100 Tenn.

Volume 100 — Tennessee Reports

68 opinions

100 Tenn. 1Jones v. Cullen (1897)
1. Genebal Assignment. Several distinct conveyances do not constitute, when. Several instruments not purporting or intended as a general assignment or parts thereof, but distinct and separate in form and purpose, bearing the same or closely related dates, conveying practically all of an insolvent debtor’s property to pay or secure particular creditors to the exclusion of others, do not, in legal contemplation, constitute one transaction or instrument as among themselves, and do not become incorporated with and part of an invalid general assigmment made by the debtor at or about the same date in such manner as to share its fate. (Post, %>%>. i-lS.) 2. Same. ALcis 1881, Chapter 121, construed. Whether an instrument, or several instruments constituting' one in legal contemplation, shall he treated as a general assignment, under Acts 1881, Chapter 121, must be determined alone from the face of the papers. (Post, pp. 12, 13.) Act construed: Acts 1881, Chapter 121. Case cited and approved: Steedman v. Dobbins, 93 Tenn., 397. 3. Same. Trust deed made in contemplation of, sustained. A trust deed made in contemplation of a general assignment cannot be invalidated on that account, unless a general assignment, valid under Acts 1881, Chapter 121,-is actually made within three months thereafter. An ineffectual attempt to make a general assignment will not suffice to avoid such trust deed. (Post, pp. 13,14.) Act construed: Acts 1881, Chapter 121. Cases cited and approved: Wilson v. Eifler, 7 Cold., 32; Scheibler v. Mundinger, 86 Tenn., 692; Hays v. Covington, 16,Lea, 266; Steedman v. Dobbins, 93 Tenn., 397. 4. Same. Second deed of, without reconveyance, valid. A general assignment which is void and which has not been accepted by any of the creditors secured thereby, does not prevent the assignor from subsequently executing a valid and effective assignment to the same trustee, without any previous reconveyance of the property from the trustee. (Post, pp. 20-22.) Cases cited: Galt v. Dibbrell, 10 Yer., 158; Robertson v. Sublett, 6 Hum., 313; Brevard v. Neely, 2 Sneed, 164; Mills v. Haines, 3 Head, 332; Eurman v. Fisher, 4 Cold., 626; Baker v. Harlan, 3 Lea, 505; Farquharson v. McDonald, 2 Heis., 419; Tharpe v. Dunlap, 4 Heis., 688f Dews v. Olwill, 3 Bax., 432; Saylors v. Saylors, 3 Heis., 531; Overton v. Hollinshade, 5 Heis., 684; Washington v. Ryan, 5 Bax., 622; Nailor v. Young, 7 Lea, 735. 5. FbauduleNT Conveyance. Invalid in part only. That one of several distinct claims secured by a trust deed is fictitious, does not invalidate the deed as to other claims that are bona fide and just. (Post, pp. 16, 17.) Cases cited and approved: Mills v. Haines, 3 Head, 332; Keith v. Procter, 8 Bax., 189; Troustine v. Lask, 4 Bax., 163. 6. Same. Amount of debt incorrectly stated. A description oí a debt secured by a trust deed, as amounting to $800, when it is in fact only |600, does not render the trust deed fraudulent as to the actual amount of the debt, where the discrepancy was the result of mere inadvertence without any fraudulent design. {Post, %>. 17.) ' 7. Same. Given to prevent prosecution for felony. That a trust deed was executed in the hope and expectation that the maker would thereby avoid a prosecution for felony, will not invalidate it, if the secured creditor did nothing to excite 'such hope, and the deed was made and accepted by him without any knowledge of the existence of such hope and expectation, or any agreement, express or implied, to forbear or suppress the prosecution. {Post, pp. 17-19.) Case cited: 7 Wheat., 556. 8. Deed. Absolute held to be a mortgage. A deed absolute in form given to indemnify the grantee on account of his indorsement of notes which he was subsequently obliged to pay is good as a mortgage. {Post, pp. 19; 20.) Cases cited and approved: Jones v. Jones, 1 Head, 105; Buggies v. Williams, 1 Head, 141; McGavock v. Deery, 1 Cold., 270; Tur-bevilleu. Gibson, 5 Heis., 575: Leech v. Hillsman, 8 Lea, 747. 9. Supbeme Court. Question raised for first time on appeal. An objection that a deed of trust to secure creditors was not registered before the filing of the creditors’ bills cannot, upon the facts of this record, be first raised on appeal. {Post, pp. 23-25.) Cases cited and approved: Conley v. Deere, 11 Lea, 274: Manufacturing Co. v. Moore, 11 Lea, 289; Campbell v. Bailroad, 16 Lea, 270; Nashville v. Wilson, 88 Tenn., 414; Fertilizer Co. v: Thomas, 97 Tenn., 484.
100 Tenn. 26Citizens' Street Railway Co. v. Africa (1897)
1. CORPORATION'S. Construction of charters is sVrict. Charters are strictly construed against the grantee. (Post, p. 44.) Case cited: 3 L. R. A., 174, and note. 2. Street Railroads. Grant of right to occupy street. It is essential to the lawful occupation of the streets of a city by the lines of a street railway company that the railway company’s charter shall grant it that right, and that the city shall assent thereto by ordinance strictly conforming to the charter provisions. Such grant cannot be conferred by ordinance alone, and, if conferred by charter, is inoperative until assented to by valid ordinance. {Post, pp. 43, 44, 51.) Cases cited and approved: Railroad v. Adams, 3 Head, 597; Railroad v. Memphis, 4 Cold., 406; Railroad v. Bingham, 87 Tenn., 522; 77 Fed. Rep., 507. 3. Same. Must bwild upon line fixed Toy cha/rter. A street railway company must build upon the line fixed by its charter. Its lines and their termini must conform strictly to the calls of its charter and the ordinances. Larger latitude is allowed, for obvious reasons, in the location of the lines of commercial railways than in the location of the lines of Street railways. {Post, pp. 43-48.) Cases cited: 37 Ohio St., 556; 85 Ala., 600. 4. Same. Same. Example. A street railway company whose route is designated in its charter by streets, cannot abandon th.e route so designated, and lay its road on other streets, under a city ordinance authorizing the same, as the charter and the ordinance must conform to give a valid grant on any street of the city. {Post, pp. 38-42-, 51.) 5. Samis. Powers under city charter to make grants to, defined. A provision in a city charter empowering the municipal authorities to grant, by ordinance, the right of way through the streets of the city, for the purpose of street railroads, does not authorize the city to grant a right of way to a street railroad company over other streets than those named in the charter of the company in designating its route. (Post, pp. 48-51.) Act construed: Acts 1885, Ch. 8 (ex. ses.). 4 6. Same. Charter provision as to extensions construed. A provision in the charter of a street railway company authorizing it, in addition to laying its road on streets designated therein, to build “extensions” from any of the lines of the company, on and along any other streets to which the municipal authorities may consent, does not authorize it to deviate from the charter route. (Post, pp. 36, 37, 46-48.) Act construed: Acts 1875, Ch. 143. 8. Reheaeing. Not granted, when. A rehearing will not be granted upon a question made and considered on the original hearing, though not referred to in the written opinion, where the Court is content with its former decision. (Post, pp. 53-55.)
100 Tenn. 56Railroad v. Wright (1897)
FROM COOKE. Appeal in error from the Circuit Court of Cocke County. W. R. Hicks, J.
100 Tenn. 65East Tennessee Coal Co. v. Daniel (1897)
1. VARIANCE. Between pleadings emú, evidence. Under a declaration averring specific acts of negligence as grounds for recovery, the plaintiJS cannot recover upon proof of other acts of negligence. (Post, pp. 72-74.) Cases cited: 2 Mete. (Ky.), 146; 52 Ga., 410. 2. Same. Same. And plaintiff is not precluded from insisting upon such fatal variance by his failure to object to the admission of the irrelevant evidence. (Post, pp. 74, 75.) 3. Statute op Limitations. Commencement of suit. A right of action is not saved from the bar of the statute of limitations, where, before it was barred, the plaintiff obtained the issuance of an original summons, which was delivered to his attorney, but never placed in the hands of an officer, and, after the time of the statute had run, dismissed his suit for want of service of process, and thereafter, within twelve months, brought a new suit. The first action was not ‘-commenced” within the meaning of the statutes permitting a party, whose suit brought in time has been dismissed upon some ground not .concluding his rights, to renew his action within twelve months after such dismissal, though the statute may in the meantime have run its course. (Post, pp. 75-79.) Code construed: §§4445, 4446 (S.); <¡§3448, 3449 (M. & V.); §§ 3754, 2755 (T. & S.). Cases cited: Anderson v. Bedford, 4 Cold., 464; Sweet v. Electric Light Co., 97 Tenn., 252; Kailroad v. Pillow, 9 Iieis., 251; Cole v. Nashville, 5 Cold., 639. 4. Same. Same. Burden of proof. Plaintiff in an action which is prima facie barred by lapse of time has the burden of showing, where he relies upon the commencement of a former action and a dismissal thereof within one year before the commencement of the second action, as authorized by Shannon's Code, §§4445, 4446, that the former action was “commenced” within the meaning- of the statutes. (Post, %>. 79.)
100 Tenn. 80Hendrickson v. Mayton (1897)
County Coukt. Jurisdiction. County Courts have no jurisdiction to surcharge and falsify the final settlements of guardians made therein, as such jurisdiction belong’s to the Chancery Court alone. Cases cited and approved: Roy v. (liles, 4 Lea, 535; Pickens v. Bivens, 4 liéis., 329.
