Volume 71 — Tennessee Reports

<p>FROM HAWKINS.</p> <p>Appeal in error from the Circuit Court of Haw-kins county. N. Hacker, J.</p>

<p>CniMlHAl/ Law. Perjury. Indictment. In an indictment for perjury, which is assigned upon the swearing of the defendant as a witness in a criminal case, it need not be alleged that the case in which the false swearing occurred was by indictment or presentment; it is sufficient if it avers that the court had jurisdiction of the issue.</p>

<p>Natiokai, Bakes. Usury. A bill to recover usury cannot be maintained against a National Bank. It is not subject to the laws of the State upon that subject, except so far as Congress may see proper to permit.</p>

<p>Practice and Pleading. Action. The plaintiff sued a city and water company for the loss of his house by fire, and averred, in his declaration, that the water company owned the water works, pipes, etc., and the city controlled a fire department, and was in duty bound to use all means at command to extinguish fires ; that, by contract with the city the company .undertook to furnish water to extinguish fires; that a fire occurred near plaintiff’s house, and extended to and consumed-it; that defendants, at the time, had permitted the pipes to get out of repair and become full of mud and gravel, whereby, etc. Held, upon demurrer, that the declaration shows no cause of action against either defendant.</p>

<p>PROM SEQUATCHIE.</p> <p>MOTION TO DISCHARGE SUPERSEDEAS.</p>

<p>Witnesses. Compensation. Must he paid by the County. When. The compensation of witnesses examined by the Grand Jury in support of an indictment which they ignored, must be paid by the County, not the State.</p>

<p>ib5B.BY Boat. Not a fixture of the realty, though connected to land by a chain. Lien for purchase money lost by destruction. A ferry boat with chain and buoys, etc., is not a fixture of the realty, although the chain by which it is run is fastened to the boat and to an island in the river — and hence a registered lien for purchase mqney is lost as to such property, by their destruction, and does not extend to a new boat and appurtenances substituted in place of the one destroyed or worn out.</p>

<p>Pbaotice m StrpEEME Cotot. Appeal from judgment by motion. Without Bill of Exceptions limited to errors assigned below. Where the sureties of a Special Commissioner appeal from a judgment against them and their principal, by motion, on the Commissioner’s bond, ■without a bill of exceptions, the record showing that they appeared and made defense, they will be limited in their assignment of errors to the points of defense made in the court below.</p>

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

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

<p>ER.OM RHEA.</p> <p>Appeals in error from the Circuit Courts of Marion and Rhea counties. D. C. Trewhitt, J.</p>

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

<p>PROM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox county. S. A. Rogers, J.</p>

<p>PROM M’MINN.</p> <p>Appeal from the Chancery Court at Athens. A. S. Marks, Ch., presiding by interchange with W. M. Bradporp, Ch.</p>

<p>1. Act Construed. Act of 1879, Oh. 127, “to establish, a Chancery and Law Court at Bristol, in the county of Sullivan,” is constitutional.</p> <p>2. Cohstitutiohai Law. Acts of Legislature. Subject and title. Art. 2, sec. 17, of the Constitution, prohibiting laws from being passed which embrace more than one subject, that subject to be expressed in the title, and providing- that all acts which repeal or amend former laws shall recite in their caption or otherwise the title or substance of the law repealed, revived or amended, is to be liberally construed, otherwise useful legislation would be unnecessarily embarrassed.</p> <p>8. Same. JRepeal of former laws. If the Legislature pass an act repealing a law without reciting in its caption or otherwise, the title or substance of the law reperled, and a subsequent act is passed at the same session and within a few days of the same time of the first act, repealing the law which was attempted to be repealed by the first act, the two acts may fairly be supposed to have been in the minds of the legislators at the same time, and will be regarded as parts of the same legislation, and upon the passage of the last act, removing the constitutional objection to the former, it becomes valid in all respects.</p>

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

<p>1. County Court. Personal liability of members for norifeasance. The members of a county court are not liable to the State for loss of public revenue resulting from their failure to take bond from the revenue collector, before allowing him to collect revenue.</p> <p>2. Revenue Officer. Pond. Any revenue officer failing to file his bond in the time prescribed by law, vacates his office by such failure, and if he perform any official act without having1 first given bond, he is liable to criminal prosecution.</p>

<p>1. Evidence. Insurance. The declarations of a person insured for the benefit of another, made before or after the insurance and not a part of the res gestee, are not competent evidence upon a suit to recover the amount of the policy.</p> <p>2. Same. Burden of proof. When the question is, whether the answers of the insured were false or fraudulent, the burden of proof is on the insurer.</p>

