102 Tenn.

Volume 102 — Tennessee Reports

59 opinions

102 Tenn. 1Fletcher v. Railroad (1899)
PROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. J. W. Bonner, J.
102 Tenn. 9Sharp v. State (1899)
1. Paedon. For contempt. The Governor has the right, in the lawful exercise of the pardoning power, to release judgment for*fine and imprisonment imposed for contempt of Court. (Post, pp. 10-15.) Constitution construed: Art. III., Sec. 6. Cases cited and approved: Garrett v. State (oral opinion); McCarthy v. State (oral opinion); 24 La. Ann., 119 (S. C., 13 Am. Rep., 115); 4 S. & M. (Miss.), 751; 7 Blateh., 23 (17 Fed. Cases, 969). 2. Same. 11 After conviction.” A judgment imposing fine and imprisonment for contempt is a “conviction” within the meaning of the constitutional provision authorizing the Governor to grant pardons and reprieves “after conviction.” (Post, p. 11.) Cases cited and approved: Sinnott v. State, 11 Lea, 281; Har-well u State, 10 Lea, 544; 20 Wall., 387; 6 Fed. Rep., 64.
102 Tenn. 16National Fertilizer Co. v. Travis (1899)
1. New Tbial. Setting aside thi/rd verdict. The Court is not precluded, from setting aside a third verdict where there was error in the Court’s charge on the second and third trials. {Post, %>%>. IS, 21, 22.) 2. Master and Servant. Servant sustaining dual ’relation to his fellotos. A servant may sustain toward his fellows the dual relation or character of vice principal as to some duties and of fellow-servant as to others. And, in an action claiming- damages for injury resulting from the act of such servant to his fellow or inferior servant, it is error for the Court to omit, especially if requested by a party, to charge fully and accurately as to the distinction, as regards the master's liability, between the official negligence of a vice principal and the individual negligence of a mere fellow servant. {Post, pp. 19-21.) Cases cited and approved: Gannr. Railroad, 101 Tenn., 380; Knox v. Railroad, 101 Tenn., 375; Electric R. Co. v. Lawson, 101 Tenn., 406. 3. Same. Pellow-servcmts. An engineer is thew fellow-servant of one who adjusts the belts when machinery is set in motion, when both act under prescribed rules, and especially where the latter controls the action of the engineer. The fact that the engineer may, in other matters, occupy the position of a vice principal does not affect the question. (Post, pp. 19-21.) Case cited and approved: 80 Ind., 526. 4. Same. Same. The facts being stated, the question of whether a person is a • fellow-servant or a superior is one of law for the Court. Hence, if upon plaintiff’s theory and contention he was no more than a fellow-servant, the Court should so instruct the jury and submit the ease upon the other issues. {Post, pp. 21, 22.) 5. Sajib. Same. The Court finds upon the evidence that the engineer was, in operating' the engine, a fellow-servant of another employe who adjusted the belts, but that he was vice principal to the same employe as regards the safety and repair of the signal appliance intended for the latter’s protection. {Post, p. 22.) 6. Same. Master’s liability for injury caused servant defined. To render a company liable for injury inflicted upon an employe by a fellow-servant, there must be shown (1) general ineompe-teney of the fellow-servant; (3) knowledge of such incompetency by the master and want of such knowledge in equal degree by the complaining servant; (3) some specific negligent act by the incompetent servant proximately causing- the injury. (Post, p. 24.) 7. Same. Inexperience not proof of ■im.competency, when. Mere inexperience in the performance of duties requiring no great amount of intelligence or skill is not. necessarily, evidence of ineompeteney. (Post, pp. 24, 25.)
102 Tenn. 29P'Pool v. Bank & Trust Co. (1899)
Power ojf Attorney. Revocation of. A power of attorney authorizing' a trustee to sell lands, majre deeds to the purchasers, and collect and distribirte proceeds after retaining commissions, cannot he revoked by the makers, after a sale has been made, so as to prevent the execution of deed and perfecting of the purchaser’s title, especially where the power of attorney purports, on its face, to he irrevocable, and some of its makers approve the sale and desire its consummation.
102 Tenn. 33Foster v. State (1899)
1. Verdict. Of murder in second degree not sustained by the facts. The Court finds, upon the facts set out in the opinion, that a verdict for murder in the second degree is not sustained against a son for fatally shooting his father's assailant. (Post, pp. 34-36.) . 3. Evidence. Of facts attending previous difficulty admissible in homicide oases. On the trial of a son for killing his father’s assailant, it is competent to prove, on behalf of the defendant, not only that defendant had seen a previous difficulty between his father and the deceased, but also the particular facts of the transaction — • especially the menacing language and conduct of the deceased toward the father on the occasion. (Post, pp. 36-3S.) 3. Self-defense. Son’s right to defend his father. If a son honestly believes, on reasonable grounds, that his father, who is himself fighting in self-defense, is in danger of death or great bodily harm, from an assault being made upon him by an antagonist of superior strength, it is his legal right, as well as his filial duty, to interfere and prevent the killing or maiming of his father, and he is, in such ease, justified in the use of such means as are necessary, under all the circumstances, tyo effect this end. (Post, p. 38.) 4. Same. Evidence. And, in such case, previous acts of hostility, and demonstrations, if any, made by the deceased toward the father, and coming to the knowledge of the son, are competent as tending-to show whether the son had reasonable grounds to believe that the deceased was making a deadly assault upon the father. (Post, p. 38.)
