Volume 72 — Tennessee Reports

<p>1. Constitutional Law. Salaries of public officers. The Act of the Legislature of 1879, entitled “An Act to regulate and equalize the salaries of certain public officers,” is unconstitutional, because repugnant to that provision of the Constitution which provides “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.”</p> <p>2. Same. Act of Legislature. More than one subject. Title. If an Act contains more than one subject, and only one subject is expressed in the title, the whole act is a nullity.</p>

<p>PROM DAVIDSON.</p> <p>Appeal in error from the Criminal Court of Davidson County. J. M. QuaRLES, J.</p>

<p>County Court. Warrants. May bear interest when. The Comity Court., as the representative of the couuty, may, in consideration of forbearance to sue, contract with a creditor of the county for the payment of interest on a county warrant after its registration by the Trustee, until there is money in the treasury to meet it in its regular order, but no longer.</p>

FROM- DAVIDSON. Appeal from the Chancery Court oat Nashville J. M. Quarles, Sp; Ch. Summary of brief of W. H. HUMPHREYS, for complainants: The bill charges the flooding of cellars and the contamination of the atmosphere, from time to time, of houses and street, by the bursting and leaking of a sewer constructed by the city authorities. This is an iudictable nuisance, whether committed by individuals, private or municipal corporations, by Code and by common law.

<p>Justices oe the Peace. No jurisdiction to enforce lien for unpaid taxes. Justices of the Peace have not the jurisdiction of a Court of Chancery, under the Code, §4123, subs. 7, and §4124, to enforce a lien on land for the taxes assessed thereon where the amount of the taxes does not exceed fifty dollars.</p>

<p>Corporation, Municipal. Power to employ counsel. A municipal corporation has no such interest in a suit exclusively directed against its officers as will authorize it to retain counsel for its defense, although the bill may enjoin the officers from performing the functions of their office, and ask for the appointment of a receiver with power to control the corporate property and finances.</p>

<p>EROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson County. ÍT. Baxter, J.</p>

<p>1. Practice and Pleadino. Prosecution bond. Pule to justify or give new security. After a Circuit Judge has once entertained an application for the enlargement of the penalty of a prosecution hond and accepted the sureties, he cannot he required to make a rule upon the plaintiff to justify or give new security upon affidavits stating no new facts, where the penalty of the hond is sufficient to cover the costs and damages which may be awarded.</p> <p>1. Change of Venue. Courts of same jurisdiction. Judge should select. Upon a change of venue, if there are two courts of the same jurisdiction in the county to which the venue is changed, the Judge ordering the change must select the court to which the transfer shall he made, and his action cannot he revised in the absence of anything showing an abuse of discretion.</p> <p>3. Malicious Prosecution. Evidence. Malice. In an action for malicious prosecution, the defendant is entitled to testify as to his belief of the guilt of the plaintiff when he commenced the prosecution against him, and that he instituted the prosecution without malice. r</p> <p>4. Same. Probable cause. In an action for malicious prosecution, it is error to charge the jury that the law would infer malice from the absence of probable cause.</p>

<p>FROM BEDFORD.</p> <p>Appeal in error from the Circuit Court of Bed-ford County. R. Cantbell, J.</p>

<p>(Jtr ardían and Ward. Security on guardian bond. Priority. The recovery by infant wards of a decree against the personal representative of the deceased guardian for the amount due them to be paid pro rata with other claims, the estate being insolvent, will enure to the benefit of the sureties on the several guardian bonds in the order of liability fixed by law, and sureties secondarily liable may assert their priority of satisfaction against the assignee of a surety primarily liable, who takes with knowledge of the equity.</p>