<p>Sister State. Jurisdiction. Pleadings aud Practice in Chancery. A sister State cannot be sued in the courts of Tennessee without her consent. But if she appears and submits to the jurisdiction of the court, she must abide the decree made on the original or amended bill. But the charges of facts in the amended bill must be germain to and have a connection with the original bill, and must be necessary to supply some defect or failure of statement of complainant’s rights as therein set forth, otherwise a demurrer will be sustained to the amended bill' for want of jurisdiction.</p>

<p>1. Suit by Non-resident. Ignorance of law. A citizen of another State, who is a party to a suit in this State and appears by counsel from it3 inception, cannot claim an election in the mode of trial, based upon his ignorance of the law of this State.</p> <p>2. PrXctice. Sight to jury waived by cause remaining on non-jury dochet. Although a party to a suit brought into the Circuit Court by appeal from a Justice, enter of record a demand for a jury trial, he may waive that right by allowing the case to remain on the non-jury docket, and failing to call the attention of the court to his demand at the proper time.</p>

<p>Partnership. Assets. Creditors. Homestead. The creditors of a firm have the right to follow the firm assets into land bought with the purchase money of other land in which the assets were first invested, and the partner mating the investment cannot claim a homestead exemption in such land as against the firm creditors.</p>

<p>1. Constitutional Law. The act of March 18, 1875, entitled “An act to enable old counties from which fractions have been taken to form new counties, to appoint tax: assessors for said fraction and to collect taxes therein,” is constitutional.</p> <p>’2. Chancery Practice and Pleadings. Averments of bill must be specific. Bill alleging irregularities in the issue of bonds to a Railroad Company, should point out specifically such irregularities to call attention of the defendants to them and advise them of what they are to defend or explain.</p>

<p>Yendob’s Lien. Statute of limitations. A third person to whom a portion, of the purchase money of land is, by the terms of the grantor’s deed, to be paid by the vendee, has, in the absence of an express reservation of lien, the vendor’s lien or equity on the land for the payment of the money, but the lien will be barred by the continuous possession of the land by the vendee for seven years from the maturity of the debt.</p>

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

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

<p>FROM MONROE,</p> <p>Appeal from tbe Chancery Court at Madisonville* O. P. Temple, Ch.</p>

<p>Or.tmthtat, Law. Robbery. Indictment. An indictment for robbery under the Code is good, which charges the offense in the words of the statute defining the offense.</p>

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. D. C. Trewhitt, J.</p>

<p>EROM MARION.</p> <p>Appeal in error from, the Circuit Court of Marion ■county. D. C. Trewhitt, J.</p>

<p>Chancery Pbactice and Pleading. Cfreditor’s Bill. Return of nulla bona. The defense that in order to sustain a judgment-creditor’s hill, under the Code, section 4282, et seq., it is necessary to show the return of an execution on the judgment unsatisfied in whole or in part, if it he a defense at all, is to the jurisdiction and waived hy answer.</p>

<p>FROM JAMES.</p> <p>Appeal in error from the Circuit Court of James county. D. C. Trewhitt, J.</p>

<p>X. Chanceby Pbacticb. Taking Accounts. By the settled rule of Chancery practice, the parties are required to furnish the clerk with their respective accounts of the matters of reference, from which he can see the points of difference, and limit the evidence to those points.</p> <p>2. Same. Partnership. Balance Sheet. Where a partnership account is ordered, each partner is an actor, and, unless all the partners join in employing a competent accountant to make out a balance sheet of the business with proper schedules, should be required to furnish his own statement of the account.</p> <p>•'3. Same. Partnership Books. Should he examined by experts. Partnership books, to which each partner has had access, are prima facie evidence as between the partners, but the partners cannot, in lien of the state- ' ment required, put in their general books of accounts, consisting often of immense folios, which neither the clerk nor the court can be required to examine. It is the duty of the parties to have them examined by experts, to ascertain what they do show, and to extract from them, in the form of balance sheets and schedules, such general statements, and such specific facts as may tend to elucidate contested matters of charge and discharge.</p>

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

<p>PiuvmEGE License. Wagon. A farmer who, after laying by Ms crop, used Ms farm wagon with a team of two horses to haul wood for a money consideration, is not required to take out a transfer license* under the act of 1868, ch. 79, sec. 5, and subsequent acts in pari materia.</p>

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

<p>Homestead. Legal estate may be levied cm and sold. The legal estate of the head of a family in land set apart to him as a homestead may be levied on by execution and sold subject to the homestead right.</p>

<p>Sotbeme Cotjbt. Practice. Will not remand. When. The Supreme Court, upon sustaining a demurrer to a bill, will not remand for the insertion of facts known to complainant at the filing of the bill, where the successful cause of demurrer was based on the absence of such, facts, and the insufficiency in law of the statements actually made to authorize the relief sought.</p>

