Volume 78 — Tennessee Reports

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

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

<p>■Chancery Pleadings and Practice.. Trust. Benejieianes. Parties. A lot of land was conveyed to four trustees fora church. A church was built, but being in debt three ot the trustees executed their notes for the amount. The amount was paid by one of the trustees whose executor files the hill against the other two trustees who signed the note, asking for a sale of the church to pay the indebtedness upon demurrer, Held, that all the trustees should have been made parties, and as the interest of the two trustees who were made defendants was antagonistic to the interest of the church, that the members'of the church, beneficiaries in the trust, should have been made parties.</p>

<p>1. PLEADINGS and PRACTICE. Official bond. 'In a suit upon an official bond, commenced before a jnstice, tbe warrant may assign several breaches, and a recovery on any one will be good.</p> <p>2. Constable, Duties of. Growing crop. A constable who levies an attachment on a growing crop must take possession of it by some overt act, and properly guard it.</p>

<p>1. Birrs and Notes. Assignee. Set off. Breach of covenant. A demand arising- from the breach of a covenant against encumbrances is the subject of set off, and will, under the Code, sec. 2918, attach to a note held by the warrantor as payee, and will follow it into the hands of an assignee, unless he receive it before maturity in due course of trade.</p> <p>2. Same. Assignee. Due course of trade. Subrogation. An assignee, who receives a promissory note of a third person before maturity, in consideration of the sale to the assignor of a lot of land, and gives a bond to the assignor to make him a deed when the note is collected or paid, is an assignee in due course of trade; but the maker of the note becomes thereby a security for the assignor, and will be entitled to be subrogated to the lien of the vendor on the land, and, the payee being insolvent, to have the land sold for his indemnity in advance of the payment of the debt.</p> <p>3. Same. Surety. Marshaling securities. The surely would also he entitled to marshal the' creditor’s securities so as to compel him to go first upon the security in which the surety has no lien or equity.</p>

<p>FROM WASHINGTON.</p> <p>Appeal in error from the Circuit Court of Washington county. 1ST. Hacicer, J.</p>

<p>1. CRIMINAL Law. Declaration. Separate offenses belonging to tlie same class, differing only in degree of punishment, may be united in the same indictment.</p> <p>2. Same. Incorporated institutions of learning. Evidence. The existence of a corporation may be established by the introduction of a list of corporations published as required by section 20 of the Act of 1875. It is competent for the Legislature to regulate the mode of proof of incorporation.</p> <p>8. Same. Same. It is unlawful to sell liquor within four miles of an incorporated school during vacation.</p> <p>4. Same. Same. It is unlawful to sell liquor within four miles of an incorporated school, although the school is kept up with the common school fund of the district.</p>

<p>1. Wills. Probate. Executor. Appointment. Immediately following the entry of a will of record appears the following: “ The foregoing will was proven in open court September, 1876, by the oaths of Mont Hobs and Jacob McKeese, the subscribing witnesses, and ordered to be recorded. G. W. Wright was (qualified as executor.” Held, a sufficient record evidence of the probate of the will and grant of letters testa-mentar}' and qualification of executor.</p> <p>2. Same. Executor. Failure of clerk. The failure of the clerk to record letters testamentary as provided by law, after the regular probate of the will and grant and issuance of the letters and qualification of the executor will not vitiate his authority.</p>

<p>CONVEYANCE. Married women. Certificate. The certificate as required by-section 2076 oí the Code, as to acknowledgment of deed by married women is sufficient. The clerk is not required to state that he is personally acquainted with the married woman.</p>

<p>ChanceRY Pleadings and Practice. Guardian. Answer. A guardian, on being called to account in tlie chancery court, to be entitled to an allowance of expenditure greater than the income of his ward, must, in his answer, show such a state of facts as that a chancery court would have awarded such expenditure had application been made for sucli purpose.</p>

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

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

<p>1. Clerk. Duties. Where a settlement is .made by an executor with the clerk of the county court, and the money found due is ordered by the court to be paid into the office of the clerk, the money may be paid out by the clerk without an order of the court.</p> <p>2. Same. Sureties. If a clerk of the county court is rc-elected and qualified as his own successor, and has money belonging- to the office on hand which has not been demanded during- his first term of office, the sureties on his first bond will not be liable therefor.</p>

<p>AGREEMENT. Executory. Evans signed an instrument which binds the Lauderdales to perform certain services for said Evans during his lifetime, in consideration of which the said Evans, in the language of said instrument, “ agrees that at his death, the said T. S. and B. H. Lauderdale shall be the lawful heirs of all the lands he now owns. The said Henry Evans further agrees to give possession of, and transfer to the said T. S. and B. H. Lauderdale, all the right, title and interest that he may have in all the stock that he, the said Henry Evans, now owns, except three mules,” etc. Held, the instrument was an executory agreement and not a testamentary paper. The Lauder-dales were entitled to immediate possession of the personal property, and having- performed the services, were entitled to the lands at the death of the said Evans.</p>

