Appeal from the Circuit Court. Jeto. V. Wright, J.</p>

<p>Iliegal Contbact. Usury. When not recoverable. Where A. owes B. a sum of money and 0. pays it at the request of A., he may recover it, although the transaction between A. and B. be tainted with usury; but if C. borrows money of B. on a usurious contract to loan to A., at the latter’s request and for his benefit, 0. cannot recover of A. the usury paid by him to B.</p>

<p>FROM SUMNER.</p> <p>Appeal from the Chancery Court. H. H. Lurton, Chancellor.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby county at Memphis. T. H. Logwood, J.</p>

<p>EliOM SHELBY.</p> <p>Appeal from the Probate Court of Shelby county., T. D. Eldbidge, J.</p>

<p>FEOM SHELBY.</p> <p>Writ of error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>FROM OBION.</p> <p>Appeal in error from the Law Court at Union ■City. S. W. Cochean, Sp. J.</p>

<p>Criminal Law. Vagrancy. Indictment. An indictment, under act of 1875, ch. 105, for vagrancy, is good, which charges that defendant, having no visible means of support, did unlawfully fail, refuse, and! neglect to apply himself to some honest calling, and did loiter around drinking saloons and gambling houses.</p>

<p>1. Married Woman. Separate estate. Mortgage. Under a settlement of realty on a married woman to her sole and separate use, “ with power to sell, lease or mortgage all or any part of said property by deed or other instrument, by her alone, or in her own name executed, and to hold the proceeds arising from any such sale, or mortgage, or letting of the property, either real or personal, purchased with the same,” the married woman may execute with her husband a valid conveyance to a trustee in trust to secure a contractor the consideration agreed upon for the erection of improvements on the property.</p> <p>2. Trustee. Sale of real estate. Cannot be made. When. A trustee’s sale of realty in satisfaction of the trust debt to thecreditorunder a deed waiving the equity of redemption, cannot be sustained when made pending a litigation by the debtor to teot the validity of the deed and ascertain the true amount of the debt, the sale being had upon the dissolution of an injunction granted on the filing of the bill, the order of dissolution directing a mode of sale, and that only so much of the property be sold as might be necessary to pay the debt as set forth in the creditor’s answer, and without prejudice to the debtor’s rights on final hearing, the Supreme Court haying superseded so much of the order as directed the mode of sale, and the debt on final hearing having been found to be less than the amount claimed by the creditor in his answer and at the sale.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby County. J. E. R. Ray, J.</p>

<p>PROM LAUDERDALE.</p> <p>Motion to recall this case from Commission Court and reinstate upon the Supreme Court docket.</p>

<p>PROM OBION.</p> <p>Appeal from the Chancery Court at Union City. John Somees, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from tbe Criminal Court of Shelby County. J. E. R. Ray, J.</p>

<p>Baweiujptoy. ASSIGNEE. Amended hill treated as original hill. Statute of limitations. One partner having filed a bill against his copartner and a judgment creditor of the copartner who had levied his execution on land, the title to which was in the copartner, to have the land declared partnership properly, because bought by the firm and paid for with the firm assets, shortly after which the land was sold under the execution and bought by the creditor, and then the firm went into bankruptcy, and three years thereafter the assignees, by leave of the court, filed a bill stating the previous proceedings, the adjudication in bankruptcy, the appointment of complainants as assignees, and that they had always been in possession and control of the property, and asking to be permitted to prosecute the suit. Held, on demurrer, that the bill of the assignees was an original bill in the nature of a supplemental bill, and that a mistake of the draftsman in calling it an amended bill and bill of revivor, would not vitiate it. Held, also, that the assignees were not barred of their action by the statute of limitations of two years, and that the court had jurisdiction.</p>

<p>PROM SHELBY.</p> <p>Motion to remand for amendments.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. W. W. McDowell, Ch.</p>

<p>Party wau, Owner’s contribution. One owner of a party wall, who has made additions to it for his own convenience, is entitled to contributions from the co-owner, who afterward uses the additions, to the extent of one-half the .value of the additions at the time they are thus used.</p>

<p>GeimenaI; Law. Presentment. Sale of intoxicating liquors. Incorporated institutions of learning. A presentment, under the act of 1877, ch. 23, which charges the defendant, in the language of the statute, with selling an intoxicating beverage within four miles of an incorporated institution of learning, is good without designating the institution or the beverage.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from -the Criminal Court of Shelby county. J. E. R. Ray, J.</p>