<p>1. Mauried Woman. Power of attorney of. A married woman’s power of attorney for the sale of her lands is invalid.</p> <p>2. Same. Divorce, effect of. The purchaser of the husband’s interest in the wife’s lands, prior to the Act of 1849-50, ch. 36, sec. 1, Code, see. 2481, abridging the husband’s power of disposition, took it as it then stood, and without reference to the contingency of a subsequent divorce at the wife’s instance, which, therefore, had no effect upon the rights of such purchaser.</p> <p>3. Statute of Limitations. JRemainder. The statute of limitations does not run against a remainder-man until, by the termination of the particular estate, the right of possession has accrued.</p> <p>4. Chancery Jurisdiction. Cloud on remainder. A bill will lie to remove a cloud from a remainder in lands.</p> <p>5. Same, Invalid sale, condition of avoidance. Upon the avoidance of a sale of lands, where the purchaser has been guiltless of fraud or imposition, the holders of the lands- under the sale, whether the original vendees or their successors in interest by descent or purchase, with or without warranty, are entitled to have the lands charged in their favor with a proper restitution of the purchase money paid upon the sale that is avoided.</p> <p>6. Same. Same. Same. Amount of restitution The amount of this restitution will be that of the purchase money paid upon this sale, with interest, but not exceeding (if the lands have been subsequently sold) the amount of the purchase money paid at the last sale (with or without warranty), with interest.</p> <p>7„ Chancery Pleading and Practice. Parties. To a bill for the purpose of avoiding the sale of the lands, and of reclaiming them, in a case where there can be no account of rents and profits, only the holders of the lands at the time, under the sale, are necessary parties. The original or intermediate ven-dees with warranties of title are proper, but not necessary, parties.</p> <p>8. Statement. Application. In 1846, 92 acres of certain lands, belonging jointly to complainant, then the wife of C. K. G., and her two brothers, were sold to J. B., and in 1847,147 acres to E. C. S., complainant’s interest being conveyed in each instance under a power of attorney executed by her husband and herself, with her privy examination. In 1857, J. B. conveyed his 92 acres to E O. S. During that year complainant obtained a divorce a vinculo from C. Ií. G., for his fault, after which she married J. A. A., whose widow she now is. After the death of E. O. S., 100 acres of the 147 purchased by him in 1847 were sold (as included in a larger tract) under a decree in settlement of his estate, and purchased by L. D. S. The bill was filed in 1875 against the widow and the real representatives of E. O. S., and the widow and the personal and real representatives of L. D. S., to have said powers of attorney, and said conveyances thereunder, etc., annulled, as clouds upon complainant’s title in remainder to an undivided one-third of the two tracts of 92 acres and 147 acres, and to have her rights in remainder declared. One-third of the purchase money paid by J. B. and by E. C. S., in 1846 and 1817, less C. K. G.’s life estate in this one-third, must be taken to have been paid on account of complainant’s remainder in this portion of the lands. At the sale of the 92 acres by J. B. to E. C. S., in 1857, one-third of the purchase money, less the vendor’s interest therein for the life of C. K. G., must be taken to have been paid on aecount of complainant’s remainder in this tract. And, at the sale of the 100 acres to L. D. S. (as included in the larger tract), one-third of the purchase money applicable to the 100 acres, less the life- interest therein as of that date, must be taken to have been paid on account of complainant’s remainder in these 100 acres. The restitution to be charged in favor of the defendants as a lien upon complainant’s interest in said lands, is what was paid on account of the remainder in 1846 and 1847, with interest, but the portion of this amount applicable to the 92 acres, and to the 100 acres of the 147, subsequently sold, not to exceed what was paid at the subsequent sales on account of the parts of the remainder involved therein, with interest from the dates of these sales respectively. And all of these sales being made without reference to any separate valuation of the life estate and the remainder, the former is to be determined, in every instance, upon the basis of the actual subsequent length of life of C. K. G.</p> <p>9. Improvements. Allowable when. Improvements are allowable against the owner of lands, in favor of holders in good faith under color of title, from whom the lands are reclaimed, only as an offset against rents and profits. Where, as in the present casa, there can he no claim for rents and profits, there can be no allowance on account of improvements.</p>

<p>1. A contract for the sale of a plantation, with the personal property thereon, lying in Tennessee, the grantor domiciled in Athens, Alabama, the grantee in Nashville, Tennessee, each of these places being at the time within the lines of the military forces of the United States, is not invalid, either by reason of the non-intercourse acts of Congress or the rules governing the intercourse of belligerents during the late civil war, as expounded by the Supreme Court of the United States in Montgomery y. The United States, 15 Wall., and The United States v. Lapene, 17 Wall. Nor is a deed made in pursuance of such a contract void, although when it was executed, Nashville remaining within the military lines of the United States, Athens, Alabama, and that portion of Tennessee in which the plantation is situated, had been reoecupied by the Confederate forces, both grantor and grantee actually residing within their lines.</p> <p>2. Per Malone, Sp. J.: The United States had the right to place whatever restrictions it saw fit upon the trade between citizens of the Confederate States within its lines of military occupation and those without those lines, and when these restrictions are announced through the proper department it is the dutv of the State Courts to observe and enforce them.</p> <p>3. A note executed in Tennessee, by a citizen of that State, to a citizen of Alabama, bearing on its face interest at the rate of eight per cent, per annum, the legal rate in Alabama, is manifestly an Alabama contract, and is valid.</p> <p>4. A contract for the sale of-land upon credit is not usurious, bo-cause the price agreed on is a sum equal to one for which the land had been offered to the-purchaser, cash, plus ten per cent, per annum thereon for the time credit is given</p> <p>8. During the late civil war the owner of negroes who had conveyed them to a trustee to secure their purchase money, both owner and trustee residing in Tennessee, attempted to remove them from that State for greater security. The cestui que trust persuaded the negroes to remain. Held: The cestui qwetrust had the right so to do, and if loss ensued'it is damnum absque injuria.</p>

<p>1. Limitation. Administrators. Bequest for delay. Bequest for delay to sue by an administrator of a creditor on demand must be for a definite time at his special request. It must be for a time so definite or capable of being rendered so by proof that the Court or jury can count out the time of delay requested.</p> <p>2. Same. Same. Same. The better practice is to endorse the request on the evidence of the debt, with the time agreed upon, so that the time may readily he counted out of the period of limitation.</p> <p>3. Same. 'Same. An acknowledgement of the correctness of the debt, and a promise by the administrator to pay as soon as he could get the money, or as soon as assets came into his hands, is not a special request, nor for a definite time, and will not prevent the bar of the statute of limitations.</p>

