Volume 82 — Tennessee Reports

<p>1. Bonds, Oeecial. Treasurer. Sureties. The hond,. which the statute requires the treasurer of the State to give, is a joint and several bond, each obligor becoming bound for the entire penalty.</p> <p>2. Same. Same. Same. But if the treasurer execute a bond, which is accepted, binding each of the sureties for only an aliquot part of the penalty, the sureties cannot be held liable beyond the terms of the contract.</p> <p>3. Same. Same. Same. If the treasurer execute a bond more than a year after the commencement of his term of office, which is accepted, containing no words of relation, the sureties will only be liable for such funds as the treasurer then had in his hands, and such-as were afterwards received by him during the time he continues in the discharge of the duties of the office.</p>

<p>Appeal. Pawper oath. Non-residents. The act of 1879, chapter 94 which amends section 4144 of the Code, only deprives non-residents of the State of the benefit of that section by taking the pauper oath, and does not otherwise affect the general law as embodied in the Code, section 3192.</p>

<p>Set-obf. Judgments. This 'court may set off one judgment against another under the Code, section 2925, both judgments being rendered by it.</p>

<p>.1. Judgments. Evidence. A former judgment may be given in evidence under the general issue, as well as pleaded in bar, and would be equally conclusive.</p> <p>2. Same. Pleadings and Practice. A judgment was recovered in the county court, upon motion, against the administrator of the late clerk of the court and the sureties on the clerk’s bond; the defendants afterwards undertook to remove the cause into the circuit court for a new trial by writs of certiorari and supersedeas, which writs were dismissed on motion of the plaintiffs; the defendants then appealed in error to this court, where the proceedings below were reversed, and the motion dismissed. Held, that the judgment'was not on the merits.</p> <p>-3. Estoppel, Evidence. As a general rule, the onus of establishing an estoppel is upon him who invokes it, and in all cases in which the record gives no intimation whether a particular matter is determined, or where the language used leaves it uncertain and to conjecture, the party relying on the estoppel must aver the fact and support it by proof aliunde.</p> <p>•4. Same. Judgment. Record. If the judgment of this court is relied upon as an estoppel, and the record does not clearly show whether the decision was on the merits, the court may look to the opinion delivered in the case, which is also a record, to clear up the doubt.</p> <p>'5. Pleadings and Practice. Flea of former judgment. A plea, or replication of a former judgment, would be bad on demurrer which failed to show that the judgment was or was not on the meritSj as.the pleading requires, but this may be done, either by averment, or by setting out the judgment in haeo verbe, if the judgment itself state facts which plainly supply the averment.</p> <p>■6. Same. Same. Demurrer. If the opposite party, instead of demurring to a defective plea or replication of a former judgment, take issue upon it, the defect would be waived, and cured by verdict.</p>

<p>'Wmis. Legatee. Personal estate. Undivided realty. Subrogation. A legatee, whose legacy has been absorbed in payment of debts of the estate, is entitled by subrogation to the rights of creditors, to have his legacy out of undivided realty.</p>

<p>I. AdmiíobtRAtob. Accidental loss of assets. Bis duty. An administrator, or other trustee, who suffers a loss of trust assets accidentally by fire, should promptly in a reasonable time bring the facts to the knowledge of the beneficiaries, and perhaps should take immediate steps, if the facts be not admitted, to obtain an allowance for the loss from a court having jurisdiction of the subject-|natter; but, at any rate, if he fail to communicate the facts to the beneficiaries and only sets up the defense to a bill filed against him for an account after the lapse of twelve years from the loss, the burden of proof is on him, and he must make out the defense with reasonable certainty.</p> <p>2. GaAscBsy Pleading and Pbactioe. Admissions of answer. An answer admitting specific items of charge, without any application to the court to modify its language, cannot be changed on mere conjecture based on the evidence.</p> <p>S. Same. Exceptions to evidence. Exceptions to evidence must be shown by the record to have been brought to the attention of the chancellor . and acted on by him, otherwise they will be considered as waived.</p> <p>4! Same. Administrator. Admission of assets. Evidence. Admission of assets in writing, not under oath, made by an administrator in a case to wMch lie is a party, is, of course, evidence against Mm, and is also prima faaie evidence, as would also be the judgment recovered thereon, against the surety who is also a party.</p>

<p>1 CauirNAii Law. Commissioners of poor. Misfeasance. “Commissioners of the poor ” aré liable to indictment for failure to supply the inmates of the poor house with necessary support and shelter.</p> <p>2. Same. Same. Same. The section of the Code providing for the removal of the commissioners by the county court at pleasure is not intended as a punishment or penalty for a misfeasance, but may be exercised at the pleasure of the county court, without any wrongful act on the part of the commissioner.</p>

<p>1. Taxes. Savings Bank. Whether a bank is “ a savings bank” is determined not by the designation in the charter, but its character should be determined by its organization, powers and mode of doing business, provided in the corporation act. The power given to femes covert and minors to make deposits, and when their deposits reached $100, at their option to be converted into stock, if valid, does not denote a savings bank.</p> <p>á2. Same. Same. Privilege. Savings banks are liable to the privilege tax imposed by the acts of 1881 and 1883, although said banks may have earned no surplus.</p>

<p>RAILROAD Commissioners. Salary. Temporary injunction. The statute which creates a railroad commission provides that each commissioner shall receive, a salary of $2,000 annually “unlessrestrained by law from the performance of their duties.” Held, that their salaries would not cease upon the suing out by several railroad companies of temporary injunctions against the performance of their functions, so far as those roads were concerned, which injunctions the courts, upon motion and argument for the purpose, declined to dis- ■ solve, but had not made perpetual by final decrees.</p>

<p>Pleadings and Practice. Damages. W. and 0. quarreled- and fought, and during the fight W.’s son, who had not been engaged in the quarrel, without the knowledge of W, out C., from which he died: .Held, W. was not liable in a suit for damages for the killing of 0., as the killing was not the natural and proximate consequence of W.’s wrong.</p>

<p>1. Taxes. Assessment. Comptroller. Railroads. Under tlie acts of 1879 and 1883, making it the duty of all collectors of taxes to assess omitted property, the Comptroller of the State is the proper officer to make the assessment of the property of railroad companies.</p> <p>2. Same. Same. Collection. How enforced. An assessed tax on property is a debt of the owner of the property during the period for which the assessment is made, and may be enforced like any other debt, although the statute authorizing the assessment prescribes a specific mode of proceeding.</p> <p>3.Same. Same. Omitted property. The property of a railroad company liable to taxation for years previous to the act of 1875, which first created a State Board of Assessors for the assessment of such property, may he assessed under a subsequent act of the Legislature expressly providing for its assessment for the taxes of those years.</p>

<p>Railroads. Eminent domain. Eight of way. Trespass. Section 16 of chapter 151 of act of 1851-2,' old Code, section 1119, was intended as a general amendment to the charters of all railroad companies' that might see proper to accept its provisions by exercising the rights and privileges conferred by it, and under it a railroad company authorized by its charter to condemn land for right of way, may condemn land to build a track connecting or uniting it with another railroad, and if it appropriates land for such purpose without having same condemned, it is not liable as a .trespasser, but for its value and incidental damages, under the statute providing for the measure of damages in case of condemnation proceedings.</p>

