Volume 85 — Tennessee Reports

<p>Appeal from the Chancery Court of Hamilton County. October Term, 1882. W. M. Bradford, Ch.</p>

<p>1. Railroads. Negligence. Common law and- statutory. Code, §1298 ' (M. & V.)</p> <p>Section 1298 of the Code (M. & V.), providing that “ every railroad company shall keep some one on the locomotive always upon the lookout ahead, and when any person, etc., appears upon the road, whistle, put down brakes, and use every possible means to prevent an accident,” is merely declaratory of the common law. Nothing therein contained adds to, or varies from, the common law.</p> <p>Code cited: (M. & V.), § 1298; (T. & S.), \ 1166.</p> <p>Cases cited and approved: Horne v. M. & O. R. Co., 1 Cold., 75, 76; L. & N. R. Co. v. Connor, 9 Heis., 21; Burke v. L. & N. R. Co., 7 Heis., 463.</p> <p>2. Pleading. Declaration averring negligence. Notice.</p> <p>A declaration against a railroad company, which avers that the company’s servants wrongfully and negligently ran its cars over the plaintiff’s intestate, thereby causing his death, gives notice that the injury was done contrary to the statute (# 1298 (M. & V.) Code), and that the company will be required to prove, in its defense, that it observed the precautions prescribed by the same statute, although there may be no reference to the statute, in the declaration.</p>

<p>1. Chancery Practice. Appeal. Discretion. Code, 2 3874 (M. & V.)</p> <p>The Chancellor properly exercised the discretion conferred by 2 3874 (M. & V.) Code, by refusing defendant an appeal from a decree rendered against him in a proceeding to enforce a vendor’s lien for balance of purchase-price, and for sale of the land.</p> <p>Code cited: 2 3874 (M. & V.); 2 3157 (T. & S.)</p> <p>2. Supreme Court. Final decree. Writ of error. Consent to jurisdiction.</p> <p>The decree, in such case, is not final, and cannot be reviewed on writ of error, even though the parties consent to the jurisdiction.</p> <p>Code cited: 223895; 3§74 (M. &. V.); 223176, 3!57 (T. & S.)</p> <p>Cases cited and approved: Meek v. Mathis, I Heis., 54°> Abbott v. Fagg, i Heis., 747; Hume v. Commercial Bank, I Lea, 222; Cauthron v. Searcy, 12 Lea, 649-657; Thurston v. Belote, 12 Heis., 249.</p>

<p>Municipal Corporations. Negligence. Defective way. Plaintiff returning from lawdy-hcntse.</p> <p>A plaintiff, being otherwise free from negligence, is not precluded from maintaining an action against a city for injuries sustained by falling into an excavation, negligently left open on its streets, by the mere fact that at the time he received the injuries, lie was returning from a bawdy-house.</p>

<p>Appeal in error from Circuit Court of Knox County. February Term, 1885. S. A. Rogers, J.</p>

<p>■ Appeal from the Chancery Court of Knox County. January Term, 1885. W. B. Staley, Ch.</p>

<p>Appeal from tlie Chancery Court of Knox County. January Term, 1885. W. B. Staley, Ch.</p>

<p>1. Principal and Agent. Purchase by agent. Notice.</p> <p>An indorser on notes, who becomes agent of the owner for their collection, and obtains from the debtor a deed in trust on land to secure them; and thereafter assumes to purchase the land, of the trustee, on terms not authorized by the trust deed — paying no part of the purchase-price and taking no deed to himself — acquires no title or claim to the land himself, and can impart none to purchasers from him with notice, as against-the owner of the notes secured.</p> <p>2. Vendor and Vendee. Constructive notice by recitals in deeds.</p> <p>Where, pursuant to such unauthorized sale, the trustee joins with the purchaser in conveying the lands to a third person, by deed carrying on its face notice of the above recited facts, and thereafter such third person conveys the lands, in trust, to secure certain bonds, by deed reciting and incorporating the deed to himself, all persons taking under the latter deed are affected with notice of the superior equity of the beneficiary under the first trust deed. .</p> <p>Case cited and distinguished: Williams v. Jackson, 107 U. S., 478.</p> <p>3. Same. Constructive notice by certificate on bonds.</p> <p>■ If, upon the bonds secured by the later trust deed, there be a certificate of the trustee referring to it, this will affect purchasers of the bonds with constructive notice of the first trust deed, and of the invalidity of the sale thereunder.</p> <p>4. Chancery Pleading and Practice. Sale decreed without frayer for.</p> <p>Upon the bill of a jiurchaser at trustee’s sale, to which the trustee and beneficiaries are parties, seeking to enjoin collection of his notes for purchase-price, secured by lien on the land, and setting up certain credits, and asking leave to pay balance into court for distribution, the court is authorized to decree sale of the land, without specific prayer for such relief, to satisfy such balance if not paid.</p> <p>Cases cited and approved: Morelock v. Bernard, 15 Lea, 169; The Boston, 1 Sum., 335.</p> <p>5. Writ of Restitution. Improper, when.</p> <p>Tn a suit for land, where the defendant is in possession at its institution, and successful on its final trial, he is not entitled to a writ of restitution, although pending the suit he may have been put out and the plaintiff put into possession of the land, by proceedings in another case.</p>

<p>Appeal from the Chancery Court of Knox County. June Term, 1885. W\ B. Staley, Oh.</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox County. January Term, 1886. ~W. B. Staley, Oh.</p> <p>Suit to enforce a mechanic’s lien, brought by Gal-yon & Co. for use of S. A. Galyon, against George Ketchen and wife, as the owners of the property upon which the lien was claimed, the Savings, Building and Loan Association as mortgagee thereof, and the Knoxville Eire Insurance Company, which had issued a policy of insurance upon the building upon said land. A loss had occurred, and complainants by their bill attached the insurance. There was a decree below dismissing the bill, and complainants have appealed.</p>

<p>Landlord and Tenant. Denying title of landlord. Attornment tinder mistake.</p> <p>If a person, in possession of land, claiming it, attorn to another, under the mistaken belief, induced by misrepresentation, that such other person has title to the land; he is not estopped, by his attornment, in such case, to question the landlord’s title, in a suit brought by the latter, to dispossess him.</p> <p>Case cited and approved': Shultz v. Elliot, II Hum., 186.</p>

<p>1. Common Carrier, Failure to deliver in time. Measure of damages.</p> <p>Where a common carrier receives goods, and contracts to ship and deliver them at place of destination within a reasonable time, and fails to deliver in time; the measure of damages for such default, in an action against him by the shipper, is the depreciation in the market value of the goods at the place of destination between the date when they should have been, and when they were, in fact, delivered there..</p> <p>2. Same. Same. Same. Proof of market value.</p> <p>If there be, at place of destination, no market for the goods, their market value there may be ascertained, in such case, by proof of their market value at other convenient points. .</p> <p>(See Forts'. Sanders, 5 Heis., 481; Railroads'. Mason, 11 Lea, 116.)</p> <p>3 Pleading and Evidence. Special damage not averred, not provable.</p> <p>In an action against a common carrier for failing to deliver goods within the stipulated time at D., it is error to admit, and for the Court to instruct the jury to consider, evidence tending to show loss to the shipper because of the non-arrival of the goods at M. within a reasonable time, there being no averment in the pleadings that the goods were consigned to M., or that their failure to reach M. in due time was caused by any delay in shipment by the carrier.</p>

<p>Appeal from the Chancery Court of Knox County. January Term, 1886. W. B. Staley, Ch.</p>

<p>Appeal in error from Circuit Court of Roane County. August Term, 1886. S. A. Rodgers, J.</p>

of Knox County, May Term, 1886. S. A. Rodgers, J. Plaintiffs owned a house and lot lying near the city of Knoxville. In 1883 the corporate limits were extended so as to include this property. In 1885 the city graded the street in front of it, and in doing this work injured some of plaintiffs’ fencing, and made a fill, which threw surface water back upon their property, thereby damaging their Avails, cellar, and shrubbery.

<p>1. Statute OF Limitations. Adverse possession. Joint right of action of husband and wife.</p> <p>The joint right of husband and wife to sue for wife’s lands, is barred by seven, and by twenty years’ adverse possession of the land by defendant, during her coverture.</p> <p>Cases cited and approved: Guión v. Anderson, 8 Hum., 298, 299; Weisinger v. Murphy, 2 Head, 679.</p> <p>2. Same. Same. Dower. Remainderman,</p> <p>If the land is covered by assigned dower, possession cannot be adverse to, and the statute of limitations does not begin to run against, .the remainderman until the termination of the dower estat.e; and seven years’ adverse possession from the latter date bars the remainderman,</p> <p>3. Tenants IN COMMON. Ouster. Adverse possession.</p> <p>As between tenants in common, an ouster may be presumed in favor of one, who, with the knowledge of his co-tenant, and without objection, takes and holds, for many years, exclusive and adverse possession of land held in common; receives all rents and profits thereof; and conveys the land to secure his debts, and subsequently conveys it, in fee-simple, to a purchaser, who held adversely many years before suit was brought.</p> <p>Cases cited and approved: Hubbard & Wood v. Wood’s Lessee, I Sneed, 279; King v. Rowan, 10 Heis., 677.</p>

<p>Appeal from the Chancery Court of Blount County. December Term, 1885. W. B. Staley, Oh.</p>

<p>Appeal from the Circuit Court of Loudon County. May Term, 1884. M. L. Hall, J., sitting by interchange, etc.</p>

