Volume 74 — Tennessee Reports

<p>1. Pleading and Practice. Evidence. Staled account. Any writing-signed by the debtor, which admits a specific indebtedness with interest, would be evidence of a loan between the original parties, and prima facie proof of the common money counts, and would be a liquidated or settled account within the Code, sec. 1945.</p> <p>2. Same. Charge of court. A circuit judge, who assumes in his charge to the jury as conceded that a certain loan was made by the plaintiff to the defendant, and that payment had been made, leaving a balance due with interest from the date of the loan, in which assumption the defendant acquiesces at the time, cannot be put in error by an objection made for the first time in this court.</p> <p>3. Hajie. Set-off. Charge of the court. Where the set-off relied upon by a defendant rests entirely upon contract, although claimed to be on a quantum meruit as to the value of the services, the court properly instructed the jury to determine from the proof whether it was agreed and understood between them that defendant was to be paid therefor.</p> <p>4. Same. Charge of court. BUI of exceptions. Tf the bill of exceptions ' shows that the court, at the instance of the counsel for the defendant, further charged the jury, the whole of the charge thus set out must, be taken to -have been made at the instance of the counsel, unless the contrary appear.</p> <p>■5. Same. Charge of court. This court will not entertain hypocritical objections to the charge of the trial judge, it being the duty of the litigants, if the language be equivocal, to ask for a removal of the doubt by proper instructions at the time.</p> <p>■6. Compensation. Qratuitovs services. A person cannot make a charge for services which were gratuitously rendered at the time.</p> <p>7. Evidence. Confirmatory statements. Where the statement of a party, examined as a witness, is attacked by proof of contradictory representations, it is competent to prove that he made the same statement when no motive existed to misrepresent the facts, and the occurrence was recent.</p> <p>8. Pleading and Practice. New trial. It is no ground for a new trial that the party had found a letter since the trial which he had looked for without success beforehand, the letter being only useful as containing the address of a person whose testimony might have been taken as a witness, especially if the testimony, as disclosed by the letter, was merely cumulative and containing a statement not true in point of fact.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson county. Frank T. Reid, J.</p>

<p>1. SUPREME Court Practice. Revivor. Moire- facias. Defense,. A seire facias to revive a judgment is so far in the nature of a new suit, that any defense may he made which will prevent the revivor, but it is in substance a continuation of the old suit, the proper judgment being that the plaintiff hayo execution of the original judgment, and therefore the scire facias may be sued out in the supreme court to revive one of its judgments.</p> <p>2. Same. Same. Revivor. What is not a defense. It is no defense to a scire facias to revive a judgment, that the amount of the judgment has already been allowed, without a revivor, in a suit instituted by the personal representative for the purpose of administering the estate, as an insolvent estate, and ordered to be paid its pro rata.</p>

<p>1. CHANCERY Pleadings AND Practice. Injunction. Dissolution. Effect thereof. Revivor. Judgment creditor. A money judgment the execution of which is enjoined by the judgment debtor by a bill in chancery, is not revived by the revivor of the injunction suit against the personal representative and heirs of the complainant, who dies pending the litigation in the supreme court. The final dissolution of the injunction leaves the judgment creditor to proceed on his judgment as if no injunction had’ever been granted.</p> <p>2. Same. Effect of dismissal by supreme court of a bill enjoining a money judgment. Not an adjudication upon rights of parties to the judgment, but in the nature of a procedendo. Heritor. Where the judgment enjoined, was rendered on purchase-money notes in a chancery case, a direction, at the end of the decree, of this court dismissing- the injunction bill and dissolving- the injunction, to the clerk and master to execute the decree in which the judgment was rendered, would not be an adjudication of rights, but a notification, in the nature of a procedendo, to’the court below that-it might safely execute its decree; and even if the direction were treated as a decretal order, it would not authorize the execution of the judgment without revivor.</p> <p>3. Execution. Issued without revivor. Void as to realty. An execution issued after the death of the judgment debtor, without a revivor, is void as to realty, and a sale of land under it is void also.</p> <p>4. Same. Same. Same. Eights of judgment creditor who is purchaser. The judgment creditor, in such a case, who lias satisfied his judgment by a purchase of the land, is entitled to have the satisfaction set aside, the judgment revived, and any property of the debtor fraudulently conveyed by him in his lifetime subjected to the payment thereof.</p> <p>5. Deed of Trust. Reservation of homestead. A conveyance of land in trust is not rendered void by a reservation of the grantor’s homestead right therein.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson county. Frank T. Reid, J.</p>

<p>FROM WHITB.</p> <p>Appeal from the Chancery Court at Sparta. W. G. Crowley, Oh.</p>

<p>1. Whit oe Error. Notice of application. Pauper oath. A writ of error is in the nature of a new suit, and may be obtained as of right by any person entitled to it, without notice of the application, and the pauper oath, if offered in lien of the bond required by law, cannot be refused.</p> <p>2. Supersedeas. Petition. The supersedeas, to supersede the execution of a decree upon which a writ of error has been obtained, may be granted upon notice to the adverse party, or, the statute being directory, upon the appearance of such parties to defend the writ of error, and would be good if granted without the petition required by a rule of court to aid the judge in examining the record,</p> <p>3. Chancery Pmadixgs and PRACTICE. Consolidating suits. The fact that several suits in chancery are consolidated, or treated as consolidated in order that the same proof might be taken and read in each, and that they might he heard together, does not change the rules of equity pleading, nor the rights of the parties, those rights still depending upon the pleadings, proof and proceedings in the respective causes.</p> <p>4. Deed. Consideration. Estoppel. Parol evidence. The consideration of a deed of conveyance of land is no part of the contract under the statute, of frauds, and, except so far as it operates to estop the grantor to deny any consideration, may he explained, varied or contradicted by parol proof; and where a contract is verbal and entire, and a part only reduced t'o writing, parol evidence is admissible to prove that part resting in parol, if not required to be in writing.</p> <p>5. Disposition. Objection to competency. A deposition of the complainant testifying generally that all the facts set forth in his hill are true, is good upon a mere objection to competency at the hearing.</p> <p>6. Garnishment. Failure of consideration a good defense by debtor. Set-off. The failure of consideration is a good defense pro tanto in favor of the debtor upon a garnishment bill, and only the balance due, after deducting any set-off the debtor may have against his creditor at the filing of the bill, can be reached.</p> <p>7. Judgment. What, it establishes. A judgment obtained without fraud or collusion which concludes the debtor, whether rendered upon default, confession or after contestation, is prima facie, if not conclusive evidence against his creditors to establish the relation of creditor and debtor, and the amount of indebtedness.</p> <p>8. Accruement. To compromise suit and release lien. A valid agreement carried into effect, upon a good consideration, to compromise a suit and release an attachment lien acquired before the filing of a garnishment bill, will be good against the garnishing creditors, although made after the bill was filed, the attachment lien being a charge upon the garnished debt.</p> <p>9. Securities. Marshaling. Sights of creditor with two funds. The principle of the marshaling of sureties between creditors will not be so applied as to deprive the creditor with two funds of any legal right, or to operate to his prejudice even in delaying him in the collection of his debt; and, therefore, where one of the funds was a debt due from the double creditor himself, and the other a lien on land in another State, such creditor is entitled to be first satisfied out of his own debt.</p> <p>10. Same. Same. Ax to third parties. Securities will not he marslialed to the Injury of a third person, such as the purchaser of the land which constitutes one of the securities, where such person has an equal equity with the party seeking relief.</p> <p>11. Same. Same. Funds not under: the jurisdiction of the court. The ques« tion is reserved whether the court will undertake to marshal securities when one oí the funds sought to he marshaled is not under its control, or within its jurisdiction.</p>