<p>1. Pleadings and Pbactice. Suit against county. The Code, section. .403, merely prescribes the mode of suing a county without creating any new county liabilities.</p> <p>'2. Same. Same. Damages. An action will not lie against a county for damages sustained by the laying off by the county court of a public road afterwards held by the courts to be a shunpike, and ordered to be closed.</p>

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

<p>1. Mandamus. BiU of exceptions. This court will, in aid of its appellate jurisdiction, compel a trial judge, by mandamus, to sign a bill of exceptions, but the writ will only be granted when it appears • that there has been a clear abuse of discretion.</p> <p>2. Same. Will not be granted, when. The writ will not lie where the trial judge, having a rule of court limiting the time for filing bills of exception, twice grants an extension for definite periods far beyond the limits of the rule, within which time of extension, so far as appears, the bill of exceptions might, by diligence, have been completed, and no further extension of time was asked for.</p>

<p>1. Lease. Assignment. Lessee and Assignee. By an assignment of his lease, a lessee divests himself of his privity of estate and transfers it to the assignee, who will hold in privity of estate with the original landlord.</p> <p>2. Same. Same. Same. The assignee of a lease, by accepting possession of the land, subjects himself to all the covenants which run with the land, among which are the covenants to pay rent, taxes and assessments, and a subsequent assignment of the lease will not relieve him from a breach of covenant occurring during the time of his enjoyment.</p> <p>3. Same. Purchaser of leasehold interest. A purchaser under a foreclosure of a mortgage or trust conveyance of a leasehold interest becomes an assignee of the lease, liable accordingly during his enjoyment of the demised premises, and therefore personally chargeable with taxes aceuring during that period, as between him and the owners of the reversion.</p>

<p>1. Chancery Pleadings and Practice. Bill for new tried. Courts of equity will grant a new trial at law upon strong and clear grounds, but tbe facts upon wliicb tbe relief is claimed, and wbicb must show fraud, accident, surprise or mistake unmixed with negligence on tbe part of the complainant,his agent or attorney, must be stated in the bill, and, if denied, sustained by proof.</p> <p>2. Same. Same. There are cases of applications in equity for a new trial, such, for example, as those based on newly discovered evidence, where the court of chancery,' after the ground for a new trial is established, may decide the litigation finally; but there are other cases, such, for example, as suits for damages for a personal injury, where the new trial must be at law.</p> <p>-3. Same. Same. Where a bill for a new trial is based on a failure to obtain the benefit of a bill of exceptions in the appellate court, enough must appear to show that injustice was done in the trial at law on the merits.</p> <p>4. Same. Effect of overruling demurrer by Supreme Goii/i't. The overruling by the Supreme Court of a demurrer to a bill for a new trial adjudges that the bill contains sufficient equity, which, if sustained by proof, would entitle the complainant to relief; if unsustained the right to relief fails.</p> <p>5. Same. Bill of exceptions. If, upon a bill filed for a new trial upon the ground that the complainant had been deprived of the benefit of a bill of exceptions at law, it appears that the bill of exceptions in question does not embody the charge of the judge to the jury, nor show that it contains all the evidence, the right to relief would probably fail.</p> <p>6. Same. Same. And if the new proof on the merits and the bill of exceptions together make out a stronger case against the complainant on the merits than the bill of exceptions alone, and the bill of exceptions contains sufficient evidence to sustain the verdict of the jury in the trial at law, the complainant will be clearly entitled to no relief.</p>

<p>1. Execution. Judgment. Sights of ‘purchaser. Where there is a valid judgment on which an execution can properly issue, a mistake made by the officer, whose duty it is to issue it, is a mere error or irregularity, for which the execution may be quashed upon direct proceedings for that purpose; but if the defendant allow the writ to be executed, the error will not ordinarily prejudice the title of a third person claiming under it, either directly or through the judgment plaintiff; the_title of the plaintiff himself, by an estoppel or disability personal to himself, being open to attack by the debtor and those claiming under him, if the error be such as is not amendable.</p> <p>'2. Same. Sheriff’s sale. Identity. A purchaser at a sheriff’s sale of land must show, in support of his title, a judgment, an execution thereon, and a sale and conveyance under the execution, and when a variance is found between the execution and the judgment, or between either and the recitals of the conveyance, the question is one of identity, and if from the whole writ and the whole judgment record the court can feel assured that the execution was issued upon the judgment, and the conveyance was based upon both, the identity is established.</p> <p>•3. Same. Same. Same. Where, therefore, a judgment on a sale note was rendered in the case of L. H. Nunnelly and others against W. H. Carothers and others, in favor of W. H. Johnson, clerk and master and special receiver, the judgment by its caption and recitals showing the facts, an execution, reciting the judgment correctly in all respects except in stating the judgment was in favor of L. H. Nunnelly and others was held to be sufficiently identified, the judgment debtor having, in writing on the back of it, authorized the sale of the land in controversy, and after the sale, having paid the costs to the sheriff.</p> <p>4. Same. Alias. Endorsement. The issuance of an alias fi. fa. only raises a presumption of the waiver of a levy on land made under the previous fi. fa., which is rebutted by an endorsement by the clerk of the levy on the alias, with a written direction to sell the land thus levied on, and a written agreement by the debtor himself that the land described in the levy might be sold by the sheriff at a designated time and place, which was done.</p> <p>5. Same. Same. Return and deed of sheriff. The land thus sold was hid off by an attorney “for the plaintiffs,” according to the, return of the sheriff, but for W. M. Johnson, as recited in the sheriff’s deed, and Johnson, as clerk and master, joined in the deed conveying the land to the defendant, he having paid to Johnson, clerk and master, the amount of the bid at the sheriff’s sale, with interest, and Johnson, as clerk and master, having piaid the money to L. IT. Hunnelly and others, the beneficiaries in the suit. Held, that the defendant had a good title to the land as against the children of the judgment debtor.</p>

<p>Cuebk, Supreme Court. Commissions. The Clerk of the Supreme Court is not entitled to the six per cent, allowed by statute to the clerks of the circuit courts on moneys received by him from delinquent collectors and reported to the Comptroller and paid into the Treasury of the State.</p>

<p>1. CORPORATION, Municipal. Privileges. Taxation. In respect to privileges, a municipal corporation is left to the exercise of a sound discretion in imposing taxes thereon, unless restricted by the Legisla- ■ ture in the charter of incorporation, or by some general law of the State, subject to the revision of the courts for oppression.</p> <p>'2. Same. Same. Same. Municipal corporations are limited by the act of 1869, ch. 38, sec. 2, (T. & S. Rev. Code, sec. 691#) in fixing the license of retail liquor dealers to a sum not exceeding the State tax, and this section has never been repealed.</p> <p>•3. Sake. Same. Liquor dealers. The act of 1883, -oh. 106, see. 4, fixes the State tax on liquor dealers in a town of the population of Gallatin at $150 per annum, and the corporate authorities of that town could only levy a municipal tax on the privilege to the same amount. The levy is not void in toto, but only for the excess.</p>