<p>G-uaedxajct. May defend suit where really is involved. A regular guardian may defend for his wards, and waive service of process, even where the realty is involved.</p>

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

<p>'Chancery Practice. Amended bill. Will not be allowed filed. When. An amended bill based on matter in existence at tbe filing of tbe original bill, ought not to be allowed six years thereafter, without a satisfactory excuse for the omission to make it a part of the original bill.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the Law Court of Madison County. -, Sp, J.</p>

<p>FROM LAUDERDALE.</p> <p>Appeal from the Chancery Court at Ripley. H. S. Livingston, Ch.</p> <p>Steele and Steele for complainants.</p>

<p>1. Op.tmtttat. Law. Voluntary Manslaughter. A conviction for voluntary manslaughter cannot be sustained, where the facts set out in the bill of exceptions leaves it doubtful whether the act from which the death resulted was accidental or designed.</p> <p>2. Same. Same. Negligent me of pistol. The negligent use of a loaded pistol by a person who believed it to be empty, without any intention to do harm, is not sufficient to turn an accidental killing into the crime of voluntary manslaughter. Though it would be otherwise if the act were done under such circumstances as to make it an assault.</p>

<p>Raxdeoad. Engineers. Competent witnesses. That part of section of the Code 1169, which renders the engineers and agents of a railroad incompetent witnesses to prove that accidents were unavoidable, is repealed by the act of 1869-70 — T. & S. Statutes, 3813, a. b. c. d. — and the witnesses are competent.</p>

<p>FROM HENRY.</p> <p>Appeal in error from the Circuit Court of Henry county. J. R. Hawkins, J.</p>

<p>FROM CARROEL.</p> <p>Appeal in error from the Circuit Court of Carroll county. J. R. Hawkins, J.</p>

<p>1. ADMrmSTBATioir. Insolvent estate. When suggestion of may he made. A personal representative is not bound to know the fact of insolvency before he can make the suggestion, but has the right, when he has reasonable ground to apprehend the insolvency of the estate, to protect himself against being compelled to pay the debts in full, until the fact be ascertained, and for this purpose to suggest its insolvency.</p> <p>2. Same. Same. An administrator may suggest the insolvency of the estate after the time allowed by law, upon shewing satisfactory reasons for the delay. Case: C. was appointed administrator in 1865, and in 1869 suggested insolvency of the estate and filed bill to wind up same, averring that from best information he could get he had believed the estate solvent, and acted accordingly in paying debts and distributing legacies on refunding bonds; but that a number of suits had been brought from time to time against the estate, which under advice of counsel he was resisting; and that on 10th June, 1868, a bill had been filed to wind up a partnership of which his intestate was a member, claiming a large sum due from the estate, which, if established, would render the estate insolvent, and that he seriously apprehended he would not be able successfully to defend said suit because of the death of the book-keeper of said firm, and that for these reasons he had made the suggestion of insolvency. Upon objection that the suggestion and bill came too ' late, it was held, that, under these facts, the delay was not unreasonable, and the bill might be maintained.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby County. C. "W. Hbiskell, J,</p>

<p>FROM HENRY.</p> <p>Appeal in error from the Circuit Court of Henry-County. J. R. Hawkins, J.</p>

<p>Chanceby PbACTICE. Administration. Creditors. When quasi parties. An administrator, with, the will annexed, filed a bill against the heirs, devisees and legatees of the testator, for the purpose of executing, under the orders of the court, a power conferred upon the executor by the will to sell land for the payment of debts, and obtained a decree accordingly, under which some of the creditors came in by petition and had their claims allowed without objection, after which an order was made directing the master to ascertain and report the other indebtedness of the estate, and he reported certain claims, to the allow-anee of which exceptions were filed. Held, on appeal from the ruling of the Chancellor on the exceptions, that an objection for the first time made in this court to the form of the proceedings could not he entertained ; that the creditors whose claims were admitted by the master were quasi parties to the suit, and their coming in under the order would be a bar to all other proceedings on their part.</p>