102 Tenn. 40Precious Blood Society v. Elsythe (1899)
1. Rescission. Of deed for fraud. Rescission of a deed for fraud will not he decreed unless the complaining' party disaffirmed the deed promptly on discovery of the fraud and ever thereafter consistently adhered to that line of action. (Post, pp. 43, 44.) Cases cited and approved: Knuckolls v. Lea, 10 Hum., 576; Ruohs,, v. Bank, 94 Tenn., 73; Woodfolk v. Marley, 98 Tenn., 467. 2. Same. Same. Example. Hence, a vendee’s claim to rescission for fraud will be denied, where, after acquiring full knowledge of all the facts constituting the fraud, he elected to retain the premises and lease them to a third party for a term of three years, making the claim to rescission for the first time in defense of a suit for the purchase price. IPost, pp. 41-43.) 3. Coepobations. Misnomer in deed. Misnomer of corporation as vendor in a deed — e. g., “Precious Blood Society” for the true name, “Female Society of the Precious Blood ” — does not avoid the deed, if the identity of the corporation is unmistakable, either from the face of the instrument or from averment and proof. (Post, pp. 44-46.) Cases cited and approved: ION. J. Law, 323; 13 Johns., 38; 5 Ark., 234; 19 Ala., 659. 4. Same. Objection of misnomer not amaildtile. The objection of misnomer made by the defendant in a suit brought by the corporation to enforce a vendor’s lien, is unavailing when interposed for the first time in the Court of Chancery Appeals, and it appears unmistakably what corporation was intended and that the name objected to was the one used in the deed and notes and in the pleadings of both parties. (Post, pp. 44-46.) 5. Same. Deed of, valid without corporate, seal. The deed of a corporation organized for purely charitable purposes is valid without the affixing thereto of a corporate s'eal, especially when it does not appear that the corporation has a seal. (Post, p. 46.) 6. Same. Same. The deed of a corporation is sufficient, without affixing its corporate seal, to pass an equitable but not a legal estate. (Post, p. 46.) Cases cited and approved: Garrett u Belmont Land Co., 94 Tenn., 460; Brinkly u Bethel, 9 Heis., 786.
102 Tenn. 47Weaver v. Smith (1899)
1. Judgment Lien. Strictly construed. Judgment liens are the creatures of statute and strictly construed. They are lost if the statutory provisions are not strictly complied with. (Post, p. 61.) Cases cited and approved: Chapron v. Cassady, 3 Hum., 660; Bridges v. Cooper, 98 Tenn., 394. 2. Same. Lost when. The judgment lien upon a debtor’s equitable realty, created by registration of memorandum of judg-ment, to be followed by suit within sixty days thereafter, is lost unless the suit to enforce it is brought within thirty days after the return mtlla bona, of the orig-inal execution legally issued thereon. It will not suffice to bring such suit within thirty days after return of an alias execution mtlla bona, if more than thirty days have elapsed after return of the original execution. (Post, pp. 60-63.) Code construed: §§4712, 4713, 4732-34 (S.); §§3698, 3699, 3718-20 (M. & V.); §§2984, 2985, 3002-3004 (T. & S.) Cases cited and approved: Biddle v. Motley, 1 Lea, 468. 3. Same. Execution properly issued, when. The Court always indulg-es the presumption that an execution was legally and reg-ularly issued, when nothing appears to the contrary. (Post, p. 59.) Cases cited and approved: Esselmanu. Wells, 8 Hum., 487; Miller u O’Bannon, 4 Lea, 401. 4. Same. Same. An execution is legally and regularly issued, so as to require proceedings against the debtor’s equitable realty to be commenced within thirty days after its return nulla bona, where it was issued during- the term at which the judgment was rendered hut thirty days after its rendition. (Post, pp. 63, 64.) Code construed: <52 4730-34 (S.); §2 3718-3720 (M. & V.); §§ 3002-30056 (T. & S.).
