Volume 77 — Tennessee Reports

<p>1. Lease. Lien for improvements passes to assignee. A stipulation in a lease for the valuation, at the end of the term, of any improvements made by the lessee, and for a lien on the improvements for the amount of the valuation, if not paid.by the lessor, shall pass to an assignee of the lease.</p> <p>2. CHANCERY Pleadings and Practice. Infant. Bona fide purchaser. A decree of a court of chancery confirming a lease of an infant’s realty is so far binding on the infant, that he cannot, by a bill of review, an original bill or other proceeding, impeach it to the prejudice of a bona fide purchaser for value, of the leasehold interest, before suit brought</p> <p>3. Same. Equities. Prior and' junior. Assignee. The rule in this State, except when changed by statute, or in deference to statutory policy is, that a prior equity will prevail over a junior equity and the legal title with notice, or over the legal title of a volunteer with or without notice, and a purchaser in satisfaction of a pre-existing debt, and an assignee in trust to secure such a debt have always been treated, under the rule, as volunteers.</p> <p>4. Leash. Amymnent. Infant. Equities. The equity, therefore, of an infant growing out of the fraud of the lessee in procuring a lease and a decree of court sanctioning the lease, is superior to the rights of a beneficiary under an assignment of the lease and leasehold interests to secure a pre-existing debt.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. J. O. Pierce,' J.</p>

<p>1. Supíuehe Court. Decree. Parties not of record. Persons not parties to a suit at the rendition oí a decree in this court, cannot he heard to make a motion to annul a part oí that decree.</p> <p>2. Supreme Coukt. Jurisdiction. Decree void. When. The jurisdiction of the court, so far as it is appellate, is confined to the subject-matter of the record and the- parties before the court, and any action of the court, although entered in the form of a decree, which goes outside of the record, or undertakes to bind parties not before it, would be coram non judice, and void.</p> <p>3. Same. Decree and written opinion. A motion to annul a part of a decree as inadvertently entered, cannot be entertained, where the written opinion of the court expressly directs that the part of the decree objected to should be embodied therein.</p> <p>4. Same. Power to reverse, alter or explain a decree. The Supreme Court cannot adjudge rights acquired under one of its decrees, nor reverse, alter or explain a decree, entered in conformity with its opinion, upon motion.</p>

<p>1. TRUSTEES. Interest vhieh they take. The doctrine in this State is, that trustees take that quantity of interest which the purposes of the trust requires.</p> <p>2. Same. Limitation of trust estate in fee. An express limitation of the trust estate in fee, created by deed in land, will not be cut down to a less estate where the fee is required for the purposes of the trust, nor, it seems, in any case, unless the limitation be restrained by the terms of the deed to so much of the trust as relates to the equitable estate under a fee.</p> <p>3. Same. Special or active trust. A trust in fee in land, created to protect the estate for a prescribed period, and to preserve contingent remainders, is a special or active trust which is not executed in the beneficiaries either under the statute of uses, or the law as settled in this State.</p> <p>4. Same. Trnst. Leyal and equitable estates. Execution operates. When. An execution only operates upon an- estate in which the legal title is coupled with the beneficial interest, or in which the legal and equitable interests are merged by law in the same person, or so combine in him that he has a right to call for an immediate conveyance of the legal estate; hut there can be no merger nor right to call for the legal estate, where the legal and equitable estates are not commensurate, or where their union would be contrary to the intent of the grantor.</p> <p>5. Same. Eame.. Execution vñll not operate. When. An execution, therefore, will not operate on land conveyed in fee by deed to a mother in trust for her own use during'life or widowhood, and, upon her death or marriage, to be conveyed by the trustee to such of her three daughters named as may then be living, and the children of such of them as may be dead, or, if the daughters be all dead, to their descendants per xtripes, and, if no living descendants, to the grantors, the ultimate contingent remainder being conveyed by the grantor to the mother.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby ■county. J. Ó. Pierce, J.</p>

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

<p>Ijstmnt. Couiraet. conveying him land is not void hut voidable. Ratification. A contract in writing, executed by an infant, which conveys to him land in fee, and recites a money consideration secured by the notes of the infant, is not void but voidable only, and unless disaffirmed within a'reasonable time after he comes of age, will be binding on the infant, although the notes given for the jmrehase money may be void because negotiable; and a delay of four years is unreasonable, during the first two of which years the infant paid three of the instalments of the purchase money, and during the last two the land depreciated in value.</p>

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

<p>Limitation, Statute of. Administrator. Distributee. The share oí a distributee in either personal or real estate cannot be appropriated by the administrator to a debt claimed to be due from the distributee to the intestate, shown to be barred by the statute of limitation, when the defense is pleaded and relied upon.</p>

