Volume 81 — Tennessee Reports

<p>EJROM OBION.</p> <p>Appeal in error from the Circuit Court of Obion county. C. Alen, J.</p>

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

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. W. W. McDowell, Cb.</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. Minm\ Ejectment. An infant was, by Ms general guardian, made a party defendant to an action of ejectment, upon the verdict in wMch the lower court rendered judgment in his favor, and this court against him after he came-of age, but without any entry showing appearance by him as an adult, and he filed a bill for the recovery of the land within three years after he came of age: Held, that the judgment in ejectment was no bar to the new suit.</p> <p>2. Same. Appearance by attorney, A judgment resting upon the unauthorized appearance of an attorney, may be annulled in equity upon a bill filed for the purpose,</p> <p>3. Ejectment. Equitable right. A recovery in an action of ejectment only determines that the successful party has the better legal title,, and will not prejudice the equitable rights of the losing party.</p> <p>4. Paetíjeeship. Levy on interest of partner. If, in legal effect, a partnership "be created between parties, all that an individual creditor of one of the partners could reach by a levy of .an execution on the interest of that partner in partnership realty, or that a purchaser under the execution sale- could acquire, would he the interest of the partner after a partnership account.</p> <p>•5. Same. Action of partner to avoid debts. If a person, having the capital, hold out two other persons as the only partners in a business, owned and conducted exclusively by him, in order to avoid certain claims which were likely to come against him, it is a point of grave difficulty, not now determined, how far such person could enforce against the other parties in possession the consideration of the conveyance of property to them bought with the ostensible partnership assets.</p> <p>•6. Same. Abandonment. Purchaser with notice. If such person took possession of real estate thus bought, remaining in possession until his death two years thereafter, and then one of the ostensible partners, who is also the guardian of the infant children of the deceased, take possession, and use the rents partly to pay partnership debts and partly for the benefit of his wards, and after the debts are paid exclusively for their benefit, the other partner never taking possession nor claiming any interest therein, and both afterwards joining in a conveyance of the realty to the children, there would be an abandonment of all claim except as trustee for the children, and a purchaser at execution sale of the interest of the partner who was never in possession, with notice of the equity of the children, would only acquire the legal title subject to the equity.</p> <p>7. Execution Sale. Caveat emptor. The rule of caveat emptor applies to a purchaser at execution sale, and if, at the time of sale, the purchaser has actual notice of an equitable right in a third person, especially if possession be held under that right, he will take subject to the equity; and a fortiori if he pay for the purchase by a credit on an antecedent debt.</p>

<p>1. Criminal Law. Witnesses before the grand jury. Contempt. The attorney-general during the term of the court, has no authority to-order the clerk to issue a subpoena for a witness to appear before the-grimd jury to testify as to gaming. If a witness appear under such subpoena and refuse to answer, he is not guilty of contempt.</p> <p>2. Same. Same. Same. A witness properly subpoenaed before the grand' jury to testify in regard to gaming, who refuses to answer touching his: knowledge of gaming, although his answer may show his own guilt,, is guilty of contempt for which he may be fined and imprisoned.</p> <p>3. Same. Contempt. A judgment of imprisonment for contempt is subject to revision by the Supreme Court brought up by writ of certiorarL</p>

<p>CRIMINAL Law. Murder. Objections after verdict. The prisoner being indicted on a single count for the murder of two persons named, went to trial upon the merits, and when the testimony developed the fact that the killing- of each of the two persons was by a separate-blow in the same transaction, made no objection to the evidence,, nor moved the court to compel the State to elect for which killing it would proceed. Held, that the,,objection of duplicity comes too late after verdict and judgment, and a motion in arrest of judgment will be of no avail.</p>

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

<p>Pleadings and Peactice. Attorneys. Damages. In an action against an attorney for a failure to bring suit upon accounts placed in his ■ hands for collection, the plaintiff, in order to recover more than nominal damages, must show that the accounts were valid, subsisting debts.</p>

<p>Homestead. Infant chiildren. Infant children occupying the homestead' with their surviving parent at his or her death, are entitled to the • homestead exemption during their minority, and cannot be deprived thereof either by their own act, or the act of third persons.</p>