<p>EJROM HUMPHREYS.</p> <p>Appeal in error from the Circuit Court of Hum-phreys county. J. C. Stark, J.</p>

<p>FROM JACKSON.</p> <p>Appeal in error from the Circuit Court of Jackson county. R. A. Cox, Sp. J.</p>

<p>1. Assignment. Sot invalid. When. An assignment for the benefit of creditors is not rendered invalid by the following clause therein: “ I hereby expressly waive a bond from the trustee, having the fullest confidence in his capacity and integrity.”</p> <p>2. Same. Dormant partner. Partners. In the case of a dormant partner, and, a fortiori, where there is no partnership, and only the holding-out of another person as a partner to a few individuals, the active partner, or the real proprietor, may make an assignment of the effects, for the security, in the first instance, of his individual debts, and then pro rata for all creditors.</p>

<p>3. Chancery Peeadings and Practice. Replevin, Rond. Surety. A bill' of review, by a surety of the defendant In the original suit upon bonds given to replevy property attached, based on the ground that the bonds were not statutory bonds; that the decree charged the obli-gors with interest when the bonds contained no stipulation to pay interest; and that the decree was for the full value of the properly, when some of the live chattels replevied died pending the suit, — cannot be sustained when the recitals in the decree, as set out in the bill, describe good statutory bonds, and do not show the death of any of the live stock replevied.</p> <p>2. Same. Same. The party aggrieved is, under the provisions of the Code, entitled to all the remedies given on correct replevin bonds, although the bonds are not conditioned as required by law, and are made payable to the sheriff instead of the plaintiff.</p> <p>3. Same. Same. A bond given to replevy property attached, in the penalty of double the value of the property, conditioned for the forthcoming of the property to answer the final decree, must be regarded as falling under the second class of bonds mentioned in the Code, sec. 3509, and as conditioned to pay the value of the property with interest in the event the defendant be cast in the suit, and a decree thereon for less than the penalty, and for the value of the property as fixed by the bond with interest, neither party demanding a reference, is in accordance with tire statute and good.</p>

<p>SdpReme Court Practice. Bill of exceptions. An affidavit and a power of attorney used upon the hearing of a rule on the plaintiff’s attorney, in an action of ejectment, to show hy what authority the suit was brought, cannot be noticed in this court unless embodied in a bill of exceptions or spread on the minutes of the court and authenticated by the judge’s signature, although directed in the entry of the order of dismissal to be made part of the record and included in the transcript.</p>

<p>PROM JACKSON.</p> <p>Appéal from the Chancery Court at Gainesboro, W. G. Crowi,icy, Ch.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Circuit Court of Davidson county. Prank T. Reid, J;</p>

<p>1. Criminal Law. Breaking into business house. Indictment. Under the act oí 1871, ch. 39, making it a penitentiary offense to break into a business house with intent to commit a felony, an indictment charging the defendant with feloniously breaking into the business house of certain persons named, with intent to feloniously take, steal and carry away the goods and chattels of such persons then and there to be had and found in said business house, is good.</p> <p>'2. Same. Continuance. Discretion of courts. The supreme court will not interfere with the discretionary action of the trial court in the matter of continuances, except in a clear case of the abuse of the discretion; and if a continuance be refused upon an affidavit alleging sufficient grounds, but upon the trial it appears that the affidavit was false, this court will not reverse.</p> <p>.3. Same. Same.- When a case stands for trial. Every prosecution stands for trial at the term at which the indictment is found, and if the defendant continues the case to the next term, he should take the proper steps to be then ready for tri al.</p>

<p>1. Chancery Pleadings and Practice. Administrator. Insolvent estate.. The personal representative of a commissioner, appointed by a court to sell property, has prima fade the right to sue upon a note given., for the property sold and made payable to the commissioner, and where a suit so brought is enjoined by the administrator of the debtor by a bill suggesting the insolvency of the debtor’s estate, and making the persons beneficially interested in the note parties defendant with the personal representative of the commissioner, the court will take jurisdiction for all purposes so as to terminate the litigation.</p> <p>2. Same. Administrator’s bond. Sureties. Where, in such a case, a cross-bill was filed by one of the beneficiaries against the administrator of the debtor and the sureties on his official bond, to hold them liable for loss of assets, and no objection ivas taken for want of parties until' the final hearing, the court properly allowed the cross bill to be amended by making the personal representative of the commissioner a co-complainant.</p> <p>3. Same. Administrator. Value of assets lost by negligence. An administrator, under an insolvent bill filed by him, will be held liable to the-creditors for the value of assets of the estate lost by his negligence.</p> <p>4. Same. Injunction bond. Liability of security thereon. A surety upon an injunction bond given to enjoin a suit at law before judgment, is only liable for costs and damages, the damages, in the absence of proof,, being the interest which had accrued on the debt after the suing out of the injunction.</p>

<p>PROM JACICSOX.</p> <p>Appeal from the Chancery Court at Gainsboro. "W. G. Crowley, Ch.</p>

<p>FROM LINCOLN.</p> <p>Appeal in error from the Circuit Court of Lincoln, county. J. J. Williams, J.</p>

<p>FROM SMTTH.</p> <p>Appeal from the Chancery Court at Carthage. W. G. Crowley, Ch.</p>

<p>PROM JACKSON.</p> <p>Appeal from the Chancery Court at Gainsboro. W. G. Crowley, Ch.</p>