100 Tenn. 82Nighbert v. Hornsby (1897)
1. SUPREME Court. Presumption where charge is omitted from record. Where the charge is not made part of the record, this Court conclusively presumes that the jury was correctly instructed upon all questions- of law arising on the evidence. (Post, p. 84.) Cases cited and approved: Railroad v. House, 96 Tenn., 552; Railroad U. Poster, 88 Tenn., 671; Ins. Co. v. Sturges, 12 Heis.,339; Lane v. Keith, 2 Bax., 189. 2. Same. Siistates verdict, when. This Court will not disturb the jury’s finding upon the facts if there is any evidence to sustain it; and, in determining whether or not there is such evidence, the strongest legitimate view of the evidence adverse to appellant will be taken as true. {Post, pp. 84, 85.) Cases cited and approved: Railroad v. House, 96 Tenn., 552; Transit Co. v. Seigrist, 96 Tenn., 120; Kirkpatrick v. Jenkins, 96 Tenn., 85. 3.' Execution. Facts that constitute a valid levy. An officer need not take manual possession of property levied upon, or at the moment of the levy indorse his action on the execution, but it is sufficient if he goes into the presence of the property levied upon, with the power and purpose then and there to seize it under a valid execution, and really assumes control of the property, with the knowledge oí the execution debtor, and then leaves the property in his custody by his consent, on his promise to keep it safely until demanded for sale, noting the fact of the levy upon a separate paper, and subsequently indorsing it propei'ly on the execution. {Post, p. 85,88.) Cases cited and approved: Evans v. Higdon, 1 Bax., 245; Bradley v. Kesee, 5 Cold., 223; Brown v. Allen, 3 Head, 429; Tyler v. Dunton, 1 Tenn. Chy., 367. 4. Same. Levy not vitiated by failxvre to tahe deVimery bond. Failure of an officer to take a delivery bond, as authorized by statute, on leaving property levied upon in possession of the execution debtor, does not invalidate the levy, as the statute is directory only. (Post, p. 86.) Code construed: § 4772 (S.); § 3757 (M. & V.); § 3044 (T. & S.). Case cited and approved: Brown v. Allen, 3 Head, 429. 5. Keplevin. Erroneous judgment on bond. A judgment on a replevin bond, rendered at the trial term before plaintiff has had an opportunity to return the property, and before the issuance 'of an execution, is premature, under Shannon’s Code, §5145, allowing such a judgment only after plaintiff has failed to return the property and after the return of an execution unsatisfied in whole or in part, and then at the term of court to which the execution has been returned. (Post, pp. 86-88.) Act construed: Acts 1885, Ch. 59. Code construed: § 5145 (S.). Case cited and approved: Conner v. Bates, 92 Tenn., 469. 6. Same. Same. Not cured by stay. A defect in a judgment on a replevin bond, in rendering the same before the return of an execution unsatisfied, in whole or in part, is not cured by a provision therein staying its operation for forty days. (Post, p. 87.\ 7. Same. Proper judgment in case originating before Justice of the Peace. A judgment on a replevin bond, in an action originating before a Justice of the Peace, should, under Shannon's Code, §5152, be for double the value of the property if not returned, instead of for the full amount of the bond. (Post, pp. 86-88.) Code construed: §5152 (S.); §4133 (M. & V.);'§ 3397 (T. & S.). Cases cited and approved: Godsey v. Weatherford, 86 Tenn., 670; Jacobs v. Parker, 7 Bax., 438. 8. Supbeme Court. Will enter correct judgment. This Court will correct the judgment of the lower Court and enter such judgment upon the verdict as that Court should have rendered. (Post, p. 88.) Cases cited and approved: Fugate u Stapleton, 6 Bax., 321; Allo-way v. Nashville, 88 Tenn., 512; Johnson v. Chattanooga, 97 Tenn., 247.
100 Tenn. 89Atlanta Guano Co. v. Hunt (1897)
1. Bills and Notes. Transfer for value. The transfer of notes, whether negotiable or merely assignable, is for value when made as collateral security for a pre-exist-ing debt, upon consideration of the grant of a definite extension of the time for payment of such debt. (Post, pp. 90-98.) Case cited: Cherry v. Frost, 7 Lea, 1. 2. Same. Estoppel in favor of innocent purchaser. One to whom negotiable, or assignable, notes are transferred upon a valuable consideration, without indorsement by the payee, to whom they are subsequently retransferred for collection without any earmark to show that he is not the owner, is estopped, as against an innocent purchaser for value ’ from such payee, to claim any interest in the notes. (Post, pp. 92-99.) ■ ' Case cited: Taylor v. Pope, 5 Cold., 413; Savings Institute v. Fellows, 6 Cold., 472; Fliekey v. Loney, 4 Bax., 172; Dinsmore v. Boyd, 6 Lea, 701.
100 Tenn. 100Murray v. Allred (1897)
1. Deed. Reservation of minerals includes 'petroleum oil. Petroleum oil is a mineral within a reservation by deed of “ all mines, minerals, and metals in and under the land.” (Post, pp. 101, 117, 118.) S. Same. Reservation of minerals includes natural gas. Natural gas is a mineral within a reservation by deed of “all mines, minerals, and metals in and under the land.” (Post, pp. 115, 116, 118.) 3. Advebse Possession. Of lands not adverse to owner of minerals therein. Possession of land by the owner of the surface is not adverse to the owner of minerals therein, when the land is used merely for agricultural purposes, without any denial of the right to the minerals or any assertion of claim inconsistent therewith. (Post, pp. 110, 120.) :
100 Tenn. 121Star Ass'n v. Woods (1897)
1. Building and Loan Associations. Usurious loans. Doctrine reaffirmed that loans made by a building and loan association to its members at.a fixed premium in excess of the legal rate of interest, without free and competitive bidding, are usurious. (Post, p. 123.) Cases cited and approved: Post v. Association, 97 Tenn., 408; Me' Cauley v. Association, 97 Tenn., 421. 2. Same. Usury not recoverable. A building and loan association, that has acted in good faith and without suspicion of the illegality of its action, cannot be held, especially after its insolvency, for usury collected from its borrowing member, who, after having fully discharged his debt to the association and voluntarily withdrawn from membership therein, and received from the association the full withdrawal value of his shares, seeks to recover part of the usury collected from himself and others that went to make up the withdrawal value of his own shares. (Post, pp. 124-126.) Cases cited: Turney v. Bank, 5 Hum., 406; 71 Miss., 630; 63 Qa., 373; 19 W. Va., 792; 89 N. C., 37. Code construed, 3504 (S.); ? 2712 (M. & V.); I 1955 (T. & S.).
100 Tenn. 127Lenoir Car Co. v. Smith (1897)
PROM LOUDON. Appeal in error from Circuit Court of Loudon County. JoHN J. Blair, J.
100 Tenn. 130Railroad v. Phillips (1897)
Kailboad. Not liable for injury to horse. No recovery can he had for injuries sustained by a horse in crossing over a railway trestle, in front of a train, where the train stopped before reaching the trestle, and the fireman tried to drive the horse from the track, but it ran over the trestle instead. Cases cited: Holder v. Kailroad, 11 Lea, 176; Richardson u Duncan, 2 Heis., 220; Lyons v. Stills, 97 Tenn., 514; Fink v. Evans, 95 Tenn., 413.
100 Tenn. 138Johnson City v. Railroad (1898)
1. Constitutional Law. Power of towns, cities, and cownttes to become stockholder or loan credit. The constitutional provisions prohibiting' counties, cities, and. towns to loan credit or become stockholders, without the assent of three-fourths of their qualified voters, are absolute and self-executing; but the required election to obtain assent of the voters must be authorized by and held pursuant to a valid statute enacted for that purpose. (Post, pp. 142-144.) Constitution construed: Art. II., § 29. 2. Samis. Same. A statute authorizing counties, cities, and towns to become stockholders in railroad companies, which conforms in other respects to the constitutional requirements, is not rendered invalid or unconstitutional by a provision permitting the subscription to he paid in bonds to be issued without submitting the question of their issuance to the voters. (Post, pp. 141-144.) Constitution construed: Art. II., §29. Act construed: Acts 1887, Ch. 3. Code construed: §§ 1558-1563 (S.). 3. Municipal Corporations. Payment of subscription in bonds not a loaning of credit. The payment in bonds by a town or city of its subscription, validly made, for stock in a railroad company is not such loaning of credit as is prohibited by the constitution to towns and cities without the assent of three-fourths of their qualified voters. (Post, pp. 144, 145.) Constitution construed: Art, II., '§ 29. Act construed: Acts 1887, Ch. 3. Code construed: §§ 1558-1563 (S.). 4. Same. Same. ' It is appropriate, though not necessary, to submit to the voters of a town or city the question of issuing bonds in payment of the subscription along with the proposition to become a stockholder in a railroad company. (Post, p. 145.) Case cited and distinguished: Colburn v. Railroad, 94 Tenn., 43. 5. Same. Not estopped, when. A recital in municipal bonds that they were issued pursuant to, and in accordance with, a statute which authorized their issuance alone to “ a railroad company incorporated under the general laws of the State,” does not estop the municipality to dispute the validity of the bonds in the hands of an innocent holder upon the g-round that they were illegally issued to a nonresident corporation. (Post, pp. 145-148.) Cases cited: 147 IT. S., 238; 156 IT. S., 709; 142 IT. S., 355; 111 IT. S., 8; 110 U. S,, 608; 109 IT. S., 735; 102 U. S., 278; 101 U. S., 693; 92 IT. S., 637, 484, 642; 21 How., 530: 57 Fed. Rep., 137. 6. Same. Same. Authority to issue municipal bonds cannot be conferred by 'estoppel. (Post, pp. 147, 148.) Cases cited: 101 IT. S., 608, 693. 7. Same. Cannot issue bonds to foreign railroad company. Municipal bonds issued to a foreign railroad company are not authorized by statute in this State, and are absolutely void. (Post, p. 147.) 8. Court oe Ghanceby Appeals. Finding conclusive. A finding of the Court of Chancery Appeals that municipal bonds were not issued to a domestic, but to a foreign, railroad company, is conclusive. (Post, pp. 148, 149.) Act construed: Acts 1895, Ch. 76. Cases cited and approved: Railroad v. Knoxville, 98 Tenn., 10; Hughes v. Powers, 99 Tenn., 480; Ellis v. 'Brabson, 99 Tenn.,, 538; Bank v. Evans, 95 Tenn., 702; Bradshaw v. Van Valken-burg, 97 Tenn., 317.
100 Tenn. 150Hubbard v. Godfrey (1898)
1. Colob ob Title. What constitutes. Deeds, thong’ll void or ineffectual to pass title for want of right or power in the maker to convey, are, nevertheless, available to the vendee holding possession thereunder, as color or assurance of title, within the requirements of the statutes of limitations. (Post, pp. 152-155.) 2. Adveesb Possession. What is required. The possession of land, evidenced by the erection thereon, successively at different points, of small rail pens where hogs and cows are occasionally fed, is not of that continuous, open, and notorious character required by the statutes of limitations. (Post, pp. 155, 156.) Cases cited: Hicks v. Fredericks, 9 Lea, 491; Pullen v. Hopkins, 1 Lea, 744. 3. Ejectment. No recovery without proof of title. In ejectment the plaintiff cannot recover, even against a naked trespasser, without proof of a perfect title, either by deraignment from the State or by seven years’ adverse possession under the required color of title. He cannot recover upon proof of registered color of title and adverse possession thereunder, accompanied by payment of taxes on the land, for a ■ period of less than seven years. (Post, pp. 156-161.) \Code construed: lino (S.); <¡3953 (M. & V.); I 3229 (T. & S.). Cases cited and approved: Huddleston v. Garrott, 3 Hum., 629; Hess v. Sims, 1 Yer., 144; Langford v. Love, 3 Sneed, 311; Campbell v. Campbell, 3 Head, 325; Lafferty v. Whitesides, 1 Swan, 123; Crutsinger v. Catron, 10 Hum., 24; Stinson v. Russell, 2 Tenn., 40; Kimbrough v. Benton, 3 Hum., 129; Evans v. Belmont Laud Co., 92 Tenn., 355; Garrett v. Belmont Land Co., 94 Tenn., 479; King v. Coleman, 98 Tenn., 570.
