Volume 73 — Tennessee Reports

<p>FROM POLK.</p> <p>Appeal from the Chancery Court at Benton. W. E. Cooper, Ch., presiding by interchange.</p>

<p>EB.OM COCKE.</p> <p>Appeal from the Chancery Court oí Cocke county. H C. Smith, Ch.</p>

<p>1. Pleadings and Pbactioe. Tender. When plea of, is bad. To a suit. upon a note for so many dollars on a day certain, payable in current money, a plea of tender after the day is bad.</p> <p>2. Same. Pleas of nil debit and payment. What may not be found under. Under pleas of nil debit and payment to a suit upon a note payable in current money, a charge of the court based upon the idea that the jury might find that, after the note fell due, a new contract was made for its payment in Confederate money, would be erroneous, and especially so if there was no evidence of any new contract</p> <p>3. Same. Note payable in currmt money. What should be the recovery. In a suit upon a note in which the maker promises to pay so many dollars on a day certain, payable in current money, the recovery will be the specie value of such currency as it would have been most to the interest of the promisor to have paid.</p> <p>4. Same. JErroneous charge. When not cause for reversal. In a suit on such a note, dated the 7th of October, 1862, and payable'the first of January, 1863, the jury, under an erroneous charge, found a verdict for the plaintiff for the value of Confederate money, then shown to have been the currency of the State, on a specie basis, there being no legal tender notes of the United States then in circulation, with interest, on which, judgment was rendered. Held, that the plaintiff had recovered all he was entitled to, was not injured by the errors of the charge, and that the judgment should be affirmed.</p>

<p>FROM GREENE.</p> <p>Appeal from tlie Chancery Court at Greeneville. H. C. Smiti-i, Ch.</p>

<p>Sukety, Contribution from co-surety. Payment after bar of statute of limitations. A surety who pays the debt after the bar of the statute of limitations has attached in his favor is not entitled to recover contribution from a co-surety equally protected by the statute.</p>

<p>GUARDIAN AD DITEM. Fee. 7Áen. A guardian ad litem is entitled to compensation for his services in conducting the suit of his ward; and is entitled to a lien for the same upon the property protected.</p>

<p>PROM SULLIVAN.</p> <p>Appeal from the Chancery Court at Blountville. H. C. Smith, Ch.</p>

<p>EROM WASBTNGTON.</p> <p>Appeal in error from the Q^-Wifit' Court of Washington county. NewtoNy HA%T/<er; J.</p>

<p>FROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene county. NewtoN Hacker, J.</p>

<p>FROM WASHINGTON.</p> <p>Appeal in error from the Circuit Court of Washington county. Newton Hacker, J.</p>

<p>PRACTICE and Pleadings. Warrant. Amendment. Suits for violation of ordinances of a municipal corporation, being civil and not criminal actions, amendments of the warrant may be allowed by the court, to which the action is taken by certiorari for a new trial. It is error to refuse amendment and quash a warrant for an “ affray,” the ordinance forbidding disorderly conduct.</p>

<p>FROM GRAINGER.</p> <p>Appeal in error from tbe Circuit Court of Grainger *county. J. G. Rose, J.</p>

<p>FROM HAWKINS.</p> <p>Appeal from the Chancery Court at Rogersville. H. C. Smith, Ch.</p>

<p>Guabdian fob Lunatic. Removal. Guardian oí Lunatic, or person of unsound mind, is liabie to be removed from guardianship, if he fails to make his settlements as required bylaw; fails to renew his bond as provided; or converts the funds in his hands to his own use, as by paying his own debts with the money.</p>

<p>1. Revenue Collectob. Sureties. The sureties of a revenue collector of county taxes for the last two years of the six years during which he continued in office, are entitled to perpetually enjoin suits commenced against them and their principal, by motion, on the official bonds of the principal, upon proof that the taxes for the collection of which they were liable have been paid to the county, although their principal may be largely in default to the county for other years, and they may recover from the county any payments, which have not been reimbursed to them out of the taxes, made by them under a mistaken impression, superinduced by the county, that they were liable to the •county in a much larger amount.</p> <p>2. Same. Same. Such sureties are not entitled to recover from the county, as overpayments on the taxes of the two years for wdiich they were bound, money paid to the county by their principal either out of the taxes collected by him or out of his own means, on his running account with the county for the entire period of his official service.</p> <p>3. Same. Same. Nor are they entitled to recover from the county, as the sureties of their principal for the collection of State taxes during the same two years, payments alleged to have been made to the county by their principal out of the State taxes collected by him, the county not being shovrn to have had any knowledge of the source of such payments, and the evidence failing to show any definite sum thus paid.</p>

<p>PROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene county. J. A. McKinney, J.</p>

<p>PROM KNOX.</p> <p>Appeal in error from the Criminal Court of ICnox county.</p>

<p>1. Cbanceby Pbactice and Pleadings. Contract. A court of chancery will, if justice requires, rectify a contract for the sale of land, and execute it as corrected.</p> <p>2. Same. Rehearing. A rehearing in equity for the purpose of receiving new evidence should only he granted, upon good cause shown, to let in material or controlling evidence newly discovered, and which could not have been sooner brought forward by reasonable diligence. It is no ground for a rehearing that the proof of the opposite party, as the petitioner is advised, had undue weight on the hearing, which was a surprise to him; nor that the petitioner’s own deposition had not been taken, no excuse being given for the failure to have his testimony at the hearing; nor that the petitioner has recently discovered evidence which might have been previously ascertained by reasonable diligence, or which was merely cumulative.</p>

