101 Tenn.

Volume 101 — Tennessee Reports

104 opinions

101 Tenn. 1Railroad v. Ray (1898)
1. DisclabatioN. Claiming exemplify damages. It is necessary to set out in the declaration the facts constituting fraud, malice, oppression, etc., upon which a claim for exemplary damages is predicated, hut it is not necessary that it be claimed in so many words that some or all of the damages are exemplary or punitive. (Post, pp. S, 6.) Cases cited and approved: 14 Am. St. Rep., 158; 19 Am. St. Rep., 306; 5 Am. St. Rep., 354. Cited and disting-uished: Barson v. Cox, 6 Bax., 360, 363; Ferguson v. Moore, 98 Tenn., 343, 350; Fry v. McCord, 95 Tenn., 678. 2. Common Carries. Duty of its employes to passengers. A passenger of a train is not only entitled to civil treatment at the hands of all the employes, but to their protection, and the railroad company will be held liable for any acts of rudeness and oppression by its employes resulting in an injury to a passenger while on the train, since the safety and proper treatment of the passengers are within the scope of the employment and range of duties of every employe. {Post, pp. 7, 8.) Cases cited and approved: Transportation Co. v. Smith, 16 Lea, 498; Bichengreen v. Railroad, 96 Tenn., 339; West Mem. Packet Co. v. White, 96 Tenn., 229; 44 Am. St. Rep., 489; 32 Am. St. Rep., 87; 42 Am. St. Rep., 33. 3. Same. Conductor or porter of sleeping car. is servant of railroad company. The conductor or porter of a sleeping- car is a servant of the company of whose train his car is for the time being a part, in all matters relating to the safety of its passengers. {Post, pp. 9, 10. Cases cited and approved: Railroad v. Dies, 91 Tenn., 180; Railroad v. Katzenberger, 16 Lea, 380; 8 Am. St. Rep., 538; 51 Am. St. Rep., 303; 32 Am. Rep., 325. 4. CHARGE of Court. Explanation of terms not required, when. It is not necessary for the Court to define the terms “gross negligence,” “fraud,” “malice,” “ cruel or wanton and oppressive conduct,” in a charge on the right to punitive damages in an action against a railroad company, where, according to plaintiff's theory, he was rudely pushed or knocked off a train while in motion, and the defendant denies all negligence. (Post, pp. 6', 7.) 5. Same. Bequest properly refused, when. A requested instruction, in an action by a passenger against a railroad company for personal injuries, which, in effect, holds that it is incumbent on plaintiff to prove that the proximate cause of the injury was the want of something which, as a general rule, the carrier was bound to supply, or the presence of something which, as a general rule, it was.bound to keep out of the way, is properly refused where the liability, if any, is for the positive misconduct of an employe, and not any defect in appliances, machinery, or equipment. (Post, p. 9.) 6. Evidence. Of usual stopping place of train, competent. It is competent for a witness to state that a train, at night, usually stopped at a certain place, although he was not present upon the night to which the inquiry relates. (Post, pp. 10, 11.) 7. Aegtjment oe Counsed. Use of illusU-aUons. The trial Court may, in its discretion, permit counsel to illustrate in argument the manner in which an accident may have occurred, by means of a desk in the courtroom, in addition to the articles used for that purpose by the witnesses. (Post, p. 11.) Case cited and approved: Ferguson v. Moore, 98 Tenn., 350. 8. Costs. Of copy of stenographer’s notes of evidence tipon a mistrial. The Court has no authority to tax the cost of transcribing the stenographer’s notes, furnished upon the plaintiff’s demand, after a mistrial, against the defendant, at whose request the stenographer was employed, under .Shannon’s Code, H 4695 4697, providing that in ease of appeal, a transcript of the sten ographer’s notes, if one has been employed at the request of a party, shall be made a part of the bill of exceptions, and the party at whose instance the stenographer was employed shall be responsible for his compensation for the work done by him, as the statute merely contemplates the case of an appeal. (Post, pp. 14, 15.) Act construed: Acts 1887, Ch. 217. Code construed: gg 4695-4697 (S.).
101 Tenn. 16Ownby v. Supreme Lodge K. of H. (1898)
1. Benefit Societies. Certificate for unauthorized beneficiary void. A benefit certificate that names as beneficiary a person not authorized by the charter and laws of the society to receive the benefit, is void. (Post, p. 20.) 3. Same. Beneficiary nob a dependent, when. A benefit certificate in favor of one for whom the member is under no legal or moral obligation to provide, cannot be sustained as being for a person dependent upon the member, although the latter may have bestowed gifts and charities upon such person, and had contemplated and promised to bestow others. (Post, pp. 18, 19.) Cases cited: 144 Ill., 355; 153 Mass., 314; 60 Mich., 44. 3. Same. Swrrender and substitution of certificate by incompetent person void. The surrender of a benefit certificate, and substitution of a new one naming a different beneficiary, made by a member incapable, by reason of mental infirmity, of exercising judgment and discretion, is void, and does not defeat the rights of the beneficiary named in the first certificate. (Post, pp. 19, 20.)
101 Tenn. 22Clement v. Insurance Co. (1898)
FROM OBION. Appeal from Chancery Court of Obion County. Jno. S. Cooper, Ch.
101 Tenn. 40Railroad v. Bogle (1898)
PROM GIBSON. Appeal in error from Circuit Court of Gibson County. John R. Bond, J.
101 Tenn. 45Bank v. Layne (1898)
PROM OBION. Appeal from Chancery Court of Obion County. Jno. S. Cooper, Ch.
101 Tenn. 62Railroad v. Telegraph Co. (1898)
PROM GIBSON. Appeal from the Circuit Court of Gibson County. John R. Bond, J. PROM MADISON. Appeal from the Circuit Court of Madison County. Levi S. Woods,' J.
101 Tenn. 74McNairy County v. McCoin (1898)
FROM m’nAIRY. Appeal from Chancery Court of McNairy County. A. G. Hawkins, Ch.
101 Tenn. 83Bank v. Haller (1898)
Statute oe Limitations. Applicable to action for proceeds or value of property fraudulently conveyed. The statute of limitations applicable to an action by a creditor against the grantee of his debtor to recover the value or proceeds of property fraudulently conveyed, and not the specific property, is not three, but six, years. Code construed: § 4470 (S.); \ 3470 (M. & V.); g 2773 (T. & S.) Cases cited: Solinsky v. Bank, 85 Tenn., 372; Reeves v. Dougherty, 7 Yer., 222; Knight v. Jordan, 6 Hum., 101; Man- v. Rucker, 1 Hum., 3458; Garrett v. Vaughn, 1 Bax., 113; Howell v. Thompson, 95 Tenn., 396.
101 Tenn. 88Turberville v. Fowler (1898)
1. Deed. Invalid for want of registration. An unregistered deed is void as to the grantor’s subsequent creditors, where he, without the knowledge of the grantee, executed and delivered it to the Register, with instructions not to record it until further notice, which was never given, and himself continued ostensible owner of the property, although the Register inadvertently noted the deed for registration. (Post, pp. 89-94.) Acts construed: Acts 1841, Ch.-. Cases cited: Hickman v. Perrin, 6 Cold., 135; Swepson v. Bank, 9 Lea, 714-723; Woodward v. Bero, 16 Lea, 678; Flowers v. Wilkes, 1 Swan, 408; 37 Ark., 507; 52 Ark., 164; 17 N. H., 164; 108 Ill., 275. 2. REGISTRATION. Noting for. While noting a deed for registration is made, by statute, the equivalent of registration, it will not have that effect where the noting is inadvertently done by the Register, contrary to instructions of the party having control of the deed. (Post, pp. 93, 94. 3. Principal and Agent. Grantor and grantee. A grantor who, without the grantee’s knowledge, executes and delivers his deed to the Register, is not a special agent of the grantee in such sense as to render void the former’s instruc tions to the Register not to register the deed until further notice.
101 Tenn. 95White v. Railroad (1898)
PROM SHELBV. Appeal from Circuit Court of Shelby County. L. H. Estes, Ch.
101 Tenn. 99Kling v. Packet Co. (1898)
FROM HARDIN. Appeal from Circuit Court of Hardin County. E. D. Patterson, J.
101 Tenn. 102Turcott v. Railroad (1898)
FROM SHELBY. Appeal from Circuit Court Shelby County. L. H. Estes, J.
101 Tenn. 112Huff v. Glenn (1898)
Mobtga.g:es and Deeds oe Trust. Of separate estate of feme advert void, lolien. A joint mortgage of the wife’s separate estate, aekDowledg-ed by the husband and wife before an officer having no authority to take acknowledgments of deeds, is void. While a married woman’s deed or mortgage of her separate estate may, under the statutes, be valid in certain excepted cases without joinder of her husband, it cannot be sustained in any case without her privy examination, taken in due form before a duly authorized officer. Code construed: U 4242-4246 (S.); $$ 3346-3350 (M. & Y.); ?§ 2486a.-2486c. Act construed: Acts 1869-70, Oh. 99. Case cited and distinguished: Vick u Gower, 92 Tenn., 391.
