Volume 80 — Tennessee Reports

<p>1. Chancery Pleadings and Practice. Bill to remove ¿loud. A complainant in a bill to remove a cloud from title, who is not in possession of the land in dispute, must show a good legal title to the land, or such an equity against the defendant, as to draw from him his legal title; and the defendant, where no such equity exists, as where the titles of the parties are distinct, may in defense set up a better outstanding title in a third person.</p> <p>2. Sale op Land. After-acquired’ title. Upon a sale of land, not of a special interest therein, where the conveyance is by formal deed in land fee with a special warranty against any claim to be made by the vendor or any person claiming under him, an after-acquired title by the vendor will enure to the benefit of the vendee.</p> <p>3. Same. C'terk’s deed. Must be sustained. Hovj. A clerk’s deed of land sold by him under the order of the court must be sustained, in á pos-sessory action, by the judgment or decree so as to show jurisdiction to make the sale.</p> <p>4. Grants. Statute of limitations. Actual possession of granted land under a younger grant, by clearing, enclosing and cultivating a part of the land, especially if notice of the fact be brought home to the claimant under the older grant, will start the running of the statute of limitations, in favor of the possession, to the boundaries of the younger grant, and actual possession kept continuously for seven years, although on other parts of the granted land, would perfect the title.</p>

<p>(xRAnts. Articles of Convention, between Tennessee and Kentucky. Statute of limitations. Adverse possession. The vacant and unappropriated lands on the northern border of this State, -which, by the fifth article of the convention of February 2, 1820, between Tennessee and Kentucky, it was provided, “shall be the property of, and subject to the disposition of the State of Kentucky,” are “granted by this State,” within the meaning of the- statute of limitations of 1819, brought into the Code, sec. 2763 et seq., and title thereto may be acquired by an adverse possession, under a grant from this State, for the time prescribed by the statute. ,</p>

<p>Peeadings and Practice. Sureties oil prosecution bond. Costs. A surety for the prosecution of a suit at law, after tlie recovery of judgment in that court, cannot, upon a reversal by this court on appeal, be charged with the costs of this court adjudged against his principal, but mav with the costs of the court below.</p>

<p>1. CoMMOjir Schools. Contested elections. The circuit court has no original jurisdiction to try contested elections oí school directors. In the absence of a contrary provision the court having- power to induct an officer has jurisdiction to determine the validity of his election.</p> <p>2. Same. School directors. Employment of minors. The employment by a school commissioner of his minor child is not of itself sufficient to eject him from office.</p>

<p>1. RaiIiIioads. Contributory 'negligence. Although a person be injured by a railroad train while unlawfully on the track oí the road, or while contributing to the injury by his own carelessness, yet if the injury might have been avoided by the use of ordinary care and caution by the railroad company, the company will be liable in damages, the negligence of the party injured being taken into consideration, by way of mitigation, in estimating the damages.</p> <p>9- Charge ok Corin'. Jury judges of facts and must apply law as charged. It is not error to charge the jury thus: “You are the sole judges of the facts, and the law as given in charge by the court,” the language, although unusual in a civil case, plainly meaning that the jury must take the law as given by the court, and be the judges of its application to the facts.</p> <p>3. Raii.roads. Charge of court. Persons using trad• os a walk-way. It is not error to refuse the following charge: “A railroad company is not liable, where no evil intent or wanton conduct appears, for injuries by its trains to intruders, who undertake to use the track for some business purpose of their own, or to persons who are unlawfully walking, remaining upon or crossing its track.”</p> <p>4. Charge op Court. Written requests. A judge cannot be put in error by not doing more than he was asked to do, when, so far as appears, the party complaining was satisfied at the time with what was done; as where, when a written proposition, which he was requested to charge, was read to him in the presence of the jury, and lie said, “let the jury have the instruction as a part of tne charge,” without formally repeating it to the jury as a charge. A charge correct in itself as far as it goes, but not complete, is no longer objectionable, if the omission be supplied by the adoption 'by the court of a special request directed to the omitted point, or matter.</p>

<p>1. Pleadings and Practice. General verdict. Railroads. In an action against a railroad company by the widow ol an engineer in charge ol a train, who was killed by reason oí a collision occasioned by a misplaced switch, the declaration contained two counts, one count based upon the ground that the switch was dangerous for want of a target, and the other upon the incompetency of the switch-tender negligently retained by the company, the jury found the issues joined on both counts in favor of the plaintiff, and it was held that even if there was no testimony to sustain the first count, the verdict on the second count would be good.</p> <p>2. Samis. Evidence. It is competent in such an action to prove that the , deceased was-a man temperate and regular in his habits.</p> <p>3. Same. General objection, to evidence. Á general objection to evidence is not sufficient where the evidence is admissible for any purpose.</p> <p>4. Same. New trial. Improper remark of counsel. An improper remark of ’ .counsel in discussing the question of punitive damages, although objected to at the time and not rebuked by the court, where all consideration of punitive damages was excluded by the judge’s charge to the jury, is not a sufficient ground for a new trial.</p> <p>5. Same. Gharge of court. Negligence. The use of the words “grosser negligence” in a charge does not imply the doctrine of comparative negligence where they are immediately followed by the explanatory clause, that negligence which was the prime, principal, and proximate cause of the injury.</p> <p>6. Same. Eellow-senants. Gharge of court. An error in the charge as to who are fellow servants is not fatal, where the entire charge is based on the assumption that the deceased engineer and the yard-master whose negligence was the cause of damage, were fellow servants.</p> <p>7. Same. Gharge of court. Erroneous. An erroneous charge of the law on one count in the declaration as to which there is no proof, will not vitiate the verdict on the second count which is sustained by the proof, and as to which the charge is correct.</p> <p>8. Same. Gharge of court. Special request. It is not error to refuse a special request not strictly accurate, the substance of which has been already charged.</p> <p>Í). Same. Special request submitted to opposite counsel. It is not error for-the court to submit to the examination of opposing counsel specia requests of a party, before he acts upon them.</p> <p>10. Same. Railroads. Negligence. Personal injury. It is no excuse to the company whose negligence in retaining an incompetent servant occasioned a collision, that the party injured m the excitement of the moment lost his presence of mind and adopted the wrong mode of self-preservation.</p>

