Volume 83 — Tennessee Reports

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

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

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

<p>1. CORPORATIONS. Sale of franchises wnder a mortgage. The purchasers of the property and franchises of a corporation at a foreclosure sale, under a mortgage authorized by the charter, who, with a view of perfecting a reorganization of the corporation under the charter, meet together, elect officers and directors in conformity with the charter, and proceed to exercise the franchises of the corporation, under the name of the original company, for the purposes specified in the charter, do not thereby become the corporation," or0make themselves or their property liable for the debts of the old corporation.</p> <p>2. Same. Old and new. Inabilities. A mere change of the name of an existing corporation, either simply or by way of consolidation with .another company, would not affect the liabilities of the corporation, but the creation of a new corporation by the purchasers of the property and franchises of the old corporation, or the voluntary association of such purchasers under the name of the old corporation, would not render the new entity liable for the debts of the old.</p> <p>3. Same. Same. Same. A provision of a charter of incorporation that the purchasers of the property and franchises of the corporation, under a foreclosure of a mortgage thereof, shall be vested with all the powers and privileges, and be subject to all the duties and liabilities of said company, merely subjects the purchasers to the burdens and obligations of the charter, and not to the debts of the old corporation.</p> <p>4. Bond, Deliveby. Not a judgment. A delivery bond, although it operates as a judgment by statute so far as to authorize the issuance of an execution thereon, is not a judgment.</p> <p>5. Same. Estoppel. A delivery bond which does not recite that the chattels levied upon,were the property of the judgment debtor, or were levied upon as his property, will not estop one or more of the obligors from claiming the ownership of the chattels, especially if resorted to Fmerely as a means of taking the property out of the hands of the'sheriff with a view to settle the rights of the parties by an agreed case. .</p>

<p>Witness Fees. Oriminal eases. A witness cannot prove attendance at any one term of the court in more than two criminal cases, although the terms of the court may have greatly lengthened since the passage of the statute prescribing the restriction, and the cases have been tried at different times during the term.</p>

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

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

<p>1. Contract. May be rescinded. When, If a party to an executory contract on mutual promises become incapable, except by the act of God. or the public enemy, of performing his part of the contract, the consideration of the promises of the other party necessarily fails, and he may rescind the contract, and the party failing to perform can recover nothing on the contract.</p> <p>2. Power or Attorney. May be revolted. When. Damages. A power of attorney, although in terms irrevocable, may be revoked, subject to liability in damages for a breach of any contract therein, but if the revocation be occasioned by the failure of the attorney to perform, there is no ground for damages.</p> <p>S. Attorney. Effect of. being disbaired. Where an attorney employed to prosecute a claim before the Treasury Department of the United States, under a contract for compensation out of the recovery, with a lien thereon, is disbarred from practicing in the Department by an order of the Secretary of the Treasury, the client may rescind the contract, and revoke the power of attorney authorizing the agent to act, and the subsequent revocation of the order of disbarment will not revive the relation.</p> <p>4. CONTRACT. Quantum mendt. To recover upon a quantum merwit, where the party suing has violated the contract, he must show the performance of services, and that those services were of benefit to the other party.</p> <p>5. Evidence. Letter. Neither an original letter, nor a certified copy thereof, from the Commissioner of Internal Revenue, in answer to-certain inquiries, is evidence of the facts therein stated.</p>

<p>CRIMINAL Law. Attempt to commit larceny. Under section 5379, new Code, an indictment for attempt to commit a larceny is good, and the same particularity in the description of the property attempted to he stolen is not required as in an indictment for larceny.</p>

<p>CRIMINAL Law. Larceny., Fake pretense. Where goods are obtained by stratagem, artifice or fraud, it is larceny where the owner intends to part only with the temporary possession, for a limited time or Specific purpose, retaining the ownership in himself, and it is obtaining goods by false pretense where the owner intends to part with the property absolutely.</p>

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

<p>Wills. Legatees to take per capita. When, Under a bequest to particular children and grand-children equally, the legatees will take per capita, in the absence of anything in the will showing a different intent.</p>

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

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

<p>CRIMINAL Law. Homicide. Ordinarily, if a party assaulted kills his adversary in the conflict, he will be guilty of manslaughter only, the presumption being that the assault has excited his passion beyond control, and that he acts from sudden heat of passion and not from malice. But if the resistance of the assault is made by a deadly weapon, and the weapon is used in a cruel manner, not at all justified by the nature and danger of the assault, the offense amounts to murder.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court'at Memphis. - —1 Sp. Ch.</p>