<p>1. Scire Facias. Defense thereto. Upon scire facias in this court to revive against the heirs of a deceased defendant, the defenses to the scire facias are only such as may avail to prevent the revivor, hut after the suit is revived the heirs may make any defense on the hearing which the ancestor could have made.</p> <p>2. Mortgage. Husband and wife. To pass an estate in lands the grantor must he a party to the efficient and operative parts of the instrument of conveyance, especially if the grantor be a married woman. And therefore a mortgage of land, purporting on its face to be by the husband alone, is not binding upon the wife who merely signs it, although probated in proper form.</p> <p>3. Same. Bill to foreclose. Answer by married woman. Not estopped. When. Upon bill filed by a mortgagee against a husband and wife to foreclose a mortgage alleged to be executed by them, and made a part of ' the bill, an answer of the wife, with the husband, admitting the execution of the mortgage, “reference being made to the deed itself” for greater certainty, will not prevent the wife, or her heirs, in the event of her death, from insisting that the mortgage does not pass her estate in the land.</p> <p>4. Coevetaece. Husband and wife. Survivorship. Under the deed of a third person, conveying land to a husband and wife in fee, with power in the wife upon joint deed with the husband to sell and convey the same, the estate vests in the husband and wife by entireties, and upon. the death of the wife continues in the husband, and a mortgagee of the husband, pending the marriage, will be entitled to the benefit of the survivorship.</p>

<p>■1. Pbactice. Hemoval of guardiicmship. Appeal bond. An appeal will lie from tlie sentence, judgment or decree of a county or probate court, ordering, upon a petition under tlie Code, secs. 2534-2538, the guardianship of an infant to be transferred from one county to another, and directing the removal of the infant’s estate, and the proper bond of appeal is one for damages and costs.</p> <p>2. Sotbesds Covet. Mandamus. The Supreme Court may issue a mandamus to compel the lower courts to accept the proper bond required to perfect an appeal.</p> <p>3. Appeal Bond. Mandamus. Where an appeal from a final decree was prayed and granted by the judge, and a proper appeal bond tendered and refused, the judge demanding a different bond, whereupon a petition was filed in this court for a mandamus to compel the acceptance of the proper bond, to which the opposite party appeared. Held, that the appeal might be perfected by executing a proper bond in this court, without actually issuing and proceeding under the mandamus.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Second Chancery Court at Memphis. S. P. Walker, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby. C. W. Heiskeijd, J.</p>

<p>Attachment Bond. Suit on. Attorney's fees. In a suit upon an attachment bond for wrongfully suing out an attachment, the plaintiff is not entitled to recover attorney’s fees paid by him in defending the attachment suit, but is entitled to recover costs paid by him if the attachment was wrongfully sued out, although upon probable cause.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>1. Contbibutoby Kegiigenoe. On the question of contributory negli- . gence, the doctrine that any negligence whatever that remotely contributed to the accident or injury will preclude a recovery, is not sustainable on principle. The sounder inquiry is, whose conduct or neglect more immediately produced- the injury done ? If the act or neglect of defendant, then he should be held responsible. If the injury was caused by the conduct, or was the immediate result of the conduct of the plaintiff, to which the -wrong of the defendant did not contribute as an immediate cause, then plaintiff should not recover. If defendant was guilty of a wrong by which plaintiff is injured, and plaintiff also in some degree was negligent, or contributed to the injury, it should go in mitigation of damages, but cannot excuse or justify the wrong of the defendant.</p> <p>2. Damages. Compensatory. Punitive. Ability to pay. In estimating compensatory damages, the ability of the defendant to pay cannot he considered, but otherwise in vindictive or punitive damages.</p>

<p>Bailment. Landlord. When a guest of a hotel who has deposited his money with the cierk, upon paying his hill and leaving, leaves it with him as clerk of the house, to be kept without compensation until he should afterward call for it, the landlord will not after this be bound for it if the clerk embezzle or misappropriate the money, although he knew it was so left with his clerk, if he had no reason to suspect his fidelity, as it is under such circumstances in his possession as gratuitous bailee, and not as landlord.</p>

<p>Judge. Salary. When not entitled to. A Judge whose courts have been abolished by the Legislature, ceases to be a Judge of the State, and is not thereafter entitled to his salary for the balance of his term of office so abolished.</p>

