Volume 84 — Tennessee Reports

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

<p>1. Judsmest for Libel. Merging of the tort. It becomes a debt. Recovery of a judgment for libel, merges the tort -which is the foundation of the action in the judgment, and it thus becomes a debt.</p> <p>2. Appear xn Nature of a Writ of Error. Effect of. An appeal, in the nature of a -writ of error, from the circuit court suspends, but does not vacate, the judgment below.</p> <p>3. Revivor. Against whom it may be had. A revivor may be had against the personal representative of a deceased person against whom a judgment for libel has been recovered.</p> <p>4. Judgment for Libed. Reversal of. Effect upon the nature of the demand. Eeath of wrong-doer. A reversal of a judgment for libel restores the demand to its original character, and the death of the wrong-doer abates the suit as though no judgment had been obtained.</p>

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

<p>CRIMINAL Law. Search warrant. Goats. Where search warrant was issued by a justice of the peace upon probable cause, and the property was not found thereunder, the State is liable for the costs of the proceeding, under Code, section 5333.</p>

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

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

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

<p>1. Suit by State, and County. Authority for. A bill filed on behalf * of the State and county, signed by the attorney-general for the State and counsel for the county, is evidence sufficient of its being authorized by the State and county.</p> <p>2. Failube to Assess. Mistake of law or fa&t. Failure to assess property because of fraudulent misrepresentations, is not a mistake of law or fact, within the meaning of the act of 1879.</p>

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

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

<p>1. CHARGE OB' Court. Morbid delusion. Effect upon wills. The court charged the jury: “If the testator’s belief in the infidelity of his wife and animosity to his children, was a topic which, when occurring to him, so deranged his mind as to prevent him from judging the objects of his bounty, and he made the will while laboring under this morbid delusion, then the will must fall. But if, on the other hand, you find that at the time he made the will, he exercised his judgment, whether right or wrong, the will must stand, however much he may have indulged prejudice against his family.” Held, that this is the law.</p> <p>2. Holographic Will. Evidence. If a holographic will he written in an account book, it is not error to refuse to allow testimony tending to show that several leaves of the hook are missing.</p>

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

<p>Beokeb. Definition of. A broker, -within the meaning of our revenue laws, is an agent who negotiates sales between parties for a commission, and therefore a person who sells only stocks and bonds bought by him is not a broker.</p>

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

<p>1. JURISDICTION, Presumption in favor of. In a collateral attack upon the proceedings of a court of general jurisdiction, it is not necessary that the jurisdictional facts should affirmatively appear upon the face of the record; it is sufficient if the record, with its legal intend-ments and presumptions, shows these facts.</p> <p>2. Lapse op Time. Effect of, wpon an action. Long lapse of time, while it may not preclude a right of action for the recovery of lands, greatly strengthens the presumptions arising upon the record, that the proceedings under which the lands were taken are valid.</p>

<p>Lands of "Wands. Application to sell. Compliwiee with the law presumed. It will be presumed that the application to sell lands descended to the wards, for the purpose of paying the debts of the ancestor, was made in writing and in strict conformity to the requirements of the statute, unless it appear to the contrary upon the face of the record.</p>

<p>EBOM . SUMNEB.</p> <p>Appeal from, the Chancery Court at Gallatin. Geo. E. Seay, Ch.</p>

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

<p>1, Appeal in Forma Pauperis.''■"'Perfection of. Taking the oath prescribed for poor persons in case of appeal, and tendering it to the clerk, though he refuse to accept it, is a substantial compliance with the requirements of the law, and the appeal is thereby perfected.</p> <p>2. CONSTITUTIONALITY OE THE ACT OE 1885, CHAPTER 27. The act of the Legislature of March 2, 1885, chapter 27,.is an attempt to confer original jurisdiction upon the Supreme Court, and is therefore unconstitutional and void.</p>

<p>1. Bah. Bond. Sheriff’s fee. Cleric’s fee. The sheriff’s fee for taking a bail bond is State’s cost, and |there is no fee allowed the clerk for filing a bail bond.</p> <p>2, Order Setting Cause for Trial. Fee for. An order setting a cause for trial, if made by the court, may be charged for, hut if the order amounts also to a continuance to the day set, there is only one fee.</p>

<p>Bringing Prisoner to Court. Sheriff’s fee. The lees of the sheriff for bringing a prisoner from the county in which he was tried to the county in which the Supreme Court is held, are governed by tb,e new Code, section 5316, sub-sections 28 and 29.</p>

<p>3. Fees in Motion eor New Trial. To whom taxed. The fees of clerk for the motion, and for overruling the motion for a new trial, are defendant’s costs.</p> <p>2. Justice’s Warrant. Fee fon' executing. The fee of an officer for executing a justice’s criminal warrant is regulated by the new Code, section 5316, sub-section 1.</p> <p>3. “ GUARDING Prisoner to Jaid.” No fee for. An item in the bill of costs allowed an officer “for guarding to jail,” is not warranted, without more.</p> <p>4. Guards. Fees of. To whom allowed. The fees to guards are allowed the officer in charge of the prisoner, or a person employed by that officer.</p>