101 Tenn. 118Herman Bros. v. Katz Bros. (1898)
1. Hike Insurance. Change, by levies upon insured, property, does not avoid policy. The change of title and possession wrought hy levy of attachment upon insured property, and possession of the officer thereunder, followed hy subordinate constructive levy of an execution thereon and hy appointment of receiver under the attachment proceedings, who never obtained possession, is not, in the absence of proof or inference that the hazard was thereby increased, such change as will avoid the policy under a provision therein that it “ shall be void if any change, other than by the death of the assured, take place in the interest, title, or possession of the subject-matter of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the assured, or otherwise.” (Post, pp. US-129.) Cases cited: Pennebaker v. Tomlinson, 1 Tenn. Ch., 603; Brown v. Allen, 3 Head, 429; Bradley v. Kesee, 5 Cold., 226; Connell v. Scott, 5 Bax., 598; Green v. Shaver, 3 Hum., 138; Snell v. Allen, 1 Swan, 208; McKnight v. Hughes, 4 Lea, 525; Puckett v. Richardson, 6 Lea, 58; Montgomery v. Realhafer, 85 Tenn., 668; Overton v. Perkins, 10 Yer., 329; Tyler v. Dunton, 1 Tenn. Ch., 361; Evans v. Barnes, 2 Swan, 293; Malone v. Abbott, 3 Hum., 533. 2. Same. Clause as to changes construed. In the clause of a fire policy providing that it “shall be void if any change, other than by the death of the assured, take place in the interest, title, or possession of the subject-matter of insurance (except change of occupants without' increase of hazard), whether by leg'al process or judgment, or by voluntary act of the assured, or otherwise,” the parenthetical clause, to wit, “except change of occupants without increase of hazard,” operates to limit not only the preceding words, “possession and interest,” but the word “title” also, and the exception applies to insurance of personalty as well as realty. (Post, pp. 121-125.) Cases cited: 136 N. Y., 375 (S. C., 32 Am. St. Rep., 752); 144 N. Y., 195; 149 N. Y., 382.
101 Tenn. 130Memphis Bethel v. Bank (1898)
i; Corporation Bonds. Rights of holder as collateral secwity. One who, in good faith, receives negotiable corporation bonds from the ostensible owner as collateral security for his individual debt, without knowledge or notice, actual or constructive, that the depositor held same as trustee, or that the transfer was made in breach of his trust, will be protected against the true owner or cestwi qvA trust to the extent of the amount justly due on the debt thereby secured. (Post, pp. 131-135.) Cases cited: Smith v. Railroad, 91 Tenn., 221; Caulkins v. Gaslight Co., 95 Tenn., 693; Merritt v. Duncan, 7 Heis., 156; Taylor v. Pope, 5 Cold., 413; Ramsey v. Clark, 4 Hum., 243; Stephenson v. Landis, 14 Lea, 433; VanWych o. Norvill, 2 Hum., 195; McPerrin v. White, 6 Cold., 499; Causey v. Yates, 8 Hum., 606; Oppenheimer v. Bank, 97 Tenn., 97. 2. Innocent Purchaser. Usury- An otherwise innocent holder of negotiable paper as collateral security will not be denied protection to the extent of the amount lawfully due on the secured claim, by reason of the fact that some usury may have been originally included therein. (Post, pp. 132, 133.) Cases cited: McFerrin v. White, 6 Cold., 499; Causey v. Yates, 8 Hum., 606; Oppenheimer v. Bank, 97 Tenn., 97; Ramsey u. Clark, 4 Hum., 243; Stephenson v. Landis, 14 Lea, 433.
101 Tenn. 136Erkman v. Carnes (1898)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. J. S. Galloway, J.
101 Tenn. 138Jackson v. State (1898)
National Gtjabd. Exemption from road duty. Members of the National Guard of. this State are exempt from road service during the entire term of enlistment, whether engaged in active or field service or not. Acts construed: Acts 1897, Oh. 113.
101 Tenn. 141Faver v. Parker (1897)
1. AdministbatioK. Liability of administrator. The administrator is required by statute to manage and protect a fund set apart as year’s support for minors until a guardian shall be appointed, and then to pay same over to him, and, if he fails in this, and without resistance permits the Probate Court to pass an invalid order directing said fund to be paid to an unauthorized person, and, in obedience to such order, pays the fund over to such person, and it is lost, he will be held personally responsible to the minors for the same, with interest. (Post, pp. 142-145.) Code construed: ? 4034 (S.); § 3139 (M. & V.); g 3390 (T. & 8.). Case cited: Rhea v. Greer, 86 Tenn., 59: 3. Same. Same. But the administrator will be entitled to credit in such ease for any amounts that may have been refunded or actually devoted to the benefit of the minor. (Post, pp. 144,145.)
101 Tenn. 146Railroad v. Williams (1898)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. J. S. Galloway, J.
101 Tenn. 150McHale v. Wellman (1898)
1. Circuit Cotot. Findings by Judge. The statutory requirement that the Judge shall, if requested by either party, render his decision “in writing, stating the facts found and conclusions thereon,” is imperative, and a failure to comply therewith is reversible error. (Post, pp. 151, 152.) Code construed: $ 4684 (S.); $ 3673 (M. & V.); $ 3959 (T. & S.). Case cited and approved: Stanley v. Donoho, 16 Lea, 495. 3. Same. Same. A general finding, though in writing, is insufficient under the statute. The finding should consist of a concise and distinct written statement, in its proper order, of each material fact, separate from the g'eneral conclusions of law or fact drawn by the trial Judge. (Post, p. 153.)
101 Tenn. 154Bank v. Memphis (1898)
FROM SHELBY. Appeal from Chancery Court, of Shelby County. Steeling Pierson, Ch.
101 Tenn. 169Reinhardt v. Nealis (1898)
FROM SHELBY. Appeal from Chancery Court of Shelby County. Lee Thornton, Sp. Ch.
101 Tenn. 176Carpenter v. Richardson (1898)
1. Building and Loan Associations. Method of adjustment between insolvent association and borrower. In a suit by the receiver of an insolvent building and loan association against its borrowing member, who had defaulted before the association became insolvent, to ascertain amount due and to foreclose the mortgage, the complainant is entitled to recover the amount loaned, with interest from date of loan, and unpaid premiums (but not fines), subject to credit for all cash amounts paid on interest, premiums, etc., with interest thereon. (Post, pp. 171, 118.) Cases cited and approved: Rog-ers v. Hargo, 93 Tenn., 35; Post v. Building & Loan Association, 97 Tenn., 408. 3. Same. Borrowing member not entitled to credit for stock left with association, when. A member is not entitled to credit for value of stock left with a building and loan association as a premium upon his loan, in a suit prosecuted by a receiver of the association, after its insolvency, to foreclose the mortgage executed to secure the loan. (Post, p. 179.) 3. Same. Interest allowed against member after insolvency of association. In the absence of a proper tender by the borrowing member, a building' and loan association can recover interest against him in a foreclosure suit, even if it accrued after the association’s insolvency. (Post, pp. 179, 180.)
101 Tenn. 181Trading Stamp Co. v. Memphis (1898)
FROM SHELBY. Appeal from Chancery Court of Shelby County. Sterling Pierson, Ch.
101 Tenn. 188Jones v. Memphis (1898)
1. Constitutional Haw. Exemption of territory added to city from taxes. The constitutional requirement of equal and uniform taxation is violated by a statutory provision exempting, for a period of ten years, from taxation for current expenses and future wants, e. g., police, fire, and lighting purposes, of new territory added to a city, at the same time leaving the old city liable to taxation for these purposes, although it further provides that the new territory shall not have, during said period, the benefit of police, fire, and light protection. This principle does not, however, forbid the protection of the new territory against taxation for the debt of the old city. (Post, pp. 191-193.) Constitution construed: Art. II., $§38, 39. Cases cited and approved: Taylor v. Chandler, 9 Heis., 366; Reel-foot, etc., Dist. v. Dawson, 97 Tenn., 151; Keezee v. Board, 6 Cold., 137. 3. Same. 'Discriminating statute. A statutory provision that withholds absolutely for the period of ten years from newly added territory the advantages of police, light, and fire protection enjoyed by the old city is unconstitutional, although it further provides that the new territory shall be exempt from taxation for these purposes during said period. (Post, pp. 193, 194.) 3. Statutes. Void in part, void in toto. A scheme for adding territory to a city, embodied in several ■statutes passed contemporaneously, providing, among other things, for sewers and waterworks, and which would not have been passed had a provision not been inserted exempting the added territory from taxation of a certain kind for a certain period, must go down if the provision for exemption is found to be unconstitutional. (Post, pp. 194-196.) 4. Same. General rule where they contain unconstitutional provisions. Where a single statute, or several. statutes constituting one scheme, contain one or more unconstitutional provisions, the obnoxious provisions will be eliminated and the statute or scheme sustained as to the rest, unless the provisions are deemed so essential and are so interwoven with others, that it cannot be reasonably presumed that the Legislature intended the statute to operate otherwise than as a whole, and, in that event, the entire statute or scheme falls. (Post, p. 195.) Cases cited: State v. Scott, 98 Tenn., 256; Reelfoot, etc., Dist. v. Dawson, 97 Tenn., 151; Tillman v. Cocke, 9 Bax., 439; 158 U. S., 601.