<p>Master. and Servant. Defective tools. Servant may rely on superior judgment of master. When. Although the general rule is that a servant who uses a defective tool with knowledge of the defect cannot recover against the master for an injury occasioned by the defect, yet it will be an exception to the rule if the servant acts under the direct order of the master or his agent, under the exigency of the business, in a matter as to which the servant has the right‘to rely upon the ' superior judgment of the master or his agent, and the danger is not so glaring that a man of ordinary prudence would refuse to take the risk.</p>

<p>School Lands in-Ocoee Disteict. Ad of 1836 directory. The act of 1836, eh. 2, providing for the laying off of school lands in the Ocoee district by the surveyor is directory, not mandatory.</p>

<p>Limitations. Executor de sou tort. The statute of limitations will run in favor of an executor de son tort.</p>

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

<p>1. Pleadings and Practice. Writ of certiorari. Need not state first application. When. The writ of certiorari is the proper remedy to bring into the circuit court the papers in a cause tried by a justice of the peace, where the appeal was prayed and obtained in time, and the appeal perfected by executing a bond or taking the pauper oath as required by law, and the petition for the writ may be filed at any stage of the cause, and need not state that it is the first application for a certiorari.</p> <p>2. Same. Same. Diminution. Appeal. A petition which states in substance that an appeal from a justice’s judgment had been prayed and granted and perfected within the time prescribed by law, that the justice had promised to bring up the papers but afterwards refused so to do unless required by the circuit judge, and asks for a certiorari to remove the cause in to. the circuit court for trial, is a petition for a certiorari upon a suggestion of diminution, and not in lieu of an appeal.</p> <p>3. Same. Unlawful detainer. Title papers may be introduced. When. Where an action of unlawful detainer is brought by a vendee of lane) against a person who had been in actual possession of a part of the land for eight years "before the vendee bought, .and is based upon an alleged subsequent renting by the defendant of the vendee, the proof being conflicting, it is not error to allow the defendant to introduce in evidence his title paper from the vendor to show the character of his holding, upon a proper charge to the jury that they could not enquire into the title, but only into the possession; and in the absence of - the charge it will be presumed that a proper charge was given.</p> <p>4. Supreme Court Practice. Charge must be in bill of exceptions. The court cannot notice what purports to be a part of the judge’s charge to the jury which is merely copied into the transcript, but is not made a part of the bill of exceptions, nor shown to be entered on the minutes of the court.</p>

<p>CORPORATIONS. General law. Chancery court. An order oí the chancery court, under the act of 1871, ch. 54, organizing a corporation for a purpose provided for by a general law is valid to the extent of the provisions of that law, and void only for any excess of powers and privileges which it may undertake to confer beyond the provisions of the statute.</p>

<p>■Chancery Pleadings and Practice. Priority of creditors. Judgment creditors who file bills to reach the equitable interest of their debtor in land will be entitled to priority of satisfaction in the order in which the bills are filed, whether attachments are sued out or not; and where'two or more bills are filed on the same day, the first in point of time will prevail.</p>

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

<p>1. CORPORATIONS, Municipal. Ordinance defining fire limits. A city authorized by its charter, may establish fire districts, and may forbid the erection of wooden buildings within such limits.</p> <p>2. Same. Constitutional law. It is not the impairment of the obligation of a contract, in the constitutional sense, for a city to pass an ordinance forbidding the ’erection of wooden buildings within fire districts, although the contract was made to do so, before the passage of such ordinance.</p>

<p>1. Evidence. Presumption. In the absence of proof to the contrary, it is to be presumed that the official act of an officer in another State has been performed, as required by the law of that State.</p> <p>2. Same. Witness swearing falsely. If a witness has wilfully sworn falsely to a material fact, the jury may, not must, disregard his evidence altogether.</p> <p>-3. BrLDs and Notes. Acceptance. Interest. An acceptance drawn in Tennessee upon parties in .another State, is payable at the place of residence of the acceptors, and the interest on it must be calculated according to the law of the domicil of the acceptors.</p>

<p>Criminal Law. Grand jury. Foreman of grand jury. Appointment. The record showing that a grand jury was “ empaneled and sworn,” may be silent as to who was appointed foreman by the court. In such case, the record showing an indictment was returned into court endorsed a true bill, and signed by one of the jury as foreman, in the absence of plea in abatement to the regularity of the finding, and proof to sustain the plea, is sufficient evidence of the appointment of .such foreman.</p>

<p>FROM KNOX.</p> <p>Appeal in error from the Criminal Court of Knox •county. M. L. Hall, J.</p>

<p>EJROM M’MINH.</p> <p>Appeal from the Circuit Court of McMinn county. D. W. Trewhitt, J.</p>

<p>FROM KNOX.</p> <p>Appeal in error from the Criminal Court of Knox county. M. L. Hall, J.</p>

<p>PPOM KNOX.</p> <p>Appeal in error from the Circuit Court of Knox county. S. A. Rodgers, J.</p>

<p>PROM MONROE.</p> <p>Appeal from the Chancery Court' at Madisonville-W. M. Bradford, Ch.</p>

<p>1. Tubstee. Disbursements. A trustee who bona fide incurs expense, or-pays out money in behalf of a trust fund, to realize on same, is entitled to be re-imbursed out of the trust funds.</p> <p>2. Same. Subrogation. Surely. A surety.of the trustee in such case, who-has had to pay out money for him, is entitled to be subrogated'to the rights of the trustee to be re-imbursed out of the trust funds.</p>

<p>CoNSTiTtraoNAii Law. The act of the General Assembly, 1881, entitled: “ An act to provide more just and equitable'laws for the assessment and collection of revenue for State and county purposes, and to repeal all laws now in force whereby revenue is collected for the assessment of real estate, personal property, privileges and polls,” is obnoxious to the Constitution, Artirle II, section 17, and therefore void. It provides for the collection of municipal taxes in the body of the act, while no reference is made to, same in title.</p>