<p>Statuses. Constitutional law. The act of June 12, 1885, entitled “An act to allow convicts in the jxenitentiary a credit of diminution of their sentences,” was only a proposition by the State to the lessees of the penitentiary to modify the terms of the lease, and was, by its terms depenáent, as to the then lessees, upon condition of acceptance by them in writing.</p>

<p>EROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. A. G. Merritt, Ch., presiding by interchange-.</p>

<p>FROM RUTHERFORD.</p> <p>Appeal in error from the Criminal Court of Rutherford county. Matt. ~W. Alley, J.</p>

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

<p>FROM DICKSON.</p> <p>Appeal from the Chancery Court at Charlotte. G. .H. Nixon, Ch.</p>

<p>Sheriff’s Returns Explanation of, by parol evidence. A sheriff’s testimony in explanation of what was meant by his return is competent, and properly admitted when it does not contradict such return.</p>

<p>DISTRIBUTION OP ASSETS. The rights of creditors where decedent left assets-in this and another State. C. died in Florida, leaving assets in Florida and Tennessee. Insolvency was suggested by tbe duly appointed administrators in botb States, and the assets in each State applied to the claims due there. The Florida creditors received more than fifty per cent., the Tennessee creditors less. Suit was brought by a Florida creditor to recover from the Tennessee administrator his pro rata share of the assets in that State. Held, that he could recover nothing, as he had already received a larger per cent, on his claim than the Tennessee creditors; that the assets in both States made up hut one estate, and that all creditors were entitled to share equally therein.</p>

<p>1. Tbust Funds. Investment of in the payment of real estate. In 1866, W. conveyed a tract of land to Ills wife and children, as follows: “For her sole and separate use and benefit together with his children, free from his debts and contracts, she to have control of the property, and in the event of her death before his own, the property was to revert to him in trust for his children.” Under a decree of court this land was sold and proceeds invested in part payment for a tract of land bought by W. in another county, and to be held as the first tract was. A lien was reserved by the vendor on this latter tract, and on failure to pay the last note it was sold, bringing several thousand dollars more than the last note. Complainants file their bill claiming that they are entitled to be repaid the trust funds invested, before the vendor can enforce his lien. Held, that they have no prior equity to the vendor and must allow him to enforce his lien.</p> <p>2. Same. Distribution of surplus where trust funds were invested in part payment of land. Where trust funds are invested in land subject to a lien, and the lien is enforced, the land being sold, the surplus, after paying off the lien debt, stands in place of the land, and the rights of the parties in it are the same as they were in the land, and surplus must be distributed in proportion to the amount of truet funds and the value of the land originally.</p> <p>3. CONSTRUCTION of Deed. Conveyance for benefit of wife and children. Where a tract of land is conveyed to the wife “for her sole and separate use and benefit, together with her children, she to have control of the property, and in the event of her death before his (the husband’s), the property to revert to him in trust for his children,” the wife takes a life estate for herself with a trust in favor of the children jointly with her during life, with remainder to the children after her death, the husband, if surviving, taking the legal estate for benefit of children.</p> <p>4. Mortgage by Wife of Life Estate held for Herself and Children. Where wife holding a life estate in land for herself with a trust in favor of children jointly with her during life, with remainder to children after her death, gives a mortgage on the property and the land is sold, the mortgagee is entitled to the value of the wife’s life estate; the remainder belongs to the children.</p>

<p>FROM MABRY.</p> <p>Appeal from the Chancery Court at Columbia. W.. S. FLEMING-, Ch.</p>

<p>PROM DAVIDSON.</p> <p>Appeal in error from the Criminal Court of Davidson County. N. W. McConnell, J., sitting by interchange.</p>

<p>1. Chancery Pleadings and Practice. Sale of land to pay debts. In a bill filed to sell land of deceased, to pay dtebts, it is more regular to-set out the debts specifically, but if the amount is aggregated in the bill, and so reported by the master, and there is no exceptions, the cause will not be reversed for such action,</p> <p>2. Same. Sale. Personal assets. Where personal assets are insufficient to pay debts, but are ascertained, but not in a condition to be applied, the court, treating them as good and available, may decree a sale of land sufficient to discharge the excess of indebtedness over the amount of assets without the delay of the cause, until said assets can be actually applied.</p> <p>3. Same. Husband, and wife. Parties. Where the interest of the wife is. adverse to that of the husband, she may be made a defendant to bill filed by him, and a judgment pro eonfesso against her may be taken.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Chaucery Court at Nashville. Thos. H. Malone, Sp. Ch.</p>

<p>EROM MAURY.</p> <p>Appeal from the Chancery Court at Columbia. W. S. FlemiNg, Ch.</p>