101 Tenn. 197Railroad v. Thompson (1898)
1. Railboad. Nonobservanee of statutory preemptions. Nonobservanee of statutory precautions for prevention of accidents does not render a railroad company liable for injury to an animal struck by its train, when, by reason of the sudden appearance of the animal upon or in dangerous proximity to the track, it became impossible for those in charge of the train, by the exercise of the greatest possible diligence, to observe the signals or prevent the collision. (Post, pp. 199, 200.) Code construed: £ 1574 (S.); § 1298 (M. & V.); § 1166 (T. & S.). Cases cited and approved: Railroadu Foster, 88 Tenn., 680; Railroad <o. House, 96 Tenn., 555. 2. Same. Failtvre to fence track. The mere failure of a railroad company to fence its track at the crossing of a private way, the obstruction of which is forbidden and punished by statute, affords no ground for the company’s liability for injury to an animal by collision with a train at such crossing, if the company was otherwise free from negligence. (Post, pp. 200-205.) Acts construed: Acts 1891, Ch. 101; Acts 1879", Ch. 83. Code construed: §£ 1587-88, 6869 (S.); § 5746 (M. & V.); §4913 (T. & 8.). Cases cited and approved: Railroads v. Crider, 91 Tenn., 496; Railroad u Russell, 92 Tenn., 110; Railroad v. Hughes, 94 Tenn., 450; Railroad v. House, 96 Tenn., 552. 3. Statutes. Repeal by implication. The statute requiring the fencing of railroad tracks is not to be construed as repealing the statute making it a misdemeanor to obstruct certain private ways. (Post, pp. 200-205.) Acts construed: Acts 1879, Ch. 83; Acts 1891, Ch. 101.
101 Tenn. 206Saunders v. Railroad (1898)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
101 Tenn. 211State v. Wilbur (1898)
PROM HAMILTON. Appeal in error from Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 222Hamilton County v. Rape (1898)
FROM HAMILTON. Appeal in error from Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 229Henderson v. Walker (1898)
FROM HAMILTON. Appeal in error from Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 236Donaldson v. Walker (1898)
1. Ceimihax Costs. District Attorneys’ fees. A District Attorney is entitled to no fee where a misdemeanor case is dismissed by nolle proseqyA, and the State’s costs adjudged against the county. {Post, p. 241.) Code construed: §§ 6380, 6383 (S.); §§ 5393, 5396 (M. & V.); §§ 4545a, 4548 (T. & S.). Case cited: State v. Farris, 4 Lea, 183. 3. Same. Payment suspended by Cownty Judge. Where a County Judge has inadvertently or erroneously issued a county warrant for costs of a criminal case illegally taxed and certified against the county, he may, under the Code, without the aid of Acts 1891, Ch. 33, forbid and suspend payment of the warrant in the hands of the original holder, and perhaps in the hands of others, until it can be purged, by retaxation of the costs, of all illegal and unauthorized items. {Post, pp. 241-24S.) Code construed: {¡<¡673, 673 (S.); gg 585, 586 (M. & V.); §§537, 538 (T. & S.). Question reserved: Constitutionality of Acts 1891, Ch. 33. Case cited: Morgan u Pickard, 86 Tenn., 311. 3. Same. Relaxation. Retaxation of costs in a criminal ease on motion of a County Judge, under § 673, Shannon’s Code, is not precluded by the fact that he had inadvertently or erroneously issued a warrant for the same, and he is justified in refusing to pay the warrant until the costs have been retaxed. {Post pp. 242, 243.) Code construed: § 673 (S.); § 586 (M. & V.); § 538 (T. & S.). 4. Same. Retaxation not barred. Retaxation of costs in a criminal case, on motion of the County Judge, as provided by § 673, Shannon's Code, is not barred, though not sought at the first term of the Court after judgment. (Post, pp. 241-243.) Code construed: £673 (S.); \ 586 (M. & V.); § 528 (T. & S.). 5. Same. Illegal, stricken out. A judgment for costs against the State or county, which is not authorized by statute, is void. Neither the issuance of a warrant nor the certification by the Judge and Attorney-general will preclude retaxation of such costs. (Post, p. 244.) Case cited: Morgan v. Pickard, 86 Tenn., 311. 6. Mandamus. Not alloived, when. Under mandamus against a County Judge to compel payment of a county warrant which is in part illegal, the Court will not compel the issuance of a new warrant for the amount justly due, while the old one is still retained and outstanding. (Post, p. 240.)
101 Tenn. 245Kimbro v. Insurance Co. (1898)
PROM HAMILTON. Appeal from Chancery Court of Hamilton County. ■T. M. McConnell, Ch.
101 Tenn. 252Brown v. Electric Railway Co. (1898)
1. Action. Of widow for husband’s injuries barred by latter’s compromise. An adjustment by deceased, in his lifetime, of his claim for damages for personal injuries, bars an action by his widow to recover for his death resulting from such injuries. (Post, p. 253.) 2. Master and Servant. Servant assumes rislt,, when. Danger from a bank or wall of earth falling is open to common observation, and is a risk that a servant working in its vicinity assumes. (Post, p. 256.) Cases cited and approved: 34 Minn., 95; 41 Minn., 290; 70 N. W. Rep., 976; 105 N. Y., 159; 24 N. E. Rep., 748; 65 Iowa, 237; 123 N. Y., 5; 168 Mass., 396.
101 Tenn. 257Trotter v. Furniture Co. (1898)
Master and Servant. Promise to repair %oill not avail servant, ivhen. ■A promise by the master to repair a defective appliance does not relieve the servant from the assumption of the risk in continuing in Ms employment after the expiration of the time for fulfillment of the promise, under circumstances which indicate that the promise will not be fulfilled. Cases cited: Railroad v. Handman, 13 Lea, 433; Brewer v. Tenn. C. & I. Co., 97 Tenn., 615; 8 So. Rep., 316, 318; 95 Wis., 6.
101 Tenn. 263Cotton Oil Co. v. Shamblin (1898)
DECLARATION. GertoAnty in averment of negligence reqwired. A declaration in an action for damages for the negligent killing of a person, which avers, in general terms only, that defendant had wrongfully and negligently killed the deceased, without stating the facts constituting the negligence, is had on demurrer. Code construed: ^ 4C02, 4438 (S.); U 3593, 3441 (M. & V.); $$ 2881, 2747 (T. & S.). Cases cited and approved: Evans v. Thompson, 12 Heis., 536; Cherry v. Hardin, 4 Heis., 202; 30 Conn., 521 (S. C., 79 Am. Dec., 278); 34 Conn., 136 (S. C., 91 Am. Dec., 718); 31 Ohio St., 557; 69 Texas, 359; 8 Gill & John., 248 (S. C., 29 Am. Dec., 543); 35 S. C., 381 (S. C., 28 L. R. A., 855); 109 N. C., 692 (S. C., 52 A. & E. R. R. Cas., 490); 90 Ill., 425; 30 Grattan, 805; 71 Mo.,-(S. C., 2 A. & E. R. R. Cas., 146); 74 Mo., 364 (S. C., 7 A. & E. R. R. Cas., 382); 32 W. Va., 37.0 (S. C., 37 A. & E. R. R. Cas., 179). Cited and distinguished: Railroad v. Pratt, 85 Tenn., 9; Coal Co. v. Daniel, 100 Tenn., 65.
101 Tenn. 273Wise v. Morgan (1898)
FROM HAMILTON. Appeal from Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 286Kelly v. Mountain City Club (1898)
Attobney Fees. Not paid out of general fund, when. The solicitors oi complainant in a bill to wind up the affairs of an insolvent corporation are not entitled to have their fees paid out of proceeds of real property to the detriment of first mortgage bondholders, notwithstanding that the proceeds of such property was paid into Court during the progress of the case, it appearing that the first mortgage bondholders, as such, were not interested in having the proceeds go into Court, although one of their number, who was also interested as a second mortgage bondholder and as a general creditor, consented that the suit be treated as a general creditors’ bill. Cases cited and approved: Garner v. Garner, 1 Lea, 30; Hume v. Bank, 13 Lea, 496; Keith v. Fitzhugh, 15 Lea, 49.
101 Tenn. 291Irvine v. Chattanooga (1898)
FROM HAMILTON. Appeal in error from Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 297Union Trust Co. v. Electric Railway (1898)
FROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.
101 Tenn. 306Tyler v. Walker (1898)
1. Attorneys’ Fees. Provision in note for. A provision in a note for the payment of attorneys’ fees and cost of collecting- is Valid, where suit is necessary and brought in good faith, if the stipulation is not a device to cover up and collect usury, but such fee is not collectible when such suit is needlessly brought, or when it is brought to enforce an unjust demand, or to coerce more than is actually and justly due. (Post, pp. 308, 309.) Cases cited: Par-ham v. Pulliam, 5 Cold., 497; Clark v. Jones, 93 Tenn., 643; 6 Am. Rep., 663; 38 Am. St. Rep., 100; 141 U. S., 406; 40 Mich., 517; 81 Ala., 489. 2. Same. Same. Plaintiff in an action to foreclose a deed of trust, to secure a note stipulating for an attorney’s fee in case of suit, is not entitled to recover such fee, where he refuses to credit the defendant upon the principal with usurious payments, under the erroneous impression that the claim to have them so credited is barred by the statute of limitations. (Post, pp. 309, 310.) 3. Costs. Paid by plaintiff suing on usv/rious note. Plaintiff in an action to enforce a deed of trust securing a note, is properly charged with costs, where his unfounded claim to retain all usurious payments made more than six years before the commencement of the suit without applying them to the principal, was the cause of the litigation. (Post, p. 309.) Code construed: §4947 (S.); §3930 (M. & V.); §3205 (T. & S.). Case cited: State v. Lewis, 10 Lea, 168.