<p>1. Chancery Pleadings AND Pbaotice. Appeal. A decree which merely orders an account without settling the principles on which the account shall he taken, or which while settling some of the principles expressly reserves others for further consideration, is not such a decree as will authorize an appeal, by leave of the court, under the Code, sec. 3157. It is otherwise if the decree purport to settle the principles, although it fail to settle them all.</p> <p>2. Same. Stating an account. A general reference to the master to take and state an account without settling the principles on which the account should be taken is improper, and if the facts are not before the court to enable the judge to settle the principles, he should declare the general right, and give time to the parties to take the necessary proof.</p> <p>3. Damages. Writ of injunction. The party who wrongfully sues out a writ of injunction is liable in damages to the opposite party for all the injury or loss which is the proximate result, and must be held to active diligence in the conduct of all proceedings under it.</p> <p>4. PARTNERS. Receiver. A partner, who enjoins his co-partner from collecting partnership assets is bound to see that a receiver is promptly appointed to take charge of the effects impounded by the writ, and to secure them by proper legal proceedings; he is liable for all loss occasioned by the neglect of the receiver to do his duty, whether in realizing assets, or in accounting for them after they are realized, and the fact that his adversary consents to the appointment of a particular person as receiver will not change the rule; but it will be otherwise as to any loss occasioned by the insolvency of a receiver, if the adversary has consented to his appointment without giving security.</p> <p>5. Same. Damages. Limitations. Where one partner has been enjoined from collecting partnership assets wrongfully, he will be entitled to recover on the injunction bond as damages his share of the solvent assets at the suing out of the injunction, which became insolvent, or barred by the statutes of limitation before the dissolution of the injunction.</p> <p>6. Limitation. Statute of. Tlie Code, see. 2756, which provides that when the commencement oí an action is stayed by injunction, the time of the continuance of the injunction is not to be counted, only applies between the parties to the writ, and does not prevent the running of the statute oí limitations in favor of third persons.</p>

<p>Chancery Pleadings and Practice. Demurrer. Appeal. An appeal will not lie from a decree sustaining a demurrer filed to a bill by one or more but not all of the defendants.</p>

<p>FROM CARTER.</p> <p>Appeal front the Chancery Court of Carter county. H. C. Smith, Ch.</p>

<p>PROM SULLIVAN.</p> <p>Appeal from tbe Chancery Court at Blountville. W. D. IÍAYNES, Sp. Ch.</p>

<p>Limitations. Guardian. Sureties. More than seven years after the death of a guardian, the ward still an infant, filed a bill against the administrator of the guardian and the sureties on guardian bond, for settlement. Held, the limitation of seven years prevented a decree against the estate of the deceased guardian, but that the sureties were liable, the ward being a minor.</p>

<p>Raieboads. Statutory precautions. The statutory precautions of stb- section 3 of sec. 1166 of the Code, have no application where a person is injured while traveling along a public road near to and parallel with the railroad.</p>

<p>1. Evidence. Parol. Priority of liens. Parol evidence is admissible to show an agreement between tlie contracting parties that one of two debts, both of which are secured by valid liens on the same land, shall be first paid out of the proceeds of the sale of the land.</p> <p>2. Witness. Vendee. Mortgage. Under a bill filed by the personal representative of a vendor of land against the vendee and the personal representative of a mortgagee of the vendee, to enforce the vendor’s lien for unpaid purchase money, where the conveyance by the vendor to the vendee is in fee acknowledging the receipt of the purchase money and the lien is only evidenced by the vendee’s note stipulating therefor, and the complainant claims a priority of satisfaction over the mortgagee by parol contract, the vendee is a competent witness to prove the agreement.</p>

<p>1. Bills AND Notes. Payable to clerk. Endorsement.. If a clei'k or commissioner of court, in lien of a cash payment for land sold, as required "by the decree of sale, take a note from the purchaser for the money, and sell the same before the ratification of his act for the full amount of the cash payment, and properly account for the proceeds of the sale, the purchaser and endorsee of the note will get a good title.</p> <p>2. Same. Same. Same. Although a clerk or commissionerhas no power, without authority, to sell or otherwise dispose of negotiable securities taken for property sold under decrees of court, and although no person can, as against the beneficial owners, acquire a good, title to such securities if the trust character appear upon their face, yet the endorsement by him would only be voidable, not void.</p>

<p>Pleadings and Pbactice. Bills and notes. Escrow. Sn/rety. It is not a good defense to an action by the payee against the makers of a promissory note, complete and perfect on its face, that the defendants are the sureties of the principal maker, and after signing the note entrusted it to him upon the condition that he procure the signature of a designated person as an additional surety, and that he had delivered the note to the payee without their knowledge or consent and without complying with the condition; it must be further averred and proved that the payee, before the delivery to him, had notice, express or constructive, of the condition.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court at Murfreesboro. A. S. Marks, Ch.</p>