<p>1. PABTNEBSHn?. New partner. Pre-existing'debts. Inability therefor. In order to hold an incoming partner bound for the pre-existing debts of a firm, he must become liable for such debts by either expressly assuming them upon proper consideration, or by otherwise dealing with the creditor in such a manner as to create a.n implied obligation and duty to pay the same in common with the old firm. And in either aspect of the rule, the assent of the party to be charged, and the consent of the creditor to accept the new liability, are necessary to the new partner’s liability.</p> <p>2. Same. Same. Entries on partnership boohs. Where debts of an old firm are charged to the new firm on its books, the rule that entries on the books of a firm shall bind the partners has no application to the liability of the new partner for debts of the old firm so charged, unless he had access to the books and was thereby enabled to know what had been done. In such case his consent to be bound will be implied if he fail to object at the time when he first has notice of such entries..</p> <p>3. Same. Same. Same. The principle that prima/aeie a partner is assumed and held to know what is on the books of the firm where he has the means of access to the same, is a.n inference of fact always drawn when the circumstances present a case for it, but is not so conclusive that it cannot be rebutted.</p> <p>4. Same. Inabilities of partners to third parties. Where B., who had four pianos for sale as agent of the makers, formed a copartnership with. McC., and put them in as part of the stock of the new firm, without notice on McC.’s part that they did not belong to B., it was held that B. could communicate no higher title than he had, and that the firm were liable for same to the makers.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Second Chancery Court at Memphis. S. P. WALKER, Ch.</p>

<p>PROM PERRY.</p> <p>Appeal from the Chancery Court at Linden. Geo. H. Nison, Ch.</p>

<p>PROM SHELBY.</p> <p>• Appeal from the Second Chancery Court of Shelby county. S..P. Walker, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Second Circuit Court of. Shelby County. Irving Halsey, Judge.</p>

<p>1. Bills and Notes. Endorsement. Guarantor. Notice. An endorsement on a note in these words, “ I transfer the within note to C. S. P., and agree to be liable after the maker of the note is sued to insolvency, (signed) B. G.,” is a conditional guaranty, and the holder need not give the endorser any notice of failure to make the money out of the maker by the means stipulated for, unless required by the endorsement in such cases, but in order to recover he must show a compliance on his part with the conditions on which the guarantor’s liability is to arise.</p> <p>'2. Chakge oe the Cottbt. Request for instructions. Must he specific, not general. After the court had charged the jury, counsel for defendant stated to the court that his Honor had heard his argument on the trial, and requested the court “ to charge the jury upon the points of defense made in his argument,” which the court declined to do. Held, there was no error in this, because the request was too general, in that it failed to designate either the point of objection to what had been charged, or to specify the point omitted on which instructions were desired.</p> <p>3. Pbactice. When request for instructions should be made. After the jury • had been charged and had retired, counsel prepared instructions in ■writing and handed them to the court with the request that the jury withhold their verdict until such instructions, and such other matters as might be presented, were given them by the court, which was refused on the ground that the jury had been charged without further request at the time than the general request alluded to above, held not to be error.</p> <p>4. Same. Same. After the jury have been charged, if either party desires further or different instructions given to them, it is the duty of such party then to present the desired instructions, in writing if the court so requires, and if such party is not then prepared' to present the points on which he desires instructions, he should ask for and be allowed a reasonable time in which to do so.</p> <p>5. Same. Bequest for mstmctions should be in writing. The better practice is to require all such requests to be in writing, as preventing mistakes and unnecessary disputes between the court and counsel as to what was requested.</p> <p>6. Notes aed Biles. Conditional guaranty. Prosecuted to insolvency. When. Where the holder of the-note, endorsed as set out above, promptly obtained judgment thereon against the maker, who was solvent at the time, and had execution issued thereon to the proper officer, who-failed to make the money because of the breaking out of the war, and an alleged general public sentiment where said judgment was obtained, which suspended the forcible collection of all debts, and made it dangerous for officers to collect money by compulsory process; and after the war said holder by process of revivor against the administrator and heirs of the maker, who had died in the meantime, exhausted his remedies against his estate, but without success; it was held that his right of action against the guarantor had accrued, although the sheriff might be liable for not making the money. The endorsement being construed to be a contract that the holder of the paper should, with reasonable diligence, sue to insolvency the maker of the paper, and not extending to other persons, such as clerks or sheriffs, who may render themselves liable for the debt by reason of official defaults about the matter.</p> <p>7. Same. Same. Same. Not bound to pursue his remedy against properly in other States. In such cases of guaranty the holder is bound to sue to insolvency the maker, in the courts of the maker’s domicile, but is not required to pursue remedies that he might have against the property of the maker in States other than that of his domicile, although the maker may have property in the State of the holder as -well as in. his own.</p> <p>8. Evidence. Incompetent. Cannot be withdrawn. When. A party ■who himself introduces incompetent evidence and takes the chance of thereby misleading his opponent by the proof of a fact being in, will not then he allowed to withdraw it to suit the exigency of his case.</p>