101 Tenn. 311Young v. Insurance Co. (1898)
PROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.
101 Tenn. 318Manufacturing Co. v. Weatherly (1898)
FROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.
101 Tenn. 325Hope v. Hamilton County (1898)
FROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McConnell, Cb.
101 Tenn. 334McQuade v. Williams (1898)
EROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McCoNNell, Ch.
101 Tenn. 338Holtzclaw v. Hamilton County (1898)
FROM HAMILTON. Appeal from the Chancery Court of Hamilton. County. T. M. McConnell, Ch.
101 Tenn. 342Chattanooga v. Dowling (1898)
FROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.
101 Tenn. 350State v. Amos (1898)
FROM MARION. Appeal in error from Circuit Court of Marion County. Floyd Estill, J.
101 Tenn. 354Barnes Bros. v. Coal Co. (1898)
FROM HAMILTON. Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.
101 Tenn. 362Railroad v. Flowers (1898)
1. CbetioRARI and Supersedeas. Motion to dismiss. The requirement that motion to dismiss petition for writs of error and supersedeas shall be made at the first term, means at the first term after notice to the adverse party. (Post, p. 365.) Code construed: § 4863 (S.); (J 3848 (M. & V.); $ 3133 (T. & S.). Cases cited: Nicks v. Johnson, 3 Sneed, 336; Chappel v. Jones, 8 Hum., 107; Nance v. Hicks, 1 Head, 634; Bank v. Hughes, 3 Cold., 55; Gardner v. Barger, 4 Heis., 673; Boyers v. Webb, 1 Lea, 698; Hodge v. Dillon, Cooke, 381; Hardin v. Williams, 5 Heis., 388. 3. Same. Waiver of objection to petition. A motion to dismiss a petition for writs of certiorari and super-sedeas for want of any excuse for failure to appeal, comes too late when made after an intervening term, at which the mover demanded a jury trial, and consented to a continuance of the case.- (Post, pp. 364-366.') 3. Appeal. Motion to dismiss waimed, when. A party waives his motion to dismiss an appeal for want of bond where he fails to take any action upon such motion, and treats the cause as properly brought up by a subsequent proceeding by certiorari and supersedeas. (Post, pp. 366, 367.)
101 Tenn. 368Corbett v. Smith (1898)
FROM KNOX. Appeal in error from the Circuit Court of Knox County. Joseph W. Sneed, J.
101 Tenn. 375Knox v. Railroad (1898)
1. Master and Servant. Fellow-servant. A “boss wiper ” who is the foreman of a gang of wipers employed by a railroad company to wipe its locomotives and direct them when to work and what to do, but who has no power to employ or discharge them, is their fellow-servant, and not a vice principal. (Post, pp. 378, 379.) 2. Same. Facts that do not fix master’s liability. The foreman of a gang of engine wipers employed by a railroad company, even if a vice principal, is not gnilty of negligence rendering the company liable for the death of one working under his directions, where the latter was in the pit under the engine, or among its rods and beams, when it started out of the round house pursuant to the foreman’s order, and was killed while the engine was backing upon the turntable, it appearing that the engineer had rung the bell before starting as a warning, and that the foreman had ordered all the wipers out to the turntable, and the circumstances indicate that the deceased must have been asleep, or that if awake, recklessly remained under the engine. {Post, pp. 376-379.)
101 Tenn. 380Gann v. Railroad (1898)
FROM MARION. Appeal in error from the Circuit Court of Marion County. Floyd Estill, J.
101 Tenn. 389Armstrong v. State (1898)
FROM HAMILTON. Appeal in error from the Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 392Logan v. Ogden (1898)
Bills and Notes. Co-swreties’ Viability. Persons who sign their names in blank on the back of a negotiable note, before delivery, for the accommodation of the maker, and to give him credit with the payee, are not indorsers proper, but co-makers with their principal, and equally liable as between themselves, without reference to the order in which their names were signed. Cases cited: Bank v. Lumber Co., 100 Tenn., 479; Assurance Society v. Edmonds, 95 Tenn., 53; Morrison Lumber Co. v. Lookout Mountain Hotel Co., 92 Tenn., 9; Bank v. Jefferson, 92 Tenn., 537; 95 U. S., 93.
101 Tenn. 396Insurance Co. v. Hyde (1898)
FROM HAMILTON. Appeal in error from Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 406Electric Railway Co. v. Lawson (1898)
FROM HAMILTON. Appeal in error from the Circuit Court of Hamilton County. Floyd Estill, J.
101 Tenn. 412Reeves v. Allen (1898)
1. Deed. Calling foi' Mglvwa/y or street. The general rule is reaffirmed that a deed which calls for a highway or. street carries title to the middle line or center of the street or highway, when the grantor owns to the center, hut when the intent appears to be to convey only to the edge or margin, that intent will control. (Post, p. 414.) Cases cited and approved: Railroad v. Bingham, 87 Tenn., 523; Spain v. Railroad, 1 Shannon, 181. 2. Same. Calling for streets, construed. Under a deed describing the property conveyed as a house and lot on the corner of two streets, fronting a certain distance on one of the streets, such distance must be measured commencing at the margin of the other street, but the deed will convey the grantor’s right to the center of the street. (Post, pp. 413-416.)
101 Tenn. 417Hamilton v. State (1898)
1. Definitions. “ Within.” The term “within” as a limit of time or space or degree, embraces the last day or degree or entire space covered by the limit. (Post, p. 418.) 2. Juey Trial. Relationship of juror. Belatives of the sixth deg-ree are related “ within ” the sixth degree, and incompetent by statute to sit on juries. (Post, pp. 418, 4190 3. New Trial. Pot disqualification of juror. New trial will not be granted in a criminal case because of a want of general qualification of a juror '‘propter defectum”— e. g., when he was related to the prosecutor within the sixth degree, but otherwise unexceptionable, although the defendant was ignorant of the fact of such relationship when the juror was selected, and for that reason failed to make objection. (Post, pp. 419, 420.) Oases cited: Eiddle u State, 3 Heis., 401; Brakefield v. State, 1 Sneed, 315; Norfleet v. State, 4 Sneed, 340: Goodall v. Thurman, 1 Head, 209; Johnson <u. State, 11 Lea, 47; Draper v. State, 4 Bax., 246; Cartwright v. State, 12 Lea, 620; Parrish v. State, 12 Lea, 655; Hoard <o. State, 15 Lea, 318; Spencer v. State, 15 Lea, 539; Cantrell v. State, 2 Shannon, 249; Pinkie v. Duni-vant, 16 Lea, 503; McClure v. State, 1 Yer., 206; Gillespie v. State, 8 Yer., 507; Ward v. State, 1 Hum., 253; Calhoun v. State, 4 Hum., 477. 4. Self-defense. Right of, does not exist, when. One who procured a loaded pistol and brought on a difficulty with another, cannot rely on self-defense where he killed the latter as he was climbing a fence, with a hostile intention, it being apparent that he had no pistol on him, and, at most, could have had but a knife, and the parties not being at close quarters, and defendant being accompanied by a companion, while the deceased had none. (Post, pp. 420-424.)
101 Tenn. 425Rogers v. State (1898)
FROM UNION. Appeal in error from Circuit Court of Union County. W. R. Hicks, J.
101 Tenn. 428Rogers v. Rogers (1898)
FROM CLAIBORNE. Appeal from Chancery Court of Claiborne County,. Hugh G. Kyle, Ch.
101 Tenn. 433McClurg v. McSpadden (1898)
MORTGAGES AND Deeds OR Trust. Private sale pending proceedings to foreclose, valid, when. A judgment creditor who seeks to foreclose a mortgage of his debtor and subject the surplus to payment of his debt without impounding the property or obtaining receiver for it or injunction ag-ainst its sale, cannot have relief upon a mere showing that the property was sold, pending the litigation, at private sale, as authorized by the deed of trust, where the sale is not made in violation of any agreement and no surplus is realized, and it is not shown that the sale is fraudulent or that the property was sacrificed or did not bring full value. Case cited and approved: Porter v. Duke, 99 Tenn., 34. Cited and distinguished: Epperson v. Robertson, 91 Tenn., 407; Eulghumu Cotton, 6 Lea, 590; Schults v. Blackford, 9 Lea, 431.
101 Tenn. 438Hamby v. Reid (1898)
FROM CAMPBELL. Appeal from Chancery Court of Campbell County. H. B. LiNdsay, Ch.
101 Tenn. 442Jones v. Telegraph Co. (1898)
FROM ROANE. Appeal in error from Circuit Court of Roane County. John J. Blair, J.
101 Tenn. 445Bank v. Penland (1898)
1. BANKS and Banking. Notice to cashier is notice to bank, when. Notice to the cashier of a bank of equities between the maker and indorser of a note, is chargeable to the bank where he was allowed full liberty and the widest authority to discount paper, and the board of directors and discount committee rarely met, and did not look after the discounts as was their duty. (Post, pp. 446, 447.) 2. Bills and Notes. Innocent holder. The mere fact that the purchaser of a negotiable note knew that the same was given for land, and that there was a lien on the land for the unpaid purchase money, and that there might thereafter occur a partial failure of consideration by an enforcement of the lien, does not deprive him of the character of a bona fide holder or subject him to the equities between the original parties. (Post, pp. 447-449.) Oases cited and approved: Bank v. Stockell, 93 Tenn., 256; Bear-den v. Moses, 7 Lea, 459. Cited and distinguished: Ingram v. Morgan, 4 Hum., 65; Perris •v. Tavel, 87 Tenn., 386.