<p>1. County Court. Justices' liability. Taking guardian bonds.</p> <p>If a Chairman of a County Court, through his gross negligence,' take and approve a guardian bond, insufficient in amount of penalty, and number and solvency of sureties, whereby loss befalls the wards, yet he cannot be held personally responsible for such loss, unless it is averred and proved that his neglect of duty was willful and malicious.</p> <p>Cases cited and approved: Boyd v. Ferris, io Hum., 406; Spears-v. Smith, 9 Lea, 486.</p> <p>2. Same. Same. Renewals of guardian bonds.</p> <p>Justices of a County Court negligently failing to require the biennial renewals of a guardian’s bond, whereby the ward sustains loss, cannot be held personally responsible for such loss, unless they knowingly omitted their duty in this regard.</p> <p>(See Code, ¡1 3371 (M. & V.), § 2501 (T. & S.)</p>

<p>Appeal from decree of the County Court of Bledsoe County, at its July Term, 1884.</p>

<p>1. Supreme Court. Practice. Error. Presumptions.</p> <p>Where, in an action of replevin, plaintiff’s title to the property sued for, is attacked on the ground that he purchased it at a sale under a trust deed, given to secure a note bearing 8 per cent, interest, and therefore usurious and void; if the date of the note does not affirmatively appear, in the record, this Court will not presume it was made when 8 per cent, was an illegal rate of interest.</p> <p>2. Same. Same. Correct judgment. Erroneous reasons for. No reversal.</p> <p>A correct judgment, though based on incorrect reasons, will not, for that cause, be reversed.</p>

W. M. Bradeord, Oh. E. H. Bunn died, testate, in 1863, leaving a widow and five children. Pie owned 600 to 800 acres of land, which he devised to his widow and children by a clause in his will, set out in the opinion. In 1868, complainant, Charles Owens, married Texas, a daughter of the testator. She died in 1869, leaving one child, T. C. Owens. The bill was filed in 1881, by Charles Owens, against the widow and children of testator, and said T. 0.

Appeal in error from Circuit . Court of Monroe County. January Term, 1884.' S. A. Ro&ers, J. This is an action against a railroad company for damages to plaintiff’s property, caused by a collision. It was tried on the 16th of July, 1881, by a Justice of the Peace, decided against the railroad company, and by it appealed to the Circuit Court.

<p>1. Vendor and Vendee. Conditional sale. Construction of contract for reconveyance.</p> <p>Where a purchaser by executory contract, of all the iron ore in certain lands, thereafter to be conveyed, agrees at time of his purchase to test the ore before the end of the year, and if he decides that he cannot and will not mine or use the same, to reconvey it to the vendors, upon demand and repayment of the purchase-price with interest; he will not be compelled to reconvey upon such demand and tender of repayment by the vendors, after deed has been made and purchase' price paid, upon the allegation that the purchaser failed to make the stipulated test; he asserting that he can and will use and mine the ore when it is needed.</p> <p>2. Same. Rescission, Parol evidence to show fraud.</p> <p>In a proceeding by a vendor to rescind a contract for the sale of land, on the ground of fraud, parol evidence of the fraudulent representations of the vendee made in negotiating the contract is admissible; the purpose of its admission being not to contradict or vary the terms of the contract, but to show that the vendor was entrapped into an agreement which he would not otherwise have made.</p> <p>Case cited and approved: Rinlay v. King’s Lessee, 3 Pet., 382.</p> <p>3. Same. Same. Fraud of agent.</p> <p>A principal, who accepts the benefit of a contract made on his behalf by his authorized agent, will be held responsible for the fraudulent representations of the agent, although made without authority.</p> <p>Case cited and approved: Franklin v. Ezell, 1 Sneed, 496.</p> <p>4. Same. Same. Misrepresentation,</p> <p>Where a party intentionally or by design misrepresents a material fact, or produces a false impression,;, in order to mislead another, or to obtain an undue advantage of him, in every such case there is a positive fraud in the fullest sense of the term.</p> <p>5. Same. Same. Inadequacy of price.</p> <p>Inadequacy of price, if so gross as to shock the conscience, may furnish sufficient ground for vacating, in a court of equity) a contract for the sale of land, whether executed or executory.</p> <p>Cited: Pom. Eq. Jur. (Vol. 2), Sections 926-928.</p> <p>6. Same. Same. Speculative property. Laches.</p> <p>But when there is no satisfactory proof of fraud or of gross inadequacy of price, and there has been a delay of ten years wholly unaccounted for, rescission will not be granted, especially in cases where the subject matter of the contract is speculative property, liable to large and frequent fluctuations of price.</p> <p>Cases cited and approved : Peck v. Bullard, 2 Hum., 41; Knuckolls v. Lee, 10 Hum., 577; Scott v. Johnson, 5 Heis., 636; Grymeszc Saunders, 93 U. S., 62.</p>

<p>1. Waste. Bill to restrain. When maintainable.</p> <p>A bill in equity to restrain waste lies, ordinarily, only when the complainant’s title is undisputed, and the party committing the waste is in rightful possession; but may be maintained, in other cases on special grounds, such as to quiet possession, to prevent multiplicity of suits, to prevent irreparable mischief, and when the defendant is insolvent.</p> <p>Cases cited and approved: Zinc Co. v. Franklinite Co., 2 Beasley, 350; Bogeyw. Shute, 4jonesEq., 174; Nevettw. Gillespie, x How. (Miss.), 108; Stephens v. Peckham, 1 John. Ch., 318; Shubrick v. Guerard, 2 Desaus., 616; Duvall v. Waters, I Bland, 569; I Leading Cases in Equity, 4 Ed., 1023.</p> <p>2. Same. Same. Title requisite to maintain such bill.</p> <p>The complainant in such case, like the plaintiff in an action of trespass quare clausum fregit, must aver and prove either actual possession, or. a valid and subsisting title in himself, to the premises in dispute. Constructive possession is not sufficient to maintain the action without proof of title.</p> <p>Cases cited and appioved: Gain us v. Bowman, 10 Heis., 605; West v. Lanier, 9 Hum., 772; Polk v. Henderson, 9 Yer., 312; Snoddy v. Kreuch, 3 Head, 301; Kerr Inj., 207, 237.</p> <p>3. Same. Same. Conflicting titles. Mixed possession.</p> <p>When disputed land is corered by the deeds of both paities, and each has possession within the interference, but neither has title, their possessions neutralize each other, as to the land within the lap not in the actual possession of either; and for injury to that paxt of the land neither can maintain an action against the other.</p> <p>4. Ejectment. Plaintiff’s title.</p> <p>In ejectment the plaintiff must recover upon the strength of lijs own title, not upon the weakness of his adversary’s,</p> <p>5. Same. Answer. Outstanding title.</p> <p>The complainant in a bill of ejectment and to restrain waste claimed title by grant from the State directly to himself. The answer denied the validity of this title on the ground that the land had been previously granted; and averred that defendant acquired title under the elder grant by a regular chain of conveyances. In this chain one link was defective, and the title thus left outstanding.</p> <p>Held: That such outstanding title was a valid defense, and available under the pleadings.</p> <p>Cases cited and approved: Peck v. Carmichael, 9 Yer., 328; Dickinson v. Collins, 1 Swan, 519; Humble zb Spears, 8 Bax., 156.</p> <p>6. Same. Sheriff's deed void, not being supported by record.</p> <p>A Sheriff’s deed defective in its recitals, and not supported by the record on which it is based, is bad as a link in a chain of title; but is available as an assurance of title.</p>

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

<p>1. Jurisdiction of Superior Court. Intendment as to.</p> <p>Nothing shall be intended to be out of the jurisdiction of a Superior Court; but thüt which specially appears to be so.</p> <p>Case cited and approved: Hopper#. Fisher, 2 Head, 253-256.</p> <p>2. Same. Collateral attack of decree. Irregularities.</p> <p>The decrees of a Superior Court are valid, on collateral attack, notwithstanding irregularities in the proceedings, if it appear in the record that the Court acquired jurisdiction of the person of the defendant and of the subject matter of litigation.</p> <p>Cases cited and approved: Doyle#. Smith, I Cold., 16-23; Stanley#. Crippin, I Head, 115; Cornelius #. Merritt, 2 Head, 98-99; Mitchell #. McKinney, 6 Heis., 83. ' :</p> <p>3. Same. Same. Publication. Proved by recitals. Pro Confesso.</p> <p>In such case, if the defendant is a non-resident, jurisdiction of the Court over his person is sufficiently shown by recitals in orders on rule docket that publication was made, and in subsequent decree that the cause was heard on order pro confesso; or, in the absence of all other evidence, by the mere recital in the final decree, that the cause was heard on order pro confesso, as it would be presumed such order was made upon publication as required by law.</p> <p>Code cited: \ 5102 (M. &V.), §4359 {T. & S.)</p> <p>Cases cited and approved: Mitchell #. McKinney, 6 Heis., 87; Allen #. Gilliland, 6 Lea, 532-3; Claybrook #. Wade, 7 Cold., 556-7; Walker#. Cottrell, 6 Bax., 261; Netherland #. Johnson, 5 Lea, 34?; Martin #. Porter, 4 I-Ieis., 415; Gilcrease’s Heirs #. Blythe, 6 Plum., 389-90; Gilchrist#. Cannon, 1 Cold., 587; Kyle#. Phillips, 6 Bax., 45; Sparks #. White, 7 Hum., 91-2; Hopper #. Fisher, 2 Plead , 253-4.</p> <p>4. Same. Same. Non-resident. Misnomer. Idem sonans. Ellett and. Elliott.</p> <p>In proceedings against a non-resident defendant, the Court acquires jurisdiction of his person, and a decree rendered against him is valid . on collateral attack, although he may have been incorrectly named in the proceedings; if his true name and that by which he was called in such proceedings are idem sonans. Ellett and Elliott are idem sonans.</p> <p>Cases cited and approved: Williams v. Ogle, 2 Strange.,'889; 2 Ired., 346-</p> <p>5. Same. Application of purchaser at judicial sale. New parties. Land in another county.</p> <p>Where, in the exercise of its proper jurisdiction, the Chancery Court of one county has decreed the sale of lands lying in another county, and the purchaser at such sale, before payment of the purchase price or termination of the suit, has filed a supplemental bill making certain persons defendants, who were not parties to the original proceeding, seeking to have divested out of them the legal title to said lands, or to have nis purchase rescinded for failure of title, the Court acquired jurisdiction of the supplemental bill, and a decree thereon, divesting out of said new parties, the title to said lands and vesting it in the purchaser, is valid, on collateral attack, although they were proceeded against as non-residents and did not appear or make defense.</p> <p>Code cited: 3105, 5054, sub-sec. 4 (M. & V.), ?/j¿ 2267, 4311, sub-sec. 4 (T. & S.)</p> <p>Cases cited and approved: Deadrick v. Smith, 6 Hum., 138-9; Hart v. Czapski, 11 Eea, 154; Birdsong v. Birdsong, 2 Head, 301-2; Alexander v. l’erry, 4 Hum., 391; Winchester v. Winchester, 1 Head, 461.</p> <p>6. Construction of Order or Decree. “ Defendants.” Nameomited.</p> <p>An order or decree in a cause against or referring to “defendants” in general terms embraces all defendants, whether named therein or not.</p> <p>Case cited and approved: Wilson v. Nance, 11 Hum., 191-2.</p> <p>7. Estoppel. Laches. Non-resident.</p> <p>If the owner of land, with knowledge that it has been sold, under decree of Court, as the property of another, acquiesces in that sale for ten years, during which the purchaser has paid the purchase-price and enjoyed the possession of the land, he will be estopped to set up his title; and no less stringent rule will be applied to a non-resident than to a citizen.</p>