100 Tenn. 163Lock v. Turnpike Co. (1897)
1. TuRNpike Companies. Not liable for i/njuries caused by receiver’s negligence. A turnpike company, a part of whose road, including its only toll gate, has been placed in the exclusive possession and control of a receiver, appointed by a court on application of an adverse claimant, is not liable for injuries occurring on that part of the road during the receivership, by reason of the unsafe condition of the roadbed. (Post, pp. 167-171.) Cases cited and approved: 63 Tex., 38; 53 Ind., 57; 58 N. Y., 61; 74 Mo., 603; 5 Am. St. Hep., 313; 13 Am. & Eng. R, R. Cas., 433. 2. Same. Effect of receivership of part of road. Where part of a turnpike road, including its only toll gate, is placed in exclusive possession, control, and management of a receiver, appointed on application of an adverse claimant, and the remainder is left in possession of the turnpike company, the company is relieved of all obligation to make repairs, and of all liability for failure to make them on that part of the road held and operated exclusively by the receiver, even though the decree appointing the receiver does not in terms authorize him to make repairs. {Post, p. 171.) 3. Same. Liability for receiver’s negligence out of funds received from him. Although a turnpike company mig-ht, in a properly framed action, be held liable for an injury resulting from negligence of a receiver of its property, from whom it had subsequently received funds on settlement of the receivership, still, no recovery can be had, in such case, under a declaration that avers neglig-enee of the company, and fails to aver negligence of the receiver, and subsequent receipt of funds from him by the company. (Post, pp. 171-176.) Cases cited: 76 Tex., 421; 62 Tex., 42; 80 N. Y., 470; 75 Va., 701; 62 Miss., 271; 83 Tex., 19, 537; 18 & W. R., 481; 99 U. S., 253, 389; 104 U. S., 130; 106 Cl. S., 287; 151 U. S., 92.
100 Tenn. 177Ellis v. Insurance Co. (1897)
1. Cotjut or Chancery Arrears. Finding of, as to domicile conclusive. The finding- of the Court of Chancery Appeals upon the question of domicile is a finding of fact that is conclusive, and not subject to review by this Court. (Post, pp. 180, 181.) Case cited and approved: Bank v. Evans, 95 Tenn., 706. 2. Administration. Foreign assets. The assets, consisting- of policies of life insurance, of the estate of a deceased nonresident intestate, cannot be drawn into this state for recovery by suit and for distribution under our statutes, by the device of having an administrator appointed in this state to obtain possession of the policies and bring them into the state. (Post, pp. 181-186.) Cases cited and approved: Goodlet v. Anderson, 7 Lea, 388; St. John v. Hodges, 9 Bax., 338; Jones u Marable, 6 Hum., 116; Carr v. Lowe, 7 Heis., 84; McCollum v. Smith, Meig-s, 342; 88 Am. Dec., 298.
100 Tenn. 187Farmer v. Bank (1897)
1. Banks and Banking. Liability for -proceeds of check, collected on forged indorsement. A bank that has received and collected a check upon a forged indorsement of the payee’s name is liable to the payee for its proceeds, although the hank had paid over or fully accounted for same to the forger, without knowledge or suspicion of the forgery. (Post, pp. 188-191.) Oases cited and approved: Pickle v. Muse, 88 Tenn., 381; Chism v. Bank, 96 Tenn., 641; 1 Hill, 295; 3'5 N. J. L., 400; 19 Ohio St., 526; 6 Hum., 124; 1 Ex. Div., 368. 2. Peivity. Not essential to maintenance of action, when. Want of privity will not defeat an action by the payee of a check to recover its proceeds from a bank that has innocently received and collected it upon a forged indorsement. (Post, pp. 191, 192.) Cases cited and approved: Pickle u Muse, 88 Tenn,, 381; 1 Hill, 295; 35 N. J. E., 400.
100 Tenn. 193Orgain v. Irvine (1897)
1. Wills. Unexecuted incomplete will sustained, when. A written will, containing independent dispositions of both personal and real estate, will be sustained as to its bequests of personalty, but not as to devises of realty, although it is neither, in testator’s handwriting, nor executed according to the statutory formalities, nor complete in the dispositions intended by testator of his estate, where the unfinished and un-executed condition of the paper is satisfactorily shown to have resulted from some cause, other than a purpose to abandon or postpone the testamentary scheme, and thatthebequests sought to be upheld embodied the final intention of the testator, which would not, in any event, have been changed or modified. (Post, pp. 199-203.) Cases cited and approved: Guthries. Owen, 2 Hum., 202; 2 Addams, 354. 2. Same. Presumption against incomplete, unexecuted will.' An adverse presumption arises against an incomplete or unexe-cuted will, which has greater or less weight, according- to the condition of the paper. (Post, pp. 199-201.)
100 Tenn. 204Railroad v. Bigbee (1897)
J. Railtsoads. Duty to maAntoMt pits and cattle gua/rds. A railroad company is not relieved of its statutory duty to provide pits and cattle guards when its track passes through inclosed lands or fields, by reason.of the fact that the inclosed premises on one side of the track are unfit for agricultural or other use. {Post, pp. 205, 206.) 2. Same. Duty as to wing fences. The duty of a railroad company to provide wing fences or other device in connection with pits and cattle guards, to protect inclosed lands or fields through which its track runs, is satisfied by the erection of wing fences covering that part of its right of way which is actually occupied and used by the company. The landowner must maintain fences upon that part of the right of way which has not been appropriated by the company and re- ^ mains in his possession. {Post, pp. 206-208.) Cases cited and distinguished: 31 Kansas, 337.
100 Tenn. 209Railroad v. French (1897)
1. Railboads. Easement m i'ight of way not defeated by landowner’s possession. ' Possession of lands within the right of way of a railroad company maintained by. the owner of the fee by the erection of buildings thereon, and inclosure and cultivation, is not adverse to the company, and will not, though continued for more than seven years, defeat or affect its easement therein or its right to occupy and use the premises for any legitimate and necessary railroad purpose. Case cited: Railroad v. Telford. 89 Tenn., 295. 2. Same. Watef tank is legitimate railroad pwrpose. The erection of a water tank is a legitimate railroad purpose for which the company may extend its occupancy of its right of way. The presumption will be indulged that the company located the tank with reference to the demands of its business rather than to annoy a citizen.
100 Tenn. 213Railroad v. Turner (1898)
1. Railroads. Regulation of business. Doctrine re-affirmed that railroad companies may adopt, and in a lawful and proper manner enforce, reasonable rules and regulations, not in contravention of any law or public policy, for the carriage of freight and passengers and the transaction of their business generally. (Post, pp. 217, 218.) Oases cited and approved: Summits. State, 8 Lea, 413; Lane u Railroad, 5 Lea, 126; Railroad v. Garrett, 8 Lea, 438; Railroad v. Fleming, 14 Lea, 129; Railroad v. Benson, 85 Tenn., 627; Railroad v. Harris, 9 Lea, 180; Railroad v. Guinan, 11 Lea, 98; Trotlinger v. Railroad, 11 Lea, 533;' Railroad v. Wells, 85 Tenn., 613. 2. Same. Reasonableness of rules determined by the cov/rt. Whether a rule or regulation adopted by a railroad company is reasonable or not is a question for the court. (Post, pp. 218, 219.) Case cited and approved: Railroad v. Fleming, 14 Lea, 128. 3. Same. Notice of rules and regulations. The rules and regulations which a railroad company may adopt and enforce in the transaction of its business do not become effective until the public or the party to be affected thereby has actual knowledge thereof, or such reasonable notice that the law will, under the particular circumstances, infer knowledge. (Post, pp. 219, 220.) Case cited: Trotlinger v. Railroad, 11 Lea, 533. 4. Same. Conditions and limitations printed or stamped on ticket. Time limitations and conditions stamped or printed upon the back or face of a general ticket are not binding upon a passenger unless his attention is called to them when or before he purchases the ticket and he assents thereto. (Post, pp. 221,222.) Cases cited: 23 L. R. A., 746; 32 Am. Dec., 505; 8 Am. Dec., 545. 5. Same. Bight of purchaser of general ticket. The purchaser of a general ticket, who pays the customary price therefor, is entitled to one passage, unlimited as to time, upon any train which, under the proper and usual schedules of the road, stops at the point of his destination. His right cannot he abridged by printing or stamping limitations or conditions upon his ticket, or otherwise than by express contract based upon a consideration or by voluntary waiver. {Post, pp. 222-223.) Cases cited and approved: Railroad v. Gilbert, 88 Tenn., 430; 16 Wall., 330; 6 How., 344; 8 Am. Rep., 545; 32 Am. Dec., 505. 6. Vebdict. Excessive. A verdict is set aside as excessive which awards a passenger $300 who was wrongfully, but without rudeness, ejected from a train, within eight miles of his destination, on account of the supposed invalidity of his ticket — it appearing that he reached his destination without special inconvenience or expense a few hours later. {Post, pp. 225. 226.) Cases cited: Railroad v. Guinan, 11 Lea, 101; Railroad v. Fleming, 14 Lea, 152.