<p>1. Judge, Special. Appeal. Quiere, 'whether an appeal lies from the judgment of a special judge, selected by the parties merely because the regular judge was engaged in the dispatch of other business, where the record shows the fact, and that the bill of exceptions and judgment were signed by the special judge.</p> <p>2. Contbaot. Sale of personal property. Possession passes to purchaser and title to remain in seller. Sub^vendee. A contract for the sale of personal property, by which the possession passes to the purchaser, but the title remains in the seller until the purchase money be paid, is valid, and the contract, although reduced to writing, need not be registered. As between the original vendor and a sub-vendee in such a case, it is a question of title, and neither the payment of the price, nor want of notice of the vendor’s right will protect the sub-vendoe from the claim of the owner.</p> <p>5. Same. Same. Sub-vendee. Bights of where there is -power to convey. Exceptions to the rule in favor of the sub-vendee may exist where the possession of the purchaser is coupled with the usual indicia of title and authority to convey ; or with an apparent power to sell superin-duced by the acts of the vendor; or, perhaps, where the conditional sale is made with knowledge to a regular dealer in the article.</p> <p>4. Same. Same. Same. The case falls within the rule, and not the exception, when the plaintiffs, citizens of Boston, Massachusetts, sold a piano to a resident of Memphis, Tennessee, by contract in writing, stipulating for the payment of the price by instalments, that the chattel should remain the property of the plaintiffs until the price was paid, and that the vendors should have the right to take back the piano if the purchaser should fail to pay, or should sell, mortgage, or convey the same in any manner without the written consent of the vendors, the proof merely showing that the purchaser brought the piano to Memphis, kept it for sale in a store where ho had other pianos, and sold it, without the knowledge of the plaintiffs, to the defendant, who had no notice of the plaintiff’s rights, for value.</p> <p>6. Pleadings and Pbactioe'. Tort may be waived awl suit be for value. Limitation. ’The owner of personal property may waive the tort in its conversion, and sue in contract for its value, in which case the limitation of the action will be that for causes of action in contract, although the title to the property may, before suit, have become vested in the wrong-doer by lapse of time.</p>

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

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

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

<p>Pbincipai and Agent. Agent not responsible for damages. When. One who acts without compensation asa friend or agent for another abroad, and as such friend or agent contracts in the name of his principal'for work to be done for the principal, is not responsible in damages for accidents that may result from the manner of doing the work, or a failure to exercise extraordinary care in its execution, the undertakers being men of ordinary care and skill, and so known to the agent.</p>

<p>1. CrimikaI; Law. Prisoner present at trial. When. A prisoner in the dock in a position to see and hear all that is done, and has the opportunity to interpose objections, is in law present at the trial, and a new trial will not be granted because two jurors were accepted by his counsel while so confined in the dock.</p> <p>2. Same. Prisoner should not be manaded. A prisoner should not be manacled or handcuffed during his trial, but if a juror is selected, by his counsel, upon the trial, when by inadvertence he is so handcuffed, it is not error for which a reversal will be had.</p> <p>3. Same. Confessions. To say to the prisoner that “ an honest confession is good for the soul,” is not a promise of temporal benefit or discharge from punishment for the crime charged as will render a confession inadmissible.</p>

<p>FROM SI-IELBY.</p> <p>Appeal in error from the Circuit Court of Shelby County. J. O. PIERCE, J.</p>

<p>Ejectment. Eviction. Warranty. In ejectment, although the covenant of warranty is not broken without eviction by paramount title, yet eviction by judgment, by law is not necessary, the warrantee may voluntarily yield possession to him who had a better title and claim for a breach of the covenant. But in such case the party does so at his peril, and in a suit against the warrantor the burden of proof is upon plaintiff to show the paramount title. A judgment against him of paramount title would be conclusive on the warrantor.</p>

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

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

<p>Beal Estate Broker. Commissions. Ií a broker is employed to sell property, and he first brings the property to the notice oí the purchaser, and upon such notice the sale is effected by the owner, the broker is entitled to commissions.</p>

<p>Pleadings and Peaotioe. Declaration. False imprisonment. It is a good defense to a declaration for false imprisonment, to show that the arrest was under lawful and valid process, issued by a competent tribunal, having jurisdiction. Under a declaration for false imprisonment plaintiff cannot recover upon proof showing a case of malicious prosecution.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. J. O. Pierce, J.</p>

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

<p>Chancery Pleadings and Practice. Consolidated causes. Appeal. An order of the chancellor, made upon the final hearing of independent causes, directing the causes to be consolidated and heard together, will leave each case to be tried upon its own pleadings, proceedings and proof, and an appeal by the complainants in one of the hills will only bring up their case, leaving the other causes in the court below, and the decree as to them in full force.</p>

<p>FROM CARROLL.</p> <p>Appeál from the Chancery Court at Huntingdon. JNO. Somers, Ch.</p>

<p>Chancery Pleadings and Practice. Bill, by sureties in replevin bond, after judgment. A bill will not lie by the sureties in a replevy bond, after a judgment on the bond in the suit in which it was given, valid on its face, merely upon the ground that the interest of the principal in the goods replevied was that of a partner in a firm insolvent at the time of the attachment, the bill not being good as a bill of review, nor as an original bill to impeach the judgment for fraud.</p>

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

<p>"EROM CARROLL.</p> <p>Appeal in error from the Circuit Court of Carroll county. C. AdeN, . J.</p>