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

<p>1. PRACTICE. Withdrawing incompetent proof. If incompetent proof go-to the jury, and the court afterwards definitely withdraw it, with proper instructions, it is no cause for reversal.</p> <p>2. Same. Gharge of court. The whole of the charge must be considered' in order to a fair test of its correctness.</p> <p>3. Railroads. Statutory precautions. The statutes to prevent accidents on railroads, embody no more than the common law. It never was the legal right of a railroad company to refuse to use all possible means to stop its train and avoid an accident'when any person, animal or other obstruction appeared on the track.</p> <p>4. Contributory Negligence. Mitigation of damages. The cofitributory negligence of a person injured on a railroad, where the statutory precautions were not complied with, may be looked to in mitigation of damages.</p> <p>5. Cbiminai Negligence. Charge of court. It is not error to refuse to charge the jury in a civil suit for .damages, that under section 4643? it would require the same character of proof as it would to convict an engineer of a felony.</p>

<p>EJROM ICNOX.</p> <p>Appeal from the Criminal Court of Knox county. M. L. Hall, J.</p>

<p>1. ASSIGNOR and Assignee. Suit by assignee. The assignee of land the subject-matter of a pending litigation, may either carry on the suit in the name of the assignor, or come in by an original bill in the nature of a supplemental bill, and conduct the litigation in his own name, in which case the bill will be merely a continuation of the first suit.</p> <p>2. Same. Purchaser of assignor’s interest without notice. The opposing litigant might purchase the assignor’s interest in the land before notice, actual or constructive, of the first assignment, but not after-wards, so as to acquire an estate or equity superior to the estate or equity of the first assignee. ,</p> <p>S. Sale, Judicial. Purehaser. Equity of redemption. Improvements. Bents. A purchaser at a judicial sale of land subject to redemption, who puts “improvements on the land with the consent of the party owning the equity of redemption, will be entitled to his improvements to the extent that they have permanently enhanced the value of the land, subject to account for the rents and profits.</p>

<p>1. CbiminaIi Law. Evidence. Supreme court practice. A. general objection taken in the trial court to a question, or to the admission or rejection of evidence, if good at all, would only go to substance or competency, not form; and therefore would be of no avail in this court, where the evidence was merely irrelevant, the question leading, or in some respect improper, especially if, in the latter case the answer be such as to render the question innocuous.</p> <p>2. Same. Same. It is the duty of a party objecting to evidence to communicate at the time to the court and the opposite party the grounds of his objection, and the trial court may and should require him to assign the ground, and his failure so to do would deprive him of the right to rely upon the objection. If this court notices a general objection, it is of favor, not of right.</p> <p>3. Same. Same. An objection to a question may be obviated, or rendered formal and immaterial by the answer; and if the ground of objection does not apply to the answer, there is no error in allowing the answer to go to the jury in the absence of any objection to it.</p> <p>4. Same. Robbery. On the trial of a party for robbery from the person of the in'osecutor the defense may prove the general character of the prosecutor as a drinking man, or his condition as to liquors on the particular occasion, but cannot show, either by the cross-examination of the prosecutor or independent testimony, that the prosecutor was drunk on other occasions, or that he had difficulties with third persons on other occasions by reason of his being drunk or drinking.</p> <p>5. Same. Same. On a trial for robbery from the person of the prosecutor, where it appeared that the prosecutor was knocked down and his money taken from his pocket, it is sufficient to charge that if the prosecutor was knocked down and the money taken from him by the accused, that would be robbery, without giving the formal definition of the offense, no further charge being called for.</p> <p>6. Same. Same. Charge of court. Supreme court practice. A general objection ¿to certain parts of the charge by reference to pages of the transcript without more, will not be noticed by the court, if upon examination, the clauses referred to seem to the court to contain no error prejudicial to the defendant.</p>

<p>1. Pleadings and PRACTICE. Damages. Durden of proof. In an action-for damages caused by the explosion of a steam boiler used for run- • ning a saw-mill, it is error to charge that, when the injury is proved to have been done by the explosion, the burden is thrown upon the defendant to show that he was guilty of no negligence, and that the accident was unavoidable.</p> <p>2: Same. Same. Evidence. 'Negligence. To sustain the action, the plaintiff must show «the want of ordinary care, skill and diligence on the part of the defendant, and the question of negligence should be left to the jury to determine upon the evidence actually introduced, it being competent for them to infer as a proposition of fact from the . mere fact of explosion that there w¿s some negligence in the management of the boiler, or some defect in its condition.</p> <p>3. Same. Same. Same. Same. S. being the owner of a steam boiler which he had used for years in running a saw-mill, entered into partnership with Y. and T. in erecting and operating a grist-mill with the same boiler, bythe terms of which partnership the boiler was to be used on certain days of the week in operating the gristmill for the benefit of the firm, S. reserving to himself the right to use the Ijoiler on the other days of the week in running the saw-mill for his exclusive benefit. The boiler exploded on one of the latter days when it was being used by S. in operating the saw-mill himself. The jury found as- a fact that Y. and T. had at the time, under the partnership agreement, each an undivided fourth interest in the boiler, but there was no evidence that it was in a defective condition when the parties entered into the partnership: 3eld, that Y. & T. were not liable for an injury caused by the explosion.</p>

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

<p>1. PARTIES. Administrator necessary. When■ If the vendor die while a hill is pending against him by the vendee for a rescission of the contract for a sale of land, and to recover the amount paid as purchase money, the cause must be revived against his administrator as well as his heirs.</p> <p>2. Same. How heirs may he proceeded against alone. The heirs can be proceeded against alone only by strict compliance with the statute. There must be a suggestion of record that no one can be procured to administer, and a ¡motion for sci. fa. to revive against the heirs on this ground.</p> <p>S. Waiver. 'Appearance and defense by heirs is not. ’ When. The heirs’' by waiving such a sci. fa. and appearing and defending the cause on its merits, and not objecting to the want of an administrator, will not be held to have waived the same.</p>