<p>Practice. Abatement. Revivor. An order for the abatement of a writ of error will not be made at the second term after the death of the party has been suggested, proved and entered of record, the right to revive continuing during the whole of that term.</p>

<p>Pension Money. Exemption of. The exemption of pension money, under the act of Congress, from legal seizure, continues until the money is actually paid to the pensioner, and, therefore, a formal payment to a third person, which, by reason of the fraud and collusion between the pension agent and such person, leaves the agent liable for the money as still in his hands, will not deprive the pensioner of the protection of the act.</p>

<p>1. Attachment. Publication. An order for an attachment may be general, and need not contain all the recitals prescribed for the notice by publication.</p> <p>2. Chancery Pleadings and Practice. Decrees. Recitals in. The recital in an order, taking a bill for confessed, that publication has been regularly made, is sufficient to sustain attachment proceedings against collateral attack, or even from a direct attack by appeal, in the absence of anything in the record showing that the recital was erroneous.</p> <p>3. Attachment. Publication. The notice of publication, under the Code, sec. 3522, is not required by that section to show that the attachment was levied.</p>

<p>Statute of Limitations. Plea of is personal. Joint plea bad. When, The statute of limitations of two years and six months in favor of personal representatives is personal to them, and therefore a joint plea by the administrator of a guardian and the surety of the guardian on his official bond, to a bill filed against them on a decree against the guardian and surety for the official delinquency of the former, is bad as to the surety. And such a plea filed to a cross-bill, in which it is stated that a soire facias to revive the decree had bee» sued out and served within the two years and six months, and was then depending, is bad as to both defendants.</p>

<p>1. Statute oir Limitations. Will run in favor of fraudulent grantee. The statute of limitation in favor of a fraudulent or voluntary grantee begins to run against the creditor of the grantor, who seeks to enforce his debt against the property conveyed, from the time when such creditor has a right of action to test the validity of such conveyance.</p> <p>2. Same. Same. Held, therefore, seven years adverse possession under a conveyance, first by a son to whom land was conveyed, then by husband and wife to whom the son conveyed, and then by another son to whom the wife conveyed, after the right of the creditor accrued to enforce his debt, was a bar to his recovery.</p> <p>3. Land. Joint occupation. Legal title. In cases of joint friendly occupation of land, the benefit of such possession enures to the benefit of him who has the legal title.</p> <p>4. Same. Same. By husband and wife. Occupation by husband and wife, where the legal title has been conveyed to the wife, and registered, and such possession held openly under said deed, enures to the benefit of the wife. The wife cannot be deprived of the benefits of the statute, nor is she required to live apart from her husband in order to hold her land adversely.</p>

<p>1. Deed. Privy examination. Certificate. Can only be attacked for fraud. IE the certificate of the privy examination of a feme covert, and the commission nnder which it is taken, are in due form and signed by the proper officials, a court of chancery has no jurisdiction to enquire into their regularity, nor is parol evidence admissible to impeach them for mere irregularity. The policy of the law requires that they shall be conclusive, and they can only be attacked for fraud.</p> <p>2. Same. By husband and wife cannot be impeached. When. The validity of a deed made by a husband and wife in trust to secure money advanced, on the faith thereof, to the husband, by an innocent third person, where the probate is in due form by the proper officers, cannot be impeached upon the ground that the deed and the certificate of privy examination were dated earlier than the date of actual execution, or that the married woman was not unable to appear before the clerk in proper person, or that the commission to take the privy examination was in blank when issued, or that the privy examination was not taken in the most approved mode.</p> <p>3. Same. Married woman cannot contradict, by parol, certificate of acknowledgment. When. The fact that the husband misled the wife as to the nature of the instrument she was called upon by him to sign, and which she executed at his request and without reading it, does not constitute such fraud as will enable her to contradict, by parol, the certificate of acknowledgment and privy examination to a trust deed to secure mnoey loaned to the husband, neither the creditor nor the trustee being present, nor having any reason to suspect the imposition.</p> <p>4. Will. Construction. Contingent remainder cut off. When By his will, a testator devised to his daughter and her husband certain lands and other property, to be disposed of by them as they may see proper; by a codicil, the testator declared that it was not his intention to make the estate of the husband, in the event he survived his wife, a fee simple estate, but that he should hold the same for his natural life only, and, upon his decease, the lands should descend to the children of the daughter or her heirs; by a subsequent clause in the codicil the testator provided that the husband and wife should have power, during their joint lives, to dispose of the lands devised to them, by deed exe-euted by them jointly, and proved and acknowledged according to law for disposing of the estates of married women. The husband and wife joined in a conveyance of the land, in the mode prescribed, to secure a debt for money borrowed by the husband. Held, that the conveyance passed the entire estate, and cut off the contingent remainder in favor of the children or heirs of the daughter.</p> <p>•5. SUPREME Court Practice. Land sale. Discretion of GhcmceUor. Where a decree of foreclosure of a trust by sale directs the trust prop» erty to be sold by the clerk of the court instead of the trustee, tho beneficiary who does not appeal, cannot assign error on that part of the decree, nor would this court control the discretion of the chancellor in such a matter except in a clear case of its erroneous exercise.</p>