<p>Trustee and Cestui <¿ue trust. Trust property. A conveyed a tract of. land to L by deed, acknowledged and registered, no lion retained. A by contract was to receive an annuity from L, and at bis death to be paid a sum of money, which was to be a prior lien upon all his property. This contract was unregistered. L under a contract put P, his agent, in possession of the land. L left the country and P filed a bill against him as a non-resident for account, and the land was sold. S became the purchaser, and afterwards conveyed to P, who all the time was in possession. L died abroad, and his heirs commenced suit against P for the land, which was compromised by giving the heirs a part of the land. A files bill to enforce her contract. B.'eld, she was entitled to have tire land sold to pay her the amount due, both the land held by P and by the heirs. The agent could not, without notice, change the character of his possession so as to make it adverse. The heirs take the real estate subject to all burdens imposed upon the property.</p>

<p>Marbied Wohest. Mortgage. Husband agent of creditor. When. Where the husband procures his wife’s conveyance to homestead, or to her lands, to secure a pre-existing debt of his, he will be regarded as the agent of the creditor, who will be bound by the husband’s actions.</p>

<p>Sueeties. Administrator’s bond. Testator directed, among other things, that his executors take an inventory of his mercantile establishment, and open a new firm for the benefit of his children, and run the same until youngest child is of age. If the house fails to show a dividend, then the executors might suspend until they shall think it to the interest of the minors to renew said business. They proceeded to administer the estate and opened the new business house, which after-wards contracted debts to insolvency. Suits were brought for debts of the business house against executors and the sureties upon their bond. Held, sureties were not liable. They were only liable for matters of administration covered by the bond of the executors as such, and not liable for failure of executors to discharge the trusts imposed by the will.</p>

<p>Pleadings and Practice. Parties. Assignee. A subscription ivas authorized to Mt. Carmel Church, to be paid when the building committee required the money. The subscription was assigned to contractors and suit brought before a justice of the peace in the name of Mt. Carmel Church for the use of the assignees, and judgment for plaintiffs. Held, that the subscription was a promise to pay the building committee, and suit should have been brought in the name of the building committee, to use of assignees, but under sec. 4124 of the Code, the judgment being for the benefit of the assignees, who have the beneficial interest and are the real parties.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of- Shelby county. J. O. Pierce, J.</p>

<p>PROM HENRY.</p> <p>Appeal in error from the ..Circuit Court of Henry -county, Fitzgerald Williams, Sp. J.</p>

<p>Justice oe the Peace. Authorizing constable to sign warrant. A justice oi the peace cannot authorize a constable to fill up a warrant and sign his name in his absence. The signing of the warrant is an official act which cannot be done by power of attorney.</p>

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

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

<p>Pleadings and Practice at Law. Replevin. Estray. An action of replevin cannot be maintained for an estray where the plaintiff lias not taken the steps required by the statute to have the animal appraised and advertised.</p>

<p>Costs. Justice of peace. Warrant. A warrant issued upon information and the person making oath informing the justice of the peace that he knew nothing of the facts himself, but had been told by a third party that the offense had been committed, is improvidently issued and without sufficient legal grounds, and the justice is not entitled to have cost taxed against county. ></p>

<p>FROM HARDIN.</p> <p>Appeal from the Chancery Court at - G. H. Nixon, Cb.</p>

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

<p>1. ChastcbRY Pi/eadings and Practice. Insolvent estate. Filmy claims. It is not necessary that a creditor should make himself a party by petition, to an insolvent bill, if in the bill his claim is stated as a valid and subsisting claim against the estate. Filing his claim with the clerk within time will bar the statute of limitations.</p> <p>2. Administation. Beal estate. Alienation by heir. The execution of a deed of trust by an heir upon lands descended to him from his ancestor, to secure a pre-existing debt, is not such an alienation by the heir as can defeat the right of creditors to subject the real estate of the ancestor to the payment of his debts. The land, by statute, is assets for this purpose, and to allow the heir to appropriate it. for his own debts, by deed of trust or mortgage, would defeat the law.</p>

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

<p>FROM SHELBY.</p> <p>Appeal from tbe Chancery Court at Memphis. D. H. PostoN, Sp.. Ch.</p>

<p>Sale of Land. Under execution.. If a sheriff under an execution, sells land and it is bid in by a purchaser who fails to pay the money, and he again sells at a less sum to another purchaser, the first purchaser cannot be held liable by the judgment creditor for the difference in the first and last bid.</p>

<p>CORPORATIONS, Municipal. Ordinances. Olmsifieaiions of privileges. By the charter oí the city of Memphis, the general council was authorized to establish and regulate market-houses and to license and regulate all mercantile houses and fresh meat stores. Under ordinances of the city, market-houses were established. Persons selling in market-house were only required fo pay rent for stalls and not required to pay license. By another ordinance it was required that all persons keeping “ meat stores,” for sale of fresh meat, not at market-houses, shall pay a license of one hundred dollars, and said persons so licensed shall not sell game, fish, vegetables and other articles of merchandise; no such store to be opened within one quarter of a mile of the market-houses. By another ordinance it was required that a license of fifty dollars be required by any keeper of a game or fish store. By another ordinance it is provided that any merchant regularly licensed shall be permitted to sell fresh meat from store in not less quantities than one quarter of any slaughtered animal, without other license. Held, that “meat stores ” includes all sorts of meats, whether fish, flesh or fowl, and that the city council had no authority to make the selling of game and fish a separate privilege. The other ordinances were authorized. They are but a classification of the meat dealers with a license tax different in amount for one class than for the other, and properly graded by amount required to be sold.</p>

