cross complainant harmless. It was alleged that the president
of the corporation, having authority so to do, consented to
the sale, that cross complainant's subscription note was can-
celled, and that the cross respondent was, at the time of
the sale and is still, financially able to pay the subscription.
The cross bill prayed that, if complainants recovered against
cross complainant, a decree in favor of the latter might be
entered against cross respondent for the amount of the stock
sold, but there was no allegation that cross respondent had
not paid for the stock, or that cross complainant was liable
therefor. Held: That the cross bill showed no liability on
the part of cross respondent, and was demurrable.—Ib. 455.
25 Bill by judgment creditor of corporation to subject unpaid sub-
scription to satisfaction of judgment; amendment to bill;
when should be allowed.-A judgment creditor of a corpor-
ation sued subscribers to the stock to subject their alleged
unpaid subscriptions to the satisfaction of his judgment An-
ticipating a defense of payment, complainant averred that
the president of the corporation had without authority in-
auced respondents to pay their subscription notes by buying
their stock and paying for it in assets of the corporation.
Subsequently, an amendment was added, alleging that some
of the respondents had not paid their subscription notes in
cash, but had been illegally allowed credit for certain services,
some of which were rendered to other corporations. Held:
That the amendment was material, because the respondents
who were illegally allowed credit would be liable for those
credits in addition to the amount of the subscriptions for
which the other respondents would be liable, if at all.
Ib. 455.
26. Bill of judgment creaitor of corporation to subject unpaid sub-
scription to satisfaction of judgment; bill for discovery; con-
struction of statute.-The statute of 1844, which conferred
upon a judgment creditor the right to maintain a bill in equity
against his judgment debtor to compel the discovery of any
property belonging to him, and empowering the chancery
court to subject choses in action thereby discovered to the
satisfaction of the judgment (Acts of 1844, p. 107; Code of
1886, § 3540; Code of 1896, § 814), confers that jurisdiction
only in respect of concealed choses in action, to be exer-
cised only by bills of discovery and proceedings thereunder;
and, therefore, such statute does not give a judgment creditor
the right to go into a court of equity to subject known choses
in action of his judgment debtor to the satisfaction of his
judgment.-Ib. 455.
27. Equity; jurisdiction; assignment of part of mortgage debt;
trusts.-Complainant furnished money wherewith an out-
standing incumbrance was discharged from certain property,
which was then included in a mortgage to a third person;
the amount so furnished by complainant being, by agreement
of parties, included in the debt secured by the mort-
gage. The mortgagee thereupon transferred to complainant,
without recourse, notes mentioned in and secured by the
mortgage, equal in amount to the sum so furnished by com-,
plainant, stipulating in the transfer that these notes were
not to be paid until the mortgagee had collected the amount
due him under the mortgage. Held: That, although the
mortgagee by taking the property under his mortgage did
not become bound as a trustee to account to complainant for
its specific proceeds, complainant as owner of the notes
shared the security of the mortgage, for the enforcement of
which she had a remedy by bill in equity against the mort-
gagee.-Penney v. Miller, 593.
28. Bill, when no multifarious; accounting between senior and
junior mortgagees.-The transferee of a part of an indebted-
ness secured by first mortgage, being entitled to an account-
ing with the mortgagee in equity and to have the mortgage
foreclosed, may by the same bill seek the enforcement of his
entire claim against the mortgaged property, including that
accruing to him as owner of a junior mortgage.-Ib. 593.
29. Bill by tenant in common for sale of lands for division; amend-
ment asking for partition no departure.-Where a bill filed
by a tenant in common avers that the lands owned by the
complainant and the defendant can not be equitably divided
by metes and bounds, and prays that the same be sold and
the proceeds thereof divided between the co-tenants, an amend-
ment to such bill by striking out the averments that the
lands can not be equitably divided, and amending the prayer
by asking that the lands be partitioned in kind between the
co-tenants in common, is not a departure from the original
cause of action as stated in the original bill, and is not sub-
ject to demurrer on that ground.—Berry v. Tenn. & Coosa R.
R. Co., 618.
II. PLEADING AND PRACTICE.
1. BILLS AND PARTIES THERETO.
30. Bill for partition; when proper party to such bill.-A
bill
in equity asking for the partition of lands
filed
Dy one who formerly owned an undivided in-
terest in said lands, and who now "sues on behalf
of" one H. After setting out the manner in which
the complainant acquired its title to the undivided in-
terest in the lands described and sought to be partitioned,
it was averred that the complainant, prior to the filing of the
bill, executed a deed conveying its one-half interest in said
lands to one C., and that C. died leaving H. his sole heir at
law; that at the date of the execution of said deed the respond-
ent, who was the owner of the other undivided one-half inter-
est, had previously ousted the complainant from the posses-
sion and enjoyment of its interest in said lands, and was in the
adverse possession of the same, claiming to be the owner
of the interest in said lands under color of title. Held: (1.)