<p>1. Pleading and Pbactice. Oharge of court as to matters of faet. Under the State Constitution, Art. 6, sec. 9, that “ judges shall not charge jurors with respect to matters of fact,” this court has invariably held that judges are forbidden to instruct the jury upon the weight of evidence, or as to the. conclusion to which it must bring their minds.</p> <p>2. Same. Same. A charge, therefore, to 'the jury that the. plaintiff is entitled to recover the amount of the note sued on with interest, and you will so return your verdict, is erroneous.</p> <p>.3. Same. Same. Reversal. The error of such a charge has been held not sufficient to require a reversal in several cases in which the ver- - diet and judgment were in favor of the defendant below, and it clearly appeared that the plaintiff could in no event be entitled to recover, and the same rule would no doubt be applied where the verdict and judgment were in favor of the plaintiff, if it clearly appeared that the defense could in no event be maintained.</p> <p>4. Same. Same. It cannot be said that there was no disputed fact to be submitted to the jury, where the matter in controversy was whether goods were sold by sample, and the defendant introduces proof tending to show that the sale was by sample, and that the article received was not equal to the sample.</p>

<p>1. CRIMINAL Law. Order to •prosecute. Indictment. A description of a person slain different in some respects from that contained in an order to the Attorney-General to prosecute ex officio, enough appearing to show that the person thus differently described is the same, will not invalidate the indictment.</p> <p>2. Same. Same. Same. If in the entry of the order to the Attorney-General to prosecute ex officio, the clerk enter by oversight a different name, the court, upon affidavit of the clerk and the personal recollection of the judge, may at a subsequent term of the court have a nunc pro time order entered.</p> <p>'3. Same. Same. Presumptions. Liberal presumptions are made in favor of proceedings of the court in appointment of Attorney-General to .ex officio prosecute.</p> <p>4. Same. Discharge of jurors. The discretionary power of the court to discharge jurors for any sufficient cause other than those expressly provided by law, is well settled. The defendant and the State are entitled to the same right, to-wit: a fair trial by unbiased jurors.</p> <p>•6. Same. Evidence. Experts. Experts may testify as to the results of experiments made before and during the trial based upon fácts established by the evidence.</p> <p>6. Same. Same. Upon a trial for murder, there being no direct testimony to show how the killing was done, nor by whom, and the proof not showing clearly that deceased did not commit suicide, it is competent for the defense to show a suicidal tendency in deceased by proof of threats of self-destruction or attempts to commit the act.</p>

<p>1. Supbbmb Court Practice. Appeal. Exceptions. An appeal from. the rulings of the chancellor upon certain exceptions to the master’s report will not bring up the case as to unconnected exceptions of other parties.</p> <p>2. Administration. Appropriation of fund. When complete. L. borrowed money from a Wilson county national bank to buy back, certain specified cattle, giving his note therefor, with W. as surety, and at thirty days, and agreeing with the bank in parol that the cattle should be pledged for the debt, sold by him within thirty days, the proceeds to be applied to the satisfaction of the debt. .He sold the cattle within thirty days for the declared purpose of paying the debt, and directed the purchaser at the time, according to weight of testimony, to pay the purchase money, when the cattle were delivered to him at Nashville, to W. on the debt, if present, and if not, to deposit the money in a Nashville bank for the benefit of the Wilson county bank on the debt, and the purchaser, in violation of the instructions, sent a check by the driver of the cattle, payable to L., which check was delivered to L.’s wife, L. being on his death bed, and dying within forty-eight hours thereafter, it not being shown that he received the check or took any action in relation thereto: Held, that there was a completed appropriation of the fund by L. in his lifetime, which was not affected by his death and the insolvency of his estate.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson county. Frank T. Reid', J.</p>

<p>1. Cbiminaxj Law. Burglary with intent to rob. Where defendant was indicted for burglary, with intent to commit robbery, proof showing the breaking and entry by violence, accompanied by a loud noise in the room where prosecutor and wife lived, indicates an attempt to rob rather than to commit a simple larceny.</p> <p>2. Same. Evidence. Testimony "showing that defendant and a stranger, whom the proof shows was with defendant in committing the burglary, were together several weeks previously in a neighboring town, and that pistols were at that time stolen from tlie witness, and the pistol found at the place of the burglary, was of the same make, and like the one stolen from witness, and that defendant was then going under an assumed name: Held, competent.</p>

<p>Marital Bights. Resulting trust. Wife’-s-interest in land bought with ■ her personalty reduced to possession by husband, and title taken to husband, extinguished. A wife, M. B., consents to sale of her land for personalty, the personalty is exchanged hy husband for other land and title taken to husband, husband then conveys this land for benefit of creditors. Held, on bill by the wife to set up a resulting trust in the land so conveyed to creditors:</p> <p>1st. The marital rights of the husband attach to the personalty so exchanged.</p> <p>2d. The wife has no resulting trust to the land conveyed to the husband in consideration of such personalty. .</p> <p>3d. The right of creditors to such land conveyed by husband for their benefit, is superior to right of wife.</p> <p>4th. Any verbal promise by the husband to settle the land so exchanged upon the wife, is within the statute of frauds and therefore void.</p>

<p>1. Chancery Pleadings and Practice. Administrator. Insolvent estates. Overpaid creditors. Where an administrator, under the belief that the estate is solvent, pays a number of the creditors in full, taking from each of them an obligation to refund the excess over the pro rata of his claim, and to hold the administrator harmless for making the payment, if the estate proves eventually to be insolvent, and is about to be wound up as such, the administrator may file a bill in the county of the administration against all of the overpaid creditors, some of whom reside or are found in that county, for an account to ascertain the pro rata of their claims, and to recover the excess over such pro rata.</p> <p>2. Same. Same. Devastavit. And the chancellor in the insolvent suit having properly charged the administrator with the sum of his payments in full to creditors with interest, upon the ground of a de-vastavit, the administrator is entitled to recover from such creditors the excess of payments over the pro rata of their claims with interest.</p> <p>3. Same. Order of consolidation. Appeal. An order consolidating such a suit with the suit for the administration of the estate as insolvent, leaves each case to turn upon its own pleadings and proof, the proof and accounts taken subsequent to such oi’der being proof and accounts in both causes, unless the record show the contrary upon proper exception and rulings, and an appeal in one case will not bring up the other. A remand for separate proceedings would he a mere technicality, the parties having already had the benefit of such proceedings.</p>

<p>1. Official Bond, Sheriff. Appeal bond, surely on. Bight of subrogation. Officious payment. Sureties on the official bond of a sheriff, against whom judgment has been rendered for default of sheriff, the sheriff alone appealing to the Supreme Court, are not in the jurisdiction of the latter court, and it can render no judgment against the sureties not appealing.</p> <p>2. The surety in such case, though not bound by the Supreme Court judgment, is bound Jby the judgment below for the same original liability, and his payment of Supreme Court judgment without execution to the amount of the judgment below, is not an officious payment.</p> <p>S. On the payment by the surely of the debt, he becomes entitled to the rights of the creditor in the appeal bond, and the sureties in the appeal bond are liable before the sureties on the official bond.</p> <p>4. The surety on sheriff’s bond, who pays a judgment against him and the sheriff, for the default of a deputy sheriff, is entitled to have the bondsmen on the deputy, sheriff’s bond to the sheriff held liable.</p> <p>5. A surety cannot hold his co-sureties liable for any payment made by him, which he was not bound to pay.</p>

<p>FROM WILLIAMSON.</p> <p>Appeal from tbe Chancery Court at Franklin. W. S. Fleming-, Ch.</p>

<p>Limitations, Statute of. Wills. Possession. Devisees and legatees under a will duly proved and recorded in common form, who go into possession of the real and personal property devised and bequeathed to them, will have their title perfected by the statutes of limitations, although the will be afterwards set aside upon an issue of devisavit vel non, and the possession of a tenant for life under the will inures to the benefit of the remainderman. v</p>