<p>1. Corporations. Foreign may become domestic. Compliance with law presumed. Situs.</p> <p>A corporation organized under the laws of another State, for mining and manufacturing purposes, may be incorporated and carry on its business in this State by complying with certain conditions prescribed by the Act of 1877, Ch. 31 ; and where such corporation does, in fact, carry on its business in this State — having its chief office, its officers, directory, books, seal, plant, and property here — it will be presumed, in the absence of proof to the contrary, that it has complied with the requirements of said act, and that it is carrying on its business lawfully in this State; and it will be deemed and held to have its situs in this State, and to stand in all particulars as a domestic corporation.</p> <p>Cited: Acts 1877, Ch. 31; Code, 1992-2003 (M. & V.)</p> <p>2. Same. Same. Legislative intent.</p> <p>Although by a fiction of law long recognized a corporation dwells only in the State of its creation, and cannot migrate therefrom, yet it is well settled that corporations of one State may exercise their faculties in another State so far, and on such terms, and to such extent, as may be permitted by the latter. The question is always one of legislative intent, and not of legislative power or legal possibility.</p> <p>Cases cited and approved: Bank v. Earl, 13 Pet., 590; Ohio Life Ins. Co. v. Merchants’ Ins. Co., 11 Hum., 25; Lane v. Bank, 9 Heis., 436; 12 Wallace, 82; 94 U. S., 535; Morawetz on Corp., § 513.</p> <p>3.' Same. Attachment of stock. Non-resident owner. Situs of stock.</p> <p>The stock of such foreign corporation has its situs in this State, and may be here attached for the debt of a non-resident owner thereof, although the certificates may be in his possession, beyond the limits of this State, at the time of the attachment.</p> <p>Cases cited and approved: Pub. Co. v. Pike, 9 Iieis., 698; Cornick v. Richards, 3 Lea, 15, 16.</p> <p>4. Same. Saíne. Priority of purchaser under attachment over purchaser from owner.</p> <p>The purchaser of the stock at the sale under such attachment will acquire a valid title as against a subsequent purchaser of the same stock from the non-resident owner, although the latter purchaser pays for the stock and obtains the stock certificates before receiving notice of the attachment.</p> <p>Case distinguished: Cornick v. Richards, 3 Lea, I.</p> <p>5. Same. Stock certificates. Nature and qualities of.</p> <p>Stock certificates are merely evidence of the ownership of the shares of stock in a corporation — indicia of the holder’s interest in the earnings and profits of the company; are not negotiable; and not subject to levy of attachment or execution.</p> <p>6. Same. Misnomer. Abatement. Waiver.</p> <p>A misnomer must be pleaded in abatement or it is waived; and a corporation, like an individual, is concluded by a decree rendered against it by a wrong name, if it failed to plead the matter in abatement.</p> <p>Cases cited and approved: Maury County v. Lewis County, t Swan, 239; Railroad Co. v. Evans, 6 Heis., 609 ; Morawetz on Corp., § 181.</p> <p>7. Chancery Pleading. Admissions in. Return of officer.</p> <p>After a defendant has admitted the levy of an attachment in his pleadings, the fact or sufficiency of such levy cannot be inquired into or disputed by him on the hearing.</p> <p>Case cited,and approved : Lea v. Maxwell, 1 Head, 365.</p>

<p>Appeal in error from the Circuit Court of Marion County. D; C. Trewhitt, J.</p>

<p>1. Husband and Wife. Deed. Reservation of joint life estate. Survisior.</p> <p>Where in a deed by husband and wife, conveying lands of the husband, a reservation is made of a life estate, in favor of both, such reservation operates as a conveyance; and upon the death of the husband, inures to the sole benefit of the wife in her own right, as survivor, by operation of law.</p> <p>(See 7 Yer., 319; 4 Sneed, 683; 6 Cold., 113; 1 Heis., 566; 2 Lea, 271; s Lea, 201.)</p> <p>2. Same. Same. Same. Homestead and dower.</p> <p>In such case, the husband’s interest, under the reservation in the joint deed, in the land conveyed, ceased absolutely with his death; and, in the absence of any provision in the deed, or other proof, that he intended his widow to take the life estate reserved in lieu of homestead and dower, she will be entitled to both out of other lands, of which he died seized and possessed, without reference to the lands conveyed.</p>

<p>Appeal from Chancery Court of Greene County. November Term, 1885. C. J. St. John, Ch.</p>

<p>I. Chancery Practice. Appeal. Accounts. Concurrent finding of Chancellor and Clerk and Master.</p> <p>On appeal from the decree of the Chancery Court, overruling exceptions and confirming a report of the Clerk and Master, settling matters of account, this Court, in reviewing the case, will give to the concurrent finding of the Chancellor and Clerk and Master no less weight than attaches to the verdict of a jury and judgment thereon at law.</p> <p>(See Turley v. Turley, post p. —; Turley v. Cooley, 3 Legal Rep., p. I93-)</p> <p>2. Same. Same. Same. • Separate items.</p> <p>The same rule will be applied to separate items of the accounts as to which the Chancellor and Clerk and Master concur.</p>

<p>Appeal from Chancery Com-t of Hamilton County. W. M. Bradford, Ch.</p>

<p>1. Master and Servant. Railroad engineer. Brakeman. Fellow-servant doctrine.</p> <p>An engineer in charge of the train of a railroad company is the superior — not the fellow-servant — of a brakeman on the same train acting under his orders.</p> <p>Case cited and distinguished.: Railroad C.o. v. Wheless, io Lea, 741.</p> <p>2. Same. Negligence. Pleading and evidence. Variance.</p> <p>Where the brakeman sues the company for injuries which he avers were sustained by reason of the negligence of the engineer acting as his superior, there can be no recovery for want of pleading, upon proof of injuries inflicted upon the plaintiff by the engineer as his negligent felloxv-servani.</p> <p>Case cited and approved: Erwin v. Davenport, 9 Heis., 49.</p> <p>3. Same. Saíne. Same. Same. Charge misleading.</p> <p>Consequently, the admission in such case of evidence to show that the engineer was a negligent fellow-servant of the brakeman, accompanied by a charge of the law upon that subject, was misleading and erroneous.</p>

<p>Appeal in error from the Criminal Court of Knox County. September Term, 1886. S. T. Losan, J.</p>

<p>Writ of error to Circuit Court, Carter County. Newton IIacker, J.</p>

<p>1. Supreme Court. Practice. Code {M. V.), 53872, construed.</p> <p>The re-examination of matters of law and fact appearing in the record, to which an appellant from the decree of a Chancery Court is entitled, under 5 3872 (M. & V.) Code, is one to be made according to the well-established course of practice and procedure in Chancery Courts.</p> <p>Code cited: 53872 (M. & V.), 5 3155 (T. & S.)</p> <p>2. Chancery Practice. Report of Master on matters of account, weight and effect of.</p> <p>Under the well-established rules of practice and procedure in Chancery Courts, matters of account involving the consideration of conflicting evidence, when reported on by the Master, and that report adopted by the Chancellor, are treated at, conclusively settled, unless it clearly appear that the'report is based upon an error of law, or is tne result of a clear mistake, or that the Master has abused or exceeded his authority.</p> <p>Cases cited and approved: Brown v. Dailey, ante p. 218; 15 Vt., 185; 50 Vt., 48; 7 Met., 163; 17 Conn., 563; 18 N. J. Eq., 141; Daniel Ch. Pr., 1248-49.</p> <p>3- Api*eal. Brings up entire case, when. Decree vacated ly is no estoppel.</p> <p>A judgment creditor, whose execution had been returned nulla bona. sought by suit in equity against his debtor and another, to reach his debtor’s equitable interest in land, and also to hold the co-defeiv ant personally responsible for the debt. From the decree of the Chancellor, holding that the debtor had no interest in the land, and that his co-defendant was not liable for the debt, the complainant pros-' ecuted a broad appeal. It was determined in the Supreme Court that both defendants were liable 1'or complainant’s debt, but that it was unnecessary to decide what interest, if any, the debtor had in the land.</p> <p>Held: 1. That complainant’s appeal brought up the entire case.</p> <p>2. That the Chancellor’s decree, holding that the defendant debtor had no interest in the lands involved, having been vacated by the appeal, and not affirmed by this Court, does not estop the debtor to assert his claim to said land in a subsequent proceeding against his co-defendant.,.</p> <p>Cases cited and approved: Grubb 7'. Browder, 11 Ileis., 299; Parsons 7'. Kin ¡ser, 3 Lea, 351.</p> <p>4. Rks Adjudicata. Must be specially relied on in equity by plea or answer. The defense of res adjudicata must, in equity, be specially pleaded in bar, or relied on in the answer; appearing in neither bill, plea, nor answer, it cannot be relied upon in the evidence.</p> <p>Cases cited and approved: Duluth Nat. Bank v. Knoxville Fire Ins. Co., ante p. 76; I Dana, 575-76; 5 Ohio, 459; 14 Johnson, 501.</p>

