Volume 79 — Tennessee Reports

<p>FROM CROCKETT.</p> <p>Appeal in error from the Circuit Court of Crockett county. J. T. Carthel, J.</p>

<p>FROM CROCKETT.</p> <p>Appeal in error from the Circuit Court of Crockett county. J. T. Carti-iel, J.</p>

<p>erom lauderdale.</p> <p>Appeal in error from the Circuit Court of Lauder-dale county. T. J. FlippiN, J.</p>

<p>PROM TIPTON.</p> <p>Appeal in error from the Circuit Court of Tipton eounty. T. J. Flippin, J.</p>

<p>Sale oe Pboperty oe Persons under Disability. Witnesses. Upon application for the sale of property of persons under disability, a witness who testified that he had agreed to purchase at a designated sum, may purchase at the sale of such property and the sale will not be void under sec. 3339 of Code.</p>

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

<p>1. County WARRANTS. Pleadings and practice. Supreme Court practice,.. Whether county warrants are instruments of such a character that suits may be predicated upon them is not determined in this case. No such objection was raised in the court below, and such objection cannot be made now in the Supreme Court. The same is true as to the objection that county warrants are not negotiable, andsuit cannot be maintained in name of assigñee.</p> <p>2. Same. Suits against county.. A county may be sued upon a demand although the plaintiff may not have followed and exhausted all the modes prescribed by sec. 427 et sequente of the Code for obtaining money from the county treasury.</p> <p>3. Same. Interest. These warrants are not negotiable and do not bear interest, but the jury may allow interest by way of damages, if they see proper.</p>

<p>'Constitutional Law. Removal af county seats. Under the Constitution of 1870, art. 10, sec. 4, which forbids the seat of justice of any county to be removed without the concurrence of two-thirds of the qualified voters of the county, the removal from the old' site to a new place cannot be made except by the required vote, and therefore the act of 1881, ch. 98, which authorizes the removal by a majority of the votes, is unconstitutional.</p>

<p>Ceiminal Law. Proof of name of deceased. The failure of the witnesses, on a trial for the murder of a particular individual, to give the full name of that person as set out in the hill of indictment, is not material after verdict, if the name or description as given by the witness corresponds as far as it goes with the name mentioned in the indictment, it sufficiently appearing that there was no contest over the name or identity of the person.</p>

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

<p>Taxes, Municipal. Statute of limitations. Presumption of payment. The general statute of limitations is no defense to the enforcement of its “ taxes by a municipal corporation, nor will the lapse of time or laches of the city officials prevent the recovery of a tax properly assessed, if clearly' shown to be unpaid, but the lapse of time, in connection with other circumstances, may raise a presumption of fact that the tax has been paid, which will establish the defense of payment unless rebutted.</p>

<p>FROM CARROLL.</p> <p>Appeal in error from the Circuit Court of Carroll county. J. T. Carthel, J.</p>

<p>FROM DYER.</p> <p>Appeal in error from the Circuit Court of Dyer county. J. T. Cabthel, J.</p>

<p>Lien. Execution.' Ids pendens. Lost, when. The lien on land of the levy of a justice’s execution, and the Us pendens created by the filing of the papers in the circuit court for the condemnation of the land, the order of condemnation, and the supersedeas of the venditioni exponas thereon by the debtor, will be lost by a failure to prosecute the suit for nearly five years, as against an innocent purchaser for value and without notice, who bought the land from the debtor about three years and six months after the commencement of the period of neglect, and the greater part of whose purchase money had been used to pay off other encumbrances.</p>

<p>•Damages. Appeal bond. Payment of part of judgment. Tlie damages stipulated for in an appeal bond are the damages in consequence of the appeal, being the interest at the rate of six per cent, per annum, upon the amount of the judgment of the lower court from the date of its rendition to the recovery in the appellate court, and any payment made on the debt from the last judgment will be applied by law to the satisfaction of such damages in the first instance.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from the Circuit Coul’t of Shelby county. J. O. Pierce, J.</p>

<p>Evidence. Pedigree. Proved by reputation or hearsay. Time of birth, as a matter of pedigree, may be proved by reputation or hearsay, without producing the family register, if one exist.</p>

<p>Railroad. Contract. Shipping stock A railroad company shipiied a car of stock and the contract to ship provides: “And it is further agreed, that in case of accident to or delay of time from'any cause whatever, the owners or shapers are to feed, water and take • proper care of stock.” The„circuit judge charged that in all cases of unavoidable delay, the railroad was by the contract, obligated to feed and water the stock. This was error. The Iterms of the contract Jonly provide that the owner or shipper shall feed and water the stock in certain defined emergencies, and does not undertake_that,_in all other case* . the carrier shall do so.</p>

<p>FROM DYER.</p> <p>Appeal in error from the Circuit Court of Dyer county. H. L. W. TtjrNEY, Spl. J.</p>

<p>FROM GIBSON.</p> <p>Appeal in error from tbe Law Court at Humboldt. J. T. Carthel¿ J.</p>

<p>Chancery Pleadings and Practice. Sale of minor’s land. Guardian ad litem A guardian ad litem, appointed in a pending suit by a third person against an infant, lias no authority by filing his answer as across-bill to obtain the sanction of the court to an unauthorized sale of the infant’s realty.</p>