<p>Appeal. Appeal bond. Must be executed mihm two days. An appeal from a judgment of a justice of the peace must be prayed and granted within two days, Sunday excepted, and no appeal can be granted except upon the execution of a bond or by taking the pauper’s oath.</p>

<p>FROM GREENE.</p> <p>Appeal in error from the Circuit Court’ of Greene county. 1ST. Hackee, J.</p>

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

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. D. C. Trewhitt, J.</p>

<p>Patent Bight. Sale of. Not subject to license tax. The State has no right to require a license in order to a sale of the right to make and mana- ■ facture a patented article.</p>

<p>PROM BRADLEY.</p> <p>Appeal in error from the Chancery Court at Cleveland. W. M. Bradford, Ch.</p>

<p>1. Mabbied Women. Marriage Contract. Effect of its not being Registered. A marriage contract, not registered in a county to which the husband removes is, under act of 1831, Code, sec. 2035, void as to creditors of the husband, and gives no protection to the property against legal process on the part of such creditors. The contract is good, however, between husband and wife, and the property does not vest absolutely in him, if it be personalty. It is only not protected as against creditors.</p> <p>2. Same. Same. Chose in action. To be subject, however, to the creditors, if a chose in action, the proceeds must be reduced to possession of the wife, and be in possession of husband when the proces-s attaches to or is fastened on it. If the wife has money in her hands, proceeds of her real estate, and loans it to a firm of which her husband is a member, taking notes for it, this debt cannot be subjected to her husband’s creditors. It is a chose in action not reduced to possession in that form.</p> <p>•3. Same. Same. Same. So also a debt purchased by the wife with her money, arising Rom her separate estate, is not subject to her husband’s creditors.</p> <p>4. Same. Same. The wife held entitled to receive proceeds of trust property conveyed by husband’s firm to secure re-payment of money loaned, to firm, under facts of this case. Embry md Yowng v. Robinson, 7 Hum., 144, Coop. Ed.</p>

<p>1. Chancery Practice and Pleading. Bill to enjoin trespassers. Possession must be bona fide. A party suing to enjoin trespassers, claiming to be in exclusive possession of a tract of land, must occupy and bold it bona fide, and by such use as is usual, and the land susceptible of.</p> <p>2. Same. Not being in possession, must show title. Not being in possession, such a party must show a connected chain of title in order to sustain his prayer for'an injunction.</p> <p>3. Same. Boundary lines. Acquiescence. Long claim of a certain line openly by a party, and acquiescence, in tbis case from twenty-five to forty years, by adjoining land owners, will fix the boundary at the line thus practically located, and enable a party having title to the land thus claimed by himself and those under whom he holds, to sustain a bill to enjoin a trespasser, and protect himself from any one not having superior title.</p>

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

<p>1. Chanceby Rbactice and Pleading. Exhibits. The practice of making records in other cases exhibits to a bill will not be allowed. Ü the record of former cases contain any material .fact it should he stated.</p> <p>2. Same. Act of 1877, eh. 97, construed. Unliqmdaied damages. If the act of 1877, ch. 97, extending the jurisdiction of the chancery court to all civil causes “ excejat in injuries to persons, property or character,” involving unliquidated damages, be constitutional, it must be strictly construed. It is, therefore, held that a bill in equity to recover damages of an attorney for ordering an execution held up whereby the amount of the judgment was lost, cannot be maintained upon demurrer that the remedy was at law.</p> <p>3. Same. Same. Statute of limitation. If such a bill could be maintained, the statute of limitation of six years would bar a recovery in this case.</p>

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

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

<p>1. Supersedeas. Liability of secwrities on bond. New judgment. Lien of leoy upon land. Upon the dismissal of a writ of supersedeas, granted upon a petition to the circuit court to supersede and quash an execution from said court which had been levied upon petitioner’s land, a judgment may be rendered against the petitioner and his security upon. the certiorari and supersedeas bond, and also an order of sale of the ■ land levied upon. The lien on the land acquired by the levy of the execution improperly superseded is still in force, and can be maintained notwithstanding the new judgment.</p> <p>2. Same. Gosts. In this case the facts developed that a portion of the judgment had been paid, but inasmuch as the whole execution was superseded the petitioner was liable for costs.</p>

<p>PROM ROANE.</p> <p>Appeal in error from the Circuit Court of Roane county. E. T. Hall, J.</p>

<p>EROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. I). C. Trewhitt, J.</p>

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

<p>EXECUTION. When functus officio. An execution issued by a Justice of the Peace and placed in the hands of an officer and upon which he has made endorsements, cannot be certified to a different county and. execution issued thereon. When an execution is placed in the hands of an officer, it constitutes an order on him to execute it as therein commanded, and to return it to the office horn which it issued, with his endorsement thereon, and it is then functus officio.</p>