<p>Bides and Notes. Payment. If money of the payor of a note come into the hands of the holder of the note the law would not presume that it was applied to the paymenl of the note, in the absence of any assent, express or implied, that it should be so applied.</p>

<p>EROM SMITH.</p> <p>Appeal in error from the Circuit Court of Smith county. H. W. McConnell; J.</p>

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

<p>EROM WILSON.</p> <p>Appeal in error from the Circuit Court of Wilson county. Robt. Cantrell, J.</p>

<p>Supbeme Court Practice. Appeal. Costs. The discretion of the chan cell or in the disposition of the costs of a cause will not, upon an appeal taken solely for that purpose, be revised by this court except in a clear case of abuse.</p>

<p>1. Oeeioeb’s Retubn. Cannot be collaterally attaclced. As a general rule, the parties to a suit, and their privies, cannot falsify the record thereof except in a direct proceeding to vacate and annul it; and the return of an officer, either of mesne or final process, as to all the facts which the officer had authority to certify, becomes a part of the record, and cannot be attacked collaterally by the parties.</p> <p>■ 2. Same. Return of execution. The return of an execution is the statement of the officer, certified to the court under the sanction of his official oath and responsibility, of what he has done touching the execution of the writ according to its commands and the requirements of the law.</p> <p>3. Same. Evidence. The officer cannot make his return upon an execution evidence of anything by way of excusing himself for not having performed the duty required, and such return, if evidence at all between the parties to the suit or their privies, would only be prima facie evidence.</p> <p>4. Same. Execution. Parol proof admissible. When. In a proceeding, therefore, by a surety tq supersede and quash an execution upon the ground that a former execution had been levied on sufficient personal property of the principal debtor to satisfy the judgment, parol proof is admissible, on the part of the surety, to contradict the officer’s return on the execution thus levied : “ Held up by order and consent of all parties.”</p>

<p>Contract. Construction. Burden of ‘proof. In a settlement between the attorneys of the plaintiffs and the defendants as sureties of a constable, by which the latter obtained time by giving their notes with security for the amdtint of the constable’s indebtedness to the plaintiffs for claims placed in his hands by the plaintiffs, on some or all of which judgments had been recovered by the plaintiffs against the constable, the attorneys acknowledged in writing that they had received the notes in satisfaction of the judgments obtained against the constable, and agreed that if, upon a future settlement with the sureties and the constable, it should appear that any just and proper .credits had been omitted, the same should be placed on the notes. The plaintiffs brought this suit on the notes, and the defendants pleaded in defense that the notes were given with the agreement that if, upon a future settlement, any just credits had been omitted, or any debts improperly charged, the same were to be allowed and credited, and averred that certain of the claims had no existence and had never been in the hands of the constable. Held, that the written agreement only stipulated for an allowance of omitted credits; that if it included an allowance for improper debits, the burden would 1)0 on the defendants to show that the items specified in the plea had no existence or had never been in the constable’s hands ; and that neither the receipt, nor the plea, nor the proof confined the charges to claims on which judgments had been recovered against the constable.</p>

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

<p>Conveyance. Signature of grantor. Evidence. A valid dead of conveyance of land may be executed in this State without the name of the grantor being subscribed thereto; as where the instrument is written by the grantor himself; his name being so inserted as to Control the grant, and there is proof of delivery to the grantee, or other evidence or circumstances to show that the signature was intended to be final, the question of intent being one of fact for the jury.</p>

<p>Criminal Law. Change of venue. Absence of prisoner. A change of venue may be granted in the absence of a prisoner, upon his application by petition, ivhen there are satisfactory reasons addressed to the sound discretion of the court why he is absent, provided he is within the , custody or control of the court.</p>

<p>Tax Sams. Land subject to. Liens for previous taxes. Under the system of revenue lavs of this State, a purchaser of land at a tax sale acquires only the interest of the owner of the land in whose name the land is, or ought to have heen assessed, subject to other then existing statutory liens for taxes previously assessed.</p>

<p>FROM MAUJRY.</p> <p>Appeal front the Chancery Court at Columbia. H. T. GORDON, Ch.</p>

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

<p>PROM WILSON.</p> <p>Appeal from tlie Chancery Court at Lebanon. W.. F. Cooper, Cb.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court at Murfreesboro. A. S. Marks, Ch.</p>

<p>PniNOirAL and Aoiont. Contract. Talley procured Johnson to make a proposition to Mrs. Johnson if slio would dismiss her appeal from a decree against her in favor of Talley, that he would pay her §500 and Johnson would pay her §500. She agreed to take,the S500 from Talley but refused to take, the §500 from Johnson. She dismissed her appeal and sued Talley for the §500. The court charged “that if Talley appointed Johnson as his agent lie would he bound by his acts if the agent followed his instructions, hut it Talley did not agree to the modification he would not be bound. If Talley proposed to pay §500, the proposition was an entirety and the acceptance as to the payment by Talley and rejection of payment by Johnson would not bind Talley unless lie agreed to such modification.” Held erroneous. Talley agreed to pay $500 and he was bound to pay. The stipulation that Johnson was to pay $500 was not a part of the consideration upon which he promised. His was an independent offer. It made no difference to him whether Mrs. Johnson accepted or rejected the oiler of payment by Johnson.</p>