101 Tenn. 450Forshee v. Willis (1898)
1. General Assignment. Description of property. An assignment ior creditors, under Act of 1881, must contain such a description of the' assigned property as will enable the as-signee to take possession, and, if he has possession delivered, it must be so definite as to description and lopation that the creditors, as well as the assignee, may know when it has all been taken charge of. (Post, pp. 452, 453.) Case cited: Scheibler v. Mundinger, 86 Tenn., 674. 3. Same. Same. The necessity of describing, locating, and identifying property in an assignment for creditors, under Act of 1881, is not obviated by-a statement that the property is or has been delivered to the assignee. (Post, pp. 452, 453.)
101 Tenn. 454Ford v. State (1898)
1. Alibi. .Erroneous charge as to. It is error for the Court to charge that defendant’s failure to prove his defense of alibi is a circumstance against him, though not conclusive of his guilt. Such failure is not a circumstance ■>., against defendant where the evidence of alibi, though not conclusive, bears no special indication of being manufactured or fraudulent. (Post, p. 456.) 2. Same. Same. It is error for the Court to charge that proof of alibi is of no value, whatever, unless it covers the entire time of the transaction in question, and renders it impossible for defendant to have been at both places, since such proof may be of some value, although it does exclude the possibility of presence at the time and place of the offense. (Post, pp. 456, 457.) Case cited: 81 Ill., 565. 3. CHARGE of Court. As to identity. The Court should charg'e, without request, upon the question of identity raised by the evidence in a criminal case, where the sentence imposed is practically equivalent to a life sentence. (Post, p. 457.) 4. Same. Error as to jwry being judges of the law. A charge of the Court, that “the Court is the judge of the law, but the jury are the judges of the applicability of the law, as given them in charge, to the facts of the ease,” is erroneous in a criminal case where the law, in some other respects, was not accurately or sufficiently charged, and the Court can see that defendant may have' been prejudiced thereby. (Post, pp. 457-465.) Constitution construed: Art. I., Sec. 19. Cases cited: Hannah v. State, 11 Lea, 201'; Harris «.State, 7 Lea, 538; McGowan v. State, 9 Yer., 185; Dale v. State, 10 Yer., 550; Nelson v, State, 2 Swan, 481; Robertson v. State, 4 Lea, 425; Butler v. State, 7 Bax., 35. 5. Same. Correct as to jury being judges of the law. The Court approves as correct, a charge in these words, to wit: “The jury are the judges of the facts and the law as it applies to the facts. In making up their verdict they are to consider the law in connection with the facts, hut the Court is the proper source from which they are to get the law. In other words, they are judges of the law, as well as the facts, under direction of the Court.” (Post, pp. 461, 462.) Cases cited and approved: Harris v. State, 7 Lea, 538; Dale v. State, 10 Yer., 550; Hannum*. State, 90 Tenn., 648. Cited and overruled: Withers v. State, 3 Leg. Rep., 106; Deman v. State, 3 Leg. Rep., 184. 6. Same. Same. The jury in a criminal case should not, under the Constitution, set up their own supposed knowledge of the law against that of the Court, whether they assume to have that knowledge of their own or to have acquired it from counsel in argument; hut where there is no direction by the Court, or not a full direction, on points involved, they should not be limited to only such law as is given them by the Court, if there be yet other laws applicable to the ease not contradictory to that thus given, which they may understand from the argument or know themselves. (Post, pp. 457-460.)
101 Tenn. 466Nance v. Chesney (1898)
FROM UNION. Appeal from Chancery Court of Union County. H. B. Lindsay, Ch.
101 Tenn. 473Sinard v. Railroad (1898)
FROM JEFFERSON. Appeal in error from Circuit Court of Jefferson County. W. R. Hicks, J.
101 Tenn. 476Iron Co. v. Pace (1898)
FROM ANDERSON. Appeal in error from Circuit Court of Anderson County. W. R. Hicks, J.
101 Tenn. 490Cox v. Building & Loan Ass'n (1898)
1. Deed. Defective certificate of acknowledgment of married woman. The certificate of a married woman’s acknowledgment of a deed which substitutes for the statutory words “without compulsion or constraint from her husband and for the purposes therein •expressed,” the words “she executed said mortgage freely, voluntarily, and understandingly, and without fear or compulsion from any person,” is invalid, and her deed void. Post, p. 491.) Cases cited: Ellett o. Richardson, 9 Bax., S93; Hendersonu Rice, 1 Cold., 223. 2. Married Woman. Must restore money received upon cm invalid mortgage. A married woman cannot disaffirm her conveyance, and have it set aside, upon the ground that the certificate of her acknowledgment is defective and invalid, except on condition that she restore the money received by her and applied to her use, with legal interest thereon, and the same constitutes a lien on the land conveyed by her. (Post, pp. 491, 492.) Cases cited: Bang v. Windmill Co., 96 Tenn., 367; Sporer v. Eifler, 1 Heis., 636; Aiken v. Buttle, 4 Lea, 103; Mette v. Dow, 9 Lea, 101; Federlieh v. G-lass, 13 Lea, 488; Sautelle v. Carlisle, 13 Lea, 391; Pitcher v. Smith, 2 Head, 208.
101 Tenn. 495Weeks v. McNulty (1898)
1. Innkbepeb. Liability to guests. An innkeeper is not an insurer of the persons of his guests against injury, but his obligation is merely to exercise reasonable care that his guests may not be injured by anything happening by his negligence. (Post, p. 499.) 2. Negligence. Presumption as to origin of fire. No presumption of negligence arises against the owner or occupant of a house in which a fire originates. The contrary rule has been pronounced harsh and unreasonable. (Post, pp. 499, 500.) Cases cited: Railroad v. Manchester Mills, 88 Tenn., 659; Deming u. Cotton Press Co., 90 Tenn.. 353; Railroad u Kelly, 91 Tenn., 699; Postal Tel. Co. v. Zopfi, 93 Tenn., 374. 3. Evideítoe. Not pertinent, when. Under an averment that a hotel had become unsafe and dangerous by reason of the storing of inflammable substances in the cellar of an adjoining grocery store, evidence is not competent to show that oil and combustible substances were kept in the grocery store on the first floor above the cellar. (Post, pp. 500, 501.) 4. Same. Answer must be indicated. This Court will not reverse the action of the lower Court in refusing to permit a witness to answer a pertinent question, unless the record shows affirmatively that the answer would have been competent and material evidence. (Post, p. 501.) Cases cited: Tel. Co. v. Barnes, 95 Tenn., 271; Holmark u. Molin, 5 Cold., 484; State v. Turner, 6 Bax., 203. 5. Same. Pntvre statement admitted. Where plaintiff introduces, as an admission of defendant, a portion of the latter’s cross-examination on the trial of another case involving similar issues, it is not error to admit, at plaintiff’s instance, his examination in chief relating to the same matters, especially when plaintiff abandons his exception by reading the remainder of the cross-examination in rebuttal. (Post, pp. 508, 509.) 6. Same. Presumption from failwre of pa/rty to testify. No prejudicial inference can be drawn from a party’s failure to testify in his own behalf in a civil case, where it appears that he possessed no special knowledge of the facts of the case. (Post, pp. 509, 510.) Case cited: Dunlap v. Haynes, 4 Heis., 476. 7. Peoximate Cause. Breach of m/wnicipal orMnance. The Court finds, as matter of fact, that there is no proof tending to show that the death of plaintiff’s husband resulted, proximately, from the absence of fire escapes on the hotel in which he perished, and that, therefore, it is unnecessary to construe the city ordinance in regard to fire escapes, or to determine whether civil liability arises from its breach. (Post, pp. 501-508.) Case's cited: Queen v. Coal & Iron Co., 95 Tenn., 458; Deming v. Cotton Press Co., 90 Tenn., 353; Railroad v. Kelly, 91 Tenn., 699; Postal Tel. Co. v. Zopfi, 93 Tenn., 374; Sehmalzreid v. White, 97 Tenn., 45.
101 Tenn. 511Patterson v. Bank (1898)
1. Reheabing. Petition filed within ten days. A petition to rehear must, under the rules of the Court, he filed within ten days after the decision is announced, and not within ten days after decree is entered. [Post, p. 512.) Case cited: Adams v. Sharon, 89 Tenn., 335; Rules, 89 Tenn., 773. 2. Appeal. Dismissed, when. An appeal from the Court of Chancery Appeals, taken more than ten days after final decree, is barred, although a petition to rehear, which was afterwards and within ten days before appeal properly dismissed, was pending at the time the decree was entered. [Post, pp. 512-514.) Act construed: Acts 1897, Ch. 131.