<p>1. Constitutional Law. Title. Subject matter. Under a provision of the Constitution of the State, that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title,” an act entitled “An act to repeal the charter of certain municipal corporations and to remand the territory and inhabitants thereof to the government of the State,” is not rendered unconstitutional by a provision that the property used by such corporation for municipal purposes is transferred to the custody and control of the State, to remain public property for the uses to which it has been hitherto applied.</p> <p>2. Sake. Same. Same. Under the same constitutional provision, an act entitled “A bill to establish Taxing Districts in this State and to provide the means of local government for the same,” which grants municipal franchises to the communities within the territorial limit? of the Taxing Districts, and gives to the corporation thus created all the necessary legislative, judicial and police powers of an incorporated city, and contains specifications of offenses against the corporation or committed by its officials, with penalties and punishments, contains only one subject within the meaning of the Constitution.</p> <p>'3. Same. Municipal Corporations. Legislative power to abolish. Municipal corporations are within the absolute control of the Legislature, and may be abolished at any time in its discretion, and an act which repeals the charter of a single municipal corporation is constitutional.</p> <p>4. Taxing Distbicts. Municipal Corporations. An act which grants municipal franchises to the communities within the territorial limits of certain districts, in order to provide the means of local government, and creates the “ agencies and governing instrumentalities ” of a municipal corporation, with the usual legislative, executive and judicial powers, although it may style the creations “ Taxing Districts,” in reality organizes the people and territory of the district into municipal corporations.</p> <p>5. Constitutional Law. General Law. An act which provides “ that the several communities embraced in the territorial limits of all such municipal corporations in the State as have had or may have their charters abolished, or as may surrender the same under the provisions of the act, are hereby created Taxing Districts, in order to provide the means of local government for the peace and safety and general welfare of such district.’ and further provides for the surrender of all charters of municipal corporations in the State, to enable the communities within their limits to be governed by the new act, is in form a general law, and cannot be hold to be intended as a special law, even if the courts can iriiquire into the intention of the Legislature, although mainly framed or designed for a particular locality, where the acts of the same session of the Legislature show a repeal of thirty-seven municipal corporations, all of whoso communities fall at once within the provisions of the act.</p> <p>6. Samis. Taxing Districts. Legislative poiver to create. The act creating Taxing Districts, confers the legislative power of the new municipal government upon a legislative council, consisting of throe commissioners and five supervisors, three of which officials are to be appointed by the Governor with the consent of the Senate, one by the Quarterly Court, and four to be elected by the qualified voters of the district, all to hold office for two years, and after the expiratioir of the first term, to be elected by the qualified voters of the district. Held, that the first appointments were provisional and within the competency of the Legislature, and that the permanent organization was entirely free from constitutional objection.</p> <p>7. Municipal Cobpobation. Taxation. Legislative power. In this State the Legislature may reserve to itself the right to directly impose the necessary taxes for the support of municipal corporations.</p>

<p>FROM HENRY.</p> <p>Appeal from the Chancery Court at Paris. Jyo. Somers, Ch.</p>

<p>1. Criminai, Law. Forgery. An order for merchandise may be the subject of forgery, though addressed to no one.</p> <p>2. Samu. Uttering a forged instrument. The defendant may be convicted of uttering forged paper, if the name forged resembled the genuine signature so much as to deceive men of ordinary business capacity.</p>

<p>1. Ckebk Aim Master. Neglect of duty. A clerk and master is liable for neglect of duty, either by himself or his deputy.</p> <p>2. Same. Not liable when. Upon a bill being filed, where the clerk is to issue the attachment, and the allegations do not authorize the attachment, so that it would have been either void on the face of the record or voidable, or a decree based thereon would be reversible, so that no levy under the writ could have been valid, the clerk will not be liable, except perhaps for nominal damages, for not issuing such a paper, as it would not have been authorized by law, and would havb been of no advantage to complainant.</p> <p>3. Same. Liable when. Measwre of damages. Burden of proof. But when the clerk fails to issue an attachment upon a proper bill, and negligence is established, the measure of damages is the debt lost, unless the clerk can show that the property sought to be attached was of less value than the amount of the debt, and in such case the damages will he the value of the property.</p> <p>4. Attachment Bul. Sufficient allegations. An attachment bill need not state in hae verba that the claim is “ a just debt,” but a statement of facts showing the claim to be a just one is sufficient.</p> <p>5. Clerk and Master. Duty. Proper parlies to bill. Amendment. The clerk cannot refuse to issue an attachment because all proper parties-.are not made parties to the bill, for it may be afterward amended.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court, of Shelby County. C. W. PIeiskell, J.</p>

