Volume 86 — Tennessee Reports

<p>I. Lease. Description of leased premises. ‘'Rose Hill" farm.</p> <p>A written lease of realty which describes the leased premises as “all the right to quarry marble on the farm of Henderson Fudge, known as Rose Hill,” but not showing the Slate, county, or civil district in which the farm is situated, is nevertheless valid between the parties, and, after registration, as against subsequent purchasers from the lessor, if on the face of the lease it is shown that both parlies thereto reside in the same county, and it is proved that a farm lying in that county had been owned by the lessor named, and was known generally, though not universally, as “ Rose Hill.”</p> <p>2. Same. Same. Parol evidence admitted to identify the lands.</p> <p>Parol evidence is admissible to apply (not to supply) a description of lands in a lease or deed; e. g.t it is competent in this case to show by parol that there was a “farm of Henderson Pudge” which was generally “known as Rose Hill,” and to point it out.</p> <p>Cases cited and approved : Johnson®. Kellogg, 7 Heis., 262 ; Snodgrass v. Ward, 3 Play, 40; Dobson v. Litton, 5 Cold., 619.</p> <p>Cited and distinguished: Shied v. Stamps, 2 Sneed, 172.</p> <p>3. Measure OF Damages. For trespass to jnarble quarry under an honest but mistaken claim of title.</p> <p>Where a trespasser, under an honest but mistaken claim of title, has invaded a marble quarry and removed and sold stone, the measure of damages to which the true owner of the quarry is entitled against such trespasser is the value of the marble taken and sold, as it lay at the quarry cut, dressed, and prepared for market, less the actual — in no event to exceed the usual and reasonable — expense of thus cutting, dressing, and preparing it for market. .</p> <p>Cases cited: Ensley®. Nashville, 2 Bax., 144; Coal Creek Co. v. Moses, 15 Lea, 300; Ross®. Scott, 15 Lea, 479.</p>

PROM WASHINGTON. A.ppeal in error from Circuit Court of Washington County. Newton Hackee, J. Replevin for a saw-log, brought by Deadriclc against Quids, and decided below in favor of the plaintiff upon a special finding by the Circuit Judge. Defendant Oulds appealed.

<p>1. General Assignment. What constitutes.</p> <p>An assignment intended by its maker to be general — as shown by its language and mode of execution — by which a firm transfers its assets, consisting of personalty alone, toan assignee to secure all its creditors pro rata, will be treated as a general assignment in a litigation involving its validity, when all the parties have so treated it in their pleadings ; although it does not on its face so declare itself, and does not in terms purport to convey all the assignor’s property.</p> <p>(See Hays v. Covington, 16 Lea, 262; Belding Bros. v. Frankland, 8 Lea, 70.)</p> <p>2. Same. Schedule. Oath. Act 1881, § y, construed.</p> <p>Section 4, Chapter 121, Acts 1881, requiring “that the debtor making a general assignment shall annex thereto a full and complete inventory or schedule, under oath, of all his property of every description,” is mandatory; arid strict compliance therewith is essential to the validity of a general assignment.</p> <p>Cases cited and approved: Hill, Fountain & Co. v. Alexander, 16 Lea, 496; Rosenbaum v. Holler, 85 Tenn., 653.</p> <p>3. Same. Same. Form of affidavit.</p> <p>Where the assignment is, in form and intent, general, but neither in its body nor in the annexed schedule of assets purports to embrace all the debtor’s property, and the affidavit affixed to the schedule reads, “Subscribed and sworn to before me . . . J. N. G., Cl’k,” it is void for want of sufficient verification of the schedule.</p> <p>Case cited and approved : Hill, Fountain & Co. v. Alexander, 16 Lea, 496.</p> <p>4. Same. Same. Affidavit by one of a firm sufficient.</p> <p>Any member of a firm may verify the schedule of assets annexed to its general assignment. It is not necessary that all the nteinbers join in the affidavit thereto,</p> <p>5. Same. Registration essential as against assignor’s creditors.</p> <p>Registration of a general assignment is essential to render it effectual against attaching creditors of the assignor; and it must be of the entire and perfected instrument. Creditors are not affected by actual notice of the unregistered assignment.</p> <p>Code cited: $ 2837, subsec. 8, 2890 (M. & V.); §$ 2030, subsec. 8, 2075 (T. &S.).</p> <p>Cases cited and approved: Wilson v. Eifler, 11 Heis., 188; Cowards. Culver, 12 Heis., 541; Lyle v. Longley, 6 Bax., 286; Stanley v. Nel son, 4 Hum., 484. ■</p> <p>6. Same. Verification of schedule. Admission in pleadings.</p> <p>An incidental allegation, in a bill attacking the general assignment of a firm, that one of the partners made, affidavit to the schedule annexed thereto, but not averring the contents of the affidavit, does not estop the complainant to deny the sufficiency of such affidavit, especially where the bill, taken as a whole, vigorously assails the verification of the schedule annexed to the assignment.</p>

<p>1. Chancery Jurisdiction. Over removal of estates of lunatics to another State.</p> <p>Chancery Courts have inherent and exclusive jurisdiction to order the removal to another State, on application of the foreign guardian of an adult non-resident lunatic, funds owned by said lunatic in this State, whether the same be under the immediate control of the Court, or in the hands of a domestic guardian. But this jurisdiction should never be exercised unless the best interests of the lunatic will be clearly subserved thereby.</p> <p>2. Chancery Pleading. Bill for removal, failing to tendei' bond. Demurrer,</p> <p>A bill by a foreign guardian, seeking the removal from this State of an adult non-resident lunatic’s funds, is not bad on demurrer for failure to tender bond of the guardian to cover the funds sought to be removed.</p> <p>Such bond must, however, be given, either in the Court appointing the guardian, or in the Court where the bill is filed, before any removal of the funds will be ordered.</p> <p>Case cited and approved: Andi*ews’ Heirs, 3 Hum., 591.</p> <p>Cited and distinguished: McClelland v. McClelland, 7 Bax., 211.</p> <p>3. Supreme Court Practice. Will not consider question not raised below.</p> <p>A foreign guardian of a non-resident lunatic filing his bill for removal of his ward’s funds from this State should exhibit therewith a duly certified copy of his appointment and qualification; but the failure to do so, unless taken advantage of by demurrer, may be supplied in the proof. This Court will not consider a ground of demurrer to a bill which was not raised below.</p>

EB.0M COCKE. Writ of error ,to _ Chancery Court of Cocke County. H. C. Smith, Ch. Bill to set aside, for fraud, a chancery sale of the lands of E. M. Rutherford, and to recover the lands and rents. Complainants are Rutherford’s heirs. Respondents are heirs of Gibson Woods, the purchaser at that sale. The lands were sold under hills brought by general creditors of F. M. ‘Rutherford t© foreclose a mature trust deed on the land, and obtain the surplus.

<p>1. Trust Deed. Seatring several notes construed.</p> <p>Several notes maturing at different dates, secured equally by a trust deed on the same land, are entitled to share the security pari passu.</p> <p>Cases cited and approved: Andrews v. Holgood, I Lea, 693 ; Christian v. Clark, 10 Lea, 630; Hill v. McLean, 10 Lea, 107.</p> <p>2. Same. Effect of sale hy trustee for one note only.</p> <p>In such case, if the owner of one note, knowing that the others are unpaid, procures a sale by the trustee for the -payment of his note only, and purchases the land at less than one-third its value, the owner of the other notes having no notice of the sale, such purchaser, and those redeeming from him, take the land subject to the lien of the trust deed in favor of the other unpaid notes.</p> <p>Case cited and approved: Wicks v. Caruthers, 13 Lea, 353.</p>

PROM KNOX. Appeal in error from Circuit Court of Knox County. S. T. Logan, J. W. L. Smith., a State convict, brought this suit in the Circuit Court of Knox County, against the lessees and sub-lessees of the State Penitentiary, for damages for personal injuries sustained by him while working under their control in a coal mine, by the falling in of the roof of the mine upon him. It is averred that the roof of the mine was permitted to become dangerous by defendant’s negligence.