100 Tenn. 227State v. Kilvington (1898)
1. State Isdestbial School. Method of commñttArtuj children to. Under Acts 1891, Ch. 195, authorizing’ the Judge or Chairman of any County Court to cause certain classes of “ orphan, helpless, wayward, and abandoned children ” to be brought before the County Court, and investing that court with the power, if it shall deem it for the manifest interest of such children, to commit them to the “Tennessee Industrial School,”the Judge or Chairman of the Court has not the power to commit sxxeh children to said institution by a summary and arbitrary order, but the proceedings and order for that purpose must be had by and' from the Court itself. (Post, pp. 228-234.) Act construed: Acts 1891, Ch. 195. Code construed: 4418-4433 (S.). 2. Same. Removal of child by habeas corpus. Although a child — a girl of tender years — has been committed to the Tennessee Industrial School, which is not a penal institution, but one for the industrial and moral training of unfortunate children, by the summary and unauthorized order of the Judge of a County Court, without the requisite proceedings and order of the Court itself, such child will not be removed from said institution by habeas corptts, and restored to the mother, its sole surviving parent, when it appears that the mother is of ill repute, and lives in a disreputable locality, and that the child, if restored to her, would be surrounded by and subjected to evil associations and corrupting influences. The Court will, in sxxch case, subordinate the parent’s rights to the protection and interests of the child. (Post, pp. 234-236.) Cases cited and approved: Lea v. White, 4 Sneed, 73; State v. Paine, 4 Hum., 523; Word v. Roper, 7 Hum., Ill; 12 Abb. Pr. Rep., 92; 54 Ga., 159; 38 Hun, 127; 9 Phila., 571; 141 Mass., 203; 42 Am. Rep., 10; 40 Wis., 328; 4 Whart. (Pa.), 9. 3. Same. Limit as to age. ' The limitation as to age of children that may be committed to the Tennessee Industrial School, is for the protection of that institution, and cannot be invoked by a parent seeking by habeas corpus to remove from the school a child under the prescribed age, and restore it to unworthy and vicious hands and control. (Post, pp. 236, 237.) Act construed: Acts 1891, Ch. 195.
100 Tenn. 238Railroad v. Green (1898)
1. New Tbial. Rule forbidding Coun't to grant more thg/n two stated. Doctrine reaffirmed that the statute providing that not more than two new trials shall he granted to the same party in an action at lawj does not operate as a limitation upon the Court’s power to g'rant new trials upon the ground that there is no evidence to support the verdict or for other causes than upon the facts or merits. (Post, pp. 238-242.) Code construed: {¡4850 (S.); §3835 (M. & V.); §3122 (T. & S.). Cases cited and approved: Trott v. West, 10 Yer., 499; Railroad v. Mahoney, 89 Tehn., 311; 134 U. S., 614. 2. Same. Effect of general entry granting. Unless the entry of record shows other specific grounds for the Court’s action it will he conclusively presumed that a new trial was g-ranted upon the facts or merits. (Post, pp. 242-244.) Cases cited and approved: Turner v. Ross, 1 Hum., 16; Ferrell v. Alder, 2 Swan, 77. 3. Same. Entry granting construed. An entry of record granting a new trial upon the ground “ that the jury disobeyed the instructions of the Court and because the verdict is against the preponderance of the evidence,’’shows that the Court’s action was based upon the facts or merits. (Post, p. 244.) Cases cited and approved: Burton v. Gray, 10 Lea, 580; Turner-v. Ross, 1 Hum., 20. 4.Same. Oov/rt disapproves Tout sustains verdict. Although the trial Judge may utterly disapprove a verdict as contrary to the weight of the evidence, and may find that the plaintiff was guilty of gross negligence, he has no power to set the verdict aside, if there is some evidence to sustain it, after two former verdicts have been set aside upon consideration of the facts at the instance of the same party. (Post, pp. 240-244.)
100 Tenn. 245Campbell v. Brown (1898)
1. Bills and Notes. Purchaser’s riyhts. The purchaser of a note at a rate of discount equivalent to 40 per cent, per annum cannot, though innocent of any wrong, recover more than the amount actually paid against the maker in fraud of whose rights the note was transferred. (Post, pp. 246, 247.) Cases cited and approved: Hunt v. Sanford, 6 Yer., 387; Merritt v. Duncan, 7 Ileis., 163; Petty v. Hannum, 3 Hum., 103; Holman v. Plobson, 8 Hum., 137; May v. Campbell, 7 Hum., 450; Green v. Stuart, 7 Bax., 433; Oppenheimer v. Bank, 97 Tenn., 34. 3. Same. Same. Where the purchaser of a note in exchange for personal property retains the title of the property to secure the purchase price, and, after notice that the note had been transferred to him in fraud of the maker’s rights, releases the said security, his recovery on the note will be reduced by the value of the property released. (Post, p. 248.)
100 Tenn. 249Duke v. Helms (1898)
1. Adyeese Possession. Extent of its operation. The adverse possession for seven years of a house on an unin-closed lot, under a deed for an undivided half interest in the lot, will protect the possessor ag-ainst the true owner as to the entire house, and an undivided half of the remainder of the lot, but not as to the other undivided half of the unin-closed portion of the lot. (Post, pp. 250-252.) 3. Limitations, Statute of. Of seven yea/rs, arrested, when. If ejectment is brought before the defendant has had seven years’ possession of the premises sued for, the bar of the seven years statute will not attach by reason of fcomplainant’s failure to appeal or prosecute writ of error from an adverse decree until after defendant has had seven years’ adverse possession. The prosecution of a writ of error is not a new suit, but a continuation of the old one as regards statutes of limitation. (Post, pp. 252, 253.) Case cited: Fitzsimmons v. Johnson, 90 Tenn., 416, 435.
100 Tenn. 254Johnson v. State (1898)
1. Dedication. User. Mere user of land as a public road for fourteen years, is not sufficient evidence of dedication. (Post, p. 258.) 2. Yeedict. Of voluntary manslaughter. Upon the facts set out in the opinion the Court holds that the killing was “wholly unjustifiable ” and the verdict of voluntary manslaughter ‘ very merciful and exceedingly lenient. ” (Post, pp. 255-280.) 3. Charge oe Court. Refusal of request proper, when. It is not error for the Court to refuse, on the trial of a murder case, to charge upon the subject of insane delusions, where the sole defense is justifiable homicMe and there is no evidence of insanity. (Post, p. 280.) 4. Same. Same. If the original charge is full and correct upon the subject of self-defense, it is not error for the Court to refuse to give further instruction upon that subject. (Post, p. 281.) 5. Insanity. Tests. Insanity, in order to excuse a party for crime, must be of such a character as to deprive the person of his reason so far as to render him incapable of distinguishing between right and wrong, or of discerning good from evil. The capacity to know right from wrong and to know that the particular act being committed is wrong, is the rule recognized in this State for testing criminal accountability. The court properly refuses •to give instructions that adopt any other test, and properly refuses anew trial upon affidavits showing merely peculiarities of temperament and occasional eccentricities of conduct on the part of defendant. (Post, pp. 260, 261.) Oase cited and approved: Wilcox v. State, 94 Tenn., 117.
100 Tenn. 262Conelly v. Nashville (1897)
Municipal Cobpobations. Not Viable for its employe’s negligence, when. A city is not liable for negligence of the driver of a street sprinkling cart in colliding with and overturning a buggy, thereby injuring its occupant. The employe is, in such case, engaged in the performance of a governmental, not of a mere ministerial, duty. Cases cited: Memphis v. Kimbrough, 12 Heis., 134; Pesterfieldu Vickers, 3 Cold., 205; Davis v. Knoxville, 90 Tenn., 599; 17 G-ratt., 375; 13 R. I., 454; 62 N. Y., 160; 78 Me., 118; 40 Conn., 72; 62 N. H., 8.
100 Tenn. 267Stewart v. Grand Lodge (1898)
1. Life INSURANCE. Forfeiture. To defeat an action upon a certificate of a benevolent order on account of nonpayment of assessments, it must be affirmatively and distinctly proved that the assessment, which the member failed to pay, was made in exact accordance with the constitution and laws of the order, and no presumption will be indulged, in such case, in favor of the regularity or legality of assessments. [Post, pp. 271, 272.) Case cited: 85 Ky., 1. 3. Same. No estoppel to deny validity of assessment. The beneficiary in a certificate of a benevolent order is not es-topped to deny the regularity or validity of an assessment, on the nonpayment of which a forfeiture is predicated, by aver-, ring, in a suit upon the certificate, that the insured had, a short time before-his death, sent and offered to pay his “dues,” or what he “owed,” or what he “was rightfully due,” to the order. “Dues” does not necessarily include “assessments.” The member is not “rightfully due,” and does not “ owe” an illegal assessment. {Post, pp. 272-275.) 3. Same. Wctiver. Offer to pay an assessment constitutes a waiver of notice of its making, but not a waiver of matters affecting its regularity or legality. {Post, p. 274.) Case cited: 140 Ill., 301. 4. Laches. Not imputable, when. Laches cannot be imputed to a beneficiary who has delayed, for eight years, to sue on a benefit certificate, where he is protected by infancy from the bar of the statute of limitations. {Post, p. 275.)
100 Tenn. 276Schardt v. Schardt (1898)
1. Life Ihstjbance. Surrender and renewal of policies. Doctrine reaffu-med that a person insured in a benevolent order may change the beneficiary in his certificate, surrender one certificate and take oztt another, and make such other changes as he may wish, whenever and in whatever manner he may desire, within the rules of the order. (Post, p. 279.) Case cited and approved: Sofgeu Knights of Honor, 98 Tenn., 446. 2. Same. Formalities of surrender of certificate. Formalities as to surrender of certificate and issuance of renewal certificate prescribed by the by-laws of a benevolent order, are designed for the protection of the order, and, if waived by the order, their nonobservance is not available to others. {Post, pp. 279, 280.) Cases cited: 84 Iowa, 383 (S. 0., 15 L. R.. A., 114); 81 Iowa, 200; 86 Ky., 5; 146 Mass., 286; 40 Kan., 571; 4 L. R. A., 382. 3. Same. Certificate cannot be disposed of by will. ■ A member of a benevolent order cannot, directly or indirectly, dispose of his certificate by will so as to defeat or affect the rights of the beneficiaries named therein. (Post, pp. 280, 281.)