102 Tenn. 66Trust Co. v. Weaver (1899)
1. Exeoutioit. Issued after debtor’s death. Under an execution issued after, but tested before, the debtor’s death, personalty belonging- to his estate may be levied on and sold. (Post, p. 68.) Code construed: § 4731 (S.); § 3717 (M. & V.); 3001 (T. & S.). Cases cited and approved: Preston v. Surgoine, Peck, 80; Black v. Bank, 4 Hum., 368; Harvey v. Berry, 1 Bax., 352. 3. Same. Leviable on stock, of corporations. The stock in all domestic private corporations, whether organized under the Code provisions or under' other valid statutes, is, under our statutes and decisions changing the common law, personal property and subject to levy of execution. (Post, pp. 68-73.) Code construed: l 2066 (S.); § 1714 (M. & V.); § 1487 (T. & S.). Acts construed: Acts 1875, Ch. 140; Acts 1889, Ch. 267. Cases cited and approved: Memphis, etc., Pub. Co. v. Pike, 9 Heis., 702; Young v. Iron Co., 85 Tenn., 194. 3. Same. Same. Under the Code provision subjecting stock in all private corporations to levy of execution, whether formed under the Code or created theretofore or thereafter “by special law,” the term “special law” is not to be understood, in its application to corporations formed since the Constitution of 1870, in the sense forbidden by that Constitution, but as embracing all laws outside of the Code, of a general character, enacted for the creation of private corporations. (Post, pp. 69-73.) Code construed: § 2066 (S.); §1714 (M. & V.); §1487 (T. & S.). Cases, cited and approved: Memphis, etc., Pub. Co. v. Pike, 9 Heis., 702; Young v. Iron Co., 85 Tenn., 194. 4. DemuRRee. Bad, when. A demurrer is bad, as a speaking demurrer, which seeks dismissal of an administrator’s bill enjoining the sale under execution levy of corporate stock held by his intestate as ‘1 trustee ” or “ treasurer, ” upon the assumption, not justified by the aver-ments of the bill, that said words are to be rejected as surplus-age, and the stocks treated as the intestate’s individual property. (Post, pp. 73, 74.) 5. Same. Same. A demurrer is bad to an administrator’s bill enjoining sale under execution levy of corporate stock belonging to his intestate’s estate, where there is an averment that the intestate’s title is involved in such doubt as may cause sacrifice if sale is made before the title is cleared up. (Post, pp. 74, 75.) 6. Judicial Knowled&e. Not taken, when. In passing upon a demurrer to an administrator’s bill enjoining sale under execution levy of corporate stock belonging to his intestate, the Court will not take judicial notice that the corporation whose stock is involved is a foreign corporation that has not been domesticated, in order to raise the question as to the 'liability of stock of a foreign corporation to levy under execution. (Post, pp. 74, 75.) 7. INJUNCTION. Of execution sale, does not lie, when. An administrator cannot enjoin the sale, under a lawful execution levy, .of a valuable painting belonging to his intestate’s estate, upon the ground that there is no local market for the same, and that, to prevent sacrifice, it should be sold in a foreign market. (Post, pp. 75, 76.)
102 Tenn. 77Fox v. Fox (1899)
FROM MARSHALL. Appeal from Chancery Court of Marshall County. W. S. BeardeN, Ch.
102 Tenn. 95Jones v. Nixon (1899)
1. Bill Quia Timet. To -prevent aloud on title. A vendor who has conveyed a perfect title with full covenants of warranty and placed his vendees in possession, can maintain a bill qxtia timet to prevent and enjoin the clouding’ of that title by confirmation of a sale of the property to a third party, made in a chancery cause to which neither he nor his vendees, nor other person having title thereto, were parties. (Post, pp. 96-102.) 2. Same. Same. Bills quia timet lie to prevent, as well as to remove, clouds on title, and the same principles are applied in both classes of cases. [Post, pp. 97-99.) Cases cited and approved: Merriman v. Polk, 5 Heis., 717; 5 Paige, 492; 63 N. Y., 489; 130 Mass., 16; 2 Cal., 588; 72 Ill., 606; 5 Ohio, 178. 3. Same. Entertained where challenged claim is void. Bills quiet timet to prevent or remove clouds on title are entertained by Courts of Equity alike, whether the instrument or proceeding complained of is or is not void at law, and whether it be void from matter appearing on its face or from proof taken in the cause. (Post, pp. 99, 100.) Cases cited and approved: Jones v. Perry, 10 Yer., 59, 83; Al- . mony v. Hicks, 3 Head, 41; Porter u. Jones, 6 Cold., 318; 1 Johns. Ch., 517. 4. Same. Maintainable by party without title or possession, ivhen. Although a vendor has parted with both title and possession of property, he has, nevertheless, such interest, by reason of the obligation under his warranty to protect the title of his vendee, as enables him to maintain a bill quia timet to prevent or remove cloud on title. (Post, pp. 100-102.) Cases cited and approved: Coal Creek, etc., Co. v. Ross, 12 Lea, 1; 26 Wis , 91; 12 Minn., 376; 3 Fed. Rep., 86. Cases cited and distinguished: Wilcox v. Blackwell, 99 Tenn., 352; King v. Coleman, 98 Tenn., 570; 110 O'. S., 25; 121 U. S., 556; 18 How., 265; 155 O. S., 414; 129 Mass., 377; 54 Wis., 114.
102 Tenn. 103Breyer v. State (1899)
1. Barbering on Sunday. Declared a misdemeanor. The Legislature has power to prohibit barbering- on Sunday and to declare the same a misdemeanor and punish-it as such. (Post, pp. 104-106.) Cases cited and approved: Linek». Nashville, 12 Lea, 499; Parker v. State, 16 Lea, 476; Davis v. State, 3 Lea, 377; Luerhmanu Tax. Dist., 2 Lea, 438; Railroad v. Hicks, 9 Bax., 442; Memphis v. Memphis Water Works, 5 Heis., 495; Hope1». Deadrick, 8 Hum., 5 9; Bell v. Bank, Peck, 269; Henley v. State, 98 Tenn., 665; 163 U. S., 299; 41 L. R. A., 854; 140 Pa., 89 (S. C., 11 L. R. A., 563); 45 Ark., 347; 149 N. Y., 195 (S. C., 31 L. R. A., 6§9); 22 L. R. A., 721. Cited and distinguished: State v. Lorry, 7 Bax., 96. 2. Same. Statute prohibiting not class legislation. A statute denouncing barbering on Sunday as a misdemeanor and imposing a heavier penalty upon that misdemeanor than is imposed by the general law upon other violations of the Sabbath is not unconstitutional as vicious class legislation. The classification, in such ease, is not arbitrary and unnatural, and the statute is the law of the land. (Post, pp. 105-110.) Constitution construed: Art. I., Sec. 8. Act construed: Acts 1891, Ch. 114. Cases cited and approved: Vanzant v. Waddell, 2 Yer., 270; Strat-ton Claimants v. Morris Claimants, 89 Tenn., 522; Demoville v. Davidson County, 87 Tenn., 218; Henley». State, 98 Tenn., 698; Railroad v. Harris, 99 Tenn., 704. Note. — The authorities on the constitutionality of Sunday laws are collected in a note to Judejind v. State (Md.)> 22 L. R. A., 721.