<p>1. Stjpeemb Court Practice. Petition for rehearing. A petition for in-hearing is of little avail which does not specify any fact hearing upon the interests of the parties overlooked by the court, or any new principle of law affecting the decision, or any additional argument upon the points previously made.</p> <p>2. Chancery Court Pleadings and Practice. Attachment bill. Mente. When under an attachment bill seeking to set aside a general assignment for the benefit of creditors, and a cross-bill by the two preferred beneficiaries in the assignment, a receiver was appointed by the court, the record not showing at whose instance, to take possession of and rent out the land in dispute, and the suit is finally decided in favor of the attaching creditor, and the land ordered to be sold in satisfaction of his debt, the rent will follow the land, and go first to the attaching. creditor.</p> <p>-3. Same. Assignment. Penejiciaries. Attaching creditor. The beneficiaries in the trust deed having joined in seeking to enforce it, the proceeds of the trust property, after satisfying the claim of the attaching creditor, should be paid to the beneficiaries in the order fixed by the assignment.</p>

<p>1. Chancery Pleadings and Practice. Bill of review. A bill oí review for newly discovered evidence cannot be sustained which relies upon evidence merely cumulative, and fails to show any sufficient reason why it was not procured on the first trial.</p> <p>2. Same. Same. An original bill in the nature of a bill of review, contains no equity which admits that the party on whose behalf relief is sought was represented by counsel in the suit sought to be reviewed, made the defense relied on, and merely avers that he was aged, diseased and infirm, not physically able to look after his interests, nor mentally capable of attending to his case, understanding the controversy, or transacting business oí any importance, and suggests that the defense was not properly managed, by reason of the delicate position of the counsel in appearing at the same time for a co-litigant, wbomighl.be injuriously affected by the establishment of the defense.</p> <p>3. Same. Judgment's. The solemn judgments of the court, after contested litigation, cannot be interfered with excepit upon the plainest aver-ments of fact.</p>

<p>Pleadings and Practice. Administrator. Statute, of limitations. Seine facias. It is not a good plea to a scire facias to revive a suit in this court ag-ainsl the personal representative of a decedent, that the time of the bar of a suit under the statute for the protection of defendant’s estates had elapsed between the qualification of the personal representative and the issuance of the scire facias.</p>

<p>Pleadings and Practice. Sale of land. Opening biddings. In a suit commenced in the county court for the sale of land to pay debts and for division among heirs, a sale was eventually made, in the proceeds of which the heirs were alone interested, it was held that the'biddings were properly opened, over the objection of the purchaser, upon an advance of nearly one hundred per cent., and the terms of sale changed.</p>

<p>Pi/eadings AND Peactioe. Bankrupt. Appeal. A bankrupt, who bas filed liis petition in bankruptcy and received bis discharge pending a suit against him for the foreclosure of a deed of trust, and pleaded his discharge, is entitled to appeal from a final decree which fails to notice his plea, and gives a judgment against him for the complainant’s demand.</p>

<p>1.CRIMINAL Law. Remand of prisoner. Recognizance. Where a criminal cause, brought into this court by appeal from a judgment of conviction of felony, is reversed for an apparently fatal defect in the transcript of the record, and the defendant remanded to 'the court below for a new trial, that court has jurisdiction to provide for the safe keeping of the prisoner, and a recognizance taken for his aiipearanee will be good, although, upon a more perfect transcript the order of reversal of this court is afterwards, during- the same term, set aside, and the cause reinstated on the docket.</p> <p>2. Same. Judgment upon recognizance. Upon a joint and several recogni-. zahce, entered into by a prisoner and his sureties for his appearance at a designated time, several judgments nisi may, since the Code, be ■ taken against the principal and against the sureties, and prosecuted to final judgment.</p> <p>3. Same. Scire facias. Sureties. Writ of error. Where no defense is made by the sureteis to the scire facias sued out on the judgment nisi and served upon them, any mere irregularity in the proceedings, would be of no avail upon a writ of error, the only errors which can be relied on being- those going to the merits, such as a want of jurisdiction in the court, or a fatal defect in the scire facias.</p> <p>4. Judge, Special. Powers of. A special judge has all the power of a regular judge, and if he adjourn the court to a daj beyond the commencement of the term of another court of the same circuit, and the court be held at the time, it would be a court defacto and its proceedings valid in a criminal as well as a civil case.</p> <p>5. Criminal Law. Forfeiture. Judgment. Scire facias. A judgment nisi on a forfeited recognizance, upon which a scire facias has been issued and returned not found, without more, will not entitle the defendant to a writ of error.</p>

<p>FROM LAWRENCE.</p> <p>Appeal in error from the Circuit Court of Lawrence county. IV. S. McLejiore, J.</p>

<p>'Statute oe Frauds. Sale of fruit trees which will not yield, within a year from sale. Contract must he in writing. A warranty, in a sale of young fruit trees to he planted in an orchard for the purpose of raising fruit for market, that the trees were really harvest apple trees and that they would produce early harvest apples, is a present warranty that the ■ trees are such as they are represented to he and sure articles of the kind, and a warranty that they would at a future time produce a particular fruit, would probably fall within the 5th section of- the statute of frauds, 'and must be in writing, if it appears that in the course of nature the trees would not yield the fruit within one year from the date of the sale.</p>

<p>1, CiiiminaIi Raw. Indictment. Under our system of criminal pleading an indictment is good which contains a statement, in ordinary and concise language, embodying all the requisites that go to constitute the offense.</p> <p>2. Same. Same. Homicide. An indictment is sufficient which avers that the defendant, with a pistol charged with powder aiid ball, did make an assault upon the deceased, and, by shooting with the pistol, inflicted a mortal wound, of which the deceased died, and that the defendant, by the means aforesaid, in manner and form aforesaid, the said deceased “feloniously, willfully, deliberately, premeditatedly and of Ms malice aforethought, did kill and murder and commit murder in the first degree.”</p> <p>3. Same. Malice presumed. When. The law presumes malice from the killing with a deadly weapon, but the jury may look to all the facts and circumstances developed by the evidence, either by the State or the defendant, to ascertain whether the malice is rebutted, a reasonable doubt enuring to the defendant.</p>

<p>OmmiuaIj Law. Catching fish. Constitutional Urn. The act of 1879, eh.. 198, which makes it a misdemeanor to catch fish in the waters of certain counties by any other means than by hook and bait, is constitutional, but under the proviso of the second section, “that the act shall not apply to persons owning private ponds, or to persons owning the land on both sides of a running stream, the same being closed by a substantial fence,” a party will not be liable to the penalties of the act who catches fish by net in a stream, within the proviso, by the verbal permission of the owner of the land, although in his absence.</p>