<p>1. Bbcbivbb. Trustees. Attorney’s fee. A receiver of an extinct corporation appointed by act of the Legislature with compensation fixed, may employ counsel to defend or bring suits in relation to bis duties, and to pay for sucb services, yet be cannot, under a retainer by bimself, charge the fund for legal services performed by himself. The employment of counsel and the payment of proper allowance for such services, when necessary, require the exercise of a sound discretion on the part of receivers or trustees of the fund out of which the payment is to be made. It would be as unsafe to allow a receiver or trustee to contract with and pay himself for such services as to allow him to purchase the trust property, which it is his duty to sell at the best advantage.</p> <p>2. Same. Attorney's fees. While the receiver, under the act appointing him receiver, may not be entitled to payment for his own professional services, the Legislature has the power to provide, by a subsequent act, that such services may be paid for, even though the services may have been performed before the legislative provision.</p>

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

<p>Cbiminai, Law. Mdclence of physical peculiarity. On a question of physical peculiarity of a prisoner, a witness who -had recently or immediately examined the prisoner, is competent to testify as to what he had seen. If there be doubt as to the correctness of the testimony of such witness, a physician, if deemed best, under orders of the court, may examine the prisoner.</p>

<p>CRIMINAL Law. Jwn/. Verdiet. Where one oí the jurors proposed thai each juror should cast a ballot with the number of years he was in favor of written upon it, and the numbers added together and divided by twelve, which was accordingly done, and the result was fifteen years and nine months, and thereupon said juror said it was not customary to return verdicts for fractions of years, and proposed to add on three months, which was agreed to. Held, that the verdict was not the deliberate judgment of each juror upon the evidence produced by argument and reflection, but was the result of chance, and a new trial should be granted. It makes no difference that three months were added, as they were added solely because of the statement of a juror that it was not customary to return verdicts for parts of years.</p>

<p>EROM MADISON.</p> <p>Appeal in error from tbe Common Law- Court of Madison county. T. C. Muse, J.</p>

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

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

<p>FROM HAWKINS.</p> <p>Appeal from the Chancery Court at Rogersville. C. J. St: John, Ch.</p>

<p>PARTNERSHIP. Capital. Under an agreement of partnership for one year, in which it was stipulated that one partner had put in $1,000 to constitute a common stock to be used in buying goods, etc., and that the other should give his entire personal attention and the benefit of his experience to place against the cash furnished, the partners to j-bear the expenses and losses jointly, and share the Xirofits equally, the partner who gives his attention and experience is not entitled, upon dissolution, to one-half the cash capital'advanced by the other.</p>

<p>‘Grant. Appurtenances. The grant of a spring carries the land containing it, including so much of the land as is essential to the enjoyment of the spring in the customary way, hut does not include a tree ten feet from the head of the spring on the land of another person, although the roots of the ¡tree extend to, and partially around, the spring, and the branches overhang it.</p>

<p>1. Tenants in common. Ghancenj pleadings and practice. If one tenant in common of land is no party to a suit in which tlie interest of otter co-tenants is sold, it is of no consequence to suet tenant whether, the proceedings are valid, or invalid, and te cannot be teard to impeact them.</p> <p>2. Chancee? Pleadings and Peactice. Erroneous .decree. Upon a bill filed by the makers of a trust assignment of land to enjoin a sale under the trust until' the correct amount of the secured debt is determined, a final decree without a cross-bill ordering the land to be sold to pay the debt ascertained, is probably of course, and, if not objected to by the complainants at the time, is clearly not void, but at most merely erroneous.</p> <p>3. Tenants in common. Eights of purchasers from,. If some of the tenants in common convey the whole land by deed in fee, the grantee would take the interest of such tenants in common in the land, and partition would be made accordingly.</p> <p>4. Same. Adverse possession. limitation. The exclusive adverse possession of land by one tenant in common, or the exclusive receipt of the rents and profits, without demand made by the other tenants, would be evidence of actual ouster, and will vest title if continued for the length of time prescribed by the statute of limitations.</p>

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

<p>EROM UNICOI.</p> <p>Appeal from the Chancery Court at Ervin. H. C. Smith, Ch.</p>