<p>PROM ANDERSON.</p> <p>Appeal in error from the Circuit Court of Anderson county. D. K. Young, J.</p>

<p>ContbACTs. Minors. Void or voidable. Whether contracts of infants are void or voidable, may be thus determined: “ When the court ean-pronounce the contract to be to the infant’s prejudice, it is void— when to his benefit, as for necessaries, it is good — and when the contract is of an uncertain nature as to benefit or prejudice, it is voidable only at the election of the infant.”</p>

<p>Bankruptcy. Assignee may sue in State Courts. An assignee in bankruptcy may sue in tbe State courts to recover tbe assets of tbe bankrupt. Tbe State courts thereby assume no jurisdiction under the bankrupt act, but simply exercise tbeir ordinary jurisdiction in suits between parties.</p>

<p>Homestead. Fraudulent Conveyance.. A wife is entitled to a homestead out of lands fraudulently conveyed to her by the husband for the purpose of hindering and delaying his creditors.</p>

EROM JEFEERSON. Application for writ of error to the Circuit Court of Jefferson county. J. G. Rose, J. The indictment in this case was as follows: State of Tennessee, |0ironit Court> April Term> 1877. County of Jefferson.

<p>FROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. Ward, Sp. Ch.</p>

<p>FROM SMITH.</p> <p>Appeal in error from the Circuit Court of Smith county. N. W. McConnell, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson county. N. Baxter, J.</p>

<p>PROM SMITH.</p> <p>Appeal from the Chancery Court at Carthage. W. <3. Crowley, Ch.</p>

<p>PROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. W. S. Fleming, Ch.</p>

<p>FROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. 'W. S. Fleming, Ch.</p>

<p>Ahpeax. Bond. Justice’s judgment. A 'motion to dismiss an appeal from-a justice’s judgment because the appeal bond was not accepted within the time prescribed by law, was properly sustained where the papers, filed on the first day of the next term of the circuit court, were endorsed by the justice, “ returned without bond,” although a bond dated as of the day of the filing be among the papers.</p>

<p>Appeal. Govmty to Oirmit Cowi. Executor. An appeal lies from the, county to the circuit court from an order made upon a petition under the Code, sec. 2225, requiring an executor, who is excused by the will from giving bond, to give the usual administration bond.</p>

<p>EROM GILES.</p> <p>Appeal in error from the Circuit Court of Giles county. T. W, Turley, Sp. J.</p>

<p>EROM SUMNER</p> <p>Appeal from the Chancery Court at Gallatin. G. E. Seay, Ch.</p>

<p>FROM DAVIDSON.</p> <p>Appeal 'in error from the Criminal Court of Davidson county. J. M. Quarles, J.</p>

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

<p>EJROM DAVIDSON.</p> <p>Appeal in error from the Criminal Court of Davidson county. J. M. Qua dues, J.</p>

<p>Stjmmaey Proceedings. Motion against securities on Trustee's bond, after death of principal. Under the Code, section 735, a motion for the official default of the County Trustee as a revenue collector, will lie by the State against the sureties on his bond, where the Trustee dies before the motion is made or notice given.</p>

<p>EROM DAVIDSON.</p> <p>Writ of error to the Circuit Court of Davidson county. Frank T. Reid, J.</p>

<p>FROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. W. S. FleMING, Ch.</p>

EEOM DAVIDSON. This was a petition for a mandamus by the Clerk of the Circuit Court of Maury county to compel the Comptroller to issue to him a warrant for his costs against the State, instead of issuing the same to the ■chairman of the county court. The mandamus was refused and the clerk appealed. Eeank T. Reid, J.

<p>erom teousdale.</p> <p>Appeal in error from the Circuit Court of Trous-dale county. W. N. McConnell, J.</p>

<p>FROM MAURY.</p> <p>■Appeal in error from the Circuit Court of Maury ■county. W. S. McLemore. J.</p>

<p>Bents. Attachment. Plaintiff rented defendant land for one-third of the crop. Owing to bad cultivation only three bales of cotton was raised. Plaintiff attaches all the cotton, and the court renders judgment for rent, estimating what might have been raised by good husbandly,</p> <p>Held, erroneous. Damages for breach of contract cannot be enforced by ■ attachment under sections of the Code giving attachments for rent.</p>

<p>EROM GILES.</p> <p>Appeal in error from the Circuit Court of Giles ■county. W. S. McLemore, J.</p>