102 Tenn. 111Ryan v. Terminal Co. (1899)
1. Railroad TERMINAL Company. Right of eminent domain. A railroad, terminal corporation, chartered and organized “to facilitate the public convenience and the safety of the transmission of railroad passengers and freight, and to prevent unnecessary expense, inconvenience, and loss to the public,” and authorized, for this purpose, to acquire all necessary real estate, and to lay all necessary tracks and erect all necessary buildings, is charg'ed with a public use, and may be authorized by statute to condemn such private property as is absolutely necessary to enable it to accomplish the purposes of its organization. (Post, pp. 113-126.) Act construed: Acts 1893, Ch. 11. Cases cited and approved: Railroad v. Cowardin, 11 Hum., 348; Railroad v. Tel. Co., 101 Tenn., 62; 163 U. S., 391: 49 Mo., 165; 47 N. Y., 150; 53 Cal., 223; 4 Ohio St., 308; 43 N. J. L., 381; 136 Mass., 75; 53 Ala., 211. Cited and distinguished: Harding v. Goodlett, 3 Yer., 40; Clack v. White, 2 Swan, 540; Memphis Freight Co. v. Memphis, 4 Cold., 419. 2. Eminent Domain. Right of exercise, hern determined. The declaration of the Legislature that a use is public is persuasive, but not conclusive, with the Courts. The legislative declaration in favor of the exercise of eminent domain in aid of a use that is public, is conclusive. (Post, pp. 116, 117.) Cases cited and approved: Anderson v. Turbeville, 6 Cold., 161; 21 W. Va., 534. 3. Public Use. What is. The term “public use ” is a flexible one, and not easily susceptible of exact definition. It varies and expands with the growing needs of a more complex social order. In general, a public use may be predicated of anything which will satisfy a reasonable public demahd for public facilities for travel or transmission of intelligence or commodities, and of which the general public, under reasonable regulations, will have a definite and fixed use, independent of the will of the party in whom title is vested. But the mere fact that an enterprise will result in some convenience to the public — conferring incidental benefits upon the public by affording additional facilities for trade or manufacture — will not make the character of the use public. (Post, pp. 118-122.) 4. Same. Same. Example. That the charter of a railroad terminal company fixes no rates to be charged for the use of its property does not stamp it as a private enterprise. “ The corporation and its property being affected by a public use will be under governmental control, and the Legislature may at any time fix rates and make more specific the duties clearly implied from the Act of incorporation.” (Post, pp. 124, 125.) Cases cited and approved: 94 CJ. S., 113; 143 U. S., 517; 153 U. S., 391. 5. Same. Same. An enterprise is not degraded from its public character by the fact that the parties instituting it had private profit primarily in view. (Post, p. 125.) 6. Constitutional Law. BaiVroad terminal Act. A statute authorizing the chartering- of railroad terminal corporations, stamping them with a public use, and giving them power of eminent domain, if enacted under a sufficient title for these purposes, is not rendered unconstitutional by reason of an incidental provision that such companies might maintain hotels, restaurants, and news stands in their passenger stations for the public convenience. (Post, pp. 125, 126.) Act construed: Acts 1893, Ch. 11. 7. Same. Same. Title and subject of Act. A statute which, under the title “An Act to amend an Act, entitled an Act to provide for the organization of railroad terminal corporations, and to define the powers, duties, and liabilities thereof,” enacts, inter alia, that railroad companies contracting for use of the facilities of terminal companies, shall have power to own stock and bonds of such terminal companies, and to guarantee their bonds and other contracts, is not unconstitutional as grouping foreign or incongruous matters um.er its title. (Post, pp. 126-130.) Constitution construed: Art. II., Sec. 17. Act construed: Acts 1893, Ch. 11. Cases cited: Cannon v. Mathes, 8 Heis., 504; Luehrman v. Tax. Dist., 2 Lea, 426; Merrill v. Fickle, 3 Lea, 79; Frazier v. Railroad, 88 Tenn., 156; Ex parte Griffin, 88 Tenn., 550; Cole Mfg. Co. v. Falls, 90 Tenn., 469; State v. Yardley, 95 Tenn., 554; Ra-gio v. State, 86 Tenn., 272; Bank v. Devine Grocery Co., 98 Tenn., 603.