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

<p>Attobniovs. Powm of. Mrs. D sued D in replevin ior sixty hogs. The suit was compromised. D was to have the hogs if he paid Mrs. D. fifty dollars November 1, 1878, otherwise the hogs were to belong to Mrs. 1). Mr. G was the attorney of Mrs. D in the replevin suit. On November 1, D paid Greer fifty dollars. When Mrs. D some days after was informed of the payment, she denied his authority to receive the, amount, and declined to take it when offered. Held, she could maintain an action of replevin for the hogs. Although Greer acted as her counsel in the case compromised, he had no right, without, special authority, to accept the fifty dollars.</p>

<p>PROM HENRY.</p> <p>Appeal in error from the Circuit Court of Henry -county. C. AdeN, J.</p>

<p>• FROM SHELBY.</p> <p>Appeal in error from the Circuit Court of Shelby county. J. O. Pierce, J.</p>

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

<p>FROM SI-IELEY.</p> <p>Appeal in error from tlie Circuit Court of Shelby county. C. W. Heiskele, J.</p>

<p>PROM OBION.</p> <p>Appeal from the Chancery Court at Troy. Jno. Somers, Ch.</p>

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

<p>FROM "WEAKLEY.</p> <p>Appeal in error from the Circuit Court of "Weakley county. C. ADEN, J.</p>

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

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

<p>Pi/eadisgs asd Praotice at Law. Depositions. Exceptions. A deposition taken by a justice of the peace, and by him handed to the clerk of the court in which the suit is pending, is not subject to exception because he did not envelope and seal it and endorse upon the seal his name and the style of the cause.</p>

<p>Pleadings and Ppactice. Suit prematurely brought. Upon contract for sale of goods to be paid for in thirty days, if the vendee abandons the possession of the goods and vendor re-possesses them, he cannot sue for the purchase money before the expiration of the time of payment. He can only recover upon the contract, and suit to enforce collection before the money was due by the contract, cannot be maintained.</p>

<p>FROM HENRY.</p> <p>Appeal from the Chancery Court at Paris.' John SOMERS, Ch.</p>

<p>AdministRATioN. Insolvent estate. Statute of limitation.. .The suggestion of the insolvency of an estate does not change the period of limitation for suing on claims not due at the time of the qualification of the personal representative, but the claimant may, under the Code, Secs. 2330, 2377, be barred from becoming a party to an insolvent suit, or participating in the division of assets, unless he file his claim in said suit before an appropriation of the funds of the estate.</p>

<p>FKOM decatur.</p> <p>Appeal in error from tlie Circuit Court of Decatur county. T. P. BatemaN, J.</p>

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

<p>FROM SHELBY.</p> <p>Appeal from the Law Court of Madison county, H. W. McCorry, J.</p>

<p>fiR.TTMTNTAT. Law. Small offense law.. If a defendant is brought before a justice upon a warrant for a felonious assault, the justice, if the defendant be not guilty of the felonious assault, mav receive a plea of guilty of an assault and battery and fine the defendant under the small offense law.</p>

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

<p>FROM LAKE.</p> <p>Appeal in error from the Circuit Court of Lake county. C. AdeN, J.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the Law Court of Madison county. H. W. McCorry, J.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the Law Court of Madison county. H. W. McCorry, J.</p>

<p>EROM HENRY.</p> <p>Appeal from the Chancery Court at Paris. Joi-IN Somers, Ch.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the 'Law Court, of Madison county. W. McCorjjy, J.</p>

<p>■FROM MADISON.</p> <p>Appeal in error from the Law Court of Madison county. H. ~W. MoCorry, J.</p>

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

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. I). C. Trewi-iitt, J.</p>

<p>Pleadings and Practice. Counterpart writ. Justice’s judgment. Suit was brought before a justice against partners in a county where only one of them resided. A writ was issued to another county, where the other two partners lived, against them only, not showing that the resident had been sued. Judgment was taken against all these partners, and bill filed by two non-residents to enjoin it, because it was void. Held, that the writ was in substance a counterpart writ, though informal, and that the judgment was valid against all the partners. Cooper, J., dissenting.</p>

<p>Statute oe Frauds. Parole prmvise to pay debt of cwiother. A written promise to “ arrange tlie debt,” contained in a letter by a third party to a creditor who had recovered judgment, on which said third party was asking delay, is a valid promise to pay such debt, and will warrant judgment against him on delay granted.</p>