<p>FROM TIPTON.</p> <p>Appeal from the Chancery Court at Covington., H. J. Livingston, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. R. -J. Morgan, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. Tf. Heiskell, J.</p>

<p>Coal On., Inspection of same. Coal oil and other illuminating fluids manufactured or offered for sale in this State are subject to inspection under'the acts of the 24th of March, 1875, and the 22d of March, 1877, and to sell said fluids or oils in this State without inspection is a misdemeanor, whether sold for consumption in this State or elsewhere.</p>

<p>CHANCERY Pleadings and Pbactice. Officers’ fees. The Legislature having passed an act limiting the emoluments of the clerks and other officers to a given sum, and requiring them to make a half-yearly exhibit of fees received, and to pay over the excess above the amount allowed to certain officials, and making it a misdemeanor to evade the law by connivance with others, or by an incorrect report. Held,. that a hill by a clerk to have his rights declared, and the act construed and pronounced unconstitutional, could not he sustained in advance-of the occurrence of a state of facts creating a real controversy.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. B>. J. MORGAN, Ch.</p>

<p>CkemotaIí Law. Drunkenness. Upon a trial for murder in the first degree, or an assault with intent to commit murder in the first degree, it is error for the court to charge that drunkenness cannot be looked to by the jury unless it was sufficient to incapacitate the defendant for premeditation and deliberation. The drunkenness may not be so excessive as to render the defendant incapable of forming a deliberate purpose, but such as greatly exoited him and produced a state of mind unfavorable to deliberation and premeditation. In such trials drunkenness in any degree should be submitted to and considered by the jury.</p>

<p>■1. Adiunistbatob. Statute of Limitation. Where creditors file a bill to settle an insolvent estate to -which the administrator is made a party, he answers but does not mention any debt or claim due him for said • estate until after a decree for an account, and while giving his deposition, when for the first time he sets up a debt in his favor, more than two years and a half having elapsed from the grant of administration; Held, that his demand is barred by the statute.</p> <p>'2. Homestead. Remaiind&r interest subject to be sold to pay debts. The decision in Harvey v. Duncan, manuscript opinion in 1876, that the remainder interest in the homestead can be sold to pay debts, is reaffirmed.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal from the Second Chancery Court of Shelby county. S. P. Walker, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. C. W. Heiskell, J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from tbe Criminal Court of Shelby county. J. E. K. Kay, J.</p>

<p>MOTIONS.</p> <p>Samuel P. Walker and Howell E. Jackson for motions.</p>

<p>Ckeminai, Intent. Degrees of intent. Under an indictment for an assault with intent to commit murder in the first degree, under sec. 4626 of the Code, a conviction may be had for an assault with intent to commit murder in the second degree, under sec. 5222 of the Code.</p>

<p>ObimutaIi Law. Jurisdiction of small offenses. Justices of the peace. The act of March 24,1879, entitled “An Act to give justices of the peace original jurisdiction of all misdemeanors, and to regulate appeals, in misdemeanors from justices of the peace,” etc., is unconstitutional and void.</p>

<p>EROM KNOX.</p> <p>Appeal from the decree of the Chancery Court at Knoxville. O. P. Temple, Ch.</p>

<p>1. Homestead. Abandonment of. The husband with his wife and mother resided on the lot in controversy from 1871 to 1874, when the husband went to Kentucky and his wife to her father’s, in another county in this State, leaving the mother of the husband in charge of the property. Upon bill filed by wife enjoining the sale o£ the property by husband’s creditor, it is held that she has no homestead right in the same, though she states in her bill that it was her intention to return as soon as she could — three years nearly having elapsed since her abandonment — this not being a sufficient possession under the statute, 2114a of the Code.</p> <p>2. Same. Subrogation to rights of trust creditor by wife. The wife, however, may be subrogated to the rights of such trust creditors whose debts. against the property she has paid.</p>