<p>1. Chancery Pleading and Practice. Answer does not overrttle negative plea in abatement, when.</p> <p>Where the complainant, in his bill for an attachment, avers that the defendant has fraudulently disposed of, or is about fraudulently to dispose of, his property, and in addition sets out former alleged fraudulent devices and transfers in support of his charge, the defendant may file a plea in abatement traversing the cause laid for the attachment, and an answer denying the other facts stated in the bill; and the answer, in such case, does not overrule the plea. '</p> <p>Case cited and approved: Seifred v. People’s Bank, I Bax., 200.</p> <p>2. Same. Attachment for debt not due. No decree for debt, when dismissed.</p> <p>The defense of prematurity of suit may be'properly made in equity by answer; and hence, where an attachment for a debt not due has been defeated by plea in abatement, there can be no decree for the debt if the prematurity of the suit be relied on as a defense in the answer. Case cited and approved: Robinson v. Grubb, 8 Bax., 19.</p> <p>3. COSTS. Adjudged against a successful defendant who has misled the complainant.</p> <p>A successful defendant in an attachment suit who by his conduct and misrepresentations, though innocently made, induced the complainant to believe that he had good cause for attachment, will be taxed with costs.</p>

<p>Motion to retax the Sheriff’s costs, which had been stricken out by the Attorney-General.</p>

<p>Appeal in error from Circuit Court of Williamson County. W. S. McLemore, J.</p>

<p>i: Chancery Pleading and Practice. Demurrer. Abandonment of.</p> <p>A demurrer, filed with an answer and never acted on by the Court, is to be treated as abandoned.</p> <p>(See Code, ?§ 5062-63, 5137 (M. & V.) ; \\ 4319-20, 4394 (T. & S.)'</p> <p>2. EQUITY. Stale demand. Insolvency of debtor.</p> <p>A creditor’s delay in bringing suit may be excused and explained by the debtor’s insolvency.</p> <p>3. Statute of Limitations. Prescribed by Code of 1858. Not applicable to rights of action accruing before.</p> <p>The ten years’ limitation of actions on judgments, prescribed by 2776 of the Code of 1858, does not apply to actions on judgments rendered prior to October 1st, 1858. Causes of action accruing prior to that date are expressly excepted by $ 47 of said Code from the limitations therein prescribed.</p> <p>Code cited: 3473, 45 (M. & V.) ; 2776, 47 (T. &-S.)</p> <p>Case cited and criticized: McGrew v. Reasons, 3 Lea, 485.</p>

<p>Appeal from tlie Chancery Court of Williamson County. June Term, 1883. W. S. Fleming, Cb.</p>

<p>Appeal from the Chancery Court of Williamson Comity. W. S. Fleming, Oh.</p>

<p>1. Supreme Court Practice. Finding of fudge where fury is waived. Weight of. Vitiated, by error. Case not remanded, when.</p> <p>Under the practice of this Court, the finding of a Circuit Judge, upon the facts of a case, where a jury is waived, has the same weight as the verdict of a jury; but where it appears that he admitted and considered illegal testimony, material in its character, or misconceived the law applicable to the case, on a material question, his finding will be set aside and a new trial granted; and this Court, without remanding the case, will determine it properly, and pronounce such judgment as the Circuit Judge should have rendered.</p> <p>Cases cited and approved: As to weight of Judge’s finding: Folwell v. Laird, 12 Heis., 464; Mabry v. Memphis, 12 Heis., 539; State Ins. Co. v. Hughes, 10 Lea, 462.</p> <p>As to judgment without remanding: Boothe v. Allen, 4 Heis., 258; Fogg v. Gibbs, 8 Bax., 469; (Wheeler v. State, 9 Heis., 393; Singleton v. Wesson, Post, p.-; but see Hurly v. Buchi, 10 Lea, 346; and Settle v. Marlow, 12 Lea, 472, as to what cases will be remanded).</p> <p>2. Assignment. Of contract to pay for bridge. Complete •without notice to ■ debioi'.</p> <p>A written contract, made by County Bridge Commissioners with a bridge builder, to pay him, upon the completion of a specified bridge, the sum of $1,000, “as fast as the Tax Collector should collect the same,” is not negotiable by the law merchant, but is assignable by statute; and the legal title passes, by the assignment and delivery of such contract, to the assignee, who may sue thereon in his own name; and no notice to the debtor is necessary to complete the assignment.</p> <p>Code cited: \ 2724 (M. & V.); \ 1967 (T. & S.)</p> <p>Cases cited and approved: Insurance-Co. v. Hamilton, 5 Sneed, 269; Gay oso Sav. Inst. v. Fellows, 6 Cold., 471.</p> <p>Cited and distinguished: Clodfelter v. Cox, 1 Sneed, 330.</p> <p>3. Bridge Commissioners. Personal liability.</p> <p>Where in such case the Bridge Commissioners receive the money from the Tax Collector to pay for the bridge, and wrongfully withhold it after completion and acceptance of the bridge, they render themselves personally liable to the builder or his assignee.</p> <p>4. Same. Not discharged by payment to assignor.</p> <p>Payment made to the assignor by the Bridge Commissioners, after the assignment and delivery of such contract to the assignee, is wrongful, and does not discharge them from liability to the assignee, even if made in ignorance of the assignment.</p> <p>5. County Bridge. Acceptance by-user. Approval by viewers.</p> <p>The proof fails to make out the defense of non-acceptance of a county bridge, where it shows that the bridge was approved by a jury of view appointed to inspect it; was used by the public for five years without objection, and was a serviceable and durable structure, the defects complained of being of a trivial character and involving small cost.</p> <p>6. Principal anü Agent. Assignment by agent of contract in principal’s name. Authority of agent.</p> <p>In an action by the assignee of a contract for the sale of a bridge and for its erection, to recover the money due, where it appears that the assignment was made by the agent of the bridge company, and that the agent had the sole authority to sell the company’s bridges in the State, and that he was authorized to sign contracts for the sale of bridges in the company’s name, and then purchase the bridges of it, and erect them at his own expense, and receive all the profits; and it further appears that the money for the purchase and erection of the bridge described in the contract in suit was furnished by the plaintiff. Held: That the agent had authority to assign the contract.</p>

<p>Appeal from tlie Cliancery Court of Smith County, W. Gf. Crowley, Ch.</p>

<p>Appeal from the Chancery Court of Williamson County. W. S. Fleming, Ch.</p>

<p>Tax on Litigation. Not costs in criminal cases, nor collectible by imprisonment.</p> <p>The tax on litigation imposed by §612 (M. &Y.) Code upon “the party taxed with the costs in prosecutions by presentment or indictment,” is a specific tax imposed for revenue purposes only, and not by way of punishment, and is not costs nor collectible as such; and therefore a person convicted of a misdemeanor, and, in default of paying or securing the “fine and costs,” sentenced to the county work-house to work the same out pursuant to the Act of 1885, Ch. 83, cannot be detained to work out said tax.</p> <p>Code cited: §§612, 6261, 6264, (M. & V.); §551 (T. & S.); Acts 1875, Ch. 83.</p> <p>Cases cited and approved: State v. Nance, r Lea, 644; State v. Stanley, 3 Lea, 524; State v. Hartman, 5 Lea, 118; Ellison v. Winstead, 10 Lea, 472; Galbraith v. Gaines, 10 Lea, 573; State Tax Cases, 12 Lea, 744; Eastman v. Nashville, 13 Lea, 717.</p>

<p>Appeal in error from the Circuit Court of Jackson County. N. W. McConnell, J.</p>

<p>1. Right of Redemption. A legal right. Chancery jurisdiction over. Redemption by creditor.</p> <p>The right of redemption, given by statute to the debtor whose lands have been sold under execution, is a legal right, and cannot be subjected to sale by the Chancery Courts, upon the bill of a judgment creditor whose execution has been returned nulla bona. The judgment creditor’s remedy, in such case, is to redeem, and advance his bid on his debtor’s land.</p> <p>Case cited and approved: Weakley v. Cockril, 6 Lea, 270. .</p> <p>2. Same. Bill fixes no lieu, and does not affect the right to assign or redeem.</p> <p>The Chancery Court having no jurisdiction to subject the debtor’s right of redemption to sale, the judgment creditor’s bill filed for that purpose fixes no lien upon the debtor’s right of redemption ; and interposes no obstacle to its assignment by the debtor; or to the redemption of the land by the debtor, or his assignee.</p> <p>Cases cited and approved: Bank v. Ridgway, 3 Lea, 623; McLain v. Harris, 14 Lea, 510.</p> <p>3. Same. Redemption from judgment creditor. Upon what terms permitted.</p> <p>A judgment creditor, who has purchased or redeemed his debtor’s lands sold at execution sale, and taken Sheriff’s deed therefor, will be compelled, in equity, to submit to redemption of the lands by the debtor, or liis assignee of the right of redemption, upon payment or tender of the creditor’s bid, with interest and costs; and the creditor will not be permitted, after such tender, to withhold the legal title from the debtor, or his assignee, as a security for other unsatisfied judgments he may hold against the debtor.</p> <p>Case cited and distinguished: Williams v. Love, 2 Head, 80.</p> <p>4. Deed of Assignment. Person attacking cannot claim under it.</p> <p>A person who attacks and repudiates a deed of assignment, setting up a claim antagonistic to it, cannot, after being defeated, claim under the deed.</p>

Appeal in error from the Circuit Court of Macon County. N. W- McConnell, J. John B. Foust was presented in the Circuit Court of Macon County for carrying arms. He pleaded (1) not guilty, (2) former conviction. The plea of former conviction was regular in form, and was supported by a copy of the record on which it was based.

