1. Married women. Certificate. The certificate of acknowledgment of a
married woman to a conveyance which omits "and for the purposes
therein expressed," is defective and vitiates the validity of the con-
veyance. Currie v. Kerr, 138.
2. Sale of Land. An instrument in the usual form of a deed, by which
one person purports, for a recited consideration, to have “bargained
and sold" to another a specified tract of land, "to have and to hold"
to the latter as "an inheritance in fee simple forever," will convey
the land to the grantee in fee. Hanks v. Folsom, 555.
3. Assurance of title. Married woman. A deed of conveyance of land in
fee executed by a married woman alone, without any privy exami-
nation, is an assurance of title purporting to convey an estate in
fee which will perfect the title of an adverse holder of land under
the Code, sec. 2763. Id.
4. Husband and wife. Limitations. The disseizin occasioned by the pos-
session of the grantee of such a deed would be a disseizin of the
joint estate of husband and wife, and their joint right of action
would be barred in seven years, and the title of the husband not
only barred but extinguished, and the heirs of the wife, if she died
before the husband, would have only three years after her death
and the extinguishment of the husband's right within which to
bring suit for the recovery of the land. Id.
5. Same. Estoppel. Quere, whether the married woman would be es-
topped to recover the land by representing herself as unmarried,
or her children by accepting the consideration paid, and not offer-
to return it. Id.
1. Taxing districts. Power to impound stock. Under the third section of
the act of the Legislature creating Memphis a taxing district, power
is given said district by ordinance to provide for impounding stock
running upon the streets. Moore v. State, 35.
2. Change of limits. Chancery courts. The courts of chancery in this State
are not authorized by the act of 1871, ch. 54, to change the territo-
rial limits of a municipal corporation. Willett v. Corporation of Bell-
ville, 1.
3. Powers. The city of Memphis, under the act of 1866, authorizing spec-
ial assessments for construction of pavements, laid a special tax,
which, after it was partly collected, was declared void; under the act
of 1873, ch. 67, the city passed an ordinance directing the mayor to
take up all receipts for payments of the void tax and issue certifi-
cates of indebteness under the seal of the city instead thereof. The
CORPORATIONS, MUNICIPAL—Continued.
mayor took up a receipt wrongfully obtained by A from B, to whom
it was payable, bearing no evidence of assignment, and issued a cer-
tificate of indebtedness to A, who sold it to a third party; the city,
under a petition by B in a proceeding, instituted under the act of
1879, ch. 92, was ordered to issue another certificate of indebtedness
to B. State v Butler, 418.
4. Void tax. Promise to repay. A municipal corporation is under no
legal obligation to repay amounts received under a void ordinance
and statute, but the moral consideration will support a promise of re-
payment. Id.
5. Power to issue bonds. Municipal corporations can only subscribe for
stock in railroads and issue bonds under an act of the Legislature
conferring the power or right to do so. If the act of the Legislature
authorize bonds to be issued of a certain denomination and bearing
a certain rate of interest, the municipal corporation has no authority
to issue bonds for a greater denomination and an increased rate of in-
Tax-payers of Milan, etc., v. Railroad, 329.
6. Same. An act of the Legislature which authorizes a municipal cor-
poration to subscribe for stock in a railroad, and "to lay and collect
taxes to pay interest on the bonds which may be issued," does not
confer authority to issue bonds. Id.
7. Bonds. Bonds, being issued without authority of law, are void; are
not negotiable, and their possession gives no right to the holders to
be repaid by the corporation the amount paid for them. Id.
See SUPREME COURT PRACTICE.
1. Suits against county. A county may be sued upon a demand although
the plaintiff may not have followed and exhausted all the modes pre-
scribed by sec. 427 et sequente of the Code for obtaining money from
the county treasury. Gibson County v. Rains, 20.
2. Interest. These warrants are not negotiable and do not bear interest,
but the jury may allow interest by way of damages, if they see
proper. Id.
CREDITORS, JOINT AND SEPARATE.
1. Sale of liquor. Witness. Contempt. The statute making it a criminal
offense to retail spirituous liquors on Sunday is intended to punish
the seller, not the buyer, and the latter may therefore be compelled
to testify as a witness on the trial of an indictment against the seller,
and may be punished for contempt in refusing to testify. Page v.
State, 202.
2. Cruelty to animals. A person has the right to protect his premises
against the depredations of mischievous dogs, and for that purpose
to use such means as are reasonably necessary, and if the depredating
animal is thereby caught in a steel-trap and mutilated, it would not
be needless torture or mutilation under the statute. Hodge v. State, 528.
3. Practice. Counsel in argument may read law to jury. It is error in the
court to refuse to permit counsel in the argument of a case before the
jury, to read the law to the jury. Hannah v. State, 201.
4. Forfeiture against witnesses. Forfeiture may be taken against a witness
regularly subpoenaed although it does not affirmatively appear that
the default of the witness was willful. State v. Thomas, 113.
5. Sale of liquor on Sunday. Witnesses. On the trial of an indictment
against the owner of a saloon for retailing spirituous liquors on
Sunday, the bar keeper of the owner is not compellable to testify
if his answer would expose him to a criminal charge for the same
offense. Muller v. State, 18.