<p>1. Criminal Law. Obstructing officer. Oivil process. Indictment. Indictment need not aver jurisdiction of justice if execution be set out, and is regular upon its face and for an amount within jurisdiction of justice.</p> <p>2. Same. What necessary to make offense. The offense consists in an obstruction or resistance at time of service or execution of process, and a subsequent rescue of property levied upon is not sufficient.</p> <p>S. Same. Trespass. Violence. Mere trespass upon property after levy, without violence, is no offense.</p> <p>4. Obstextcting- Officer. Criminal process. 'Sescue. Arrest. The rescue of a prisoner after arrest is a different offense from obstructing or resisting an officer in making an arrest.</p>

<p>1. Lex Loci Contractus. Lex fori. Bights and contracts arising under the statute laws of another State will not be enforced here except under the doctrine of the comity of States, and such rights will not be enforced here if repugnant to the polity and spirit of our laws.</p> <p>2. Same. Where there is a well founded doubt as to whether the law of the forum or the lex loci contractus should prevail, the former will always be given the preference.</p> <p>3. Statutes, Beal and Personal. A real statute is one which regulates prpperty within the State where it is in force, and a personal statute is one which follows and governs the party subject to it wherever he goes.</p> <p>4. Husband and Wire. Marital rights. Where a husband, while residing in Alabama, where under the statute laws all property of the wife held by her before marriage, or which she becomes entitled to after marriage, is her separate estate, and not subject to the debts, of the husband, and the property belonging to her vests in him as her trustee, who may receive and manage-and control same, and he is not required to account to his or her heirs or representatives for the rents, profits and income, and such rents, profits and income are not liable to his debts, and he received property of hers and converted same to his own use, thereby becoming her debtor, and he and family afterwards moved to this State, and he bought property and contracted large debts, when he executed a deed of trust on his property in this State (before the general assignment act of 1881), preferring his wife as a creditor, it appearing that the debt to the wife was bona fide: Meld, that the marital rights of the husband to the property of his wife, so converted by him, did not attach, and the conveyance should be sustained.</p> <p>5. Same. Registration. It was not necessary, under our registration laws,. to register any evidence of such debt, and the registration of the deed of trust before the rights of creditors attached protected the wife.</p>

<p>1. Winns. Technical words. Technical words, taken in their technical sense as contradistinguished irom their popular meaning, will not he allowed to defeat the intention of the testator to he gathered from the whole instrument.</p> <p>2. Same. Forfeitwe by contest. A provision of a will, that “ if any of the parties to whom I have made bequests attempt to break my will they shall forfeit the bequests made to them,” is not null and void because contrary to public policy or any constitutional provision, but the same will be enforced, both as to personal and real property.</p>

<p>1. Deeds. ■ Paper testamentary. Where there is an absolute conveyance of land reserving a trust in favor of the grantor and his wife, to the former for life, to the latter for life or widowhood, with a disposition of the’remainder after wife’s death or marriage, the paper is a deed and not testamentary. Both the trust estate in favor of grantor and wife and the beneficial remainders took effect at once as vested estates, the first in possession, and others to be' possessed on the happening of a contingency.</p> <p>2. Same. Delivery. Pegistration. The execution and delivery to he registered of a deed, and the payment of the register’s fees by the grantor, is equivalent to an actual delivery.</p> <p>3. Same. Description of land. When sufficient. The description in a deed as “two tracts of land adjoining each other, in Marshall county, containing in all about three hundred and fifty-three and one-half acres, the land being the land on which I now reside,” is sufficient.</p>

<p>1. Rests. Belong to heir or devisee. Rents which accrue from real estate, of which the testator died seized and possessed, after a hill is filed in chancery for construction of will and to sell the lands to pay debts, belong to the heirs or devisees under the will, and cannot be applied to the payment of debts.</p> <p>2. Descent. Alienation hy heir. The heir or devisee is so far the owner that if he bona fide alien the land, the bona fide purchaser gets a good title, and the creditor’s remedy is against the heir or devisee for ancestor’s debts to the value of the land aliened.</p>

<p>Insurance, Fire. Substituted policy. Agent. Estoppel. W. S. White-man procured several fire insurance policies, which were issued to him, losses, if any, to he paid to Whiteman Bros., a firm composed of W. S., James and Albert Whiteman. Nelson was his agent to . procure the policies. After insurance a company issuing one of the policies notified Nelson that it desired to cancel the policy, and sent him a policy for same amount and similar provisions on another company to be substituted. Nelson saw Albert Whiteman, who assented to the substituted policy. Loss occurred before he saw W. S. Whiteman, and before the policy was delivered. After-wards substituted policy was delivered and original policy surrendered: Held, the substituted company was liable, as the assent by one of the beneficiaries and partners was sufficient. And held further,. that Nelson, as to the substitution, was the agent of the company, and it was estopped to deny its liability.</p>

<p>Homestead. Abandonment. Under the homestead acts before 1874, the homestead was a possessory right dependent upon occupation, and was lost, even by a married woman, by voluntary abandonment.</p>

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

<p>1. Sepabate Estate. Power of disposition. If, without any previous agreement Between the husband and wife as to the disposition of the proceeds of sale, the wife’s dower land be sold, and the notes for the purchase money be made payable to both, the husband may reduce them to possession by collection, assignment, or other valid disposition, the wife’s right being only to a settlement, or of survi-vorship before such disposition. And if, after the sale, a trust in the notes to the wife’s separate use be created by agreement between the husband and wife, she may, neverthless, give them to her husband if there is no restraint upion her power of disposition.</p> <p>2. Same. Trust by parol. It requires express terms to impose upon property the character of separate estate, and to create a valid trust by parol the language used must amount to a clear and explicit declaration of trust.</p> <p>3. Same. Evidence. The testimony of the wife alone, as against third persons, will not be sufficient to change the legal effect of instruments of writing formally executed, and a fortiori, if her own testimony shows that her recollection is not reliable.</p> <p>4. Exemption. Widow’s year’s allowance. Conversion by administrator. Exempt articles and effects set apart to a widow for her year’s support vest in her, and if the administrator converts any of the articles, her remedy is against him as an individual.</p>

<p>Iien. Feed of horse. Conversion. If a person puts his horse in the hands of a trainer to he trained and kept at a stipulated sum, the trainer has a lien upon the horse for his services and expenses, and an offer to sell the horse to pay such expenses will not be treated as a conversion, it appearing that the act of offering to sell was not in defiance of the owner’s title, hut only an irregular mode of attempting to enforce a lien.</p>

<p>1. Bank of Tennessee. New issue certificates. The sureties of a party liable to the Slate for taxes collected by him, which liability was merged into a judgment October 4, 1884, cannot discharge the judgment in non-due certificates issued under the act of March 29,1883, in redemption of the new issue of the Bank of Tennessee.</p> <p>2‘. Same. Same. Same. What judgments may he 'paid. Final judgments against delinquent collectors or their sureties “ outstanding and subsisting” at the date of the act, may be paid in such certificates, not judgments subsequently recovered. ■</p> <p>3. Officers, Ministerial. Powers. Ministerial officers, authorized to issue paper binding on the people, must strictly pursue the power given them.</p> <p>4. Taxes. Revenue collector. Judgment. Judgment against a defaulting collector of revenue and his surety, is not “back taxes” in the sense of the statute.</p>