<p>1. Chancery Pleadiitgs and Pbactice. Administrator. A bill filed by a creditor of an estate to compel the collection of a debt due to the estate secured by a vendor’s lien on land sold by the deceased, is not a bill to sell realty descended, but to collect a personal asset endangered by the negligence or collusive conduct of the administrator.</p> <p>2. Same. Administrator. Heir. The heir, upon whom has descended the naked legal title to the land sold by his ancestor, holds the title in trust for the vendee and the administrator, and may properly be divested of that title as soon as the purchase-money debt is ascertained to the satisfaction of the administrator, or so as to be conclusively binding on him, and the 1 and sold in satisfaction thereof.</p> <p>3. Same. Infant. Guardian ad litem. It is irregular to take any step in a cause wherein there is an infant defendant until a guardian ad litem has been appointed, but the irregularity will be cured, so as not even to be error on appeal, if no binding decree is rendered until tbe infant is properly represented, and the guardian, having the opportunity to object, acquiesces in what has been done, and the court makes a correct decree on the case then presented.</p>

<p>Ckiminaii Law. Gosts. Worh-house. A prisoner convicted of a felony, ■whose punishment has been commuted to imprisonment in the county jail, may be required to work out the costs of the State, adjudged against him, in the county work-house, after his term of imprisonment has expired, if not otherwise paid or secured.</p>

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

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

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

<p>RAILROADS. Passengers entitled to safe place to alight from train. A station being called by tlie conductor of a railroad train, and tie passenger told to get off, there being no light or assistance offered, had a right to rely upon the directions of the conductor, and to presume that he was at the usual place of getting off, and that there was at that place a safe and suitable place to alight from the train.</p>

<p>1. Raxleoads. Freight. Damage. A railroad company is not entitled to demand or receive either freight charges or demurrage until it is in a condition to tender a delivery of the goods at a convenient, safe and uninterrupted point at its depot. The legal effect of its undertaking is to deliver the goods at a point and in a manner to enable the consignee to receive them without inconvenience, delay or interruption. After notice it may require prompt action on the part of the consignee, but he may demand of it free, convenient, safe and undisturbed access to his goods.</p> <p>2. Same. Same. Tender. A consignee who is ready to, pay freight for. the goods, on a refusal to deliver them, may maintain trover for the goods, there being no other legal claim upon them, and. he is not bound first to make a legal tender of the freight.</p> <p>3. SAME. Demurrage. Dim. A railroad company has no lien upon goods for demurrage in absence of contract.</p>

<p>FROM HAWKINS.</p> <p>Appeal from the Chancery Court at ftogersville. H. C.' Smith, Ch.</p>

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

<p>FROM ■WASHINGTON.</p> <p>Appeal from the Chancery Court at Jonesborough H. C. Smith, Ch.</p>

<p>Levy OE Execution. Personally. Released by ingvmiion. The levy of an execution on personalty is released by an injunction from, the chancery court, either at the instance of the debtor, or of a third person..</p>

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

<p>EJROM WASHINGTON.</p> <p>Appeal from Ihe Chancery Court at Jonesborough. H. C. Smith, Ch.</p>

<p>FROM GREENE.</p> <p>Appeal in error from the Circuit Court of Greene-county. Newton Hacker, J.</p>

<p>from sullivan.</p> <p>Appeal in error from the Circuit Court of Sullivan county. Newton Hacker, J.</p>

<p>Master and Servant. Extra services. Where the servant voluntarily performs extra services, and the servant gives the master no notice of any intention to claim compensation for same, but settles with him statedly under his original contract, the law will imply no contract and give no compensation for said extra services.</p>

<p>EROM JEEEERSON.</p> <p>Appeal in error from the Circuit Court of Jefferson county. J. G. Rose, J.</p>

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

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

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

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court at Knoxville. M. L. Hall, J., presiding by interchange.</p>

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

<p>Judges, Special. Salary. Constitutional Law. The act of 1877, chapter 135, which provides “ that hereafter, when by reason of the incompetency, sickness or other cause, any judge or chancellor of the inferior courts shall be unable to hold his courts, and a special judge shall be appointed or elected, said special judge shall receive no compensation from the State, unless in the recommendation or certificate of the regular judge or chancellor for the appointment of such special judge or chancellor, he shall expressly authorize the said judge or chancellor to be paid out of his regular salary,” is constitutional.</p>