<p>1. Tbust Deed. BUI to sell. Liability of trustee. If a creditor file a bill asking a sale by the court of property conveyed by deed of trust, the property is then in custodia legis. and the trustee cannot be held responsible unless for wilful misappropriation.</p> <p>2. Cb \ ncery Pieadisgs ami> Pe íx'tce. Bepc.t of derh and master. If a clerk -nd master report upon matters not referred to him, his report thereon is a nullity and no exception need be taken.</p>

<p>Lien. Livery stable keeper. A livery stable keeper does not lose his lien upon a horse for board by permitting the owner to ride the horse occasionally, and his lien is superior to the lien of an execution levied upon the horse while temporarily in the owner’s possession.</p>

<p>Criminal Law. Self-defense. To charge upon a trial for malicious stabbing that a person who may, by improper conduct, provoke an assault, cannot be allowed to rely upon the plea of self-defense, nor can he rely upon such defense if he willingly engage in a light, even if first assaulted and stricken, is error. Provoking words and gestures might be used from heat of blood, in a sudden quarrel, and a fight might be engaged in, during which a party might have a right ■ to defend himself from impending danger of death or great bodily harm.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court at Murfreesboro. A. S. Marks, Ch.</p>

<p>1. Guaiidian and W«D. It is the general rule that a guardian will not be allowed to spend more in the education and maintenance of his ward than the interest and profits of the ward’s estate, without the intervention of a court of equity.</p> <p>2. Samo. There are exceptions to this rule, and the guardian may exceed the income of his wards under strong circumstances of necessity, of which illustrations are given in the opinion.</p> <p>3. Same. Death of ward. Where one of the wards dies, the clerk and master in taking an account, after allowing the guardian for all proper and reasonable expenditures for, or on account of the deceased, will pass the balance of the estate to the surviving minor wards, and hold it for their benefit; thus increasing their annual income, without the intervention of an administration.</p> <p>4. Same. It is the duty of a guardian to keep the fences of the farm lands of his wards in repair, and to rebuild the same if destroyed by fire, or otherwise.</p> <p>5. Same. Improvements. If a guardian, rvilh a view to increase the annual rentals of his wards, put improvements, such as houses, upon their land, ho will be allowed to reimburse himself for the principal sum thus expended, without interest, out of the increased rentals, but not out of the corpus of the estate or the ordinary rentals, and in no case will he be allowed to hare a judgment for the same.</p> <p>6. Same. Interest. Guardians will be charged six per cent per annum interest, upon all moneys, unless it be shown that he received a greater sum, in which event he will be charged with the greater interest.</p> <p>7. Same. Onus of proof for expenditures. It is the duty of the guardian” to show to the satisfaction of the court the necessity and reasonable ness of each item of expenditure he has made for the ward, otherwise the item will be disallowed him in his settlement.</p>

<p>Criminal Law. Assault. A person who shoots a bal] from a loaded pistol through the door of a dwelling house intending to assault a particular individual as the supposed occupant, commits an assault upon the actual occupant although a different individual.</p>

<p>Pleadings and Practice. Principal and surely. To an action upon a note, it is not a good plea by the surety, that the principal was induced to give the security by the promise of the creditor to sell him another bill of goods on time, and that the principal induced him to become surety by making known the promise to him.</p>

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

<p>1. Distress WarbAHT. Privilege tax. Pleadings and practice. The action of a tax collector in issuing a distress 'warrant for the collection of a privilege tax is both judicial and ministerial, and the writs of certio-rari and supersedeas from the circuit court are the proper means by ■which to test the validity of the warrant, or the right to issue it in the particular case.</p> <p>'2. Same. Jurisdiction of circuit court. The jurisdiction to revise the action of the tax collector so far as it is judicial, belongs to the circuit court of the county in which the tax was assessed, but the warrant may be quashed, if void upon its face, by the circuit court of the county to which it is issued.</p> <p>3. Same. When void. A distress warrant issued by the clerk of the county court of one county to another county to collect a tax for exercising a privilege in his county without a license, is void if not authorized by statute, or if it commands the officer to levy a larger amount than the law allows, and on realty as well as personalty.</p> <p>4. Live Stock Dearer. Who is. To be a dealer of live slock within the act of 1881, ch. 149, sec. 4, in any county, a person must not only buy, but buy stock to sell as an avocation or business in that county.</p>

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

<p>Raiu&oads. Live stock Railroads are not bound as common carriers of' live stock and only relieved of liability by the act of God or the public enemy. As carriers of live stock they are bound to use due and proper care, and deliver in reasonable time.</p>