<p>Cbiminai, Law. Forfeiture against witnesses. Forfeiture may be taken against a witness regularly subpoenaed although it does not affirmatively appear that the default of the witness was willful.</p>

<p>1. Damages. Railroads. Evidence. In an action against a railroad company, as a common carrier, for damages to horses in transit, the measure of damages ■would be the value of the horses killed and the depreciation in the value of those injured, at the place of delivery, but direct testimony by the opinion of witnesses of that value or depreciation is not indispensable; it is sufficient if there is proof of these facts in the market of a neighboring State connected with the place by railroad, and a full description of the animals and . their qualities, and of the character of the injuries.</p> <p>SAME. Same. Same. Charge of court. Under such circumstances, it is not error to charge the jury that they may fix the amount of the plaintiff’s damages-, if they find for him, from the age and qualities of the stock, and the nature of the injuries as shown by the proof, although no witness has given an opinion as to the value of the stock or the amount of damages at the place of delivery.</p>

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

<p>'Constitutional Law. Retrospective laws. Damages. The act of the Legislature of March 26, 1883, which provides that section 2291 et seq. of the Code be so amended that damages resulting to parties for whose use and benefit the right of action survives, from the death consequent upon the injuries received, shall be recoverable in such action, does not apply to suits where the cause of action arose prior to the passage of the act. The act constitutes a new or additional cause of action. The rights of the parties were fixed under the law as it existed at the time of the injury, and thelaw which undertook to change those rights would be retrospective and void.</p>

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

<p>Pleadings and Practice. Severance. Where a right to a joint action is given by statute, the courts have no discretion to grant a severance.</p>

<p>CONVEYANCE. Married women. Certificate. The certificate of acknowledgment of a married woman to a conveyance which omits “ and for the purposes therein expressed,” is defective and vitiates the validity of the conveyance.</p>

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

<p>GARNISHMENT. Deputy sheriff. Fees or salary. The salary of a deputy sheriff who is paid a compensation for his services instead of fees allowed by law, is not subject to garnishment. His services are necessary in carrying on the machinery of government, and the exemption is on the grounds of public policy.</p>

<p>Chanceby Court Jubisdiction. Guardian and Ward. Nonresidents. The chancery court of the district in which a guardian has been appointed for infants, has jurisdiction upon the application of the guardian, to break into the principal of the estate of the infants for their benefit, where the estate whether consisting of realty or personalty, is placed under the control of the court, although the guardian and wards are non-residents of the State, and the latter made defendants by publication.</p>

<p>EXEMPTION. Homestead. Improvements, Mechanic’s Ken. Heal estate in- ' the occupancy of the head of a family is not exempt from sale for the satisfaction of a debt contracted for improvement made thereon, although the creditor may have lost his lien as a mechanic for the debt.</p>

<p>FROM HAYWOOD.</p> <p>Appeal from the Chancery Court at . Brownsville. H. J. LIVINGSTON, Ch.</p>

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

<p>1. Chancery Pleadings and Practice. Sale of real estate. Value. The only test of the value of property at a forced sale is what it "will bring.</p> <p>2. Same. Same. Title. When the sale of property is forced, the court has no power to give a bidder assurance of a good title, and proffer to bid on the terms of such assurance cannot be entertained.</p> <p>3. Same. Same. Olerh a/nd master. Terms of sale. The master, in execut- . ing an order of sale, may demand an immediate compliance by a purchaser with the terms of sale, when he has reason to doubt the good faith of a bidder. *</p> <p>4. Same. Same. Biddings re-opened. Advance bid. After the biddings at a master’s sale have once been opened and a public resale had, the court may well, upon another offer of an advance of ten per cent, confirm the sale to the reported bidder with his consent at the new advance.</p>

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

<p>FROM GIBSON.</p> <p>Appeal in error from, the Law Court at Humboldt. J. T. Carthel, J.</p>

<p>1. Pleadings and Pbactice. Judgments and decrees. Collateral attack JSv~ idence< It is the settled law of this State that domestic judgments of courts of -general jurisdiction cannot he collaterally attacked by evidence outside of the record itself.</p> <p>2. Same. Same. Same. A recital in a domestic judgment or decree of a court of general jurisdiction that the original process was served on the defendant, or that publication, when allowed in lieu of service of process, was made, or that the party appeared by attorney or by answer, is conclusive when the record is collaterally put in issue, unless the recital is positively contradicted by the record itself.</p> <p>3. Same. Same. Lost process. JSvide7i.ce. If the original process be lost, the testimony of the party cannot be permitted to avail against a recital in the judgment or decree of -the fact of -service, even in a direct attack, although the rule docket is silent on the subject.</p>

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

<p>Pleadings and Practice. Trial by jury. Amendment. Pleadings which fail to ask for trial by jury cannot be amended by asking for a jury at a subsequent term, and it is error to allow the amendment. The failure to demand a jury by either party is conclusively held to be an agreement to try without a jury.</p>

<p>eroM lauderdale.</p> <p>Appeal from the Chancery Court at Ripley. H. J. LivxngstoN, Ch. ’</p>

<p>Grim on Exempt Pboperty. To defeat creditors. Administrator. A gift of personal property exempt from execution to take effect at the death of the donor, the sole object of which is to defraud creditors, when the exemption has ceased to exist, may be set aside by the administrator of the donor, for the benefit of creditors.</p>