<p>PROM HANCOCK.</p> <p>Appeal in error from the Circuit Court of Hancock county. Newton Hacker, J.</p>

<p>1. WlLX<s. Beneficial interest. Claims affecting the operation of a will. It is a well established rule in equity, that a man shall not take any beneficial interest in a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of every part of the will.</p> <p>2. Same. Claims of executors. Statute of Imitations. The will contained a clause which gave the executors power “to pay, if they see proper, just debts barred by the statute of limitations.” This can only apply to claims of third parties against the estate, and not to debts or claims in favor of the. executors themselves. This would be to make the executors judges in their own cases.</p> <p>3. Same. When and where claims of executors to he filed. Executors have no right to waive any statute of limitations in their own favor, or either of them, without a most definite purpose expressed by the maker of the will. The representative must retain for his own debt within two years and six months, and this must be manifested, either by settlement in the county ¡court of his administration account, or some other unequivocal act of appropriation.</p> <p>4. Same. Advancements in lifetime of testator. Interest on same. Interest should be allowed on all advancements of money from the death of testator, where the money value is charged against the legatee in the will.</p> <p>5. Same. Property advancements. As to property advancements the rule is that the property, as it existed at the death of the testator, with the advancements, constitute the fund for division, and the children are entitled to share in the subsequent increase and profits in the proportion in which they were entitled to the corpus.</p> <p>6. Same. Provision of forfeiture. Executors can not insist on a forfeiture. Where a will contains a provision of forfeiture of all interest in the estate on the part of one who contests the will, and the will makes no gift over in case of forfeiture, then the executors can not insist on a forfeiture, if waived by the devisees and legatees. This would be to permit them to force a possible benefit on parties, who, having; ample opportunity to assert their own rights, have declined to do. so.</p>

<p>15 Contracts. Sufficiency of consideration. A contract to furnish plaintiff the trade of miners and workmen is sufficiently supported by the consideration that defendant shall receive eight per cent, on all such sales.</p> <p>2. Same. Validity of. Such a contract is not in restraint of trade, nor immoral nor contrary to law, and is therefore valid.</p> <p>8. Same. Agreement not to carry on business. A contract not to carry on one’s business any where is void, but a contract not to carry it on in a particular place, or within certain limits, is valid.</p> <p>4. Same. Damages. If the contract was made and violated without excuse, plaintiff would be entitled to some damages.</p>

<p>1. CONVEYANCE. Description of. In a deed of conveyance it is sufficient to identify the land with reasonable certainty, and this is all that is. required.</p> <p>2. Contbact. Fraud. It is solely at the option of the party upon whom a fraud is practiced, whether he will be bound by the agreement or not.</p> <p>3. Same. Avoidance of. Notice of intention. If one is determined to avoid a contract because of fraud, he must give notice of such determination to the other party within a reasonable time after its discovery.</p> <p>4. Same. Conditions of. Laches. Where an instrument, which does not contain the original intentions of the parties on account of fraud or mistake, is acquiesced in for a period of eight years, with a full knowledge of the existence of such fraud or mistake, the parties are estopped by laches .from any attempt to avoid it.</p>

<p>Chanceby Pleadings and Practice. Sale of land to pay debts of decedent. Surplus. Where land is sold to pay debts of decedent upon exhaustion of personalty, and a surplus is realized, it may be impounded and applied to the payment of a judgment against deceased in favor of a creditor who was not a party to the proceedings for the sale of the land.</p>

<p>Chancery Pleadings and Practice. Judgment obtained by fraud. Where appellant failed to prosecute Ms appeal by having record filed, and the appellee files record and has an affirmance of judgment without notice to appellant or his attorney, the appellant may, by bill, attack the judgment for fraud upon the allegation that appellee, “ by his fraud, prevented the proper officer from sending the record to the Supreme Court in due and proper time; that he, though talcing advantage of his own wrong and fraud, and falsely representing to the Supreme Court, when complainant’s attorney was not present, and without notice, that complainant had failed and refused to bring up the record, and had abandoned his appeal, had procured fraudulently the judgment to be affirmed.”</p>

<p>APPEAR. Failure to file record. Abandonment. If the failure to file a record at the succeeding term of the Sux>reme Court after appeal was prayed, is due to the delay of the clerk, and there is no evidence of abandonment of the appeal, the apjoellee is not entitled to an affirmance.</p>