<p>PROM MADISON.</p> <p>Appeal from the Chancery Court at Jackson. T. C. Muse, Ch.</p>

<p>FROM: OBION.</p> <p>Appeal in error from the Circuit Court of Obion county. C.' Aden, J.</p>

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

<p>Descent. Children of mother’s sister. In the descent of the realty of an intestate to the heirs on the part of liis mother, under the Code, sec. 2420, sub-sec. 2, the living- children of a sister of a mother will take to the exclusion of the half brothers on the side of the deceased son of a deceased daughter of the sister.</p>

<p>Actiohs, Local, and Tbansitoby. Plea in abatement. Where a justice of tlie peace 'in Carroll county issued a civil warrant charging the defendant, a railroad corporation, with “wilfully and negligently burning 300 pannels of rail fence, 50 apple trees, 25 acres of timber and forest trees, and two acres of corn in a field,” and the defendant pleaded in abatement that the land on which the rails were built, and the trees, timber and corn were growing, was wholly in Benton county. Held by a majority of the court that a demurrer to the plea was properly sustained.</p>

<p>FROM OBION.</p> <p>Appeal from the Chancery Court at Union City. John Somers, Ch.</p>

<p>.FROM MADISON.</p> <p>Appeal from the Chancery Com’t at Jackson. T. •C. Muse, Ch.</p>

<p>DivORCE. Publication. Resident dejendant. Tlie Code, sec. 2456, whieli-allows the petition of a woman for divorce to be heard without service of process or publication, if a subpoena was placed in the hands of the sheriff of the county in which the suit was instituted three months before the time when the subpoena is returnable, only applies, when the defendant is a resident of the county in which1 the suit is brought.</p>

<p>■Constitutional Law. Keeping a gaming house. Act of 1883, chap ter 230, embraces but one subject and is constitutional. •‘Etc” at the end and part of the title of an act means “ and others,” and “ and-so-forlh,” and is no.t to be rejected. “ Such ” refers to something which has preceded and means “ of that particular character specified.” An act may be valid if the intention of the Legislature can be intelligently gathered from the whole act, however awkwardly expressed. The object and purpose of the Constitution in providing that an act shall embrace but one subject, which shall be expressed in the title, is to give notice to the legislator of the subject of legislation, and it is sufficient so long as the subject-matter of the act is germáne to that expressed in the title, whether the body enlarges or restricts the title. If a statute admits two constructions, one of which would render it constitutional, and the other unconstitutional, the former should be adopted. And a doubt in relation to its constitutionality should be resolved in favor of the act.</p>

<p>1, Oexminal Law. Oath of jury. Where in the entry reciting the swearing of the jury when empanelled, the oath is, “who being elected, tried and sworn to well and truly try the issue joined,” and in the entry containing the verdict after giving the names of the jurymens it is recited, “ who being duly empanelled, elected, sworn and charged, well and truly to try the issues joined in this case, and the truth to speak, and a true deliverance on their oaths do say,” etc. Held, that if the first recital is defective the latter cures it.</p> <p>'2. Same. Charge of court. While it is proper when requested, for the circuit and criminal judges to charge all the grades of offense involved in the indictment, and reprehensible for them to refuse to charge, yet when the Supreme Court can see that the prisoner has not been injured by the failure to charge on all the grades of crime involved in the indictment, a new trial will not be granted.</p>

<p>1. Deed oe G-iet. Evidence. Burden of proof. Where a person claims. by deed of gift from one greatly enfeebled in body and mind, the burden of proof is on him to some extent, not clearly defined, to show that he had no voice in the transaction, or if he had, that his action was free from fault, or that the donor had the benefit of a full consultation with some disinterested third person.</p> <p>2. Same. Mortgage. Equity of redemption. A grantor may, by a mortgage or trust deed made to secure a debt, convey to the creditor, by voluntary gift, the equity of redemption if the land be not redeemed during life, the beneficiary, by reason of relationship or otherwise, being clearly shown to be an object of the grantor’s bounty.</p>

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

EROM I-IAYWOOD. Appeal from the Chancery Court at Brownsville. W. W. McDowell, Ch., presiding by interchange.