<p>Dowee. Homestead. Alien. If an alien husband, after desertion of his wife, settles in this State, and dies, leaving an alien wife, she is entitled to dower in the lands of her deceased husband, but is not entitled to homestead.</p>

<p>1. Railboad. Personal injuries. Damages. Fellow-servants. Ií a yardman is killed while coupling cars by request oí the engineer, by the - negligence of the engineer, it not being a part of the duty oí the yardman to couple the cars, a recovery cannot be had against the railroad. To entitle a recovery it must be shown that deceased was in the line of his employment, and met his death by the negligence of a fellow-servant having control of him.</p> <p>2. Same. Improved machinery. Damages. A railroad company is bound to provide its cars with such fixtures and apparatus as are calculated to insure the safety of its employes, but it is not necessary to change the machinery to apply every new invention. If they were such as are in common use, and were safe and fit for the purpose used, although not as safe as another kind, the company woud not be liable.</p>

<p>Administratob. Refunding bond. Surely. An administrator paid John and Green Winstead a sum oí money on the assumption they were distributees of his intestate, taking from them a covenant: “ If from any cause said sum should be ascertained to he in excess of my distributive share in said estate, I bind myself, and each of us hind ourselves, to refund such excess to the administrator.” It turned out that the 'said John and Green were not entitled to any share of the estate. Upon suit against surety on covenant, Held, that the-surety was liable for full amount paid, all of said sum being excess.</p>

<p>PARTNERSHIP. Mortgage. Estoppel. Election. M. F. DeG., Sr., died in 1869, leaving Ms will, in which, among other things, was recited, that he had loaned certain amounts to DeG. & Co., and then had notes for same, and might hold notes or obligations of said firm for other considerations, and had loaned certain children certain amounts, and that no interest be charged on the debts against DeG. & Co., or any of the children; that after his death the debts against DeG. & Co. be divided into five equal parts, and the firm have the right, within six months after his death, or longer, if physically impossible to do so sooner, to give notes for same payable in one, two, three, four and five years, without interest; and provided that after charging his children with advancements therein named and charged in his “ Child’s Book,” and payment of debts, all his estate, together with moneys due and owing his estate by DeG. & Co., be equally divided between all his children. The executors named having declined to act, M. F. DeG., Jr., and D. qualified as administrators with the will annexed. The testator had been twice married and left three children, two sons, M. F. DeG., Jr., and T. D. DeG., and a daughter, Mary A., who had married P., issue of the first, and ten children, issue of the second marriage. On January 4, 1856, these two sons and the son-in-law, P., purchased an iron establishment in Kentucky and entered into partnership for the manufacture of pig iron, which, by agreemeent, was to continue five years. The testator held at the time of his death four notes upon the firm, and also mortgage executed January 19, 1859, by said firm upon thirteen hundred tons of pig iron, to secure a loan of that date of $25,000, all of which was specifically charged in the “Child’s Book.” On July 25, 1865, the testator executed a general power of attorney to M. F., Jr., and W. F. DeG. to take charge of, manage and settle his affairs and business. W. F. declined to accept, but M. F. DeG., Jr., accepted, and from 1866 to his father’s death acted as such agent. On January 12,1870, the administrators returned an inventory of the debts, etc., due their testator, including said notes on DeG. & Co.; copies of the notes had been made and pinned to the originals, and by mistake same were also included as notes. On March 3, 1870, the bill in this case was filed to have said will construed; to have an account and settlement of the agency of M. F. DeG., Jr., as attorney in fact; to have, the real estate partitioned or sold for division, and to have said estate wound up and distributed under said will. The bill expressly referred to said “ Child’s Book ” as being in the hands of the administrators, stating same would be produced when called for. At the April term, 1871) M. F. DeG. filed his affidavit denying the liability of himself and T. D. DeG. upon said firm debts, and presented his petition asking to be allowed to resign his trust as administrator, stating that the master’s report would be made at that term. This was allowed) and he was made defendant. On September 30,1871, said M. F. and T. D. DeG. filed their special plea of non est factum to said firm notes, averring that said firm had been dissolved before the execution of same, and that they were executed by P. without authority. The master’s report was made April 21, 1871, charging the debts against DeG. & Co. to be $55,516. M. F. and T. D. DeG. excepted to said report, because said four notes were not the acts and deeds of DeG- & Co.; because said $25,000 was not a proper charge against said firm by reason of the ifig-iron mortgaged to secure same having been lost through and by the acts and conduct of the testator. A formal and elaborate answer was filed by M. F. and T. D. DeG. after all the proof had been taken. The proof showed that about April 1> 1859, the firm sold and disposed of its negroes, about ninety in number, and mules, horses and wagons, and other personal property, and that all manufacture by the firm suspended at that time, and the said M. F. and T. D. DeG. returned to the testator’s home; that the testator was present at the s'ale of the negroes; that he was paid $17,000 the firm owed him by transfer of notes by the-purchasers for the negroes; that the land and about three thousand tons of pig iron belonging to the firm were not sold. P. continued to conduct the financial affairs of the firm, and the sons remained at their father’s for two years, and then enlisted in the Confederate army. At the time of the execution of the mortgage the firm had on hand about 3,000 tons iron, and the iron mortgaged was not separated from the bulk. The iron remained where it was when the firm ceased manufacturing, until the early part of 1862, when P., to prevent it falling into hands of the Feder'als, undertook to have it removed to Clarksville, and he did move about 1,100 tons • of same to that place, and a part of the remainder while being removed was captured and confiscated, and that so captured and that which had not been removed was entirely lost; that which was carried to Clarksville was sold and disposed of by P. under the advice of the testator, to prevent the “yankees” from getting it. After the war the testator employed a claim agent to collect from the U. S. government any claim he might have by reason of the confiscation of said iron.</p> <p>Held, That said partnership had not been dissolved when said notes were made, and that the members of the firm were chargeable with same. 2. That the long time that was permitted to elapse by M. F. DeG., Jr., and T. D. DeG., without any enquiry into the transaction in regard to the mortgage on the pig iron to secure the 825,000 with knowledge that said $25,000 was held as 'a debt against them as members of said firm, repel the idea that it was satisfied, or that they considered it so. 3. That said M. F. DeG., Jr., and T. D. DeG. were es-topped by their conduct from setting up defense of non est factum as to’ said notes. 4. That they having elected to file the bill and proceed as above set out, it was too late for them afterwards to get the defenses they afterwards claimed. 5. That said M. F. DeG. and T. D. DeG. were chargeable with said notes and said $25,000, with interest from the death of the testator.</p>

<p>1. Administbatob. When personally liable. The principle on which an administrator is held personally responsible, is a want of due diligence, such as a prudent man-would ordinarily exercise in his own. affairs of like kind.</p> <p>2. Same. Failure to me. An administrator will not be held liable because of bis failure to bring suit, Where the suit would be unsuccessful.</p> <p>3. Pbincipai and Surety. When surety discharged. If the holder of a note surrenders to the maker collaterals, which were placed in his-hands by the maker, which were ample to indemnify him, the surety on the note is discharged. . •</p>