<p>CONTRACT. Void without consideration. Damages. Minm-s. A father and two minor sons were injured by a turnpike being out of repair. A compromise was made by some of the stockholders and the father, and a written instrument executed to the father, agreeing on the part of the company to pay the father the sum of $2,500 “in full of all claim for damages against said company” on the part of the father and his two sons. Held, no recovery could be had on this instrument. It was without consideration so far as the damages due the minors were concerned, and it being impossible to separate them from the damages which might be due the father, the contract being one, no legal obligation existed.</p>

<p>EEOM MARSHALL.</p> <p>Appeal in error from the Circuit Court of Marshall county. W. S. McLeMORE, j/</p>

<p>FROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. ‘W. S. Fleming, Ch.</p>

<p>EVIDENCE. Positive and Negative Testimony. If two persons, parties to a transaction, are called to testify and the one swears positively that it did transpire and the other as positively that it did not, the testimony of each is positive and the question is then one of credit, and the rule of law as to positive and negative testimony does not apply.</p>

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

<p>1. Cubes: and Master’s Bonds. Sureties. liability. The sureties upon, the several bonds of a Clerk and Master signed the bonds at different times and places; upon the meeting of the court several of them appeared before the Chancellor and acknowledged the same, others did not; held, that all were liable, those who did not acknowledge as well as those who did.</p> <p>2. Same. Acknowledgment. Escrow. After the acknowledgment of the bonds, the sureties thus acknowledging are precluded from the defense that the same was delivered as an escrow.</p> <p>3. Same. Special Commissioner. Where a bond is executed by the Clerk and Master as special commissioner, the sureties are liable for any default as special commissioner, though, the Clerk and Master was, never appointed special commissioner by a general appointment or by. . decree in the several causes in which he has acted as such.</p> <p>4. Same. Sureties. Where money or property came into the hands of the Clerk and Master by virtue of his official position otherwise than as. commissioner or receiver, the sureties on his bond as Clerk and Master are liable.</p>

<p>FROM GILES.</p> <p>Appeal in error from the Circuit Court of Giles •county. W. S. McLemore, J.</p>

<p>GROWING Crop. Purchaser. Judgment Creditor. An instrument which conveys so much of the grantor’s growing crop of cotton as will he sufficient to make two bales of lint cotton, each weighing not less than 500 pounds, the same to he gathered, prepared for market, and delivered by the grantor to the grantee by the first of the succeeding December, passes no title to any of the cotton as against a judgment creditor of the grantor who levies his execution on seed cotton in a pen, part of the crop, before the first of December, and the mere intention of the grantor, not communicated to the grantee or the creditor before the levy, to gin, bale and deliver the particular cotton to the grantee, will not change the result.</p>

<p>1. Action on Sheriff’s Bond. Failure to return execution. A.ttorney’s instruction. In an action on a sheriff’s bond for a failure to return or make the money on executions issued upon a judgment recovered by the clerk of a court for the benefit of the litigants in a suit pending in the court, it is error to charge that the sheriff ivould not be liable at all if his default was occasioned by the instructions of the attorney of one of the parties litigant, beneficially interested in the fund in question.</p> <p>2. Same. Same. Same. Semite: Such a judgment is exclusively under the control of the clerk, and no attorney, except one .recognized by him as entitled to act, unless indeed it be an attorney representing all the parties beneficially interested, can be allowed to interfere with the execution so as to protect the officer.</p> <p>3. Same. Same. Same. Tlie question is reserved whether the defendants can in this suit, or in equity, claim exemption from liability, or protection to the extent of the interest in the fund of the litigants whose attorney did undertake to oontrol the execution to the prejudice of the sheriff.</p>

<p>'Deed oe Tktjst. Constructiva. By a trust assignment of land, which authorized the assignee to sell for cash, and after paying expenses to-apply the proceeds to the satisfaction of the debt secured, the grantor^ added: “And in the event a sale is made, I hereby waive the right of redemption given me by law, and in the event a sale is made the"1 said grantee agrees, in consideration of the waiving of the right of re7^ demption, to make the land bring as much as $4,000.” Held, that, the grantee was not bound to make the property bring that price unless he made the sale free from the equity of redemption. o</p>

<p>"WxlIi. Construction. Under a will written by an unlettered draftsman, by which the testator gives land equally to his sons and daughters as the specific objects of his bounty, and makes provisions which contemplate the keeping together of the property for the benefit of thesons and daughters and their children during the life of the sons and ' daughters, and even afterward, for the benefit of the wives of the sons, it was held that the legal title passes in trust for the benefit of the sons and daughters as long as the latter continue members of the family, for the life of the sons and daughters, and after their death to their children, and that the title of the parents is not 'subject to execution sale.</p>