<p>RAILROADS. Common carrier. Baggage. Wearing apparel. C. purchased for himself and wife a through ticket over several connecting lines of railroads and sig'ñed a contract attached, in which were the following terms : First. “ In selling this ticket this company acts as agent and is not responsible beyond its own line.” Seventh. “ None of the companies represented in this ticket will assume any liability on baggage except for wearing apparel, and then only for a sum not exceeding one hundred dollars.” The trunk of Mrs. G. was robbed, containing wearing apparel, including a watch and chain and a diamond pin. Trunk was transferred in good condition from defendant company to the connecting road. Held: First, that the first item in the contract had reference alone to personal injuries. Second, that the first company was liable for the loss of baggage in case of a through ticket. Third, that common carriers, can not limit their liability or protect themselves in any manner against thé consequences of their own negligence, or the negligence of their agents. Fourth, that the watch and chain and diamond pin, under the facts of this case, were wearing apparel. It is impossible to prescribe any definite rule in respect to what shall be deemed baggage. It certainly includes articles of necessity and personal convenience usually carried by passengers for their personal use, and these depend upon the habits, tastes and resources of the passenger.</p>

<p>FROM CAREOLE.</p> <p>Appeal from the Chancery Court at Huntingdon. JNO. Somers, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby county. A. H. Douglass, J.</p>

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

<p>Chancery Pleadings and Practice. Sale of land. Bights of purchasers. A stranger who becomes the purchaser of land under a decree, will get a title which will not be affected by a reversal of the decree, for error apparent, upon a writ of error or bill of review brought after the sale; aliter, it seems, if the person at whose instance the sale is made becomes the purchaser.</p>

<p>FROM CARROLL.</p> <p>Appeal from tbe County Court of Carroll county.</p>

<p>PROM WEAKLEY.</p> <p>Appeal from the Chancery Court at Dresden. JNO. Somers, Ch.</p>

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

<p>1. Chancery Pleadings and Practice. Foreign corporation. The president of a foreign corporation, who is not made a party defendant to a hill, hut only mentioned as the principal officer of the corporation for the service of process, and upon whom the process against the company is served as such, is not a party to the suit, and can not demur to the bill.</p> <p>2. Same. Same. Service on president. The service of process on the president of a foreign corporation in the county in this State in which he resides and in which the corporation transacts business, either by comity or under the terms of its charter, is sufficient to make the company a party, and, if it has any ground for contesting the jurisdiction of the court by reason of the nature of the transaction, it should make the defense by proper pleading.</p> <p>3. Same. Same. Jurisdiction. The general rule is that the jurisdiction of a court over a foreign corporation, by service of process on a resident agent, is limited to cases founded upon contracts made or transactions occurring in the State, but a foreign corporation doing business in this State, under the express authority of its charter, at a place where its principal officers, and all, or nearly all, of its stockholders reside, and where its stockholders and directors hold their meetings, must be considered as consenting to the jurisdiction of the local courts for all purposes, at any rate until it show cause to the contrary.</p> <p>4. Same. Same. Same. A court of competent jurisdiction can have no difficulty in adjusting the rights and equities of parties in stock in a foreign corporation, transferred in trust to secure a debt due to the corporation, where the trustee, the corporation, and the personal representative of the owner of the equity of redemption are before the court.</p>

<p>1. Marbiage Contract. Ante-nuptial. Construction. Under a settlement, made in anticipation of marriage, by which the intended husband conveys realty and choses in action to a trustee in trust to permit the husband and wife, after the marriage, to have the undisturbed possession, use and enjoyment of the property during their joint lives, and to be conveyed to the wife if she survive the hus--band, the husband has no power, during the marriage, to assign the choses in action to one of his creditors as collateral security for his debt, and the wife may, after the death of the husband, follow the funds into the hands of the assignee.</p> <p>2. Same. Same. Creditor. In order to make an ante-nuptial settlement by the husband on the wife of his own property good as to his then existing creditors, it must be clearly shown by those claiming under the settlement that the husband reserved sufficient property to pay his just debts; but aperson is not an existing creditor within the rule, who, although a large creditor atjjthe time of the marriage by open account for goods sold, continues for five years thereafter, with Knowledge of the settlement, to sell the husband goods to a much larger amount, and receives payments from time to time on his running account, not appropriated by either party, more than sufficient, if applied to the oldest items of account, to have paid off the debt existing at the time of the marriage.</p> <p>3. Running Accounts. Appropriation of payment. In the case of running accounts between parties, where there are various items of debit on one side and various items of credit on the other, occurring at different times, without any special appropriation of payments by either party, the settled rule is that the successive payments or credits are to be applied to the discharge of the items of debit, antecedently due. in the order of time in which they stand in the account, the earliest items being first extinguished.</p>

<p>FROM WEAKLEY.</p> <p>Appeal iu error from the Circuit Court of Weakley county. CLINTON AdeN, J.</p>