<p>FROM ROBERTSON.</p> <p>Appeal from the Chancery Court at Springfield. Geo. E. Seay, Ch.</p>

<p>Gun. Advancement. A father delivered to his daughter and her husband a slave without words of gift, and a year or two afterwards executed a deed of gift of the slave to the daughter to her separate use, which he proved and registered, hut never delivered, retaining possession until his death when it was found among his papers, the daughter and husband having no previous knowledge of it, and the slave was emancipated by the war. Held that there was no valid gift, and that the daughter could only be charged with the hire as an advancement.</p>

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

<p>Release. Will not discharge co-obligor. When. A release or compromise ' of what is claimed against one partner, will not operate as a release-of the other, if it is expressly agreed by the terms of the instrument it shall not have that effect.</p>

<p>1. OoNTRACT. Parol evidence. Bank. Deposit ticket. A deposit ticket given to a bank is not that character oí instrument which parol evidence may not be introduced to contradict or vary its terms, but is rather a memorandum.</p> <p>2. Same. Deposit ticket. Charge of court. To charge that a deposit ticket “ is a strong fact ” oí the amount deposited in the bank, is not equivalent to stating that it was prima fade evidence of the fact.</p>

<p>Ckiminax. Law. Burgkmj. Upon an indictment for burglary charging the breaking of and entry into the mansion house, a conviction is proper, the evidence showing that the house broken and entered was a smoke-house. Mansion or dwell-inghouse includes all such houses as are appurtenant thereto, as kitchen, laundry, smoke-house and dairy.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from the Chancery Court at Clarksville-C. W. Tyler, I., by interchange.</p>

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

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

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

<p>1. Co-Admenistrators. Cum testamento annexo. Liability. While co-administrators with will annexed are jointly and severally liable to a legatee for payment of legacies, yet on bill filed by the legatee, a court of equity will hold the one actually receiving the assets primarily liable, before the other who has not received them — the one receiving not being shown insolvent nor the other to have joined in any misappropriation.</p> <p>2. Sureties. Guardian.. Sureties of a guardian are entitled to be sub-rogated to all the remedies of the ward against their principal, even . before payment, where their principal is insolvent, but they stand no higher than the ward, and must take such remedies precisely as the ward had taken.</p> <p>8. Executor. Payment to himself as yuardian Where a party is executor, after the period when he should by law havesettled his executorship is appointed guardian of minors, to whom his testator was liable for a legacy, and as administrator of another party with will annexed, charges himself and credits himself as executor, with the amount going to his wards, and charges himself with the amount in his hands in his report of ward’s estate to the county court, this is sufficient to charge his sureties on his guardian bond with the fund, notwithstanding- there was no actual transfer of any money, this being impossible, as the party bound to pay, was the party who was to receive.</p> <p>4. Sureties. Guardian. Sureties of such guardian have no rights as against the administrator with the will annexed, surviving the executor of his co-administrator, who had the fund, being the guardian of the legatees, and having accounted for the fund, as above stated.</p>

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

<p>1. Trusts. Special or active. Slutute of Uses. Special or active trusts ■which require some act to be done or some duty to be performed, even if the act or duty be for the benefit of the cestui qua trust, are not within the Statute of Uses, nor executed in the beneficiary, in this State, whether the statute be in force or not.</p> <p>2. Same. Sights of creditors. A judgment creditor whose execution has been returned unsatisfied, may by bill in chancery subject to the satisfaction of his debt the life estate of the cestui que trust in land, held under a special or active trust created in favor of the debtor by a third person, by will duly recorded or deed duly registered.</p> <p>3. Case th Judgment. Beal estate was devised by a mother, by will duly recorded, to trustees in trust, to permit her son, during life, to receive from the rents and profits, for his maintenance, such sums of money as he may deem proper, in such manner, however, as that the same shall not be liable for his debts, or for contracts made by him; and to permit him to exorcise such control over the realty, in the renting thereof for one year at a time, as he may deem proper; in such manner, however, that the same shall not be liable for his debts and contracts; and in trust, alter the death of the son, to convey the property to any child of the son then living, and if he die without such issue, then to convey to the heirs-at-law of the devisor. Held, that the life estate of the son in the land could be subjected by bill in chancery to the claims of his creditors. *</p>

<p>EROM WILSON.</p> <p>Appeal in error from the Circuit Court of Wilson -county. Robt. Caste ell, J.</p>

<p>FROM ROBERTSON.</p> <p>Appeal from the Chancery Court at Springfield. B.. J. Tarver, Ch.</p>

<p>OiíiminaXj Law. Indictment. Prosecutor. After a trial on the merits, the objection comes too late that the indictment was found without a prosecutor being marked thereon, and before the order of court directing the attorney-general to prosecute the indictment officially.</p>