102 Tenn. 131McKinney v. Nashville (1899)
1. Measutie of Damages. For property taken for piChlic use. In estimating the value oí property taken for a public use, the fair market value is the one to be ascertained. In ascertaining this value, all the capabilities of the property and all the legitimate uses of which it is susceptible should be taken into consideration. The particular use for which the property is most valuable or to which it is at the time adapted and applied, though proper matters for consideration, is not controlling as to this value. (Post, pp. 132-138.) Cases cited and approved: Woodfolk v. Railroad, 3'Swan, 437; Alloway v. Nashville, 88 Tenn., 510; 58 Mo., 491. 3. Same. Same. If, in a proceeding to condemn property for public use, it is shown that its rental value has been inflated by an unlawful use of the property — e. g., for gaming purposes — the jury should be instructed to discard rental value, to the extent of the inflation, as evidence of value of the property. (Post, pp. 138-140.)
102 Tenn. 141Fitts v. State (1899)
1. Cbihinal Practice. Effect of void verdict. A verdict fixing a punishment in excess of the maximum prescribed by statute, and for that reason set aside as a nullity, cannot be successfully interposed to prevent another trial and further prosecution of the case. {Post, pp. 142, 143.) Cases cited and approved: Rag'sdale u State, 10 Lea, 671; Murphy v. State, 7 Cold., 516. 2. Evidence. Of defendant’s statements after homicide admissible, when. Declarations by defendant twenty or thirty minutes after the homicide, warning the witness not to go to his store, at which was located a telephone, affording the only method of communicating with the county seat, informing him that he must be careful what he testified to, and deriding the wife and daughter of deceased, who came along crying and moaning, are admissible against him, as tending to show an effort to suppress evidence, intimidate a witness, and to cut off communication with the county seat, and also for the purpose of showing malice. (Post, pp. 146, 147.)
102 Tenn. 148Moore v. Moore (1899)
1. Evidence. Of mairiage. No presumption of marriage arises from conduct otherwise affording plenary proof of marriage, when one of the parties is shown to have been obligated at the time by a prior legal and subsisting marriage. (Post, pp. 150-154.) Cases cited: Allen v. McCullough, 2 Heis., 185; 48 Md.,.391. 2. Husband and Wife. Divorce for illegal second marriage. . The provisions of Shannon's Code, § 4201. subsec. 2, that if either party has knowingly entered into a second marriage in violation of a previous marriage still subsisting, “this shall be a sufficient cause for divorce from the bonds of matrimony, ” are intended for the relief of one who has innocently entered into an apparent second marriage rather than for the protection of the other spouse of the existing marriage, since the latter is adequately protected by subsec. 3, making' adultery a ground of divorce. (Post, pp. 154-158.) Code construed: §4201, subsecs. 2, 3 (S.); § 3306, subsecs. 2. 3 (M. & V.); § 2448, subsees. 2, 3 (T. & S.)., Cases cited and approved: 5 Ohio St., 32. Cited and disapproved: 15 Pa., 597. 3. Same. Adulterer denied divorce. A husband cannot obtain a divorce on the ground of adultery where the record convicts him of a violation of his own marriage vows. (Post, p. 158.) Code construed: §4213 (S.); §3318 (M. & V.); § 2460 (T. & S.).
102 Tenn. 157Brien v. Robinson (1899)
1.County Coubt. Has jurisdiction to remove trustees. County Court has jurisdiction to remove trustees appointed by deed or will. (Post, pp. 166-167.) Code construed: '£ 5414 (S.); $ 4393 (M. & V.); g 3647 (T. & S.). 2.Code. Bitles of construction. The presumption that the Code was not intended to change but only to compile the old statutes, which prevails in cases of doubtful construction, has no application or force where the Code provision is new, and its meaning’ perfectly plain and unambiguous. (Post, p. 167.) Cases cited and approved: Bates u Sullivan, 3 Head, 633; Tennessee Hospital v. Fuqua, 1 Lea, 611; State v. McConnell, 3 Lea, 338; State v. Runnels, 92 Tenn., 323; Trust Co. v. Weaver, ante, p. 66. 3.Deed. Ineffectual to create a remainder, when. The general rule for the construction of deeds and wills undertaking to create remainders is this: If the first taker is given an estate in fee or for life, coupled with an unlimited power of disposition, the fee or absolute estate vests in him, and the limitation over is void. If the power is dependent upon a'contingency, or is definitely qualified, the estate of the first taker is limited to life, and the remainder over takes effect. In •order to constitute a valid remainder or executory devise, the first taker must not be given power to defeat and extinguish it, by sale or otherwise, at his will' and pleasure. (Post, pp'. 168, 169.) Case cited and approved: Bradley v. Carnes, 94 Tenn., 27. 4. Same. Same. Example. A deed gives an absolute estate to the wife and nothing- to the grantor’s children, which conveys land to a trustee, in terms for the use of the wife for life with remainder to the children, but directs the trustee to permit her to occupy and cultivate it or rent it out, and use the usufruct or rents for any purpose she, may choose, and authorizes her to give any of the property she may choose to the children, to be charged as an advancement, and further makes it the duty of the trustee, upon her written request duly witnessed, to convey the property and place its proceeds at her disposal, to be reinvested or used by her at her discretion. (Post, pp. 160, 161, 168-170.) Cases cited and distinguished: Headrick v. Armour, 10- Hum., 588; Bridgewater v. Gordon, 2 Sneed, 5; MeClung v. McMillan, 1 Heis., 655. 5. Tbustee. Authority construed as direcUon. A trustee has no discretion, but must execute conveyance when requested under a deed authorizing him to convey upon the written request of the beneficiary and to place the proceeds of the sale at the latter’s disposal. (Post, pp. 171, 172.) 6. Same. Parties to removal proceedings. Though named as remaindermen in the deed, the grantor’s children are not necessary parties to a proceeding for the removal of .a trustee appointed by the deed, where it is construed as giving the absolute estate to his wife and nothing to his children. (Post, p. 172.) 7. Res Adjupicata. Against ancestor, binds heir. An adjudication against the ancestor is conclusive upon the heir. (Post, pp. 173, 174.) 8. Sheriff’s Deed. Void, when. A Sheriff’s deed is void which is based upon a levy and sale in bulk of two adjoining town lots, divided by a fence, and bearing distinct numbers, and occupied by separate houses and tenants. (Post, pp. 174-176.) 9. Same. Same. A Sheriff’s deed will not be enforced in equity under which the execution creditor acquires, through a" levy and sale made at his special instance and direction, $3,000 to $4,000 worth of his debtor’s property, under a judgment for only $750. {Post, pp. 175, 176.)