<p>i. Measure of Damages. On breach of “ building contract”</p> <p>A contract to build a mill-dam for a certain sum, the owner to furnish all materials, is not a contract of hiring, or for personal services, but a contract fora “job of work,” called in the books a “building contract;” and for breach of such contract by the owner’s failure to furnish materials, the measure of damages is not the value of the contractor’s time, or the price agreed to be paid for the work, but the value of the contract, which is the difference between the price agreed to be paid; and what would have been the cost of performance.</p> <p>2. Supreme Court Practice. Finding of Circuit Judge reversed for misconstruction of contract.</p> <p>A judgment for damages, for breach of contract, based on the finding of a Circuit Judge, will be reversed, where it is manifest that he misconceived the nature of the contract sued on, and was thereby misled in estimating the damages.</p> <p>(See Smith v. Hubbard, ante, p. 306.)</p>

<p>Parol Sale of Land. Disaffirmance by vendee. Recovery of purchase-price paid. Want of consideration.</p> <p>There is no valid consideration to support a contract, by which a vendee, upon disaffirmance of his parol purchase of land, agrees, in consideration of being released from such purchase, to surrender to his vendor certain property which had been paid on the purchase-price; and the vendee may, notwithstanding such surrender, recover the property or its value.</p>

<p>Homestead. In lands sold under execution. Wife estopped to claim, token.</p> <p>The wife cannot assert her claim to homestead in lands of the husband which has been sold under execution, for his debts, where, after such sale, she joined in conveying other lands owned by him, worth more than $1,000, on which they resided.</p> <p>Cases cited and approved: Hildebrand v. Taylor, 6 Lea, 659; Enochs v. Wilson, 11 Lea, 228.</p>

<p>1. Deed. Certificate of privy examination. Seal not required.</p> <p>The certificate of the privy examination of a married woman to her deed is valid and sufficient without the addition of a seal to the official signature of the commissioner who makes it.</p> <p>Code cited: § 1804 (T. & S.); § 2478 (M. & V.)</p> <p>(See also \\ 2076, 2077, 2078 (T. & S.); 2891, 2892, 2893 (M. & V.)</p> <p>2. Samé. Privy examination of married -woman. Taken on Sunday.</p> <p>The privy examination of a married woman to her deed, taken on Sunday, is valid.</p> <p>(See Code, \\ 2289, 3529-3532 (M. & V.); jg 1723, 2824-2827 (T. & S.); 5 Hum., 105; 6 Lea, 286; 16 Lea, 476.)</p>

<p>1. Mortgage. Description. Construction of deed. Tenant in common.</p> <p>A person taking a mortgage of an unascertained 200 acres of a 900 acre tract of land, acquires title to an undivided two-ninths of the entire tract; and generally, where a deed of a given quantity of land, parcel of a larger tract, does not locate it by its description, the purchaser becomes a tenant in common pro rata in the whole parcel.</p> <p>2. Same. Description inserted after signing. Parol authority. Mortgagee having no notice.</p> <p>The description of the land intended to be conveyed by a mortgage may be inserted therein by a third person, upon parol authority of the mortgaged*, after it ‘is signed; and the mortgagee receiving said mortgage, without notice of the manner of its execution, and paying a valuable consideration for it, can enforce it in a court of equity.</p>

<p>Appeal from the Chancery Court of Lincoln County. "W. S. Bearden, Sp. Ch.</p>

<p>Appeal from the Chancery Court of Lincoln County. August Special Term, 1886. E. D. Hancock, Ch.</p>

<p>1. Chancery Practice. Exceptions to deposition. Waiver of. Appeal.</p> <p>The action of the Master sustaining an exception to a deposition is vacated by appeal; and under the provisions of Code (M. & V.), §4626, and Chancery Rule 2, Section 5, the exception is waived, unless the appeal is called up, and disposed of by the Court, before commencement of the hearing of the cause.</p> <p>Code cited: \ 4626 (M. & V.) ; ¡5 3868 (T. & S.); Ch. Rule 2, Section 5.</p> <p>Cases cited and approved: Hawkins». McNamara, 1 Heis., 352; Rhea v. McCorkle, 11 Heis., 415; Brandon». Mullenix, 11 Heis., 446.</p> <p>2. Same. Order nunc pro tunc. Made upon insufficient evidence.</p> <p>A nunc pro tunc entry should not be made by a Judge who did not make the original order, upon the mere statement of counsel, excepted to by opposing counsel, that such .order was made. (See Shea v. Mabry, 1 Lea, 319.)</p> <p>3. Same. Same. Appeal, when granted and perfected..</p> <p>Where an order is passed, but not entered of record, granting an appeal upon appellant’s giving bond, and the appellant fails to give the bond, the Court cannot at a subsequent, term, upon entering such order nunc pro tunc, renew the right of appeal, or grant an appeal.</p>

<p>Appeal in error from Circuit Court of Wilson County. Robt. Cantrell, J.</p>

<p>Appeal from Chancery *'Court of Macon County. W. G-. Crowley, Ch.</p>

Appeal in error from the Circuit Court of Wilson County. Rout. Cantrell, J. Action for false imprisonment and malicious prosecution. The plaintiff obtained judgment on January 17th, 1882. Defendant appealed.

<p>Appeal in error from Circuit Court of Franklin County. J. J. Williams, J,</p>

<p>New Trial. Amount of verdict, a matter for the jury. Personal torts.</p> <p>In actions for damages for personal torts, it is within the strict province of the jury to estimate the extent of the injury, and assess the amount of the damages; and unless there is on the part of the jury such manifest abuse of this trust, as to indicate passion, partiality, unaccountable caprice, or corruption, the trial Judge should not set aside then-verdict, although he may be of opinion that it is excessive in amount. A fortiori, this Court will not set aside a verdict, in such case, on the ground that the trial Judge, though refusing to set it aside, disapproved the amount thereof, as being excessive.</p> <p>Cases cited and approved: Boyers v. Pratt, I Hum., 93; Goodall v. Thurman, 1 Head, 217; 12 Johns, 236; 1 Burrow, 609; 6 East, 244.</p> <p>(See Railroad Co. v. Higgins, post, p. —.)</p> <p>Cited and distinguished: England v. Burt, 4 Hunt., 399; Jones v. Jennings, 10 Hum., 428; Nailing v. Nailing, 2 Sneed, 631; Vaulx v. Herman, 8 Lea, 687.</p> <p>(See Turner v. Turner, ante, p. 387.)</p> <p>Cited and overruled: Dictum in Railroad Co. v. Foster, 10 Lea, 366.</p>

<p>1. Married Woman. Separate estate. Judgment.</p> <p>A judgment against a married woman will not bind her separate estate, unless the claim or debt on which it is based would have been a charge on the estate if the judgment had not been rendered.</p> <p>Case cited and'approved: Chatterton v. Young, 2 Tenn. Ch., 768.</p> <p>Cited and distinguished: Howell v. Hale, 5 Lea, 405 ; Yealman v. Bell-main, 6 Lea, 488.</p> <p>2. Same. Same. Joint note of husband and wife.</p> <p>The joint note of husband and wife, silent as to the wife’s separate estate, will not bind it, although the payee accepted the note upon the faith of, and looking alone to, her separate estate.</p> <p>Cases cited and approved: Ragsdale v. Gossett, 2 Lea, 729; Letlon v. Baldwin, 8 Hum., 209; Hughes v. Peters, I Cold., 67.</p>

<p>Appeal -from Chancery Court of Wilson County. George E. Seay, Ch.</p>

<p>Appeal from the Chancery Court of Bedford County. Robert Cantrell, Sp. Ch.</p>

<p>1. Sale of Expectancies. Equity •will enforce.</p> <p>The sale or assignment, in good faith, and for a valuable consideration, of the estate in expectancy of an heir apparent, is valid, and will be upheld and enforced in courts of equity.</p> <p>Case cited and approved: Fitzgei’ald v. Vestal, 4 Sneed, 257.</p> <p>2. Same. Purchaser’s rights. Advancements to heirs. Debts.</p> <p>The purchaser of the estate in expectancy of an heir apparent, takes it, subject to advancements made to the heir, but not subject to debts due from the heir to the ancestor’s estate.</p> <p>Cases cited and appi-oved: Johnson v. Hoyle, 3 Head, 56; Mayor v. Ins. Co., 2 Bax., 303; Towles v. Towles, 1 Head, 601; Mann v. Mann, 12 Heis., 246. :</p> <p>3. Advancements. Father paying his son’s debts.</p> <p>Payments made hy a father.on his son’s debts are presumed to be advancements to the son; and in the absence of any proof of a contrary intention on the part of the father, will be treated as advancements in ¿he settlement of his estate. This presumed intention of the father may, however, be rebutted by proof.</p> <p>Case cited and.approved: Johnson v. Hoyle, 3 Head, 56.</p> <p>4. Same. Interest on. Correction of Master's report, without exception.</p> <p>Advancements draw interest, as matter of law, from the date of the ancestor’s death; and a Master’s report omitting to charge interest on advancements may be corrected by the Court, without exception.</p> <p>5. Supreme Court Practice. Exclusion of evidence by Chancellor. Bill of exceptions necessary.</p> <p>Evidence excluded on the hearing by the Chancellor cannot be looked to by this Court, unless it is made part of the record by bill of exceptions.</p> <p>(See 8 Lea, 453; I Hum., 431; 1 Swan, 289.)</p>