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

<p>1. Pleadings and Practice. Writ of error. The proper mode of proceeding to obtain a writ of error, after the lapse' of two years from the rendition of the judgment or decree, is by a petition, properly sworn to, stating the facts which take the petitioner’s case out of the usual limitation.</p> <p>B. Same. Same. Motion to dismiss. The appellee may contest the material facts of the petition by plea, and those facts will be taken as true upon a motion to dismiss the writ of error.</p> <p>■3. Same. Same A writ of error is in the nature of a new suit, and any person who brings himself within the saving of the statute is entitled to it as of right.</p> <p>4. Same. Same. Infant. Any person who will give the bond required by law may sue out a writ of error for an infant as his next friend.</p> <p>5. Same. Same. Same. Mamed women. The Code, sec. 3182, which an - thorizes infants and married women to prosecute writs of error within two years after the removal of disability, merely extends the time for suing out the writ, and the writ may be sued out at any time within the extended period, whether the disability exist or has been removed.</p>

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

<p>EROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby county. J. M. Geese, J.</p>

<p>1. Criminal Law. Gmrying pistol. Merger. While the defendant cannot be convicted of a separate offense for having a pistol at the time he did certain shooting, for which he has been convicted of assault with intent to commit murder, yet if the offense of carrying a pistol was complete before the shooting, the defendenf may be convicted! of carrying a pistol.</p> <p>2. Same. Sentence of the cowrt. Where a person is convicted of both a felony and a misdemeanor, it is proper that the judgment in the more severe sentence be executed first, because this affords less opportunity of escaping proper punishment.</p>

<p>CONSTITUTIONAL Law. Partial law. The act of 1883, ch. 138, creates a-, privilege, and limits the exercise of the privilege to certain corporations, and is a partial law, and unconstitutional.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court at Memphis. TV.. W. McDowell, Ch.</p> <p>FROM SHELBY.</p> <p>Appeal in ei’ror from the Circuit Court of Shelby county. J. O. Pierqe, J.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the Law Court at Jackson. T. C. Muse, J.</p>

<p>'Taxes. Reassessment. Where taxes have been declared void by reason of the illegality of the act authorizing them, they may be reassessed under act of 1873, chapter 40.</p>

<p>Pbinter’s Pees. Costs. Where publication of sale of land is ordered to be made in a daily newspaper, the presumption is that the advertisement is intended to appear in each edition of the paper until the day of sale unless otherwise ordered, and under Code, section 2150, printer’s fee of 80 cents per square for the first insertion, and 40 cents per square for each subsequentfinsertion may be collected.</p>

<p>1. CRIMINAL Law. Practice. Where the record shows that fourteen grand jurors were appointed at the term at which the indictment was found, and no notioe of the irregularity was taken in the court below, it is too late to make such objection in the Supreme Court.</p> <p>"2. Same. Oath of the jury. Where in a trial for murder, the record after reciting the defendant plead not guilty, joinder of issue and the names of the jurors polled, “ who were elected, empaneled and sworn to well and truly try the issues joined,” and does not contain th® common law form of “ well and truly try and true deliverance make,” etc. Held, that while it is best that the long established and recognized forms should be observed, the record was sufficient.</p> <p>■ 3. Same. Evidence. The general character of the deceased being in issue, it was not error for the court to exclude what the witness had heard of particular acts upon which collateral issues might arise.</p> <p>4. Same. Evidence. Threats and menacing and provoking language by deceased to defendant if communicated, are allowed to show the animus of the deceased and the state of mind of defendant towards the deceased.</p> <p>■ 5. Same. Evidence. The character of the deceased for violence should be considered in determining whether by overt act of the deceased the defendant had just apprehension of reasonable danger.</p> <p>6. Pb,actice ra Supreme Court. To reverse a judgment upon the ground that the evidence does not sustain the verdict, there should be preponderance against it.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby •county. J. M. Greer, J.</p>