100 Tenn. 282Vaughn v. Vaughn (1898)
1. Mortsaq-es and Deeds of Trust. Effect of satisfaction. Upon satisfaction of the moi-tgage debt, the legal title to the land covered thereby reverts eo instanti to the mortgagor, if living, or to his heirs, if he is dead, and becomes invested by mere operation of law, and without reconveyance, in him or them, (Post, pp. 284, 285.) Cases cited and approved: Carter v. Taylor, 3 Head, 30; Nichols v. Cabe, 3 Head, 92; Ferguson v. Coward, 12 Heis., 572; Leech v. Hillsman, 8 Lea, 747; Bridges v. Cooper, 98 Tenn., 381. 2. Same. Pa/rol sale of land. A parol agreement by a mortgagor that another shall have the mortgaged premises in consideration of his paying the mortgage debt, is, in legal effect, a sale of the property, and voidable at the election of either the vendor or the vendee or their heirs. (Post, p..285.) Cases cited and Approved: Brakefield v. Anderson, 87 Tenn., 206; Phillips'». Kimmons, 94 Tenn., 562. 3. Parol Sale of Land. Disaffirmance. Bringing suit for the land is an effective exercise by the vendor’s heirs of their rig-ht to disaffirm and rescind a parol sale. (Post, p. 285.) 4. Same. Vendee’s rights upon rescission. Upon the repudiation of a parol sale of land by the vendor or his heirs, the vendee is entitled to recover, and to have a lien declared and enforced against the land for the purchase money paid, with interest. (Post, p. 285.) Cases cited and approved: Pipkin u James, 1 Hum., 325; Crippin v. Bearden, 5 Hum., 129; Sheid v. Stamps, 2 Sneed, 175; Winters v. Elliott, 1 Lea, 676; Smoot v. Smoot, 12 Lea, 274; Sneed v. Bradley, 4 Sneed, 300; Hilton v. Duncan, 1 Cold., 314. 5. Husband and Wife. Oontraots between. Persons living together in an unlawful and higamous relation are not husband and wife, though representing themselves to be such, in such sense as to render them incapable of contracting with each other. (Post, %>. 286.)
100 Tenn. 287Harris v. State (1898)
1. Grand JURY. Selected and appointed by Judge, when and how. Under the statute authorizing the Judge of the Criminal Court of Davidson County to appoint grand and petit juries for his Court, it is competent for him to designate by name thirteen qualified persons to serve as a grand jury, or to designate a larger panel, and from it select the required number of thirteen. (Post, p. 289.) Act construed: Acts 1853-54, Ch. 13. Case cited and approved: Turners. State, 89 Tenn., 558. 3. Special Judge. Competent to try capital case. A special Judge selected by the members of the bar, at an election held by the Clerk in conformity to the statutes, to preside in the absence of the special Judge, may try and dispose of criminal, including capital, as well as civil cases. [Post, pp. 289-291.) Code construed: § 5730 (S.); <5 3930 (M. & V.); <5 4695 (T. & S.). Cases cited and approved: Ligan v. State, 3 Heis., 159; Halliburton v. Brooks, 7 Bax., 330; Hundhausen v. Insurance Co., 5 Heis., 705; Brewer v. State, 6 Lea, 199. 3. Same. Deputy Clerk may hold election for. A depnty Clerk is authorized to hold an election for a special Judge of his Court. (Post, pp. 290, 291.) Code construed: <¡§409, 410, 4050 (S.); <¡<5 375, 376, 3155 (M. & V.); §<5 333, 334, 3314 (T. & S.). Case cited and approved: Martin v. Porter, 4 Heis., 413. 4. IndictmeNt. Signed and sent by district attorney pro tem. valid. An indictment signed and sent by a duly appointed pro tem. district attorney is valid. (Post, pp. 291, 292.) Code construed: <S<5 5769, 5770 (S.); <¡<5 4733, 4734 (M. & V.); <S<5 3963, 3963 (T. & S.) Case cited and approved: Turner u. State, 89 Tenn., 555. 5. Ceiminal Practice. Proceeding conducted by special or deputy officers valid. That the proceedings in a criminal case are conducted by special or deputy officers constitutes no objection to their regularity or validity, if such officers are authorized by law and appointed in conformity to law. (Post, pp. 291, 292.) 6. Same. Objections come too late, when. Objection that a criminal trial was conducted by special or deputy officers, if available at all, comes too late when made for the first time in this Court. (Post, p. 292.) Cases cited and approved: State v. Cole, 9 Hum., 628; MeTigue v. State, 4 Bax., 314; Wallace v. State, 2 Lea, 31; Stateu Dines, 10 Hum., 512; Turner v. State, 89 Tenn., 559. 7. Verdict. For murder in jvrst degree sustained. Verdict for murder in first deg'ree, with death sentence, is sustained upon the facts set out in the opinion. (Post, pp. 292-294.)
100 Tenn. 295Glenn v. Burns (1898)
Life Insukance. Mights of beneficiaries defined. Under a life policy payable to insured’s wife, should she survive him, otherwise to their children, the latter take several and transmissible interests immediately upon delivery of the policy, subject to the contingency of the wife’s survival, and when the insured survives his wife and dies, leaving children and the representatives of deceased children, the latter participate in the policy to the same extent their parents would, if living. Cases cited and approved: Read v. Mosby, 87 Tenn., 759; 42 Conn., 60; 102 N. C., 115; 79 N. C., 303; 89 Iowa, 396 (S. C., 48 Am. St. Rep., 396); 7 Met., 363.
100 Tenn. 303State v. Ross (1898)
PROM DAVIDSON. Appeal in error from Criminal Court of Davidson County. J. M. Anderson, J.
100 Tenn. 307State v. Arnold (1898)
Cbiminal Costs. Taxing on conviction of misdemeanor under indictment for felony. Where, under an indictment for felony, the defendant is convicted of a misdemeanor, the State must pay all costs incident to the prosecution for the felony, which is held to embrace in this ease the entire bill of co.sts, $839.14, except State and county tax and fine, and a few items of clerk’s fees, aggregating $105.15. Cases cited: Loyd v. State, MS.; State v. McBride, MS.
100 Tenn. 310Tucker v. Tucker (1898)
1. Homestead. Extinguished ~by widow’s deed. A widow may, by deed, relinquish her homestead before assign-, ment. 2. Same. • Jurisdiction of County Court. The County Court has, in a proceeding by a widow seeking assignment of homestead, jurisdiction to deny her relief upon' production of her uneontested deed, relinquishing her right. Case cited and distinguished: Walsh v. Crook, 91 Tenn., 388.
100 Tenn. 313Wright v. Wright (1898)
1. Administration. Proceeds of life policy assets, when. The proceeds of a policy obtained by an unmarried man upon his own life, and made payable to himself, “his executors, administrators, or assigns,” are not exempt to his father or other next of kin, but go in the usual course to his personal representative as assets for payment of debts and distribution. Case cited and distinguished: Rose v. Wortham, 95 Tenn., 505. 2. Descent and Distribution. Father takes personal estate of unmarried child. The father, if living, takes the personal estate, including proceeds of a life policy of his deceased unmarried child, to the exclusion of all others. Code construed: $ 4172, subsecs. 4, 5 (S.); § 3278 (M. & V.); g 2429 (T. & S.). Cases cited and approved: Gardenhire v. Hinds, 1 Head, 410; Bragg v. French, 5 Sneed, 247; Deadrick v. Armour, 10 Hum.. 598.
100 Tenn. 317Citizens' Rapid Transit Co. v. Dew (1898)
1. Street Railroads. Negligence in operation of cars. It is the duty of a street railway company to provide a sufficient number of employes for the safe operation of its cars, and it is a question for the jury to determine, whether it is negligence to operate an electric car with only one employe, who does duty both as motorman and conductor, on a line laid on a turnpike, at grade, where persons, horses, and vehicles are constantly passing. (Post, pp. 320, 321.) 2. Same. Dog not a trespasser, when. A dog is not a trespasser on a street car track which is laid in the highway on the same level with it. (Post, p. 321.) 3. Same. Motorman cannot rely upon qiuickness and celerity of dog, when. A motorman cannot rely upon the quickness and celerity of a dog, to absolve himself from all duty and care to prevent running over him with an electric ear. (Post, p. 322.) 4. Same. Nabits of dogs may be looked to. A jury may consider common knowledge and observation about the habits and qualities of dogs. (Post, p. 322.) 5. Action. Not lost, %ohen. The right to recover for injury to a dog is not lost by killing him under the honest but mistaken belief that he was fatally injured. (Post, pp. 321, 322.) 6. Dogs. Are property. The owner of a dog has such property in him that he may maintain an action for the wrong-ful killing or injuring him. (Post, pp. 322-325.) Cases cited and approved: Wheatley v. Harris, 4 Sneed, 468; State v. Brown, 9 Bax., 53; Fink v. Evans, 95 Tenn., 416; 86 N. Y., 365. 7. Same. Pedigree of. Evidence of the pedigree of a dog is not inadmissible on the ground that it is hearsay. (Post, pp. 325-329.) Cases cited: Flowers v. Haralson, 6 Yer., 494; Rogers v. Parks, 4 Hum., 480; Swink v. French, 11 Lea, 79; Morris v. Swaney, 7 Heis., 591; Ford v. Ford, 7 Hum., 92. 8. Same. Same. It is a matter of common knowledge that pedigree enters into the consideration of the value of dogs, including such as are kept for sporting purposes. (Post, p. 325.)
100 Tenn. 329Mitchell v. Railroad (1898)
1. Bill of Exceptions. Unnecessary, when. A hill of exceptions is not necessary for the review of a demurrer to evidence which incorporates the evidence. (Post, pp. 330, 331. 2. Railroads. Blowing whistle under bridge over public thoroughfare. Blowing a locomotive whistle loudly several times under a bridge which is a much traveled, public thoroughfare, over which vehicles of all kinds are constantly passing, is, in the absence of some special necessity therefor, an unnatural and reckless act. creating a liability for resulting damages. (Post, pp. 331-333.) Cases cited and approved: Railroad v. Starnes, 9 Heis., 52; 59 Pa., 259; 78 Pa., 219. Cited and distinguished: 104 Ind., 326 (S. C., 54 Am. Rep., 334). 3. Same. Same. A presumption of negligence arises from .the blowing of a locomotive whistle'loudly and repeatedly under abridge constantly used by all kinds of vehicles. (Post, p. 333.) 4. Contributory Negligence. Driving runaway mule. That one of plaintiff’s team was a runaway mule does not constitute such contributory negdig-ence as will bar his action against a railroad company for an injury sustained in a runaway caused by negligent blowing of an engine whistle under a bridge over which the team was passing. (Post, p. 333.)