<p>1. Rescission. Interest allowed on purchase money. Upon rescission of a parol contract for the purchase money of land, interest -will he allowed on the purchase money paid, unless there is some equity in the case, calling for the exercise of the discretion of .the court to disallow it.</p> <p>2. Same. Improvements. Improvements will he allowed tt> the full extent they enhance the value of the land, without regard to the amount of the rents or the cost of the improvements.</p> <p>3. Practice. Exceptions to report of Referees. An exception to the report of Referees which does not point out the proof in the record sustaining it, will not be considered.</p>

<p>FROM FRANKLIN.</p> <p>Appeal from the Chancery Court at Winchester. Jno. W. Burton, Ch.</p>

<p>LiQtroR Deai/ees Tax. The manufacturer of liquors, made of the produce of Tennessee, who sells the same in unbroken packages at his place of business, is not liable for the tax on dealers.</p>

<p>FROM SMITH.</p> <p>Appeal in error from the Circuit Court of Smith county. N. W. McCoNNELL, J.</p>

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

<p>Dower. A ividow will not be estopped from asserting her claim to dower, by reason oí á decree from bed and board in a divorce suit brought by her against her husband. A decree from bed and board will not defeat dower. Question as to the presumption of marriage discussed, citing 1 Coldwell, 626.</p>

<p>PJBOM PUTNAM.</p> <p>Appeal in error from the Circuit Court of Putnam county. N. W. McCoNNEll, J.</p>

<p>PROM WARREN.</p> <p>Appeal in error from the Circuit Court of Warren county. J. J. WILLIAMS, J.</p>

<p>1. Principaij and Surety. A debtor in procuring security acts for him self, and not as agent of the creditors, and the surety is not entitled to be released because he has been misled as to the extent of the indebtedness of the principal,either by the principal’s silence or fraud, the creditors being in no way implicated.</p> <p>2. Same. Lien. Where the object of giving security was to release the goods of the principal from execution levy, so that he might continue his business as a retail merchant, and the goods were accordingly surrendered to and used by him for more than a year, there was no lien on the goods to which the surety could be subrogated.</p> <p>3. Supreme Coubt Practice. An objection made after the decision of the cause, that this court was not full al the hearing, comes too late, a majority of the court having been present and concurring in the judgment.</p> <p>4. Bond, Injunction. Sureties. Oosts and damages. By this bill, seeking in the alternative to be subrogated to a supposed lien on certain goods, the complainants prayed that the sheriff and constable, who had levied on the goods certain executions in their hands to which the complainants were not parties, be enjoined from selling or disposing of the goods; the judge granted the injunction as prayed upon complainant’s giving bond, with good security, conditioned as the law directs, and the clerk took a bond in double the amount of all the defendants’ judgments, conditioned to abide by and perform such orders and decrees as the court might make in the cause, and pay such costs and damages as the court might order, or as might be recovered in a suit brought for wrongfully suing out the injunction. Held, that the obligors in the bond were only liable, for the costs and damages occasioned by enjoining the sale of the goods.</p>

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

<p>Í. Pleadings and Pbactice. Charge of court. Upon the trial of a cause in the circuit court, it is not errolt for the judge to charge in relation to a written opinion delivered By this -court upon a previous appeal, that the jury cannot consider the opinion for any purpose whatever, but must receive the law as givén to them by the trial court. . '</p> <p>2. Same. 'Interest. An instrument in" writing,■ signed by the debtor whereby he promises to pay to the plaintiff a definite sum of money for a valuable consideration recited, at a definite time, upon a specified condition, is within the provision of the Code, section 1945, and will bear interest from the time of payment designated, hpon proof of the happening of the contingency.</p> <p>S. SAME. Court may calculate intei-est without objection. If the jury find a verdict in favor of the plaintiff for the amount of debt specified in the instrument sued on with interest from the time it became due, and the court, without objection from' either party calculate the interest for the jury, and the verdict is returned accordingly, a subsequent objection will come too late. .</p> <p>4. Supreme Court Practice. Will not revene. When. This court will not reverse for a mere misnomer by the jury of the instrument sued on.</p>

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

<p>1. CHANCERY Pleadings and Practice. Sale of land to pay debts. A. decree ordering the' Sale of lands of a defendant to pay debts, reciting that the estate of the deceased “ is largely indebted, that its indebtedness amounts to-dollars, or more,” and b ased on a report that does not shew the amount and value of the assets received; the amount of bona fide debts outstanding; the names of the creditors- and to whom the debts should be paid, -is void.</p> <p>2. Estoppel. A minor purchasing fifteen acres of the lands of the deceased, from one who purchased part of the lands at the sale under such decree, will not be estopped to set up his rights as to the balance of the lands sold under such decree, of which he did not become the-purchaser.</p>

<p>1. Pleadings and Pbactice. Flea in abatement. Upon a trial before a judge of the city court, there was a conviction and appeal to the circuit court, where the defendant filed a plea in abatement averring the incompetency of the city judge to hold the office. Upon demurrer plea was disallowed. Held, That the plea came too late. The trial in the circuit court was de novo.</p> <p>2. Officeb Defacto. Official acts valid. If the city judge was incompetent, yet having been appointed according to the form of law, his official acts are binding and, valid. He could only be removed from office and his powers terminated by proper proceedings for that purpose.</p>

<p>EROM TROUSDALE.</p> <p>Appeal in error from the Circuit Court of Trous-dale county. N. W. McConnell, J.</p>

<p>FROM VAN BUREN.</p> <p>Appeal from the Chancery Court at Spencer. Jno. W. Burton, Ch.</p>

<p>FROM WILSON.</p> <p>Appeal in error from the Circuit Court of Wilson county. Robep.t Cantrell, J.</p>