<p>1. Supreme Court Practice. Judicial notice of statute of another State.</p> <p>The Supreme Court will not take judicial notice of the statute of another State, unless it was put in evidence in the inferior court.</p> <p>Case cited and approved: Bagwell?'. McTighe, 85 Tenn.. 616.</p> <p>2. Husband and Wife. Separate estate. Gift to-wife.</p> <p>A direct gift of personalty, by a husband to his wife, during coverture, creates in her a separate estate by necessary implication, and without express words.</p> <p>Cases cited and approved: I’owell v. Powell, 9 Hum., 477; Sherron v. Hill, 4 Lea, 500; 3 P. W., 344; 14 Ohio, 37.</p> <p>(See Cheatham v. Thornton, n Lea, 295.)</p> <p>3. Same. Note given by husband to wife.</p> <p>A note executed upon a valid consideration by husband to wife during coverture, though void by the strict rules of law, will be enforced in equity against the husband or his estate, as a declaration of trust in favor of the wife — the rights of the husband’s creditors being out of ■ the way.</p> <p>Case cited and approved: McCampbell». McCampbell, 2 Lea, 661.</p> <p>(See Copeland v. Boas, 9 Bax., 223, which is clearly distinguishable from this case.)</p>

<p>FROM BLOUNT.</p> <p>Appeal in error from Circuit Court of Blount County. S. A. Rogers, J.</p>

<p>1. Master and Servant. “Fellow-servant” doctrine. Limitations.</p> <p>Ordinarily fellow-servants assume the risks incident to each other’s negligence, but in Tennessee, where servants of the same master are engaged in different departments of a common service, or one is the superior of another in the same department, either temporarily or permanently, they are not fellow-servants within the meaning of this rule.</p> <p>Cases .cited and approved: Haynes w. Railroad, 3 Cold., 222; Railroad v. Carroll, 6 Heis., 347; Iron Co. v. Dodson, 7 Lea, 367; Railroad v. Wheless, 10 Lea, 741; Railroad v. Collins, 85 Tenn., 227; 112 U. S-, 377-</p> <p>(See Railroad Co. v. Lahr, post, p. —.)</p> <p>2. Same. Same. Telegraph operator and conductor are not fellow-secants.</p> <p>Hence, a telegraph operator at a way-station, who has no control of or connection with the running of railway trains, except as a medium through which orders from the superintendent’s office are communicated to servants of the company in charge of its trains, is not the fellow-servant of a conductor having charge and control of a railway train, in the sense that the latter assumes risks for injuries caused by the former’s negligence.</p> <p>The operator is, in such case, not only engaged in a different department of the common service, but, as the arm or mouth-piece oí the superintendent of trains, is, in a sense, a vice-principal and the conductor’s superior.</p> <p>Cases cited and approved: 81 N. C., 446; 12 Am. & Eng. Railroad Cases, 228; 25 N. W. Rep., 544; 24 Am. Law Reg. (N. S.), 452; 91 N. Y., 332.</p> <p>3. Same. Contributory negligence. Prime and proximate cause.” Mitigation.</p> <p>Where a telegraph operator at a way-station negligently delivered to the conductor of a train an order that did not concern his train, instead of a dispatch from the superintendent directing him to hold his train at that station until another train should pass, whereby a collision occurred and consequent injuries to the conductor, there was contributory negligence on the part of the conductor in accepting the meaningless order, without inquiry, which should mitigate his damages; hut the prime and proximale cause of his injury was the operator’s negligence.</p> <p>(See Knoxville Iron Co. v. Smith, anle, p. 45.)</p>

<p>PROM GRAINGER.</p> <p>Appeal from Chancery Court of Grainger County. C. J. St. John, Oh.</p>

<p>Descent. Brothers and sisters. After-born. Code, \326q (M. K), construed.</p> <p>Brothers and sisters of an intestate, dying without issue, do not inherit his realty, unless they were born either before his death, or afterwards within the period of gestation as fixed by law — to wit: ten calendar months.</p> <p>Code cited: $ 3269 (M. & V.) ; \ 2420 (T. & S.).</p> <p>Case cited and approved: Grimes v. Orrand, 2 Heis., 298.</p> <p>Case cited and overruled: Baker w. Heiskell, 1 Cold., 642.</p>

<p>FROM ROANE.</p> <p>■ Appeal in error from Circuit Court of Roane County. S. A, Rogers, J.</p>

<p>Execution. Lien of relates to teste, as to all of debtors personalty in the State.</p> <p>The general rule that the lien of an execution emanating from a court of record attaches to, and overreaches all transfers of, perso?ialty owned -by the debtor at any time between the dates of its teste and its levy, applies not only to personalty situated in the county where the judgment was rendered, but to all personalty owned by the judgment debtor during that interval, and found and levied on anywhere in the State.</p> <p>Code cited: % 3694, 3695 (M. & V.); \\ 2980, 2981 (T. & S.).</p> <p>Cases cited and approved : Preston v. Surgoine, Peck, 72; Coffee v. Wray, 8 Yer., 466; Johnson v. Ball, I Yer., 291; Evans v. Barnes, 2 Swan, 393.</p> <p>Cases cited and distinguished: Edwards v. Thompson, 85 Tenn., 720; Berry v. Clements, 9 Hum., 312; Cox v. Hodge, 1 Swan, 371.</p>

<p>1. Slander. Privileged communications. Pleading.</p> <p>The defense to an action of slander that the defamatory words were privileged, may be made either under the general issue or by special plea.</p> <p>Case cited and approved: Dunn v. Winters, 2 Hum., 513.</p> <p>2. Same. Same. Statements of witness, under oath, in judicial proceedings conditionally privileged.</p> <p>Defamatory statements made by a witness, under oath, in the course of judicial proceedings, are not absolutely, but only prima facie or conditionally privileged.</p> <p>Cases cited and approved: Lea*'. White, 4Sneed, III ; Rouch v. Baker, 6 Heis., 404-407; Davis v. McKees, 8 Hum., 40; 42 N. Y., 161; 28 Iowa, 51; 32 Maine, 442; 13 Wis., 1.93 ; 127 Mass., 316.</p> <p>3. Same. Same. Same. Question for jury.</p> <p>The question as to whether such statements are privileged or not is one that should be submitted to the jury with proper instructions.</p> <p>4. Same. Same. Sanie. Test of privilege.</p> <p>Defamatory statements made by a witness in good faith and without malice, upon his oath, in the course’of judicial proceedings, are privileged; but if such statements were not called for, nor pertinent to the issues in the case, nor believed to be so by the witness, and are injected by him voluntarily and maliciously, for the purpose of defaming and injuring another, they are not privileged.</p>

<p>Public Roads. Parties. Bond for costs. Acts i88f, Ch. 2, construed.</p> <p>Under Acts 1885, Ch. 2, persons, upon whose application a public road has been granted and laid out, may be taxed \vith'“ all costs and damages” incident thereto, and, forthis reason, are necessary parties to the proceedings to establish such road, and may be required by the Court, on motion of the opposite party, to give boiid for costs, or, in default thereof, suffer dismissal of their application!</p> <p>Cited: Acts 1885, Ch. 2, § 14.</p> <p>Cases cited and distinguished: Goldman v. The Justices, 3,1-Iead, 107; Beard v. The Justices, 3 Head, 98; Evans v. Shields, 3 Head, 72;</p> <p>Cannon v. McAdams, 7 Heis., 376.</p>

<p>1. Partnership. Salaries to partners allowed only on contract. Quantum of proof.</p> <p>Salaries will not be allowed to partners for services rendered in conducting the firm business, without satisfactory proof of a contract therefor; and when the claim is made by surviving partners against the estate of a deceased partner, it will “be allowed oifly upon the fullest, most cogent, and satisfactory proof” of a contract.</p> <p>2. Same. Salaries to stemming partners continuing the business allowed, when.</p> <p>Where a contract exists by which members of a firm are entitled to compensation for services, and one member dies, directing by his will a continuation of the partnership business, which is done with the assent of his personal representative, the surviving partners are entitled to compensation for services rendered in conducting the business after their co-partner’s decease, in accordance with the terms of the pre-existing contract.</p> <p>3. Evidence. Parties as witnesses. Surviving partners not competent for each other against deceased partner’s estate.</p> <p>Surviving partners are not competent witnesses, either for themselves or for each other, to prove a joint firm contract made between themselves and a deceased partner, in the establishment of which they have a common interest, and by virtue of which thpy seek a'recovery in favor of each in a joint suit against the deceased partner’s administrator.</p> <p>Code cited : § 4565 (M. & V.); ¡5 3813 d (T. & S.j.</p>