<p>1. Alias Pbocess. Issuance of by clerk. No order of the court is necessary to authorize the clerk to issue pluries summons; the plaintiff is entitled to same as a matter of right, and the clerk issues same as a matter of course.</p> <p>2. Discontinuance. Action of court. The action of the court upon the question of discontinuance is necessary to terminate a suit.</p>

<p>1. Wbittbn Opinion by Court. Bequest for. A request that the court “ assign and give an opinion showing the conclusions of fact and law upon which judgment of the court is based,” should be made upon the trial of the cause, or else it will not avail.</p> <p>2, Successful Party. Who is. Costs. A plaintiff, who alone appeals from the judgment of a justice, and fails to recover any greater judgment in the appellate court than he did before the justice, is not a successful parly within the meaning of the statute, and is not entitled to recover costs. Stuart v. Henry, 3 Baxt-., 231, overruled.</p>

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

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

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

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

<p>T. Bublic Administeator. Election of. Where a public administrator was elected at the October term of the court, instead of at the April term, when his prior term regularly expired, the election was valid and proper, the duty of the court to elect being a continuing one.</p> <p>"2. Same. Effect of judgment of ccru/nty court in appointing to administer am estate. In granting letters of administration to the public administrator, the county court exercises the precise jurisdiction that it does in ordinary appointments of administrators; in such appointments its jurisdiction is not special and limited; the grant of letters, though erroneously given, remains good and valid until the decree of the court is' judicially reversed, either on appeal or petition, and can not be collaterally inquired into.</p> <p>•S. Estoppel. The sureties on the official bond of an officer which has been duly approved and accepted by the proper authority, can not raise the question of eligibility to the office. They, as well as he, are estopped by the bond itself.</p> <p>4. Additional Security on Official Bond. Where, under order of the court, a public administrator was required to strengthen his bond by procuring additional security, the party signing the bond as such additional security was estopped by his own act from denying the validity of the undertaking, and the prior sureties were not relieved from their own voluntary obligation thereby.</p> <p>5. Insurance Money. The right of administrator to collect. The statute exempting money collected on the insurance policies of a dead man from liability for debt, does not affect the right of the administrator to collect it, nor the liability of himself and sureties to account for it.</p>

<p>Pbotest and Notice. Effect of epidemics upon. The act of 1879, in regard to the protest and notice, etc., of negotiable paper during the prevalence of epidemics, requires that ‘protest and notice he given fifteen days after the epidemic has been declared at an end, only when such protest and notice has not been made at the maturity of the paper, but if such has been made at maturity of the paper, it is sufficient and of binding effect.</p>

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

<p>PRINCIPAL and Agent. Liability of principal. Where an agent who is acting in good faith and without fault, in proper service of his principal, is subjected to expense, or is sued on a contract made by him, or for an act done pursuant to his authority, the principal is bound to indemnify and reimburse him for the expense.</p>

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

<p>Homestead. Reversionary interest. Under the act of 1879, the lands of a debtor may he sold subject to the right of homestead.</p>

<p>Loss OF Baggage. Liability for. K. purchased a railroad ticket, and also a Pullman car ticket, over the Louisville & Nashville Railroad, from Cincinnati to Memphis. The Pullman car ticket had printed upon its face, “ wearing apparel or baggage placed in the car will be entirely at the risk of the owners.” K. turned his valise over, on entering the Pullman car, to the porter: At G. the valise was missed and could not be found. Held, first, the railroad company was liable for loss of the valise; second, no contract with the Pullman car company could relieve the railroad company from such liability; third, in a suit against the railroad company alone, the condition printed on the Pullman car ticket would have no bearing on the case.</p>

<p>Appeals. Power of court over. A court has no power to set aside a judgment from which no appeal has been taken within thirty days, and render a new judgment for the purpose of allowing an appeal.</p>

<p>1. Negligence. Pleading, Injury to servant. If in an action against a railroad company for an injury to the plaintiff’s eyes by a fragment of steel struck off by him in working on an engine with a cold chisel, the declaration fails to aver any fapt tending to show that he was not rightfully put at the particular work, or that the cutting of steel with a cold chisel was not such work as an employe of the plaintiff’s age and experience might be employed at, the declaration would be fatally defective on demurrer.</p> <p>2. Master and Servant. Duly to furnish suitable tools. Youth and inexperience of employe. It is the duty of the master to furnish his employe with suitable tools for the performance of the duties to which he may be assigned, and to give such instructions to a youthful and inexperienced employe as would enable him, with the exercise of ordinary care, to perform the duties of his employment with safety to himself.</p> <p>3. Pleading. Injury to servant. A declaration, therefore, would be good on demurrer, which averred that the plaintiff, a youth of about nineteen years of age, had never in fact been employed in the particular work in the doing of which the injury sued for was incurred, and was ignorant of the proper tools to perform the work with safety, was not instructed by the defendant as to the danger of the work, nor furnished with suitable tools to do the work.</p>

<p>PROM m’nAIRY.</p> <p>Appeal in error from the Circuit Court of McNairy couuty. J. F. Huddleston, Sp. J.</p>