100 Tenn. 334Foutch v. State (1898)
1. Charoe of Court. Not part of record, when. Although the charge is copied into the transcript, it constitutes no part of the record unless it is embodied in or called for by the bill of exceptions. (Post, p. 336.) Cases cited and approved: State v. Hawkins, 91 Tenn., 140; Marble Co. v. Black, 89 Tenn., 119; Railroads v. Foster, 88 Tenn., 671. 2. Same. Refusal of special requests not error, when. The Court’s refusal to 'give special requests cannot constitute reversible error in any case where the principal charge is omitted from the record, as it is conclusively presumed, in such case, that the charge, as given, was full and accurate. (Post, p. 336.) Cases cited and approved: Railroad v. House, 96 Tenn., 552; Railroads v. Foster, 88 Tenn., 671. 3. Same. Reftised propositions not read to jury. The trial Judge is not required by the statute directing him to reduce to writing his decision on requests for special instructions in felony cases, to read to the jury any proposition to which he does not assent. (Post, pp. 337-339.) Code construed: ?¿ 7187 (S.); 6050 (M. & V.). Case cited and approved: Lang v. State, 16 Lea, 434. 4. Juey Trial. Peremptory challenges. It is reversible error to allow the State exceeding four peremptory challenges where the offense charged is not capital, but of or above the grade of petit larceny- — e. g., murder in the second degree. (Post, pp. 339-345.) Code construed: {¡g 5825, 5826 (S.); U 4789, 4790 (M. & V.); §? 4013, 4014 (T. & S.). Acts construed: Acts 1875, Ch. 75; Acts 1883, Ch. 19. Case cited: Wig-gins v. State, 1 Lea, 738.
100 Tenn. 346Richardson v. Marshall County (1898)
1. Municipal Bonds. Issued without legislatwe authority, are non-enforcedble. Negotiable bonds issued by counties, cities, or towns, without legislative authority, are void ah initio, and nonenforceable in whosesoever hands they come. (Post, p. S49.) Cases cited and approved: Milan v. Railroad, 11 Lea, 339; Colburn v. Railroad, 94 Tenn., 43; Johnson City u Railroad, ante, p. 138; 111 U. S., 400; 137 U. S., 139, 160; 31 Fed. Rep., 870. 3. Same. Estoppel of county by adjudication of vaUdity of. A decree adjudging that railroad aid bonds were “leg-al and valid,” rendered in a suit by taxpayers against a railroad company and the county tax collector to enjoin the collection of taxes, laid by the county to pay the interest on the bonds, is conclusive against the county, in favor of one who purchased bonds after its rendition, as to the existence of legislative authority for their issuance, although, lack of such authority was not expressly alleged in the bill on which the decree was rendered, where the county, though not a formal party, was cognizant of the decree and has acquiesced in it without complaint, and has paid the interest for h number of years and about one-half of the principal. (Post, pp. 350, 351.) Case cited: Williams v. Railroad, 9 Bax., 488. 3. Same. VaUdity of, detemvined by judicial construction prevaiUng at date o f issuance. The validity of county bonds in the hands of bona fide holders must be determined by the law as it was judicially construed to be when the bonds were put upon the market, although the Court, at the present time, may be inclined to place a different construction upon the law. (Post, pp. 351, 352.) Cases cited and approved: 101 U. S., 677; 105 U. S., 60, 73. 4., Same. Negotiated after cancellation, invalid i/n hands of innocent purchaser. Negotiable county bonds which have been paid and canceled, but have been fraudulently taken from the hies and put in circulation after such payment and cancellation, are invalid, even in the hands of a bona fide holder. (Post, pp. 354, 355.) Cases cited and approved: 44 La. Ann., 209; 80 Va., 427 (S. C., 56 Am, Rep., 596); 5 Deni'o, 517. 5. Same. No implied warranty by seller of legislative amthority for issuance of. A seller of negotiable county bonds does not impliedly warrant the existence of legislative authority for their issuance. (Post, pp. 355, 356.) Cases cited and approved: Ruohs v. Bank, 94 Tenn., 57; 92 TJ. S., 447. 6. Same. Implied warranty by seller of title and genuineness of. The seller of negotiable county bonds impliedly warrants that he has a good title, and that the bonds are genuine, and he is liable to the buyer for loss occasioned by a breach of such warranty. (Post, pp. 355, 356, 357, 358.) 7. Same. Want of legislative authority to issue, no defense for breach of seller’s implied warranty of. The seller of negotiable county bonds cannot escape liability for breach of his implied warranty that the bonds are genuine, because the bonds were issued without legislative authority, as to which there was no warranty, express or implied, especially where it appears that the bonds would probably have been paid but for the fact that they had already been paid, and had been fraudulently removed from the files and put in circulation. (Post, pp. 355-859.) 8. Same. Good faith does not protect seller. That the seller of negotiable bonds acted in good faith and entertained an honest belief that he had a good title, affords him no protection in a suit for breach of his implied warranty of the genuineness of the bonds. (Post, pp. 358, 359.) 9. Chancery Pleadinh and Pbactice. Defense proper by answer and not by plea, when. The defense to county bonds, that the same have been paid and canceled, but were fraudulently taken from the files and put in circulation after such payment and cancellation, is properly presented by answer setting’ up such facts, and a plea of non est factum, even if proper, is not necessary. (Post, pp 353, 354.)
100 Tenn. 360Winn v. Mutual Life Ass'n (1898)
Pleading and Pkactice. Objection to, comes too late, when. Objection by an unsuccessful plaintiff, made after verdict, and for the first time in this Court, that “not guilty ” is not the general issue or equivalent thereto, in an action upon a policy of life insurance, comes too late and is unavailing. Code construed: <¡§4603-4604 (S.); §§ 3593, 3594 (M. & V.); §§3881, 3883 (T.&S.). Cases cited and approved: Bledsoe v. Chouning, 1 Hum., 85; Grant v. Jennings, 1 Cold., 54; Shirley v. ICeathy, 4 Cpld., 33; Railroad v. Conk, 11 Heis., 575; Pry v. Tippett, 16 Lea, 516; Sanders v. Young, 1 Head, 318; Carter v. Graves, 9 Yer., 446; 3 • Strange, 1033: 8 S. & R., 441. Cases cited and distinguished: Insurance Co. v. Thornton, 97 Tenn., 1.
100 Tenn. 366Ault v. Dustin (1898)
FROM DAVIDSON. Appeal from Chancery Court of Davidson County. H. H. Cook, Ch.
100 Tenn. 389Bank v. Lumber Co. (1898)
Homestead. Does not exist in married woman’s separate estate. The right of homestead, does not exist in favor of either husband or'wife in the latter’s separate estate in realty. Constitution construed: Art. XI., Sec. 11. Code construed: U 3798, 3800, 3801, 3803 (S.); $$ 3935, 3936, 3937, 3938 (M. & V.); <¡(¡ 3110c, 3113c, 3115a (T. & S.).
100 Tenn. 391Forrest v. Porch (1898)
1. Will. Contingent remainder. A devise to- the widow for life, and ‘ at her death ” to testator’s “heirs at law,” creates a contingent remainder, and the estate goes in fee to such persons only as, at the widow’s death, answer to the description of “heirs at law ” of the testator. (Post, pp. 392, 393.) Case cited and approved: Bigley v. Watson, 98 Tenn., 358. 2. Same. Devisees taTce per stirpes. Under a devise of a life estate to the widow and remainder in fee to testator’s “heirs at law,” ¡the persons answering the latter description at the widow’s death take the estate per stirpes. (Post, pp. 393-395.) 3. Same. Residuary bequest to “-heirs at lato ” construed. A residuary bequest to “heirs at law” of the proceeds of the sale of both realty and personalty passes, per stirpes, to the persons answering that description at date of testator's death. (Post, pp. 395, 396.) Code construed: §§4164, 4173 ’(S.); §§ 3371,'3273 (M. & V.}; §§2421, 2430 (T. & S.). Cases cited and approved: Alexander v. Wallace, 8 Lea, 571; Jones v. Hunt, 96 Tenn., 372.
100 Tenn. 397Runnells v. Jacobs (1898)
Statute op JAjiitatiosts. Of ten years bars enforcement of trust deed between original 'parties. A trust deed cannot be enforced, since Acts 1885, Ch. 9, even as against the grantor, more than ten years after the maturity of the oi'iginal note secured thereby, notwithstanding the note may have been kept alive by renewals or promises, and the indulgence and delay in enforcement of the trust deed granted at the request of the grantor. Act construed: Acts 1885, Ch. 9. Case cited: McBlwee v. McElwee, 97 Tenn., 049.
100 Tenn. 402Ridley v. McPherson (1897)
Deed, diving remainder to “ issue ” of life tenant. Under a deed vesting- the remainder interest in lands in the “issne” of the life tenant “living at her death,” the grandchildren take concurrently with the children of the life tenant, and all take per capita in the absence of other controlling provision in the deed. Cases cited and approved: 19 L. R. A., 472; 34 L. R. A., 500; 32 Am. St. Rep., 731.
100 Tenn. 410Griffith v. Security Ass'n (1898)
1. ChanceRY Pleading- and Practice. Deoree of sale wicrnthorlzed, when. Under a mortgagor’s hill seeking, ■inter alia, an account of payments and ascertainment of balance due, decree may be entered in favor of the mortgagee for such balance without cross bill, but not for foreclosure sale of the land. (Post, p. 411.') Cases cited and approved: Gilreath v. Gilliland, 95 Tenn., 383; Bigley v. Watson, 98 Tenn., 357. 2. Cross bill. Essential, when. It is a cardinal rule of equity pleading, subject to few exceptions, that a defendant who desires affirmative relief, must file a cross bill to obtain it. (Post, pp. 412, 413.) Cases cited and approved: Cloud v. Hamilton, 3 Yer., 81: Bussy v. Gant, 10 Hum., 338; Gross u Davis, 87 Tenn., 326; Lewis v. Glass, 93 Tenn., 147; Fisher v. Stovall, 85 Tenn., 316; Polk v. Mitchell, 85 Tenn., 634; 49 N. J. Eq., 303; 122 Mass., 474; 109 Ill., 528; 5 Iowa, 317; 10 Wall., 399. ' Cited and distinguished: Hughes Mfg. Co. v. Conyers, 97 TenD., 274.
100 Tenn. 414Darden v. Williams (1898)
PROM WILSON. Appeal in error from Circuit Court of Wilson County. W. C. Houston, J.