<p>FROJI WHITE.</p> <p>Appeal from the Chancery Court at Sparta. W. G. CROWLEY, Ch.</p>

<p>eroM i-iumphrets.</p> <p>Appeal in error from tbe Circuit Court of Hum-phreys county. J. C. Stark, J.</p>

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

<p>1. CexmdjaXi Law. Swearing officer in attend jury. If the record in a criminal case shows that the officer placed in charge of the jury “was duly sworn to attend to the jury according to law,” it i's sufficient.</p> <p>2. Same. Malicious stabbing. Malice presumed. When. The malice required to constitute malicious stabbing, is malice in its common law signification, and is presumed from the stabbing, and must be rebutted by proof showing circumstances which, if death had ensued, and if the defendant was free from fault in bringing about the difficulty, would have mitigated the offense from murder to manslaughter or excusable homicide, or left a reasonable doubt of the commission of the higher offense.</p> <p>3. Same. Provocation. Question of fad for jury. It is the duty of the court to inform the jury to.what extent the passion must be aroused and reason obscured to reduce the grade of the offense, and it is essentially a question of fact for the jury to determine whether the provocation in the particular case was sufficient and reasonable.</p>

<p>PROM OVERTON.</p> <p>Appeal from the Chancery Court at Livingston. W. G. Crowley, Ch.</p>

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

<p>FROM STEWART.</p> <p>Appeal in error from the Circuit Court of Stewart, county. J. E. Rice, J.</p>

<p>PROM OVERTOP.</p> <p>Appeal from the Chancery Court at Livingston*. W. G. Crowley, Ch.</p>

<p>'Sale of Realty. Taxes. Covenant. Where land is conveyed with a covenant against encumbrances, the bargainor is answerable for all taxes to which the land was subject at the time the covenant was made.</p>

<p>Redemption. Sight of in debtor cannot be sold. Where a judgment creditor causes the realty of his debtor to be sold under execution, and bids a part of his debt upon it, he cannot, by a bill in equity, subject the right of the debtor to redeem to the satisfaction of the balance of his judgment.</p>

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

<p>1. CORPORATION. Iron furnace. Supply store. Powers. A supply store is necessary in carrying- on tlie business of an iron furnace, and therefore fairly included in the powers of the corporation.</p> <p>2. Same. Capital stock. Payment in, ‘money and in property. While in a corporation to do business on cash it would probably be required that the money should be paid, yet in the case of a corporation for making-iron, the stock subscription may be paid in property necessary to the business, if paid in good faith at its real value.</p>

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

<p>Estoppel. „ Uhnimon under oath. A solemn admission under oath, whether made in ¡¡leading or in a deposition in a suit where the deponent is not a party, is an estoppel.</p>

<p>1. Statutes. Construction of. That, which is not in the purpose or meaning, nor within the mischief to be remedied, cannot be held to be included in the statute, although within its letter.</p> <p>2. Statute oe Limitations. Absence of administrator from State. Arrest of statute. Heir at law. While it has been held that the absence of the administrator from the State will arrest the statute, yet, if the creditor may proceed against the heir at law, and make the absent administrator a party by publication, the statute will not be arrested.</p> <p>3. Same. Same. Pleading. When the absence of the administrator from the State is relied upon by the complainant to arrest the statute, the facts should be stated with reasonable certainty.</p> <p>4. Chancery Pleadings and Practice. Parties. Title in administrator. When heir at law a necessary party. When land of intestate is levied upon in his lifetime, and sold subsequent to his death, and purchased by the administrator of intestate, with his own means and for himself, and a conveyance taken from the sheriff, in a suit by creditors of intestate to reach the land, it seems, the heirs at law are necessary parties.</p>

<p>Advancement. What is not. A conveyance o£ realty to the husband is not an advancement to the wife in the absence of evidence it was so intended; nor is the wife chargeable with money paid by the inte¡>-tate as the surety of her husband, as an advancement.</p>

<p>T. Levy on Realty. What mficient description. Ohargc. Error. Hie circuit judge charged that a lévy “ that leaves one of the boundaries uninclosed and not capable of being determined, would be void for uncertainty.” Held, erroneous, for the reason it is impossible to conceive, when three sides are given, how the other could be incapable of being determined. If there is an owner on the fourth side, the line would be controlled by that ownership, and if no such ownership, a straight line would close the hiatus.</p> <p>2. Same. Separate tracts. Levy. Void sale. 'Where land lies in a contiguous body, whether acquired by the owner by one or many co»-veyances, at one or different times, it is one tract, and a levy and sale of all is good; but where the tracts are not contiguous, each must be sold separately.</p>

<p>1. ¡Sbparatb Estate. Power of wife. Conversion. Mortgage. If the wife have a separate estate, with the power oí a feme sole, and invest it in real estate and take a conveyance to" herself without limitation, the separate estate will he lost, and she may convey hv mortgage to secure a debt of her husband.</p> <p>2. Same. Power of wife to alien. If the conveyance to the. separate use of the wife is silent as to the mode of alienation, the wife may convey by deed jointly with her husband.</p> <p>8. Antenuptial Contract. Indenture signed by husband only. Effect on wife’s estate. An antenuptial instrument, in form an indenture, hut executed by the husband only, cannot limit the estate of the wife in her properly, hut will hind the husband.</p> <p>4. Purchaser of Notes Secured by Irens. Knowledge. The purchaser of a note is entitled to all liens securing it, whether he knew of their existenc^ when he purchased the note or not.</p> <p>5. Resulting Trusts. Innocent purchaser. Resulting, or implied trusts will not prevail against an innocent purchaser.</p> <p>C. Mortgage. Purchaser pro tanto. Pre-e.cisting debt. The advance of money upon the faith of a mortgage is, pro tanto, a sale, and gives the mortgagee, to the extent of the money advanced, all the rights of a bona fide purchaser, but this rule does not apply as to pre-existing debts.</p> <p>7. Conveyance. Deed absolute with a secret defeasance. The ¡mriy who advances the money entitled to the security. A conveyed to B by absolute deed. B executed his notes to A lor purchase money. B by secret defeasance covenanted to reconvey to A when the notes were paid. A' endorsed the notes to C, who advanced the money. IleM, that G was t.he reaL mortgagee.</p>