<p>I. Wills. Undue influence. Wife. Mistress.</p> <p>A will favorable to the testator’s wife will not be so readily imputed to undue influence as one favorable to a mistress. The just and honorable influence that a wife, by her virtues and affections, acquires over her husband stands on a higher plane than that control which a mistress, by her charms and meretricious arts, exercises over her guilty lover. However disproportionate the bequest to the wife, it rarely raises any presumption of undue influence. - Suspicion usually attaches to a bequest to a mistress, especially if it be unnatural.</p> <p>Cases cited and approved: 4 Greenl., 220; 41 Penn. St., 312; 37 Ind.</p> <p>2. Same. Sapie. Case in judgment. ,</p> <p>Where a will, in which testator’s wife is the chief beneficiary, is contested on the ground of her undue influence in procuring it, and there is evidence introduced tending to show that the beneficiary was not in fact the testator’s wife, but had lived with him in adulterous and bigamous-intercourse, it is error for the Court to charge the jury, in effect, that it was immaterial whether the relation of the parties was lawful or unlawful.</p> <p>3. Same. Same. Illegal relation unknown to parties.</p> <p>If, however, the parties in good faith contracted and continued their relation of husband and wife, believing it lawful, no unfavorable inference should be drawn from its accidental illegality.</p> <p>4. Same. Reptiblication. Destruction of later will. Intention.</p> <p>The destruction by a testator of the later of two inconsistent wills, with the intention and purpose of making a third one, does not, without more, revive the earlier will, even if no new will is made and the earlier will is found among testator’s valuable papers.</p>

<p>1. Landlord and Tenant. Def'ault of landlord as to repairs. Measure of damages. Tenant’s duty.</p> <p>Where a landlord contracts to furnish timber and pay the tenant to make necessary repairs of fencing on the leased premises, and fails to do so, whereby the tenant’s crops are injured, and extraordinary expense incurred; the measure of damage to which the tenant is entitled, if he cotild have supplied the timber at a trifling expenditure of labor and money, is the actual cost to the tenant of remedying the landlord’s default, and not the value of the lost crops, or' the expense incurred in their protection. It was the tenant’s dirty in such case to furnish the timber at the landlord’s expense, and thereby avert loss.</p> <p>Case cited and approved: Fort v. Orndorff, 7 Heis., 173-</p> <p>2. Same. Same. Same. Same.</p> <p>Where a landlord contracts to build cross-fences on the leased premises, and fails to do so, whereby the tenant sustains loss; the measure of damages to which the tenant is entitled for such default, if the fences could not be supplied by the tenant at a reasonable expenditure, under the circumstances, would be the difference between the stipulated rent, and the reasonable rental value of the farm without the fences. The tenapt would be under no obligation, in such case, to build the fences.</p> <p>Cases cited and approved: 63 N. Y., 561; 42 Ala., 275; 13 Wis., 31 ; 34 Vt., 81.</p> <p>3. Same. Tenant’s duty to avert loss. General rule.</p> <p>If the tenant can, by a comparatively trifling expenditure, avert less, threatened by his landlord’s default in making improvements and repairs on the leased premises, he must incur such expenditure, and himself make the improvements and repairs at the landlord’s expense ; but he is not bound to do so, if it would require an expendi-ttire which, under the circumstances, would be unreasonable. The reasonableness of the required expenditure will be determined by the relative cost of the improvements or repairs, to the value of the' contract and the extent of the threatened injury.</p> <p>Cases cited and approved: 63 N. Y., 561; 42 Ala., 275; 13 Wis., 31; 34 Vt., 81.</p> <p>4. Supreme Court Practice. Reversal of Judge’s finding. Erroneous exclusion of evidence. Ca.se remanded.</p> <p>Where a judgment, based on the Circuit Judge’s finding of the facts, is reversed for erroneous exclusion of evidence, the case .will be remanded for another trial.</p> <p>(See Smith v. Iiubbard, 85 Tenn., 306, and cases cited.)</p>

<p>1. Statute of Limitations. Of another State. Code, \34S0 (M. &• V.), construed.</p> <p>A suit brought in this State upon a cause of action accruing in, and between citizens of, another State cannot be defeated by a plea of the statute of limitations of that State, unless the bar of the statute became complete during the debtor’s residence in such State.</p> <p>Code cited: § 3480 (M. & V.) ; § 2783 (T. & S.)</p> <p>(See Bagwell ». McTighe, 85 Tenn., 616. j</p> <p>2. Same. Suspension. Debtor's temporary absence from State. Code, $345$ {.M. V.), construed.</p> <p>Temporary absence of a resident debtor from this State, after a cause of action has accrued against him, suspends, during its continuance, the running of the statutes of limitation in his favoi under ?¿ 3458 (M. & Y.) Code.</p> <p>Code cited: §3458 (M. & V.); ¡5 2762,5 (T. & S.)</p> <p>Case cited and approved: Carlin ». Wallace, 13 Lea, 571.</p> <p>3. Same. Same. Suspending act applies to non-residents.</p> <p>The statute of this State (Code (M. & V.), ?¿ 3458), providing for suspension of the running of our statutes of limitation during the debt- or’s absence from, or residence out of, the State, after the right of action has accrued against him, applies to causes of action accruing in, and between citizens of, another State when sued on in the Courts of this State.</p> <p>Code cited: § 3458 (M. & V.); ? 2762b (T. & S.)</p> <p>Cases cited and approved: Ridge v. Cowley, 6 Lea, 166; Carlin». Wallace, 13 Lea, 571; 3 Johns. Rep., 263; 12 Nebraska, 471.</p> <p>Cited and overruled: Barbour». Erwin, 14 Lea, 721.</p>

EROM DAVIDSON. Appeal in error from the Circuit Court of Davidson County. Frank T. Eeid, J. Action for damages brought by a shipper ,of live stock against a common carrier for alleged negligent injui’ies of the stock by the carrier. Judgment for defendant below. Plaintiff appealed.

FROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. Frank T. Reid, J. The Bank bf Charleston, S. C., the holder for value of a hill of exchange drawn by Sulzbacher Bros., of Nashville, Tenn., upon Keller & Bushing, of Charleston, S. C., brought suit thereon against said drawers after it had been protested for nonpayment, and recovered judgment. The defendants appealed.

PROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. W. K. McAlister, J. Petition for writ of mandamus to compel tbe Comptroller to draw bis warrant on tbe State Treasury for a certified bill of costs in a felony case. Tbe costs involved accrued, on bebalf of tbe State, in tbe prosecution of one Cooper, before a Justice, for a felony.

<p>1. Taxation. Municipal corporations. Implied exemption, from privilege tax, of water-works used exclusively for corporation ptirposes.</p> <p>Municipal corporations owning and running water-works for public or corporation purposes exclusively, and not “for pecuniary gain or profit,” are not liable for the privilege tax imposed on “water companies,” by Acts, 1887, Chapter I, Section 4; although they are not expressly exempted from such tax by that, or any other, statute.</p> <p>Cited: Acts, 1887, Ch. 1, ?¿ 4, and Ch. 2, § 2; Acts, 1883, Ch. 105, § 2, and Ch. 114, §17.</p> <p>Case cited and approved: Nashville v, The Bank, 1 Swan, 270.</p> <p>(See 11 Lea, 172; 13 Lea, 721.)</p> <p>2. Same. Taxpayers' remedy against illegal claim for taxes. Certiorari and supersedeas.</p> <p>A taxpayer cannot, by certiorari and supersedeas, arrest the execution of a distress warrant, valid on its face and issued by the proper officer, for taxes claimed by the State; but may do so as to taxes claimed by a County. His remedy, if he conceive the State’s claim illegal, is to pay the taxes under protest, and sue for their recovery.</p> <p>Cited: Code, 926, 928, 931, etc. (M. & V.) ; Acts, 1873, C-h. 44.</p> <p>Case cited and approved: Saunders v. Russell, 10 Lea, 293, 299.</p>

<p>Administration of Insolvent Estates. Set-off. Code, Sections 3219, 3242, 3243, construed.</p> <p>A creditor, having several claims against an insolvent estate, — one of which was secured by the pledge of certain bonds,' — sold the bonds, after his debtor’s death, and satisfied the secured debt, and applied the surplus of the proceeds to his unsecured claims.</p> <p>The administrator of the insolvent estate, after demand, sued the creditor for this surplus. To this suit the creditor pleaded his unse- ■ cured claims as set-offs or credits, under 3219, 3242, 3243 (M. & V.), Code.</p> <p>Held-. That the surplus proceeds of the pledged bonds were held by the creditor as trustee, and could not be applied to, or off-set by, the creditor’s unsecured claims against the estate, under said sections.</p> <p>Code cited: $3219, 3242, 343 (M. &V.); ^2374, 2396, 2397 (T. &S.).</p>