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

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

<p>1. Chancery Practice and Pi/eadinss. Statute of frauds. Vendor and vendee. Spedfic performance of parol contract for sale of land being refused, vendee is entitled to value of permanent improvements in excess of rents and profits. Where, upon bill filed by the vendee against the heir of the vendor, the specific performance of a parol contract for the sale of land is refused because within the statute of frauds, the vendee will be entitled to the value of the permanent improvements made with the knowledge of the vendor, even if that value exceed the rents and profits, and to any payments of the consideration made by him, with interest thereon, subject to an account of the rents and profits, with like interest, and to have any balance found in his favor declared a lien on the land.</p> <p>2. Same. Improvements. Value at time possession is surrendered. The value of the improvements in such case is to be measured by the enhancement of the land by reason of the improvements as they exist at the time the possession of the land is surrendered by the purchaser.</p> <p>8. Same. Consideration of purchase. Sow account should be taken. The consideration for the purchase of the land beiug the support by the purchaser of his mother for life, the proper mode of taking the account is to set off at the end of each year the expense of the support against the rent of that year', calculating interest on the balances on the principle regulating partial payments.</p> <p>4. Same. Parlies. Dower. A dowress of the land may in such case be made a defendant with the consent of the complainant, but unless she asks for an assignment of dower, her rights as dowress cannot be taken into consideration in the accounts ordered.</p>

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

<p>FROM HAMBLEN.</p> <p>Appeal from the Chancery Court at Morristown. H. C. Smith, Ch.</p>

<p>EJROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene county. Newton Hacker, J.</p>

<p>Chancery Pba.ctio:e and Pdeadings. JRevivor. Pending a suit in chancery by husband and wile, in right of the wife, she died, and, more than two terms after entry of record to that effect, the court, upon motion of the defendants, ordered the suit to abate as to the wife. The defendants moved afterwards for an order that the suit abate also as to the husband, pending which motion the husband filed a bill of revivor as the personal representative of the wife. Held, that he was entitled to revive.</p>

<p>1. Chancery Practice and Pleadings. Process. Return. A party who seeks to set aside a judgment against him upon the ground that he was not served with process, must clearly make out his case.</p> <p>2. Same. Who may appeal upon the setting aside of a fraudulent conveyance. Upon a bill filed to set aside a deed purporting- to convey land in absolute sale, upon the ground that it was made to hinder the complainant in the collection of his debt, the grantor and grantee insisted upon the validity of the sale, and the grantor swore in his deposition that the sale was bona fide and the consideration fully paid to him; held, that the grantor had no interest in the land to authorize him, by appeal, to impeach the decree subjecting the land to the satisfaction of the complainant’s debt.</p>

<p>1. Chancery Court. Illegal contracts. A court of equity will not interfere, at the instance of a principal in a transaction compounding a felony, in the absence of fraud or oppression, to set aside an absolute conveyance of land to the surety of the principal on a note executed in furtherance of the illegal bargain, where the facts stated in the bill render it reasonably certain that the surety has paid the note; nor will the court, upon a bill so framed, take jurisdiction upon an allegation that the conveyance was intended merely to secure the note.</p> <p>2. Same. Same. Intervention to set aside illegal contracts in the sound discretion of the cowrt. The active interposition of equity to set aside ex-ecutory contracts which are illegal rests in the sound discretion of the court, and is not of right in the parties, and to invoke that discretion the party seeking its aid must do so promptly, or clearly show by the facts stated in the bill that the court can safely act without doing injustice, and can restore the parties to the condition they were' in at the making of the contract.</p>

<p>Attachment in Equity. Appeal bond. Judgment thereon. Where an attachment is sued out in equity upon proper averments under the Code, sec. 3455 et seguente, fiats obtained, and proceedings had in conformity therewith, the debtor acquiescing therein, and, upon appeal, giving bond for the appeal conditioned for the payment of the debt, the complainants, on affirmance, will be entitled to a judgment on the appeal bond for the recovery below, notwithstanding a prayer in the bill for relief beyond that which follows an attachment at law.</p>

<p>Tbtjstee. Compensation. Attorney’s fee. A trustee who files a bill which, although not strictly a bill of interpleader, accomplishes the same purpose without objection by the successful party, and who is not required by that party to pay the money into court, is fairly entitled to compensation if he has kept the fund loaned out on good security, but not if he has himself used the fund, and to be reimbursed any expenses incident to the trust, and to the reasonable fee of counsel for filing the bill.</p>

<p>Criminal Law. Alibi. The defense of an aMbi, both in the trial of a criminal offense and when relied on upon a motion for a new trial to contradict a witness for the State, depends so much upon the attending circumstances, which can be under the view of the circuit judge only, that this court will not revise the finding of the jury or the action of the judge, even in a case where the conviction rests on circumstantial evidence, except the error be plain.</p>

<p>JPltOJl COCKE.</p> <p>Ajipeal from the Chancery Court at Newport. H. C. Smith, Ch.</p>

<p>FROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene county. Newton Hacker, J.</p>

<p>FROM SULLIVAN.</p> <p>Appeal from tire Chancery Court at Blountville. 3EL C. Smith, Cli.</p>