<p>1. Pleadings and Practice. jVwi eat faelitm. Bilk and notes. Special plea by endorser. Burden. Ií a special undertaking "be written upon a note above the signature of the endorser, without his authority, he must raise the question by a special plea of non est factum, and the burden is upon him to show it was without his authority.</p> <p>2. Evidence. Liability. Indemnity. TI an endorser accept indemnity from his principal, after a knowledge of the supposed facts which discharge him, it is persuasive evidence of his liability.</p> <p>3. Bills and Notes. Irregular endorsement. Liability of endorser. If a note, payable to a particular person or order, is first endorsed by a third person, the party so endorsing is liable as a guarantor, and it is competent for the payee to write the guaranty above the name of the endorser.</p>

<p>''Criminal Law. Carrying pistol. Officer. The provisions of the act of 1879, making it lawful for officers and policemen, under proper circumstances, to go armed, does not extend to a private detective, appointed by a mayor, under a city ordinance clothing him with power to ferret out felonies and make arrests, if he had no warrant or capias at the time he carried the pistol.</p>

<p>1. Municipal CORPORATION. Annexation. Flection. Jurisdiction. Owners of properl!/. Owners of property in the territory proposed to 1)3 annexed have, prima facie, such interest as entitles them to resort to a court of chancery to question tho validity of a preliminary election to ascertain the will of the voters of the territory proposed to be annexed, and as such elections aro subject to mistake and fraud, in the absence of provision for other remedy, the jurisdiction of a court of equity may be invoked for the investigation and determination of the validity of the election; and the fact that a return of the result of the election has been made to the city authorities and accepted by them, and other acts done by the city authorities treating the annexation as complete, will not preclude relief.</p> <p>2. Same. Who are qualified voters. Citizen. Freeholder. The word “citizen,” as used in the act, E equivalent to resident or inhabitant, and, hence, no non-resident freeholder had the right to vote; and when married women had separate estates in realty, their husbands were not, by reason of that fact, freeholders, and hence legal voters.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. W. F. Cooper, Ch.</p>

<p>1. Railroad Receiver. Public «genis. Liability of Slate for their acts. Statutory receivers of railroads, to some extent, were public agents, and unless acting within the scope of their authority, the State not bound by their acts.</p> <p>2, Same. Power to contract debts. Statutory reeeivtrs of railroads have no power to contract debts to be paid otherwise than out of the earnings of the roads.</p> <p>3. Same. Duty of the Stale to continue receivership. There was no obligation on the State to continue the receivership until the current indebtedness of the receivership was paid.</p> <p>4. Same. Enhancement of value of mortgaged property. The fact that the indebtedness created by the receiver enhanced the value of the property on which the State had a mortgage, cannot add strength to the claim.</p> <p>•5. Same. Receiver appointed by court, and receiver under contract, distinguished. , A court of chancery, by its inherent powers, may enlarge the power of its receiver, but no such power exists as to a receiver by contract.</p>

<p>PROM DAVIDSON.</p> <p>■Appeal from the Chancery Court at Nashville. McHenry, Sp. Ch.</p>

<p>FROM OVERTON.</p> <p>Appeal from the Chancery Court at Livingston.. "W. G. Crowley, Ch.</p>

<p>Execution. Levy on realty. Lien. The lien of an execution levied upon realty is confined to the date of the levy, and does not relate to the tente of the execution.</p>

<p>Judicial Sale oe Realty. Limitations. Lis pendens. When land is sold by a decree of court and a lien retained to secure the purchase money, and the land is subsequently sold and conveyed by the ven-dee, the statute of limitations will not protect the last vendee, nor any subsequent vendee, against the payment of the purchase money due on the original salo. The principle of Us pendens applies.</p>

<p>Minor. Necessaries. Return of articles. Chancery pleading and practice. When a minor is provided with necessaries by a parent or guardian, he nor his guardian are answerable ior necessaries furnished by others; but if he still have the articles furnished, he will be compelled, in a court of equity, to pay for them or return them, but the bill must be properly framed to justify such decree.</p>

<p>FROM PUTÜTAM.</p> <p>Appeal from the Chancery Court at Cookville. W. G. Ceoweey, Ch.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. W. E. Cooper, Ch.</p>

<p>1. Homestead. Execution. Action. Tori. Debt. A tort is not a debt, and the homestead is exempt from an execution'issued upon a judgment rendered in an action sounding in tort, commenced before the right accrued and the judgment rendered after.</p> <p>2. Constitution An Law. Tori. Contract. Neither the contract clause of the Constitution of the United States nor the contract clause of the Constitution of Tennessee protect the right of action the law gives for a tort.</p> <p>3.'Same. Art. II., see. 2, construed. This provision as to “suits, actions, or right of actions,” has reference to the proceedings in court for the enforcement of the right, and to hinder the legislature from obstructing litigants .in the prosecution of their suits.</p> <p>4. Same. Conflict. Construction. Where there is a seeming conflict, that construction will be adopted which will harmonize the instrument and render every part operative.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. W. E. Cooper, Ch.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from tbe Chancery Court at Nashville. W. F. Cooper, Cb.</p>

<p>1. Vendor and Vendee. Rents. Receiver. When vendor ivho has sold lands hv title bond, seeks to appropriate the rents and profits of the land sold to payment of debt for purchase money, he must either allege in his bill, or make it appear during pendency of the suit, either by petition, supported by affidavit or otherwise, that the land itself is insufficient to pay his debt — the land being the primary fund for its satisfaction, the rents but incidental.</p> <p>2. Same. Chancery pleadings and practice. After the proceeding has gone on to decree, such vendor cannot file an independent bill to reach rents and profits of the land. It is held, these must be impounded and appropriated in the original suit to enforce the lien, as incident to enforcement of the lien, and cannot properly be made the subject of an independent suit.</p> <p>3. Beamy BELONiiisra to-Minors. Administrator talcing rents. Guardian by intrusion. When an administrator takes the rents of lands descended to minors, he will, be treated as a guardian by intrusion.</p> <p>4. Minors. Pleading and practice. Evidence. The rights of a minor disclosed by the evidence, will be protected without regard to the pleadi-ings, but there must be pertinent pleading to prejudice the rights of minors.</p>

<p>1. Assighmbno? of Judgment. Notice. Pleading and practice. Tie title to a judgment is not perfect in the assignee until the judgment debtor has notice. But if the assignment is impeached by the pleadings. upon other grounds, and the question of notice is not raised, the fact there was no notice will not be considered.</p> <p>2. Same. Notice to attorney. Generally, notice of the assignment of the judgment to the attorney of the judgment debtor is not sufficient, but the question is i-eserved whether the agency of the attorney may not be such, by the course of business or contract, as to make notice to-him sufficient.</p>