<p>Registbation. Where at sheriff’s sale of land under execution tlie plaintiff in execution purchased, and the defendant in execution procured G to redeem the land or to purchase it and give him longer time to redeem, and after the time for redemption had expired, the sheriff and the defendant in execution made deed to G, and G voluntarily executed an instrument agreeing to convey the land to defendant in execution whenever he shpuld pay G what he owed him. Held, that said promise or agreement was not such contract for sale of land as veeted title or required registration.</p>

<p>EROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby ■county. J. M. Gkeeb., J.</p>

<p>1. Pleadings and Pbactice at Law. Evidence. Written instrmnent Construction. The general rule in this State is that the construction of a written instrument introduced as evidence, if complete and intelligible in itself, is matter of law for the court, expert testimony being admissible in proper cases to aid the court in reading the instrument.</p> <p>2. Railboads. Orders. An accident having occurred on a railroad by means of an obstruction put on the road-way by an unknown third person at a particular trestle in mile 60, the superintendent issued a written order to the employes of the passenger trains to slow up, run carefully, and keep a sharp lookout at mile 60, and while the order was still being acted on another accident occurred from a similar obstruction at the same trestle, by which the plaintiff was injured. Held, that the order required the engineer to slow up enough to stop the train on short notice when the emergency did arise, and the court properly instructed the jury to that effect.</p> <p>3. Same. Malicious obstruction. The duty of railroad companies in cases of malicious obstruction considered.</p>

<p>;_-Sa:le oe Land. Vendor and vendee. Streets. Where the owner of land sells it as building lots, bounding them on streets of a specified width as laid down on a map, although not actually opened, the purchaser acquires a legal right as against the grantor to have the streets opened to the width designated in the map. And if the land on which the streets are laid off belong to the vendor, the purchaser may, as against him and those claiming under him by the same sale, enforce the opening of the streets, or the keeping of them opened, ■and, if this mode of relief cannot be had, may have an abatement ■of the purchase price.</p>

<p>Ceiminax, Law. Indictment. Obtaining goods by fake pretense. An indictment for obtaining goods by false pretenses, under the Code, section 4701, is good which^charges the defendant, a merchant, with obtaining goods of another, by false representation, made with intent to defraud that other, of existing facts bearing upon his ability to pay for the goods.</p>

<p>Constitutional Law. Privilege Tax. Drummers. The act of 1881, chapter 96, section 16, amending the Taxing District law, which provides that drummers, and all persons not haying a regular licensed house of business in the Taxing District, offering for sale, or selling goods, wares and merchandise therein by sample, shall be required' to pay a specified privilege tax, is constitutional and valid.</p>

<p>'CONSTITUTIONAL Law. Sale of cotton. The act of the Legislature Acts of 1879, eh. 106, entitled “ An act to prevent the sale of cotton between sunset and sunrise” is constitutional and valid.</p> <p>'2. Criminal Law. Accomplice. Misdemeanors. There are no accomplices in misdemeanors, and therefore the rule that a conviction cannot be had upon the uncorroborated testimony of an accomplice •does not apply to misdemeanors.</p>

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

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

<p>Ckcminai. Law. Evidence. Witness. When the witness is within the jurisdiction of the court, but unable to be present at the trial, and there has been no failure of diligence on the part of the defendant, he cannot be compelled to take what he assumes he can prove by the witness as set out in his affidavit for a continuance, as the testimony of the witness, upon the agreement of the district attorney that the statements of the affidavit should be read as the testimony of the absent witness. Distinguished from Petty v. State, 4 Lea, 328.</p>

<p>FROM SHETJBY.</p> <p>Appeal from the Chancery Court at Memphis. R. J. Morgan. Ch.</p>

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

<p>PROM LAUDERDALE.</p> <p>Appeal in error from the Circuit Court of Lau-derdale county. Thomas J. Klippin, J.</p>