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

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

<p>1. Stobeme Court Peactioe. Motion to quash. Tlie Supreme Court will not notice a motion to quash, a warrant which fails to state any ground for the motion.</p> <p>2. Pleadings and Peactioe. Misnomer. A corporation may be known, by several names, and can only take advantage of a misnomer by a plea in abatement, and no defense on this ground is admissible after a step in the cause recognizing the identity of the corporation sued with the corporation defending.</p> <p>8. BaileoADS. Obstruction. To constitute an obstruction within the, meaning of the statute prescribing the duties of a railroad company when a person, animal or other obstruction appears upon the road, the animal must be in a position to be struck or directly injured by the train while moving on the rails.</p> <p>4. Same. Same. When statute does not apply. The statute does not apply when the animal appears on some other part of the company’s right of way, and the duty of the company in such a case is regulated by-the principles of the common law.</p> <p>5. Same. Same. Same. Where an animal was on the company’s right of way, six or eight feet from the end of the cross ties of the track, with its head turned from the road, andan unobstructed egress in that direction, it was error to charge the jury that it was the duty of the lookout to watch over the entire right of way, and whenever animals on any part of it are seen, to sound the whistle to frighten them away.</p>

<p>EROM GIBSON.</p> <p>Appeal from the Chau eery Court at Trenton, John SOMERS, Ch.</p>

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

<p>Escnow. Promissory note. A promissory note may be delivered by tbe maker to tbe payee upon condition, or as an escrow.</p>

<p>1. Homestead. Mortgage. A wife, who joins her husband in conveying the land on which they have a homestead right of the value prescribed by law, cannot afterwards claim a homestead in another part of the same tract of land previously mortgaged by the husband.</p> <p>2. Chanceby Pleadings and Pjractice. Interlocutory order. Appeal. Supersedeas. An order appointing a receiver for the purpose of taking possession of property in litigation, and managing it for the interest of all parties, is in its very nature interlocutory, no matter at what stage of the case it may be made, can neither be appealed from directly nor superseded under the special provisions of the Code authorizing the supersedeas of certain interlocutory orders. But such an order is brought up by a general appeal on final hearing, and will remain in force if executed, and may be executed by this court, upon application, either directly, or by procedendo to the court below.</p> <p>3. Bond. To what extent not binding. The provisions of a bond executed in the progress of a cause beyond the requirements of the law or the fiat of the judge are not binding.</p>

<p>1. Pleadings and Practice Bond, attachment. The bond which, is required upon suing out an attachment, and which the statute directs shall be made payable to the defendant, will enure to the benefit of each and all of several defendants who may be aggrieved, and among others to the benefit of the defendant whose property is attached as the property of the debtor, although the bond be made payable to one defendant named “ et al</p> <p>2. Same. Berne. If one defendant alone is aggrieved, he may sue in his own name avowing in his declaration that the other defendants had no interest in the damages claimed, or in the name of all of the defendants for his use, and the suit may be continued in his own name if the other plaintiffs die, or if, at the instance of his adversary, the trial court compels him so to do.</p> <p>3. Same. Same. TJnder attachment bond which follows the words of the statute, the obligors are liable to each defend ant severally if each have a several interest, and the surety for each of his principals severally as well as jointly.</p> <p>4. Same. Attachment. Penalty of bond. An attachment sued out under the Code, sec. 4283, et seq., is not a jurisdictional writ, and abides the event of the suit unless sooner discharged by the court. But such an attachment ought not to be discharged in toio for the failure toffn-crease the penalty of the bond, but the levy should be reduced so as to be within the penalty.</p> <p>5. Sabie. Attachment bond. State not required to give. The State cannot be required to give an attachment bond, and no liability can be created on the part of persons purporting to execute a bond as. sureites.</p> <p>6. Same. Same. Damages. Where an attachment bill has been filed by a creditor against his debtor, to reach property alleged to be held by a third person under a title fraudulent as to the creditor, the question whether the attachment was wrongfully sued out as to such person is not tested by a discharge of the attachment for the want of an increased bond, or by the dismissal of the suit at the cost of the defendants because the creditor’s debt had been paid, or satisfied even by a compromise. In such a case, the question may be made in a suit for the damages occasioned by the wrongful suing out of the attachment.</p> <p>7. Same. Same. Exemplary damages. In a suit on an attachment bond against a surety, the plaintiff is not entitled to recover exemplary-damages unless the principal is fixed with malice, or a wrongful abuse of the process.</p> <p>8. Same. Attachment. Damages. Surety on bond. Since the adoption of the Code a suit for damages against a creditor for the'wrongful suing out of an attachment is an action on the facts of the case, and the measure of damages is precisely the same as in a suit upon the attachment bond, malice and a want of probable cause going in aggravation, and a judgment in such a case on the merits in favor of the defendant is conclusive between the parties, and will enure to the benefit of the surety, and may be relied on as res adjudícala, under the general issue in an action upon the bond.</p>

<p>' Chancery Jurisdiction. Ejectment. By the act of 1877, ch. 97, the chancery court has the same jurisdiction as the circuit court in all cases of ejectment for land. The fact that the land is of less value than fifty dollars does not deprive the chancery court of jurisdiction.</p>