<p>1. Assessment. Gownty tax. Railroads. Omitted property. The county trustee is the proper officer, under the act of 1879, chapter 79, and subsequent acts amendatory thereof, to assess for county taxation the property of a railroad company which the regular assessors have omitted to assess.</p> <p>2. Same. Appeal by county. Revaluation. If from such assessment the ’ county asks an appeal to the chairman of the county court, that is a sufficient proceeding, under the statute, to entitle the company to a revaluation of the property before the chairman.</p> <p>3. Same. Writ of certiorari. And if the trustee, notwithstanding the proceeding, issue a distress warrant, or its equivalent, for the collection of the taxes, the company may take the case into the circuit court by writs of certiorari and supersedeas, and the judgment of this court sustaining the assessment but quashing the warrant would be final, requiring no remand of the cause, and only a procedendo to the chairman of the county court to make the revaluation.</p> <p>4. Same. Act of 1885, chapter 23. The act of 1885, chapter 23, which in substance restricts the power of tax collectors, conferred by previous acts, to assess omitted property to the three years next preceding the assessment, is not a statute of limitations, and is prospective only, not affecting assessments made before its passage.</p> <p>5. Same. Data for taxation. The taxes for the years ante-dating the act of 1875, and amendatory acts providing for the assessment of railroad property for purposes of taxation by a Board of State Assessors, may be assessed under the general revenue laws of the particular years, but the company, upon the revaluation by the chairman of the county court, may furnish all the data railroad companies are required to furnish the State Board.</p> <p>6. Same. Existence of property. It is no objection to the assessment of property as of a given date that the property has since then ceased to exist.</p> <p>7. Same. Certiorari. There can be no doubt of the jurisdiction of the circuit court to bring before it, by the writ of certiorari, the proceedings touching the collection of taxes, and thereby test the validity of a distress warrant, or the legality of its issuance; but there is grave doubt whether the writ can be resorted to merely to correct a supposed error in the valuation of property by the assessor to whom the duty is assigned by law, and the writ will not be' considered as filed for any such purpose unless the case made in the petition clearly requires it.</p>

<p>1. Railkoad Company. Chartered by two States. Where it may be garnisheed. A railroad company, chartered both by this State and the State of Alabama, and having offices and officers in this State for the whole road, may be garnisheed in this State for wages due by it to an employe residing and employed in the State of Alabama.</p> <p>2. Quere. Attachment by garnishment. Order of publication. Exemption law. State of debtor. Quere, whether the plaintiff in a suit of attachment by garnishment is not entitled to an order of publication for the debtor, even if the facts stated in the garnishee’s answer are not sufficient to charge him. Quere, also, whether the garnishee may, or should, plead the exemption allowed by the law of another State where the debtor resides.</p>

<p>FROM FAYETTE.</p> <p>Appeal in error from the Circuit Court of Fayette county. T. J. FlippIN, J.</p>

<p>1. Cotton Futures. Money advanced. Suit to recover. Defense. It is a good defense to a complainant’s bill to recover money advanced, that the advances were made in the purchase of cotton futures with the distinct understanding that no cotton was to be delivered or price paid therefor, and that the intention of the parties was to speculate in the rise and fall of the price of cotton.</p> <p>2. Same. Agents in buying. It makes no difference that the complainants were acting merely as agents of the respondent in the purchase, and had no interest in the transaction except their commissions as agents.</p>

<p>1. Misdemeanor. Conviction of. Charge of court upon law of felony. Effect of error therein. A.party Tito is acquitted oí tlie charge of felony, but convicted of a misdemeanor, can not avail himself of errors in the judge’s charge upon the subject of felony.</p> <p>2. CHARGE oe Court. Propositions offered by defendant. Duty of court to construe. The defendant submitted a series of propositions to the court, asking that they be given in charge to the jury, which was done with the following endorsement, “ accepted and given to the jury, except in so far as they conflict with the principles laid down in the charge.” Held, that this was error, and that it was the duty of the court to have passed upon the several propositions and withheld such as conflicted with the charge.</p>