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

<p>1. Clerks. Where one.court is abolished and another established. "Where an existing court is abolished, and another court is established over the same territory and with like jurisdiction, and the business of the former is by the statute transferred to the latter, the latter becomes the legal successor of the former, and its officers are entitled to the possession of the books, papers and effects of its predecessor; and so, as often-as changes occur.</p> <p>2. Same. Sureties upon bond. If a clerk becomes his own successor having money in his hands, either as clerk or special commissioner and receiver, the old sureties will be released and the new sureties become liable therefor, and the presumption, in the absence of proof to the contrary is that the money is on hand, and this pre'sumption can only be removed by positive proof to the contrary, or at any rate by the production of the best evidence. The mere fact that the clerk’s account in bank was overdrawn at the time is not sufficient, when the proof is clear that there was no defalcation during the first term.</p> <p>3. Same. Same. Under the provisions of the Code a clerk, who is his own successor, would hold the^ funds in his hands in the same capacity in which he held them before, either as clerk or special commissioner, and his sureties would be liable accordingly. It would be the same if a succeeding clerk receiv e funds from his predecessor</p> <p>4. Interest. Decree of official bond. Appeal. A money decree of the chancery court, although for the full penalty of an official bond, will carry interest upon affirmance, whichever party appeals.</p>

<p>.1. Estoppel. Married women and minors. Femes covert and minors cannot be estopped by refusing to abide by a void agreement which, none of them were competent to make, there being no fraud or deceit; mere acquiesence, under disability, cannot affect them.</p> <p>’ 2. Statute op Limitation. Remaindermen. Seven years is required to complete the bar of the statute against remaindermen, after the termination of the life estate, even when the adverse occupant is claiming the fee pending the life éstate.</p> <p>3. Void Sales. Return of purchase money. Purchase money received upon a void sale of land is treated as an equity attaching to the land, and a subsequent purchaser, with notice, takes it subject • thereto.</p>

<p>.T. Contracts, Legislative. Taxes. Under the Constitution of 1834, the Legislature had power to grant to incorporations created hy it, either partial or total immunity from taxation for any length of time it deemed proper.</p> <p>'2. Corporations. May exercise new powers. When. The State may authorize a corporation to alter its original enterprise and exercise new franchises to any extent without impairing any contract with the corporators. The effect of such a law is merely permissive, and takes away no existing power and affects no existing right.</p> <p>-3. Same. Special provision as to taxation of. The provision in an act of incorporation that the company “shall pay to the State an annual tax of one-half of one per cent on each share of the capital stock subscribed, which shall he in lieu of all other taxes” is valid, and relieves the corporation from all other taxes, State or municipal. Under this provision its real estate necessary for the transaction of its business, is not subject to taxation.</p> <p>■4. Same. Charters inviolable. Neither the Legislature nor a Constitu- . tional Convention has the power to violate the contract between the State and a corporation contained in the charter of the latter.</p>

<p>1. Employer and Employe. Fellow-servants. An employe, as between himself and bis employer, undertakes.to run all the ordinary risks'of the service, and this includes the risk of injuries from the negligence of his fellow-servants.</p> <p>.2. Same. Same. The rule applies where the injury results from the. negligence of another employe who is the immediate superior of the injured employe, unless the superior servant so far stand, in the place of the master as to be charged, in the particular matter, •with the performance of a duty to the inferior which, under the law, the master owes to the inferior, or unless the injury is occasioned by the direct order of the superior in a sudden exigency.</p> <p>S. Same. Same. Railroads. Where a fireman on a railroad locomotive was killed by the explosion of the boiler while the engine was standing on the track ready to start with a train of ears, and the engineer failed to come thirty minutes before the time of starting as required by a rule of the company, it was error to charge the jury that if the proof satisfied them that the engineer had failed to comply with the rule, and were further satisfied that his delay was the proximate cause of the accident, then the plaintiff would be entitled to recover.</p> <p>4. Same. Same. Damiages. In an action by an employe against the employer to recover damages for the negligence of the employer in not having, or keeping in repair the boiler of an engine, if the trial judge charge the jury in relation to the knowledge of the employer of the defect, he should in the same connection state the effect of the knowledge of the employe of the same .defect; for ordinarily if the knowl edge or ignorance of the master and servant in respect to the character of the machine are equal, so that both are without fault or in. • equal'fault, the servant cannot recover.</p>