102 Tenn. 178Weakley v. Page (1899)
1. Nuisance. Jurisdiction to enjoin. A Court of Equity has jurisdiction to enjoin the owner of property from keeping or permitting a house of ill fame to he kept therein, at the suit of owners of adjacent or contiguous properties adapted and used for business and residence purposes, where, by reason of the boisterous and vulgar conversation and the public, immoral, and indecent conduct and exposure of person of the inmates of the house and their visitors, it has become a nuisance to the entire neighborhood, and has seriously affected and impaired the value and rental productiveness of the complainant’s property. (Post, pp. 191-206.) Cases cited and approved: Brew v. Van Deman, 6 Heis., 433; Lassiter u Garrett, 4 Bax., 368; 11 Md., 138.' 3. Same. Same. The jurisdiction of Courts of Equity to enjoin and abate nuisances is not affected by the statute giving the power to Courts of Law to abate a nuisance where the fact of nuisance is found in a civil action. (Post. p. 192.) 3. Same. Same. A Court of Equity will enjoin and abate a nuisance, without a. judgment at law establishing its existence, where the fact of nuisance is made manifest by certain and reliable proof, and the resulting injury is of a character that cannot be compensated adequately by damages. (Post, pp. 192, 193.) Cases cited and approved: Vaughn v. Law, 1 Plum., 134; Clack v. White, 2 Swan, 540; Phillips v. Stoeket, 1 Tenn., 200; Wall v. Cloud, 3 Hum., 182; Kirkman v. Handy, 11 Hum., 407; Naff v. Martin, 2 Shan., 451; Caldwell v. Knott, 10 Yer., 210. 4. Sam®. Same. That a nuisance is the subject of criminal prosecution does not deprive the Court of the power to enjoin and abate it at the suit of a citizen who has suffered special injury from it. (Post, pp. 195, 196.) Cases cited: 27 N. H., 503; 63 N. H., 12; 28 Kan., 726; 65 Iowa, 488; 149 Mass., 550 (S. C., 5 L. K. A., 193); 1 Dev. Eq.,'l2; 10 Ill., 351; 26 Iowa, 377; 87 Ill., 450. 5. Sam®. Same. The Court will not enjoin and abate a public nuisance unless the complainant avers and proves some injury special and peculiar to himself which 'is not shared by the general public. (Post, p. 194.) Cases cited: 14 Conn., 565; 2 C. E. Green, 75; 3 Neb., 179; 2 Beas., 68. 6. Same. Same. If otherwise entitled to an injunction against a nuisance, the complainant will not be repelled because he does not himself occupy the property involved. (Post, pp. 203, 204.) 7. Same. Same. Both residence and business properties will be protected by injunction against nuisances specially affecting their values, but relief will be granted more readily in favor of residence than of business properties. (Post, pp. 204-206.)
102 Tenn. 207Persica v. Maydwell (1899)
1. Daítolokd and Tenant. Wife becomes tenant, when. The wife becomes tenant, and liable for the rent of a storehouse in which her hrtsband had conducted a mercantile business, where, after expiration of the husband’s lease of the house, she purchased his business and continued to occupy the house on her own account, and made some payments on the rent. 2. Coverture. Not available as a plea, when. Since the enactment of Ch. 82, Acts 1897, a married woman cannot successfully plead her coverture to defeat judgment for a debt contracted by her in the conduct of a mercantile or manufacturing- business — e. g., a debt for the rent of a storehouse iu which to carry on a mercantile business. Act construed: Acts 1897, Cli. 83.