<p>1. Criminal Law. Special term of the court, Offenders may be indicted and tried. Under the provisions of the Code which authorize the appointment of a special term. “ whenever it is necessary for the dispatch of business,” and direct “that all business of every nature and kind shall be conducted as at the regular term,” offenders may be indicted and tried at a special term of a criminal court.</p> <p>2. Same. Arson. The provisions of the Code in relation to arson and house-burning were not repealed by the act of 1865, ch. 5, sec. 4, which only increased the penalties for the offense of burning a dwelling house, and certainly had no effect on those provisions of the Code which related to the burning of any other building than a dwelling house, as for example a store house.</p> <p>3. Same. Indictment. General Verdict. Under an indictment containing two counts, one for burning a certain house, to-wit, a store house, under the Code, sec. 4666, and the other, under sec. 4668, for burning a valuable building, to-wit, a store house, a general verdict assessing a punishment within both sections will be good, although the minimum punishment, by confinement in the penitentiary under one section may he greater by three years than the minimum punishment under the other.</p> <p>4. Same. Iikidence. Conspiracy. Under an indictment for the burning of a house, evidence is admissible of the organization of a company to rob and burn bouses generally, if the particular act were done by that company in pursuance of the general design, although the selection of the house was made afterwards.</p> <p>5. Same. Same. Accomplice. Corroboration. Evidence is admissible of facts tending to corroborate the testimony of an accomplice, although, not otherwise directly bearing on the main fact tried.</p>

<p>1. n-RTMTNTAT, Law. Grand Jury. Inquisitorial Powers. Institutions of Learning. The Grand Jury have inquisitorial powers in ease of selling liquor within four miles of an incorporated institution of learning.</p> <p>2. Same. Teehnichalities. The day for escaping the consequencies of crime on mere technicalities, not going to the protection of essential right, has gone hy, and violators of law had as well accept the fact and act accordingly</p>

<p>1. EVIDENCE. Lost or destroyed instrument. Copy prima fade evidence. When. In a suit upon a constable’s bond against the sureties, a copy of the bond, certified by the clerk of the county court, by his deputy, to be a true and correct copy, as it appears of record and on file in his office, and produced by the clerk of the circuit court from a file of papers in his office, in a suit against the same sureties, in -which a final judgment had been pronounced, is prima facie evidence of the bond, and that it was duly executed, acknowledged and recorded by the county court, it having been first shown that the records and papers of that court for the year in which the bond was given, and for several years immediately preceding and following, were lost or destroyed, ' and the defendants admitting by their pleadings that they did sign the bond.</p> <p>2. Constable’s Bond. Securities hound, though not acknowledged in open court. A constable’s bond is good, although not acknowledged by the obligors in open court, and if delivered, accepted, recorded and filed, the proof necessary to avoid it as an escrow must be as clear, satisfactory and demonstrative as that required to set aside a decree or judgment of a court of record on the ground of fraud.</p> <p>3. Same. Agreement between principal and sureties will not affect rights of public. A private agreement between the surety and principal of an official bond in the nature of a condition, will not affect the rights of the public, when the bond has been accepted by the proper authority without notice of the condition, especially if there be nothing on the face of the bond to excite suspicion.</p>

erom Humphreys. Plaintiff in error was indicted in the Circuit Court of Humphreys county for unlawfully carrying brass knueks. The proof showed that the knueks were not brass, but were made of lead or pewter. He was convicted and appealed. Jo. C. Stark, J.

<p>PROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. J. V. Wright, Sp. Ch.</p>

<p>PROM SUMNER.</p> <p>Appeal from the Chancery Court at Gallatin Geo. E. Seay, Ch.</p>

<p>Justice oe the Peace. Jurisdiction. Endorser. Under the Code, sec. 4123, sub-sec. 2, justices of the peace had jurisdiction of endorsements, of negotiable paper, on which demand and notice were not waived,, to the extent of $250.</p>

<p>FROM GILES.</p> <p>Appeal in error from the Circuit Court of Giles ■county. ~W. P. Martin, J.</p>

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

<p>Mareied Woman. Vendor’s Lien. If a married woman buy land, partly for cash and partly on time, and accept a deed of conveyance to her separate use, retaining a lien for the time instalments, she cannot have the money which she has paid refunded merely because of her coverture, and the lien reserved for the payment of the purchase money may be enforced in equity.</p>

<p>1. Guardian AND Ward. Land purchased with Ward’s money. Election to take land or money. Claim superior to Homestead right. An infant, whose money has been used hy the guardian in paying for land bought in his own name, may follow the money into the land, and elect to take the land, or have the money declared a charge upon the land, and the land sold for its satisfaction; and the infant’s claim will be superior to the guardian’s right of homestead in the land.</p> <p>2. Same. Same. Priority of bona fide mortgagee. Pre-existing debt. As between an infant, whose money has been used by the guardian in ' paying for land, and a bona fide mortgagee of the land, without notice of the infant’s equity, for a consideration passing at the time, the mortgagee will have the better right, and will be entitled to the security even for a pre-existing debt included therein, if the new advance was made for the purpose of obtaining the additional security for the-antecedent debt, and the new consideration forms a substantial part of the debt secured.</p>