<p>1. Chancery PRACTICE Asm Pdeading. Motion to dismiss for want of equity. A motion to dismiss a bill for want of equity on its face will not lie where a case proper for equitable relief is shown, although defectively stated.</p> <p>2. Same. Same. A bill to enjoin an execution for costs is good against a motion to dismiss for want of equity, which states that there had been two suits, long since terminated, in which the complainant had paid the costs in full, amounting to $124, receipts to this effect being filed, and that the judgment taken for costs on which the execution in controversy issued, was taken without notice, and is fraudulent, unjust and illegal.</p> <p>3. Chancery Court. Jurisdiction. A court of chancery will entertain an original bill to enjoin its own execution in a x^roper case.</p>

<p>1. Obiminai Laiv. Plea in abatement. It is not a good plea in abatement to an indictment that one df the grand jurors who found the indictment was not one of the venire selected by the county court to serve as jurors, that the venire was not exhausted in impaneling the grand jury, and that more than thirteen of the venire were in attendance and could have been selected. The mere fact that a juror, otherwise qualified, had been selected from the bystanders instead of a juror from the venire, would be no ground for abating an indictment found by him and twelve grand jurors taken from the venire.</p> <p>2. Same. Same. Plea of vjaived. By pleading not guilty and going to trial, the defendant waives a plea in abatement on which no action is taken.</p> <p>3. Same. Indictment. When certified copy may he read. After the jury have been impaneled and sworn, the trial court may, under the Code, sec. 5139, permit a certified copy of the original indictment to be read upon proof that the original indictment has been lost or mislaid, without a formal adjudication of loss and order of substitution, and the affidavit of the clerk of the court that he had made diligent search among the papers of his office.and was unable to find the indictment, is prima facie sufficient evidence of the fact.</p> <p>4. Same. Evidence before committing court must be identified. It is not error, upon the trial of an indictment, for the court to refuse to allow the defendant to read, with a view to contradict a witness for the State, a paper purporting to be. the testimony of the witness taken upon the preliminary examination before the'committing justices, signed with his mark, and found among- the papers in the cause, the paper not being identified by proof, nor shown to have been signed by the witness or by his authority.</p> <p>5. Same. Dying declarations reduced to writing. Parol evidence. It is not a sufficient error for reversal that parol testimony was admitted, on a trial for murder, of the dying declaration of the deceased that the defendant had killed him, made at the same time a dying statement was taken in writing and signed by the deceased, without the production of the writing, the written statement not having been called for by the defendant when the person who took it, and stated the fact,, was examined as a witness, similar parol declarations having been given by witnesses without objection, and the proof leaving no doubt that the deceased was actually killed by the defendant.</p> <p>6. Same. Murder. When malice is presumed. On a trial for murder, there is no error in the charge that where the State proves the fact of killing, without more, malice is presumed until the contrary appears from the direct or circumstantial evidence in the case, whether offered by the defendant or existing in the evidence of the State.</p>

<p>Pbactice Aíro Pwsadings. Administrator. Scire facias. Plea thereto. On scire facias against an administrator to show cause why a judgment against him as such should not be satisfied out of his own property, it is a good plea at law that the judgment was rendered as a compro, mise judgment upon an agreement to look only to the real assets of the intestate.</p>

<p>1. Chancery Court. Statute of limitations. Mistake. The chancery court ■will not prohibit a party from relying on the defense of the statute of limitations to a suit at law upon a note, merely upon the ground of mistake on the part of the plaintiff as to the existence of an injunction inhibiting him from suing upon the note, the mistake not haying been superinduced by the debtor.</p> <p>2. Same. Same. Recognition. Trust. If, however, within the time of statutory bar, the maker of the note has, by solemn admissions under-oath, in the course of judicial proceedings to which the creditor is made a party, not only recognized the liability, but sworn that the fund, evidenced by the note, was held by him as a payment on the obligation for indemnity against which the note had been assigned in trust to the creditor, equity will enforce the trust thereby created,, and if the creditor, pending the previous litigation, has paid the obligation, will give him a decree for the fund with interest.</p> <p>3. Estoppel. Judicial admissions. A person who has made solemn admissions under oath in the course of judicial proceedings, will not be permitted to deny them without first showing that they were made inconsiderately, or without full knowledge of the facts.</p>

<p>I. AssiGmrEMT. Effect of. An assignment for value by a person of all his interest in that part of his father’s estate left by his will to his widow, amounting to a sum specified, then in the hands of a trustee for the benefit of the widow for life, and which is to revert to the assignor at her demise, will pass all the interest of the assignor in the fund either as legatee or distributee.</p> <p>2. Wile. Bequest to an unincorporated association void. A bequest of a fund to be put into the hands of a trustee to be selected by the Union Presbytery, a religious association not incorporated at the death of the testator, to be employed by the trustee to assist some indigent young man in a preparatory course for the sacred ministry, is void.</p>

<p>1. Lien op Solícitos. Where, pending the suit, the complainant buys-from the defendant the land in controversy, taking his deed with full-covenants, and conveys to the defendant other lands in exchange, the solicitors of the defenda/nt are not entitled to a lien on the land so conveyed by the defendant to the complainant for their fees.</p> <p>2, Same. The defendant not having assented to the declaration of lien, may prosecute a writ of error to reverse so much of the decree as declares the lien — at the cost of the solicitor.</p> <p>3'. Same. The complainant cannot maintain a bill to subject the land conveyed by him to the defendant in the exchange, to the amount of the solicitor’s fees, as so much of the purchase money of said tract remaining unpaid.</p>

<p>FROM CAMPBELL.</p> <p>Appeal from the Chancery Court at Jacksboro. 0~ P. Temple, Ch.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesboro. H. C. SMITH, Chancellor.</p>