<p>1. Chancery 'Pjyeadijtos and Pbactice. Demurrer. Appeal. Under the Code, sec. 3157, the chancellor has no power to allow an appeal by some of several demurrants, whoso demurrers are overruled with leave to rely upon the matters of demurrer, the other demurrants, standing in the same attitude, not joining in the appeal.</p> <p>2. Aeministbatob. Sureties. Sale of slaves. Slaves bequeathed by will passed to the legatees without the assent of the executor, subject only to the right of the personal representative to sell them, by order of court, for the payment of debts if necessary, the hire in the meantime belonging’ to the legatees, and the proceeds of sale being equitable, not legal assets, for which the sureties of the personal representative would not be liable.</p> <p>3. Same. Judgment, against only prima facie as to sureties. A judgment against a personal representative in a suit to which the surety is no party, is only prima facie evidence against the surety, and he may show that the demand on which "the recovery was had was not, in whole or in part, a proper debt of the estate.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. A. G. Merritt, Ch.</p>

<p>1. Baukbtjpt. Discharge. Appeal before discharge. A discharge after appeal -will not he noticed in supreme court, but the bankrupt is not prejudiced thereby, as he may set it up in another mode.</p> <p>2. Same. Surety. Fiduciat'y debt. Contribution. Suretyship upon an administration bond is not a fiduciary obligation within the bankrupt act, and is dischargeable in bankruptcy, and a co-surety who after-wards pays, cannot compel contribution.</p> <p>o. Same. Bankrupt proceedings. Debt omitted. Fraud. A bankrupt proceeding is in the nature of a proceeding in rem, and when the general notice is given, and the court acquires jurisdiction of the subject-matter, the discharge will be effective as to debts not included in the list of liabilities, and if the omission be fraudulent, the remedy is in the bankrupt court.</p> <p>4. Same. What claim provable. Where the default of the principal occurs before the bankruptcy of the surety, and the co-surety pays after the bankruptcy, the claim is provable and the bankrupt is discharged.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Cpurt at Nashville. W. F. Cooper, Ch.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. W. F. Cooper, Ch.</p>

<p>1. Judgment. Clerical error. Correction. A clerical error in the calculation of interest, shown by the face of the judgment, may be corrected on motion made more than five and less than six years after its rendition, all parties being before the court.</p> <p>2. Same. Interest. A promise in writing to pay interest at the rate of ten per cent, per annum on a judgment entered upon the execution docket, will not, under the Code, sec. 1944a, make the judgment carry interest at that rate.</p>

<p>1. Marbied Woman. Abandonment of. Ser rights and obligations. Where the husband is dissipated, lives apart from the wife, and contributes nothing to her support, and the wife is engaged in business on her own account, this is such an abandonment, within the spirit of the statute, as will enable the wife to contract and to sue and be sued in her own name. • 1</p> <p>2. Same. Judgment against not void. The general rule is, the contract of a married woman is void, but if she be sued upon her contract and suffer judgment, the judgment is not void.</p> <p>3. Same. Separate estate. Power to sell. Proceeds. Where a married woman has a separate estate in realty, with power to sell, without restriction upon her right to dispose of the proceeds when she sells, her creditor may reach the proceeds.</p>

<p>EROM WAYNE.</p> <p>Appeal from the County Court of Wayne county. T. P. Bateman, J.</p>

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

<p>Divoece. No allovxmee will be made. When. No allowance will be made the wife in a divorce suit by her, when it appears of record that the suit is without any just or reasonable foundation and cannot be sustained.</p>

<p>EROJI JACKSON.</p> <p>Appeal from the County Court. M. B. Young, J.</p>

<p>FROM TROUSDALE.</p> <p>Appeal from the *Chancery Court at Hartsville. ■ H. JEL Lurton, Ch.</p>

<p>FROM FENTRESS.</p> <p>Appeal from the Chancery Court at Jamestown. I). K. Young, J., presiding by interchange.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in ei’ror from the Circuit Court of Davidson •county. Nathaniel Baxter, Sr., J.</p>

<p>FROM WHITE.</p> <p>Appeal from tlie Chancery Court at Sparta. W. Gr. Crowley, Cb.</p>

<p>1. Chanceby Pleading and Pbactice. Paiiitv. Persons who are nei- . tlier parties nor privies to parties in interest, and who are only incidentally affected by a decree, cannot institute proceedings to impeach the decree for matters dehors the record. Such a right belongs only to parties, persons who have become qumi parties and their privies.</p> <p>2. Same. Order of publication.. Notice. The order of publication need - not be identical with notice published, and it need not recite (acts apparent from other parts of the record; but the notice, being- intended to notify and inform the defendant, must contain statements sufficient for that purpose.</p> <p>3. Same. Same. IlceUaU. Recitals in judgments pro confemi taken at the rules, are of the same effect as if entered in the decree of the chancellor. Such a recital that “publication was made according to law,” is sufficient without statement of details.</p> <p>4. Same. Same. Collateral prucecdingx. Recitals in the records of courts of superior jurisdiction cannot be contradicted in collateral proceedings. This can be done only in a suit instituted directly for that purpose by a party in interest.</p> <p>5. Same. Successive- attachments. Levy. Between successive attachments, the one first levied has priority. This rule is not changed by section 3507 of the Code, invalidating all transfers of property after the filing of an attachment, bill.</p> <p>6. Same. Lien. Section 4287 of the Code, which gives a lien in certain eases from the filing of the bill, does not apply to cases where an attachment at law would lie.</p> <p>7. Same. Same. Lis pendens. The doctrine of lis pendens does not apply to more attachment bills so as to give a lien upon property sought to be attached, from the filing of the bill; but in such case a lien is acquired only from the levy of an attachment.</p>

<p>FROM WHITE.</p> <p>Appeal from the Chancery Court at Sparta. W. G. Croayley, Ch.</p>

<p>FROM OLAY.</p> <p>Appeal iii error from the Circuit Court of Clay oounty. 1ST. W. McConnell, J.</p>

<p>1. Legislative Journals. The mere fact that, in the transmission of a hill from the Senate, where an amendment thereto was made, to the lower House where it originated, a mistake was made by changing its original number “50” to 58, will not vitiate the bill, it appearing from the journal of the House that it was the same bill.</p> <p>2. Constitutional Law. Legislative journals. When the journal of the House fails to show affirmatively that the bill received on its third reading a constitutional majority, held, that the Constitution of Tennessee does not require that the ayes and noes shall appear on the journal, or that it shall affirmatively appear that the bill received the constitutional majority, and the court will presume that it was regularly passed, especially when it can be seen that the speaker signed it in open session, and that fact was announced and entered upon the journal.</p>