100 Tenn. 417Turnpike Co. v. Montgomery County (1897)
1. Turnpike Company. Acquires no rights against county erecting competing bridge. A turnpike company whose charter does not confer an exclusive franchise, acquires no right of action against a county for the destruction or diminution of its business and revenues by reason of the erection, for the public convenience, under order of the County Court, of a free competing bridge or road. (Post, pp. 420-il27.) Oases cited and approved: Turnpike Co. v. Davidson Co., 91 Tenn., 391; 11 Pet., 420; 7 Pickering, 344. Cited and distinguished: Dridge Co. v. Clarksville, 1 Sneed, 176; 37 Am. Dec., 655. 3. Same. Use of turnpilte between toll gates. For the use by the public of a turnpike between toll gates, the company has no right to toll or other compensation. {Post, pp. 427, 42S.) Case cited: 11 Pet., 545. 3. Corporations. Charters strictly construed. Where any right or privilege, and especially an exclusive one, is claimed under the charter of a corporation, nothing is to be taken as conceded to it but what is given in unmistakable’ terms, or by an implication equally clear. “In grants by the public nothing passes by implication.” {Post, pp. 421, 422.)
100 Tenn. 429Telegraph Co. v. Mellon (1898)
1. Supreme Court. Will not reverse for immaterial error. This Court will not reverse for error of the trial Judge in sustaining demurrer to a plea where the undisputed facts, as found on the trial, show that the plea was false. (Post, pp. 430-432.) Cases cited: Telegraph Co. v. Mellon, 96 Tenn., 66; Glenn v. Express Co., 86 Tenn., 594. 2. TELEGRAPH Companies. Engaged in interstate commerce liable for negligence. A telegraph company is not protected against the consequences of its negligence in failing to deliver a message, by reason of the fact that it is an instrumentality of and engaged in interstate commerce. (Post, pp. 432-435.) Cases cited: 96 U. S., 1; 105'U. S., 466; 127 ü. S., 411; 132 U. S., 472; 118 ü. S., 462; 123 U. S., 623; 38 Fed. Rep., 552; 122 U. S., 347.
100 Tenn. 436Bank v. Shook (1898)
1. Bills and Notes. Release of joint matter vaMd, when. A release, upon sufficient consideration, and with the consent of other interested parties, of one of several makers of a note, by merely erasing his signature, is valid and effectual without other writing. The statutes relating to releases in writing have no application in such case. (Post, pp. 437-443.) Code construed: 5570, 5571 (S.); §§ 4538, 4539 (M. & V.); $$ 3789, 3790 (T. & S.). Cases cited: Evans v. Pigg, 3 Cold., 397; Richardson v. McLemore, 5 Bax., 586; Williams u. Hutchings, 10 Lea, 388; 8 Hun (N. Y.), 559; 3 Woods (U. S.), 19; 17 N. J. L., 375; 37 Iowa, 410; 35 Vt., 355; 43 Vt., 430; 4 Exch., 755; S3 Wend. (34 Am. Dec.), 340. 2. Sajik. Consideration for release. It is a sufficient consideration to sustain the release of one of four joint makers of note payable on demand, that he paid, before demand, his aliquot part of the debt, which was accepted in full satisfaction of his liability on the note, and that this situation was acquiesced in with full knowledge by all the parties until the other makers, then solvent, had become utterly insolvent. (Post, pp. 444, 445.) Cases cited: 14 Wend., 119; 64 Am. Dec., 136. 3. Banks and Banking. Ratification of release of joint matter of note. A bank ratifies and estops itself to dispute the act of its cashier and vice president releasing one of several joint makers of a note, when, with full knowledge of all the facts, it fails to object, and permits the released party to rest in security until the other makers, then solvent, have become utterly insolvent. (Post, pp. 433, 440, 443, 444.) ‘Cases cited: Bank v. Campbell, 4 Hum., 394; Fort v. Coker, 11 Heis., 579; Raht v. Mining Co., 5 Lea, 1; Hart u Dixon, 5 Lea, 336; Evans v. Buckner, 1 Heis., 291; Williams v. Storm, 6 Cold., 203.
100 Tenn. 446Hadley v. Hadley (1898)
1. Wills. In construction of, intention controls. It is axiomatic that in the construction of wills the Court will ascertain, 'f possible, from an examination of the whole instrument, the intention of the testator, and when this is ascertained it will be carried out unless it countervail public policy or some established rule of law. Intention is the “pole star,” to direct the Courts in the interpretation of wills. (Post, pp. 451-453.) Cases cited: Williams v. Williams, 10 Yer., 30; Henry v. Hogan, 4 Hum., 308; Williams u. Jones, 2 Swan, 630; Fulkerson u. Bul-lard, 3 Sneed, 360; Dixon v. Cooper, 88 Tenn, 177; Jones v. Hunt, 96 Tenn., 373; 6 Pet., 680. 3. Same. Case in judgment. Testator devised lands to his wife in trust for his two sons for life, then to their respective heirs. He undertook to designate the specific interests or portions that should go to each son and his heirs. He then added this clause, viz.: “I have heretofore given to my son, John L. Hadley, $7,000, and in dividing my tract of land as above, it has been my wish to equalize them as near as possible, but the parts given to each have not been surveyed, and, therefore, I may have given to one more than I intended. I trust to the sense of justice of my said sons, that if I have given more to one than the other, that they will do right, and authorize my wife, as trustee, to assist them in arriving at justice.” Held: That the testator’s manifest purpose was to make his sons equal in the distribution of his estate, and, for this purpose, to invest them with a power to make an equal division, even if that required some departure from the dispositions of the will. And, further, that a division of the lands made by the sons, though departing from some dispositions of the will, were binding upon the heirs. (Post, pp. 447-455.) 3. Same. Precatory words. The Courts strongly incline to construe words of recommendation and entreaty in a will as obligatory and imperative in further-anee of an object or result that accords with testator’s manifest intention, and the plain moral duty of the devisee or legatee. (Post, pp. 455, 456.) Cases cited: Anderson v. McCullough, 3 Head, 614; Thompson v. McKissick, 3 Hum., 631; Anderson v. Hammond, 2 Lea, 281.
100 Tenn. 457Deaderick v. Bank (1898)
1. CORPORATIONS. Bank directors’ statutory HabiUty. Dnless bank directors have been guilty of “fraud or willful mismanagement of the affairs ” of their bank, that has caused loss to its creditors, they are not liable individually to such creditors under the statute. (Post, pp. 458-461.) Code construed: § 3242 (S.); §2507 (M. & V.); § 18296 (T. & S.). 2. Same. Bank directors’ HabiUty independent of statute. Bank directors are not liable individually unless made liable by statute, to the creditors of an insolvent bank, by reason of their mere neglect, without willful or fraudulent misconduct, in the management of the bank’s affairs while it was a going and apparently solvent concern, whereby imprudent loans and consequent loss to the bank occurred. (Post, pp. 461-471.) Cases cited and approved: Wallace v. Bank, 89 Tenn., 649; Parker v. Bethel Hotel, 96 Tenn., 278; Deaderick v. Wilson, 8 Bax., 114; 102 U. S., 148; 141 U. S., 132; 32 N. J. Eq., 163; 38 N. J. Eq., 509; 53 N. J. Eq., 635. Cited and distinguished: Hume v. Bank, 9 Lea, 728; Minton v. Stahlman, 96 Tenn., 98; Shea v. Mabry, 1 Lea, 344.
100 Tenn. 472Railroad v. Ginley (1897)
1. Railboads. Conductor’s authority to employ servants. The conductor of a railway train has no authority, by virtue of his position merely, to employ servants or agents for the company. But in emergencies, requiring additional service for the proper management, operation or protection of his train, the conductor is invested by law and from necessity with an implied authority to employ such agents and servants, and for such time only as are required by the particular circumstances. (Post, pp. 474, 475, 477, 478.) 3. Same. Existence of emergency authorizing conductor to employ servants a question for jury. Whether, in the particular case, such emergency existed as conferred implied authority upon the conductor to employ servants for the company, is a question of fact for the jury, and this Court will not disturb their decision, if it can be sustained by taking as true that legitimate view of the evidence most favorable to the successful party. (Post, pp. 475, 476.) Cases cited and approved: Citizens, etc., Co. v. Seigrist, 96 Tenn., 130; Railroad v. House, 96 Tenn., 557. 3. Same. Case of emergency authorizing conductor to employ servanst for compcmy. Where a freight train engaged in switching “broke in two,” and the rear portion, comprising several ears, was running backward, unattended, down grade, at such a rate of speed as to greatly imperil the detached cars by derailment at a switch, or by collision with stationary cars on the track, unless sooner arrested, there existed such emergency as authorized and justified the conductor, in the absence of sufficient and available regular servants, to employ for the company any by-stander to aid in arresting the cars. (Post, pp. 476, 477.) Cases cited and approved: 62 Iowa, 736; 83 Ala., 518; 50 Minn., 220; 98 Ind.. 358; 121 Ind., 353. Cited and distinguished: Railroad v. McDaniel, 12 Lea, 386.
100 Tenn. 479Bank v. Lumber Co. (1898)
1. Bills and Notes. Indorsers before delwery. Indorsers before delivery are, in legal contemplation, joint makers of tbe note, and are treated, not as indoi-'sers, but as makers. (Post, pp. 480, 481.) Cases cited and approved: Morrison Lumber Co. v. Lookout Mountain Hotel Co., 92 Tenn., 9; Bank u Jefferson, 92 Tenn., 537; Assurance Society v. Edmonds, 95 Tenn., 53; 95 U. S., 93. 2. MarRied Woman. Binding separate estate. A married woman effectually charges her separate estate with the payment of a note, to which she is not otherwise a party, by indorsing upon it, before its delivery, these words, to wit: “I hereby bind my separate estate.” And it is immaterial whether she be a principal or merely a surety in the note. (Post, pp. 482, 483.) Cases cited and approved: Warren v. Freeman, 85 Tenn., 513; .Eekerly v. McGhee, 85 Tenn., 661; Webster v. Helm, 93 Tenn., 322; Jordan-u. Everett, 93 Tenn., 390; Banku. James, 95 Tenn., 8.
100 Tenn. 484Roberts v. Winton (1898)
1. Life Insurance. What law controls disposition of proceeds of policy. In a contest, in tlie Courts of this state, Between the creditors of the insured and the beneficiaries named in a life policy, over the proceeds of the policy, the laws of Alabama control, where it appears that the insured was, at the date of the policy, and at his death, a resident of that State, although the company issuing the policy, and the beneficiaries therein named, were nonresidents of that State, and the latter residents of this State. (Post, pp. 485-491.) 2. Same. Proceeds of policy not subject to insured’s debts, when. The creditors of the insured cannot recover of the beneficiaries named in a life policy the proceeds of the policy collected by them, .where it appears that nothing of any value to his creditors had been paid upon the policy. (Post, pp. 491-493.) . — .