<p>1.Criminal Law. Indictment. Plea in abatement. A plea in abatement to an indictment filed by the District Attorney without a prosecutor, by order of the Court, under the Code, 'sec. 5097, sub-see. 9, that no witnesses were examined or proof taken by the Court that an indictable offense had been committed, is fatally defective, even if such plea will lie at all.</p> <p>2.Same. Same. Different counts. Where an indictment contained three counts, one for assault with intent to commit murder in the first degree, another for assault with intent to commit murder in the second degree, and the third for assault with intent to commit manslaughter, motions to quash the indictment and to compel the Attorney-General to elect upon which count he would proceed to trial, were properly overruled.</p> <p>3. Same. Same. Amendment. Upon an application to recommit an indictment to the grand jury for amendment, it is not necessary to mention the proposed amendment, and a return of the indictment by the grand jury in open Court, with an endorsement on the back, signed by the foreman, showing the amendments made in the indictment, and with the usual endorsement as a true bill of the amended indictment, would be good.</p> <p>4. Same. Practice. Recalling witness. It is in the discretion of the trial Court, after one of the defendant’s witnesses has been examined, to permit the Attorney-General to recall the witness, and ask a question with a view to contradict the witness.</p> <p>5. Same. Seasonable doubt. A reasonable doubt as to any material element of a crime, or any fact essential to the defendant’s guilt, will enure to his benefit.</p> <p>6. Same. Same. Instructions. In the absence of any special request for a further charge, it may be sufficient to say to the jury that they should acquit if the proof fails to satisfy their minds fairly and fully of an essential fact, but the defendant is entitled if he demands it, and the Court should give him the benefit of it without a demand, to the explanation that to fully satisfy the mind it must rest easy in the conclusion reached, or be satisfied of its truth beyond a reasonable doubt.</p> <p>7. Same. Same. Where a conviction is sought upon circumstances alone, the defendant, if he demands it, is entitled to the charge that the circumstances must be so strong, and well connected, as to exclude every other reasonable hypothesis but that of his guilt.</p>

<p>Where a misdemeanor case is stricken from the docket under th© Code, sec. 5193, the County Attorney-General, Sheriff, Clerk, and State’s witnesses are entitled to their fees, incurred on behalf of the State, as in ■ case of nolle prosequi or acquittal, to be taxed against the county.</p>

<p>Supreme Court. Jurisdiction. Writ of possession before hearing. The Supreme Court has no jurisdiction to award a writ of possession on a decree of the Chancery Court, nor on its own order, except after a hearing and decision on the merits.</p>

<p>Supreme Court. Application for a receiver. An application to this Court for a receiver, based upon the same facts on which the Chancellor had refused a similar application, cannot he entertained.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from . the Circuit Court oi Davidson County. 1ST. Baxter, J.</p>

<p>A plea of former conviction by confession on the same indictment which shows upon its face that there never was any confession, conviction or judgment of record, is had.</p>

<p>Ckiminai. Law. Disturbing public worship. Section. 4853 of the Codeis intended to protect assemblies met for religious worship. A meeting held for the. enjoyment of a Christmas festival, though it was especially intended for Sunday-school scholars and their teachers and friends, does not change its character nor make it an assembly for religious worship.</p>

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

<p>EROM SUMNER.</p> <p>Appeal in error from the Circuit Court of Sumner County. J. C. Stark, J.</p>

<p>Homestead. Purchase Money. Failure of officer to lay off homestead. Gray borrowed from Hall an amount of money to pay for a tract of land which he bought under a decree of the County Court, giving him therefor his notes, retaining on the face of them a lien on the land. Being also indebted to one Kennedy, the latter obtained a judgment against Gray before a Justice of the Peace, and ultimately the land was sold under • said judgment. In the meantime, Hall sued Gray upon his notes, and obtained judgment, which was stayed by March-banks. At the expiration of the stay, the land of Marchbanks, the stayor, was sold to siitisfy the judgment against Gray, and ■subsequently Marchbanks, having taken a judgment over against Gray, his principal, redeemed from Kennedy, adding thereto the amount of his own judgment. Gray had no other land besides the tract on which he lived, and which had thus been sold. Held : 1. The giving of the notes for money borrowed to pay for a tract of land, although the notes recited alien upon the land, does not make the money purchase money for the land. It is a species of security, but not such as to create a vendor’s lien. 2. Gray and wife having a homestead right in the land originally sold to satisfy Kennedy’s judgment, and redeemed by Marchbanks, as creJitor by reason of having paid the judgment which he had stayed, the purchaser, as well as the creditor who redeems, takes the land subjeot to the homestead right of the debtor. The mere fact that the officer, in selling the land, failed to assign the homestead, does not deprive the debtor of the right, nor vest a greater right than the officer could sell in the purchaser.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby County. J. 0. Pierce, J</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby County. L. 33. HoRRiGAN, J.</p>

<p>CRIMINAL Law. Indictment of executors, guardians, etc. Act of March 9, 1875. An indictment of an executor, administrator, guardian or trustee, under the Act of March 9, 1875, for converting money to his own use and failing to pay over trust funds, must contain averments that a settlement, voluntary or compulsory, has been made, that the money has not been paid over, that judgment has been obtained, and fi. fa. thereon returned nulla bona.</p>