<p>1. Pboperty op Married 'Women. Sale for taxes. Power to sell. If real estate in wliicli a mother, who is a married woman, and her children, who are infants, are jointly interested is about to be sold for taxes which they can not otherwise pay, it would he a good ground for selling the property as manifestly to their interest, either under the statute, or the inherent powers of a court of-equity.</p> <p>2. Same. Removal of property to another State. Power of chancery court to sell for. Courts of chancery in this State maysell the realty of a married woman or an infant for the purpose of removing the proceeds to another State, where the married woman or infant permanently resides, upon the ground that it is manifestly to the interest of the party, if the proof establish the fact; and the transfer may be made through the court of this State and a court of competent jurisdiction of the State of the party’s residence.</p> <p>3. Appead op a Purchaser. Error in proceedings. Executed sale. Effect of subsequent proceedings. The appeal of a purchaser of land, under an executed chancery sale, from a decree refusing his application, whether by motion, petition or original bill, to be relieved from his purchase on the ground of error in the proceedings, is a collateral attack on those proceedings, and if the court had jurisdiction of the parties and the subject-matter the appeal would be of no avail, the title of a purchaser under an executed decree not being affected by any subsequent proceedings resorted to by the parties themselves for the correction of errors.</p> <p>4. PARTIES Under Disability. Sale of land of. Compliance with the statute. Acquiescence in irregularities. It is the duty of parties to comply with the terms of the statute prescribing the mode of proceedings in application for the sale of lands of persons under disability, and it is the duty of the court below to see that these requirements are strictly complied with, but, if the court have jurisdiction of the parties and the subject-matter, a purchaser under a decree in the cause will, by the express terms of the statute, acquire a good title, notwithstanding the failure of the parties and the court below to follow the statute strictly, the parties acquiescing in the proceedings.</p>

<p>1. Insolvent Estates. Claims against. Appeal. Claims against insolvent estates must be first adjudicated by the clerk of the probate court, and from his decision an appeal lies directly to the circuit court.</p> <p>2. Pbobate Judge. Review by, of action of clerk. The probate judge has no jurisdiction to review the action of the clerk, that authority being vested exclusively in the circuit court, with a right of appeal to the Supreme Court.</p>

<p>Deed by Husband to Wive and Chibdben. A deed by a husband to his wife and children, which recites that it is made by the husband of the one part and his wife and children of the other part, and conveys land to the wife by name and his children, “ their heirs and assigns forever,” passes a present estate to the wife and the then Hving children as tenants in common.</p>

<p>FROM MADISON.</p> <p>Appeal in error from the Common Law Court of Madison' county. T. C. Muse, J.</p>

<p>Advancements. Conveyance. Provisions in. Effect of will wpon. A provision in a deed that the property therein conveyed shall not he regarded as an advancement is good, and this so, even when the will of the conveyor recites that all money or property given his children shall be taken in final account to enable them to share equally.</p>

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

<p>1. Indictment. Two cowits of. When a verdict should he general. In an indictment containing two counts, one for stealing, the second for receiving stolen goods, etc., it is improper for the court to instruct the jury to designate the count upon which they may find the defendant ■ guilty, hut the whole case ought to he left to the jury to render a general verdict.</p> <p>2. Evidence. Stolen goods. Recent possesssion of. It is not error to permit the evidence of ihe recent possession of the stolen property to go to the jury, along with the other evidence, as applicable to both counts of the indictment.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby county. A. H. Douglass, J.</p>

<p>PROM MCNAIRY.</p> <p>Appeal iu error from the Circuit Court of McNairy county. Geo. H. Nixon, J.</p>

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

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

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

<p>1. CONSTITUTIONAL Law. Justices of the peace. Term of office. The Legislature has no power to abridge the lien of office of justices, under any ckcumstances, by an affirmative enactment, to a less period than •the term fixed by the Constitution, to-wit, six years.</p> <p>2. Same. Same. Election by incorporated towns. Effect of repeal of charter. The repeal by the Legislature of the charter of a town, authorized by section 392, M. & V. Code, to elect an additional justice of the peace, has no effect upon the election of a justice, who was chosen under said section, before the repeal of the charter.</p>

<p>1. Appeal in Ebrob. Presumption as to fads found by the cowt below. Where the testimony is ample to sustain the contention of either party, the finding of the trial judge or jury is conclusive, unless error of law has intervened.</p> <p>2. Detention op Property by Writ op Replevin. Measure of damages. Sow estimated. The measure of damages, when property is wrongfully taken from one’s possession by a writ of replevin, is the value of the use of such property during its detention, to be estimated by the ordinary market price of the use of such property.</p> <p>8. Judgments. Must be reduced to writing. When. The Code, section 2673 (M. & V.), provides that “ upon the trial of a question of fact by the court, the decision, if requested by either party, shall be given in writing, stating the facts found and the conclusions thereon, which shall constitute part of the record.” A failure to do this, if the request is made before the rendition of the judgment, is ground for reversal.</p>

<p>FROM HARDEMAN.</p> <p>Appeal in error from the Circuit Court of Harde-man county. T. J. FlippiN, J.</p>

<p>1. Appeal. New trial. Affidavits. Affidavits submitted to the court below in partial support of a motion for a new trial, but which are not properly authenticated in the record transmitted to the appellate court, must be disregarded by the latter.</p> <p>2. Same. Verdict. Evidence. When the record discloses any competent evidence tending to support a.general verdict, that verdict will not be disturbed on appeal.</p> <p>S. Damages. Pleading. Contract of carnage. Assault. Where a declaration is framed in two counts, one on a contragt for common carriage, and the other for personal assault, a recovery on the first count entitles the plaintiff to actual damages only.</p> <p>4. Same. Exemplary. Torts. Exemplary damages are only recoverable in actions for tort, and where the transaction involves fraud, malice, oppression or gross negligence.</p> <p>5. Oaertee oe Passeüígeks. Negligence. Liability for. The common carrier of passengers for hire, is liable for all injuries resulting from the misconduct of the carrier or his employe.</p>