102 Tenn. 211Cooper v. Overton (1899)
1. Negligence. Droivning of boy in ■pond. A pond on an unfenced city lot, not being dangerously near a street, the premises of adjoining lot owner, nor possessing any other peculiar features attractive to children than a plank or small raft floating on its surface, and formed, only occasionally, by surface water dammed up by the obstruction of a natural drain by the city authorities, without the agency or knowledge of the owner, who was ignorant of the existence of the pond, although his ag-ents inspected the premises with suffi- . cient frequency, does not constitute negligence, although the pond is situated near numerously attended schools and within a few blocks of a thickly populated district of the city, that will render the owner liable for thé drowning of a ten-year-old boy while playing with the plank or raft on the pond. (Post, pp. 212-240.) 2. Same. Liability of owner of dangerous premises to trespassers defined. The liability of the owner of dangerous premises to trespassers does not exist even in the case of children, unless they are induced to enter on the land by something unusual and attractive placed on it by the owner, or with his knowledge permitted to remain thereon. (Post, p. 237.) 3. Evidence. Opinions. Opinions of witnesses as to what attracts children to water, or as to whether or not boys like to ride on a plank in the water, are not admissible. (Post, pp. 239, 240.)
102 Tenn. 241Marley v. Foster (1899)
1. Title to Land. Not proved, when. The complainant fails to show title to land that supports a bill to remove a cloud and recover for timber taken therefrom, by proof of a tax sale that would have given his ancestor a superior title but for the fact that it was never perfected by deed, and by proof of a subsequent deed from the original owner to his ancestor, made upon conditions never complied with and withholden from registration for over twenty years, neither the complainant nor his ancestor ever having been in possession of the land or paid taxes thereon. (Post, pp. 242-244.) 2. Tax Title. Invalid, tohen. A tax deed is insufficient to support ejectment where it does not recite that the land was “duly reported” as required by the statute under which the tax sale was made. (Post, pp. 246, 247.) Act construed: Acts 1844, Ch. 92. Case cited and approved: Hightower v. Freedle, 5 Sneed, 312.
102 Tenn. 248Russell v. Farrell (1899)
1. Evidence. Practice of admitting incompetent reprobated. The practice of permitting incompetent testimony, in this instance an alleged newspaper interview, without authentication, under a promise of subsequently ruling it out if it is not made competent, is of doubtful propriety at best, and should be permitted only in exceptional cases for expediting trials, when the probability is great of supplying evidence of competency. (Post, pp. 252, 253.) Case cited and approved: Dawson v. Holt, 11 Lea, 583. 2. Libel. Defendant's post litem statement not admissible, when. A publication made by defendant concerning the plaintiff, pending an action for libel, is inadmissible when it is neither a confession or explanation of the libel sued on nor an admission of malicious intent in writing and publishing it. (Post, pp. 251-253.) Case cited and approved: Saunders v. Baxter, 6 Heis., 369. 3. Same. Erroneous charge as to justification. In an action of libel, where there is no plea of justification, and no effort made to prove the truth of the libelous language, it is reversible error for the Court to charge that proof of the truth of the language used was a complete defense and that the burden was upon the defendant to make such proof. (Post, pp. 253, 254.) Cases cited and approved: Railroad u Collins, 85 Tenn., 227; Railroad v. Lee, 90 Tenn., 570; Railroad v. Pugh, 95 Tenn., 419.
102 Tenn. 255Knights of Honor v. Dickson (1899)
1. Evidence. Not hearsay, when. It is a well established proposition that when the question is whether a party acted prudently, wisely, or in g-ood faith, the information on which he acted, whether true or false, is original and material evidence. (Post, pp. 258, 259.) 2. Same. Introduction of. Time and manner of introduction of evidence are matters within the discretion of the trial Judge. (Post, pp. 258, 259.) 3. Witness. Interest. The interest of a witness goes to the credibility of his testimony and not to its competency or admissibility. (Post, p. 259.) 4. Life Instjeance. Effect of misrepresentations. Under a life policy conditioned upon the truth of the assured’s answers and representations contained in his application and in the report of the medical examiner, the policy will be vitiated alike by any misstatement of fact, whether made willfully and with knowledge of the falsity or in good faith through ignorance of the truth, but as to matters of opinion, it is sufficient if the statement was made in good faith and on the best information had or obtainable. (Post, pp. 259-263.) Cases cited: Insurance Co. v. Lauderdale, 94 Tenn., 640; K. of P. v. Rosenfeld, 93 Tena., 510; K. of P. v. Cogbill, 99 Tenn., 38; Boyd v. Insurance Co., 90 Tenn., 313; 16 Wash., 155 (S. C., 58 Am. St. Rep., 38); 119 Ind. (S. C., 13 Am. St. Rep., 393, note).
102 Tenn. 264Royal Ins. Co. v. Vanderbilt Ins. Co. (1899)
. 1. Fuíb IiTsuiiAsroE. Contract limitation does not apply, when. □ A printed stipulation in a policy of reinsurance, drawn up on the printed form ordinarily used for property insurance, limiting' the time for commencement of. a suit on the policy to twelve months next after the loss, is not a part of the policy where there is attached a written slip stating that the insurance provided is a pro rata part of each and every item insured by the policy of the reinsured company. (Post, pp. 265-272.) Cases cited: 145 Mass., 419; 153 Mass., 63; 99 N. Y., 124. 2. Same. Contract limitation begins to run, when. The loss contemplated by a printed provision of a policy of reinsurance drawn up on the ordinary blank used for property insurance, limiting the time for the commencement of an action upon the policy to twelve months after loss, does not accrue, if the provision applies at all to such policy, until the reinsured company has paid the loss under the original policy issued by it. (Post, pp. 270, 271.) 3. Same. Policy, how construed. The Conflicting or doubtful provisions of an insurance policy are construed most strongly against the company issuing the policy. (Post, pp. 269, 270.) Cases cited: 95 U. S., 678; 111 ü. S., 341; 127 U. S., 666.