<p>Criminal Law. Former acquittal. An acquittal of the charge of stealing a hog is not a bar to a subsequent indictment for wantonly and willfully killing the hog.</p>

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

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

<p>EROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby County. L. B. Horrigan, J.</p>

<p>Chanceby Pleading and Pbactice.- Demurrer, bad in part is bad altogether. The Court will not depart from the general rule that a demurrer bad in part is bad altogether, where a decision of the matter of demurrer might give one party an unconscientious advantage, and the ease presented by the bill is proper for equitable examination, although the complainant has.been negligent in making defense at law.</p>

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

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

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

<p>Widow. Doioer. Creditors filed bills to enforce debts against real estate, which had been paid for by the husband, but tille conveyed to a third party. The wife insisted she was entitled to the property under a parol trust, as conveyed to -a third party for her benefit. The husband died pending the litigation. The wife then claimed dower, by an amended pleading, in the event she failed to establish the trust. This Court held the trust could not be set up against creditors, not being in writing or registered, but that she was entitled to her dower, and was not estopped from asserting her right to it, hy having claimed and contended for the beneficial interest under the assumed "carol trust.</p>

<p>Contract. Sale of land. Mistake. Dejective title. Bescission. Where a contract in writing for the sale of land is executed by a deed of. conveyance, in which, by oversight, a material part of the land is not embraced, and the vendor has no legal title to that part, but only, at most, an equitable right to obtain it, the ven-dee is entiMed to a rescission unless the title is perfected before decree. The land lying in another State, the rescission will be upon condition that the complainant make a deed of reconveyance, within a reasonable time, duly probated for registration according to the laws of that State.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis, K,. J. MORGAN, 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. J. O. PieRce, J</p>

<p>Criminal Law. Arraignment and issue. It is no ground for reversal of a judgment of conviction that the jury were sworn to try the issue joined before the prisoner had been formally arraigned and pleaded.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby County. J. 0. Pierce, J.</p>

<p>Constitutional Law. Exemption as juror. Special exemption from service as jurors and road hands enacted in a charter of incorporation, in favor of officers and employees of the company, is class legislation, and unconstitutional.</p>

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

<p>1. Chancery Pleading and Practice. Trustee. Additional bond. Sureties. Upon a bill by a beneficiary to have a trust assignee removed for fraudulent conduct, the Chancery Court has power to require the trustee to give additional bond, and to administer the trust under the direction of the Court.</p> <p>?■. Same. Same. Interest. Counsel fees. Cost. The trustee in default will be charged with interest without proof of receiving it, and will not be allowed cost and counsel fees.</p>

<p>Privilege Tax. License. Livery stable. Under the Act .of 1870, authorizing the Taxing District to assess and coilcct license tax for livery stables,.and also shed yards, a licensed livery stable keeper may keep stock and vehicles under a shed without additional license.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Criminal' Court of Shelby County. L. B.. IIorrigan, J.</p>

<p>Landlord and Tenant. Trade fixtures. As between landlord and tenant, trade fixtures, although securely fastened to the freehold, may be removed by the tenant or his assignee, if the removal can be effected without material injury to the freehold. A stipulation in a lease that the tenant should make no “alterations or repairs,” without the consent of the landlord in writing, and furhter, in the same sentence, that he should not remove “ any repairs, improvements, additions or fixtures,” was held not to apply to trade fixtures.</p>

<p>Husband and Wife. Parol trust will not defeat creditors, when. .If a husband conveys his land, by deed absolute on its face, to another person without consideration, with an intention, subsequently made known to the conveyee, that he shall hold the land for the benefit of the wife of the conveyor, such parol trust cannot be set up against creditors of the husband. To defeat the creditors, there must be a deed or declaration of trust registered or noted for registration, as required by law.</p>

<p>Tax Sams. Clerics’ fees. Section 5, Act of 1S79, chapter 245, construed to mean that the State is not to pay the fees of Clerks in cases where the lands have been previously sold by the Stale and not redeemed at the rime of second sale, but in such cases the Clerk may collect the fees from the delinquent taxpayer.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby County. L. B. Horrigan, J.</p>

<p>Criminal Law. Discharge of the jury. A jury in a criminal cause may be discharged by the Court without the consent of the accused, where they have had a sufficient length of time to deliberately, carefully and fully consider the entire case as presented by its facts and as governed by the rules of law given in charge by the Court, and there.is no possibility of an agreement upon and return of a verdict, but the Court should be satisfied of the impossibility of an agreement; and the reasons for such conclusion by the Court should be set out in its order of discharge, so that a revising Court may consider them upon a plea of “onae-in jeopardy.”</p>