<p>FROM MORGAN.</p> <p>Appeal from the Chancery Court at Wartburg. D. K. Young, J.</p>

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

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

<p>PEOM UNICOI.</p> <p>Appeal from the Chancery Court at Erwin. H. C. Smith, Ch.</p>

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

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

<p>1. PiiBADiNGS and PRACTICE. Writs of error. Section, 3905 of the Code. To what cases it applies. Section 3905 of the Code which grants a writ of error when an appeal in the nature of a writ of error has been dismissed because the record has not been brought up in time, applies to cases in whieh the appellant brings up the record.</p> <p>2. Same. When appellant refuses to bring wp the record after appeal. When the appellant refuses to bring up the record, after he has been granted an appeal, the appellee may bring it up and obtain an affirmance of the judgment.</p>

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

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

<p>EJROM GILES.</p> <p>Appeal from the Chancery Court at Pulaski. W. S. ElemiNG, Ch.</p>

<p>1. Pleadings and Pbactice. Compromise of debts. If a creditor, under a compromise arrangement with, other creditors and the debtor, accept part of his demand in full of the whole, the claim to the remainder is extinguished, and such unpaid part will neither sustain a suit nor form a sufficient consideration for a new promise by note.</p> <p>'2. Same. Same. Such a note cannot be sustained upon the ground that it was given to avoid litigation, when the proof shows that the party to whom it was given had taken no step to commence litigation, nor made any threat to that effect, although another creditor had prepared a bill by himself alone, against the debtor alone, apparently with the intention of filing it.</p> <p>3. Same. Same. Fraud. No one or more creditors to a composition arrangement by all the creditors with a common debtor can, upon the pretense or ground of fraud on the part of the debtor in the settlement, secure a benefit to himself, at any rate without proof of fraud sufficient to set aside the composition as to all the creditors, and then only, perhaps, by setting aside the composition releases by proper proceedings.</p>

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

<p>1. Pleadings and PRACTICE. Judgment against non-resident. By the law of this State a judgment against a non-resident hy attachment of property without service of process or publication, as required hy statute, is void, and no proof aliwnde is admissible to show publication, the record itself being silent on the subject,</p> <p>2. Chancery Pleadings and Practice. Collateral attach on judgment. A judgment is only collaterally, not directly, impeached by a bill which does not make the judgment-creditor a party, and only proceeds against one of several judgment-defendants.</p> <p>3. Same. Void judgment. A void judgment cannot be validated as to third persons who have previously acquired antagonistic rights, nor perhaps as to the party himself, although the latter may personally estop himself from contesting rights acquired under it, such es-toppel not affecting third persons claiming under him by antecedent act.</p> <p>4. Surety. Contribution. A surety who pays, as between him and other sureties, more than his share of the common debt, is entitled to such contribution from the co-sureties as will meet the equity of the case.</p>

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

<p>1. Wh.es. Legacy. Interest. A te'stator by his will directed his executors to set apart the sum of $20,000 in gold, and let it remain as so much unproductive capital, not even lending, it on interest, and on the day that his great-granddaughter (naming her) arrived at the age of twenty-one years to pay over to her the said sum in gold as a birth-day present, the legacy not to vest in her until that day. The executor collected the requisite amount of funds, and then loaned the same on time, at the rate of ten per cent, per annum, payable in gold. Held, that the legatee was entitled to the interest.</p> <p>2, Same. Construction. The testator devised and bequeathed the residue of his estate to his executors, who are also made testamentary trustees, in trust to keep the estate together to the best advantage, the interest, rents, issues and profits to be appropriated for the education, benefit, support and maintenance of Ms said great-granddaughter, then an infant, for and during the period of her natural life, for her sole and separate use, her receipt to be a good voucher to his executors “ for said interest, rents, issues and profits, and the same ” not to be liable for the debts of any husband, and, upon her death leaving issue, the executors are to convey “ the corpus of said estate devised to them as aforesaid in trust,” unto such issue; but should she die without issue living, then “ the corpus of said estate, including any interest, rents, issues and profits, not used or appropriated for the benefit of said great-granddaughter, and also including said legacy of $20,000 in gold, should the same not have vested,” to be disposed of to certain other persons in remainder. Held, that the will, in the contingency of the first taker leaving issue, gave, to her all the “ interest, rents, issues and profits ” of the estate, and that there is not enough on the face of the will to show a change of intent in the contingency of not leaving issue.</p>