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

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

<p>Pleadings and Practice. Certiorari, Upon a petition for certiorari and-supersedeas to supersede an execution issued upon a judgment before a justice of the peace, and to remove the cause for a new trial into-the circuit court, the justice’s papers and the petition should be taken/ together, and the writs should be dismissed if it contains no substantial denial .of the justice’s judgment.</p>

<p>Railroads. Employer and employee. If a. party is employed by the railroad company to look after stock which has been killed, and to look after any litigation against, the company, he has no authority by virtue of such employment to command other servants and employees of the company. If he does thus command such employees, and in discharge of his command the employee is injured,- the company would not be liable. The order of a party having no authority over the injured employee, will not serve as a basis on which to fix the relation of employer and employee.</p>

<p>Pleadings and Practice. Exceptions to report of Referees. Exceptions to report of Referees which are not accompanied by a brief, and there being no reference or citation of any authority upon the questions attempted to be raised by the exceptions, nor any reference to pages of record, will not be noticed. Such exceptions are defective and will be disallowed.</p>

<p>Chancery Pleadings and Practice. Administrator de bonis non. An administrator de bonis non may, by bill in equity, liave an account against a former administrator and bis sureties.</p>

<p>FROM WHITE.</p> <p>Appeal in error from the Circuit Court of White county. N. W. McCoNNElu, J.</p>

<p>EJROM MACON.</p> <p>Appeal in error from the Circuit Court of Macon county. N. W. McConnell, J.</p>

<p>prom trousuale.</p> <p>Appeal from the Chancery Court at- Hartsville. W. O. Crowley, Ch.</p>

<p>1. Crimiítai. Law. Supreme court practice. If there are two indictments, in the record, this 'court will not reverse if it is possible to tell upon which indictment the defendant was tried.</p> <p>2. Same. Emdenee. Bobbery. Where two parties are charged to have jointly committed a robbery, and who continued to act together in their flight, it is competent upon the trial of one, to prove the money taken from the other, though they may have been caught at different places.</p> <p>3. Same. Same. House-breaking. Upon an indictment for breaking and entering a house with intent to commit a larceny, it is competent to-prove the specific articles stolen, although the same were not averred or specified in the indictment.</p>

<p>LieN. Priority over mortgage. The lien given by statute to the keeper of a stallion for public use on the offspring is superior to the right of a mortgagee to whom the mare is conveyed while in foal, and whose mortgage is registered before the foal is dropped.</p>

<p>1. Criminal Law. Jwror. Disqualification. If tlie opinion of a juror in a criminal case be clearly such as disqualifies him, no inquiry is permissible whether, notwithstanding his opinion, he will be governed alone by the evidence, but it is otherwise when the opinion is not based upon evidence or information which disqualifies.</p> <p>2. Same. Same. Same. The law does not regard what the juror may call an opinion as an opinion at all unless based upon knowledge or' reliable information of facts, and the state of mind of the juror in such case as to what weight he would give to the evidence in the case becomes an important element in ascertaining his competency.</p> <p>3. Same. Same. Same. If the opinion of a juror go only to the fact that a person has been killed and that the defendant killed him in a case where these facts could not be disputed, he would not necessarily have a disqualifying opinion as to the guilt or innocence of the accused.</p> <p>4. Same. Same. Same. The question whether the nature and strength of a juror’s opinion are such as in law necessarily raises the presumption of partiality is one of mixed law and fact, to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence, and the finding of the trial court will not be set aside by the reviewing court unless the error be manifest.</p> <p>5. Same. Same. Same. A juror, upon a trial for murder, stated that he had formed an'opinion from rumor and rumor alone, and, to a direct question by the court, added that he could divest himself of that opinion, and from the evidence in the cause do equal and impartial justice between the State and the prisoner; and further said, upon being interrogated by the counsel of the defendant, that he had heard persons say that the prisoner had killed the deceased with a hoe on the road at a road-wórking; that he did not know whether those persons were witnesses or not, nor whether they had heard th e evidence or not; that he had the same opinion still, and it was a fixed opinion from rumor, and that it would take evidence favorable to the prisoner to remove it, but again said that he could disregard that opinion, and rely upon the evidence for his verdict. Held, there being in fact no doubt that the prisoner did kill the deceased in the manner stated, that there was no error in holding the juror competent.</p>

<p>FROM CANNON.</p> <p>Appeal in error from the Circuit Court of Cannon county. ROBERT Cantrell, J.</p>

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

<p>Clerk. Commissions. Where motion was made by the district attorney against a revenue collector as a defaulter to the State, and afterwards he paid the amount of his defalcation to the comptroller, the clerk of the circut court is not entitled to commissions on same. Code construed, sections 740, 739, 731 and 732.</p>

<p>1. Resulting Teust. Statement of case. G as G & Co., obtained advancements from bank with agreement to purchase and ship grain, and turn over the bills of lading to cover the money advanced, and bought grain with money so obtained, and shipped and sold it without turning over the bills of lading, and formed a new company with W and others as partners, under the style of G & Co., using the proceeds of sales of the graih so purchased as capital stock in the new firm. Meld, the bank had no lien or equity on the grain so purchased which it could enforce, and could not follow the fund as a trust fund in the new firm, and that its only remedy was to proceed against G as an ordinary debtor, and attach or levy on his interest in the new firm.</p> <p>2. Paetnebship. A creditor of an individual partner is not entitled to wind up the firm to subject his interest in same, without first fixing a lien by process.</p> <p>3. Chanceet Peactice. Attachment. But the complainant having obtained an attachment against the property of the firm, and impounded its effects, and the firm having submitted to it and replevied the property, and the chancellor having ordered an account of the interest of thé indebted partner in the firm, which was taken, the court decreed the rights and equities of the piarties under such account.</p>

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

<p>1. Ejectment. Effect of a decree divesting and vesting title. The purpose of a decree will .be looked to in considering its effects, and the purpose clearly appearing, will operate against the parties to the suit.</p> <p>2. Practice in the Supreme Court. While the general practice in the Supreme Court on reversal or finding error in the judgment of a circuit judge, where he has tried a case without a jury, is to render such judgment as ought to have been rendered, yet when the court sees that justice and right requires that the case be remanded, it is always so done.</p>