<p>1. New TbiAD. When given for excessive damages. A new trial will not be awarded upon the ground of excessive damages, unless the damages are so large as to evidence passion or prejudice on part of the jury.</p> <p>2. Same. Tampering with juror. If a juror is tampered with by a party interested in the result of a suit, and the same is known to the opposing counsel, either before the selection of the said juror to try the ease, or before the introduction of any testimony, a new trial will not be granted. The objection should be made when the jury is em-panelled, or as soon thereafter as the counsel are apprised of the fact.</p> <p>3. Same. Verdict. A verdict is not vitiated by the fact that each juror put on paper the amount of damages he was willing to award, and the sum divided by twelve, the result being the amount given in the verdict, provided no previous agreement had been made to abide the result thus obtained. A new trial will not be awarded upon this account.</p> <p>4. Master and Servant. Sights and, remedies. A master has no right to enforce his commands upon his servant or employe by the use of force or personal chastisement. His remedies for any dereliction or breach of contract are either to bring action against the employe or discharge him.</p>

<p>Carrying Pistois. Liability of policeman for. A policeman of a city, regularly appointed, uniformed and assigned to duty, is not liable to indictment for carrying a pistol while actually engaged in the discharge of that duty.</p>

<p>1. Affidavit. Certificate of justice. No certificate is necessary at tlie close of an affidavit upon which a warrant is issued, that said affidavit was sworn to and subscribed before a justice.</p> <p>2. Pleas. Motion to strike out.. The Code, section 3594 (M. & Y.), provides that a plea may be stricken out, upon motion, if bad, for “ duplicity,” “prolixity,” “ irrelevancy,” etc., and it is error to strikeout a plea without the assignment of one of these reasons.</p>

<p>EROM GIBSON.</p> <p>Appeal iii error from the Circuit Court of Gibson county. J. T. Carthel, J.</p>

<p>Omission to Pbovje Fact. Cause of. Eemanding of case. Where this court can see from the record that a party has a clear right to relief if a certain fact he established, and that the omission to prove the fact has been occasioned by the litigation in the court below turning upon a point which assumed the existence of the fact, the cause may be remanded, for the purpose of taking proof on the fact, under the Code, section 3889.</p>

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

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

<p>FROM HARDEMAN.</p> <p>Appeal in error from the Circuit Court ' of Har-deman county. T. J. Kliprin, J.</p>

<p>Attorney's Lien eor Services. Attaches when. Superior to subsequent encumbrances. Proper parties. In December, 1876, a decree was rendered in the Supreme Court, declaring a lien upon certain lands, in favor of respondents, in this suit, for services rendered in defending and quieting the title to said lands. An order of reference to the clerk and master was had to ascertain the amount due. Pending the litigation in the original suit, T., respondent’s client, executed a deed of trust to one W., trustee, to indemnify and save harmless certain sureties and indorsers of T. T., in November, 1875, was adjudged a bankrupt and W. was made assignee. W. was, by consent) made a party to the above mentioned decree, and in the proceeding before the clerk and master, appeared and cross-examined and introduced witnesses, etc. The land was sold, bid in by respondents, and the sale confirmed, W. acquiescing and afterward selling the equity of redemption, which expired by limitation. W. and the holders of the indebtedness under the deed of trust file this bill, attacking the title of respondents in the lands. T. and the sureties and indorsers, for whose indemnity the trust deed was executed, are insolvent and have never paid any of the debts for which they were liable. •</p> <p>Held, first, that the holders of the indebtedness secured by said trust deed can maintain a bill of this character.</p> <p>Second, That, under the decisions at the time of the rendition of the decree, there could have been no question as to the existence of an attorney’s lien for services rendered in defending a suit by which lands are sought to be recovered, although, under later decisions, such lien does not now exist.</p> <p>Third, When such lien does exist, it relates back to the commencement of the service.</p> <p>Fourth, Admitting the decree declaring a lien was erroneous, it was law for that case, and is not void.</p> <p>Fifth, The beneficiaries under the trust deed, being subsequent en-cumbrancers, were not necessary parties to the proceedings before the clerk and master to enforce said lien.</p> <p>Sixth, The assignee in bankruptcy was the only necessary party.</p>

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

<p>FROM MCNAIRY.</p> <p>Appeal from the Chancery Court at Purdy. Geo. H. NixoN, J.</p>

<p>1. Assignment in Bankbuptcy. Competent evidence. An assignment in bankruptcy, reciting upon its face that, it was duly executed in a bankrupt proceeding, and properly certified, is made a muniment of title by law, and there is no reason why it should not be received as evidence, as any other deed executed by an officer or clerk of the court, without bringing with it the entire record.</p> <p>2. Shebipp’s Betubn. When complete. A sheriff’s sale is complete when his return upon the order of sale shows that the creditors bid the amount of their debt and costs, and that the costs were paid to him by them, although the, sheriff may have failed to pay the costs over to the clerk of the court.</p>