<p>1. Chancery Jurisdiction. Injunction of judgment for pre-existing legal defense. Fraud. Negligence.</p> <p>A Chancery Court will enjoin a judgment at law, on account of a legal defense existing, but not interposed, at its rendition; where the judgment was obtained through the mala fides of the plaintiff, who then knew that it was contrary to the facts and the truth; and where the defendant neither knew the particular facts which rendered the judgment unconscionable, nor had such reason to suspect that a fraud was being practiced upon him, as would have aroused the suspicions of a prudent man; and in such case, the fact that evidence to support such defense existed at the time of the rendition of the judgment, and could have been discovered by defendant, if he had then been put upon inquiry, will not repel him.</p> <p>Cases cited and approved: Kearney v. Smith, 3 Yer., 127; Stone v. Moody, 6 Yer., 31; Rice v. Bank, 7 Hum., 42; Schwab v. Mount, 4 Cold'., 62; Rowland v. Jones, 2 Heis., 323; Hickerson v. Rugnal, 2 Iieis., 333; Turley v. Taylor, 6 Bax., 377; 3 Aik., 223; 3 Desaus-sure, 310; 23 Ark., 44; 1 John’s Ch., 50; 2 Story, 59, 80; 6 John’s Ch., 86; 6 How., 114; 3 Gratt., 3; 7 Blackford, 564; 1 Rich. Eq., 41 ; 12 Gill & Johnson, 381.</p> <p>2. Estoppel. Municipal corporations. Representations of officers. Authority. Knowledge. Opinion.</p> <p>A municipal corporation is not estopped to set up a defense to a judgment held against it by an assignee, although its officers — e. g„ its treasurer or attorney — -represented to such assignee when about to purchase the judgment that it would be settled or funded; if such representation was made in good faith and without knowledge, or culpable ignorance of the defense, or as mere expression of opinion, or was made without express authority of the City Council.</p> <p>Cases cited and approved: Nashville v. Toney, 10 Lea, 643; 93 Ind., 570; 11 Allen, 349.</p> <p>Cases cited and distinguished: Simpson v. Moore, 5 Lea, 372; Merri-wether v. Larmon, 3 Sneed, 448; Deadrick v. Mitchell, 6 Bax., 35; 2 Yeates, 541.</p>

<p>Corporations. Slock. Purchaser. Liability for unpaid subscription.</p> <p>A bona fide purchaser of shares of stock, for value, and without notice, either from the face of the stock certificates or otherwise, that the subscription price is unpaid, cannot be held by the corporation for the unpaid subscription price.</p> <p>Cases cited and approved : Jackson v. Sligo, I Lea, 210; Moses v. Ocoee Bank, 1 Lea, 398; Cornicle v. Richards, 3 Lea, 1; Cherry v. Frost, 7 Lea, i; 91 U. S., 65.</p>

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

<p>Witness. Pees of. Absent at trial.</p> <p>A witness, absent at tlie trial, is not entitled to fees for liis previous attendance.</p> <p>Case cited and approved: Williamson v. Henderson, I Overton, 424.</p>

FROM DAYIDSON. Appeal in error from Criminal Court of Davidson County. G-. S. Ridley, J. Ragio, a barber, was indicted for violation of tbe Acts of 1887, Chapter 106, prohibiting barbers to shave, etc., and keep open their bath-rooms on Sunday. Motion to quash the indictment, raising the question as to the constitutionality of said act, was ovemiled. Defendant was convicted, and appealed.

PROM MAURY. Appeal from Chancery Court of Maury County. W, S. ElemiNO, Ch. Petition for leave to answer and make defense after final decree, under the provisions of §§ 5122-5124 (M. & V.) Gode. The petitioners were defendants in the case of John P. Brown v. II.

<p>1. Administration. Notes due from administrator. Lien. Satisfaction o and discharge.</p> <p>Notes due to an estate, and secured by a lien on lands, are not satisfied, nor the lien discharged, by the appointment of the debtor as administrator ; nor is that result effected by his merely charging himself with such notes, after receiving them as assets, in the settlement of his accounts as administrator with the Clerk, without actual payment of the money.</p> <p>2. Same. Same. Liability of sureties on administrator's bond.</p> <p>For uncollected notes due to an estate from the administrator the sureties on his bond are responsible, if by the exercise of due diligence they could have been collected; otherwise the sureties are not liable therefor.</p> <p>(See 85 Tenn., 486.)</p> <p>3. SAME.- Accounting. Ex parte settlements. Surcharging. Evidence.</p> <p>Settlements of an administrator made with the Clerk ex parte, without notice to or appearance of the parties interested in the estate, are, at most, only prima facie evidence in his favor in a proceeding attacking them and seeking an account.</p> <p>(See 14 Lea, 581, 582, as to frame of bill for this purpose.)</p>

<p>Husband and Wife. Husband’s control of wife’s land. Acts 1879, Ch. 141, constmed.</p> <p>Acts 1879, Ch. 141, exempting rents and profits of a married woman’s property from her husband’s debts and contracts, does not affect his right to possess and control her lands, held by her otherwise than as separate estate; and therefore the husband may dispossess a tenant to whom she has leased her lands thus held without his consent.</p> <p>Code cited: Section 3343 (M. & V.); Acts 1879, Ch. 141.</p> <p>The Act of 1879, Ch. 141 (Code, §3343, M. & V.), was doubtless passed to meet the decision in Lucas v. Rickmrich, 1 Lea, 726, holding rents of the wife’s realty owned by her otherwise than as separate estate subject to husband’s debts.</p>

PROM ROBERTSON. Appeal in error from the Circuit Court of Robertson County. Jo. C. Stark, J. Action by J. M. Labr against the Louisville & Nashville Railroad Company for personal injuries received by him while in its employ. Judgment below- for $4,500 in favor of plaintiff. Defendant appealed.

FROM MONTGOMERY. Appeal in error from Circuit Court of Montgomery County. Jo. C. Stark, J. Action brought by Blanche Stacker against the Louisville & Nashville Railroad Company to recover damages for injuries that she avers were inflicted upon her husband by defendant’s negligence, and caused his death. Judgment below, in plaintiff’s favor, for $12,000 damages. Defendant appealed.

<p>1. Contract. Parol reservation of title, as security for money advanced by a warehouseman to purchase personalty, valid. Replevin.</p> <p>A warehouseman or commission merchant, advancing money to a customer to purchase produce to be shipped to him and sold on the customer’s account, may validly stipulate by parol that the title to the property thus purchased shall vest and remain in him as security for the money advanced, although its possession passes temporarily to the customer for preparation and shipment; and upon the title thus reserved the warehouseman or commission merchant can maintain re-plevin against the customer, his administrator, or creditors, for such property thus purchased, as can be identified.</p> <p>Cases cited and approved: Tedford v. Wilson, 3 Head, 311; Burke v. Harrison, 5 Sneed, 236; Houston*'. Dyche, Meigs’ Rep., 76; Bttson v. Dougherty, 11 Hum., 50; Wharton v. Lavender, 14 Lea, 178.</p> <p>2. Witness. Stockholder competent in suit between corporation and an administrator.</p> <p>In a suit by a private corporation against an administrator, a stockholder is a competent witness on behalf of the corporation to prove a contract, entered into between the decedent and the corporation, through himself as the latter’s agent.</p> <p>(See Code, §4565 (M. & V.); ji 3813a? (T. & S.) ; also Godfrey v. Tem-pleton, ante, pp. 168-171.)</p> <p>3. Same. Pat-ties as. Exception strictly construed.</p> <p>The exception as to suits by and against administrators, etc., contained in the statute making parties and persons interested in subject-matter of suit competent witnesses, must be strictly construed. The exception applies only to parties, and not to interested persons.</p> <p>Case cited and approved: Fuqua v. Dinwiddie, 6 Lea, 645.</p> <p>(See Godfrey v. Templeton, ante, pp. 168-171.)</p>

<p>EROM MONTGOMERY.</p> <p>Appeal in error from Circuit Court of Montgomery County. A. H. Muneord, J.</p>

FROM MONTGOMERY. Appeal from Chancery Court of Montgomery County. G-eo. E. Seay, Ch- Bill for divorce, alimony, and custody of child, brought by the wife against her husband, charging cruel and, inhuman treatment, and such indignities to her person as rendered her condition intolerable. Complainant appealed.

<p>FROM MONTGOMERY.</p> <p>Appeal from the Chancery Court of Montgomery County. Geo. E. Seay, Oh.</p> <p>Bill to clear up title to land. Decree for complainants. Defendants appealed.</p>

<p>1. VENDOR AND VENDEE. Constmctive notice. Lien.</p> <p>A vendee of land is affected with constructive notice of a lien for pur. chase-money retained in the final decree of a Court of record investing his vendor with title, although the decree is not registered nor deed taken under it.</p> <p>Cases cited and approved: Nelson v. Allen, I Yer., 366; Amb., 311; 2 Ch. Cas., 246.</p> <p>2. Same. Delay excused in enforcement of lien.</p> <p>In such case, delay for over seven years to enforce the lien, explained by the lien-holder’s bad health and his executor’s ignorance of the claim, does not constitute such laches as will defeat its enforcement, even against the vendee of the original purchaser.</p> <p>Case cited and distinguished: Whitby v. Armour, 4 Lea, 683.</p> <p>3. Statute of Limitations. Adverse possession. What constitutes.</p> <p>Possession of land by vendees of á purchaser at chancery sale is not adverse to the lien retained in the decree to secure balance of the purchase-price due from such purchaser, until the vendees have disclaimed, and communicated notice of their hostile attitude to the lien-holder.</p> <p>Cases cited and approved : Lincoln v. Purcell, 2 Head, 142; Gudger v. Barnes, 4 Heis., 570, cited as overruling Ray v. Goodman, I Sneed, 586.</p> <p>(See Code, §34630 (M. & V.) ; §2768 (T. &S.).</p>

FROM DAVIDSON. Appeal in error from tlie Circuit Court of Davidson County. Erank T. Reid, J. Action by shipper against carrier for value of lost goods. Judgment for plaintiff. Defendant appealed.