<p>1. Lahklobd and Tenaht. Rent. Supplies. A landlord, in a suit to enforce his Jien on the tenant’s crop, may join demands for rent and supplies which are a lien on the same crop, hut he must give the amount of each demand constituting the aggregate sum sued for.</p> <p>2. Same. Attachment. Affidavit. It is no ground for quashing the at' tachment in such case, that the affidavit fails to specify the form of the demand, whether note or account, nor that the amount of the debt claimed is qualified by the words “ more or less.”</p> <p>3. Same. Same. Same. But the affidavit on which an attachment is sought for supplies furnished by the landlord, must state that an account of those supplies was kept as the articles were furnished, and the account must be sworn to before or at the time of suing out the attachment. Any note or written memorandum, even on a loose sheet of paper, if made at the time the articles were furnished, would meet the requirements of the act.</p> <p>4. Same. Same. Gosts when judgment is rendered, on summons, and attachment is lad. The judgment rendered on the service of a warrant or summons may be good, although the attachment may be quashed for fatal defects, in which case the costs of the recovery and the costs of the attachment will be severally borne by the unsuccessful party.</p>

<p>FROM GILES.</p> <p>Appeal in error from the Circuit Court of Giles county. W. S. McLemoee, J.</p>

<p>1. Costs. Clerk’s Fees. The clerk is not entitled to pay for “ an order for capias to issue.” The law makes it his duty to issue a capias upon the return of an indictment or presentment, if the defendant is not in custody.</p> <p>2. The olerk is entitled to only one fee “ for presentment or indictment, charging prisoners and pleas.”</p> <p>S. Same. Witness Fees. The clerk will not tax the attendance or mileage of any State witnesses who do not prove their attendance in open court by oath, that he has not directly or indirectly procured himself to he summoned, that he was legally summoned on behalf of the State, and has verily attended the number of days claimed.</p> <p>4. The attendance of witnesses not legally summoned, cannot be taxed.</p>

<p>PROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. W. S. Fleming, Ch.</p>

<p>1. Sureties. Not discharged by agreement for delay after judgment. After-judgment an agreement between creditor and principal for delay, even for a valuable consideration, will not discharge sureties, for the sureties may have judgment over against the principal, and proceed to> make the money, notwithstanding the agreement between the creditor and principal.</p> <p>'2. Same. Are discharged when creditor obstructs their remedy. But if, after judgment and issuance of execution, the creditor takes a deed of trust from the principal on his property, and includes other debts due him and other persons, to be paid before the judgment, the sureties will be discharged, for thereby he covers up the property of the principal andi obstructs the remedy of the sureties.</p> <p>• 3. Stayor. Entitled to same defense as sureties. A stayor is a surety for the payment of the judgment, and is entitled to the same defenses as the sureties.</p>

FROM DAVIDSON. This bill was filed in the Chancery Court at Nashville by the State of Tennessee, the county of Davidson, and the Mayor and City Council of Nashville against Martha W. Duncan and other persons having an interest in the land described in the bill. There were eleven grounds of demurrer, as follows: 1. Because the court has no jurisdiction over the subject matter, or to grant the relief prayed for. 2.

<p>EEOM DAVIDSON.</p> <p>.Appeal in error from tbe Circuit Court son county. Frank T. Eeid, J. of David-</p>

<p>1. CniMm'Al. Law. Indictment. The allegation in an indictment that “ a more particular description is to the jurors unknown,” cannot have the effect of dispensing with such description of the offense as will protect the defendant from a second prosecution for the same offense ; but if a particular fact which is matter of description and not vital to the accusation cannot be ascertained, the indictment may charge that such fact is unknown to the jurors.</p> <p>'2. Same. Same. A charge that the defendant willfully and unlawfully drew and issued warrants for costs “ against the County of Davidson,’* etc., is bad, for the statute requires that warrants be drawn on the County Trustee, and not upon the Cerunty.</p> <p>S. Same. Same. A charge in an indictment that the defendant, as Judge of the County Court, did willfully and unlawfully draw and issue warrants against the county, etc., is had, because it charges two or more offenses in the same count. The drawing of each warrant was a separate and substantial transaction, and a criminal prosecution would lie for each if the drawing was willfully and illegally done.</p>

<p>PROM DAVIDSON</p> <p>Appeal in error from the Law Court of Davidson county. J. C. Guild, J.</p>