<p>1. Chancery Practice. Partition. Where part of tenants-in-common in land have conveyed a portion of same hy metes and bounds, chancery court may direct that partition of the lands he made, if practicable, so as to give the conveyee the part so conveyed by metes and hounds. A tenant-in-common cannot convey a particular part of the land by metes and bounds, so as to defeat the rights of his co-tenant (if asserted in time), but such conveyance will pass his own title to the common property.</p> <p>'2. Corporation. A corporation authorized by its charter to hold land’ may do so as tenant-in-common with a natural person.</p>

<p>1. ObiminaI; Law. Libel. An indictment against H for libeling B, alleging that H wrote a letter libelous in character to R, and signed B’s name to .same, and addressed and delivered it to R, is good on demurrer. The same writing may be libelous of more than one person.</p> <p>2. Same. Libel. Publication. The delivery of the libel to one or more persons, or the person libeled, is a sufficient publication.</p>

<p>1. School Directors. Section. Under acts of 1870 and 1873, school directors must be elected first Thursday in August, and the incumbents hold over until their successors are elected.</p> <p>2. Teacher. Contract. A teacher having made a contract with illegally elected school directors, cannot sue the legally elected school directors on the contract.</p> <p>3. Mandamus. Suit against officers. Public officers or agents, as such are not liable to be sued, but mandamus is the proper remedy to enforce performance of official duty.</p>

<p>1. Husband and Wife. Wife’s real estate. Bents and profits. A wife may maintain an action of replevin for corn raised upon land inherited by her, which had been levied upon for her husband’s debts, the laud being inherited and the debt contracted prior to the act of 1879, ch. 86, and the corn being raised subsequent to the passage of said act. The rents and profits of wife’s land cannot be subjected to husband’s debts.</p> <p>'2. Constitutional Law. Vested ricjkls. A present vested right cannot exist in a thing which is not itself in existence.</p>

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

<p>Ciianceby Pleadings and Pbactice. Judgment lien. Mortgage. The purchaser of a part of a tract of land, the whole of which land is subject to a prior judgment lien, and the residue of which is after-wards conveyed by the vendor in mortgage to secure a pre-existing debt, is entitled to come into equity for a declaration of his -right to have the land mortgaged first subjected to the satisfaction of the judgment lien.</p>

<p>1. Taxes. Assessment. The act of 1879, cb. 79, authorizing the tax-collectors to assess all propertj^ which, by mistake of law or facts, has not been assessed, - applies to a case where there has been a fail-' ure to assess at all, and not to a case where the property has already been legally assessed, although not in every respect correctly.</p> <p>2. Same. Same. Jurisdiction of Circuit Court. The circuit court lias jurisdiction of an assessment and suit for taxes under the act of 1879, ch. 79, by appeal from the judgment of the justice, and by certiorari to bring up the proceedings before the county judge upon the assessment to test the question of the authority to assess.</p> <p>3. Same. Same. Railroad properly. Under the State Constitution, the mode of ascertaining the value of particular kinds of property for taxation is left to the discretion of the Legislature, and that body may adopt a mode of assessment by assessors for the State at large, and such a mode for ascertaining the value of the franchise, roadway, rolling-stock, and other property not having a local situs, of a railroad company is eminently proper.</p> <p>4. Same. Same. Franchise of railroad company. The franchise of a railroad company for the purpose of taxation is a unit; so is the roadway, and so the rolling- stock; and the situs of the choses in action and personalty may be fixed by tlie Legislature, and treated like the franchise.</p> <p>5. Same. Same. Same. Uo better mode of determining the value of the portion of the road-way of a railroad company in any one county for taxation, and of the value of the franchise, rolling-stock, and other property without a situs, for that part of the road-way, has been devised than to ascertain the value of the whole road, the whole rolling-stock, and the whole of the non-local property, and apportioning the value for county taxation by the relative length of the road within the county to the whole length.</p> <p>0. Same. Same. Board of Asseseors. The act of 1875, ch. 78, and the acts amendatory thereof, which provide for the appointment of a Board of State Assessors to value the property of railroad companies, and a revising board of examiners, are so far constitutional, notwithstanding some severable unconstitutional provisions in the earlier acts, that assessments under them acquiesced in by the railroad company by paying, and by a county by receiving, the county tax on the county’s proportional part of the valuation, are binding, when it appears that the county has received a larger amount of taxes than it would have been entitled to upon a strictly legal assessment.</p>

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

<p>FROM DAVIDSON.</p> <p>Appeal in .-error, from the Criminal Court of Lavid-sonj county. Matt. W. AlleN, J.</p>

<p>1. Railroad. Taxation. Hoard of Assessors. Certiorari. If the Board of Railroad Assessors do not follow the provisions of the statute, their action is subject to the revisory jurisdiction of the courts, invoked by certiorari. Although the boards may be officers of the State, and proposing to discharge their duties as such, yet if they leap the prescribed limits of the law under which they act, it is the right of those about to be injured to ask for, and the duty of the courts to grant, restraining relief, and this may be done by petition for and writs of certiorari and supersedeas.</p> <p>2. Same. Same. Same. Proof of mine. The statutes require that all proof be reduced to writing, sworn to and subscribed, etc. If the assessors base their estimates of value upon their personal knowledge formed from inspection and examination, which they may do, like all other testimony it should be reduced to writing, and an opportunity to cross-examine allowed the railroad.</p> <p>3. Same. Same. Same. Main stem and tranches. The assessors should assess each railroad owned by a company separately. The fact that the company buys or leases a road in continuation, or rather an extension, of the original line, can make no difference. The main stem, roads bought .or leased and branches should .bAseparately assessed, and counties through which branches run are only entitled to the tax on the branches according to their respective values.</p> <p>4. Same. Same. Same. Franchise, road-bed and svperstructw'e. The roadbed, franchise and superstructure of railroads are so ■ essentially intermingled, and each so indispensable to the value, of the others, t that they should he assessed together.</p> <p>-6. Same. Same. Same. Distributable property. The mandate of the statute requiring the assessors to assess the rolling-stock and-other distributable property of the railroad company separately from the other property of the company implies an authority to Value it together as a whole. '' •</p> <p>■6. Same. Same. Same. Exemption. A railroad company is entitled to an exemption of one thousand dollars from taxation, but the company is not entitled to an exemption upon each road purchased or leased, or upon its different branches. The owner of different railroads is no more entitled to donble exemptions than is the owner of several farms.</p>