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

<p>1. Wills. Executor. Legatees estopped. When. A testator, after making provision by his will for his wife, and equally dividing the residue of his estate among his children who were required to account for advancements, appointed an executor, and directed him to act without going into court except to have the will probated, and without giving bond or qualifying as usual. A few days after the testator’s death, an agreement was drawn up and signed by the widow and ten of the twelve living children, in which the signers bound themselves to abide by the provisions of the will, and agreed to hold the acts of the executor under it valid without his going into court •to give bond and qualify. The executor proceeded to act accordingly, for seven years, making settlements with the legatees, and payments to them of their share of the assets realized. Held, upon bill filed by seven of the children, all of whom except one had signed the agreement, to hold the executor to account as executor de son tort, that the complainants were estopped to object to what had been properly done and that the executor could only be held to account as a trustee by agreement for the legatees, with the usual powers of an executor.</p> <p>2. Same. Evidence. The bill having alleged that the will was duly probated, and the executor having admitted the fact in his answer, evidence as between the parties was- inadmissible to show the contrary.</p> <p>3. Same. Descent. The will divided the testator’s property equally amongst his children naming them, two of them being- at that time dead to the knowledge of the testator, the descendants of these deceased children took the shares of their parents under the Code, section 2196.</p> <p>4. Same. Conveyance of land by testator to Ms children. Dien. DiabiMty of conveyee. The testator conveyed land by deed to some of his children, taking from each child a note for so much of the purchase money as ho supposed would be the share of the child in his estate, making the note payable at his death, or sooner if the child undertook to sell the land, retaining a lien on the face of the deed for the payment of the purchase money. Held, that such child was liable on the note for any excess over his equal share of the estate, if the share proved to be less than the amount of the note.</p>

<p>1. Pt.tsadtngs and Practice. Counts in declaration. Counts in assumpsit^ tort, and upon the facts of the case may be united in a declaration.</p> <p>2. Damages, remote. Where a fence along the line of a railway has been removed, so that live stock stray upon the road, and are killed by passing trains, such kiiling is not the direct consequence of the removal of the fence.</p>

<p>1. Corporations. Service of process. Stockholders are distinct parties iron the corporation, and service of process on them does not make the corporation a party.</p> <p>2. Same. Non-user of frcmcMse. The non-user of its franchises by a corporation -will not alone work a dissolution or affect the title and right of its property.</p>

<p>VENDOR’S Lein. Renewal of note. Including interest. A note was executed lor purchase money of land and lien retained in deed. The note was afterwards renewed payable to assignee, including interest due, and after renewal bearing ten per cent and haviug personal security not on original note. Held, the renewal note, together with all accumulated interest, was purchase money, and a lien on the land.</p>

<p>CoMEROJirsE. Suit for benefit of widow land children may be compromised by widow. Where suit is brought by the widow of deceased who received personal injury resulting in death, she has the right to compromise or settle the suit as she may see fit without the consent of the guardian of the child of the deceased, and against the consent of her attorneys who managed the caáe.</p>

<p>1. MARRIED Women. Contract. Mechanic’s lien. A mechanic underwritten contract with husband and wife erected a building on land, the wife’s general estate, and filed his bill to enforce his lien. Meld,, her contract for building the house was void, and her promise to pay for it equally a nullity, and that no lien could arise from these acts by which her property could be in any way affected. Contracts which a party has no power to make, cannot be the basis of legal obligation. The liability of the land to the lien would seem to be met by the the fact, that she could only dispose of it by conveyance as required by law. While a lien is not a right to land, nor interest in land, but a charge fixed upon it by law or contract, still it would seem an incongruity to hold that the wife could indirectly contract for a result, by which her land might be conveyed or disposed, of against her will . when she could not have done so directly except under prescribed forms.</p> <p>2. Judicial Sale. Effect of setting aside decree of sale. Rights of complainant and strangers as purchasers. A complainant in a suit in chancery purchases at a sale ordered by the court under a decree obtained by himself, and sale confirmed. After this defendants were permitted to come in and make defense, which was successful. Meld that complainant purchaser could not retain the title thus obtained under section 4383 of the Code. He buys under a proceeding to which he is a party, and knows he may have his proceeding contested, set aside and annulled. The result would be different as to a stranger to the proceedings.</p>

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

<p>Bank; of Tennessee. New Issue. Notes of the Bank of Tennessee issued by the Bank subsequent to May 6, 1861, and not proven to be issued in aid of the rebellion, must be received in payment of all debts due the State.</p>

<p>Tax on Litigation. Unsuccessful party. The t.ix laid by statute on a suit is chargeable to the unsuccessful party, although the suit be compromised before the return day of the writ, and dismissed.</p>

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

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

<p>Taxing Distbict. Incorporated towns. Sale of whisky. A taxing district of the second class, organized under the act of 1881, ch. 127, is an incorporated town within the meaning of the act of 1877, ch. 23, and a sale of an intoxicating beverage in the district within four miles of an incorporated institution of learning, falls within the exception of the second section of that act.</p>