<p>Redemption oe Land. MistaJce. In Sheriff’s return. Correction of. Its effect. Where a party failed to redeem land in time, because he was •misled by the records oí the court, upon which was spread the time of the sale, as taken from the sheriff’s false return, it stating a time subsequent to the proper time, will not be deprived of his right of redemption if he tender his money within the two years from the first entry, though the record be afterward changed so as to speak the proper date, he being ignorant of such alteration until too late.</p>

<p>1. Deed. Want of consideration not presumption of fraud. Wlien. Where a father gives land to his son upon the condition that he takes care of his mother after the death of the father, it is no evidence of fraud for want of consideration, because the father before his death made ample provision for the mother, nor would the son be relieved of the obligation to support his mother by such subsequent provision by the father.</p> <p>2. Same. Delivery of deed. Where the circumstances indicate that it was the intention of the parties for the deed to take immediate effect, the delivery will be regarded as complete, though the actual custody remain with the grantor.</p>

<p>EROM KNOX.</p> <p>Appeal in error from the Criminal Court of Knox county. M. L. Hall, J.</p>

<p>EROM GREENE.</p> <p>MOTION TO APPOINT RECEIVER.</p>

<p>Ejectment. Levy of justice’s execution based on certified execution. Judgment must be produced. A purchaser at sheriff’s sale of laud, levied upon by a justice’s execution in one county based upon a certified execution from another county, condemned and sold under the provisions of the Code, sec. 3073, must, in order to sustain an action of ejectment for the recovery of the land, produce the judgment on which the certified execution issued.</p>

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

<p>EBOM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. 'O. P. Temple, Ch. -</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. O. P. Temple, Ch.</p>

<p>EROM KOANE.</p> <p>Motion for Judgment against' the State for costs.</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. George Washington, Sp. Ch.</p>

<p>FROM CLAIBORNE.</p> <p>Appeal in error from the Circuit Court of Claiborne county. Ti-ieo. Rogan, Sp. J.</p> <p>-for Neil.</p>

<p>FROM HAMILTON.</p> <p>Appeal from the Chancery Court at Chattanooga. W. M. Bradford, Ch.</p>

<p>1. Pleadings. Sheriff and sureties. Suit against. In an action against the sheriff and his sureties on his official bond, the dismissal of the suit by the plaintiff as to one of the sureties will not affect hts right to proceed against the other sureties.</p> <p>2. Constitutional Law. Act demanding Jury im pleadings constitutional. The act of 1875, ch. 4, which requires the parties to demand a trial hy jury at a particular period of the litigation, is a reasonable regulation, and not a violation of that right, a,nd constitutional.</p>

<p>1. PRACTICE. Amendment. Demanding a Jury. After declaration and plea have been filed, the court may in its discretion, upon application, permit an amendment demanding a Jury.</p> <p>2. Eauboabs. Sees. 1166-67 construed. All the requirements of sec. 1166 of the Code must he complied with when “ any person, animal or other obstruction ” appears upon the road, if it be possible to do so; but if from sudden appearance upon the track it be impossible to comply with all the requirements, then the company will not be liable.</p>

<p>1. Dedication. Puilie Streets. It is a dedication of land to the use of the public for streets and avenues, when the land is laid off into lots by Commissioners appointed for the purpose, and the lots sold not only according to the plan on paper, hut with the corners of the lots and line of the streets and avenues designated by large wooden stubs driven into the ground, with the number of the lots cut thereon, which stubs were in place on the day of sale and for years afterwards, and' the purchasers went into possession with full knowledge, and continued to recognize the public easement; and a municipal corporation, created shortly after the salé so as to include the land “with such lots, streets, lanes and alleys,” takes the land covered by the streets in trust for the public.</p> <p>2. Same. Same. Statute of Limitations. The statute of limitations will not run against the right of a municipal corporation to remove obstructions from its public streets.</p> <p>3. Same. Same. Same. Estoppel. The continuous enclosure of a strip of a public street by the owner of two lots for eight or ten years with a recognition of the public easement, and a subsequent occupation by persons under him for twelve or fifteen years, including the period from the 6th of May, 1861, to the 1st of January, 1867, when the statute of limitations were suspended, is not sufficient to work an equitable estoppel on the city by laches to remove the obstruction, it appearing that the street was little used, and never worked on until within seven or eight years before action taken.</p>