<p>1. Employee and Employe. Pleadings and practice. Damages. Burden of proof. In an action by an employe against his employer to recover damages for an injury to the plaintiff caused by .a defective machiné or tool, the burden of proof is upon the plaintiff, and it was therefore error in the trial judge to charge that the burden of proof was upon the defendant to show that the machine or tool was suitable and sufficient.</p> <p>2. Pleadings and Pbactice. JEvidence. Burden of proof. As a general rule, proof of the mere fact of injury will not, without more, establish negligence on the part of the defendant so as to shift the burden of proof.</p> <p>-3. Same. Same. Negligence. The cases in which proof of the injury and ■ that it was caused by the defendant will entitle the plaintiff to recover in the absence of countervailing .testimony, are cases in which the . evidence.that establishes the injury establishes also facts and circumstances from which negligence on the part of the defendant may be fairly implied.</p> <p>4. Same. Same. Same. Burden of proof. Where a fireman on a locomotive was injured by a jet of steam from an oil cup, which he was in the act of filling, and the proof left it doubtful whether the accident was the result of his own negligence or occasioned by a defect in the cup or its appliances, the case would be within the general rule» not the exception, and the burden of proof would rest on the plaintiff.</p>

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

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

<p>1. Wilis, Fobeign. Will pass lands. When. Authentication■ A foreign ■will, proved and recorded in the State of the testator’s domicil according to the requirement of the laws of this State as prescribed by the Code, section 2182, will pass lands in this State as between the parties without record or registration here, and a copy of such will duly authenticated under the act óf Congress will be evidence.</p> <p>2. Moetgage. Subsequent assignment. A mortgage of the interest which the mortgagor has in land under an agreement to convey, although without any covenant of warranty, if duly registered, will prevail over a subsequent trust assignment to secure borrowed money with covenant of warranty, the grantor acquiring the legal title after both conveyances.</p> <p>8. Lien. Subrogation. Resulting trust- The use of borrowed money for the purpose of paying off alien on land will not, without more, give ' the lender a right to be subrogated to the lien, nor create in his favor a resulting trust.</p> <p>4. Same. Receiver. Rent. A- junior lien creditor who impounds the property by the appointment of a receiver will be entitled .to the net proceeds of the rent until the older lien is properly enforced against the rent or the property.</p>

<p>1. Cbiminae Law. Defendant entitled to charge applicable to facts of case. A defendant in a State prosecution has a right, not only to a correct charge of the general principles’ of law applicable to the defense relied on, hut to a specific charge, if requested, of the law applicable to the particular facts of the case.</p> <p>2. Same. Same. Threats. Where, therefore, upon a trial for murder, the defense being justifiable homicide, it was shown that the deceased was a dangerous man and had threatened on the very day to take the life of the defendant before dark, which threats were communicated to the defendant, and it was further shown that the deceased about dusk went to where the prisoner was and-made a demonstration which might reasonably lead the defendant to believe that he intended to carry out his threats, but the proof in one aspect tended to show that he had no such intention, the defendant was entitled, upon request, & a charge that if he honestly believed, upon .reasonable grounds, that his life was in danger he would be justified in killing the deceased, whether the deceased went to where the defendant was to execute his threats or not.</p>

<p>1. Mabried Womeít. Agent. Separate estate. A married ■woman, in whose name as the owner of a stock of goods a retail business is carried on by the husband as her agent, is not liable personally on notes executed by the husband .in her name for new goods, nor is her separate estate bound for the payment of the debt thus created in the absence of a legal contract to that effect.</p> <p>2. Same. Suit upon notes executed for goods. Pleading and practice.. If, upon being sued at law upon such notes, the married woman pleads her coverture, the title to the goods would revert to the vendors, and they could sue for the same in replevin, or by bill in equity to reach the specific goods, or their proceeds if capable of being identified and followed; but the vendor creditors, in the absence of proof of positive fraud on the part of the married woman, have no lien upon, and cannot subject other goods of her separate estate for their demands, nor hold her liable as trustee or otherwise for the value of their goods which may have been lost, destroyed or otherwise disposed of.</p>