<p>EEOM GRAINGER.</p> <p>. Appeal in error from the Circuit Court of Grainger county. -, Sp. J.</p>

<p>Practice aítd Pleadings. Dismissal of appeal. Proper judgment. On dismissing an appeal from a justice because the papers do not show that the same was prayed and granted, the proper judgment is a pro-cedendo, and not an affirmance.</p>

<p>FROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesboro. H. C. Smith, Ch.</p>

<p>FROM JOHNSON.</p> <p>Appeal in error from the Circuit Court of Johnson county. Newton Hacker, J.</p>

<p>Corporations. Municipal Repeal of charter. Athens was incorporated originally hy the comity court under general law, under which it organized.' Later, a special charter was granted hy the Legislature, which it accepted and under which it organized. Afterwards this charter was repealed hy the Legislature. Meld, that Athens was no longer an incorporated town. The doctrine that the repeal of a repealing statute revives the original act does not apply to special acts like a charter of incorporation.</p>

<p>Cbimikal Law. Rape. Presumption. The presumption of the incapacity of a boy under fourteen years of age to commit rape is not conclusive; but may be removed by proof.</p>

<p>Chanceby Pbactice and Pleadings. Answer on oath. After a defendant has put in his answer on oath to an original bill, the complainant cannot amend and include in such amendment a waiver of the answer of defendant on oath, so as to deprive him of the benefit of his answer to the amendment, so far as the same may be responsive to the original bill.</p>

<p>FROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene-county. J. A. McKinney, J.</p>

<p>FROM GRAINGER.</p> <p>Appeal in error from tlie Circuit Court of Grainger County. J. G. Rose, J.</p>

<p>FROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville. H. C. Smith, Ch.</p>

<p>FROM HAWKINS.</p> <p>Appeal from the Chancery Court at Rogersville. H. C. Smith, Ch.</p>

<p>Chancery Practice and Pieadings. Appeal. Final decree. Where a suit is pending in the chancery court, and the matters are by written agreement referred to arbitrators, who make their award, the refusal of the chancellor to confirm the award of the arbitrators is not such. an order or final decree as entitles the defendants to an appeal.</p>

<p>ChancbRY Jurisdiction. Damages. A bill in equity does not lie, under the act of 1877, to recover damages for injury to land and ferry by erection of a bridge on the former and near the latter.</p>

<p>FROM JEFFERSON.</p> <p>•Appeal from the Chancery Court at Dandridge. H. C. Smith, Ch.</p>

<p>Belationship. Gonfemm of judgment. Werner. A confession of judgment in writing before a justice of the peace related to either party, is a substantial compliance with that section of the Code requiring a waiver in writing of the relationship of the justice, and estops the party to question the validity of the judgment.</p>

<p>PROM MARION.</p> <p>Appeal in error from the Circuit Court of Marion county. L. C. Tjrewhitt, J.</p>

<p>Railroads. Limiting liability. A railroad company receiving goods for shipment beyond the terminus of its line may, by special contract, protect itself against liability for loss not.occurring on its line. And such contract will be presumed from the fact that a clause thus limiting the liability is to be found printed in the bill of lading, even though the shipper’s attention was not called to it, if it appears that he had previously shipped like articles and taken like bills of lading.</p>

<p>1. Estoppel. Married Woman. A married woman is estopped to deny the consideration for the execution of a mortgage on her separate estate, as against an assignee whom she induced to purchase the mortgaged debt.</p> <p>2. Mabried Woman. Judgment against not void. A judgment against a married woman is not void, if erroneous because based upon a contract which she is incompetent to make or for any other reason, it is still binding on her until set aside upon appeal or some other appropriate method, and if such judgment he not reversed on writ of error or by appeal, its effect cannot be gainsaid, and a judgment against husband and wife may be satisfied out of the property of either, unless the wife’s property be exempt under the instrument under which she holds or her power of disposition is restrained.</p>

<p>Supeesie Cottet Practice. Will not reverse. When. The supreme court will not reverse for a failure of the judge to instruct the jury as to the legal effect of a paper submitted to them as evidence, if the finding evinces a correct construction by the jury.</p>

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

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

<p>Municipal Cobpobation. School tax. The act of 1869-70, ch. 38, T. & S. Statutes, see. 691(7, does not authorize the corporate authority of a town to levy a tax for educational purposes without submitting the question to a vote of the people.</p>

<p>1. Lien. Vendor and vendee. Sub-purchasers. Where a vendor has alien upon land which has been divided into lots and sold by the vendee and the deed registered, the .registration does not affect the lien oí the . vendor, but the whole is subject to the lien, and in making sale for its satisfaction the last lot purchased will be sold first, and so on in the inverse order until satisfaction is obtained.</p> <p>2. REGISTRATION. Recitals in deed. No notice. When. The recitals in a registered deed that a different parcel of land had been conveyed to a different person than the vendee in the registered deed, is no notice of the fact recited and no notice of the deed referred to.</p>

<p>PROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville. H. C. Smith, Ch.</p>

<p>FROM CLAIBORNE.</p> <p>Appeal from the Chancery Court at Tazewell. H. 0. Smith, Ch.</p>

<p>FROM HAWKINS.</p> <p>Appeal from the Chancery Court at Rogersville. H. C. Smith, Ch.</p>