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

<p>1. EmployeR and Empdoyee. Contract. An agreement to give a part of the crop in consideration of the labor of tillage is as much a hiring as an undertaking to pay in money.</p> <p>2. Same. Damages. Upon a suit for decoying away hands under such. an agreement, in estimating the damages it will he competent to look to everything resulting from the loss of labor such as the reasonable cost of procuring other labor; the damage to crops from delay in planting or failure to work them, and such kindred damages aa plaintiff by reasonable .diligence could not have prevented.</p>

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

<p>1. Bailment. Usage of trade. Evidence. It is competent to show the usage of trade to qualify a bailee’s liability.</p> <p>2. Same. Bailee. Liability. A person to whom cotton is delivered to be ginned will be held, as bailee, to ordinary diligence only.</p>

<p>PROM EVER.</p> <p>Appeal in error from the Circuit Court of Dyer county. J. T. Garthel, J.</p>

<p>Limitations, Statute oe. Actions. An action against a railroad company for damages for failure to deliver cotton to commission merchant as per contract is not barred within six years.</p>

<p>Employer AND Employee. Damages. Mrs. Neville sued Morris for-keeping from her service certain employees with whom she had contracted for service. Upon trial, it was not error in the trial judge to refuse to charge “ that if before Morris employed the laborers, or any pf them, they had voluntarily broken their contract with plaintiff^ with or without cause, then they would not be under contract with her, or in her employ, and Morris, in hiring them, would not be liable to plaintiff for damages.”</p>

<p>Pleadings and Practice. Replevin. Receiver. A creditor obtained a judgment in circuit court against Bryant & Newhouse, and execution was issued thereon. The goods oí Bryant & Newhouse were then attached by bill in chancery court, and a receiver appointed.- The officer levied the execution upon the goods, and the receiver brought an action oí replevin in circuit court to recover possession. B.eld,: That under the facts of this case, the dignity of the chancery court, within the same jurisdiction, cannot be asserted by an action of re-plevin in a common law court, against a party having in fact a superior right to the possession of the property.</p>

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

<p>PROM GIBSON.</p> <p>Appeal in error from the Law Court at Humboldt» •J. T. Carthel, J.</p>

<p>Landlord and Tenant. Purchaser of tenant. Lien. A suit by landlord may be maintained against a purchaser of the crop, or any part thereof, from the tenant before any recovery of judgment against the tenant or before the rent is due.</p>

<p>Mabbied Woman. Sale of personalty. A married woman without estate buys a stock of goods from a trustee under an assignment by her husband. ' Creditors of husband levy upon the goods. Held: She had the right to purchase, apd there being no fraud, the sale was valid.</p>

<p>Chancery Peeadincs and Practice. Surety on receiver’s bond. A surety upon the bond of a receiver appointed by the chancery court gets into his hands a part of the trust fund. Held: That the court had sufficient jurisdiction of him by reason of his suretyship on said receiver’s bond to make an order to act inpersonam.</p>

<p>Taxes. Act of 1882 construed. An act oí the Legislature of April 26, 1882, entitled, An act to provide for the more efficient collection of back taxes, is a special remedy, and must be strictly pursued. A purchaser at a sale made .under said act will he relieved of his purchase unless the requirements of the act are followed.</p>

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

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

<p>Chimin a l Law. Arrest by primate citizen. A private citizen has the right to arrest when a felony has been committed and he has reasonable canse to believe the xierson arrested committed it. Reasonable ' grounds will justify the arrest, whether the facts, when develoxied, would he sufficient or not. The finding- of stolen goods in possession of the party arrested was proof sufficient that a felony had been committed, especially when connected with the confession of larceny by the prisoner, and finding some of the property where defendant said he had secreted it.</p>

<p>PROM PAYETTE.</p> <p>Appeal from the Circuit Court of Fayette county. T. J. FlippiN, J.</p>

<p>Homestead. Contracts before enactment of exemption. Bonds, official. The relation between principal and surety, or between sureties themselves, and the rights deduced therefrom, originate in the execution of the instrument of suretyship and is substantially a contract by implication of law from the relation created by the execution of the instrument. Where, therefore, an official bond was executed before the passage of the homestead exemption, and a mortgage given on property to indemnify the sureties, the liability was .created by the bond, and the homestead is not exempt, though default was made after the passage of the homestead exemption.</p>

<p>1. CORPORATIONS, Municipai. Power to issue bonds. Municipal corporations can only subscribe for stock in railroads and issue bonds under an act of the Legislature conferring the power or right to do so. If the act of the Legislature authorize bonds'to be issued of a certain denomination and bearing a certain rate of interest, the municipal ' corporation has. no authority to issue bonds for a greater denomination and an increased rate of interest.</p> <p>2. Same. Same. An act of the Legislature whieli authorizes a municipal corporation to subscribe for stock in a railroad, and “to lay and collect taxes to pay interest on the bonds which may be issued,” does not confer authority to issue bonds.</p> <p>■3. Same. Bands. Bonds, being issued without authority of law, are void ; are not negotiable, and their possession gives no right to the holders to be repaid by the corporation the amount paid for them.</p>

<p>PROM FAYETTE.</p> <p>Appeal in error from the Circuit Court of Fayette ■county. T. J. Flippin, J.</p>