<p>1. CRIMINAL Law. Continuance. Discretion. General rule.</p> <p>A continuance in a criminal case rests in the sound discretion of the trial Judge, and his action in refusing to grant it, will not be reviewed on appeal, unless it clearly appears that he has improperly exercised, or grossly abused that discretion; and in no case will his action be reviewed, when it clearly appears that justice has been done, without any sacrifice of the rights of the accused.</p> <p>Case cited and approved: Rexford v. Pulley, 4 Bax., 366.</p> <p>2. SAME. Same. Affidavit. Absence and sickness of witnesses.</p> <p>An application for continuance of a murder case, at the first term, is properly refused, where it is based on the affidavit of defendant, stating that three of his material witnesses (who had been summoned) were absent without his consent, and that one of them was sick, as he was informed; but failing to state that he believed the information, or that he did not have other witnesses present, by whom he could prove the same facts that the absent ones would depose to.</p> <p>3. Same. New trial. Uncorroborated affidavit of defendant.</p> <p>The uncorroborated affidavit of a defendant, in a murder case, however material in its statements, is not, of itself, sufficient ground for granting a new trial.</p> <p>4. Same. Same. Same. Undue excitement.</p> <p>A new trial will not be granted upon an allegation of undue excitement, based upon defendant’s affidavit alone, corroborated by nothing except a newspaper article made exhibit thereto, which does not appear to have reached or influenced any member of the jury.</p>

<p>I. DRUGGISTS. When, and when not, liable for tax as liquor dealers.</p> <p>Acts construed: 1870, Ch. 51 (Code (T. & S.), 696 a and b); 1881, Ch. 149; 1882, Ch. 5 (3d ex. sess.); 1883, Ch. 106 (Code (M. & V.), § 617) ; 1885, Ch. 5 (ex. sess.)</p> <p>Upon a construction of all the acts pertaining to sales by druggists of alcoholic or vinous liquors, the Court announced the following conclusions :</p> <p>First — That no druggist, simply because he uses alcoholic or vinous liquors in the compounding of tinctures, essences, or other preparations is, therefore, subject to the tax of a liquor dealer.</p> <p>Second — That no druggist selling compounds, tinctures, essences, perfumery, or other preparation of which either alcohol, wine, or other liquor is a component part, subjects himself to' the tax imposed on liquor dealers; unless such sale is a mere sham or subterfuge to evade the law concerning sales of liquors.</p> <p>Third — That prior to the Act of 1885, Ch. 5 (ex. sess.), a druggist might, in good faith, sell wine for communion purposes, or fill the prescription of a regular practicing physician for either alcoholic or vinous liquors without paying the tax on liquor dealers; but at no time since the Act of 1870, Ch. 5r, has it been lawful for him to sell for medical purposes, without such prescription.</p> <p>Cases cited and approved: Phillips v. The State, 2 Yer., 458; Harper v. The State, 3 Lea, 211 ; Newman v. The Stale, 7 Lea, 617 ; 15 Vt., 298; 39 Me., 522; 101 111., 126; 36 Ark., 36; 72 Mo., 297; 38 Am. Rep., 346; 24 Pick., 366.</p> <p>Fourth — Since the Act of 1885, Ch. 5 (ex. sess.), it has not been lawful for a druggist to sell, without paying the tax on liquor dealers, either spirituous or vinous liquors for any purpose whatever, upon prescription or otherwise, “except wine for sacramental purposes.”</p> <p>(See authorities cited above.)</p> <p>Fifth — That druggists, who sell liquors, otherwise than in the excepted cases, under the Acts of 1870 and 1885, must take out license, give bond, take the oath, and pay tax as regular liquor dealers.</p> <p>Cases cited and approved: Newman v. The State, 7 Lea, 617; Harper ■v. The State, 3 Lea, 211.</p> <p>Sixth — That druggists selling liquors contrary to the Acts of 1870 and 1885, and without license, are subject not only to the tax imposed on liquor dealers, but also to indictment for each sale.</p> <p>2. Statutes. Construction of revenue laws. Double tax.</p> <p>A safe and sound rule of construction of revenue laws is to hold, in the absence of express words disclosing a different intent, that they are not intended to subject the same property to be twice charged for the same tax, nor the same business to be twice taxed for the exercise of the same privilege.</p> <p>Case cited and approved: Bell v. Watson, 3 Lea, 328.</p> <p>3. Same. Same. Re-enactment. Repeal.</p> <p>Where an act prohibiting the sale of liquors by druggists, except in certain specified cases, is substantially re-enacted by a subsequent statute omitting some of the exceptions of the former act, and containing a clause repealing all laws in conflict; the omitted exceptions stand repealed both expressly and by necessary implication.</p> <p>4. Witness. Criminating self . Misdemeanor barred by statute of limitations.</p> <p>Where a witness, who has made unlawful sales of liquors, is protected from prosecution therefor by the statute of limitations, he cannot refuse to testify to the fact of such sales on the ground that his testimony would criminate himself.</p> <p>5. Same. Same. General exceptions.</p> <p>The testimony of a witness to facts criminating himself, will not be excluded on a general exception thereto; nor will it be held incompetent in any case unless it appears that the witness himself, at the time he was examined, claimed his exemption on the ground that his answers would criminate himself, and was nevertheless compelled to testify.</p> <p>(See Muller®. State, 11 Lea, 18.)</p> <p>6. Penalties. Equity will not enforce.</p> <p>The penalties imposed by \ 873 (M. & V.) Code, upon persons exercising any privilege, without obtaining license, cannot be enforced in equity; but only by strict pursuance of the statutory remedy by distress warrant.</p> <p>(See Code, $ 873 (M. & V.); $ 704 (T. & S.)</p>

Appeal' in error from tire Circuit Court of Davidson County. Frank T. Reid, J. Action by Gower against the railroad company for damages for personal injuries, which he avers wore caused by the company’s negligence. Judgment below in favor of Gower. The railroad company appealed.

<p>Appeal from Chancery Court of Bedford County. E. L>. Hancock, Ch.</p>

<p>1. Chancery Practice. Exception to Master's report.</p> <p>An exception to a Master’s report, like a special demurrer, must point out distinctly and specifically the objection relied on. It must be positive, explicit, and certain, leaving nothing to supposition or inference.</p> <p>Cases cited and approved: Ridley v. Ridley, I Cold., 332; Musgrove v. Lusk, 2 Tenn. Ch., 576; Greens. Lanier, 5 I-Ieis., 670.</p> <p>2. Administrator’s Bond. Surety's liability for debt due by the administrator to the estate.</p> <p>A surety upon an administrator’s bond does not thereby become surety for an antecedent debt due from his principal to the estate; but if such debt is lost by the subsequent insolvency of his principal, he will.be held responsible therefor, if it could have been collected off his principal, by one representing the estate, in that matter, with due and proper diligence.</p> <p>Cases cited and approved: Spurlock v. Earles, 8 Bax., 437; Mickle v. Brown, 4 Bax., 468; Calor, ex piarte, 14 Lea, 408.</p>

<p>Appeal from Chancery Court of Davidson County, A. G. Merritt, Ch.</p>

<p>1. Criminal Law. Carrying weapons. Journey feature.</p> <p>Since the act of 1879, Ch. 186, no person can lawfully carry any of the weapons therein prohibited, while on a journey out of his county or the Slate. That act repeals the journey feature of the former laws on the subject of carrying arms.</p> <p>Code cited: g 5533 (M. & V.) ; g 4759a (T. & S.)</p> <p>2. Statutes. Construction and repeal.</p> <p>A statute inconsistent with, and embracing the entire subject-matter of, a former statute repeals it, either with or without a repealing clause.</p> <p>(See Druggist Cases, ante, p. 449.)</p> <p>3. Constitutional Law. Repeal by implication.</p> <p>A statute, which operates to repeal a former statute, by implication merely, does not fall within Art. 2, Sec. 17, of the Constitution, which requires that “all acts, which repeal, revive, or amend former laws, shall recite, in their caption or otherwise, the title or substance of the law repealed, revived, or amended.”</p> <p>Case cited and approved: Insurance Co. v. Taxing District, 4 Lea, 644.</p>

<p>Usury. Loan of U. S. bonds.</p> <p>A contract by which a party lends United States bonds, and the borrower agrees to pay over to the owner the interest paid by the Government thereon, and six per cent, in addition, is not usurious.</p> <p>Code cited: ?¿/¿ 1943, 1944 (T. & S.) ; $$ 2700, 2701 (M. & V.)</p>

<p>1. Attachment. Of equitable interest. Parties.</p> <p>The equitable interest of one holding land under title bond cannot be reached by attachment at law; nor by proceedings in equity, unless the holder of the legal title is made a party. No title or lien is acquired by a purchaser of the land at a sale made under such attachment or proceedings.</p> <p>Code cited: $ 3694, 3698 (M. & V.); ¡$2980, 2984 (T. & S.)</p> <p>Cases cited and approved: Lanes'. Marshall, 1 Heis., 30; Hillmans/. Werner, 9 Iieis., 586.</p> <p>2. Judgment. Setting aside satisfaction. Necessary parlies.</p> <p>Satisfaction of a judgment or decree cannot be set aside, unless all the the parties against whom the judgment or decree was rendered are made parties to the proceeding to set aside its satisfaction.</p> <p>Case cited and approved: Humberds/. Kerr, 8 Bax., 291.</p> <p>3. Equity. Setting aside jzidicial sale. Complainant must do equity, when.</p> <p>A judgment debtor who has allowed his lands, in which he had but an equitable interest, to be sold, without objection, under proceedings describing it as a legal title to which he was a party; and thereafter rented the land from the creditor, who purchased it, cannot by suit in equity, brought long afterward, to enforce-his equitable title, and have the sale declared void, obtain relief, except upon the condition of paying the creditor’s bid.</p> <p>4. Same. Same. Lien of judgment and levy enforced.</p> <p>Upon setting aside a judgment creditor’s purchase of his debtor’s land, at execution sale, on the ground that several distinct tracts were sold together, a court of equity will, ¡upon the creditor’s cross-bill enforce the lien of his judgment and levy against the land,</p> <p>5. -Attorney’s Lien. Conditional recovery of land.</p> <p>An attorney’s lien for his fees attaches to the ultimate recovery of his client, ancl not to any mere incidental recovery of title; and, therefore, when a complainant recovers land, upon condition that he pay a certain sum to the defendant, the lien of complainant’s attorney attaches only to the surplus after, defendant’s claim is paid out of the land.</p> <p>Case cited and distinguished: Wright -u. Dufield, 2 Bax., 21S.</p>