<p>Taxation. Sale of Railroads. Immunities. Eights of purchasers. Where a railroad, exempt for a certain period from taxation, is sold under proceedings instituted hy the State to ’ enforce its lien or statutory mortgage, such proceedings being authorized hy statute and providing for the sale of the road, franchises, etc., and providing that all the rights, privileges and immunities appertaining to the franchise, shall he transferred to and vested in said purchaser and decree of sale so directing, the State is estopped to tax said road during the time the original company was exempt from taxation. In such a case the immunity from taxation of the company passed hy sale to the purchaser.</p>

<p>1. Mobtgagob and Mortgagee. Title to property conveyed. In this ■ State the legal title to the property conveyed in trust or mortgage passes at once to the grantee, and he is entitled to the immediate possession unless it is otherwise provided in the deed.</p> <p>2. Same. . Ohcmcery pleadings and practice. Judgment creditor. A mortgagee may file a bill qida timet, in a proper case, against a judgment creditor of the mortgagor to prevent a cloud upon the title of the mortgaged property.</p> <p>3. Same. Mortgage. Badge of fraud. The fact that some of the property included in a mortgage was consumable in its use, and was retained by the mortgagor, would, in the absence of an express reservation in the deed of the possession, and use in favor of the grantor, be only a badge of fraud as matter of fact, not law.</p> <p>4. Mortgage. Corporation may take and hold as mm-tgagee. A corporation may take and hold estates 'as a trustee or mortgagee, and execute trusts in which it has an interest within the scope of its business, and a failure or inability to comply with the provisions of the Code, sec. 1974, would not affect the validity of the deed or the title vested.</p> <p>5. Lien. Judgment. Supersedeas. A supersedeas of an execution or an injunction against the enforcement of a judgment will, under the Code, sec. 2983, keep alive the lien of the judgment, notwithstanding irregularities or omissions in the execution actually issued.</p> <p>6. Same. Rendition of a new judgment. The affirmance by this court of a judgment at law brought up by appeal in error or writ of error, by the rendition of a new judgment, or the rendition of a new judgment upon dismissing a supersedeas will not affect the statutory lien.</p> <p>7. Mortgage. Beneficiaries. Judgment creditor. Diligence. A judgment creditor and the beneficiaries under a trust assignment made by the common debtor, stand in no fiduciary relation to each other, and their rights must turn upon diligence and strict law.</p> <p>8. Tender. Not a satisfaction of judgment or discharge of lien. A tender by a judgment debtor to the judgment creditor of the full amount of the judgment debt, in a currency which the creditor is required by law to receive, is not a satisfaction of tlie judgment, or a dis. charge Of the judgment lien. The remedy of the debtor, if atender be refused, is to apply to the court to restrain the sale under execution, and enter satisfaction of the judgment.</p> <p>9. Same. Mortgage. Mortgage lien or title. A tender of a mortgage debt alone without more will not release the mortgage lien or title.</p>

<p>OhanceRY Pleadings and Practice. Foreclosure of mortgage. Court may decree for complainant’s debt. Under a bill filed by a judgment creditor for tbe foreclosure of a mortgage, with a prayer for general relief, tbe court may render a decree for tbe complainant’s debt, and order an execution to issue for tbe residue after crediting tbe net proceeds of the foreclosure sale.</p>

<p>FROM CANNON.</p> <p>Appeal from the Chancery Court at Woodbury. A.. S. Marks, CR.</p>

<p>1. Criminal Law. Charge. It is not reversible error for a judge to-hand to some of the jurors before argument of the cause, a charge-which had been given the jury in a former trial in same cause, not being given to them as containing instruction by which they were to be gdverned, but the object being to see if the jury could read his-handwriting with facility. No possible prejudice could result to defendant.</p> <p>2. Same. Separation of the jury. It is important to a fair trial that the-jury should not be permitted to mingle with other citizens. If permitted prima facie, the verdict is vicious. But this presumption may be removed by evidence showing the juror had no such communication. It is the opportunity of tampering with a juror, afforded by the separation, which constitutes the ground for a new trial, biit if such separation afforded no such opportunity, there is no cause for new trial.</p> <p>3. Same. Juror competent. A new trial will not be granted because a juror, before his selection, stated, that “he,had heard-the defendant had killed the deceased while sitting in a chair doing nothing; that he believed it but did not know whether it was true.” From his-having been selected, the presumption is he was competent. A stronger ease must be made after trial against a juror, in order to set aside a verdict than would be necessary to set h'im aside before selection. If a juror had read the statement of the homicide in a newspaper, and had formed no opinion, he would be competent.</p> <p>-4. Same. Relationship of juror and prisoner. A new trial will not be granted if the wife of a juror is kin to the wife of the defendant within the prohibited degree, and neither knew it when the juror was selected. This species of disqualification, propter defectum, must be taken advantage of before the jury is sworn, although the prisoner is ignorant of it.</p> <p>5. Same. Verdict. Reasons therefor. The jury must be presumed to have regarded the charge of the court, and if the conclusion arrived at does not otherwise appear erroneous, a juror will not be permitted to impeach his verdict by giving reasons for it.</p> <p>6. Same. Communications to the jury. A new trial will not be granted because the judge went to the jury room while they had charge of the case, and told them where he could be found if they agreed and wanted him; no injury resulting to the prisoner from such a statement. But it is better that no communication whatever take place between the judge and jury after the charge of the court, except in open court, and if practicable in the presence of the prisoner.</p>

<p>FROM IJNCOLN.</p> <p>Appeal from the Chancery Court at Winchester. Jno. W. Burton, Ch.</p>