101 Tenn. 515State v. Murphy (1898)
1. State. Liability for fees defined. It is the settled policy of this State, fixed by statute and enforced by the decisions of the Courts, that no public officer shall “ receive fees or other compensation for any service further than is expressly provided by law.” (Post, p. SIS.) Code construed: | 6352 (S.); § 5269 (M. & V.); $ 4517 (T. & S.). Cases cited: Johnson n. State; 94 Tenn., 499; State u Spurgeon, 99 Tenn., 659. 2. Back Tax Attobney. Not entitled to fees. A Back Tax Attorney cannot retain his fees for sales of land, made under See. 95, Acts 1895, Ch. 120, and bid in for the State, out of State or county revenues in his hands collected from other delinquents. He must await disposition by the State, through the County Trustee, of each parcel of land so bid in, and receive his equitable share of the compensation for the sale and resale of each parcel from its proceeds, and not otherwise. (Post, pp. 516-520.) Act construed: Acts 1895, Ch. 120, Sec. 95. 3. Same. Same. The proviso of Sec. 43, Acts 1897, Ch. 1, “that the amount of fees due the Back Tax Attorneys shall be allowed them as credits in their final settlements with the State, city, and county, said amounts to be fixed by the Courts in which bills are filed, ” when construed in connection with the context, clearly has no application to fees of Back Tax Attorneys making sales under Sec. 95, Acts 1895, Ch. 120, but applies alone to fees of Back Tax Attorneys in suits or proceedings pending at date of passage of Act of 1897, and brought pursuant to pre-existing statutes. (Post, pp. 519-522.') Act construed: Acts 1897, Ch. 1, See. 43. Case cited: Reinhardt v. Nealis, ante, p. 169. 4. State Comptroller. IVbf an authority in the construction of statutes. That the State Comptroller, by misconstruction of a statute, had allowed his Back Tax Attorney fees out of the State's funds that the law did not authorize him to retain, affords no reason why such Back Tax Attorney should be allowed, wrongfully and illegally, to retain like fees out of the county revenues. The opinions of fiscal agents of the State are not controlling with the Courts in the construction of statutes. (Post, p. 522.)
101 Tenn. 523Cowan v. Carson (1898)
FROM HAMBLEN. Appeal from the Chancery Court of Hamblen County. Hugh G. Kyle, Ch.
101 Tenn. 527Railroad v. Harris (1898)
1. Evidence. Objection to deposition. Objection that a deposition was taken without notice or consent cannot be successfully made at the trial or hearing. (Post, pp. $28, 529.) Code construed: §§5661, 5663 (S.); §<¡4636, 4637 (M. & V.); §§3868, 3869 (T. & S.). 3. Statute of Limitations. Plea of, insioffieient, when. A simple plea “that the cause of action arose more than one year before the bringing of this suit,” presents no defense to a declaration that avers not only an original cause of action, but the bringing of suit thereon within one year after its accrual, and that same was dismissed without trial upon the merits within one year next before the present suit was instituted. The unanswered averment of the declaration, which is admitted under the rules of pleading, constitutes a sufficient answer to the plea. (Post, pp. 529-533.) Code construed: §§4631, 4446 (S.); §§3630, 3449 (M. & V.); §§3910, 3755 (T. & S.). Case cited and distinguished: Graham <u. MeReynolds, 88 Tenn., 340.
101 Tenn. 534Camp v. Ristine (1898)
Evidence. Expert testimony. Opinions of physicians, testifying as experts, are admissible in evidence to prove the value of the professional services of a physician. Cases cited: Bruce v. Beall, 99 Tenn., 303; 105 O'. S., 45; 4 How., 251; 88 N. Y., 299; 10 N. Y., 93; 64 N. Y., 589.
101 Tenn. 538Furnish v. Burge (1898)
1. Chancery Pleading and Practice. Non est factum,. The plea of non est factum, in the Code form, denying that defendant executed the note sued on, or authorized it to be done, is a proper plea in a Chancery Court, and presents a full and complete defense to a plain and simple suit therein upon a note. (Post, pp. S39-541.) 2. Same. Issues for jury trrial. Where the single issue presented by the pleadings in a chancery cause is upon the execution of the note sued on by defendant, or by his authority, an issue made up for trial by jury as to whether the note was signed by defendant or by his authority, is insufficient and immaterial. (Post, pp. 541,542.) Code construed: § 4661 (S.); I 3650 (M. & V.). Cases cited: State u Roberts, 11 Hum., 541; Johl v. Fernberger, 10 Heis., 37. 3. Non est Factum. Denial of execution relates to time of pleading. The denial of execution of instrument contained in plea of non est factum relates to the time of pleading and the status of the instrument at that time. (Post, pp. 542-544.) Case cited: McElroy v. Meleor, 7 Cold., 140.
101 Tenn. 545Bristol v. Jonesboro (1898)
1. CORPORATIONS. Corporate existence not in issue. Parties to a suit to wind up an insolvent corporation, who aver or admit corporate existence in their pleadings, are thereafter estopped to deny that fact. (Post, p. 551.) 2. Same, Finding of Court of Chancery Appeals that formation of, was not fraudulent, conclusive. The finding of the Court of Chancery Appeals that the formation of a corporation was not a fraudulent scheme or device to defraud the creditors of a partnership of a similar name and composed of the promoters of .the corporation, is a finding of fact, and conclusive. (Post, pp. SSI, 552.) 3. Same. Holder of stoclt not required. It is not essential that an applicant for charter, or .a charter member, or a member of the board of directors, shall be a holder of stock in the corporation. A director is not an officer within the meaning of a by-law requiring- all officers to be stockholders. (Post, pp. 552, 553.) Case cited: Hume v. Bank, 9 Lea, 742. 4. Same. Similarity to partnership name. Mere similarity in the name of a corporation to that of a partnership, composed of the same persons — e. g., The Bluff Manufacturing Co.” and “ Sluff Manufacturing Company,’’ cannot, as matter of law, be treated as a device to defraud the partnership creditors. (Post, p. 553.) Cases cited: Memphis Water Co. v. Magens & Co., 15 Lea, 43; 135 U. 8., 525. 5. Same. Organized to buy specific property. A corporation may be lawfully organized to buy a specific property or manufacturing plant, provided such property or plant is useful and convenient and suitable to its purposes, and its purposes are legal. (Post, p. 554.) Cases cited: 21 Atl. Rep., 813; 14 S. W. Rep., 579; 32 N. Y. Rep., 260. 6. Same. Issuance of stock, in payment for property. The stock of a corporation may be subscribed and paid for in property suitable for corporate purposes, provided the same is fairly done and in good faith. (Post, p. 554.) Code construed: § 2335 (S.); §1856 (M. & V.). Cases cited: Thornton v. Payne, 6 Lea, 284; Albitztigui u°. Guadalupe Co., 92 Tenn., 605. 7. Same:. Transfer of partnership property to, not fraudulent. The transfer in good faith, by a solvent firm,, of its entire assets to a corporation, in consideration- of the issuance of its entire stock to the partners, will be upheld in a contest between existing creditors of the partnership and creditors of the corporation after both have become insolvent. (Post, pp. 554-556.) Case cited and approved: Carver Gin Co. v. Bauman, 85 Tenn., 712. Cited and distinguished: Barcroft v. Snodgrass, 1 Cold., 430; Anderson v. Norton, 15 Lea, 28; Vance v. McNabb Coal Co., 92 Tenn., 47. 8. Same. Proceeds of fire policies go to corporate creditors. The proceeds of fire policies taken out upon the corporate property by the corporation, or transferred to it. and on which the premiums have been paid by the corporation, go to corporation creditors, notwithstanding an attempted transfer, without corporate direction, of such policies, after the fire and the insolvency of the corporation had occurred, by the officers of " the corporation for the benefit of their individual and partnership creditors. (Post, pp. 556, 557.) 9. Same. General insurance does not inure to the special benefit of bonds. General insurance taken by a corporation upon its property does not inure to the special benefit of bonds taken and held as collateral for a loan to the corporation upon a promise of its officers, which was never performed, that special insurance would be effected to secure such bonds. General insurance inures to the benefit of all bonds alike. (Post, pp. 557-559.) Cases cited: 71 Fed. Rep., 797; 8 Page, 437; 33 Am. & Eng. Corp. . Cas., 189. 10. Same. Bonds held as collateral canceled, when. When the liability for which corporate bonds have been deposited as collateral security has been discharged and satisfied, the bonds will be ordered canceled. (Post, pp. 560, 561.) 11. Bills and Notes. Innocent purchaser. The indorsee of a note, being otherwise entitled to protection, cannot invoke the plea of innocent purchaser where he takes, the note upon the faith of a letter that gives him notice o£ equities. (Post, pp. 559, 560.)