<p>Chancery Practice and Pleadings. Sureties. Trustees for creditor. When. Sureties who have by suit indemnified themselves in part, by sale of their principal’s property, are trustees of the creditor pro tanto, and will in equity be enjoined from pleading the statute of limitations as to that portion of the debt secured by them.</p>

<p>PROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesboro. EL C. Smith, Ch.</p>

<p>PtaSferiCE AND Pleadings. Additional count. Statute of limitations. In, an action of assumpsit, in which a single count has been filed upon a stated account for goods absolutely sold and delivered, and at a subsequent term of the court, upon leave granted, an additional count is filed, by which it is sought to recover of the defendant damages for the failure to invest property and money in cotton, and sell the cotton and account to the plaintiff: Held, such second count is for a different cause of action to the first, and is not saved from the statute of limitations by relation to the first count.</p>

<p>PROM WASHINGTON.</p> <p>Appeal in error from the Circuit Court of Washington county. Newton Hacker, J.</p>

<p>Wili, Trust estate. A trust estate devised 'to the executors as trustees . for the use of the legatee or his children, with full power in the trustees to do with it as the testator could do if living, is not subject to attachment by the creditors of the legatee.</p>

<p>PROM SULLIVAN.</p> <p>Appeal from the Chancery Court at Blountville. IL C. Smith, Ch. '</p>

<p>FROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville. H. C. Smith, Ch.</p>

<p>Lien. Vendor. Levy of execution. A judgment creditor who has hie execution levied on land subject to a vendor’s lien, has by virtue of such levy obtained no lien or claim' which he can assert as against the purchaser at the vendor’s sale subsequently made in chancery, nor against any creditor who has redeemed said land from said purchase]'.</p>

<p>FROM SEVIER.</p> <p>Appeal in error from the Circuit Court of Sevier County. J. G. Rose, J.</p>

<p>FROM SULLIVAN.</p> <p>Appeal from the Chancery Court- at- Blountville. H. C. Smith, Ch.</p>

<p>Vendor and Vendee. Title bond. Outstanding title. When a party sells land, gives bond to convey but is unable to make title, the title being outstanding in a third party, and the vendee being in possession purchases the outstanding title, it inures to the benefit of the vendor, and the vendee is entitled to be repaid the amount so paid for title, not to exceed, however, the value of the land.</p>

<p>FROM COCKE.</p> <p>Appeal in error from the Circuit Court of Cocke-county. J. G. Rose, J.</p>

<p>1. Certiorari. Good ground for same. It is a good ground for a certiorari in lieu of an appeal from a justice’s judgment that the plaintiff, a resident of the county while the defendant was the resident of another county, entrusted the written contract upon which the suit was brought to an agent to be sued upon in the county of the defendant’s residence, anticipating no defense, the defendant having paid half the debt, and that the agent, upon an adverse judgment by the justice, was unable to procure security for the appeal prayed within the two days allowed by law, and plaintiff did not hear of the judgment until it was too late to furnish the security.</p> <p>2. Evidence. Written instrument. To be denied under oath. When. Upon the trial of a suit commenced before a justice by warrant in debt by writing obligatory, a written contract signed by the defendant by which, after reciting that he has this day bought two sets of marble tombstones (describing them and the inscriptions to be put thereon), to be shipped to him as soon thereafter as the work can be done, he agrees to pay thirty dollars on delivery, is a written instrument constituting the foundation of an action under the Code, sec. 3777, and conclusive evidence of the promise against the defendant, unless the execution thereof is denied under oath.</p>

<p>FROM SCOTT.</p> <p>Appeal in error from the Circuit' Court, of Scott county. D. K. YouNG, J.</p>

<p>1. Chancery Practice and Pleadings. Administrator’s settlements Where an administrator makes a settlement in the county court after giving notice required by law, and settlement is confirmed by the court, and then files a bill to sell land of intestate to pay indebtedness, alleging exhaustion of assets, the heirs may by answer, as well as by cross-bill or original bill, contest the settlement. If the heirs are sui jwris, they must point out in their answer specifically the errors upon which they rely, and they cannot take advantage ol any error in the settlement not specifically pointed out.</p> <p>2. Administrator. [Retainer. Statute of limitations. An administrator who has a claim against his intestate must, within two years and six months, if he has funds sufficient in his hands, manifest his intention of a retainer, by settlement with the county court clerk, or some other equivalent act of appropriation, or his claim will be barred.</p>

<p>'Common Schools. Teacher. Directors. Suspension. Dismissal. A school teacher in the common schools has power to suspend a pupil for a violation of regulations, hut no power to expel. This rests with the school directors, who may overrule his action. They have the power to restore the pupil suspended, and if the teacher refuse to receive the pupil back, they may dismiss the teacher for such refusal.</p>

<p>1. Evidence. Trespass. Damages. In an action of trespass guare clausum fregit alleging personal injuries in aggravation of damages it was competent for plaintiff to show defendant’s complicity in outrages upon other parties, which, it was claimed, bore directly upon the guilt of the defendant in the traspass upon plaintiff.</p> <p>2. Practice and Pi.badings. Principal liable for acts of ageyit. Whoever procures or commands another to do or commit a civil injury, is guilty of the offense himself as principal in the first degree, and a declaration which simply charges that the defendant committed the trespass, will he sustained hy proof that he incited or procured others to do it.</p> <p>3. Evidexoe. Preponderance. In such an action, although the charges against the defendant are acts constituting a criminal offense, the general rule, applicable in civil causes, that a preponderance of evidence is sufficient to entitle the plaintiff to a verdict, obtains.</p> <p>4. DAMAGES. Vindictive. The rule so long followed in this State, in regard to vindictive damages, will not now be disturbed.</p> <p>5. New Tbiae. Not granted for mere irregularity. AVhere the suit was against two parties, and the record shows no disposition as to one of them, the supreme court will not reverse because the court below refused to grant a new trial or arrest the judgment.</p>