<p>1. Supreme Court Practice. Special appeals. It is error to grant a special appeal from a part of a decree declaring the rights of the parties and directing an account, and this court will either dismiss such an appieal or review the decree as upon a broad appeal, correcting errors in appellant’s favor as well as against him.</p> <p>2. Covenants. Judicial sales. A covenant of warranty runs with the land and inures to the purchaser at a judicial pale. One who buys the land at a sale in a vendor’s suit, to enforce his lien, may sue the vendor for a subsequent eviction, which constitutes a breach of vendor’s warranty to his vendee.</p> <p>3. Same. Warranty. Ejectment. Notice. When covenantee gives covenantor notice of the institution of suit for eviction, the judgment therein is conclusive upon the covenantor. Thus, whore covenantee in an ejectment suit by an adverse claimant, defines the extent of his boundaries and defends under covenantor’s deed, and judgment is rendered adjudging that land so claimed by the cove-nantee is included in covenantor’s deed and that the adverse title is superior, such judgment is conclusive upon the covenantor and prevents him from alleging, in a suit upon the covenant, that such land was not included in liis deed.</p> <p>4. Same. Same.. Norm of notice. No particular form of notice is necessary ; if it explicitly and unequivocally notifies the covenantor of the institution of the suit and requests him to aid in making defense, it is sufficient.</p> <p>5. Chancery Court Jurisdiction. Damages for breach of warranty. Chancery Court has jurisdiction of purely legal demands in attachment cases, and since the act of ’77, of suits to recover damages for breach of warranty.</p> <p>6. Same. Same. Measure of damages. Costs, but not attorney’s fee. Taxed costs in successsful ejectment suit by adverse claimant, are recoverable by covenantee in suit against covenantor for breach of waranty. Counsel fees are not taxed costs, nor regulated as to amount by law in this State, and sums paid therefor by covenantee for defense in ejectment by adverse claimant, are not recoverable from covenantor.</p>

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

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

<p>RAILROADS. . Foreign,corporation. Suit against agent. The C. & A R. R. Co. having no office nor any part of its line in this State, employed B as its agent in this State to induce travelers to take such routes as , connected with their line. B had no authority to sell tickets for his principal, and his business, which consisted principally in securing emigrants as patrons for his company, required that he should travel from place to place, see passengers, aid them in purchasing tickets, and checking baggage on connecting lines, and correspond with persons likely to travel over his principal’s line. His presence was frequently required at C., in this State, that place being a railroad cen-tre of lines connecting with his principal’s, but he had no office or place of business there. W. sued the Company for breach of a contract made with B, serving process on B, whose want of authority to receive the service of process was raised by plea in abatement. Held that the service was invalid and the plea good.</p>

<p>Pleadings and Practice. Liability of justices of county court. Negligeruie, Loss. To sustain an action against justices of the county court for accepting a guardian’s bond with only one surety instead of requiring two or more sureties as prescribed by statute, there must be proof .of actual loss by reason of the act or omission, otherwise the recovery would only be for nominal damages.</p>

<p>Chancery Pleadings and Practice. Opening biddings. Notes date from sede. Ordinarily, and in the absence of any controlling equity, upon tbe opening of the biddings of a judicial sale, the purchaser should be required to execute his notes for the purchase money as of the date of the public sale the biddings at which are opened, and upon the terms of the decree of sale.</p>

<p>Ejectment. Limitation. Adverse possession. Pleadings and practice. To countervail superior paper title, the adverse possession must have been actual by fences, enclosures or buildings, where the land is capable of such possession, and where it is not, such fact must be averred in pleading. Such acts as cutting timber, grazing cattle, erecting hog-pens, are illusory and insufficient.</p>

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

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

<p>INSURANCE. Forfeiture. Vaeanc;/. The insured cannot recover upon a policy of insurance -which, provides that should the premises become vacant, the policy should be forfeited, where the loss occurred while-the premises were temporarily vacant.</p>

<p>Cbiminau Law. Evidence. Dying declarations. The State proved, without objection, that the deceased being in extremis and in apprehension oí death, stated that the prisoner had mortally wounded her with an axe; the defence afterwards introduced evidence tending to prove the insanity of the declarant; the trial judge charged the jury, that the sanity of the declarant was a question of fact for them to determine ; it was insisted upon appeal that the judge should himself have determined the question of the sanity of the declarant. Held, that the defendant should have objected to the admission of the declaration, if he desired to raise the sanity of the declarant as a preliminary question; that the judge could not be putin error for admitting evidence, unobjected to at the'time and competent in the shape presented, by other evidence subsequently introduced]; and though it would have been his duty to withdraw the declarations from the jury if he had been convinced of the declarant’s insanity, yet his action in not withdrawing the declarations implies that he thought the declar-ant sane, and', if erroneous, defendant could not complain, since the judge gave the jury the power to find this question, which he had thus impliedly determined against .the prisoner, in the prisoner’s favor.</p>

<p>FROM MARION.</p> <p>Appeal from tbe Chancery Court at Jasper. "W. M. Bradford, Ch.</p>