<p>1. Ceiminau Law. Evidence. Confession. Inducement. The witness stated: “I told him not to tell on himself, but if there were others in with him, to tell it, we coukhthen use him as a State witness against them, lie then said lie stole the horse, and no one else had anything to do with it.” Held, though confessions made under persuasion or threats, however light or weak, must he excluded, this confession was voluntary.</p> <p>2. Same. Conlimuuice.' Granting continuances 'lies in the discretion of the trial judge, and this court will not disturb the exercise of that discretion, unless something is developed in the after trial to show that the defendant might have been prejudiced in some way by the refusal to grant a continuance.</p>

<p>Partnership. Surviving partner. Upon the dissolution of a firm by the death of one partner, the surviving partner has no power to assign or pledge the uncollected and undivided assets of the firm, consisting of choses in action due to it, as collateral security for his own pre-exist-ing debt, so as to give his assignee a right superior to the ecpiity of the personal representative of the deceased partner to have the assets applied to the debts of the firm.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. W. E. Cooper, Ch.</p>

<p>Ceimihai; Law. Same offenses. Defendants were convicted of robbery from the person of Thomas Wengler and sentenced to fifteen years’ imprisonment in the penitentiary; from this judgment they did not appeal. They were also further indicted for an assault upon the person of Thomas Wengler with intent to commit murder in the first degree, growing out of the offense of the robbery. Under a plea of former conviction and not guilty, they were tried and convicted. Held: The assault or violence in the robbery ease being an essential element or ingredient of the offense and constituting an important and material part of that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case as a material part thereof, it cannot be again punished under an indictment for assault with intent to commit murder.</p>

<p>1. Mabejed Woman. Mortgage. Where a. feme covert joins with her husband in a mortgage, the words of conveyance and of covenant being those of both of the grantors, it will be construed as embracing whatever estate the married woman may have had in the premises conveyed, besides and beyond her dower and homestead interest.</p> <p>2. Same. Registration. Notice. Where a feme covert, under a written instrument, duly registered, holds a part of the property mortgaged, but is ignorant in fact of the existence of such paper, and without intention of fraud on the part of either mortgagors or mortgagee, and neither party knowing of the existence of such paper, she joins her husband in a mortgage, joining also in the words of conveyance and of covenant: Held, that the registration of the instrument under which she claims is not only notice to other persons but also notice to her, and that, consequently, her interest as a thing known to her passes under the mortgage.</p>

<p>1. Prosecutor. Husband. The husband cannot be the prosecutor in an, indictment against the wife.</p> <p>2. Same. Incompetent. An incompetent prosecutor marked on an indictment is, in legal effect, the same as if no prosecutor at all were marked.</p>

<p>from stewart.</p> <p>Appeal in error from the Circuit Court of Stewart county. J. C. Stark, J.</p>

<p>Indictment. Fdonimx asxault. An indictment, containing- all the necessary averments, of an assault with intent to commit murder in the second degree, is good as such, though it charge the intent to commit murder in the first degree. The omission of the elements of deliberation and premeditation in the indictment does not invalidate it, but only reduces the offense from that erroneously charged to that sufficiently set forth and described therein.</p>

<p>EROM GRUNDY.</p> <p>Appeal in error from the Circuit Court of Grundy county. J. J. Williams, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville. "Wh E. Cooper, Ch.</p>

<p>Obimiííai. Law. Supreme court. Misdemeanor. Reversal. Proof. Evidence equal to the testimony ol one credible witness is necessary to support a conviction of a misdemeanor even; and this requirement is met whore the jury give credit to the\ single witness of guilt, who, though attacked by some, is sustained by other witnesses to character, and the circuit judge approves the verdict. In such case the judgment is not reversible.</p>

<p>EROH WHITE.</p> <p>Appeal from the Chancery Court at Sparta. W. G. Crowley, Ch.</p>

<p>1. Municipal Oobpobations. Taxing districts. The appearance by attorney of the Taxing District of Shelby county, under an agreed case, brings the municipality sufficiently before the court, the act creating such municipality authorizing- the employment of an attorney to attend to its legal business.</p> <p>2. Same. Liability to suit. Such corporation is suable as any other municipality.</p> <p>S. Same. Liability for clerlds fees in tax, sales. Such corporation is liable for fees due clerks for docketing reports made by trustees, etc., and for entering judgments of confirmation. In such case the State, having no interest, is not liable.</p>

<p>Stoppage in Transitu. Case stated : B. R. & Co. sold and shipped to V. R. & H., on the 22d September, 1875, on font months’ time, a bill of goods. They telegraphed M. & Bros, to stop the goods. The telegram was taken to the freight agent- of the railroad, who promised to do so and that he would reship them to the seller^, who wore notified. The goods wore afterwards, by mistake or negligence, delivered to V. R. & II., who failed on the 23d December following. Upon maturity of the account, B. R. & Co. brought suit against Y. R. & II., recovered judgment, but failed to make their debt, the property of the debtors being absorbed by prior judgments. B. R. & Co. sued the railroad company for wrongfully delivering .the goods. Held:</p> <p>1. The notice was sufficient. There need be no express demand. The notice is sufficient, if the carrier is clearly informed that it is the intention and desire of the seller to exercise the right of stoppage m transitu.</p> <p>2. It is not required, when the right of stoppage in, transitu is exercised, that the buyer should have been declared a bankrupt or insolvent by legal proceedings, or that he should have made an assignment, but insolvency fairly means that the party should be shown to have been unable to meet the debt due the seller, at the time of the exercise of the right, when the debt should fall due. The purchaser may not have actually failed or have gone to protest, but might be hopelessly insolvent. But the objection that the purchaser was not insolvent at the time of the stoppage, can only be taken by the purchaser and not by the carrier, except that he may show as a matter of defense that the debt could have been made by due diligence.</p> <p>3. The bringing suit upon the debt when due and recovery of judgment, does not estop the seller from suing the carrier for wrongful delivery.</p>

<p>EROM SI-IEEBY.</p> <p>Appeal in error from the Criminal Court of Shelby county. L. B. Horrigaít, J.</p>

<p>Orijiiuai/ Law. .1liadeineanom. Trial by judge, jury being waived. Appeal. The Stale cannot appeal “rom a judgment of acquittal in a misdemeanor case tried by the court, a jury being waived.</p>