100 Tenn. 494Smith v. State (1898)
Common Cabribb. Statute requiring separate accommodations for the races, valid. A state statute providing for separate hut equal accommodations on railroads for the white and colored races, both as to passengers traveling interstate and intrastate, is a reasonable and valid police regulation, and not an objectionable regulation of interstate commerce. Cases cited: 95 U. S., 485; 163 U. S., 299, 537; 165 U. S., 628; 166 U. S., 427; 133 U. S., 587.
100 Tenn. 512Railroad v. Jones (1898)
1. Judgment. Against joint tortfeasors. A plaintiff, who recovers'in an action against joint tortfeasors, is entitled to have his full damages adjudged in one sum against all of the defendants, although they may have been culpable in different degrees. (Post, pp. 514-520.) Cases cited: Knott u. Cunningham, 2 Sneed, 205; Snyder v. Witt, 99 Tenn., 618. 2. Same. Same. Not changed by statutes. The statutes authorizing several verdicts and judgments for or against one or more plaintiffs, or for or against one or more defendants, so as to conform to the rights of the parties, have not changed the rule that there must be a joint judgment for one sum in an action against several joint tortfeasors. (Post, pp. 520-522.) Code construed: $§4700, 4701, 4702 (S.); §§ 3686, 3687, 3688 (M. & V.); §§ 29 72, 2973, 2974 (T. & S.). 3. New Thiad. For newly discovered evidence. An application for a new trial, on account of newly discovered evidence, is properly refused when it appears that such evidence was discovered during the arguiment of the case, but was not brought to the attention of the Court until after verdict. (Post, p. 522.)
100 Tenn. 524Willcox v. Hines (1898)
1. Negligence. Of landlord in failing lo repair renders him Hable to tenant’s guest, when. One injured by the fall of a porch, which gave way while she was upon it, cannot recover upon the landlord’s contract to repair made with the tenant in possession, and to which the person injured was not a party, but must base a recovery upon the ground that the landlord knew, or might by the exercise of reasonable diligence have known, of the dangerous and unsafe condition of the premises, of which the person injured had no knowledge and could not have had knowledge by the exercise of reasonable care. (Post pp. 528, 529.) Cases cited: Stenberg v. Willcox. 96 Tenn., 163: 26 Ohio St., 393 (S. 0., 20 Am. Rep., 767.) 2. Same. Evidence that supports verdlet against landlord for failure to repaifr. A verdict in favo” of one injured by the fall of a porch, due to the rotting away of the tenons of the supporting timbers, and against the owner of the leased premises, is supported by the evidence that the landlord’s agent knew of the dangerous and unsafe condition of the porch, and that the landlord promised to place it in repair although the infirmity that led to the accident was not called to his attention, and that he sent a man, who, after completing his work, pronounced it safe, when the defect could have been discovered by a carpenter of ordinary skill. (Post, pp. 529-531.) 3. Ckabge of Coubt. Not erroneous for lack of evidence to support it, when. An instruction that if a landlord saw that a porch was dangerous and agreed to repair it, but his workman left it unsafe, whereby the plaintiff was injured, she was entitled to recover, is not erroneous for lack of evidence to support it, where the landlord inspected the premises and protested the porch was safe, but promised to have it repaired as soon as the weather would permit. (Post, pp. 531, 532.) 4. Same. Not misleading, when. It will not be assumed that the jury were misled by an erroneous charge which was corrected by other instructions subsequently given, although the first charge was not withdrawn. (Post, p. 532.) 5. Same. Refusal of request not error, when. A judgment will not be reversed for the refusal of the trial Judge to give an instruction which is not strictly accurate. (Post, pp. 536, 537.) Gases cited: Sommers v. Railroad, 7 Lea, SOI; Railroad'!). Gurley, 13 Lea, 46; Railroad'!). Wynn, 88 Tenn., 333. 6. Evidence. Of agency properly submitted to jury, when. A disputed question of agency is properly submitted to the jury where a statement made by one who fixed the posts of a porch, which afterwards fell, to the plaintiff's injury, to the effect “now that is safe,” is objected to on the ground that such workman was not the agent of the defendant who owned the property. (Post, pp. 532-535.) Cases cited and approved: 33 N. J. L., 463 (S. 0., 97 Am. Dec., 738); 78 Am. Dec., 390. Cited and distinguished: Self v. State, 6 Bax., 344. 7. Same. Statement of third person inadmissible. Evidence that the sister of one injured by the fall of a porch had said that if it was not fixed somebody would be hurt, is inadmissible to charge the one injured with knowledge of the unsafe condition of the porch. (Post, p. 535.) 8. Same. Preponderance dejimed. The preponderance of evidence does not mean the greater number of the witnesses merely. (Post, pp. 535-537.) Cases cited: Coles v. Wrecker, 3 Leg. Rep., 14; Hills v. Goodyear, 4 Lea, 343.
100 Tenn. 538Willcox v. Hines (1898)
PROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. J. W. Bonneh, J.
100 Tenn. 565Tennessee Coal Co. v. McDowell (1898)
1. Estoppel. In pais defeats title to land. The owner of land who has acquired title by seven years’ adverse possession, under a conflicting junior grant, estops himself'to assert that title, pro tanto, by knowingly permitting the senior grantee, of those claiming under him, to cut off and sell a portion of the land thus held to an innocent party, who has in good faith taken possession and paid the price, or otherwise incurred obligations about the land. (Post, pp. 566-571.) Cases cited and approved: Patton v. McClure, M. & Y., 339; Morris v. Moore, 11 Hum., 434; 6 Johns. Ch., 167. 2. Statute of Limitation's. Suspension of. The constitutional and statutory provisions enacted in 1865 and 1870, declaring a suspension of all statutes of limitations from May 6, 1861, to January 1, 1867, did not, and could not if so intended, divest or in any manner affect a title to land which had been acquired by seven years’ adverse possession, commencing in 1856 and maturing in 1863. (Post, pp. 571, 572.) Constitution construed: Schedule, $4. ’ Act construed: Acts 1865, Ch. 10. See Code, l 2784a (T. & S.). Cases cited and approved: State v. Bank, 9 Yer., 119; Girdner v. Stephens, 1 Heis., 280.
100 Tenn. 573Bruce v. Beall (1898)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
100 Tenn. 582Hayden v. Memphis (1898)
1. Circuit Court. Gertiora/ri. The Circuit Court has the power, in the absence of any statutory right of appeal, to compel, by certiorari, upon petition showing good cause, the production by a City Council of the record of its proceedings removing one of its officers, and to determine thereon whether that body has proceeded illegally, and for sufficient cause, appearing therein, to quash their judgment of removal. (Post, pp. 583-586.) Code construed: §§ 4853, 4854 (S.); §§3838, 3839 (M. & V.); §§3133, 3134 (T. & S.). Cases cited and approved: Mayor v. Paul, 11 Hum., 348; Durham v. United States, 4 Hay., 69. Cited and distinguished: Wade v. Murray, 3 Sneed, 49; Tomlin-son v. Board, 88 Tenn., 1. 3. Municipal Corporations. Power to remove city officer. A municipal corporation has inherent power, in the absence of any controlling statute, to remove its officers for cause, but its mode of procedure for that purpose must reasonably conform to the principles and analogies of the common law. The accused is entitled to notice, and to a fair hearing. The charges against him must be specific, and stated with substantial certainty. The proof and judgment must conform to the charges made. (Post, pp. 587, 588.) Cases cited: 90 Mo., 19; 143 Mass., 90; 13 Col., 460; 83 Mich., 355; 4 E. I., 595. 3. Same: Same. Case in judgment. The judgment of a City Council removing an officer is void, and will be quashed by certiorari, where he is tried upon the specific charge of soliciting a bribe, but convicted of failing to disclose to his associates that he had been offered a bribe, and for that canse alone removed. (Post, pp. 586-590.)
100 Tenn. 591Prescott v. Town of Lennox (1898)
EROM SHELBY. Appeal from Chancery Court of Shelby County. Stekling Pierson, J.
100 Tenn. 596Wilson v. State (1898)
Incest. What is not. The 'begetting of an illegitimate child on the body of the sister of a deceased wife is not within Shannon’s Code, § 6767, making it a felony for any person to beget an illegitimate child on the body of “his wife’s sister.” Code construed: $ 6767 (S.); § 5654 (M. & V.); §4844 (T. & S.) Cases cited and approved: (Joodall v. Thurman, 1 Head, 208; 20 Tex. Ct. App., 609 (S. C., 54 Am. Rep., 535); 3 Me., 533; 1 Denio, 26.
100 Tenn. 599Bailey v. Galbreath Bros. (1898)
PRINCIPAL and Agent. Agent assumes no personal liability, when. A stock broker who, in making sale of a note as agent for another, discloses the fact of his agency and the name of his principal, is not liable to the purchaser, in the absence of an express warranty of the genuineness of the note, for a loss resulting from the fact that the names of the indorsers were forged thereon. Cases cited and approved: Ahrens v. Cobb, 9 Hum., 643; Davis v. McKinney, 6 Cold., 19; 98 Ala., 461; 44 N. Y., 349; 4 Barb., 278; 6 Gratt., 427 (S. C., 52 Am. Dec., 129); 4 Duer (JST. Y.), 79; 1 Am. Leading Cases, 454.
100 Tenn. 603Glascock v. Vanfleet (1898)
Real Estate Brokers. Right to commissions. A real estate agent cannot recover commissions for a sale of property placed in his hands, to a purchaser who first talked about the property with him, where several brokers are employed by the owner, and each has knowledge of that fact, and another agent effects the sale without any knowledge of the previous talk of the former agent with such purchaser. Cases cited: Royster v. MacGeveny, 9 Lea, 148; Arrington v. Cary, 5 Bax., 609; 33 N. J. L., 247; 52 N. W. Rep., 43; 36 N. E. Rep., 294; 35 Pac. Rep., 733; 124 Mass., 224; 3 Daly, 434; 33 N. Y. St., 613; 44 111. App., 444: 35 Ill. App., 617.
100 Tenn. 607Neal v. New Orleans Ass'n (1898)
FROM SHELBY. Appeal from Chancery Court of Shelby County. Sterling Pierson, Ch.
100 Tenn. 619Ward v. Alsup (1898)
PROM SHELBY. Appeal from Chancery Court of Shelby County. Held: in sustaining the demurrer of appellee, that to rulé otherwise' would bankrupt the State of Tennessee. We think not, for the reason that the taxes for 1897 have already been paid. They were not paid under protest. Suit was not brought within thirty days.