<p>1. Estoppel. Judgment. The estoppel of a judgment or decree extends to all matters material to the decision of the cause which the parties, exercising reasonable diligence, might have brought forward at the time.</p> <p>2. Res Adjudicata. Judgment. A judgment or decree to be a bar as m adjudieata must be in the merits, but to this end it is not necessary that the litigation should be determined on the merits in the moral or abstract sense of these words; it is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases.</p> <p>3. Same. Demurrer., A decree dismissing a bill upon demurrer, on the ground of lapse of time or laches, is on the merits, and a bar to another suit between the same parties or their privies, about the same subject-matter, and for the same purpose.</p> <p>4. Llmitations oe Actions. Code 2755 construed. The Code, sec. 2755» which authorizes a plaintiff to commence a new action within one year after the rendition, in a suit commenced by him within the time limited by the statute of limitations, of a judgment or decree against him “ upon any ground not concluding his right of action,” does not apply when the judgment or decree is on the merits.</p> <p>5. Limitation’s. Statute of. In a suit by heirs to recover lands descended from an ancestor,® and for this purpose to set aside a judgment against the ancestor, as void for want of notice or fraud, and a sale of the lands made under the judgment during the life of the ancestor, the time of limitations or laches would begin to run against the ancestor.</p>

<p>EROM MARION.</p> <p>Appeal from the Chancery Court at Jasper. W. M. Bradeojrd, Ch.</p>

<p>Bents. Ghm-ges. Wills. Where the testator directs that a child should receive a provision from the rents of a tract of land, therein making the support of the child a charge upon the land, rents accruing subsequent to the child’s death are liable for debts contracted jDreviously by her guardian for her support.</p>

<p>1. Tbtjst Assignment. Renunciation. An attachment suit was compromised by the son and heir of the original defendant, conveying the attached land in trust to secure the debt, and the attachment was dismissed ; the creditor discovering that the father subsequent to the attachment had, by voluntary deed, conveyed the land attached to the son for life, with remainder in fee to the son’s children, filed a bill for a rescission, expressly renouncing the security of the trust assignment and praying for the restoration of his attachment lien; the rescission was denied and the bill dismissed; the creditor subsequently bought the land at the trustee’s sale, and brought ejectment against the son. Held, the bid for rescission was only a conditional renunciation of the security of the trust assignment, depending upon tho restoration of the attachment lien.</p> <p>2. Homestead. Circuit Court. Ejectment. The circuit court may assign homestead in an action of ejectment, and though it is more regular to lay off homestead before giving plaintiff final judgment for the residue, the court will not reverse because the circuit judge gave plaintiff judgment for the land excepting homestead, which was subsequently assigned.</p> <p>3. Same. Life-estate. Valuation. Homestead is in all cases a tract of land in which the fee, and not the estate owned by the defendant, is worth a thousand dollars.</p> <p>4. Supbeme Court PRACTrOE. Ejectment. Judgment on bond. Upon af-firmance of a judgment for plaintiff in an ejectment suit where defendant has given bond pending appeal as required by act of 1879; this court will order a writ of possession and give judgment for rents, and remanding cause for proof and enquiry as to amount of rents and damages.</p>

<p>Homestead. Mode of conveyance. Previous to the constitution of 1870, the husband could convey valid title to the homestead without the concurrence of the wife, even where he declared his intention to claim the homestead, in the manner then provided by law, unless the homestead had been actually laid off.</p>

<p>Buis and Notes. Endorser. Affreement of maker to pay out of proceeds of a particular note. An agreement by the intestate in his lifetime with an accommodation endorser that he will, in consideration of the endorsement, pay the debt out of the proceeds of a particular note when collected, although in parol, and a fortiori if recognized by the intestate in writing, would be binding, and operate as an equitable appropriation of the specific fund, which would not be affected by the death of the intestate and the insolvency of his estate, the appropriation of the fund having been formally directed by the intestate in his lifetime.</p>

<p>Ejectment. Evidence. The declarations oí one in possession of land as to Ms holding, where no tenancy of any kind is shown except the declarations sought to be proved, are incompetent as evidence.</p>

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

<p>1.. Estoppel. Party to suit. Where, under bill filed by trustees of a corporation against its stockholders, one of the stockholders obtains a suspension of the decree, gives a deposition and receives various notices of taking accounts, depositions, etc., he is estopped, in a collateral suit to allege or prove he was not served with process.</p> <p>2!. Same. Admissions. An admission made in an answer is a solemn admission m jud/ieio, and estops the party to deny the admissions after-wards in another suit.</p>

<p>FROM KNOX.</p> <p>Appeal in error from the County Court of Knox county.</p>

<p>Criminal Law. Selling liquor without oath. An oath “ not to mix or adulterate with any poisnous substance whatever,” is not a compliance with the statute requiring an oath “not'to mix or adulterate with any substance whatever.”</p>

<p>1. Pdeadings AND PRACTICE. ..Suit on attachment bond. Bankrupt, yls-signee. The bankrupt’s right of action ior -wrongful suing out of an attachment, passes to the assignee in bankruptcy in so far as the action seeks compensation for injuring, detaining or converting the property attached, but it remains with the bankrupt in so far as the action seeks to recover compensation for injury to the bankrupt’s business, reputation and credit, and vindictive damages for malicious suing out or abusive use of the attachment; but, though the bankrupt and assignee may maintain separate actions and recover, the assignee for the injury to the property, and the bankrupt for the personal tort, yet the aggregate recoveries cannot exceed the amount of the penalty where the action is on the attachment bond</p> <p>2. Same. Same. Measw'e of damages. The measure of damages for wrongful suing out of an attachment is, (1) loss by injuring, detaining or converting the property attached; (2) loss by injury to plaintiff’s business, reputation and credit, as where plaintiff is thrown into bankruptcy by the attachment; (3) vindictive damages based on the falsity or mala fides of the claim, wanton abuse of process or express malice in suing out, levying or continuing the attachment; and these three elements of damage constitute the recovery in an action on the attachment bond as well as in the action at common law.</p> <p>3. Same. Vindictive damages. f Vindictive damages cannot bo recovered in an action for wrongful suing out of an attachment, where the declaration does not aver malice.</p>