<p>1. Chancery Pleading and Practice. Exceptions to a Clerk’s report. Exceptions a Clerk’s report of sale are inadmissible, which require the Court to go behind or modify the decree under which the sale was made, or to look outside of the record on which it is based.</p> <p>2. Supreme Court Practice. A decretal order will not be modified at a subsequent term of the Court. A decretal order will not be modified at a subsequent term by this Court, upon grounds which might and should have been urged when the order was made, nor at all after it has been executed, unless, indeed, in a very extraordinary case. ~</p> <p>3. Judiciary Sales. Inadequacy of price. Mere inadequacy of price is no ground for setting aside a judicial sale. ~~</p> <p>4. Same. Clerk. Has discretion as to time of sale. A Clerk has a discretion in selecting a day for the execution of a decree of sale, which will not be controlled except in a clear case of abuse.</p> <p>5. Same. That creditor claims prior title is no ground for interference. It is no ground for interfering with a judicial sale that the creditor, in whose favor the sale is ordered, insists upon a prior title to the property, under which he claims, duly recorded and mentioned in the pleadings of the cause.</p>

<p>1. Certificate. Defective probate. Amendment. The correction of the certificate of privy examination of a married woman, under the Code, sec. 2082, may be made by the officer who took the examination, after he goes out of office, and the oath to the truth of the correction need only be made in open court without being entered on the minutes.</p> <p>2. Chancery Pleadings and Practice. Decree upon demurrer. A decree upon a demurrer, if upon the merits, is as conclusive as though the facts set forth in the bill were admitted by the parties, or established by evidence, and is conclusive of everything necessarily determined thereby. But if the Court merely decides that the complainant has not stated facts sufficient to constitute a cause of action, or that the bill is liable to specific objection, such decision does not extend to any issue not before the Court on the hearing of the demurrer.</p> <p>3. Same. /Same. Where, therefore, a hill to foreclose a' mortgage of husband and wife on the wife’s realty, making the mortgage an exhibit, was demurred to on the ground that the certificate of acknowledgment to the mortgage exhibited did not state that the Clerk was personally acquainted with the bargainors, or that the wife was privately examined, and the demurrer sustained as to the wife, after which the omissions in the certificate was corrected by the Clerk, and an amended and supplemental bill filed, by leave of the Court, upon the mortgage with the con-eeted certificate, setting out the proceedings under the previous bill, it was held that a demurrer to the latter bill was properly overruled.</p>

<p>1. CORPORATIONS. Directors. Directors of a corporation are required to show reasonable capacity for the position, scrupulous good faith, and the exercise of their best judgment.</p> <p>2. Same. Same. Not personally Halle, when. Directors, who act in good faith, and with reasonable care and diligence, but nevertheless fall into a mistake, either of law or fact, are not personally liable for the consequences of such mistake.</p> <p>3. Same. Same. Same. The by-laws of a corporation provided that the Board of Directors should elect a Secretary, whose term of office should be twelve months, or until his successor was elected, and who was to give bond with security for the faithful discharge of his duties. The Board elected a Secretary, and took the prescribed bond, and re-elected the same person Secretary fotc each of the two following years, but took no new bond, supposing, after consideration and discussion of the question, but without taking legal advice, that the bond taken was a continuing security during those years. The Secretary became a defaulter in the third year. Held : That the Directors, who were good and efficient business men, stockholders of the coporation, and acting in good faith, were not liable to make good the loss.</p>

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

<p>1. Assignment. Rights of assignee, and judgment creditor claiming under levy of execution. As between the assignee under a general assignment for equal benelit of all the creditors, and judgment creditors.of the assignor, claiming under an execution levy, itis a íace of diligence, and the judgment creditor will not be deprived of the fruits of his diligence merely on the ground that the levies were made “just before or while said assignment was being written.”</p> <p>2. Execution. Issued upon insufficient affidavit not void. An execution issued prematurely by a Justice of the Peace without a sufficient affidavit is not void, but valid until set aside, and no one can take advantage of the irregularity except the defendant, nor even he collaterally.</p> <p>3. Same. Garnishment. Answer of garnishee waives notice. The ■appearance and answer of the garnishee waives the. objection to the notice, which although authorized by the officer having in his hands the execution, and signed in his name, was neither written, nor served by him, nor do these facts give the assignee of the judgment debtor any ground in equity to follow the fund in the creditor’s hands.</p> <p>4. Assignment. Registration wtice to debtors. The registration of a trust assignment does not perfect the title of the assignee to the assignors choses in action as against creditors, but there must be notice to the debtors before'garnishment.</p> <p>5. Execution. Levy. A levy on bulky articles m a closed cellar through a crack in the door will be good if the articles be kept in view by the officer until surrendered by the debtor</p>

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

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

<p>PROM DYER.</p> <p>Appeal in error from the Circuit Court of Dyer County. S. W. CochRan, Sp. J.</p>

<p>EROM DYER.</p> <p>Appeal in error from the Circuit Court of Dyer County. J. T. Carthbl, J.</p>

<p>FROM FAYETTE.</p> <p>Appeal in error from the Circuit Court of Fayette County. T. J. Flippin, J.</p>

<p>EROM GIBSON.</p> <p>Appeal from the Chancery Court at Trenton. John SomeRS, Ch.</p>

<p>FROM GIBSON.</p> <p>Appeal in error from the Humboldt Law Court. G-. B. Black, J.</p>

<p>FROM TIPTON.</p> <p>Appeal in error from the Circuit Couiv of ipton County. T. J. Tlippin, J.</p>