<p>PROM HUMPHREYS.</p> <p>Appeal from Chancery Court of Humphreys County. G-eorge E. Seay, Ch.</p> <p>For a full statement of facts, see opinion of this Court in State v. Railroad, 12 Lea, 583.</p>

FROM DEKALB. Appeal in error from the Circuit Court of De-Kalb County. M. D. Smallman, J. Indictment for felony quashed because the Clerk failed to copy the indorsement, “A true bill,” and foreman’s signature thereto, in spreading it' upon the record. There was an entry of record showing proper return of the indictment by the grand jury. The State appealed.

FROM CHEATHAM. Appeal from the Chancery Court of Cheatham County. Geo. E. Seay, Ch. General creditors of J¡ H. Fulgham filed their hills against him and others to reach his interest in land occupied as a homestead, and previously conveyed by joint mortgage of himself and wife, expressly waiving homestead, to secure another creditor. The mortgage was not mature when the bills were filed.

<p>EROM SUMNER.</p> <p>Appeal in error from Circuit Court of Sumner County. A. H. Muneord, J.</p>

<p>Wills. Construction. Legacy. Charge on realty.</p> <p>Where a testatrix, after directing payment of her debts and funeral expenses, gives a general pecuniary legacy; and then disposes of the residue of her property, real and personal, in one mass, she indicates her intention to charge her real as well as her personal estate with such legacy.</p> <p>Cases cited and approved: 16 How., I; 131 Mass., 20; 83 Pa. St., 348 ; 63 N. C., 645, 649; 54 Miss., 235; 24 N. J. Eq., 579.</p>

<p>EROM JACKSON.</p> <p>Appeal in error from Circuit Court of Jackson County. John A. Fite, J.</p>

<p>1. Wills. Construction. Remainder to survivors. Devolution of accrued shares.</p> <p>A testator gave tile proceeds that should arise from a sale of his entire estate to his six children equally. Pie provided that the “ amount given ” any child who might die without issue capable of taking by inheritance, should accrue to the surviving children. After testator’s death, but before distribution of his entire estate, five of his children died — four childless and intestate, and one leaving issue. The remaining child still survives.</p> <p>Held: That only original shares passed under the will; and that accrued shares passed under the law to heirs and next of kin of each decedent.</p> <p>2. Same. Same. Same. Same. General rule.</p> <p>Clauses in wills disposing of the shares of devisees and legatees in the event of their death before a given period, or without issue, or upon any other contingency, do not, without a positive and distinct indication of intention, extend to shares accruing to them by survivor-ship under the provisions of the will.</p> <p>Cases cited and approved: Lewis v. Claiborne, 5 Yer., 370; 3 Atk., 80; I P. Wins., 274; 2 Ver., 388; 3 Brown Ch., 465; 3 Ired., 155.</p> <p>3. Guardian and Ward. Statute of Limitations. Gtiardian barred, ward not.</p> <p>A right of action, barred as to the guardian of a minor, may nevertheless be asserted by suit of the minor, commenced within the saving of the statute, after attaining his majority.</p> <p>Case cited and approved: Slate v. Parker, 8 Bax., 498.</p> <p>Cited and distinguished: Williams v. Oley, 8 Hum., 563; Bayless v. Elcan, I Cold., 99.</p> <p>4. Same. Settlements. Effect of. Estoppel.</p> <p>Guardians’ settlements made pursuant to law in the County Court are only prima facie correct, and constitute no obstacle to the suit of the ward to recover of the guardian personally a fund which came to his hands before his appointment and was never accounted for in his settlements.</p> <p>Cases cited and approved: Pickens v. Bivens, 4 Heis., 231; Matlock v. Rice, 6 Heis., 33.</p> <p>(See Code, §4535 (M. & V.); §3786 (T. &S.); Plammond v. Beasley, 15 Lea, 618.)</p>

<p>EROM MARSHALL.</p> <p>Appeal from the Chancery Court of Marshall County. W. S. Bearden, Ch.</p>

PROM GIBSON. Appeal in error from the Circuit Court of Gibson County. W. H. SwiggeRt, J. Appeal by a garnishee from a judgment rendered against him in the Circuit Court on appeal from a Justice of the Peace. The original execution and judgment and certified execution, under which the garnishment proceedings were had, though fully recited in the Justice’s judgment and the garnishment notice, were not contained in the record for this Court, which purported to he complete.

<p>FROM HENRY.</p> <p>Appeal from the Chancery Court of Henry County. A. Q-. Hawkins, Ch.</p>

<p>1. Indictment. Attempt to commit larceny. Stifficienl act.</p> <p>An indictment charging that defendant opened the cash-drawer oí prosecutor with intent to steal its contents, charges an act which constitutes an attempt to commit larceny. .</p> <p>Code cited : § 5379 (M. & V.); §4630 (T. & S.).</p> <p>2. Same. Same. Description.</p> <p>Description of goods, in an indictment for attempt to commit larceny, as “money, personal goods, and chattels” is sufficient. Less particularity of description is required in such case than in indictments for larceny.</p> <p>Cases cited and approved: Hayes 5?. State, 15 Lea, 64; State v. Montgomery, 7 Bax., 160.</p> <p>3. Criminal Law. Attempt to commit larceny. What constitutes.</p> <p>One who opens another’s cash-drawer, believing that it contains money or other valuables, and intending feloniously to steal its contents, is guilty of an attempt to commit larceny, although the drawer proved to be entirely empty.</p> <p>Cases cited and approved: I Den. C. G., 187; 5 S. & R., 463; 5 Cushv 365; 9 Allen, 274; 36 Ind., 280; 30 Conn., 500.</p> <p>Cited and disapproved: Leigh & C., 471.</p>

<p>PROM OBION.</p> <p>Appeal in error from the Circuit Court of Obion County. W. IT. Swiggeut, J.</p>

<p>1. Criminal Law. Mayhem. Intent.</p> <p>A specific intent or purpose to maim or disfigure is not, under our statute, an essential element of the crime of mayhem.</p> <p>Code cited : 22 5357-536° (M. & V.); 22 4606-4609 (T. & S.).</p> <p>Case cited and approved : 2 S. W. Rep., 631.</p> <p>Cited and distinguished: Chick v. State, 7 Hum., 165; 1 Iredell, 121.</p> <p>2. Same. Same. Malice.</p> <p>The malice requisite in mayhem is “malice according to its common law signification, which is not confined to a particular animosity to the person injured, but extends to an evil design in general — a wicked and corrupt motive, an intention to do evil.”</p> <p>Cases cited and approved: Wright v. State, 9 Yer., 343, 344; Worley ' v. State, 11 Hum., 175.</p> <p>3. Statutes. Repeal.</p> <p>A statute purporting to cover an entire subject repeals all former statutes on the same subject, either with or without a repealing clause, and notwithstanding it may omit material provisions of the earlier statutes.</p> <p>Cases cited and approved: The Druggist Cases, 83 Tenn., 450; Poe v. State, 85 Tenn., 495; 11 Wall., 88.</p>

PROM DYER. Appeal in error from the Circuit Court of Dyer County. T. ,T. Flippin, J. Action for personal injuries brought by Laura E. Barlow against the Chesapeake, Ohio & Southwestern Railroad Co. While plaintiff was riding on horseback at or near a public crossing of defendant’s road her horse became frightened at the blowing of the whistle of one of defendant’s engines and threw her, whereby she sustained the injuries sued for.