<p>Same cm? Laud. Parol. Election by purchaser. A tract of land having been sold, under an administrator’s bill, to pay debts subject to redemption, one of the heirs, for himself and as agent of the other heirs, made a parol sale of a part of the land to a third person for more than the amount bid at the judicial sale, and the purchaser paid the bidder his debt, and took an assignment of his interest for the benefit of the heirs, and was put in possession of the land by the heirs under the parol contract, but afterwards, and after the time of redemption had expired, set up title to the whole tract under the assignment. Held, upon bill filed by the heirs, that the parol sale was void at the election of the purchaser, but that the heirs were entitled to recover possession of the land and to have an account as upon recission, or as between mortgagors and mortgagees, unless the purchaser, under the offer of the bill, elected to take the land upon the terms of the parol contract, in which event the decree would be for the specific-enforcement of the contract.</p>

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

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

<p>1. RaimioAd. Franchises may be assigned. When. The franchises to build or own and manage a railroad, and to take tolls thereon, are not necessarily corporate rights, and may he assigned; hut the franchise to form or be a corporation and act in a corporate capacity is legislative, and not the subject of sale or transfer except by some positive provision of statute law pointing out the mode of transfer.</p> <p>2. Same. Chancery pleadings and practice. The bill alleged that a particular railroad, with all its property, effects and franchises, was sold under the proceeding by the State against delinquent railroads, and subsequently re-sold by the purchaser to an individual named, and by him to the defendant, who had continued to operate the road under the charter of the original corporation, and had charged and received from the complainants excessive freight. Held, upon demurrer, that the defendant was not the corporation, and that the bill was properly filed against him as an individual.</p> <p>S. Same. Mate far transportation. By statute the railroad companies of this State are given the exclusive privilege to carry freight and passengers over their respective roads, “ provided that the charge for transportation or conveyance shall not exceed 35 cents per 100 pounds on heavy articles, and 10 cents per cubic foot on articles of measurement, for every hundred miles, and five cents a mile for every passenger.” Held, that the intention of the Legislature was to confer upon each company the right to charge, as a common carrier, for freight and passengers carried over its road, or any part of it; that the intent was not to proportion the charges by any unit of distance, but to fix a maximum beyond which the company could not go, and to leave the tariff of charges, within that limit, to the company, subject to the rule of the common law that the charges should be reasonable, and to the regulating power of the courts and the Legislature.</p> <p>4. Same. Common carrier. Mates of freight. A common carrier is bound to carry at equal rates for all customers in like condition, but may discriminate in rates of freight between customers not in like condition, if the discrimination be fair and reasonable, and not inconsistent with the public interest.</p> <p>5. Same. Same. May discriminate in rates of freight. When. A common carrier may discriminate in favor of ¡persons living at a distance from tlie end of the route, where the object is to secure freight which would otherwise reach its destination by a different route, and other customers not in like condition will have no right of action because of the discrimination, if the charges made against them are reasonable.</p>

<p>SUPREME Court Practice. Dismissal of injunction bill. Demand. Upon the dismissal of an injunction bill by decree of this court, the injunction bond being conditioned to pay such costs and damages as the court may order, the defendant is entitled to a reference to ascertain the damages, for which purpose the cause will be remanded to the chancery court.</p>

<p>Appeal. Interlocutory order. After decree fixing the basis of account in an administration suit is submitted to and account taken thereon, an appeal does not lie from an interlocutory order recommitting the account, but only from a final decree.</p>

<p>1. Partnership. Pri.or equity of partner. Dissolved firm. A partner in a dissolved firm lias a lien on partnership realty for the amount due him on general settlement of the partnership account, superior to the execution lien of post-dissolution creditors of another member of the firm, though it had been dissolved for five years, and the title stood in the name of the individual members of the firm.</p> <p>2. Same. Failure of Settlement And this lien mil prevail when there was a parol agreement of partial settlement, by which the other members were to convey the realty to the creditor member of the firm, but failed to complete the conveyance.</p> <p>3. Same. Extent of partnership account. This lien extends not only to indebtedness arising from inequality of capital contributed, but also of personal account with the firm.</p> <p>4. Transfer to Federai. Court. Amount involved. Two non-resident defendants, whose several claims, each less than $500, are enjoined in the same suit, cannot, by assignment of one to the other pending the suit, unite them in one, and thus obtain the right to a transfer of the cause to the Federal Court on the ground that the amount involved between complainant and one of them is over $500.</p>