<p>Obimuíax, Law. Larceny. Severance. Asportation-. Whore, on an indictment for larceny in stealing corn from the stalk and carrying it away, the evidence showed that the corn was palled, thrown into piles, taken to a ditch in another man’s field, and then removed, the court charged the jury: “In regard to things once a part of the realty, it must be proved that they were severed from the realty before the act of larceny was committed upon them. If the severance and asportation were one continued act of the prisoner, it was only a trcspiass; but if the severance was the act of another person, or if, after severance by the prisoner, any interval of time elapsed, after which he returned and took the articles away, the severance and as-portation being two distinct acts, it is larceny. And it is immaterial whether the prisoner wont off the soil or field where the corn was between the severance and asportation, if the severance and asportation were made by the prisoner, and if they wore two separate and distinct transactions or acts.” Held, that the charge was correct.</p>

<p>Pardon. Effect. The Governor’s pardon cannot release the defendant from the costs o£ the prosecution that accrue in favor of third persons as incident to the conviction, although it in terms purport to do so.</p>

<p>Attachment. Publication. To make the publication required by sec. 3523 of the Code, does not require a period of thirty-five days; it may be accomplished within twenty-eight days next before the appearance day — a contrary dictum in Riley v. Niehol, 1 Heis., 16, overruled as inadvertent.</p>

<p>1. Witness. Competency. Pridence. In an .action against an executor, it is only parties who are excluded from testifying as to transactions with or statements by the testator; persons not parties may thus testify although interested in the result.</p> <p>2. Same. Same. Parties. Who arre. Where the suit is against one maker and the executor of a deceased maker of a note before a justice, and the former submits to-the judgment of the justice and the latter appeals, the former is not a party to the cause in the circuit court so as to exclude him as a witness under the above rule.</p> <p>3. Same. Questioii^resened. Whether the plaintiff may call one defendant to testify against a co-defendant, who is an executor, under this statute.</p> <p>4. Code Coxstbtjeb. Section 3813 a-e, T. & H.</p> <p>5. Limitatioít. New promise. A new promise made by one co-joint debtor to the other, is not sufficient of itself, but will be if the promise was intended to be, and was, in fact, communicated to the creditor and acted upon by him.</p>

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

<p>1. JudiciaIj SaIiE. Mights of purchaser if sale is void. It is settled law of this State, that the purchaser oí realty at a judicial sale, had under proceedings for the payment of the debts of a deceased person, is entitled, if the sale be declared void at the instance of the heir, to have the benefit of so much of the purchase money as was used in the payment of debts which were a proper charge on the land, or received by the heir, and the relief will be granted upon a bill filed by the purchaser, or the evicted parly claiming under him, after a recovery 'of the land by the heir by an action at law without the aid of the court of chancery.</p> <p>2. Same. Same. Statute of limitations. Neither the statute of limitations nor lapse of time will bar the assertion of the right if asserted in the adjustment of the accounts between the parties growing out of the recovery of the heir.</p>

<p>EEOM SHELBY.</p> <p>Appeal from the Probate Court of Shelby * county. J. E. R. Ray, J.</p>

<p>1. Supreme Court Practice. Demurrer for multifariousness. An objection to a bill for multifariousness, raised by demurrer but overruled,, will not avail in this court after a final hearing on the merits, where the matters constituting the mnltifariousness have been dropped in the litigation.</p> <p>2. Chancery Court Jurisdiction. Minors. A court of chancery has jurisdiction at the instance of infants to call intruders upon their land to account, and to declare and enforce their rights.</p> <p>3. Administrator. Payment of individual debts vnth chattels of estate. The personal representative of a decedent has no power to charge the chattels, real or personal, of an estate with the payment of his individual debt, and any person who takes under him by an instrument which shows the breach of duty may, be held to account by the distributees.</p> <p>4. Administration. Presumption, of law. After the lapse of seven years from the date of administration, the presumption would be that a chattel real held by the administrator, who was also a distributee of ’ the estate, was held as distributee.</p> <p>5. Lease. Lessee and, sub-lesser. The relation between a lessee and a sub-lessee of a portion of the term is of such a fiduciary character that the latter could not accpiire a good title against the former hy purchasing the lease at execution sale, and all he could ask would be to hold the former liable for the amount paid to remove the encumbrance.</p>

<p>EROM MATJRY.</p> <p>Petition of prisoner to be admitted to bail.</p>

<p>EROM WEAKLEY. 1</p> <p>Appeal in error from the Circuit Court cf Weakley county. Jo. II. HawkiNS, J.</p>

<p>Statute op Limitations. Might of action barred When. The -widow of a decedent entered into a contract in writing with the heirs, by which, in consideration of the surrender by her of her year’s support, exempt property and dower, the heirs agreed to convey to her ‘ one-third in - value of the lands of the estate, and a specilie allotment of land was afterwards made to her by parol, of which she took possession, and then married, had a child, and died; the heirs in the imeantime, pending- the coverture, conveyed the land to the husband, who held under the deed, and, after the death of the wife, sold and conveyed the land to a third person for value, who continued in possession for over ten years, when the heirs of the wife filed this bill for a specific, execution of the original contract and for a recovery of the land. Held, that the right of action was barred by the statute of limitations.</p>

<p>FROM OBION.</p> <p>Appeal in error from the Circuit Court at Union City. J. R. Hawkins, J.</p>

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

<p>Taxes. Bank property exempt. When. The charter of a bank provided that it “shall pay to the State an annual tax of one-half of one per cent, on each share of its capital stock, which shall be in lien of all other taxes,” and also that the bank “may purchase and hold a lot of ground for the use of the institution as a place of business, and at pleasure sell or exchange the same, and may hold such real and personal property and estate as may be conveyed to it .to secure debts due to it, and may sell and convey the same.” The bank bought a lot and improved it for a place of business, but used only one floor for this purpose, renting the cellar and the second and third stories to other parties. It also bought at a trust sale under a conveyance made by one of its debtors t.o a trustee to secure debts due to it, three lots in satisfaction of so much of its debt. Held, that the realty held and used as a place of business was exempt from taxation to the extent of the assessed value of that part so used, but that the residue of the assessed value of that realty and the three lots bought in satisfaction of debt due it were subject to taxation like other similar property.</p>

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

<p>1. Chauchry Pleadings and Practice. Bill to foreclose trust deed. In a bill which seeks to foreclose a trust deed made by husband and wife, it is not necessary to show that she had the power of disposition.</p> <p>2. Same, hlarriedu-ovum. Pro eonfesso. By the Code, sec. 4371, an order pro eonfesso against a married woman residing in this State, escept in the case of a bill for divorce, admits the allegations of the bill to be true.</p> <p>3. Same. Same. Equity of redemption. Tt is a proper decree, even in the case of a married woman, in foreclosing a trust deed, to order a sale of the land for cash free from the equity of redemption in accordance with the contract of the parties embodied in the deed.</p>

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