<p>1. Administration. Distribution of personal assets on refunding bonds. Plene administravit.</p> <p>Where an administrator, without notice of unpaid debts, distributes the personal assets among the next of kin, after the time has expired within which domestic creditors can sue the estate, and takes solvent refunding bonds and reports them to the County Court, he is exonerated fiom all liability for such assets, and will be protected, upon plea of plene administravit, against the claims of creditors. The refunding bonds stand in place of the assets and of the administrator’s responsibility and bond.</p> <p>Code cited: ^3152, 3158, 3159 (M. &V.); $2311, 2316, 2317 (T. & S.).</p> <p>2. Same. Same. Sale of land to pay debts. Exhaustion of personalty.</p> <p>Exhaustion of the personal assets of an estate “in the payment of bona fide debts” is a prerequisite to any decree for sale of lands descended to pay debts; and therefore personal funds paid over by the administrator to the next of kin upon solvent refunding bonds, as provided bylaw, are not exhausted within the meaning of the statutory requirement. The refunding bonds stand, as to creditors, in place of the assets, and to that extent protect the lands descended.</p> <p>Code cited: ¡1? 3105-6, 3158-9 (M. & V.); $¡2267-8, 2316-17 (T. & S.).</p> <p>3. Same. Same. Same. Same. Refunding bonds becoming worthless. Effect.</p> <p>The lands descended are exonerated, in such case, from the payment of debts, even though the refunding bonds are given by distributees who áre likewise heirs, and subsequently become worthless.</p> <p>Cases cited and approved: Peck v. Wheatón, M. & Y., 353 ; Bennett v. Caldwell, 8 Kax., 483.</p> <p>Quiere. — Is the result the same if next of kin who are heirs receive the personal funds without giving refunding bonds?</p> <p>4. Same. Sale of land to fay debts. Actual application of personal assets not required.</p> <p>Where it clearly appears, by a proper reference and report, that the personal assets of an estate are insufficient for payment of debts, the Court may, without waiting for actual application of the personal fund, proceed to decree sale of lands to the extent of the deficit.</p> <p>Case cited and approved: Doherty v. Boyd, iú Lea, 192.</p> <p>5. Same. Same. Effect of partition. Alienation of shares.</p> <p>Where lands descended are divided among the intestate’s heirs, and some of the shares are aliened to bona fide purchasers before application is made to sell lands to pay debts of the estate, the unsold shares are liable not merely for their ratable proportion but for the entire indebtedness of the estate. The proper adjustment among the heirs is matter for separate suit.</p> <p>Case cited and approved : Jordan v. Maney, 10 Lea, 146.</p> <p>6. Same. Same. Decree for proceeds where heirs have sold the land.</p> <p>Where land descended has been sold by the heirs before suit is brought to sell it to pay debts of the intestate’s estate, the Court may, upon proper pleadings, render personal decree against the heirs for such part of the proceeds received by them as may be required for payment of debts of the estate.</p> <p>(See Code: §§2434-5, 3094 (M. & V.); §§1764-5, 2256 (T. & S.).</p> <p>7. Same. Ref tending bonds. Remedy on.</p> <p>Refunding bonds taken by an administrator from the next of kin, on distribution of personal assets, as provided by §§3158, 3159, (M. &V.) Code, inure exclusively to the benefit of creditors, stand in place of the personal assets distributed and of the administrator’s responsibility and bond, and may be enforced by scire facias in County Court or by suit elsewhere on the bonds.</p> <p>Code cited: §§3158, 3159 (M. & V.); §§2316, 2317 (T. & S.).</p> <p>8. Same. Effect upon co-obligor’s estate, where refunding bonds are taken and prove insolvent.</p> <p>The exoneration of lands descended from debts of the ancestor, by reason of refunding bonds taken by the administrator from the next of kin for personal assets distributed, does not inure to the benefit of his co-obligor’s estate so as to exonerate the lands of the lattei’s estate; and if the refunding bonds prove worthless, the creditor may hold the co-obligor’s estate — real and personal — for his entire debt remaining unpaid. Exoneration does not operate as payment.</p> <p>9. Chancery Pleading and Practice. Scire facias on refunding bonds. Insufficient allegations.</p> <p>The remedy by scire facias upon refunding bonds taken by an administrator for personal assets distributed is confined to the County Court, and cannot be granted upon a bill in the Chancery Court for sale of land tp pay debts, to which the sureties on the bonds are not parties.</p> <p>10. Same. Allegation of bill as to amount. Decree not excessive.</p> <p>Where a bill by a ward against his guardian for a general account avers that a balance of “about $2,500” was due from the guardian in 1881, and seeks recovery of that sum with interest, a decree rendered in 1887 for $3,273.35 is not in excess of the allegation.</p> <p>11. Same. Sale of lands. Redemption. Prayer of bill.</p> <p>Lands of a decedent sold under decree for payment of debts of the estate, are not subject to redemption, even though a sale in bar of that right is not prayed for in the bill.</p> <p>Case cited and approved: Love v. Williams, 2 Lea, 226.</p>

<p>1. Corporations. Stock. Conditional subscriptions.</p> <p>Conditional subscriptions to the capital stock of corporations should not be encouraged; and therefore stipulations in such contracts will, when of doubtful import, be constiued as independent covenants rather than as conditions.</p> <p>2. Same. Same. Same. Case in judgment.</p> <p>Subscriptions to a railroad were payable, one-fourth whejj the road was finished to a certain county line, and remainder “in four equal installments of four months, as the work progresses through the county, provided the company establish a depot on said road ” at a specified point in the county.</p> <p>The road was completed to the county line, and while the work progressed through the county all the installments, except the last, fell due, and all were paid except the last two. The company, becoming insolvent, abandoned the work, in an unfinished state, before the last installment was due. The depot was not erected. To suits by assignees of these subscriptions, for the last two installments, the defense of failure of the company to perform conditions precedent was interposed.</p> <p> Held: </p> <p>1. That completion of the road to the county line is a condition precedent to the payment of the first or any subsequent installment.</p> <p>2. That it is a condition precedent to the payment of any installment subsequent to the first, that work on the road should be progressing within the county at the time it fell due.</p> <p>Consequently the last installment is not recoverable.</p> <p>3. That the stipulation as to erection of depot is not a condition, but an independent covenant^ breach of which would not defeat recovery of the installments, but should be compensated in damages.</p> <p>Cases cited and approved: 8 Wheat, 217; 14 Bush, 755; 29 Mo., 218; 15 B. Monroe, 218; 24 Mich., 389; 40 Penn. St., 237; 15 Ohio St., 225.</p> <p>Cited and distinguished: Railroad v. Jones, 2 Cold., 574; 80 N. Y., 219.</p> <p>3. Statute of Limitations. Set-off.</p> <p>Commencement of suit stops the running of the statute of limitations not only as to the original cause of action, but as to all matters of set-off available as a defense and properly presented in the case.</p> <p>Case cited and approved : Williams v. Lenoir, 8 Bax., 395.</p> <p>(See 85 Tenn., p. 582.)</p>

<p>EROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. L. II. Estes, J.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. L. IT. Estes, J.</p>

EROM SHELBY. Appeal in error from Circnit Court of Slielby Comity. L. II. Estes, J. Piper & Son sued Biggs & Moore before a Justice of the Peace on the 25th of January, 1887. Upon appeal to the Circuit Court the case was decided in favor of plaintiffs. Defendants appealed to this Court.

PROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J. Suit by Glenn & Sons to recover of the Southern Express Company a sum of money alleged to have been extracted from an express package sent by T. H. Bell, of Rutherford, Tenn., to plaintiffs, at Cincinnati, Ohio. The package, when delivered to defendant, was supposed to contain $856.70, but, when received by plaintiffs, it contained only $656.70.

<p>1. Partnership. What is. Agreement between corporations.</p> <p>An agreement between corporations engaged in manufacture of cottonseed oil, to select a committee composed of representatives from each corporation, and to turn over to this committee the properties and machinery of each company, to be managed and operated for a specified term, by the committee, for the common benefit — the profits and losses to be shared in agreed proportions — is not a mere “ traffic arrangement,” but a contract of partnership.</p> <p>2. Corporations. Powers. Ultra vires. Contract of partnership.</p> <p>Such partnership contract is not within the express or implied powers of corporations organized under the Incorporation Act of 1875» Ch* 142, but is ttltra vires and void so far as it is unexecuted, even if authorized by both share-holders and directors. Corporations may perform only authorized, not unforbidden, acts.</p> <p>Cited: Acts 1875, Ch. 142.</p> <p>(Code, % iógi'Ct. seq. (M. & V.).</p> <p>Cases cited and approved: Elevator Co. v. Railroad, 85 Tenn., 703; 101 U. S., 71; 10 Gray, 582 (71 Am. Dec., 681).</p> <p>Question reserved. Is such combination void as tending to create a monopoly ?</p> <p>3. Same. Ultra vires. Contract of partnership. When unexecuted.</p> <p>When the contract of partnership is for three years — two of which have expired — it is unexecuted as to the remaining year, in the sense that it may be repudiated as ultra vires, and property delivered to the committee for use of the partnership recovered at once by the corporations.</p> <p>Case cited and approved: 101 U. S., 86.</p> <p>4. SAME. Void contract of partnership. Relations of parties. Tenancy. Notice.</p> <p>Such void contract of partnership, when partly performed, does not create between, the corporations and the committee a tenancy from year to year, for the termination of which notice is required.</p> <p>5. Forcible Entry and Detainer. Notice not reqtiired.</p> <p>“Service of the warrant” is the only “notice to quit” that is necessary in forcible entry and detainer.</p> <p>Code cited: ? 4082 (M. & V.); ? 3351 (T. & S.).</p>