<p>PROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. W. B. Staley, Ch.</p>

<p>Election Contest. Face of returns. An action which undertakes to go. behind the certificate of the returning officer of an election by the people, is a contest of the election within the meaning of our statutes, and, in the case of the office of sheriff, must be commenced and tried, under the Code, sec. 889, a,nd not under the Code, sec. 3409, et seq.</p>

<p>1. Appeal. Mo, from order after conviction. Wo appeal lies from an order of the trial court providing for the safe custody, within the jurisdiction of the court, of a prisoner, convicted of one offense, for trial of another offense of which he stands indicted in the same court.</p> <p>2. Sestesce. Suspension of. And, it seems, the court may suspend the execution of the judgment of conviction for this purpose.</p>

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

<p>Fraudulent Conveyance. JDeed in trust. A conveyance in trust of all the debtor’s property (realty) to secure a debt of only one-third its value, with two-and-a-half years to run before maturity, is fraudulent in law, though the creditor have no purpose except to secure his debt.</p>

<p>Will. Construction. Power. After providing for the payment of debts, etc., testator directs that his widow “shall control my real and personal property to the best advantage to raise and educate our children and to use what may he necessary for that purpose;” also, “that my children shall be made equal in the division of my. estate, real and personal; ” also, “ that my children should all receive about the same in the way of education, and as they arrive at age that they be assisted out of my estate what she may think necessary, hut not go beyond what would be their part,” with special authority to the widow to convey certain tracts of land: JEeld, 1. That the title to lands did not pass to all the children, as tenants in common by inheritance, but passed to them by devise; and 2. The -widow, as executrix, had power to convey the entire estate in any tract, under the restrictions imposed in the will.</p>

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

<p>FROM GREENE.</p> <p>Appeal from the Chancery Court at Greeneville. N. Hacker, sitting as Chancellor by interchange.</p>

<p>EROM JOHNSON.</p> <p>Appeal from the Chancery Court at Taylorsville. H. C. SMITH, Ch.</p>

<p>FROM SULLIYAN.</p> <p>Appeal in error from the Law Court at Bristol. N. Hacker, J.</p>

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

<p>1. Railroad. Effect of sale of to enforce State’s lien. The effect of the sale of a delinquent railroad at the suit of the State to enforce its statutory lien, was to transfer the title of the road and its appurtenances and corporate franchises to the purchaser, and, unless the company was the purchaser, to dissolve the corporation.</p> <p>2. CORPORATION, Dissolved. Suit by. A suit in the name of a corporation thus dissolved, brought more than five years after dissolution, cannot be maintained unless it appear that, under Code, sec. 149.6, the chancellor has granted further time for closing the business of the dissolved corporation.</p>

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

<p>Contested Will. Eaversal on facts. The will of a sane old man, made seven years before his death, whereby the estate is given to his widow for life, should not be disturded merely on the ground that her will was stronger than his, and that in other trivial matters she had occasionally controlled his actions; and the Supreme Court will reverse the judgment of an inferior court, setting asido a will, based on a verdict found only on such slight circumstances.</p>

<p>1. Chancery Pdeading. Multifariousness. A bill by a judgment-creditor of an insolvent bank, whose sole stockholder is personally liable for its debts, is not multifarious for seeking to obtain satisfaction by setting aside a fraudulent conveyance by the bank, recover judgment against the stockholder, and set aside fraudulent conveyances by him, and also remove a cloud east on title by the fraudulent conveyances.</p> <p>2. Same. Creditor’s bill. An objection that a creditor of an insolvent corporation files his bill for his own use only, is obviated by the fact that the suit has been consolidated with another filed for all creditors.</p> <p>8, Prauduxent Conveyance. Fraud in law. A trust-deed is not fraudulent on its face because no time is specified for the sale of the property conveyed ; and the trustee, a young man without property, and excused from bond, is authorized to rent until sale; and allowed to sell on credit in his discretion; and to compromise or arbitrate any matter of litigation; and do all other proper and necessary acts as fully as could the grantor; and the amount of the preferred debts is not specified.</p> <p>4. Registration. In vjhat book ? A trust-deed conveying realty is notice to the world, when properly acknowledged and noted for registration, though it be registered in the chattel-mortgage book.</p> <p>5. Insolvent Bank. Conveyance by, void. Assets of an insolvent bank are trust-funds for the creditors, and a conveyance thereof is fraudulent and void.</p>

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

<p>Banks. Directors. Directors who do not accept and fail to discharge the _ duties of the office not liable to creditors.. The owners of the charter oiflan(l stock of a State bank, men of good character and haying the confidence of the community, | published in the newsiDapers of the city in which the bank was located, a business card of the bank, with their own names as officers, and with the name of one of themselves as a director, and the names of four other persons as directors, who were not stockholders, who had never been notified that they were elected directors, nor accepted the office, nor acted as such, and continued the publication for over four years with the knowledge of such persons, but without their active participation. Held, the bank having failed, that the creditors had no right of action, either through or independent of the corporation, against such persons for failing to discharge the duties of directors, it not appearing that they, or either of them, had done or said anything tending to lead any of the creditors to believe that they were directors.</p>