<p>1. Wli/LS. Devise upon condition precedent. A devise of land to the children of the testator’s daughter “ on condition ” that the daughter release the estate of • the testator from all liability to pay a note which the daughter holds, is a devise upon a condition precedent, and no title to the land vests in the children until the conditioh is complied with.</p> <p>2. Same. Same. Rights of creditors. The rights of a creditor of the estate to the land thus devised, acquired under judicial proceedings, to which the testator’s daughter was a party, claiming as the heir of the father, cannot be affected by a subsequent offer to comply with the condition imposed by the devise.</p> <p>3. Same. Same. Same. Lien. Nor would a prompt compliance with the condition affect the lien of a creditor on the land acquired in the life-time of the testator, nor the rights of a general creditor properly prosecuted.</p>

<p>1. Guabdian’s bond. New swety signing 'old bond. Under the provisions of the Code regulating the discharge of the surety of a guardian from further liability on the guardian’s bond, the new security to be approved by the court may be given by the new surety signing the old bond.</p> <p>2. Chancery Pleadings and Practice. Guardian settlement. If, upon a bill filed by a ward, after coming of age, against his guardian and the sureties of the guardian bond for an account, alleging various breaches of the bond, the court make a general reference covering all breaches, the omission of the clerk to report upon any particular breach contended for iu the pleadings and proof, would be a proper ground of exception to the report; and if the complainant failed to raise the point by exception, or in any other way, and in the meantime claim and obtain the benefit of a suit brought by the guardian to cover the matter of the breach, he will be held to have waived so much of the relief sought.</p> <p>3. Same. Same. Guardian relieved. When. A guardian will be relieved from the charge of the notes of his predecessor which turn out not to have been intended as notes, but informal receipts of the assets of the ward.</p> <p>4. Same. Same. Credits. Credits may be allowed a guardian for a series of years not in excess of the income of the ward for those years, although the credits of a particular year may exceed the income of that year; and the credits given in the regular settlements of the county court are prima facie good without producing the vouchers, if not surcharged or falsified by pleadings or proof.</p>

<p>CRIMINAL Law. Railroad agent. Ticket office. It is a good defense to an indictment of a ticket agent at a railroad station, under the new Code, section 2359, for failing to keep open his office for one hour before the departure of a particular passenger train, that the railroad company, with notice to the public, had, by its rules, dispensed with the sale and purchase of tickets for that train, and required the-passengers to pay the regular ticket fare on the train.</p>

<p>1. Constitutional Law. Corporatoins. The provision of the Constitution, Art. xi., sec. 8, that “ no corporation shall be created, or its powers increased or diminished, by special law,” again held to apply only to private, and not to municipal corporations.</p> <p>2. Same. Repeals. The general law of 1872, ch. 12 (new Code, secs. 1652, 1657), which authorizes any municipal corporation to establish a system of public schools upon' consent of two-thirds of the qualified voters, is not repealed by the special act of 1885, ch. 37, amending the charter of the town of Pulaski by providing for the establishment of a system of free schools by the corporate authorities, without a popular vote.</p> <p>3. Same. Repeal by implication. A repeal of a general law by implication is not within the purview of the Constitution, Art. 2, sec. 17.</p> <p>4. Schools. Taxes. Municipal corporations. To establish and provide by local taxation for a system of free schools for a municipality or county, is a county and corporation purpose, within the meaning of the Constitution, Art. 2, sec. 29, which gives the Legislature power to authorize counties and incorporated towns to impose taxes for county and corporation purposes.</p> <p>5. MuNiclpal Cobpobations. Poll tax. The Constitution, Art. 2, sec. 29, after providing that the State poll tax shall not exceed one dollar, adds: “Nor shall any county or corporation levy a poll tax ex" ceeding the amount levied by the State.” Held, that a municipal corporation can levy only one such tax, although an amendment to the charter may authorize an additional poll tax for school purposes.</p> <p>6. Same. Schools. Board of education. The fourth section of the act of 1885, authorizes the board of education of the town to “ permit children living outside of the corj)orate limits” to attend said schools; upon paying tuition fees, to be fixed by the board. 'Held, permissive, and for the benefit of the school system, by bringing in paying pupils, the effect of which need not be considered until the power is exercised.</p> <p>7. Surbeme Court PRACTICE. This court has nothing to do with the policy of legislation, if satisfied as to its constitutionality.</p>