<p>FROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene county. Newton Hacker, J.</p>

<p>I. Evidence. Suit for damages against railroad. In an action for damages against a railroad company, brought by a party for injury sustained, it is competent to show plaintiff’s ability and capacity for labor as well as skill in any particular art or profession, in order to show what he was capable of earning; but it is not error to reject a question which simply calls for the amount of money which the plaintiff made the year previous.</p> <p>'2. Ráiiboads. Loohout. Precautions required by statute. A lookout must not only be in his place on the locomotive as to be enabled to see ahead, but must also be vigilant and watchful. A lookout who does not see what, with reasonable care and vigilence, should have been seen, would not be in the discharge of his duty.</p>

<p>FROM HAWK INK.</p> <p>Appeal in error from the Circuit. Court of Hawkins county. Newton Hacicer, J.</p>

<p>FROM WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesboro,. H. C. Smith, Ch.</p>

<p>Liens. Priority. Attorney. Purchaser. The lien of counsel of complain ant upon the rents of a tract of land recovered, which had been sold under void judicial proceedings, is inferior to that of purchaser upon the excess of such rents over betterments and taxes, for the repayment, of his purchase money at such void sale.</p>

<p>FROM HAWKINS.</p> <p>Appeal in error from the Circuit Court of Hawkins county. W. L. Dickson, Sp. J.</p>

<p>Ejectment. Special entry. An entry as follows, held a special entry: “Abiel 0. Parks and Mathias M. Wagner locates and enters four thousand acres of land in said county, beginning on Andrew Taylor’s line, northeast corner of a fifty acre entry, No. 641, between James H. Tyff and the Rainbow mountain, then running various courses for complement, by plotting out all former entries of land located and entered.” The law prescribed the mode of running out the land, the beginning corner being definitely ascertained, and required older entries to be excluded, and these entries served as guides to identify the direction of the calls of the entry in question. The policy of the law is earnestly in favor of securing the land to the oldest enterer when it can be reasonably ascertained.</p>

<p>CbimiháIi Law. Indictment. Averment of time. An indictment found on the 14th of August, 1879, and charging that the defendant committed the offense on the-day of-, 1879, is good under the Code, sec. 5124.</p>

<p>AdministbatioN. Foreign assets. An administrator is not liable lor foreign assets, even though he has taken steps to secure them; and where such steps were taken in good faith, he will be allowed credit for expenses incurred thereby.</p>

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

<p>PROM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox county. D. K. Young, J., by interchange.</p>

<p>1. Action. Sweties. Liability. No suit will lie against the sureties oí a clerk for failure to pay over money, the proceeds oi land sold by decree of the court, unless it appear that an order has been made by the court for its disbursement.</p> <p>2. Husband and Wine. Wife’s ehoses in action. The statute requiring the privy examination of a married woman upon paying to her the proceeds of land sold by decree of the court, does not change the law in respect to the fund in case of her death before receiving it. The right to collect the fund passes to the husband as administrator, after confirmation of sale.</p>

<p>Sax.e op Lakd. Jit/ sheriff. Transfer of bid. Caveat einptor. In the alwenee of a guaranty or expresa contract for recourse, an assignee of a bid for land at a sberifCs sale, has no recourse against the assignor in case of failure of villc.</p>

<p>1. Pees. Sheriff. Attaehrwmt. Where a bill is filed to enforce a vendor’s lien and an attachment is prayed for, issued and levied on the land by the sheriff, the land afterwards sold by the clerk and master under a decree in the cause, the sheriff is not entitled to commissions on the amount of the sale (sec. 4564c, Code), but is only entited to his fee for levying the attachment.</p> <p>2. Fees. Olerlt and Master. Sale of land. Malting- report. Where property is sold by the clerk and master under a decree of the court, he is not entitled to the fee allowed by the subrsec. 58 of sec. 4551 of the Code for making his report of sale. The commissions allowed by suh-see. 62 of section 4551, for selling, receiving and paying out the proceeds, covering the entire service.</p>

<p>Corporation. Venue. An action against a corporation for personal injury may be brought in any county where the company has an office or agency.</p>

<p>Abbitbatiou. Award. Publication. Two arbitrators bad signed their award and handed it to a clerk to copy, with intent to sign the copy and send it to the absent party. The other party, being informed as to the terms of the award, called attention to errors in it, whereupon the arbitrators refused to proceed further in the matter Held, there was no publication of the award</p>

<p>PROM SULLIVAN.</p> <p>Appeal in error from the Circuit Court of Sullivan county. Newton EIacker, J.</p>

<p>Limitation or Real Actions. Adverse possession. Vendor. ■ Vendee. Title bond. Golor of title. The possession oí a purchaser of land by title bond who goes into possession and holds for himself, is not the possession of his vendor, who has color of title, so as to perfect the latter’s title, under the 1st section of the act of 1819, in seven years, against an otherwise superior title in another. If the purchaser in such case be for some purposes regarded as the tenant at will of his vendor, yet he is not the tenant in fact, and his possession is not tha of his vendor, in the sense of the statute.</p>