<p>PROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. K. J. Morgan, Sp. Ch.</p>

<p>1. Corporations. Existence and transfer of franchises. Issuance of stock certificates.</p> <p>The rights, franchises, and exemptions granted to a corporation by its charter may exist, and be validly transferred, without issuance or transfer of stock certificates, where there is other satisfactory proof of subscription and payment of stock, and of organization of the corporation, and of a bona fide transfer, not merely of the paper charter, but of the stock, franchises, and exemptions of the corporation.</p> <p>Case cited and approved: 105 U. S., 217.</p> <p>2. Same. Same. Legislative recognition.</p> <p>Repeated recognitions of the existence of a corporation by legislative acts passed prior to Constitution of 1870, operate, perhaps, as a waiver of, and preclude inquiry into, defects and irregularities affecting its creation and organization.</p> <p>Alitcr, it would seem, since Constitution of 1870, Art. XI., Sec. 8.</p> <p>Cases cited and approved: 4 Pet., 480; 70 N. Y., 338; 31 Barb., 258; 66 Mo., 228; 3 Tenn. Ch., 396.</p> <p>3. Same. Dissolution. Insolvency and Assignment.</p> <p>A corporation is not dissolved, nor its franchises, etc., forfeited, by its insolvency and assignment of its assets for the benefit of its creditors, where the State brings no proceeding to have the charter forfeited, and there is no surrender thereof by act of the share-holders.</p> <p>Cases cited and approved: 10 Gray, 245 ; 7 Johns. Ch., 217.</p> <p>4. Same. No power to absorb each other. Purchase by shareholders.</p> <p>An .insurance company cannot, either directly or indirectly, absorb a bank, so as to draw unto itself the rights, franchises, and exemptions contained in the bank charter; but there is no legal objection to the purchase of the stock, franchises, etc., of the bank by shareholders in the insurance company. Of this latter character is the transaction in this case.</p> <p>Case cited and approved : 31 N. J. Eq., 475.</p> <p>5. Same. Exemption from taxation. Contract. Constitutional Law.</p> <p>That an exemption from taxation granted to a corporation by act passed prior to Constitution of 1870, and then accepted and acted upon by the corporators, is a contract binding upon the State, which cannot be impaired by subsequent legislative acts or constitutional provisions, is too well settled to be now open to debate.</p> <p>Case cited and approved : In re Union & Planters’ Bank, 13 Lea, 407.</p> <p>(But see now Constitution, 1870, Art. XI., Sec. 8.)</p> <p>6. Same. Same. Extent of exemption. Case in judgment.</p> <p>A bank charter providing that the bank “shall pay annually one-half of one per cent, on each share of its capital stock, which shall be in lieu of all other taxes,” exempts from taxation all realty owned and used by the bank exclusively for banking purposes.</p> <p>Cases cited and approved: Bank v. McGowan, 6 Lea, 703 (S. C., 104 U. S., 496) ; De Soto Bank v. Memphis, 6 Bax., 415.</p> <p>7. Taxation. Assessment. Banks.</p> <p>Since the Act of 1873, Ch. 118, an assessment of taxes upon the capital stock of a bank is void. The assessment must, under, this act, be made against the share-holders.</p> <p>Cited : Acts 1873, Ch. 118; Code, \ 646 (M. & V.) ; § 541c (T. & S.).</p> <p>8. Same. Parties to suit to recover taxes of corporation.</p> <p>In a suit against a corporation for taxes, to which the share-holders are not parties, no judgment can be rendered against the latter.</p> <p>9. Constitutional Law. Special legislation. Act, since 1870, changing name of a corporation.</p> <p>An act which merely changes the name of a pre-existing corporation, is not obnoxious to Art. XI., Sec. 8, of Constitution of 1870, providing that “no corporation shall be created or its powers increased or diminished by special laws.”</p> <p>Cited: Constitution (1870), Art. XI., Sec. 8.</p> <p>Cases cited and approved: 97 U. S., 146; 107 U. S., 174.</p>

FROM SHELBY. Appeal from Probate Court of Shelby County. J. S. G-allaway, J. John Loague, an attorney at law, became Public Administrator of Shelby County. As such he administered the estate of Mrs. E. M. Bleckley, deceased. The personal assets proving insufficient, he filed this bill, after suggesting the insolvency of the estate, to sell lands to pay debts. ITe employed no attorney, but conducted the legal proceedings himself.

<p>Sheriff’s Bond. Sureties’ liability.</p> <p>Sureties on the official bond of a Sheriff de facto are not liable, under our statutes, to the Sheriff de jure, upon his recovery of the office, for the fees, salary, or other emoluments of the office, which were received by the intruder while wrongfully exercising the functions of the office.</p> <p>Code cited : §§409, 4157 (M. & V.); £2 354, 342° (T. & S.).</p> <p>Cases cited and distinguished: Curry v. Wright, 10 Heis., 237; 24 Mich., 458 (9 Am. Rep., 131); 6 Wall., 291; 102 N. Y., 536 (55 Am. Rep., 536); 53 HI-, 428 (5 Am. Rep., 52.)</p>

<p>1. Evidence. Parol, to correct written contract. Sufficiency of.</p> <p>Parol evidence, when admissible to supply an omission in a written contract, must be clear and satisfactory as to the emitted stipulation. The alleged omission is not proved in this case.</p> <p>2. Landlord and Tenant. Tenants purchase 'of leased premises, at judicial sale, valid. Constructive trusts.</p> <p>Tenant may'acquire valid title to the leased premises by purchase thereof al a judicial sale made, during the term of his lease, under proceedings against the landlord to enforce an incumbrance, instituted and known to the tenant before the lease.</p> <p>The tenant does not, in such case, become in any sense a trustee for the landlord.</p> <p>Cases cited and approved: Bumpas v. Alexander, io Heis., 542; 13 B. Monroe, 505.</p> <p>Cited and overruled: Dictum in Scott v. Levy, 6>Lea, 667.</p> <p>3. JURISDICTION. Of Chancery Court over land in another State. Constructive trusts.</p> <p>The Court being of opinion that complainant, upon the facts and the law, is entitled to no relief, does not decide the question discussed, as to the jurisdiction of the Chancery Court to enforce a constructive trust against land in another State.</p>

<p>1. Res Inter Ai.ios Acta. Decree between husband and wife declaring resulting trust. Its effect on creditors.</p> <p>A decree, in a suit between husband and wife alone, rendered by default, without proof or any real litigation, setting up in the wife’s favor a resulting trust in her husband’s lands, in consideration of her alleged advancement of the purchase price, and vesting title in her, is not conclusive upon the husband’s existing creditors.</p> <p>Cases cited, and approved: Hix v. Gosling, I Lea, 561; 94 U. S., 22; 12 Ala., 118.</p> <p>2. Fraudulent Conveyance. Decree attacked as. Burden of proof.</p> <p>Where such decree is attacked by creditors as fraudulent, its recital of consideration, iike similar recitals in a deed, must be taken as prima facie true; and the burden is upon the creditors to disprove it.</p>

<p>MORTGAGE. Joint, by husband and wife, on lands and personalty. Homestead and dcnver. Marshaling securities.</p> <p>Where the wife, for the purpose of extinguishing her homestead and dower rights, joins in her husband’s mortgage of his lands and pa--sonalty, and afterward the husband, with the secured creditor’s consent, applies the personalty to his unsecured debts, the lands remain liable for the entire secured debt, to the exclusion of the wife’s homestead and dower rights therein. Her rights attach only to the surplus.</p> <p>Cited: Constitution, Art. XI., ¡¡2; Code, ?? 2931, 2934, 2935 (M, & V.).</p> <p>Cases cited and approved: Parr v. Eurobanks, 11 Lea, 398; Gwynn v. Estes, 14 Lea, 662; 28Vt.,54i; 14 Cal.,472; 12 Kan., 500; 9 Paige, 199; 8 N. Y., no.</p> <p>Citid and overruled: Dictum in'Jarman v. Jarman, 4 Lea, 671.</p>