<p>OeiminaIi Law. Breaking into house with intent to commit a felony. If two persons break into a house, one with intent to commit a felony and another with an innocent purpose, the party having the intent to commit a felony is guilty without reference to the secret purpose which the other party may have had.</p>

<p>Railboads. Damages. Damages sustained in driving a cart across the track of a railroad at a dangerous place, by the driver being thrown from the cart by its toppling motion, are not the proximate result of an obstruction by the railroad company of the public crossing by a standing train of ,cars, for which' an action will lie against the company.</p>

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

<p>FROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton •County. D. C. Trewhitt, J.</p>

<p>PROM SULLIVAN.</p> <p>Appeal in error from -the Circuit Court of Sullivan, county. 1ST. Hacker, J.</p>

<p>PROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton county. D. C. Trewi-iitt J.</p>

<p>Municipal CORPORATIONS. Tarnation by. Under an ordinance declaring certain occupations and business transactions privileges, and taxing them as such, among others enumerating “ hacks, carriages, drays and wheeled vehicles run for a profit,” a firm of merchants are liable who kept a dray used for the hauling of goods to the depot for their non-resident customers and for which service drayage was charged.</p>

<p>Bonds. Coupons. Interest. The endorser of a negotiable State bond, whose liability has been fixed by demand of payment of the bond at maturity, protest for non-payment and notice, is thez-eby rendered liable for .the unpaid coupons then attached to the bond, with interest thereon, without a separate presentment for payment of the several coupons as they fell due, protest for non-payment and notice.</p>

<p>Will. Construed. The will of John Ramsey bequeaths all his real estate to his. wife, and provides that “al her death it is my wish and desire that my real estate be divided equally between my son, John C., and daughter, Martha S. The heirs of my deceased daughter, Maiy Jane, being hereafter provided for in this instrument. After settling all claims for and against the estate, the balance, together with my personal property, I leave to the judgment of my son, John C., and Martha S., believing they will do what is just and right by each other, and their deceased sister’s children.” Out of the personal property certain' special bequests are made, including one to his grand-daughter, Susan C. Bowan. The will further provides “After deducting what I gave to my deceased daughter, Mary Jane, during her life, and paying what my estate is responsible for, it is my wish and desire that my executor pay to my deceased daughter’s children, after they become of age, the balance, should there be any balance, that may be coming to them as the heirs of their mother’s part of my estate. In the event of the marriage of my daughter, Martha S., before the death of her mother, it is my wish that she be provided with a home, either by a division of the farm or by my son John 0., paying to her the value of the half interest of said farm as they may agree upon.” Held, that under said will the children of the deceased daughter took no interest in the real estate.</p>

<p>'Guardian and Waed. Pension money received by guardian is for support and maintenance of ward, and when received the guardian must show that he has faithfully applied it to the purposes for which it was designed. A,liberal policy may be applied in such cases where the court can see that the fund has been actually appropriated to and received by the ward, but if otherwise appropriated the guardian must respond to the extent he fails to show a proper application of the fund. t</p>

<p>1. Vendob’s Leist. Where a suit has been commenced to enforce a vendor’s lien, none being reserved on the’ face of the deed, the equity fastens on the land and no creditor can intervene to defeat the right under that proceeding.</p> <p>2., Fbaudulent Conveyances. The test as to whether a conveyance is fraudulent or void as to a creditor is: Does it hinder him in enforcing his debt? Does it deprive him of a right which would be legally effective if the conveyance or devise had not been resorted to ?</p>

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

<p>I/CJNATICS. Inquisition in county court. Proceedings. Where the estate of the lunatic does not exceed five hundred dollars, the county court has exclusive jurisdiction. If it exceeds five hundred, the jurisdiction of the chancery and county court is concurrent, and in such cases the latter must conform to the rules and regulations laid down for the conduct of similar business in the chancery court as far as practicable. Code, construed, sections, 3681, 3692, 3695, 3696, 4196.</p>