101 Tenn. 563Austin v. State (1898)
1. Cigarettes. Statute forbidding introduction of, for sale not unconstitutional. A State statute that makes it a misdemeanor to bring cigarettes into the State for sale or other disposition is not a regulation of interstate commerce that is obnoxious to the commercial clause of the Federal Constitution, for the reason that cigarettes, by reason of their harmful character, are not legitimate articles of commerce. {Post, pp. 565, 578, 579.) Constitution construed: Art. I., Sec. 8, Cl. 3 (U. S.). Act construed: Acts 1897, Ch. 30. Cases cited: .5 How., 504; 135 U. S., 465; 95 ü. S., 465; 135 ü. S., 100; .155 U. S., 461. 3. Same. Judicial notice taken of their noicioxts character. The Courts take judicial notice of the harmful character of cigarettes. {Post, pp. 566, 567.) Cases cited: 171 'U. S.,-; 18 La. Ann., 497 (S. C., 89 Am. Dee., 658); 11 R. I., 593; 55 Ala., 158. 3. Same. Revenue tax upon, does not gime commercial character. The imposition of an internal revenue tax upon cigarettes is not a recognition of them as legitimate articles of commerce. {Post, pp. 573, 574.) 4. Same. Original package. Pasteboard boxes of cigarettes, each containing' ten cigarettes and separately stamped and labeled, as prescribed by the United States revenue statute, are not original packages of commerce, when they are transported in an open basket which belongs to an express company, and which is filled and emptied by its agent, but the basket is the original package. {Post, pp, 574-580.) Cases cited: 81 Fed. Rep., 997; 39 L. R. A., 484; 10 L. R. A., 430-432. 5. Constitutional Law. Burden on party assorting constitutionality of statute. All intendments are in favor of the constitutionality of every statute passed with requisite formalities; hence the burden is upon the person who assails a State's restrictive or prohibitory statute, so passed, as an unwarranted interference with interstate commerce, to show that the particular article involved is a legitimate subject of commerce. If this matter is left in doubt, the statute will be upheld. (Post, pp. 572, 573.) 6. Statutes. Unconstitutional in pan't. A statute, unconstitutional in part, may be constitutional and valid as to the residue — e. g., a State statute, void as an unlawful regulation of interstate commerce may be valid in its application to internal commerce. (Post, p. 579.) Cases cited: State v. Scott, 98 Tenn., 354; 128 U. S., 1; 133 U. S., 623; 155 ü. S., 461.
101 Tenn. 581Lane v. Dayton (1899)
FROM RHEA. Appeal in error from the Circuit Court of Rhea County. • James Gr. Parks, J.
101 Tenn. 587Gonce v. McCoy (1898)
1. Judg-ment. Satisfaction of, not set aside, when. A judgment creditor, who has satisfied his judg-ment by a bid on land, cannot have the satisfaction set aside and the judg-ment reinstated, in the absence of fraud upon the ground that he was disappointed in getting a life estate instead of the fee. (Post, pp. 591-595.) Code construed: £ 4719 (S.); $ 3705 (M. & V.): § 2990 (T. & S.). Cases cited and approved: Hayes v. Cartwright, 6 Lea, 145; Hill v. Harriman, 95 Tenn., 305. 2. Life Estate. Value of. The value of a life estate is estimated, not in the light of its actual duration as subsequently developed, or by the rents actually received, but by its value at the time it is to be charged or accounted for, estimated according to the rules or tables usually adopted in estimating the value of life estates (Post, 1op. 593, 594.)
101 Tenn. 596Mann v. Russey (1898)
FROM FRANKLIN. Appeal from Chancery Court of Franklin County. T. M. McConnell, Ch.
101 Tenn. 601Wright v. Brooks (1899)
Exemption. Of insurance on exempt property. The proceeds arising from a loss under a policy of insurance upon homestead and exempt household goods are exempt to the owner, and not subject to execution or garnishment for his debts. Cases cited: White v. Eulghum, 87 Tenn., 382; Hall u Fulghum, 86 Tenn., 451; Duff v. Wells, 7 Heis., 17; Quarles v. Clayton, 87 Tenn., 308.
101 Tenn. 606Sellars v. Sellars (1899)
FROM DEKALB. Appeal from Chancery Court of DeKalb County. T. J. Fisher, Ch.
101 Tenn. 608Gore v. Poteet (1899)
FROM JACKSON. Appeal from Chancery Court of Jackson County. T. J. Fisher, Cb.
101 Tenn. 612Gribble v. Wilson (1899)
1. Constitutional Law. Bight of trial by jwy. That clause of $ 5841 of Shannon’s Code which directs that the ‘•additional costs” of a special jury in a civil case shall be taxed to the losing' party is invalid, as an unwarranted invasion of the right of trial by jury, as defined and preserved by the State and Federal Constitutions. The remainder of the section is valid. (Post, pp. 613-619.) Constitution construed: Art. I., Sec. 6; U. S. Const., VII. Amendment. Code construed: $5841 (S.); $4805 (M. & V.); $ 4029 (T. & S.). Cases cited: McDaniel v. Railroad, 88 Tenn., 542; Clingan v. Railroad, 2 Lea, 726; Jackson v. Pool, 91 Tenn., 452; Hannum •v. State, 90 Tenn., 649; Mayor v. Shepherd, 3 Bax., 373; Dunn v. Railroad, 3 Bax., 415; Neely v. State, 4 Bax., 174; Henley v. State, 98 Tenn., 702-704. 2. Same. Constitutionality of statutes considered only when raised. This Court does not seek out constitutional defects in statutes, but indulges a strong presumption in favor of their constitutionality and validity. Such questions are not considered unless raised and presented, and hence the fact that the Court may have construed and enforced a statute, whose constitutionality had not been questioned, is not conclusive of its validity, and does not preclude inquiry as to its constitutionality when that question is properly raised. (Post, pp. 616, 617.)
101 Tenn. 620Gore v. Gore (1899)
FROM JACKSON. Appeal from Chancery Court of Jackson County. T. J. Fisher, Ch.
101 Tenn. 625George v. Belk (1899)
1. Vebdict. Power and duty of Court and jury to secure a laiuful verdict. The Court has the power, and it is his duty, when a jury offers to return an iniormal or insufficient verdict, to send them back to the jury room with directions to amend it and put it in proper form. And the jury may, at any time before their discharge, amend their verdict, under direction of the Court, so as to conform to the law. (Post, pp. 626, 627.) Cases cited: 133 Mass., 354; 15 Or., 300; 53 N. Í., 437; 84 Iowa, 50; 107 Pa. St., 348; 6 John., 6S; 7 John., 33; 33 Maine, 453; 38 Neb., 141. 3. Same. Case in judgment. The jury in a malicious prosecution case returned a verdict that plaintiff recover one dollar and that defendant pay all costs. The Court informed them that this verdict would not carry costs against defendant. The jury then retired and amended • their verdict and gave judgment for six dollars. The Court disregarded the last verdict and rendered judgment upon the first. Held: Error. Judgment should have been rendered on the amended verdict. (Post, pp. 626, 627.)
101 Tenn. 628Insurance Cos. v. Scales (1899)
FROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. John W. Childekss, J.
101 Tenn. 643Guthrie v. Indemnity Ass'n (1899)
PROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. J. W. Bonner, J.
101 Tenn. 656Wills v. Hurst (1899)
1. PRINCIPAL and Surety. Release of surety. Acceptance of the note of the principal obligor by an obligee, not in satisfaction, but as a mere memorandum of the amount due under the bond, does not release a surety. 2. Statute, op Limitations, On postmaster's bond. The limitation of three years, prescribed by Section 3838, Revised Statutes United States, for actions against sureties on the bond of a postmaster, has no application to actions against sureties on a bond given to the postmaster by his assistant.
101 Tenn. 659Lewis v. Nashville (1899)
Costs. Disallowed, -when. No fees for service of subpoenas for witnesses will be allowed,, either against the city or opposite party, in favor of a salaried policeman and law officer of the city, who has been appointed, deputy sheriff with authority to summon witnesses only oru behalf of the city in its litigation.
101 Tenn. 662Ragio v. Collins (1899)
FROM DAVIDSON. Appeal from Chancery Court of Davidson County. John W. Childress, Ch.
101 Tenn. 664Partee v. Goldberg (1899)
Chanceey Pleading and Pbactice. Dismissal of original bill does not discontinue cross bill. Complainant’s voluntary dismissal of the original bill, after cross bill, or answer as cross bill, has been filed, averring facts upon which specific and affirmative relief is claimed and may be granted, and after proof has been taken upon the issues presented by the original and cross bill, does not operate to discontinue or terminate proceedings under the cross bill. Code construed: $6133 (S.); $5066 (M. & V.); $4323 (T. & S.). Cases cited: Odom v. Owen, 2 Bax., 450; Nichol v. Nichol, 4 Bax., 158; Comfort v. McTeer, 7 Lea, 662; Croft <o. Johnson, 8 Bax., 394; Fisher v. Stovall, 85 Tenn., 316.
101 Tenn. 669State v. Oden (1899)
Costs. Motion for, does not lie against Clerk, when. Motion does not lie against the Clerk of a court on behalf a defendant in a criminal ease to recover costs alleg’ed to have been illegally collected by the Clerk, where the defendant voluntarily paid the costs and made no demand for their return until the Clerk had, pursuant to law, paid them into the public treasury.
101 Tenn. 673Mayfield v. State (1899)
1. Evidence. Of cause of death. The opinion of a medical expert is not essential, in a murder case, to prove that the death resulted from the wound inflicted by defendant, especially where it appears that deceased was in previous good health, and had proper medical treatment, and there is no suggestion of any other cause of death. That the death resulted from the wound may be shown by circumstances, and it is so shown in thisease. (Post, pp. 675, 676.) Case cited: Lemons v. State, 97 Tenn., —. 2. Same. Bes gestee. A statement of the deceased, made thirty minutes after the diffi- ' eulty, is not admissible, on behalf of defendant, as part of the res gestee. It is mere hearsay. (Post, p. 676.) 3. Judgment. In criminal case, void. A judgment, upon a verdict of guilty of voluntary manslaughter, fixing the term of defendant’s imprisonment at one year, is unwarranted and erroneous, the statute prescribing two years as the minimum punishment for this offense. (Post, pp. 676-679.) Cases cited: Wattingham v. State, 5 Sneed, 564; Murphy v. State' 7 Cold., 516; State v. Ragsdale, 10 Lea, 671.