<p>1. Stayor. Verbal authority. Justice’s office. Verbal authority specially given by a stayor to a justice, though not at his office, or the place where the judgment was rendered, to enter his name as stayor, will, upon such entry being made, bind him.</p> <p>2. Two Days. Though given after the two'days allowed for stay had expired, .it will bind the stayor if the plaintiff consented thereto.</p>

<p>1. Indictment. It is not necessary to allege in an indictment for bringing stolen property from another State into Tennessee, that it was-done “feloniously.”</p> <p>2. Evidence. No evidence should be arbitrarily rejected, but the question of its weight and credibility is one exclusively for the jury to decide.</p> <p>3. Abgument. It is not allowable for the attorney-general in his closing argument to refer to or state facts relating to the accused, likely to influence the verdict, which have not been x>resented in evidence. But facts of history may be referred to in argument by way of illustration, though not strictly pertinent to the issue.</p> <p>4. Same. It is highly reprehensible for the attorney-general in his argument to suggest that the people would not submit to an acquittal, but it is not reversible error.</p>

<p>1. Pleading befobe Justice. The defense that a note sued upon before a justice, was made at a date different from that it bears, must be specially pleaded in writing under "oath.</p> <p>2. Same. Usury. The defense that a note, bearing a rate of interest lawful at the date the note purports on its face to have been executed, was not delivered until after the repeal of the law permitting such rate of interest to be charged, must be pleaded on oath in writing, in an action on the note before a justice.</p>

<p>1. Homicide. Indictment. Where a father was indicted for having hilled his child by blows, evidence that he had exposed and neglected the child was held to be admissible, to show malice.</p> <p>2. Same. The indictment charged that death was produced by bruises and blows. The evidence showed that death resulted from pleuro-pneumonia superinduced by the wound and blows. Meld, that the offense was established.</p>

<p>County Coubt. Jurisdiction. Tlie chairman oí the county court has no jurisdiction to determine a contest over the office of county superintendent of common schools.</p>

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

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

<p>1. Once in Jeopardy. Acquittal under an indictment charging murder, is not a sufficient plea to a subsequent indictment for the offense of being accessory before the fact.</p> <p>'2. Triad. Severance. Where defenses are antagonistic and the ends of justice will be better obtained by separate trials, a severance should be granted; but the question is one addressed to the sound discretion of the court, and unless abused, a new trial will not be granted by this court because a severance has been refused.</p> <p>3. Same. Where A, B and 0 were jointly indicted, A for the murder, and B and C as accessories before the fact, and a severance was demanded by them upon the following-grounds, viz., by A upon the ground that he could prove by B and B’s wife, and by them alone, that the wife had made certain communications to him, as to an attempt on the part of the deceased Ho commit a rape upon her person; by B, upon the ground that he could prove by A that he did not counsel or in any manner procure A to commit the murder; by O' that he could prove by B that the deceased had attempted to commit a rape on C’s wife — B’s daughter — it was held that a severance ought to have been granted, and a new trial was granted because it was not.</p> <p>4. Evidence. Confessions of principal, as against accessory. The confessions of the principal are admissible on the trial of an accessory before the fact, not to fix guilt upon the accused, but to establish the murder, just as if the principal had been on trial.</p> <p>5. Same. Hea/rsay made competent by cross-examination. A witness in detailing the confession of the principal A, proceeded to state what A told him B and C had stated to him, B and 0 not being present when the witness and A had the conversation. Held, incompetent, but that it had been made admissible, inasmuch as B and C had brought it out on their own cross-examination.</p>

<p>1. Indictment. Pleading. Surplusage. Where an indictment charges an offense in the language of the statute, other and additional aver-ments not required by the statute, do not necessarily change the offense into a different one. Such additional averments should be disregarded as surplusage.</p> <p>2. Obstructing- Railroad Track. 1 Death occasioned thereby. Placing obstructions on a railroad track, whereby a hand-car is thrown from the track, and an employe of the railroad killed, is not a violation of sections 5387, 5388 of the (M. & Y.) Code. The statute relates alone to cars and trains propelled by steam and drawn by locomotives.</p>

<p>1. Special Agent. Authority of. Where an agent with only authority to contract for the sale of musical instruments, sold a piano, taking a note payable to his principal, therefor, and without authority sold and endorsed it, and the maker paid it to the endorsee, after he had been notified by the payee not' to do so, .'it-was Held, that the payee could recover of the maker, and the maker could also recover the money he had paid the endorsee.</p> <p>2. Ratification by Silence. Silence will amount to ratification where the principal with knowledge of the transaction of his agent, fails for a reasonable time to dissent. Delay in suing after the principal has given notice of his refusal to approve the agent’s act, raises no presumption of ratification.</p>

<p>1. Evidence. Dying declarations. In order to render a statement ad-' missible as a “ dying declaration,” it is not necessary that the deceased should state in language, at the time of making it, that he was cofiscious of impending dissolution. It is sufficient if the facts and circumstances reasonably satisfy the judge that the declarant was in extremis, and laboring under the impression of impending, or almost immediate, dissolution.</p> <p>2. Same. Dying declarations are admissible in evidence without regard to whether there is other evidence as to the transaction capable of being produced or not.</p> <p>3. Depositions in criminad cases. A deposition taken by an accused person without an order of the court, cannot be read as evidence, though taken by the consent of the attorney-general.</p>

<p>1. Redemption. Where land has been sold at execution sale, the right of creditors to redeem, from the purchaser at the sale, or of one creditor to redeem from another who had previously redeemed from the purchaser, cannot be cut off by a sale of the land by the judgment-debtor.</p> <p>2. Same. Sale by judgment-debtor. A sale by a judgment-debtor, of his land which had been sold at execution sale, within the two years allowed for redemption, without having previously redeemed himself, is in effect merely a sale of his equity of redemption; and this although his conveyance purports to be a sale of the entire title.</p>

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

<p>1. Contbact. Consideration. Where the charter of a railway company provided that its road should not be run so near an existing turnpike as to injure it, without the consent of the turnpike company, the consent of the latter company — the road being actually located in pursuance of tlie agreement — was a sufficient consideration to support a promise by the railway company to assign stock in its road in payment therefor.</p> <p>'2. Laches. Delay. An agreement was made between a railway company and a turnpike company in 1848, whereby stock in the former was to be transferred to the stockholders of the latter company in payment of the damages done the turnpike by the location of the railroad. In 1851, the railway company directed its officers, by an order on its books, to issue such stock certificates to the turnpike company, or its stockholders, as they were entitled to, under said agreement. In 1856, the railway company, by an order on its books, directed the certificates to be issued as provided by the agreement. In 1872, such certificate- was issued to one of the turnpike stockholders -under the contract of 1848. The certificates not [having been issued to the complainants — who were turnpike stockholders — they filed a bill in 1879 to compel the issuance of the certificate for such stock.,. The defendants pleaded lapse of time, the altered circumstances of the parties, and laches, but it was—</p> <p>Held: (1.) The order entered on the books of the company in 1851. was an equitable appropriation of the stock to the parties indicated, (2.) The railway company,having recently (in 1872), recognized its obligation to transfer the stock, cannot resist the claim on account of its staleness.</p> <p>(3.) The agreement, having been recognized by the obligor as to one of the parties, will be enforced in favor of all having rights under it.</p> <p>3. Contract. Mutuality. Inasmuch as the turnpike stockholders did assent to the agreement of 1848, and consent to take the stock which it provided should be issued, the fact that they were not bound, by the terms of the agreement, -to accept it, is not sufficient to support the defense of a want of mutuality.</p> <p>4. Contract, norm: on. A contract made by two companies under their seals for the benefit of the stockholders of one of the contracting companies upon the one side, may be enforced by such beneficiaries.</p>