<p>1. Title. Common source. It is only necessary for a plaintiff in ejectment to deraign Ms title from the person under whom it is proven the defendant claims.</p> <p>2. Ejectment Biel. Outstanding title. The outstanding title, which will defeat a plaintiff in ejectment, must be a present, subsisting, operative and available title, not one reverted, abandoned or barred.</p> <p>3. Title by Estoppel. A made deed of conveyance to O, reciting therein that he had previously conveyed same land to B, who had conveyed it to O; B had just before given O a statement in writing that he had given or deeded the land to C. Neither deed was registered, nor was there any other proof of the existence of either. Held, that B and A were both estopped to deny title in 0, and that O would therefore recover in equity against persons not claiming under B, but by title adverse to his. \</p> <p>4. Impboyements. Who entitled to. Measure of value. Constructive notice by registration of adverse ’ title will not defeat claim for improvements by party bolding under color of title, without actual knowledge of registered title. Improver is entftled to full value of betterments at date of surrender or sale, to be ascertained by report, or to relative value to be shown by report and sale, at the election of the title holder.</p>

<p>PROM JOHNSON.</p> <p>Appeal from.1 the Chancery Court at Taylorsville. H. C. Smith, Ch.</p>

<p>EROM CUMBERLAND.</p> <p>Appeal from the Chancery Court at Crossville. "W. M. Bradford, Ch.</p>

<p>Chaítcbkt Pbactice. Decrees upon order pro confesso. A decree settling the rights of the parties, founded upon an order pro confesso after personal service upon a party swi juris, is a final decree, and cannot be set aside at a subsequent term, except upou proper proceedings instituted for that purpose. Code construed, sections 3476, 3824, 3829,, 4369, 4371, 4375, 4377, 4379.</p>

<p>EROM HAMILTON.</p> <p>Appeal in error from the Circuit Court of Hamilton County. I). C. Trewhitt, J.</p>

<p>Bevehtje Colleotoes. Lien for taxes paid. A collector of revenue who has paid the taxes assessed on real estate sold under proceedings not recognized as regular, is entitled to be substituted to the lien of the State and county for the taxes thus paid, and a hill in chancery is the proper proceeding to enforce this right.</p>

<p>. Homestead. The homestead right is not a fee simple right, hut a right of occupancy for life.</p> <p>•2. Same. Right of in equitable estates. The right of homestead exists in equitable estates, but 'all liens acquired before the homestead has been established must be raised by the claimant of the right of homestead, or it will be sold to satisfy such liens.</p>

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

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

<p>FROM JOHNSON.</p> <p>Appeal in error from the Circuit; Court of' Johnson county. Newton Hackee, J.</p>

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

<p>FROM JEFFERSON.</p> <p>Appeal in error from the Circuit Conrt of Jefferson county. James G. Kose, J.</p>

<p>PBOM BRADLEY.</p> <p>Appeal from the Chancery Court at Cleveland. W. M. BRADFORD, Ch.</p>

<p>from sullivan.</p> <p>Appeal from the Chancery Court at Blountville. H. C. Smith, Ch.</p>

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

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

<p>EROM DAVIDSON.</p> <p>Appeal in error from the Criminal Court of Davidson county. Matt. W. Arlen, J.</p>

<p>■Corporations, Municipal. State tax collected by. The tax upon cases tried in municipal courts is to be paid by the parties convicted, and is not a tax imposed upon the city or in the exercise of one of its agencies or powers, nor is it costs in cases tried before these courts. A party convicted in these courts cannot be imprisoned to secure the payment of this tax. The tax is to be paid by the party found guilty.</p>

<p>Tax, Pbiveuege. Merchant. Although a merchant’s license' he issued for a year under the act of 1883, chapter 105, yet if the business be terminated sooner, as for example, by fire, the license and the tax should, under the act of 1883, chapter 29, be limited to the period of the actual exercise of the privilege, counting by quarters of the year.</p>

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

<p>1. Tax Sale. Deservption. A tax sale of less than the whole of a town lot in these words: . “ Eighty-four feet of this lot,” does not sufficiently define the quantity of land bid off, and is void.</p> <p>2. Same. Same. A sale of so many feet front of a town lot and running back of equal width to the depth of the lot would be good; and so, it seems, would be a sale of a definite fractional part of the lot, as for example one-tenth, one-fourth, or one-half, or of so many acres of a tract of land.</p>