<p>I. STATUTE OF Frauds. Letters as memorandum for sale of lands. Specific performance.</p> <p>O. inquired of P. by letter what he would take for a described tract of land on specified terms. P. replied by letter that he would take $2,500 for the land on the terms mentioned. O. promptly accepted the proposition by letter.</p> <p>That these letters constitute a sufficient memorandum of sale to enable the purchaser to maintain a bill for specific performance.</p> <p>Code cited : ?¿ 2423, sub-sec. 4, (M. & V.); \ 1758, sub-sec. 4, (T. & S.).</p> <p>Cases cited and approved: Blair v. Snodgrass, 1 Sneed, 26; Sheid v. Stamps, 2 Sneed, 173 ; Howard v. Moore, 4 Sneed, 322; Lee v. Cherry, S5 Tenn., 707.</p> <p>2. Same. Same. When contract of sale is complete and irrevocable.</p> <p>After O.’s letter of acceptance had been properly mailed and perhaps received, P. sold the land to another, and wrote O., informing him of that fact and withdrawing his former offer.</p> <p>Held: The contract of sale was complete and irrevocable from dale of the mailing of O.’s letter of acceptance.</p> <p>Case cited and approved: 9 Howard (U. S.), 39.</p> <p>3. Innocent Purchaser. Who is not. Notice. Pleading.</p> <p>The second purchaser from P. contracted for the land without notice of the former sale to O., but paid the price and took deed after full notice thereof. Pie did not interpose the plea of innocent purchaser.</p> <p>Held: That Tor want of both pleading and proof, the defense of innocent purchaser is not available.</p>

<p>Jurisdiction. Justice's. Replevin. Amount.</p> <p>A Justice of the Peace is authorized to render judgment against an unsuccessful plaintiff in a replevin suit, who fails or refuses to deliver up the property, for any sum that the proof may justify, not exceeding $1,000.</p> <p>Code cited: 413°. 4^33 (M. & V.); $3394, 3397 (T. & S.).</p> <p>Cases cited and approved :• Jacobs v. Parker, 7 Bax., 438 ; Gray v, Jones, I Head, 545. . _</p>

<p>1. Assignments, Generan. Scope of Act of /SSi, Ch. iai.</p> <p>The Act of 1881, Ch. 121, did not create, but only regulated, general assignments for the benefit of creditors. They existed before that act.</p> <p>Case cited': Young v. Ilai), 6 Lea, 175.</p> <p>2. Same. What is.</p> <p>A-general assignment as defined before, and recognized by, the Act of 1881, Ch. 121, is “ an assignment of all a debtor’s property for benefit of creditors.”</p> <p>Case cited and approved: Young v. Ilail, 6 Lea, 175.</p> <p>3. Same. Same. Character of instrument ascertained from Us face.</p> <p>Whether an instrument is, or is to be construed as, a general assignment must be determined from its face. And if, upon its face, it purports to be, or by necessary intendment appears to be, a general assignment, or so declares itself, and conveys all the assignor’s property for benefit of his creditors, it will be treated as a general assignment, in passing upon its validity.</p> <p>Cases cited and approved: Hays v. Covington, 16 Lea, 262; Bank v. Noe, ante, p. 21.</p> <p>4. Same. Schedule and oath. Requirement mandatory.</p> <p>The requirement of schedule and oath, added, by the Act of 1881, to general assignments for benefit of creditors, is mandatory, and strict compliance therewith is absolutely indispensable to the validity of every instrument which is treated as a general assignment.</p> <p>Cases cited and approved: Hillz». Alexander, 16 Lea,496; Rosenbaum v. Moller, 85 Tenn., 660; Bank v. Noe, ante, p. 21 ; Carter Bros. v. Collier (oral opinion).</p> <p>5. Same. Schedule. Description of property. General rule.</p> <p>Greater particularity is requisite, in the description of the property in the schedule annexed to a general assignment, than in the body of the assignment itself. The office of the schedule is to aid the more general description in the body of the deed; and thereby furnish such particular, definite, and detailed information of the property conveyed, as will, on the one hand, give adequate knowledge to the assignee and creditors of their rights, and, on the other hand, guard against the assignor’s fraud.</p> <p>Cases cited: to Yer., 146; 5 Hum., 329; 5 liéis., 686; r Tenn. Leg. Rep., 59; 1 Cold., 265.</p> <p>6. Same. Same. Insufficient description not remedied by other provisions of Act.</p> <p>A11 insufficient description of the properly in the schedule is not aided by that provision of the Act of 1881, Ch. 121, that “ the trustee or assignee shall be entitled to any other property of the debtor not embraced in the assignment and not exempt from execution.” The purpose of this clause was to prevent the more particular description of the schedule from restricting tile general description contained in the body of the deed.</p> <p>Case cited : Belding Bros. v. Krankland, 8 Lea, 70.</p> <p>7. Same. Same. Insufficient description not remedied by offer to give fuller particulars.</p> <p>An insufficient description in the schedule is not remedied by an offer made therein to furnish “more full” and complete description of the property “if required.”</p> <p>8. Same. Same. Description of “goods.”</p> <p>Under the case of Rosenbaum v. Moller, 85 Tenn., 653, the following description of a stock of goods is'sufficient in the schedule annexed to a general assignment, viz. : “All hardware goods in my store, No. 205, Main Street, Taxing District, Shelby County, and fixtures; said hardware goods consisting of shelf hardware, cutlery, and agricultural implements,” and referring for “itemized description of said hardware goods ” to the assignor’s books and invoices in said store, and included in the assignment.</p> <p>9. Same. Same. Description of closes in action *</p> <p>A description of the property in the schedule to a general assignment as “all notes and accounts due” the assignor is insufficient, even when supplemented by the statement that “ a description of said notes and accounts will be found in my books and invoices in my store, which books and invoices are embraced in my assignment, and to which I refer for a minute and detailed description thereof.” The reference should be to the notes themselves, and their place of deposit. The particular books containing the accounts, and their place of deposit, should be so described as to enable the assignee to find and identify them. “ Books and invoices ” is too general.</p> <p>10. Same. Same. Description of moneys.</p> <p>“All moneys, whether in my said store or on deposit in any bank in the city of Memphis or elsewhere,” is a too general description for a schedule to a general assignment.</p> <p>11. Same. Same. ''Household and kitchen furniture.'’</p> <p>A description of a class of property embraced in a schedule to a general assignment, as “ my household and kitchen furniture,” without more, is insufficient.</p> <p>12. Same. Same. Description of properly held under levy of execution.</p> <p>Property of the assignor held, at date of assignment, under levy of execution, should be described in the schedule “by a direct and clear reference to the proceedings and the officer’s levy.”</p> <p>13. Same. Same. Affidavit.</p> <p>The signature of the assignor to the schedule of a general assignment, with the Clerk’s pirat appended, is not a sufficient affidavit where theie is no statement in the schedule that it is “full and complete.”</p> <p>14. Statutes. Construction. Duty of Court.</p> <p>“ It is the duly of the Court to enforce the law as it is found upon the statute books; and if it be a good law, its beneficent results will more clearly appear; if it be a bad one, its character will be the sooner manifest, and relief can be craved of that body whose duty it is to make new laws and mend old ones.”</p>

<p>1. Telegraph Companies. Negligence in transmission of messages. Receiver's right of action.</p> <p>The party to whom a telegram, intended for his personal benefit, is addressed, has a right of action, for damages against the telegraph company for negligent delay in its transmission and delivery.</p> <p>Code cited : § 1542 (M. & V.); $ 1323 (T. & S.).</p> <p>2. Same. Same. Measure of damages. Case in judgment.</p> <p>Where telegraphic messages addressed to a sister, informing her of the serious illness, and later of the death, of her broth.er, were negligently delayed in their transmission and delivery, so that the sister was denied the opportunity of attending on her brother in his last sickness, and making necessary preparations for his funeral, she has a clear right to recover of the company sonle damages for its breach of duty and contract; and may, in such case, recover, in addition, such further sum as will reasonably compensate for the grief, disappointment, or other injury to her feelings, occasioned by such default of the company.</p> <p>Cases cited: 59 Texas, 563 (46 Am. Rep., 278); 55Texas, 303 (40 Am. Rep., 805) ; 66 Texas, 580 (59 Am. Rep., 623).</p>

<p>Constitutional Law. Passage of laws. Entries an Journals.</p> <p>Where il appears affirmatively, by entries on the Journals, that an Act was rejected in either House before its final passage, it is void, although it may also appear, by proper Journal entries, that it was “signed by the respective Speakers in open session,” and that fact “ noted on the Journals,” and that it was approved by the Governor.</p> <p>Cited : Constitution, Art. I., # 18; Acts 1887, p. 232.</p> <p>Case cited and distinguished: Hayes v. State (oral opinion).</p>