<p>Appeal from Chancery Court of Cannon County. E. D. Hancock, Ch.</p>

<p>Appeal from Chancery Court of Franklin County. E. D. Hancock, Ch.</p>

<p>1. Criminal Law. Continuance. Negligence of applicant.</p> <p>Where, al the term of court at which an indictment is found, a criminal case is set for trial nine days after the arraignment of defendant, and he obtains a further postponement of the trial for one week, to take the depositions of certain non-resident witnesses — notice of taking which is waived by the Attorney-General — and where the defendant, at the expiration of the week granted him, admits he has made no effort to take said depositions, there is no error in refusing him a continuance for want of such evidence.</p> <p>2. Same. Same. No reversal for absent witness, when.</p> <p>Where, in a criminal case, a continuance is applied for, at the first term, on account of the absence of an alleged material witness, and refused ; error cannot be predicated of such refusal, if on the motion for a now trial the witness is examined and discloses that he knew nothing material to the case.</p> <p>3. Same. General verdict on indictment containing several counts. Charge ' of Court.</p> <p>A general verdict upon an indictment charging larceny and “ false pretenses” in different counts is good, although one of the offenses charged is infamous and the other is not; and the law in such case refers the verdict to the higher offense. And, while it is contrary to the better practice, yet it is not reversible error, for the trial Judge to instruct the jury in such case to return a general verdict, if this Court can see the defendant was not prejudiced thereby, and the evidence clearly establishes his guilt of the higher offense.</p> <p>Cases cited and approved : Ayrs v. State, 5 Cold., 28 ; Kelly v. State, 7 Bax., 84; Hall v. State, 3 Lea, 558; Parham v. State, 10 Lea, 503.</p>

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

<p>Appeal in error from the Criminal Court of Davidson County, G. S. Ridley, J,</p>

<p>Appeal in error from the Circuit Court of Rutherford County. Robert Cantrell, J.</p>

<p>1. Contracts. Dealing in “futures." Is vtagering, when. Recovery of money lost on.</p> <p>Thai is a wagering contract and void which, though purporting to he an agreement for the purchase or sale of commodities, to be delivered at a future date, is not such in fact, nor intended to be such by the parlies; but is a mere pretense, under cover of which the parties gamble and wager on the rise and fall of the prices of such commodities as are pretended to be bought or sold. And money lost on such transactions may be recovered by the loser, under the provisions of % 2440 (M. & V.) Code.</p> <p>Code cited: 2440, 5688 (M. & V.) ; 1771, 4870 (T. & S.)</p> <p>Cases cited and approved: Bell®. State, 5 Sneed, 5°7 > Kubank®. Stale, 3 Ileis., 488-90.</p> <p>(See Dunn ®. Bell ¡post, p. 581.)</p> <p>(See now Acts of 1883, Cli. 251, making such contracts void if either party intends them as wagers.)</p> <p>2. SAME. Statute of limitations. Begins to run against loser, when.</p> <p>Against the loser’s right of action to recover money lost on a wager, the statute of limitations of ninety days (Code (M. & V.), 2440) begins to run from the dale at which the money was lost, and not from the dale at which it may have been deposited to await the result.</p> <p>Code cited: g 2440 (M. & V.) ; ? 1771 (T. & S.)</p> <p>3. Same. Corporations. Liability of stockholders for money received on wagering contracts.</p> <p>Where several persons confederate together, and have themselves incorporated, ostensibly for the purpose of engaging in the business of Inlying and selling futures in corn, cotton, wheat, etc. ; but with the real purpose and intention of gambling and wagering on the rise and fall in the prices of such products; the incorporators are individually liable for all sums illegally received by the managers of such corporations on wagering contracts — the incorporation in such case being a mere cloak to cover the illegal transactions contemplated by the parties.</p> <p>4. Same. Same. Same. Liability for money received by aginl.</p> <p>A parly to a wagering contract, who receives money lost thereon by another, is liable to the loser, although the money was received through an agent living in another city.</p>

<p>Appeal from Chancery Court of Davidson County. A. (■}. Merritt, Ch.</p>

<p>Appeal. From decree for purchase-money of chancery sale. From order refusing appeal.</p> <p>An appeal, from a decree rendered on motion in a pending cause for the purchase-price of land therein sold, is properly refused when prayed at a term subsequent to the rendition of the decree; and no appeal lies from the order refusing such appeal.</p>

<p>Marshaling Securities. Successive mortgages. Nature, and enforcement, of the equity to marshal.</p> <p>M. McCormick, owning three town lots — A, B, and C — gave six mortgages thereon, at different dates — the first covering the entire property, and the others, parcels thereof, less than the whole, as shown in the following diagram :</p> <p> </p> <p>All the lots were sold, and their proceeds proved insufficient to pay all the mortgage debts. Upon the controversy among the junior mortgagees as to application of the remaining proceeds of the lots aflgf payment of the senior mortgages, the Courf held:</p> <p>1. That the doctrine of marshaling securities is a pure eqtdty, in nowise depending on contract; and that the general rule regulating its administration and enforcement is, that if one creditor, by virtue of a lien or interest, can resort to two funds, and another to one of them only — as, for example, where a mortgagee holds a prior mortgage' on two parcels of land, and a subsequent mortgage on but one of the parcels is given to another — the former must seek satisfaction out of that fund which the latter cannot touch.</p> <p>2. That, in a case like this one, the eqtdty to marshal does not fasten itself upon the situation as it existed at the date of the execution of the respective mortgages, but upon the situation existing at the time its enforcement is invoked ; and that this equity becomes a fixed right only from the time proper steps are taken to enforce it, remaining until then subject to defeat or displacement by the creation of subsequent liens on the property or funds.</p> <p>3. That this eqtdty to marshal securities will not be enforced to the prejudice of either the dominant creditor or third persons, or even so as to do an injustice to the debtor.</p> <p>4. That as the result of the application of the above principles to the facts of this case, the several mortgages should be paid pro rata, in the order of their priority, out of the proceeds of the parcel or par- . cels covered by each.</p> <p>Cases cited and approved: 18 Ohio, 428; 51 Md., 285; 31 Ark., 202; 23 Minn., 75; White & Tudor, L. Ca. in Eq. (4 Am. Ed.) Vol. II., Part I., 205.</p> <p>Cited and disapproved: Conrad v. Harrison, 3 Leigh, Va. R., 576.</p>

Appeal in error from Circuit Court of Shelby County. J. 0. Pierce, J. Action begun before a Magistrate, by a mulatto, against the Chesapeake, Ohio & Southwestern Railroad Company for an alleged violation or withholding of her rights as a passenger on one of defendant’s trains. Judgment before the Magistrate, and also in Circuit Court upon trial without a jury, against the railroad company. The company appealed.

Appeal in error from Circuit _ Court of Shelby County. J. 0. Pierce, J. Action on a note executed in, and between citizens of, the State of Missouri. The defense is that the note was barred by the statute of limitations of the State of Missouri, during defendant’s residence in that State. Judgment for defendant. Appeal by plaintiff.

Appeal in error from Circuit Court of Shelby County. J. 0. Pierce, J. Action by a non-resident widow against a railroad company for the negligent killing of her husband, in this State. A trial was had, and verdict returned for $500 damages, which, on motion of the plaintiff below, was set aside as “insufficient and inadequate” in amount. Bill of exceptions was taken to this action of the Court, under Act of 1875, Ch. 106.

Appeal in error from Circuit Court of Shelby County. J. O. Pierce, J. Action by an alleged passenger against a railroad company for an alleged unlawful ejection from a train, accompanied by unnecessary indignity. Verdict for plaintiff for $500. Appeal by railroad company.

<p>1. Chancery Pleading. Cross-bill not required. Decree.</p> <p>Where a mortgaged- enjoins sale of the mortgaged properly, on the ground that the debt secured is subject to credits for usury and unrecognized payments, and prays for an account to ascertain the true balance due thereon, and offers to pay same; a decree may be rendered in favor of defendant for such balance, when ascertained, w(t/totit a cross-bill.</p> <p>Case cited and approved: Allen v. Allen, n Heis., 387.</p> <p>2. Same. Tender. Bringing money into coturt 011 bill to redeem.</p> <p>A bill by a judgment creditor to redeem his debtor’s land from a purchaser at judicial sale, is sufficient in its allegations if it aver a refusal by the purchaser of a proper tender, and that the complainant is ready and willing to pay the sum already tendered, and that he brings the money into court; and will pay the same as directed, although the money was not actually paid into court. The objection that the money did not accompany the bill, if tenable, should have been made by demurrer.</p> <p>3. Chancery Sale. Pleadings to support. Description of land. Several tracts for the gross taxes on all.</p> <p>For a chancery sale for taxes to be valid, the bill must describe the tracts to be sold, and state the amount of taxes due on each tract. A statement of the gross amount due on several tracts is insufficient.</p> <p>Case cited and approved: Morristown v. King, 11 Lea, 669.</p> <p>4. Redemption. Redeeming creditor not required to pay unregistered mortgage.</p> <p>A judgment creditor may redeem his debtor’s lands from a purchaser at judicial sale, without paying an unregistered mortgage given thereon by the debtor to such purchaser subsequently to the sale.</p> <p>5. Same. From joint purchasers.</p> <p>Redemption from joint purchasers at judicial sale, may be effected by payment or tender to each one of his share of the price paid.</p>