<p>EEOM GIBSON.</p> <p>Appeal from the Circuit Court of Gibson county. J. T. Caethel, J.</p>

<p>Wills. Construction. A clause of the mil provides as follows: “ I give and bequeath to my oldest son, 1 ames A. Thomas, the fifty-five acres he now lives on during his natural life, provided he has no children, and if he should have children, I give and bequeath it unto them, and in case he should have no children at his death, it is to return back to my then living children, unless he should fail to pay Thomas D. Thomas a note of hand that I stood his security for $150 bearing interest from date, and if he fails to pay the note, the said land is to be sold and pay it ” Held, that the children of Thomas had no interest in the land, he having failed to pay the note. The estate never vested in the father, nor gave any right to the children, until the condition was performed.</p>

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

<p>FROM FAYETTE.</p> <p>Appeal from tlie Chancery Court at Somerville. H. J. LIVINGSTON, Ch.</p>

<p>PROM GIBSON.</p> <p>Appeal in error from the Law Court at Humboldt. J. T. Carthel, J.</p>

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

<p>1. MarshaiiNG Securities. Homestead. Abandonment. A conveyed by trust deed, two tracts of land, upon one of which A and wife resided, to secure debts owed B, C and D; A and wife subsequently conveyed by trust deed, releasing homestead, the same land and certain personalty to secure the debt owed B included in the first conveyance. Held, on bill brought by C and D; first, B having two funds for his security, while C and D had only one of them, would be compelled first to exhaust the personalty before sharing in the proceeds of the realty; second, though the second conveyance was not per se an abandonment of the homestead, the equitable title remaining in the conveyor, nevertheless, since complainants were entitled to have the second conveyance enforced and whatever right the trustee had under it sold, the purchaser at such sale would be entitled to possession as against A and wife; the result would be that the homestead, being a mere exemption and not an estate, would be extinguished and the purchaser under the first deed would get the benefit of it; consequently, the sale of the realty was ordered to be made as follows: (A) the tract upon which A and wife did not reside; (B) the tract upon which A and wife resided, first setting apvrt homestead; (C), if the amounts thus realized were insufficient to pay all the debts, then the tract upon which A and wife resided, absolutely and in bar of homestead.</p>

<p>1. CHANCERY Jurisdiction. County Surveyor. Action on oficial bond. Chancery court has jurisdiction of an action against a county surveyor, on his official bond, for failure properly to survey land sold by the acre; and where such bill is brought by the vendor, against whom the mistake was made, he may recover the fees paid by him for the erroneous survey, any costs incurred in the assertion of his rights against the vendee, and if the excess beyond the number of acres intended to have been sold has been lost,sem6fc, he may recover, also, the value of such excess.</p> <p>2. Pleading. Amendment. Limitation. A misdescription of the suit in which the erroneous survey was made is immaterial, and where the bill containing such misdescription was brought within six years from the survey, an amendment properly giving the title and purpose of the suit, made more than six years after the survey, relates to the filing of the bill, and the action is not barred.</p> <p>3. Sale by Acre. Mistake.. Excess. Where in a sale by the acre there is, by mistake, a substantial surplus above that intended to be bought and sold, the purchaser will be compelled to pay for or return ■ such surplus.</p> <p>4. Same. Same. Same. Ohancenj pleading. When there is such a surplus in land sold by judicial sale, the remedy is by an original bill, and not by a bill of review, after confirmation and complete vestiture of title, and after confirmation but-before vestiture of title, by a supplemental bill.</p> <p>5. Same. Same. Liability of surveyor. There can be no recovery against the surveyor making such mista ke, for the value of such surplus, when such surplus can bo recovered from the purchaser.</p>

<p>Constitutional Law. Equal taxes. Value at time tax imposed. Constitution, article 2, section 28, requires all taxes to be equal and uniform throughout tlie State. This requires that all property be as- . sessed at its value at the time the tax is imposed. The act of 1883,-which gives the chancery court power to reduce taxes assessed in Memphis before the charter of that city was repealed, “ when it shall appear that such assessments are excessive in view of the present value of said property,” is unconstitutional.</p>

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

<p>1. Practice. Depositions. Questions omitted. Code, section 3859, declaring that the commissioner should require the questions to he reduced to writing, etc., is directory. It is advisable to insert the questions, as they often aid in the interpretation of the answers ; but it is not essential to its admissibility that a deposition should be thus taken.</p> <p>2. Same. Same. On whose beludf. Where the deposition fails to show on whose behalf the deponent is a witness, it suffices if this fact ajjpears from the notice.</p> <p>3. Same. Same. Signatwre of witness. Regularly a deponent should sign at the end of the deposition, but a deposition is not inadmissible because the deponent signed at the end of the commissioner’s certificate.</p> <p>4. Same. Same. Official character of commissioner. It is sufficient if the official character of the commissioner appears from his signature at the end, though not stated in the body, of the certificate.</p> <p>5. Same. Seme. • Postponement. Where the notice is to take the deposition on a certain day, the officer cannot postpone to another day; but, if the notice be to take on a day certain, and the deposition is then commenced, and it becomes impracticable to finish it that day, it may be finished the next.</p> <p>6. Attobney and Client. Gontributoiy negligence of client. Where an attorney negligently tails, in violation of express instructions from his client, to issue execution upon a judgment, he is liable in any event for nominal damages, and if the judgment could have been collected by execution, and is afterwards lost through the insolvency of the debtor, he is liable for the full amount of the judgment; but if the client discharges the negligent attorney, and the judgment could then have been collected by execution, which the client negligently fails to have issued, and the debtors afterward become insolvent, the attorney is liable only for nominal damages, the negligence of the client being the proximate cause of the-loss.</p>