<p>FROM SUMNER.-</p> <p>Appeal from the Chancery Court at Gallatin. W. Munday, Sp. Ch.</p>

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

<p>Tenancy by ctotesy. Adverse possession. Successive tenants. It is not necessary to show privity between successive tenants if they are connected and continued in fact, each claiming ownership in1 connection with his possession, to raise the presumption of deed or grant by twenty years’ adverse possession. But when a husband goes into possession under his wife’s claim of title, and holds under that claim while she lives, and after her death continues to possess and claim in the same right, there is privity between the successive tenants. Adverse holding may perfect title to an estate less than a fee.</p>

<p>Cbimihai, Law. Occasional insanity. Where the proof shows the defendant was subject to occasional or temporary attacks of insanity, and was visited by one of such attacks shortly before the commission of the offense, and is not shown to have recovered sanity at the time the offense was committed, the law presumes the insane condition to remain as last shown.</p>

<p>•Criminal Law. Abducting a female. When defendant is indicted under the Code, section 5370 (M. & V.), for abducting a female, if the proof shows that the female was unchaste and lewd, the defendant can not he convicted.</p>

<p>1. Pbactioe at law. Gontinuanee. Where at the eighth trial term the affidavit for continuance by plaintiff in error stated that until recently the absent witness had been in a certain place in the State, and it had taken out subpoenas for him and had sent them to the counties in which it supposed he might be found, and had just learned he was in the State bf Texas, and it was not shown that any effort had been made at any previous time to procure the attendance or deposition of the witness, and it appeared the company knew all the time the materiality of the facts it alleged it could prove by him, he being the engineer on the train to which the accident occurred, it was not error to refuse the continuance.</p> <p>2. Same. ffl>idence. In a suit against a railway company for damages to a passenger, for negligence, and unsafe condition of the cars, roadbed, rails, cross-ties, etc., it was not error to allow proof by the defendant in error as to the condition of the track for a short distance on either side of the place of the accident; and it is competent to show that the section boss permitted part of his road to be in bad condition, in determining his negligence and want of skill.</p>

<p>1. Deed. Feme covert. Privy examination. If proper privy examination -was made and an improper certificate made by mistake, same may be corrected; but if proper examination was not made, it cannot be cured. It is not incompetent for tbe officer to testify that tbe proper privy examination was not taken.</p> <p>2. Same. Pfusbamd and wife. If husband attempt to sell bis wife’s land, same is void, and tbe purchaser, if put in possession, is at most but tbe tenant of the husband, whose entry and possession is not a dis-seizin of the wife, if it is of tbe husband. In such case the bona fide-purchaser is entitled to compensation for permanent improvements made before tbe filing of the bill to set aside the conveyances to the extent tbe value of the land is enhanced at the time of tbe surrender of possession, and will be charged with rents from tbe death of the husband, but is not entitled to lien on the land for purchase money paid the husband.</p>

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

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

<p>1. Constitutional Law. Jurors. Sections 7 and 13 of act of 1885, “ to organize and incorporate an independent militia,” providing tliat fifteen per cent, of the voting population of a county may organize into militia and he exempt from serving on jury, is unconstitutional in so far as same undertakes to exempt the members from serving on jury.</p> <p>2. Same. MiliUa. Governor. Section 11 of said act, which empowers the-governor to call out the militia, when he deems it necessary, to suppress mobs, riots, etc., is unconstitutional.</p>

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

<p>FROM DEKALB.</p> <p>Appeal in error from the Circuit Court of DeKalb county. Matt. W. Allen, J,, sitting by interchange.</p>

<p>1. ChanceRY Pdeadings and Pbactice. Non-resident. Personal deeree. Upon a bill to foreclose a mortgage, a personal decree for any balance not satisfied by sale of the mortgaged property, maybe rendered against a non-resident defendant brought before the court by publication under the provisions of our statutes.</p> <p>2. Husband and Wide. Inability of husband for debts of wife. Prior to the act of 1877, the liability of the husband for the debts of the wife attached and was fixed at once upon marriage, and where the marriage was consummated before said act, its passage did not relieve the husband of the debts of the wife due at date of marriage.</p> <p>8. Statutes. Pule of construction. Statutes are to be taken as prospective in their operations, unless a contrary intention is clearly expressed upon their face.</p>

<p>FROM RUTHERFORD.</p> <p>Application for supersedeas.</p>