6. Incompetency of juror. A juror is not incompetent because he said
"from what he found out that he thought if prisoner didn't hang they
would penitentiary him for life," it not appearing that the state-
ment made by him was founded upon what purported to be evidence
that had been or would be introduced on the trial, or that any wit-
ness, or anyone who had heard a witness, had conversed with him.
Johnson v. State, 47.
7. Proof of name of deceased. The failure of the witnesses, on a trial for the
murder of a particular individual, to give the full name of that per-
son as set out in the bill of indictment, is not material after verdict,
if the name or description as given by the witness corresponds as
far as it goes with the name mentioned in the indictment, it suf-
ficiently appearing that there was no contest over the name or iden-
tity of the person. Rutherford v. State, 31.
8. Plea in abatement. The court may properly strike out, on motion, a
plea in abatement to an indictment after the defendant has gone to
trial on the merits alone, whether the plea was filed before or after
the commencement of the trial. Dyer v. State, 509.
9. Same. A plea in abatement to an indictment that the court was
opened by the clerk, the judge being absent, and that the grand jury
were attempted to be elected, empaneled and sworn by the Attorney-
General, is bad. Id.
10. Same. Quere, whether such a plea, if sufficient in form, can be al-
lowed where the record of the court states that the grand jury
were properly elected, empaneled and sworn by the judge? Id.
11. Copy of indictment to prisoner. If the defendant in a capital case, after
the court at his instance had made an order directing a copy of
the indictment to be furnished him, go to trial on the third day there-
after without objection, one of the intervening days being Sunday,
he will be presumed to have waived his statutory right to have the
indictment two entire days before trial. Taylor v. State, 708.
12. Continuance. It is not error to refuse a continuance in such a case
upon the affidavit of the defendant that "he is informed by his coun-
sel" that a person named, living thirty-five miles from the place of
trial, and another person named then in Oregon, knows facts mate-
rial to his defense, by whom he expects to prove that he is not
responsible for the crime charged in the indictment, the record show-
ing that there was sufficient time to have had the testimony of the
first witness at the trial, and that the statement as to the other wit-
ness was false and fabricated for delay. Id.
13. New trial. It is not error in the trial judge in such case to refuse
a new trial, upon the affidavit of the defendant's attorney alone
that "he is informed" that an absent witness will depose to a certain
conversation between defendant and an associate in guilt on the day
of the murder, the affiant not expressing any belief in the informa-
tion, and the affidavit not being supported by the affidavit of the de-
fendant himself to the fact of such conversation, and of the person
who received the information direct from the absent witness.
14. Res geste. A conversation between the defendant and an accomplice
or associate in guilt shortly before the commission of a murder by
them, is not competent evidence on behalf of the defendant. It is
no part of the res gestur. Id.
15. Discharge of juror. A person selected as a juror in a capital case
may be discharged by the trial judge before the jury is sworn
upon satisfactory proof by the State that he had formed and ex-
pressed an opinion of the guilt of the prisoner, the latter not objecting
to the discharge. And there is no error in permitting the other
jurors, who had associated with the discharged juror, to remain on
the jury, the defendant not objecting to their retention, and the record
not showing that he had exhausted his challenges before the jury
was completed. Id.
16. New trial. It is not error to refuse to delay a criminal trial or
to grant a new trial, upon the suggestion that a witness, who had
been examined on the part of the State; would "give important
evidence on behalf of the defense," the application not showing that
the witness had been subpoenaed, where he was, when he could be
procured, nor what he could prove, especially if the defendant con-
sented that the witness might leave. Id.
17. Res gestace. A statement made by the defendant's associate in his
presence, and the presence of others, after the commission of a
murder that he regretted it, and was forced by the murdered men to
kill them, is no part of res gestor, and inadmissible as evidence for
the prisoner.
Id.
18. Indictment. An indictment for murder in the common-law form is
sufficient to sustain a conviction of murder in the first degree.
19. County Judge. An indictment will not lie against county judge
for failure to make semi-annual report to county court under third
section of an act passed March 7, 1879, ch. 76. State v. Cordell, 546.
20. Indictment. A count in an indictment which charges that the defend-
ant sold whisky without having first taken an oath not to mix or
adulterate, and without giving bond, etc., does not charge two offenses
in same count. Webb v. State, 662.
21. Sale of whisky. Manufacturers of whisky or brandy out of the pro-
ducts of farms or orchards of the State cannot sell by retail within
four miles of an incorporated institution of learning. State v. Tar-
ver, 658.
22. Retail dealers. Sales to persons or customers for the purpose of con-
sumption constitute a retail dealer. Id.
23. Attempt to commit statutory misdemeanor. A mere attempt to commit a
statutory misdemeanor is not indictable.
Whstesides v. State, 474.
24. Malicious mischief. If a mere trespasser erect a building on the land
of another, having neither right of property or occupancy, the
building becomes at once a part of the freehold, and the owner of
the land may remove the building without being guilty of malicious
mischief under the Code, sec. 4652, sub-sec. 1. Malone v. State, 701.
25. Arrest by private citizen. A private citizen has the right to arrest when
a felony has been committed and he has reasonable cause to believe
the person arrested committed it. Reasonable grounds will justify
the arrest, whether the facts, when developed, would be sufficient
or not. The finding of stolen goods in possession of the party ar-
rested was proof sufficient that a felony had been committed, espe-
cially when connected with the confession of larceny by the prisoner,
and finding some of the property where defendant said he had
secreted it. Wilson v. State, 310.
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