That such suit was in the nature of an equitable action of
ejectment and that by reason of the alleged adverse possession
of the lands by the defendant co-tenant, the suit was properly
brought by the complainant, out of whom title to the undi-
vided one-half interest to said lands never passed by said con-
veyance; (2.) That the statement that the suit was brought
by the complainant "in behalf of H.", does not make the
suit brought by said H.; the words "who sues in behalf of,"
etc., being mere surplusage.-Berry v. Tenn. & Coosa R. R.
Co., 618.
31. Bill for dissolution of injunction; insufficiency of affidavit at-
tached to answer.-Where a bill seeking an injunction is
filed against a city, and individuals who have entered into
a contract with said city to do a certain work, and the de-
fendants jointly file a sworn answer denying the grounds
upon which the injunction is asked, an affidavit attached to
said answer which is signed by the mayor of the city and
simply states "that the statements contained in the forego-
ing answer that are stated as of knowledge [he, the affiant]
knows to be true, and that those stated on information he
believes to be true," is an insufficient verification of said an-
swer.-Niehaus & Co. v. Cooke, 223.
32. Equity pleading; when demurrer properly overruled.-V"
a demurrer pointing out a valid objection to some por-
tions of a bill in chancery is directed to the entire bill,
which contains equity for some purpose, such demurrer is
properly overruled.-Worthington v. Miller, 420.
33. Equity pleading; averments of cumulative evidence no ground
for demurrer.-Where a bill in equity avers facts which en-
title the complainant to relief, it is no objection to the
pill and affords no ground of demurrer thereto, that it avers
cumulative facts.-Ib. 420.
34. Equity pleading; when submission of cause includes demurrer.
On the final submission of a cause on the pleadings and
proof, it is not necessary or even proper that the demurrer
should be set down in the note of testimony; and where there
is a written submission of the cause, which clearly embraces
all questions and issues in the cause, both of law and of fact,
as well on the pleadings as on the evidence, such submis-
sion includes a submission on the demurrers.-Henderson v.
Hall, 455.
35. Fraudulent conveyance; sufficiency of answer to bill; burden
of proof.-Where a bill is filed by existing creditors of an
alleged insolvent partnership against the partners and their
grantee, seeking to set aside a mortgage of substantially all
the partnership property as constructively fraudulent as
against complainants' rights, an answer filed by such grantee,
containing only a mere general denial of the allegations of
fact charged in the bill, is insufficient to relieve respondent
of the prima facie case made against him; the burden rest-
ing upon him of overcoming the presumption of unfairness
and mala fides both by a clear and distinct response to each
averment of the bill and by clear proof.-Penney v. McCul
loch, 580.
CHARGES OF COURT TO JURY.
Homicide; charge of court to jury.-Charges to the Jury upon
self defense, which fail to instruct the jury as to the constitu-
ents of self defense, are erroneous and properly refused.
Mann v. State, 1.
Same; same.-On a trial under an indictment for murder,
charges as to self defense which pretermit all reference to
the duty of retreat are erroneous and properly refused.
Ib. 1.
Same; same. In a criminal case, a charge is erroneous and
properly refused, which instructs the jury that "unless the
jury are so convinced by the evidence of the defendant's
guilt that they would each venture to act upon that decision
in matters of the highest concern and importance to his own
interest, they must acquit him."-Ib. 1.
Same; same. On a trial under an indictment for murder, a
charge to the jury which authorizes the acquittal of the de-
fendant upon a reasonable doubt engendered by the testimony
CHARGES OF COURT TO JURY-Continued.
of the defendant alone, is erroneous and properly refused;
since such doubt may be entirely allayed and removed by the
other evidence in the case.-Ib. 1.
Charge of court to jury; sufficiency of evidence.—In a criminal
case, charges are erroneous and properly refused which, in-
struct the jury that "if after weighing all the evidence you
can not say beyond a reasonable doubt which is the heavier,
that for the State or that for the defendant, then it is your
duty to acquit the defendant;" and "if the evidence for the
State shows that the defendant is guilty, but the evidence for
the defendant shows equally tnat he is not guilty, and you so
find, this would leave your mind in equipoise, and it would
be your duty to acquit the defendant."-Ib. 1.
Charge of court to jury; when unnecessary to charge upon proof
of venue. On a trial under an indictment for murder, where
the proof of the venue and the crime is fully proved without
conflict, and is undisputed, it is no objection that the general
charge given by the court to the jury ignores proof of venue.
Ragsdale v. State, 24.