<p>1. Bevenue Bonds. Execution of by sureties. The act of 1879 (chapter 9), required county trustees to appear before the county court, on or before the first Monday in March and, with their sureties, acknowledge their willingness to be bound anew on their then existing bonds, ’ or to give new bonds; and it declared the office of such trustees as failed to renew the old, or to give new bonds, vacant. To meet the requirements of this statute the trustee of Coffee county, and one Ashley, as the attorney in fact of the sureties, appeared before the county court. Mr. Ashley assumed to act under a power of attorney which authorized him (sic) “ to sign and acknowledge our names to any bonds,” etc. The old sureties of the trustee, and Mr. Jernegan, a new man, executed the power of attorney to Mr. Ashley. Mr. Ashley, as such attorney, acknowledged the old bond for the sureties, and added the name of Mr. Jernegan as additional surety thereto. Held, that the old sureties and the new surety, Jernegan, were all bound.</p> <p>2. Motion against Tkustee on his Bond. Parties. Amendment. Where a motion which should have been made in the name of the State for the use of parties entitled, is made against a trustee and his sureties upon notice alone to the trustee, in the name of the chairman of the county court, it may be amended by the consent of the trustee, so as to be in the name of the State; and in the absence of fraud, collusion or mistake, the sureties will be bound as if the suit had been instituted in the name of the State in the first instance.</p> <p>3. School Fund. Motion in name of State for use of county, A motion may "be maintained in the,name of the State for the use of a county to recover of a delinquent trustee, school moneys collected hy him.</p>

<p>1. Will,. Condition precedent and subsequent. No precise form of words is required, to create a condition in a will, but any language suffi-. cientiy disclosing the intention will suffice, and whether the condition is precedent or subsequent will depend upon the nature of the thing and the intent to be gathered from the whole instrument,</p> <p>2. Same. Same. A bequest to a legatee provided he would aid in the defense of a particular suit brought against the testator, the onus of' proof being thrown upon the legatee to prove the fact of such aid to the satisfaction of the executor, in which event the executor is to, judge the point and pay the legacy, is a legacy upon a condition precedent.</p> <p>3. Same. Condition that legatee aid in defense of suit not void. Such a condition is not void as against public policy where it is clear that the testator believed in the justice of his defense, and neither in the will nor otherwise required the legatee to render any assistance that was not legal.</p> <p>4. Same. Contingent legacy. Will not bear interest. When. When the condition on which a legacy depends is precedent, the legatee has no vested interest until the condition is performed, and a contingent general legacy will not bear interest until the contingency occurs.</p> <p>5. Saids. Interest when legacy becomes vested. If the will directs that the indebtedness of such a conditional legatee to the estate be deducted from the legacy with interest, the interest must be calculated up to the time when the legacy becomes vested and payable.</p> <p>6. Same. Conditional legacy. When recovery cannot he had. If tlie legatee of such a conditional legacy, or the assignee of the legatee, fail to show compliance with the condition, and it is proved that the legatee, in conversations with the executor, so expressed himself as to indicate that his feelings and interests were against the testator, there can be no recovery.</p> <p>7. Same. Same. If, on the other hand, the proof tends to show that the legatee has been loyal 'to the estate, ready and willing to aid as re-u quired by the will, but has never been called upon to render any particular' service, either by the testator or the executor, the condition will be treated as complied with.</p> <p>•8. Same. Discretion of executor subject to revision by court. The executor being required to decide whether a condition has been complied with or not upon proof, his discretion is not arbitrary but subject to the revision of the courts.</p> <p>9.Same. Legacy of interest. A legacy which directs the executor, in an event which happens, to loan out the principal and pay the legatee the interest annually as long as he lives “and nothing more,” will not carry the principal.</p> <p>10. Same. Indebtedness of legatee. Bankruptcy. Under a will which directs the indebtedness of the legatee to the testator at his death to be deducted from the legacy, the debt must be deducted although the legatee had, previous to the death of the testator, filed his petition in bankruptcy, but had not then been discharged.</p> <p>11. Same. Legacy to woman and children. Indebtedness of husband cannot be deducted from part of children. A money legacy to a woman and the childron of her body by her then husband, she having two children by the husband at the death of the testator, goes to the mother and children in equal moieties, and, under another provision of the will that if the legatees owe the estate any thing at the testator’s death, “ either themselves, husbands or wives, it shall be deducted- out of their part of the legacy,” the indebtedness of the husband of the legatee cannot be deducted from the children’s part of the legacy.</p> <p>12. Same. Executor not allowed to make profit out of funds. An executor, or other trustee, cannot be allowed to make a profit out of the trust funds in his hands, and his use of the same for his own benefit will be a breach of trust, and he will be charged with simple or compound interest according to circumstances.</p> <p>-13. Same. Same. . Same. He will be charged with simple interest or with profits made, if more than simple interest. An executor, who has used the money of the estate himself, will be charged with simple interest thereon, although he has not made a profit equal to simple interest; and if he make more than simple interest, he will be charged with the whole profits, either by charging him with compound interest, or in such other manner as will best carry out the principle of giving the beneficiaries all the profits, the beneficiaries in doubtful cases being allowed to elect.</p> <p>14. Same. Same. Interest. Commissions. An executor, who deposits the money of the estate in his name as executor with a trading firm, consisting of himself and his son-in-law, he having a three-fourths interest in the assets and business, and being the principal manager, commits a breach of trust, and will be charged with interest from the date of each deposit. In this instance, and under the circumstances, the executor was charged with simple interest, and allowed half commissions.</p> <p>15. Same. Executor. Settlement. General account. The ex parte settlements of an executor with the probate court, even if prima fade evidence in his favor, may be opened by the legatees or distributees by a bill calling for a general account, without surcharging and falsifying the accounts.</p> <p>16. ADMINISTRATION. Personal assets liable for municipal taxes. When. The personal assets of an estate were and are chargeable with the municipal taxes of the incorporated town in which the personal representative resides.</p> <p>17. "Will. Monument. When the will directed the executor, after all the just debts and liabilities of the testator and funeral expenses were paid, to erect a “ suitable monument ” to his memory, the discretion of the executor in the matter of the character and cost of the monument will not be interfered with except in the case of gross abuse, especially where the residuary legatee, claiming under a charitable bequest, alone objects.</p> <p>18. Executor. Attorney’s fee. An objection to the fees of a counsel paid by the executor cannot be entertained, where the only testimony introduced tends to show the performance of the services and the reasonableness of the compensation, and there is no proof to the contrary, although the court may think that the amount goes to the verge of liberality.</p> <p>19. Widow. Cannot recall dissent from will. A widow, who dissents from her husband’s will, with full knowledge of the facts, and without any frand, concealment or improper conduct on the part of the executor, or other persons interested in the estate, cannot recall her dissent, certainly not after an acquiesenee of twelve years.</p> <p>20. Same. Debts and expenses of administration. Under the provisions of the act of 1859, chapter 3 (new Code, section 3252), a widow, who dissents from her husband’s will, takes her distributive share of the personalty of the estate after the payment of the debts and expenses of administration.</p> <p>21. Same. Payment of her distributive share by executor. The executor may pay to the widow and the husband she may afterwards marry, her distributive share of the estate, or any part of it, taking their receipt, even if they have entered into a marriage contract settling upon her the corpus of her property then owned or afterwards acquired, especially if the settlement give her a separate estate in the property “as fully and completely as if the marriage were not to-take place.”</p>