<p>1. Pleading. Ejectment. Third person only admitted to contest merits. In an action of ejectment, after issue joined on pleas of not guilty, a third person admitted, on his own application, as a party defendant, cannot plead in abatement that the original defendants were not served with copy of declaration; he can only plead to the merits.</p> <p>2. Local Action. Land lying partly in two counties. Attachment. Jurisdiction. By section 2810 of the Code (act of 1847-8, ch. 173), it was intended that where a tract of land lies in two counties, all of which is subject to the same claim or demand by a party, he might enforce that demand against the wbple by suit begun in either of the counties in which part of the tract lies ; and in such case the right to the whole would be passed, although part of it was in a different county from that in which the suit was pending.</p> <p>3. SUPREME Court Practice. Reversal. Verdict against evidence. The Supreme Court will not grant a new trial on a mere preponderance of evidence against the verdict.</p> <p>4. Landlord and Tenant. Estoppel. A tenant is estopped to deny his landlord’s title.</p>

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

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

<p>EROM SHELBY.</p> <p>. Appeal in error from the Circuit Court at Bartlett. Thos. D. Eldridge, J.</p>

<p>PROM LAUDERDALE.</p> <p>Appeal in error from the Circuit Court of Lauder-dale county. T. J. Fllppin, J.</p>

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

<p>Pbacticb. Justices. Special constable. A justice oí the peace has no power to appoint a special constable to execute a fi. fa.</p>

<p>PROM CROCKETT.</p> <p>Appeal from the Chancery Court at Alamo. John Somers, Ch.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the Circuit Court at Bartlett,. Thos. D. Eldridge, J.</p>

<p>1. Limitations. Evidence. Request for delay. Whether or not a conver- ' sation between a creditor and an administrator amounted to “ a request for delay,” so as to prevent the running of the statute of limitations, is a mixed question of law and fact to be determined by the jury under a proper charge; if the evidence tend to establish such a request, it must be given to the jury, who are to determine its sufficiency.</p> <p>2. Evidence. Insolvency. Evidence showing the amount involved in a suit and the interest of the decedent in it, is inadmissible in a suit between his administrator and one who acted as his body-guard but rendered no other assistance, while decedent was engaged in preparing and securing evidence for such suit.</p> <p>3. Same. Limitations. Onus probandi to remove bar. The burden of proof of facts necessary to remove the bar of the statute of limitations, which prima fade exists, is on the plaintiff.</p>

<p>Mabeiage Settlement. Construction. Marriage settlements must be construed in the light of surrounding circumstances, and in view of the object and purpose of the contract; and when such settlement expresses that its object was “ to secure the wife from want,” an absolute right of disposition in the husband must be made to appear by express provision or necessary implication.</p>

<p>Constitutional Law. Indebtedness of Memphis. The acts of 1883, ch. 162 and 190, are inoperative and invalid so far as they purport to change or direct the rights of creditors acquired under the act of 1879, ch. 92. A compliance with- the provisions of that act conferred rights which cannot be impaired by subsequent legislation.</p>

<p>1. Constitutional Law. Retrospective law. Remedy. Section 3485 of the Arkansas Code, providing that a judgment assessing damages against a principal in an injunction hond, shall he conclusive on the surety, embraces bonds executed before its enactment, and as to which, since it affects the remedy merely, it is constitutional.</p> <p>2. Judgment oe Foreign State. Judges certificate. Under our Code, section 3795, the certificate that the clerk’s attestation is in proper form, may be made by any judge, chief justice or presiding magistrate of the State, though he may not be a judge of the court wherein the judgment was rendered.</p> <p>3. Supreme Court Practice. Objections to evidence must be special. In order to put the. court in error in the admission of testimony, the specific objection to it must be pointed out.</p> <p>4. Statute oe Limitations. Ryjwnctim bond. The statute of limitation does not begin to run in favor of an administrator of a surety upon an injunction bond, until the injunction is dissolved.</p> <p>5. Judgment. Collateral attach. In a suit upqn a judgment, the judgment cannot be attacked for mere irregularities.</p>

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

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

<p>Exemption. Mechanic’s tools. Photographers. A photographer is not a mechanic within the meaning of the statute which exempts from, execution in the hands of each mechanic, etc., one set of mechanic’s tools.</p>

<p>1. Chancery Pleadings and Practice. Dismissal of suit out of term. By statute a suit in chancery may be dismissed in writing out of term as well as in term, and the dismissal, when established hy proof, with or without contest, will relate hack to, and be operative from the day • of its execution.</p> <p>2. Same. Attorney’s lien. Neither the attorney of the party who dismisses a suit, nor third persons although parties to the suit, are entitled to resist the dismissal, but if the attorney or third person has previously acquired, either by decree or lien, an interest in the subject-matter of litigation which the law recognizes, that interest will not be affected by the dismissal, and may be asserted by proper proceedings.</p> <p>3. Same. Same. By a bill filed to recover a distributive share of the estate of a decedent against devisees upon the ground that the decedent died intestate as to the part of the estate sued for, without attachment or other impounding process, the property sued for is not placed in custodia legis, and the counsel of the'claimant acquires no lien until declared on the recovery.</p> <p>4. Same. Appeal does not lie. When. An appieal does not lie from an order overruling a plea as insufficient.</p>