7. Homicide; charge not erroneous for failing to instruct as to
manslaughter in the second degree.-On a trial under an in-
dictment for murder, where there is an entire absence of evi-
dence tending to show t.at the crime committed was man-
slaughter in the second degree, and all the evidence without
conflict or dispute shows that the killing by defendant was
intentional, it is no objection to the charge of the court to
the jury that it fails to instruct the jury as to manslaughter
in the second degree.-Ib. 24.
Same; charge as to burden of proof.-On a trial under an in-
dictment for murder, a charge is free from error which in-
structs the jury that "in this case the killing is not denied
nor is it denied that it was done intentionally with a deadly
weapon, and the law puts upon the defendant the burden of
rebutting the presumption of malice unless the facts and cir-
cumstances of the killing rebut this presumption.”—Ib. 24.
Same; charge as to self defense.-On a trial under an indictment
for murder, where the evidence shows without conflict that
the defendant was the aggressor in the difficulty, he can not
set up the plea of self defense; and, therefore, in such case,
the giving of a charge which instructs the jury that "the
burden is upon the defendant to reasonably satisfy your minds
that he acted in self defense, unless the evidence which proves
the homicide proved also the excuse or justification," is error
without injury.-Ib. 24.
10. Same; charge of court to jury.-On a trial under an indictment
for murder, charges which instruct the jury that if they be-
lieve the evidence beyond a reasonable doubt, they can not
convict the defendant of murder in the second degree, or of
murder in the first degree, or of manslaughter in the first de-
gree, are erroneous and properly refused.—Ib. 24.
11. Charge as to reasonable doubt.-In a criminal case, a charge
which instructs the jury that they must find the defendant
not guilty "unless the evidence against him should be such as
to exclude to a moral certainty every hypothesis but that of
his guilt of the offense imputed to him," is erroneous and
properly refused.-Ib. 24.
12. Homicide; charge of court as to murder in the second degree.
On a trial under an indictment for murder, where the evi-
dence for the defendant tends to show that the killing was ac-
cidental, but there was testimony affording an inference that
CHARGES OF COURT TO JURY-Continued.
the killing was malicious and unlawful, and if not malicious
that it was intentional, or if not intentional, that it was the
result of the unlawful pointing of a loaded pistol by the
defendant at the deceased, charges which instruct the jury
that if they believe the evidence in the case they can not con-
vict the defendant of murder in the second degree or of man-
slaughter in the first degree, are erroneous and properly re-
fused.-Barnes v. The State, 36.
13 Same; charge of court to jury.-On a trial under an indictment
for murder, where the evidence shows that the killing was
the result of the defendant's pointing a loaded pistol at the
deceased, but there was evidence for the defendant tending to
show that the killing was purely accidental, a charge is er-
roneous and properly refused which instructs the jury that
"unless ne evidence convinces you-beyond a reasonable doubt
that the defendant intended to unlawfully point the pistol at
the deceased, you can not convict the defendant; if you should
believe from the evidence that the death of deceased was un-
intentional or accidental you should find the defendant not
guilty."-Ib. 36.
14. Charge of court to jury.—A charge requested by the defendant
in a criminal case, which is an attempt to reply to the argu-
ment made by the solicitor and associates, that there is no
evidence of certain facts in the case, when there is evidence
authorizing the inference of such facts, is erroneous and prop-
erly refused.-Ib. 36.
15. Same; reasonable doubt can not be generated by proof of good
character. On the trial of a criminal case, a charge which in-
structs the jury that the fact "that the defendant is a man of
good character may generate a reasonable doubt of his gui
in the minds of the jury," is erroneous and properly refused.
Ib. 36.
16. Homicide; failure to prove venue of offense; general affirmative
charge. On a trial under an indictment for murder, where
there was no proof of the venue of the homicide, the general
affirmative charge requested by the defendant should be given.
Ib. 36.
17. Homicide; admissibility of evidence.-On a trial under an in-
dictment for murder, where there was evidence introduced
tending to show that the killing of the deceased was accı-
dental, and was not intended by the defendant, it is compe-
tent for the witness to testify that a few days before the
killing he overheard a conversation between the defendant
and another man, in which the defendant stated that if the
deceased did not do what he wanted done, he would kill her;
such evidence being relevant and material to the issues in-
volved. Ib. 36.
18. Homicide; charge to the jury.-On a trial under an indictment
for murder, where there is evidence tending to show that
the defendant inflicted the mortal wound upon the deceased
without provocation, a charge is properly refused which in-
structs the jury that "There is no evidence on the part of the
State to show that this defendant brought on the difficulty.”
Milton v. State, 42.
19. Charge to the jury in criminal case; sufficiency of evidence.
In the trial of a criminal case, a charge which instructs the
jury that "every one charged with the commission or a crime
is presumed to be innocent until his guilt is established, and
the evidence to induce his conviction should not be a mere
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