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

<p>1. Pleading. Amendment of declaration. Statute of Limitaticms. Where-the action was in detinue and the declaration in trover, it is not reversible error in the trial court to refuse an application by the plaintiff to amend, his declaration by a count on the facts of the case for neglect, upon the objection of the defendants that the new cause of action was barred by the statute of limitations.</p> <p>2. Evidence. Affidavits. If the defendant offer as evidence the affidavits of the plaintiff, in relation to the demands in suit, for the purpose of having the benefit of the plaintiff’s receipts of other demands written-on, and expressly referring to the affidavits for the description of the demands for which the receipts were given, it is not error to charge that the affidavits were not evidence of the truth of their contents, hut only evidence of the fact that the plaintiffs made the claims therein set forth.</p> <p>3. Bank of Tennessee. Seizure by military authorities. Appointment of agents, by the State officers, to examine assets of the Bank, under act of the Legislature, not conversion. The States of Tennessee and Georgia were, in the spring of 1865, so far in a state of war that the seizure by the military authorities of the United States of the effects held by the officers of the Bank of Tennessee deprived those officers of all control over the same, and vested the executive officers of the State of Tennessee, to whom the military authorities surrendered the effects for the State, with authority to safely keep them until the Legislature should direct what disposition should be made of them, and the possession of the State officers afterwards under an order of the Legislature to.take charge of and examine the effects, and the employment of agents to make an examination and schedule thereof, under an act of the Legislature, would not be a conversion, either in the State officials or the agents. And an order by the Legislature to take charge of and examine the assets of the Bank of Tennessee, would include special deposits.</p>

<p>1. Tax Sam. Collector’s deed. A tax collector’s deed is not void which. fails to recite that in selling the land the collector pursued the statute by offering first to sell a less quantity than the whole to whoever would bid the amount of the taxes on the smallest number of acres.</p> <p>2. Same. Several lots sold as a whole. A tax sale is not void because several town lots belonging to one owner, lying contiguous and forming one tract or body, were assessed, reported and sold as a whole instead of separately.</p> <p>3. Same. Substitution of original for copy of collector's report. Tbesubstitution of the original report of the collector for a copy, to accompany the order of sale, will not invalidate the sale.</p> <p>4. Same. Return of order of sale. The failure of the collector to make return of the order of sale in due time, as required by the statute, will not affect the right of the purchaser.</p> <p>5. Same. Collector may make second deed with fuller recitals. A deed by the collector made to the purchaser after the commencement of an action of ejectment, in confirmation of a previous deed, but containing fuller recitals, may be read • in evidence, though it does not in terms refer to the first.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Criminal Court of Davidson county. J. M. Quarles, J.</p>

<p>FROM WARREN.</p> <p>Appeal in error from tlie Circuit Court of Warren county. J. J. Williams, J.</p>

<p>Contract. Construclwn. Under the assumption by the purchaser of land of “ the payment of whatever taxes of every description that may he levied on said property legally for this present year, 1869,” the purchaser is not liable for the payment of a succession tax which accrued three years before the purchase, and was assessed and collected two years afterward.</p>

<p>FROM LAWRENCE.</p> <p>Appeal in error from the Circuit Court of Lawrence county. J. Y. Wright, J.</p>

<p>1. CoifTBACT. Dealing in futures. Intention of the parties make the contract lawful or unlawful. A contract for the sale of State bonds, to be delivered at a future day, is valid, although the seller have not the bonds, nor any other means of getting them than by buying them in the market, if the parties intend that they shall be delivered and the price paid; but it is otherwise if the real intention of the parties be to speculate in the rise and fall of the price of the bonds.</p> <p>2. Same. Same. Notes given for losses in speculation to agent or broker of losing party. In a suit brought upon notes given for losses in speculations, by time contracts in public bonds, to a bank acting as the agent or broker of the losing party, the court charged in substance: “If the bank furnished defendant with money for the purpose of enabling him to engage in an unlawful undertaking, it could not recover the amount so furnished; but if the defendant employed the bank as his agent or broker to effect sales of bonds with parties in New York or elsewhere, and it was the intention of the defendant and such parties that no bonds should pass, and only the difference between the contract price and the market price at the time fixed for executing the contract should be paid to the one or the other as it happened, and the defendant sustained losses which the bank paid, and the defendant afterward gave the bank his notes for the amount so paid, the bank might recover the amount by action.” Held, to contain no error of which the defendant could complain.</p>

<p>Birr, or Exceptions. Must be signed dwring the term. A bill of exceptions made up during the term at which the case was tried, but not signed by the judge until after the adjournment of the term, cannot he noticed, although the judge neglected to sign it through oversight.</p>