Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1880-09-26

Saturday, September 2oih.


Criminal aw-Alibi-Defense of. |
The defense of an abb, both in the trial
of criminal offense and when relied on
upon motion for new trial to contradict
q witness for the State, depends so much
upon the attending circumstances which
can be under the view of the circuit judge
only, that this court will not revise the
finding of the jury or the action of the
Judge, even in case where the conviction
rests on circumstantial evidence. except
the error be plain.-Cooper, J.-Leeper v.
State.
Criminal Law-Plea in abatement, not |
good, when.
1t is not good plea in abatement to an |
indictment that one of the grand jurors
who found The Indictment was not one OF |
the venire selected by the county court 10 |
serve as jurors, that the venire was not
exhausted in empanneling the grand jury, |
and that more than thirteen of the venire
were in attendance and could nave Deen
selected. -Cooper, J.--Epperson v. State
Same-Same.
The mere fact that juror, otherwise
qualified. had been sele ted from the by
ISLANDERS instead CT a juror from the venire,
would be no ground ior aDsting an lnolct,
ment found by him and twelve grand
| Jurors taken from the venire.-ldem.
Same-Plea waived how.
By pleading OF guilty and going to trial,
| the defendant waves plea In abatement
on which no action is taken.-Idem.
| Same-Certifed copy of Indictment may
be read, when.
Alter the jury have been empanneled
| and sworn, the trial court may, under The
code, section $3.50, permit a certified copy
| of the original indictment to be read upon
proof that the original indictment has
| been lost or mislaid, without formal ad-
| Indication of loss and order of substitution;
and the affidavit of the clerk If the court
that he had made diligent scarce among
the papers of his Office and was unable to
find the Indictment, is prima facie sufficient
evidence of the fact.-Idem.
Same.-Malice presumed when killing is
proved.
On trial for murder there is no error in
the charge that where the State proves the
fact of killing, without more, malice is
presumed until the cJntrary appears from
the direct or circumstantial evidence in
the case, whether offered by the defend
ant or existing in the evidence OF the state.
-Idem.
Chancery court has no Jurisdiction to in
quire into regularity of probate, when.
If the certificate of the privy examina-
tiCn of feme covert and the commission
under which it is taken are 10 due FORM
and signed by the proper officials, q court
of chancery has no jurisdiction to inquire
into th>ir regularity, nor is parol evidence
admissible to impeach them for mere irreg-
ularity. The policy of The law requires that
they shall be conclusive and thew can only
b. attacked Co. fraud Cooper i.-Shields
v. Netherland.
Married women-What will not constitute
, fraud upon.
The fact that the husband misled the
= wife as to the nature of the instrument she
was called upon by him to sign and
which she executed at his request and
, without reading it, does not constitute
] such fraud as will enable her to con. ra.
l dict by parol, the certificate of acknowl
, edgement and privy examination to trus
deed 10 secure money loaned to the hus
e band, neither the creditor nor the truste,
being present. nor having any reason t.
: suspect the imposition.-Idem.
q Practice-Discretiono Oh ancellor-wher
controlled
Where decree of foreclosure of trus
, deed by sale directs the trust property t
be sold by the clerk of the court instead @
Y the trustee, the beneficiary who does no
appeal, cannot assign error on that par
oil the decree, nor would this court contro
the discretion of the chancellor in such
matter, except in clear case of its errone
n Gus exercise.-Idem.
Tender-Plea of-bad, when.
J To suit upon note for so many dollar
on day certain, payable in currer
money, plea of tender after the day
= bad.-Cooper, J.-Miller VS. Mckinney.
Practice-Pleas of nil debet and payment
what NAV be shown under.
It Under pleas of nil debet and payment t
suit upon a note payable in currer
,e money, charge of the court based upo
the idea that the jury might find that, afte
- the note fell due, new contract was mad
for Its payment in confederate money
would be erroneous, and especially so
there was no evidence of any new contrac
-Idem
y. Bills and notes--Payable in currer
= money; how value certained
= In suit upon note in which the make
i promises to pay so many dollars on a da
er certain, p ,yable in current money, the n
covery will be the specie value of sue
OF currency as 1t would nave been most to th
e. interest OF the p 'omisor to have paid
o Idem.
Ut County bonds Issued under act 1857
ss valid. when.
n The act of 1872 whereby certain Dun
Il, ties Including Hawkinsl were given pow
n er to subscribe stock TO railroads, unde
q certain conditions, and issued bonds
"A payment therefor, was not repealed b
~ section Al of the code; consequently, til
ie bonds of said county issued in 1866 in al
III of the Rogersville and Jefferson railroa
10 uHuer SUBSCRIPTION or stock made
at pursuance of said act are id.-McFal
p land, CLAY VS.. justices of Hawkn
q county.
at Attachment cases-Sherrif7s costs in.
IN Where a vendor files bis bill against hi
x nonresident vendee to enforce his lien an
takes out en- attachment upon the Lane
ed the sheriff who levies the same is not el
-, titled to commissions under section 45t
q. of ode.-McFarland, J.-Harris V
~ Petigrew.
w Fees Of clerk and commissioner.
ma The clerk or commissioner VII
;, makes sale under decree OF court is n
entitled to any fees for making out his r
ii port of sale distinct from the commission
III the statute allows for making the SALE II
A. making the report is a part of the act Fl
which commissions are given.-Idem.
Costs-Justice of peace
&C A justice o. the peace, before whom
"a suit has been tried, msy bring suit in b
TX own behalf against the successful party f
the costs occasioned by him when the san
~ can not be made from the unsuccessf
pArty.-McFarland J.-Evans v. Smith.
w Cross-bill-New parties, practice.
D. New parties can not be brought into
pending suit by rro.s- bill.-Turney j..
10 Watterson v. Anderson.
~ Practice-Party put under the rule whe
There was no error in the Circuit judi
D directing the plaintiff (who had requir,
nv the witness to be put under the rule) to
"a examined first or retire until he was call,
~ as witness @. J.-Hull