<p>EJROM SHELBY.</p> <p>Appeal in error from the Criminal Court of Shelby County. ’ A. H. Douglass, J.</p>

<p>1. Seductioít. What is. Seduction is the act of overcoming the chastity of a female hy artifice, flattery or promises.</p> <p>2. Same. Statute of limitations. Begins to run. When. The offense is complete and a cause of action accrues and the statute of limitations becomes operative thereon with the first act of sexual intercourse.</p> <p>3. Same. Measure of damages. Promise of marriage. No promise of marriage is essential to the completion of the offense, hut such promise may be proved in aggravation of damages.</p> <p>4. Same. Parent and child. Loss of service. At the common law, and the same rule prevails in Tennessee, a father may recover damages for the seduction of his minor daughter, without either proving or pleading the loss of her services.</p>

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

<p>FROM HARDEMAN.</p> <p>Appeal in error from the Circuit Court of Harde-man county. H. J. Livingston, J.</p>

<p>EROM CARROLL.</p> <p>Appeal from the Chancery Court at Huntingdon. JNO. Somers, 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 in error from the Criminal Court of Shelby county. A. H. Douglass, J.</p>

<p>1. Registbation Laws. Noting for registration. When a deed is acknowledged and noted for reisgtration “ on a certain day, and is subsequently registered, the registration takes effect from the date the-deed was noted for registration.”</p> <p>2. Statute of Limitations. Legal and Equitable estates. When both-barred. If an estate in fee is vested in a trustee, and adverse possession is taken and held against him for seven years, the legal estate of the trustee is barred, and consequently the estate of the cestui qua-trust is also barred.</p>

<p>1. Biel op Exceptions. Mandamus to compel judge to sign. To authorize-a mandamus to compel a circuit judge to sign a bill of exceptions, a. • clear abuse of his discretion must appear.</p> <p>2. Same. Sefusal to continue to allow filing of. When it is error. Before-a judge can be put in error for refusing to continue his court in session in order to allow a defendant to present his bill of exceptions, • application should be made in due form showing that proper diligence has been exercised, and that, for sufficient reasons, the bill of' exceptions has not been completed; this so in order that what has-been done may appear of record, from which it may be seen whether there has been an abuse of discretion.</p>

<p>Raileoad Company. Assessment by chairman of county court. The trustee of the county is the proper officer, under the act of 1879, chapter 79, and subsequent acts amendatory thereof, to assess for county taxation the property of a railroad company which the State assessors have omitted to assess; and, upon the company disputing his-assessment, the assessment of the chairman of the county court will be binding, if made at the proper time, and sustained by proof.</p>

<p>FROM WEAKLEY.</p> <p>Appeal from the Chancery Court at Dresden. Jno. -Somers, 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>FROM SHELBY.</p> <p>Appeal from, the Chancery Court at Memphis. W. W. McDowell, Ch.</p>

<p>Demand nob Jtjbt. To whom, made. Becord of demand. What sufficient. An oral demand on the clerk to place a cause on the jury docket is sufficient, and his entry of the cause on one docket or the other is a sufficient record of what he has done.</p>

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

<p>1. Real Estate oe Wabd. Purchase of, by guardian. A guardian may buy tbe real estate of his ward if. he do so fairly and in good faith, and there is no inadequacy of consideration or suspicion .upon his conduct.</p> <p>2. Same. Same. If a guardian bid in at public auction the real estate of •his ward, at a price considerably less than the value placed upon the land by commissioners, he should be required to show that the price paid is reasonable, before the sale can stand.</p>

<p>Bill ov Exceptions. Amendment of. Jurisdiction of evrewit court to make. A bill: of exceptions, filed and certified by the presiding judge, but omitting the recital that it contained all the evidence, can not be properly amended by a certificate of the clerk of the circuit court» showing that the omitted recital was left out through an oversight and by consent of parties and order of court said omitted clause was inserted. The circuit court had then no jurisdiction of the case.</p>

<p>1. Referees. Report of. Exceptions to. Exceptions to the report of the ,. court of Referees will not he noticed unless filed in strict conformity to the act creating that court.</p> <p>2. Wills. Life use in lands. The fourth clause of the will of W. devises to certain heirs of P. a tract of land containing sixty-five acres, and then adds seven or eight smaller tracts, describing them, concluding the clause thus: “ The whole amounting to two hundred and ninety : acres, brtiifctf I value at,” etc. By the next clause he provides: “ I ,, gj.ye,and bequeath tp P. the right to live upon the land which I have given to his children} named above, being the place where he now ' -lives/ hu^iiig ffis ftdtüfál' life.” Held, that P. had a life use in the . entire,property included, in,-the above clause, and was not limited to ^o much as he actually occupied.</p>