101 Tenn. 680Harkreader v. Turnpike Co. (1899)
Taxation. Charter exemption of twmpike company. A turnpike company is exempt from ad valorem but not from privilege tax, under a clause in its charter providing tha-t “the property in said road, when completed, shall vest in said company and their successors, for the purpose of a highway, which shall be freé for all persons, on the terms and conditions herein prescribed, and the same shall not be liable for taxation. ” Case cited and approved: Railroad v. Harris, 99 Tenn., 696. Cited and distinguished: Memphis v. Bank, 9i Tenn., 556; Memphis v. Insurance Co., 6 Bax., 527. p ■
101 Tenn. 686Harper v. Turner (1899)
FROM RUTHERFORD. Appeal in error from Circuit Court of Rutherford County. W. C. Houston, J.
101 Tenn. 689Hullett v. Baker (1899)
PROM SUMNER. Appeal in error from Circuit Court of Sumner County. A. H. Munpord, J.
101 Tenn. 694State v. Dismukes (1899)
FROM SUMNER. Appeal in error from Circuit Court of Sumner County. A. H. Munford, J.
101 Tenn. 701In re Turner (1899)
EROM CHEATHAM. Appeal in error from Circuit Court of Cheatham County. W. L. Grigsby, J.
101 Tenn. 707Woodbury v. Brown (1899)
FROM CANNON. Appeal in error from Circuit Court of. Cannon County. Geo. S. Ramsey, Sp. J.
101 Tenn. 712Reeves v. Hager (1899)
1. Wills. Disinheriting an after horn ehild. A married woman’s will, that gives her entire estate to her husband, operates to disinherit her child horn after its execution, even if § 3925, Shannon’s Code, shall be held to apply to the will of a mother, a question not decided. (Post, pp. 715-717.) Code construed: § 3925 (S.); l 3033 CM. & V.); I 2193 (T. & S.). 2. Same: Innocent purchaser. That a married woman’s will gives her entire estate to her husband, to the exclusion of her infant children, is not a disposition of her property so unnatural as to put a purchaser of the property from the husband on his guard, and affect him with notice of an infirmity that would justify .the setting aside of the will and deprive him of the character of an innocent purchaser. (Post, p. 717.) 3. Same. Pu/rchaser may rety upon probate. ' A purchaser from a devisee, under a will that has been admitted to probate in common form, cannot be deprived of his character of innocent purchaser by reason of the unusual nature of the provisions of the will, so long as its probate is not assailed. (Post, p. 717.) Case cited and approved: Brown v. Brown, 14 Lea, 257. -4. Same. Collateral attach of judgment setting will aside. The averment in an answer, that the probate of the will under which defendant’s vendor acquired title to the property sued for had been set aside by a fraudulent and collusive contest between himself and the complainants, his children, is a collateral attack upon said proceedings that cannot be made without cross bill. (Post, p. 717.) Cases cited: Conway v. Brown, 5 Heis., 237; Griffiths. Association, 100 Tenn., 412. 5. Same. Equal equities of innocent purchaser and heirs. The equities are equal between an innocent purchaser from a devisee under a will probated in common form and heirs of the testator,' who, subsequently and before attaining their majority, contest and set aside the will. In such case the. purchaser must support his equity with a leg'al title or better right. (Post, pp. 717, 718.) Cases cited: High v. Batte, 10 Yer., 334; Smitheal v. Gray, 1 Hum., 491. 6. Same. Superiority of purchaser’s title over heir's rights. The purchaser who, in good faith, takes an absolute deed from a devisee and pays full price for the property, in ignorance of any infirmity in the will or of other defect of title, obtains a title superior to any right or claim of an infant heir, who, subsequently and before attaining his majority, enters a contest and has the probate in common form set aside and the will annulled. (Post, pp. 718-722.) 7. Same. Effect of probate in common form. The probate of a will is a proceeding in rem, and operates upon the subject-matter. Probate, even in common form, so long- as it remains in force, binds all parties, whether adults or minors, and is conclusive of testamentary character of instrument, testamentary capacity of testator, due execution of the will, and as to all questions of fraud, imposition, and undue influence affecting the work. (Post, pp, 718-720.) Cases cited: Williams, ex parte, 1 Lea, 529; Brown v. Brown, 14 Lea, 257; Rogers v. Winton, 2 Hum., 178; Franklin v. Franklin, 91 Tenn., 129; Trafford v. Young, 3 Tenn. Ch., 501.
101 Tenn. 723Prewitt v. Bunch (1899)
1. Husband and Wife. Husband’s right to wife’s property and effects. As a result of marriage the husband is entitled at once to the wife’s property in her possession, and to reduce her ehoses in action to possession, including her distributive share and her funds in the hands of her guardian, and make them his absolute property. (Post, pp. 734, 735.) Cases cited: Lane v. Parmer, 11 Lea, 568; Wade v. Cantrell, 1 Head, 345; Hollingsworthu Mith, 5 Sneed, 472; Cox ®. Scott, 9 Bax., 305; Alien®. Walt, 9 Heis., 242; Joiner®. Franklin, 12 Lea, 422; Handwerker ®. Diermeyer, 96 Tenn., 619; Rice v. McReynolds, 8 Lea, 36; Sanders®. Forgasson, 3 Bax., 249; Jones ®. Ward, 10 Yer., 168. 2. Same. Husband takes wife’s ehoses in action upon her death. The husband, upon death of the wife, takes, either as next of kin or ju/re mariti, the ehoses in action of the wife which were not reduced to possession in her lifetime. (Post, p. 736.) Cases cited: Hamriee ®. Laird, 10 Yer., 222; Tune ®. Cooper, 4 Sneed, 296. . 3. Same. Guardianship of wife ceases on her marriage. Upon marriage the guardianship of the wife ceases, and her husband becomes entitled to receive or recover her funds from her guardian, even during her minority. (Post, pp. 735, 736.) Cases cited: Jones ®. Ward, 10 Yer., 168; Lane ®. Farmer, 11 Lea, 568. 4. Same. Bights of, not changed by taking land in compromise of guardian’s liability, when. The joint suit of husband and wife against her guardian for her personal funds was compromised, and settled by the guardian’s conveyance of land to the wife. The husband assented to the compromise, but objected to the terms of the deed. Thereupon it was agreed and decreed that the deed should be accepted in full satisfaction of the guardian’s liability, but that it should not have the effect to exclude or in any manner affect the husband’s mai’ital rights, which, with the wife’s right to an equity in the property, were reserved for future determination. It was declared to be the purpose of the decree to preserve the legal and equitable rights of the husband and wife “as respects said land.” Seld: That the land conveyed to the wife, in satisfaction of her guardian’s liability, was to be treated precisely as a joint recovery of money would have been treated in fixing the rights of husband and wife therein. {Post, pp. 736-740.) 5. Same. Husband's right not defeated by ladies. In such ease the husband’s delay for a period of eight years, and until after the wife’s death, to assert, by suit, his rights to the property, will not repel him on the ground of laches, where it appears that his rights have not been satisfied or abandoned; that the evidence thereof is matter of record, and that the delay was for the promotion of family harmony. {Post, pp. 740-743.) i ’ , 6. Same. Descent cast does not defeat husband's rights. Nor does the husband’s delay, in such case, until descent cast upon the wife’s death operate to defeat his claim. {Post, pp. 743, 744.) . . 7. Same. Wife’s eqwitiy to settlement. The wife’s entire estate may be settled upon herself and children, but the application, which may be made in her behalf by any person, must be made in her lifetime and before re-, duction of her property to possession by the husband. (Post, , p. 744.) . • • Cases cited: Phillips h. Iiassel, 10 Hum., 197; Pillow v. Thomas, 1 Bax., 122; Dearin v. Fitzpatrick, Meigs, 559; MeCaleb v. Crichfield, 5 Heis., 288; Murphy v. Green, 2 Bax., 103. 8. Same. Same. The amount which a court of equity' will set apart for the benefit of a wife and her children out of her estate before its re- ■ duction to possession by the husband, will be limited over to her husband upon the contingency of her death without issue. ■ (Post, pp. 744-747.) ' ■ 9. Laches. Buie. In order that laches, inferable from long delay and its natural consequences of loss of evidence, etc., shall be effectual to defeat a suit, the circumstances must be such as to afford a reasonable presumption of the satisfaction or abandonment of the claim sued on. (Post, pp. 741, 742.) Cases cited: Bolton v. Dickens, 4 Lea, 577; Parker v. Bethel Hotel Co., 96 Tenn., 252; Lafferty v. Turley, 3 Sneed, 157; Hammond v. Hopkins, 3 Yer., 535; Coldwell V. Palmer, 6 Lea, 658. 10. Abandonment. Wliat oonstilmtes. To constitute an abandonment, or waiver, there must be a clear, unequivocal, and decisive act of the party showing a determination not to have the benefit in question, with a full knowledge of his rights in the premises. [Post, p. 742.) Cases cited: Gentry v. Gentry, 1 Sneed, 87; Traynor t). Johnson, 1 Head, 52; Masson v. Anderson, 3 Bax., 290.