<p>Winn. O/mrch. Parsonage. A devise to a church, a voluntary unincorporated association, of a lot upon which to build a church, is valid under sec. 1508 of the Code, but a devise of a parsonage, library or other personal property' to such an association, without a trustee named in the will to take the title, is void, because not within the. statute and no person to take the title.</p> <p>Will Residuary devisee. Since the alteration of the law in this State by which a will is made to speak .and take effect as to realty, as well as personalty, as if executed immediately before the death of the testator, a special exception of property from a residuary devise and giving- it to another devisee, will not prevent the excepted property from going to the residuary devisee, if the excepting devise fail because void, if it appear from the whole will that the property was excepted merely for the purpose of giving it to the specific devisee, and not in, order to take it away from the residuary devisee.</p>

<p>Atioknby. Client. Clients have the right in person or by written order to dismiss their suits or to withdraw their plea, notwithstanding the counsel may object. The attorney has no right to object to any disposition of the case his client may choose to make.</p>

<p>1. Chancery Pdeadings and Practice. Surprise. A general order ivas entered by consent of the bar, continuing all litigated cases until next term. At a subsequent day of the term a judgment was taken in a litigated case — the defendant and his counsel having in the mean time left the court, relying upon the order of continuance. Held, a surprise, and that the defendant was entitled to relief in equity to the extent the judgment against him was unjust.</p> <p>2. Current Bank Notes. Standard. The value of current bank notes, at a time and place during the war, when United States Treasury notes were unknown, to be estimated by tire gold standard.</p>

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

<p>Municipal Cobpopation. Wwisanee. Liability of Mayen- and Aldermen. An action cannot be maintained against the corporate authority of a town, upon the allegation that a regularly licensed tipler was permitted to keep his saloon within the corporate limits of the town, in such a manner as to become a nuisance, to the damage of the plaintiff, whose residence was upon adjoining property. A fortim-i, such action cannot be maintained against the mayor and aldermen as individuals, upon the allegation that they aided in procuring the license.</p>

<p>1. Pleadings and PRACTICE. Mandamus. Public school teacher. A mandamus will lie, at the instance of a teacher of a public school, under a valid contract, to compel the directors of a school district, who had unlawfully removed him, to reinstate him as teacher, and to issue to him an order or warrant on the proper disbursing officer of the school fund for the instalments of his salary.</p> <p>2. Same. Same. Same. It is no defense to the proceedings by mandamus that there was a bill filed by the defendants in the chancery court, then pending against the relator, involving the question of the appointment of the relator as.teacher, and the same matters.</p> <p>8. Same. Same. Official discretion. In all matters requiring the exercise of official judgment, or resting in the sound discretion of the person to whom a duty is confided by laiv, mandamus will not lie either to control the exercise of that discretion, or to determine on the decision which shall be given. But when the act to be done is ministerial on a given state of facts, the unit lies, although the officers or body must judge, according to their best discretion, whether the facts exist, and whether they should perform the act.</p> <p>4. Public Schools. Teacher. Dismissal. Under the act of 1873, ch. 25, sec. 20, sub-sec. 3, the right to employ a teacher only exists in the case of a vacancy, and the right to dismiss a teacher, already employed under a valid contract, is limited,.and can only be exercised • after notice, and upon proper testimony.</p>

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

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

<p>FROM FRANKLIN.</p> <p>Appeal in error from tire Circuit Court of Franklin, county. J. J. Williams, J.</p>

<p>Life Insurance. Benefit certificate. Transfer thereof. By the charter of the Knights of Honor, the benefit fund of a member shall be paid “as he may direct,” and by the constitution, he may direct the payment by will, entry in the record book, or by a benefit certificate. Held, that the direction, by benefit certificate, might be changed, unless there has been a valid executed transfer of the certificate.</p>

<p>Homestead. Sight not lost. When. After the right of homestead has been once acquired by the head of a family, and the homestead occupation is still continued, the right mil not be lost by the death or absence of wife and children.</p>

<p>1. Act of Legiseatube. When it takes effect. Governor’s approved. Under the provisions of the Constitution of 1870, an act of the Legislature which becomes a law by the approval of the Governor, and goes into effect by its terms from and after its passage, takes effect when the Governor approves it by his signature.</p> <p>2. Cbimisai, Laiv- Duty of judge. A judge may, in a criminal case, ask a witness a question to elucidate a fact, overlooked by counsel, which would tend to protect the innocent or prevent the escape of the guilty.</p> <p>3. Same. Rape. On the trial of an indictment for the abuse of a female under ten years of age, when the injured girl is put on the stand as a witness, it is not error for the trial judge to call upon an elderly woman, who had nothing to do with the case, but was well known to the witness, to sit beside her; nor is there error in the woman telling the witness, when the first question was asked, to answer it.</p> <p>4. Same. Same Recent complaint. Where in such a case the defendant, after committing the act of abuse, threatened to kill the child if she told on him, and she was induced to tell by the suffering produced by a virulent form of syphilitic disease communicated to her by him, it was not error to allow the person to whom she made complaint to detail her statements in corroboration of her testimony, upon proper instructions to the jury as to the effect of delay on the weight to be given to such complaints.</p>