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

<p>Cbiminau Law. Gruelly to animals. A person has the right to protect his premises against the depredations of mischievous dogs, and for that purpose to use such means as are reasonably necessary, and if the depredating animal is thereby caught in a steel-trap and mutilated, it would not be needless torture or mutilation under the statute.</p>

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

<p>Statute of Limitations. Where heirs recognize claims as subsisting debts against their ancestor’s estate, and the deed of trust by which same are secured as an encumbrance, and induced parties to take the debts up by agreeing that they were valid liens, the heirs canuot rely npon statute of limitations as to same.</p>

<p>1. CRIMINA! Law. Obtaining goods by fake pretense. Where S had W’s note for $150 and agreed with him if he would purchase land of N, he would credit his note for that amount, and W purchased the land at $130, hut represented to S that N had raised the price to $150, and S agreed to take it at that price if W could not get it for less. N conveyed the land as S directed and S gave up the note to W. Held, though a gross fraud, not a false pretense in the legal sense.</p> <p>2. Same. Indictment. Variance. Where the indictment alleged the note was executed by W to S, and the evidence showed it was executed to S’s daughter, and by_ her assigned to S.J Held, this was a fatal variance.</p> <p>3. Same. Same. Evidence. In such case it is not necessary to object to the evidence, as it was a case where the averments in the indictment were not sustained.</p>

<p>Pueadinss AND PRACTICE. Slander. Appeal. Forma pauperis. The plaintiff in an action for slander, cannot prosecute appeal in forma pawperis.</p>

<p>CnniiirrAii Law. County Judge. An indictment will not lie against county judge for failure to make semi-annual report to county court under third section of an act passed March 7, 1879, ch. 76.</p>

<p>1. Pleadings and Pbactice. Bill of exceptions. If the circuit judge, in a case tried hy him without a jury, find the facts established by the evidence, and embody them in a hill ©f exceptions without objection hy the parties, the objection cannot he taken that the bill of exceptions does not contain all the evidence.</p> <p>2. Same. Tort feasors. Waiver. The commencement of an action by the injured party against one of a series of tort feasors, upon the implied promise arising from the conversion of personalty, will not be a waiver of his rights against the other tort feasors.</p> <p>3. Same. Conversion. If the circuit judge, who tries a case without a jury, finds that one of two defendants converted the personalty in controversy, and sold it to the other defendant without authority of the plaintiff, the owners, the findings of fact will warrant the conclusion by him that the latter defendant had also converted the property.</p>

<p>1. Sale of Laud. Conveyance. An instrument in tlie usual form of a deed, by which one person purports, for a recited consideration, to have “bargained and sold” to another a specified tract of land, “to have and to hold ” to the latter as “ an inheritance in fee simple forever,” will convey the land to the grantee in fee.</p> <p>2. Same. Assurance of title. Married woman. A deed of conveyance of land in fee executed by a married woman alone, without any privy examination, is an assurance -of title purporting to convey an estate in fee which will perfect the title of an adverse holder of land under the Code, sec. 2763.</p> <p>3. Same. Husband and wife. Limitations. The disseizin occasioned by the possession of the grantee of such a deed would be a disseizin of the joint estate of husband and wife, and their joint right of action would be barred in seven years, and the title of the husband not only barred but extinguished, and the heirs of the wife, if she died before the husband, would have only three years after her death and the extinguishment of the husband’s right within which to bring suit for the recovery of the land.</p> <p>4. Same. Same. Estoppel. Quere, whether the married woman would be estopped to recover the land-by representing herself 'as unmarried, or her children by accepting the consideration paid, and not offering to return it.</p>

<p>1. HvsBAHD'AUD Wn?E. Support of children. If a man marry a-woman ■with infant children, and he take them into his family, and treat them as part of his family, the law implies an obligation on his part to support them.</p> <p>2. Same. After the death or majority of one of such children, without promise to pay, the step-father can not recover from its guardian for its support and maintenance during its minority.</p>

<p>1. Limitations. Husband and Wife. Survivorship. Guardian. Upon the marriage of a female ward the guardianship ceases, and the husband is at once vested with the right to demand, sue for, and receive any funds in the hands of the guardian, or any ehoses in action of the wife, and the period required to create the bar of the statute of limitations, or to raise the presumption of payment would begin to run from that time. And if the wife afterwards take the right of action by survivorship, or divorce, she would take them in the condition in which he had left them.</p> <p>2. GUARDIAN and Ward. Resulting trust. Husband and Wife. If the late guardian of a female ward and of other wards, several years after the marriage of such female ward and after he had settled with the other wards, cause execution to issue on- a judgment recovered by him as guardian before the marriage, and purchase land sold under it, the presumption would be that he acted under a claim of right and for himself, and if any resulting or constructive trust would arise from the fact that the husband and wife had funds in their hands of the guardian or an interest in the judgment, the trust would be in favor of the husband, and, if he elected to follow the fund into the land, it would be a reduction of the fund or chose in action into possession.</p> <p>3. Chancery Pleadings and Practice. Stale demands. There is no intendment in favor of stale demands, and a clear case must be made by the claimant in order to secure the aid of a court of equity.</p> <p>4. Same. How a bill may be dismissed. The court may dismiss a bill mero mota when it contains no equity.</p>