<p>1. GROWING Chops. Sale. Statute of frauds. Registration. Growing crops,. if fructus industríales, are chattels, and an agreement for their immediate sale, whether mature or immature, is not an agreement for the sale-of land under our statute of frauds, and the agreement, if reduced to writing, need not be registered, either for the purpose of making the sale valid as to the creditors of the vendor, or making the writing evidence.</p> <p>2. PliTiADnirs. Replevin. Plea in abatement. It is not a good plea in abatement to a writ of replevin that the defendant held the property as • deputy sheriff by virtue of the levy of an execution, and that the writ was directed to and executed by the sheriff, nor, a fortiori, is it a good plea in bar of the action.</p> <p>S. Same. Plea and replication. To a plea in an action of replevin for wheat, that the defendant held the wheat, at the execution of the writ, under a levy thereon as the property of a person named, made by him as deputy sheriff, the plaintiff replied that the wheat was not the property of the person named at the time the defendant avers that he levied thereon, and the defendant moved to strike out the replication because “ immaterial.” Held, that the motion was properly overruled, although the plea further averred that while the defendant was so holding the wheat, the plaintiff caused his writ of replevin to be directed to and- executed by the sheriff.</p>

<p> FROM KNOX. </p> <p>Appeal in error from the Circuit Court of Knox county. E. T. Hall, J.</p>

<p>Chahceby Pleadings. Sill to set aside fraudulent decree is an original cmd not a bill of review. A bill which seeks to recover money from a defendant upon the ground that it was declared to be due to him by an entry, in the form of a decree, falsely and fraudulently procured by him, in a suit in chancery to which he was a party at a term subsequent to that at which a final decree was rendered, without the knowledge of the other parties, and ordered to be paid to him by an entry, in the form of a decree, in another suit to which he was no party, clandestinely and fraudulently obtained by him without the knowledge of the litigants, is not a hill of review, hut an original bill attacking the supposed decrees for fraud.</p>

<p>Chajtoeuy Court. Will not permit the regularity of its proceedings to he determined at law. As a general rule, the court of chancery will not per-mitidle regularity of its process to he determined by any other tribunal, and will therefore sustain a bill enjoining an action at law against its clerk and the sheriff, based upon the supposed irregularity of an order issued by the former and executed by the latter, and filed for the purpose of determining the validity of the order, and this without prejudice to the rights of the agrieved party to compensation if the order should be held to be irregular.</p>

<p>1. Cbiminai. Law. Indwtment. County Court Clerk An indictment, under sec. — of the act of 1875, ch. —-, for failure to make report of revenue, need not aver that the failure or omission to report was corruptly done.</p> <p>2. Glebe. County Court. Sis duty to report. It is the duty of the county-court clerk to make his report, whether he has received any revenue or not, and he is liable to indictment if he so fails.</p>

<p>PROM JEPPERSON.</p> <p>Appeal in error from the Circuit Court of Jefferson county. J. G. Rose, J.</p>

<p>FROM MONROE.</p> <p>Appeal from the Chancery Court at Madisonville. O. P. Teiíple, Ch.</p>

<p>FROM BRADLEY.</p> <p>Appeal in error from, the Circuit Court of Bradley county. J. B. Hoyle, J.</p>

<p>1. Principal and Surety. Release of surety does not release maker. The release of a surety, although, the co-maker of a note, cannot be set up in equity as a release of the principal.</p> <p>2. Chancery Practice and Pleadings. Judgment by confession. Upon bill filed by a judgment creditor to reach property of his debtor, leave to the latter was properly refused to exhibit a cross-bill to set up the defense of failure of consideration of the note, on which the judgment was rendered, since the rendition of the judgment, the record showing that the judgment was rendered by confession after the making and withdrawal of the same defense at law, and no explanation of the fact, or of the subsequent delays being given.</p> <p>3. Husband and Wine. Note in ordinary form will not bind separate estate. A note of husband and wife in the ordinary form, saying nothing about the separate estate of the wife, is not a charge on that estate, nor is parol evidence admissible to prove that the note was intended to be a charge upon the estate.</p> <p>4. Chanceby Pbactioe. Jwry. Issues must be material. It is the duty of the party applying for a jury in the Chancery Court to submit a proper issue; and if the issue be immaterial, neither the Chancellor nor this court will be bound by the verdict, and the cause will be decided without a repleader.</p>

<p>PROM HAMILTON.</p> <p>Writ of error to the Circuit Court of Hamilton county. I). M. Key, Ch., sitting by interchange.</p>