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

<p>PEOM RUTHERFORD.</p> <p>• Appeal from the Chancery Court at Murfreesboro. Jno. W. Burton, Ch.</p>

<p>Chancery Pleadings and Practice. Bill to set aside fraudulent cwr-rnyance. Creditor entitled to judgment. Upon a bill filed by a judgment-creditor to set aside a fraudulent conveyance or device, although. the complainant fail to establish the fraud, the court may proceed to render judgment on the claim.;</p>

<p>FROM WILSON.</p> <p>Appeal from the County Court of Wilson county. -J.</p>

<p>CRrMCfrAn Law. Indictment. Larceny. Upon an indictment for larceny from the person, the defendant may he convicted of larceny, the same being necessarily included in the offense charged.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal in error from the Circuit Court of Williamson county. Wm. S. McLemore, J.</p>

<p>1. Cexmirai, Taw. Competency of juror. If a juror is related within the prohibited degree to the defendant, it is error to pass him to the accused for election or challenge.</p> <p>2. Same. Duty of jury. On Saturday night, while the jury had the csfee the court told them he would wait on them a while longer before adjournment, and if they could agree he would discharge them and have their discharge entered as of the next Monday, so that they could draw their pay for that day. No such proposition should have been made to the jury. They should return their verdict promptly, and the court should offer no inducement.</p>

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

<p>Wilis. Interest of devisee subject to execution. When. A testator provided by the fourth item of his will, as follows: “ I desire and direct that at the death or marriage of my wife, Sarah A., or as soon thereafter as possible, my plantation shall be sold on a reasonable credit and the proceeds of sale be equally divided between my sons, T. E. and P. E., and my grandson, J. M.” Prior to the death' of the widow, P. E. confessed judgment in favor of a creditor, who with the consent of P. E., levied an execution upon his undivided one-third of said land and sold the same, becoming the purchaser thereof. After the death of the widow the land was sold as directed by the will, and other creditors sought by bill to appropriate the interest of said P. E. Held, that the purchaser at execution sale ¡was entitled to the interest of P. E.; that he had such an interest in said land before the death of the widow as Was liable to sale under execution.</p>

<p>Chancebv Coubt Jubisdiction. Lost judgment. Bill to supply. Statute of limitations. Shannon recovered a judgment in 1860 before a justice of the peace against O. and J. A. "Woollard and Burle. Shannon transferred the judgment to Sullivan and agreed to pay it if he could not make the money off of the judgment debtors. Shannon afterwards paid the money and the judgment was satisfied by Sullivan on the docket. Shannon afterwards sued the judgment debtors in circuit court in an action of assumpsit for money -paid; said suit was decided against him. Afterwards the papers and judgment in office of the justice were lost. Shannon files bill in chancery court to set up said lost judgment and to set aside satisfaction thereof and to recover same of judgment debtors. Held, the subject-matter was not res adjudícala, that the statute of limitations of six years was no defense to any relief sought: that the statute of ten years, counting out the time the statute of limitations ceased to operate, had not expired when bill was filed, and that the chancery court had jurisdiction to grant relief.</p>

<p>Moetgagb. Relinquishment. Effect. Fraud. Bone executed a mortgage on house and lot to Layne, -which was registered. Afterwards he sold the property mortgaged to D. & H. at its full value, and executed a deed in fee simple. D. & H. had no actual notice of the mortgage. Being indignant at the fraud, D. & H. prepared and filed an attachment bill attaching other property of B. To prevent the attachment, Layne, at request of B, relinquished his mortgage and took- another mortgage on property which D. & H. were about to attach. D. & IT. dismissed their bill. Layne files a bill to set aside relinquishment of first mortgage on the ground that • same was procured by fraudulent representations of B., and seeking to set up the first mortgage, alleging he repudiated the second mortgage as soon as he discovered the fraud of B. Held, he could not succeed, though induced to relinquish by B.; D. & II. not participating in or having any knowledge of the fraud.</p>

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

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

<p>Purchaser. Bona fide. Mortgage. If a party holding a note for purchase money for land under title bond, surrenders his vendor’s lien by making a deed and taking a mortgage to secure his debt, he is a bona fide purchaser. The' theory on -which a mortgage to secure a preexisting debt is held not to be a purchase for value, is that the creditor parts with nothing, only gets additional security, but here-he does part with a security for his debt, which is as much a valuable consideration as if he had paid money for it.</p>

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

<p>FROM RUTHERFORD.</p> <p>Appeal from the Chancery Court at Murfreesboro. Jno. W. Burton, Ch.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Chancery Court of Davidson county. A. G. Merritt, Ch.</p>

<p>1. Bills and Notes. Alteration. Altering a note by substituting the figure “2” in place of the figure 3, so as to make it fall due twelve months earlier, without the consent oí one of the obligors, imports a fraud in law, whether so intended or not, and no wrong can be had on it either in its original or altered form against him.</p> <p>'2. Same. Same. Partners. Where, however, two of the obligors were partners, and both signed the note individually, the note being executed for borrowed money for the business of the partnership, and one of them altered the note, both are liable on a suit upon the note altered.</p>

<p>FROM BEDFORD.</p> <p>Appeal in error from the Circuit Court of Bedford county. Robert CaNtrell, J.</p>

<p>Tbustee. Bond. Liability of sureties. The sureties upon the hond oí a trustee which recites that he shall collect and pay over “ to the proper officer or person all of the railroad taxes assessed, or that should be assessed for said county within the time and in the manner prescribed by law,” are not liable for revenue, the result of taxes collected during a previous term. Upon such a bond the sureties are only liable for taxes collected upon assessments during the term of office of the trustee.</p>

<p>FROM HARDIN.</p> <p>Appeal in error from the Circuit Court of Hardin, county. T. P. Bateman, J.</p>

<p>PROM CARROLE.</p> <p>Appeal in error from the Circuit Court of Carroll county. C. Aden, J.</p>

<p>MOTION BY STATE.</p>