<p>Will. Life estate. A wife takes only a life estate under the following clause of her husband’s will:' “I give and bequeath to my beloved wife all my estate, real, personal and mixed, to her use and benefit for and during her natural life, and at her death whatever may be left after paying all my debts, to be equally divided between our children.”</p>

<p>1. Turnpike Company. Insolvency. Chancery may impound tolls. Chancery may impound the tolls of a turnpike company, and sell its entire property and franchises for the benefit of creditors, who will share equally when the company has become insolvent.</p> <p>2. Same. Same. Franchises cannot be leaded on. Neither the franchises nor the roadway of a turnpike ■ company can be levied on and sold by execution, nor perhaps any property essential to the exercise of the franchises of the company.</p>

<p>' Constitutional Law. Imprisonment for debt. Fines and penalties. Worh-house. The constitutional provision that “the Legislature shall pass no law authorizing imprisonment for debt in civil cases,” has no reference to the enforcement of the collection of fines, penalties and costs from defendants convicted of the violation of ordinances of a municipal corporation. The defendant so convicted shall be ordered to th.e work-house to work out said fines, penalties and costs if he fail to secure the same.</p>

<p>1. ObimiNAIz Law. Indictment. Vtrdict. On the trial of the defendant under an indictment containing two counts, both good, one for larceny and the other for receiving stolen goods, there was evidence to sustain the first count hut no evidence to sustain the second count, and the charge of the judge was correct on the former but erroneous on the latter count. Held, that a general verdict was properly applied to the first count, and a judgment thereon valid.</p> <p>'2. Same. Uvidence. Witness who aided the defendant without knowledge of crime. The rule in relation to the unsupported testimony of an accomplice does not apply to the evidence of a -witness, who, although present at the commission of the offense, and aiding in it under the employment of the defendant, had no suspicion of the true nature of the transaction.</p> <p>3. Same. Appointment of Attorney-General ex officio prosecutor. The presumption is in favor of the regularity of the proceedings of a court of general jurisdiction; and, therefore, where the minutes of the court show the return of the grand jury into court* with an indictment and an order of court directing the attorney-general to prosecute ex officio, and a subsequent return of the grand jury with the indictment properly endorsed, it will he presumed that the jury considered of the indictment after the order.</p> <p>4. Same. New trial. Affidavits Affidavits are not sufficient to obtain a new trial, which state no material fact which might not have been had at the former trial, or state facts only going to the credit of witnesses examined, or throwing doubt upon the correctness of their recollection as to an incidental circumstance.</p>

<p>1. Tax Sames. Record not to show preliminary proceedings. The statutes relating to and regulating the sale of land for taxes do not require the record to show the preliminary proceedings necessary to valid taxation, as, for example, that all the property in the county was assessed, that the assessors were elected and qualified, etc.</p> <p>2. Same. Description of property. A substantial compliance with the requirements of the statutes in the description of the property is sufficient in the assessment book and the report of sale.</p> <p>3. Same. Penalties. The Legislature has the power to impose a penalty for the non-payment of taxes to be enforced with the taxes, and the penalty of 12 per cent, imposed by the act of 1873, 'ch. 118, sec. 61 was not repealed before the assessment of 1875, and the sale of lands for the unpaid taxes of that year.</p> <p>4. Same. Sale on day required by law. If the report of the tax collector and the judgment of the circuit court agree that the land in controversy was sold on the proper day, a discrepancy between them on this point as to other lands will not avoid the sale.</p> <p>5. Same. Advertisement Under the act of 1873, ch. 118, sec. 62, it was not necessary that the advertisement of the sale of land for taxes should show the place of sale, the advertisement being in accordance with the form prescribed by the statute.</p> <p>- 6. Same. Beginning corner. It was not necessary for the lax collector in offering the land for sale to indicate to the bidders the beginning corner of the lot or tract from which the least quantity was to be run off, if the bidder offered to pay the taxes for less than the whole lot or tract.</p>

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

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

<p>ExeottoR. Sale of property of testator. Purchaser. Fraud. If a person-concerts with an executor, by obtaining testator’s effects at a nominal price, such fraudulent concert will make the seeming purchaser liable for the full value of thé property received. Fraud vitiates the transaction and the attempt to transfer the property is ineffectual and void. But if there be no fraud on -the part of the purchaser, his title becomes complete and it is not incumbent on him to see that the money paid ivas properly applied.</p>

<p>Appeal. From order granting new trial. A bill of exceptions should be taken to the order granting a new trial under the act of 1878, eh. 106, but a prayer for appeal at that time will not bring up the case after final judgment. The appeal should be prayed for and granted after final judgment.</p>