<p>X. Vendor’s Lien. Notes for purchase ■money. Assignee. Notes were executed for the purchase money of a tract of land, lien being retained. The vendor transferred one of the notes, guaranteeing that the note should be paid in preference to the others; Meld, that the holder of the note was entitled to priority of payment, as against the vendor or his subsequent as-signee.</p> <p>2. Same. Same. Surety. Where several notes have been executed for purchase money, one of which is secured by personal security, and the surety pays the note for which he is liable, he is not- entitled to be reimbursed out of the proceeds of the land sold to pay balance of the purchase money until the same has been paid in full.</p>

<p>Guardian and Ward. Sureties on bond. Priority. The sureties on a renewed guardian bond are, under the statute, liable before the sureties on a previous bond, although the guardian appropriated the wards’ funds to his own use prior to the execution of the last bond.</p>

<p>1. Chancery Pleading and Practice. Bill to enforce vendor's lien. Collateral security. Parol evidence inadmissible, when.. Upon bill filed to enforce a vendor’s lien, parol evidence is inadmissible to sustain the defense by answer that the vendor had received certain notes in payment of the installments of purchase money then due, the defendant’s endorsements on the notes showing that they were assigned as colla teral security.</p> <p>2. Same. Attorney's fees. Beferenee. Where a deed of conveyance, after describing the purchase notes sufficiently to identify them, retained a lien on the land for the “due payment of said notes,” the lien will cover the reasonable fees of attorneys provided for on the face of the notes for their collection, although this feature of the notes be not mentioned in the deed. Evidence as to the amount of the fees having been introduced by the complainant in advance oí the hearing on the merits, a reference at the heaving to the Clerk to take proof and report upon them could not prejudice the defendant, and would not he error of which he could complain.</p> <p>3. Same. Whether land sold under vendor's bill should be divided not an issue on. the merits. Whether land sought to be sold under a vendor's bill can be divided or should be sold in a body is not a matter in issue on ihe merits, and may he ascertained by reference after a hearing on the merits.</p> <p>4. Same. Instanter reference may be ordered. Under our practice the law presumes that the parties litigant are present in Court during the term, and the Court may order a reference to he exe-cu.ed instanter, with or without notice to the party or his solicitor, and error cannot be assigned upon the discretionary action of the Chancellor in this regard, without showing facts which establi.-h an improper exercise of the discretion to the injury of the parties.</p> <p>5. Same. Cross-bill filed after trial term will not stay hearing of orí-, ginal cause. Where an application to file a cross-bill is not made until the trial term, (he Court, while granting the application, may refuse to stay the trial of the original cause, and should do so where the matte s set up constitute no defense to the relief which may be granted.</p>

<p>Assignment. Parol. Is binding on the assignor. A parol assignment of part of a lien debt, with the right of priority of satisfaction, is binding on the assignor.</p>

<p>Criminal Law. Carrying arms. Officers. Officers with criminal process to execute may lawfully go armed, but Sheriffs, Con-Soables, Trustees, and other officers with mere civil process to execute, are liable to indictment for carrying a pistol, except as prescribed by statute.</p>

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

<p>Exemption. Commissioner’s eosts. Costs taxed in favor of a commissioner for partition of lands, and collected by execution, are not exempt in the officer’s bands from application by him to the satisfaction of a ft. fa. in his hands against the party for costs in another case.</p>

<p>Criminal Law. [Carrying pistol. Fine and, imprisonment. Imprisonment for unlawfully carrying pistols is within the discretion of the Court trying the case, and this Court will not interfere to remit imprisonment imposed in such cases, except where a gross abuse of this discretion is shown.</p> <p>Under Code, sec. 5251, Courts rendering final judgment have no power to remit fines where the amount of the fine is fixed by statute, as in the case of unlawful carrying arms.</p>

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

<p>PROM HARDEMAN.</p> <p>Appeal iu error from the Circuit Court of Hardeman County. T. J. Flippin, J.</p>

<p>1. Pleading and Practice. Writ of replevin. Amendment. A writ of replevin sued out before a Justice by a wife for property seized by the defendant under execution against the husband, may be amended in the Circuit Court by joining the husband with the wife as plaintiff, upon the execution of a new bond.</p> <p>2. Separate Estate. Chattel. When a chattel is' purchased from the husband by a stranger, and at once given to the wife for herself, the transaction, from its very nature, would confer upon the wife a separate estate.</p> <p>3. Laws of Sister States. Judicial notice. Query. Whether this Couit will reverse for the want of proof of the law of a sister State, of the existence of which the Court is authorized to take judicial notice.</p>

<p>EROM GIBSON.</p> <p>Appeal from the Chancery Court at Ilumhoklt. John Somers, Ch.</p>

<p>Compensation. For services. Statute of limitation. Where a party renders service in hope of a legacy in sole reliance upon testator’s generosity, witnout any contract express or implied, no action will lie if no provision be made by will. But where from all the circumstances, it is manifest, that it was mutually understood that compensation should be made by will, and none is made, an action lies to recover the value of such services— but the statute of limitation being pleaded services can only fee recovered for six years prior to death of testator.</p>

<p>Adverse Possession. Assurance of title. A partition of specific lands, under a general devise by will of all the residue of the testator’s estate, real and personal, made in writing by persons especially authorized by the will, is an assurance of title, within the Code, sec. 2763, which will vest the parties with a good title to their allotments by adverse possession for the time prescribed^</p>