<p>1. OhancbRY Pleadings and Pbacticb. Bill of review. Evidence. Fraud. Upon a bill to set aside a decree it must be made evident tliat complainant had a defense on the merits or to the relief sought, and that such defense or right had -been lost to him without such loss being attributable to his own omission, neglect or default. The loss of a defense or the failure to obtain relief, to justify a court of equity in setting aside a decree must, in all cases, be occasioned by the fraud or act of the prevailing party or by mistake or accident on the part of the losing party, unmixed by any fault on his part or his agents.</p> <p>2. Same. Same. Suppression of evidence. Upon a bij.1 of review where fraud is relied on by suppression of evidence, it must clearly appear that the evidence assumed to be withheld was not only material, but would have unquestionably changed the result, had it been before the court on the original hearing, and the suppression of evidence in the possession of the opposite party, must he withheld under such circumstances that the party was under a legal obligation to have revealed or furnished, or he must have used some artifice by which they were concealed from the other party.</p> <p>3. Executor. Evidence. An executor is not bound to volunteer any disclosures to the injury of the estate he represents.</p>

<p>Constitutional Law. Police powers. The act of the Legislature which empowers Taxing Districts to condemn and abate as nuisances all houses which shall be found unhealthy, is not in violation of the provision of the Constitution which provides “ that no man’s particular services shall be demanded or property taken or applied to public use, without the consent of his representatives, or without just compensation beihg made therefor.” This inhibition has no application as a limitation of the exercise of those police powers which are necessary to the safety and tranquility of every well ordered community.</p>

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

<p>Deed. Delivery. Registration. A deed of gift of real and personal property, containing the following clause: “ This deed will be delivered to a friend for safe keeping, with directions to deliver at such time as I may direct,” was acknowledged for registration and delivered to a third person enclosed in a sealed envelope with written directions to open the package immediately after the death of the grantor, and deliver to the recorder of the county for record, which directions were followed. Held, that there was no delivery of the deed until it was handed to the register, and that an intermediate conveyance by deed of gift of part of the same realty, acknowledged for registration, and delivered to the grantees, together with the possession of the property, would take priority, although not registered until after the first deed.</p>

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

<p>CRIMINAL Law. Perjwry. Upon the trial of a defendant for perjury committed by him on his voire dire as a’ juror in a criminal case, it is not necessary to show that a formal issue or question of competency was’ made, but it is sufficient to prove that the defendant was brought before the court as a juror in the presence of the parties, was examined by the court touching his competency, was pronounced competent, and elected by the parties.</p>

<p>1. Pleadings and Practice. Damages. -In an action for the destruction of a house, 'the measure of damages is the value of the house at the time of the injury.</p> <p>2. Same. Same. Evidence. It is competent to prove, as an element to be considered in ascertaining the value of the house in such a case, the cost of rebuilding, the charge being correct upon the proper measure of damages.</p> <p>3. Same. Same. Same. But it is not competent, in such case, to prove the valuation which the plaintiff may have, under oath, put upon the new house in giving in the same for taxation six years after the destruction of the old house.</p> <p>4. Same. Same. Same. There is evidence to sustain the verdict of a jury fixing the value of the house destroyed, where there is proof describing the house in all the essential elements which would go to make up its value, and showing its age, its rental value at the time, and a general estimate of the loss by a person cognizant of all the facts, together with the cost of rebuilding, the verdict being about one-third less than the general estimate of the witness, and there being no proof on the other side.</p> <p>5. Charge oe Court. Facts not in evidenre. It is error, although not necessarily reversible error, to charge the jury upon a state of facts not in evidence, the settled rule being not to reverse for such an error unless the court can see that the party complaining was prejudiced thereby, or, as it has been otherwise expressed, where the court can see that the jury could not have been misled thereby.</p> <p>6. Same. Requests. If the charge is correct as far it goes, the trial court can not be put in error by qualifications growing out of the facts to which his attention was not called at the time.</p> <p>7. Same. Immaterial charge. It is not error to refuse to charge a proposition incomplete as requested, when a complete charge on the point would be wholly immaterial. '</p> <p>8. Contbact. Representations. No representations in relation to the . subject-matter of a contract, which are in the nature of commendation or inducement to the trade, can have any legal effect where they are no part of the contract.</p>

<p>1. Administration. Insolvent estate. Inswanee policy. Mangum being indebted to Stewart, Gwynne & Co., took out a policy oí insurance on his life, S., G. & Co. paying premiums and charging up to M. The policy was payable on its face “to Stewart, Gwynne & Co., creditors of the insured, as their interest may appear, the balance, if any, to Kate Mangum, the wife of said insured.” Mangum died insolvent, owing S., G. & Co. more than the amount of policy. Held, that the amount of indebtedness due S., G. & Co. must be credited with amount of policy and balance filed for pro rata of estate.</p> <p>2. Husband and Wife. Wife domable. When-. Husband and wife executed a deed of trust on certain lots, wife expressly releasing homestead and dower. The trust provided if any surplus it should be paid husband. They afterwards executed another deed of trust, which, however, on account of defects, was invalid as to wife. Held, that wife, upon death of her husband, was dowable out of surplus, after satisfying first trust deed.</p> <p>3. Registration. Deed of trust. A deed of trust is operative against other creditors, though not registered until after the death of debtor The deed, upon registration, relates back to its date.</p> <p>4. Partnership. Dissolution. Duty of administrator of deceased partner. Upon the dissolution of a firm by death, it is the duty of the surviv- . ing partner to apply assets to the payment of the debts. Upon the death of a partner, it is the imperative duty of his personal representative to insist upon a due application of the joint effects to the discharge of the joint debts.</p>

<p>Building and Loan Association. Contract. Not urn-ions. When. A contract between a Building Association, organized under the act of 1875, chapter 142, sections 5 and 14 (new Code, section 1742, et seq.), and one of its members, by which the Association advances money to the member upon the anticipated value of his stock when the accumulations shall bring all the stock to par, upon a premium bid by - the member in open competition for the fund, and the member agrees to continue to pay his monthly dues on the stock, and to pay in addition monthly installments on the whole amount bid for, equivalent to interest at the rate of six per cent, per annum until the assets of the Association reach the par value of the stock, and secures his compliance with these terms by a note for the amount bid off and a deed of trust on realty, is not usurious.</p>

<p>1. Pleadings and Pbactige. Demand and notice. Defense of limitation. Debts not limited in respect to payment have no locus or situs, but accompany the creditor everywhere, and authorize a demand everywhere. The law of the State where a suit is brought, no matter where the cause of action originated, must govern as to the defenses upon prescription or limitation of actions.</p> <p>2. Mabbied Woman. New promise. A married woman is incapable to bind herself by a new promise to pay a note executed by her while a feme sole.</p> <p>S. Limitation, Statute oe. Section 3458 Code construed.' Section 3458, Code, providing that the statute of limitation shall not run in favor of a person during his absence from the State, was intended to apply to citizens of this State, and not to persons who had never been citizens or residents therein.</p>