<p>1. Gaknisb:meiít. Pleadings and Praetice. Where garnishment is served on Wo parties, and both answer, it is error to consider the answers of' both together in making up judgment against one, at least where the amount involved is over $50, ($1,000 under act of 1883, ch. 11).</p> <p>2. Same. Srnne. In garnishment proceedings the plaintiff must show judgment and execution.</p> <p>Question reserved. Whether, where answer of garnishee shows that the-legal title to anote is in him, (he holding it as collateral security),, and the equitable title is in another, he could be compelled to sur“render it, at least until his debt is satisfied.</p>

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

<p>Cbiminai, Law. Perjmy. Fabe swearing in U. S. Gourb. No indictment for perjury can be predicated in the State courts upon the false swearing of a party before a United States judicial tribunal in a case pending in such tribunal.</p>

<p>1. Chancery Pieadings and Practice. Appeal. Final decree. There can be no appeal to the Supreme Court except from a final decree settling the rights of the parties.</p> <p>2. Same. Same. Same.. The report of C. & M., with some exceptions thereto overruled, and some sustained, with directions and instructions for modification of the report, does not form the basis of such final decree settling the rights of the parties, from which an appeal can be taken.</p> <p>3. Same. Same, Same. The fact that no further exception could be taken successfully, cannot change the character of the report into a decree final by the court.</p> <p>4. Same. Sonne. Same. It is not that a decree must be final in the sense that the Chancellor cannot reverse it at a subsequent term, but that it must be final in the sense of being a complete settlement of the rights of the parties.</p>

<p>FROM ANDERSON.</p> <p>Appeal in error from the Circuit Court -of Anderson county. W. B. Staley, Ch., presiding by interchange..</p>

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

<p>FROM UNION.</p> <p>Appeal from the Chancery Court at Maynardville. W. B. Staley, Ch.</p>

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

<p>EROM GRAINGER.</p> <p>Appeal itx error from the Circuit Court of Grainger county. J. G. Rose, J.</p>

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

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

<p>1. tStiMisrAi. Law. Sale of whislsy. Manufacturers of whisky or brandy out of the products of farms or orchards of the State cannot sell by retail within four miles of an incorporated institution of learning.</p> <p>2. Same. Retail dealers. Sales to persons or customers for the purpose of consumption constitute a retail dealer.</p>

<p>1. Pbiyiíege Tax. Manufacturers of Wliisky. Manufacturers of whisky and brandy out of products of farms and orchards in the State, who sell by wholesale, are liable for the privilege tax imposed upon wholesale liquor dealers.</p> <p>2. Cbibxnai, Law. Indictment. A count in an indictment which charges that the defendant sold whisky without having first taken an oath not to mix or adulterate, and without giving bond, etc., does not charge two offenses in same count.</p>

<p>ParvxLE&B Tax. Liquor dealers. A wholesale liquor dealer is one who sells to purchasers in packages or quantities for the purpose of trade or to be resold. A retail dealer is one who sells to persons or consumers for the purpose of consumption.</p>

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

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

<p>1. CRIMINAL Law. Improper conduct of jury. If the prisoner may have- - been prejudiced by the improper conduct of the jury, the law will presume he was.</p> <p>2. Same. Practice. In criminal cases courts should distinctly charge juries that they must look alone to the testimony adduced in evidence before them on the trial, and should not permit one of their number to communicate to them any facts not deposed to in court.</p> <p>3. Same. Same. Although it is a dangerous practice, affidavits of jurors as to improper csnduct of the jury will be looked to, but with caution.</p>

<p>Chancery Pleadings and Practice. " Upon remand from Supreme Court. Upon the hearing of a case in the Supreme Court upon exceptions to a report, and an order is made remanding cause to complete account, no additional .proof can he taken upon the items of the account passed . upon by the court without a reference of the question is ordered or permission to further inquire as to the disputed point.</p>

<p>EJKOM MORGAN.</p> <p>Appeal in error from the Circuit Court of Morgan county. D. K. Young, J.</p>

<p>EROM ANDERSON.</p> <p>Appeal in error from the Circuit Court of Anderson county. D. K. Young, J.</p>

<p>FROM LOUDON.</p> <p>Appeal in error from the Circuit Court of Loudon county. A. S. Rodgers, J.</p>

<p>Damages. Ferry and wharf landing. Condemned for eov/nly bridge. Where a small part of a strip of land along a river bank used as a ferry and wharf landing is condemned for the purpose of erecting thereon the pier of a county bridge across the river, the owner of the land is entitled to be paid the v^lue of the land taken, and the damages for the injury to the adjoining land as a wharf landing, but not to the loss by the depreciation of the profits of the ferry franchise by the opéning of the bridge; the franchise itself and its exercise not being impaired by the existence of the pier.</p>

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