<p>EROM MADISON.</p> <p>Appeal from the Chancery Court at Jackson. H. W. McCoRRY, J.</p>

<p>Supreme Court Practice. Mistake. The alleged mistake of the Clerk of the inferior Court, omitting the names of some of the appellants as parties in an appeal bond, cannot be corrected in the Supreme Court after disposition of the appeal. The Court might, in the original cause, before final determination, have granted permission to amend a defective bond, and complainants also had their remedy by writ of error, but such mistake cannot be the object of a new bill.</p>

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

<p>FROM SHELBY.</p> <p>Appeal from the Probate Court' of Shelby County. J. E. R. Ray, J.</p>

<p>Assignment. Beal estate. Vendor’s lien. Priority. A trust assignment of land for the benefit of a creditor, duly registered, made by a devisee of the land to secure a debt of the testator renewed by the executor will have pi'eference over á vendor’s lien for unpaid purchase money resting in parol, the legal title to the land being in the devisee, and the assignees having no notice of the lien until after the deed was accepted.</p>

<p>1- Attachment. Damages, how awarded for wrongfully suing out. Detendant in attachment suit, when the attachment has been dismissed, may proceed to recover damages at his discretion, either by motion before the Court that passed upon the original cause or by suit at law upon the bond. It is eompttent for the Court in which the bond was executed to ascertain and assess the damages. The motion is an independent suit, and is a substitute for an action at law upon the attachment bond.</p> <p>2. Supreme Court Practice. Appeal in suits on bond or motion to award damages in attachment suits. Appeal from the judgment on motion to assess damages in attachment suits, or from a suit at law upon bond, does not carry to Supreme Court for its revision the judgment or decree iu the original cause.</p>

<p>ConxRact. Contractor and sub-contractor. Under a contract "between a contractor for the grading of a railroad, and a subcontractor of a part of the same work, which stipulated for the retaining, by the contractor, of a certain per centage of the monthly estimates as collateral security for the execution of the contract* and provided, in the event the sub-contractor failed to keep a sufficient force at work to complete it in time, that the contractor might put a force on said work at his expanse, or declare a forfeiture, and re-let or do the work and hold the sub-contractor liable for any damage or injury by reason of his failure, the sub-contractor left the work, and the contractor declared a forfeiture, but neither re-let or did anjr further work, and, by agreement with the railroad company, abandoned the work, after receiving full pay for what had been done. It was held that the per centage retained belonged to the sub-contractor, and was recoverable accordingly.</p>

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

<p>1. Trustee. Trust fund. A trustee may assign an order or decree in favor of the trust estate for a valuable consideration, the proceeds of such assignment enuring to the benefit of the trust estate, but he has no power to borrow money for his own use and transfer or assign such orders or decrees as collateral security, and a party who accepts such an assignment cannot be considered either as a legal or equitable assignee.</p> <p>2. Same. Resignation. -Bes adjudieuta. Upon a petition filed by a trustee to make final settlement and resign, questions which are not directly presented to and passed on by the Court cannot be considered as res adjudicata, and the cestui que trust is not es-topped from denying the correctness of the amount as due to or by him, when such indebtedness was not directly investigated by the Court.</p>

<p>1. Partnership. Statute of limitation. The statute of three years presents no barrier in a Court of Chaneery to an account between deceased partners.</p> <p>2. Same. Lapse of time. There is no period of time definitely fixed as an absolute bar. The reasons for refusing relief, because of lapse of time, are, in part, that the loss of papers, death oi parties and witnesses, and the failure of memory, involve the transactions in so much obscurity and uncertainty that any attempted settlement will probably fall far short of reaching the truth, and may do injustice.</p> <p>Cases cited: Godden x. Kimmel, 9 Otto, 201; Marsh v. Whitmore, 21 Wall., 185; McEwen v. Gillespie.</p>

<p>1. Banks. Liabilities o f subscribers for stock. By the general banking Act of 1859-60, the original subscriber is liable for the amount of his subscription until the same is paid up, whether he retains or assigns 'he stock, and this applies to subscribers for stock in a bank chartered before the passage of the Act, although the charter contained no such provision.</p> <p>2. Same. General Banking Act Constitutional. The Act is not unconstitutional, because impairing the obligation of a contract. It does not assume to take away the power to assign stock, but simply to regulate its transfer; imposes no new obligations or restrictions, but prescribes the conditions upon which the original stockholders might assign their stock.</p> <p>3. Same. Stock. Liability of assignor and assignee. The assignees of such unpaid stock are first liable, and if the amount cannot be collected from them, then their assignors, who were original subscribers, are liable.</p> <p>4. Same. Liability of stockholders. Discharge in bankruptcy. The liability of a stockholder.is a fixed, definite sum, and is provable before a bankrupt court, and a discharge in bankruptcy will release such stockholders from liability.</p> <p>5. Same. Stockholders. Paymentin depreciated bills. Where abill is filed to settle the respective liabilities of stockholders in an insolvent bank, and a stockholder has paid his stock in depreciated bills of the bank, he should only be credited with the value of said bills at the time of payment.</p> <p>6. Same. Unpaid stock. Statute of limitations. The statute of limitations will not commence to run until a call has been made for the unpaid stock.</p> <p>7. Same. Stockholder. Judgment. Any stockholder who is an as-signee of a judgment rendered in favor of a noteholder, may have his liability extinguished pro tanto by said assigned judgment.</p>