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

<p>1. Contempt. Defendant not a competent witness. In answer to a bench warrant for contempt, the defendant by way of purging himself of contempt, may file his affidavit upon the return of the warrant. But the proceeding being in the nature of a criminal prosecution the defendant is not competent to testify in his own behalf.</p> <p>2. Same. Illegal interference with grand jury. The grand jury is a constitutional part of the court, and any illegal or corrupt interference with them in the discharge of their duties, is a contempt of court</p>

<p>Costs. Execution. Eetum of nulla bona. Under tlie Code, section 5585, which requires the State to pay certain costs when the defendant has been convicted, but the execution issued upon the judgment has been returned nulla bona, the court cannot order the costs to be paid by the State without such a return, upon the admission of the attorney-general that the defendant is insolvent.</p>

<p>FROM WILSON.</p> <p>Appeal from the Chancery Court at Lebanon. H. H. Lurton, Ch.</p>

<p>Ejectment. Homestead, Sale by sheriff without setting apart homestead. In. an action of ejectment it is no defense to a sheriff’s deed that the land was sold by the sheriff under A fa. without first laying off homestead</p>

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

<p>Pleadings and Practice. Mandamus. Teachers of common schools. A teaclier of common schools cannot bring a suit in the name of a county for liis use against the Comptroller. The Comptroller apportions the funds for common schools among the counties and the county authorities pay it out according to prescribed regulations. If the Comptroller fails to apportion it as required by law, the teacher cannot, by mandamus, compel him to do so.</p>

<p>Pleadings and PbactIce. New trial. Not more than wo new trials, can be granted to the same party in the same cause, unless for error in the charge of the court, or -in admission or rejection of testimony or for misconduct of the jury or the like. The refusal of the jury to regard the charge of the court is not such misbehavior or misconduct on the part of the jury as will authorize the judge to grant more than, two new trials.</p>

<p>CsiMTHAli Law. Continuance. The prisoner was arrested for larceny and confined in jail a few days before trial. Upon trial he moved for a continuance because of the absence of witnesses who were sub-pcened the day before, by whom he expected to prove that he bought the property alleged to have been stolen. Motion overruled. Upon motion for now trial witnesses made affidavit that they witnessed the purchase of the property by defendant. Held, that the court should have continued the cause. The testimony of those witnesses was material, and he was prejudiced by failure to obtain it.</p>

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

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

<p>FROM DEKALB.</p> <p>Appeal from the Chancery Court at Smithville., D. L. Snodgrass, Special Chancellor.</p>

<p>FROM COFFEE.</p> <p>Appeal in error from the Circuit Court of Coffee •county. J. J. Williams, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Law Court of Nashville. •J. C. Guild, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court at Nashville.. E. II. Ewing, Sp. Ch.</p>

<p>CBisimAi, Law. Verdict not wan-anted by law. Appeal by State. Where the verdict in a criminal case is not warranted by law, no valid judgment can he rendered on it, as where the jury assess the punishment at a fine when the law prescribes both fine and imprisonment for the particular offense, and the judgment will be reversed upon appeal by the State, and the cause remanded for a new trial.</p>

<p>FROM FRANKLIN.</p> <p>Appeal in error from the Circuit Court of Frank» lin county. J. J. Williams, J.</p>

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

<p>' ORiMOTAli Law. If a horse he taken with intent to deprive the owner o the property it is larceny, though the horse may not he sold or disposed of by the defendant.</p>

<p>PROM MARSHALL.</p> <p>Appeal from the Chancery Court of Marshall county. W. S. Fleming, Ch.</p>

<p>ADMINISTRATOR. Inventory. An administrator charged himself in his, inventory "with certain notes given for sale of negroes by him. The sale being without authority, the inventory is not conclusive to charge him.</p>

<p>Pi/eadinos AND Pjiacticb. Plea in abatement. A plea in abatement filed’ after a general continuance, will be stricken out on motion of the attorney-general.</p>

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

<p>Statute of Limitation. Suit by State. The statute of limitation of two-years and six months in favor of executors and administrators, do not apply to actions brought by the State.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal in error from the Criminal Court of Montgomery county. C. W. Tyler, Sp. J.</p>

<p>PROM LINCOLN.</p> <p>. Appeal from the Chancery Court at Fayetteville. J. W. Burton, Ch. '</p>

<p>Pleadings and Practice. Petition for certiorari. What must he stated. A petition for certiorari and supersedeas to quasi an execution must state all tie defenses relied on. Tie p'lea of tie statute of limitations cannot be relied on if not set forti in tie petition.</p>

<p>1. Masteb AND Sebyastt. The master is liable for injuries sustained by one servant through the negligence of another, who is his immediate superior.</p> <p>2. Same. Fellow-servant. Engineer and brakeman. The engineer is not the-superior, but the fellow-servant, of the brakeman in their relations as members of the crew of a railroad train.</p> <p>3. Same. Same. Same. The relation of superior -and inferior would exist between them where the brakeman is in fact acting under the orders of the engineer.</p>

<p>PROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson •county. jST. Baxter, J.</p>