<p>1. Will. Construction. Devise creating perpetuity.</p> <p>If by possibility a devise may operate to lie up property and render it inalienable for a period longer than a life or lives in being and twenty-one years afterward, with a fraction of a year added for the tei'm of gestation in cases of posthumous birth, it is void under the rule against perpetuities.</p> <p>Cases cited and approved: Booker v. Booker, 5 Hum., 508; Franklin v. Armfield, 2 Sneed, 305 ; White v. Hale, 2 Cold., 77; Ould v. Hospital, 95 U. S., 303.</p> <p>2. Same. Same. Merger of estates.</p> <p>Where a life estate and an immediate estate in remainder in the same land unite in the same person, the life estate is merged, and such person is vested with an absolute, fee-simple title.</p> <p>3. Same. Same. Devise of rents and profits. “Heirs.” Power of alienation.</p> <p>A devise of the rents and profits or income of land operates as a devise of the land itself; and if limited to the devisee’s life vests in him a life estate in the land, but, if unlimited, it vests in him an absolute fee-simple title to the land, without the use of the “term ‘heirs’ or other words of inheritance,” and notwithstanding the will may confer upon the devisee no express power of alienation.</p> <p>Cases cited and approved : Polks'. Farris, 9 Yer., 241; Morgan v. Pope, 7 Cold., 542.</p> <p>(See Code, § 2812 (M. & V.); § 2006 (T. & S.)</p> <p>4. Same. _ Same. Estate of trustees limited to purposes of trust.</p> <p>The estate of a trustee will be limited and controlled by the expressed purposes of the trust, and will terminate when those purposes are accomplished; and, therefore, if a testator devise lands to a trustee to collect rents and pay them over to his children for their lives, and thereafter to his grandchildren without limitation of time, the trustee’s estate will terminate upon the death of all of testator’s children, and the absolute legal title to the lands will then vest in the grandchildren.</p>

H. T. Elliott, Ch. E. C. Moller made a general assignment for benefit of his creditors, under Act of 1881, ch. 121. Some of his creditors, conceiving it to be void for want of a sufficiently “full and complete inventory or schedule” of his property, as required by said act, attached the property assigned, on the ground that the assignment was for that reason void. Decree for complainants. Respondents appealed.

W. W. McDowell, Ch. Bill to enforce against the separate realty of a married woman an express charge for her debt created by her parol contract.

<p>Execution. Issued after, hit tested before judgment debtor's death. Sale of land under, valid without revivor.</p> <p>Where an execution on the judgment of a court of record is issued after, but bears teste before the judgment debtor’s death, and is afterward levied on lands subject to the judgment lien, which are sold thereunder, without revivor of the judgment, within twelve months after its rendition; the sale is valid, and communicates to the purchaser a good title to the lands.</p> <p>Cases cited and approved: Preston v. Surgoine, Peck, 72; Ward v. Sutherland, Peck (Appendix); Battle v. Bering, 7 Yer., 529; 13 Howard, 287; 4 Howard, 58, 76; 4 Wallace, 242; 4 Ired., 377; 65 N. C., 8.</p> <p>Cases cited and distinguished: Rutherford v. Read, 6 Plum., 423 ; Over-ton v. Perkins, Mart. & Yer., 367; Anderson v. Taylor, 6 Lea, 382; Puckett v. Richardson, 6 Lea, 60; Green v. Shaver, 3 Hum., 139; Perkins v. Norvell, 6 Hum., 151; Stockard v. Pinkard, 6 Plum., 120.</p>

<p>Appeal from- Chancery Court of Shelby County. W. ~W. McDowell, Ch.</p>

<p>Appeal from Chancery Court of Shelby County. W. W. McDowell, Ch.</p>

<p>1. Corporations. Charter powers. Ultra vires. Guaranteeing dividends.</p> <p>A railroad company, having under its charter powers “ to do all lawful acts properly incident to a corporation, and necessary and proper to the transaction of the business for which it is incorporated;” and “such additional powers as may be convenient for the due and successful execution of the powers granted” in its charter, has not the authority — in the absence of any explicit grant of such power — to guarantee a specified dividend on its stock, as a premium to induce a subscriber to take it, although the guarantee may have been made in part consideration of necessary services to be rendered for the company by the subscriber.</p> <p>Case cited and approved: 131 Mass., 259.</p> <p>2. Same. Contracts ultra vires. Not enforcible. Notice of corporation’s powers.</p> <p>A contract made by a corporation in excess of its powers is not enforcible at law or in equity; and a person entering into a contract with a corporation is bound at his peril to take notice of the legal limits of its capacity.</p> <p>Case cited and approved': 131 Mass., 259.</p>

W. W. McDowell, Oh. Bill for the specific performance of a contract for sale of land. Defense: That the contract was void under the statute of frauds for want of a sufficient “agreement” or “memorandum or note thereof” in writing. Decree for defendant. Appeal by complainant.

<p>Partnership. Rights of joint and separate creditors. Firm assets.</p> <p>The general creditors of a firm have no lien upon the partnership assets if the partners themselves have none. The claims of the firm creditors must be worked out through the equities of the partners. And a joint conveyance by partners of their partnership property in trust to secure their individual debts operates to defeat their own lien or equity thereon, and, a fortiori, that of the firm creditors; and gives priority of satisfaction out of the assets conveyed to the individual creditors.</p> <p>Cases cited and approved: Fain v. Jones, 3 Plead, 309; House v. Thompson, 3 Plead, 515; Allen v. Bank, 6 Lea, 562; Anderson v. Norton, 15 Lea, 32; 6 Ves., 119-126; 11 Ves., 3-5; 17 Ves., 526; L. Ca. in Eq., Vol. 2, Part I., 393, 396.</p> <p>Cited and distinguished: Stove Co. v. Johnson, 7 Lea, 282; Lasell v. Tucker, 5 Sneed, "33; White v. Dougherty, M. &Y., 308; Johnson v. King, 6 Hum., 233 ; Barcroft v. Snodgrass, 1 Cold., 430; Pennington v. Bell, 4 Sneed, 200; Ins. Co. v. Porter, 9 ITeis., 296; Richardson v. Richardson, 1 Leg. R., 99.</p>

<p>Execution. Lien relates to teste. Growing corn crop not subject to, prior to I fill November.</p> <p>The lien of an execution issued upon the judgment or decree of a court of record relates to its teste, and attaches to all personalty owned by the debtor between the teste and the levy of the execution, so as to defeat all intermediate transfers; but a growing corn crop, being exempt from levy until 15th November, is not subject to this lien of the execution until that date, so as to overreach or defeat a prior bona fide sale thereof by the owner. •</p> <p>Code cited: §3749 (M. & V.) ; §3036 (T. & S.)</p> <p>Cases cited and approved : Watkins v. Wyatt, 9 Bax., 256, 257 ; 7 Yer., 529; 9 Yer., 443; 1 Yer., 291; 4 Hum., 367; 9 Hum., 91; 1 Swan, 304; 2 Swan, 292; 3 Head, 438; 1 Cold., 396; 9 Lea, 335; 2 Lea, 701.</p>

<p>1. Chancery Pleading.' Bill and answer as evidence.</p> <p>If a bill in equity is one that, under the rules of chancery pleading, is not required to be sworn to, but does not waive defendant’s oath; the bill is not evidence for complainant, but the answer is evidence for defendant, if made under oath, and is responsive to and denies, on defendant’s personal knowledge, the material allegations of the bill; and to overcome such answer complainant must produce the counter evidence of two witnesses, or of one witness and strong corroborating circumstances.</p> <p>Cases cited and approved: Bogarts'. McClung, II Heis., 113; Beach v. Haynes, 1 Tenn. Ch., 574, 575.</p> <p>2. Supreme Court Practice. General exception. Making up issues for jury trial in Chancery Court.</p> <p>Where general exception is taken to the action of the Chancellor, in changing or modifying issues presented for a jury trial, this Court will not reverse ; especially where it affirmatively appears that “every material issue,.rung with many changes, was presented to the jury.”</p> <p>Code cited: l 5218 (M. & V.) ; {¡4468 (T. & S.)</p> <p>3. SAME. Immaterial error. Non-production of books.</p> <p>For alleged errors of the lower court, which do not “affect the merits of the judgment, decision, or decree” complained of, this Court will not reverse; and, therefore, the refusal by the Chancellor of a motion to compel the production of partnership books in evidence, if it be assumed to be technical error, is immaterial, when this Court can see that nothing which could possibly be shown from the books would change the decision.</p> <p>Code cited: ? 5268 (M. & V.) ; §4516 (T. & S.)</p> <p>4. Same. Exclusion of evidence. Statements of a party.</p> <p>For the exclusion of the statement of a party offered in evidence by his opponent, this Court will not reverse, unless it affirmatively appears in the record that such statement contained evidence material to the case.</p> <p>5. Same. Same. Order of introduction of evidence. Discretion.</p> <p>Refusal of the trial Judge to permit a party to introduce evidence in chief, by way of rebuttal — being a matter resting in his discretion — is not reversible error; especially where .the proposed evidence is not set out in the record, and no reason appears why it was not offered at the proper time.</p> <p>6. Equity. Rescission of sale. Mistake. Negligence of complainant.</p> <p>In the absence of all proof of fraud, a sale by one partner of his interest in the firm business and assets to his co-partner will not be set aside on account of mere mistakes, however serious and important, if such mistakes are wholly the result of the want of reasonable care and diligence on the part of the complaining party.</p> <p>Cases cited and approved: Piano Co. v. Bernard, 2 Lea, 365; Bridges v. Robinson, 2 Tenn. Ch., 720.</p>

<p>Appeal iii error from the First Circuit Court of Shelby County.</p>