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

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

<p>EROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby County. J. O. Pieece, J.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Coart at Memphis. 3L J. MORGAN, Ch.</p>

<p>I. Chancery Pleading and Practice. As to necessary parties. Quere, whether a mother who buys land, and causes the deed to be made to her in trust for the separate use of herself and children for life, and after her death to go to her children or the issue of such as may he dead, with the power of sale and re-investment reserved to her, sufficiently represents the children to make a sale of the land good against them under a bill died for the enforcement of the lien reserved on the face of the deed for the payment of the purchase money?</p> <p>Z Same. Remaindermen. Equitable subrogation. If such a sale be declared void as to the remaindermen, because’not made parties, the Court intending to sell and the purchaser to buy the entire estate, so much of the purchase money as was applied to the payment of the lien debts, with interest, as provided in the original contract, will be, as against the remaindermen, although infants, by way of equitable subrogation, charged in favor of the purchaser as a lien on the land, and the land subjected to the satisfaction thereof by sale.</p> <p>3. Same. Revivor. A suit may be revived under the Code, sec. 2855, by the infant heirs and successors of a deceased complainant, upon motion in their name by next friend.</p> <p>4. Same. Decree. How set aside or impeached. A decree by consent on behalf of infants cannot be set aside at a subsequent term upon motion or petition by them, nor can it be brought up by appeal. It can only be impeached by an original bill.</p>

<p>Bankeueecy. Assignee, rights of. Ordinarily, upon the fact being made known to the Court before final decree, and it not appearing that there are conflicting rights, it may he that an as-signee in bankruptcy will be allowed to take the place of the bankrupt; but if he postpones the application until after the final determination, it becomes a matter of favor and not of right.</p>

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

<p>1. Doweb. Homestead. Dissent from will. A widow is entitled to dower or homestead where her husband makes provision for her, by will, in either personal property or real estate, or both, and dies insolvent, without formal dissent in court, as provided for in section 2404 of the Oode.</p> <p>2. Same. The law presumes the testator to be at the time of his death the owner of the property bequeathed to his wife, and will allow to the widow the right of the same presumption, and she is also entitled to the informal dissent given by operation of law.</p> <p>3. Same. The fact that a small portion of the bequest has not been absorbed in the payment of debts will not change the rule above laid down — nor that in addition to the bequest there was a devise of land, for an exhaustion of the personal property may necessitate a sale of the land to pay debts.</p> <p>4. Same. The language — “a provision in personal estate” — does not preclude the idea of a provision in realty also.</p> <p>5. Homestead. By law the homestead vests in the husband and wife ,'ointly and 's a life estate. Upon the death of either it vests in the survivor. Neither has the right to dispose of it except with the consent of the other, and then only in the mode prescribed by law</p> <p>d. Same. The right of the wife is fixed during coverture, and is only lost by her voluntary alienation or abandonment, or by death.</p>

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

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

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

<p>PROM MADISON.</p> <p>Appeal in eri’or from the Law Court of Madison. H. W, McCoRRY, J.</p>

<p>1. Privies. How created. The relation of privies may be created by operation of law, by descent or by voluntary or involuntary transfers from one person to another, and denotes mutual or successive relationship to the same rights of property.</p> <p>% Statute oe Limitations. Color of title. Voidable deed. A naked trespasser without color of title cannot transmit his right to a successor so as to enable the latter to couple the two possessions to form the bar of the statute of limitations, but those having color of title may transfer or convey their right by conveyance so as to enable the holder to connect successive conveyances and possessions with his own right and possession, and this, though one of the conveyances, was voidable.</p> <p>8. Same. Creditors. Beal estate of intestate. Lien. Purchaser from ' heirs of intestate. Creditors of an ' itestate have no such lien on the real estate of the intestate as will prevent the bar of the statute of limitations in favor of the purchaser of the heirs of the intestate.</p>

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

<p>FROM MADISON.</p> <p>Appeal in error from the Common Law Court of Madison County. L. B.' HoRIiigan, J.</p>

<p>Attorney-General. Fees. Where a bond of a county officer is reported insufficient, and a citation is issued by the Court to strengthen and increase the bond, and there is a judgment of ouster and costs against the officer, the Attorney-General representing the State is not entitled to a fee.</p>

<p>Attorney-General. Fees. The Attorney-General is not entitled' to a fee where a Constable’s bond is reported insufficient, and who, upon citation, gave a good and sufficient Ibond, and cita-tation dismissed at the cost of the county.</p>

<p>Attoenby-General. Fees. The Attorney-General is entitled-to no fee where a forfeiture is taken against a witness and afterwards set aside at the cost of the county.</p>

<p>Attorney-General. Fees. The Attorney-General is entitled to no fee in ease of forfeiture ancl attachment for witness, where the witness is adjudged to pay the fine and costs.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby County. L. B. IIoRRiHAN, J.</p>