102 Tenn. 274Memphis v. Waite (1899)
1. Deed. Construed Toy Cowrt. The question whether the calls of a deed extend to, or stop short of, a river is one of law for the Court, and should not he left to the jury. (Post, p. 277.) 2. Limitations, Statute of. Not applicable, when. The statutory requirement that suit must he brought hy the owner within twelve months, where private property is taken possession of for some work of internal improvement, has no application to an action against a city for its use and occupation of certain property as a dumping ground, without any intention of acquiring the property for permanent public use. (Post, pp. 278, 279.) Code construed: $1867 (S.); §1572 (M. & V.); §1348 (T. & S.). 3. Action. Joint, by co-tenants maintainable, when. The several owners of lots composing a block may join in an action to recover compensation for the use and occupation from a third person who has occupied the whole block. [Post, p. 279.) 4. License. Not implied, when. A city cannot escape liability for the use and occupation of premises for a dumping ground, at least for the period subsequent to the commencement of a suit against it for the previous use and occupation of the land, upon the ground that the use of the land by the city, without objection from the plaintiff, created an implied gratuitous license from him. (Post, pp. 279, 280.) Case cited: Loague v. Memphis, 7 Lea, 67.
102 Tenn. 282Scatchard v. Barge (1899)
Recoupment. Must he specially pleaded. Matter in recoupment, as well as set-off, must be specially pleaded, and cannot be proved under the general issue. •Code construed: l 4639 (S.); I 3638 (M. & V.); 3918 (T. & S.). Cases cited: Hogg v. Cardwell, 4 Sneed, 151; Waterbary Russell, 8 Bax., 159; Parker v. Steed, 1 Lea, 306; Gibson v. Carlin, 13 Lea, 440; Porter v. Woods, 3 Hum., 56; Sample v. Looney, 1 Overton, 87.
102 Tenn. 289Railroad v. Delaney (1899)
1. Libel. Words'not actionable per se. A statement in a recommendation of a former employe that, “like many others, he left onr service during the strike,” is not libelous or actionable per se, so as to constitute a cause of action without special damag’es. (Post, p. 295.) Cases cited and approved: Bowdre v. Bank, 92 Tenn., 723; Pry v. McCord Bros., 95 Tenn., 679; 91 U. S., 227. 2. Same. Publication. The delivery of a letter of recommendation for a former employe to a person who, by his authority, requested it, is not a publishing of any libel contained in it.' (Post, p. 294.) Cases cited: Sylvis v. Miller, 96 Tenn., 94; 24 Atl. Rep., 244. 3. Same. Insufficient averment of special damages. An averment of special damages in a libel case is insufficient in these words, to wit: “That plaintiff has been greatly injured in bis business; he has been unable to obtain employment; he has been- deprived of the right to follow the vocation of his choice, to his great damage, $10,000.” (Post, pp. 295-297.) Cases cited: Pry v. McCord Bros., 95 Tenn., 678; 91 U. S., 225.
102 Tenn. 298Railroad v. Craig (1899)
1. Common Carrier. Limiting common law liabiMty. The common law liability of a carrier is not affected by the issuing and delivery to the shipper of a bill of lading limiting the carrier’s liability after the shipment has commenced. (Post, pp. 300, 301.) 3. Same. Same. A common carrier may, by stipulation in its bill of lading, limit its common law liability for loss or damage of freight not caused by its own negligence, but it cannot do so unless it gives the shipper, at the time, the opportunity to elect, upon just and reasonable terms, between the limited and the full liability of the carrier. (Post, pp. 301, 302.) Cases cited: Railroad v. Gilbert, 88 Tenn., 430; Railroad v. Manchester Mills, 88 Tenn., 653; Railroad v. Sowell, 90 Tenn., 17; • 57 Ark., 113 (S. C., 18 L. R. A., 537); 39 Ga., 117 (S. C., 99 Am. Dec., 474).
102 Tenn. 303Dornan Bros. v. Benham Furniture Co. (1899)
1. Replevin. Judgment in, not impeached, when. A judgment for defendant in replevin, allowing him interest upon the value of the property seized during detention, cannot he impeached by a motion to quash an execution issued thereon; but, if it could, the impeachment would be vain, as such judgment conforms strictly to the law. (Post, pp. 304, 305.) Code construed: § 5144 (S.); §4126 (M. & V.); § 3390 (T. & S.). 3. Same. Execution quashed. Where a judgment for the defendant in replevin is in the alternative for thp return of the g-oods seized, or their value in a sum specified, an execution issued thereon against the plaintiff’s property for the valu'e of the goods, without providing for satisfaction by return of the property, is fatally variant from the judgment, and will be quashed on motion. (Post, pp. 305, 306.) Case cited and distinguished: Epperson v. Van Pelt, 9 Bax., 75.
102 Tenn. 307Thane v. Douglass (1899)
1. Demurrer to Evidence. Rule stated. The demurrer to evidence admits not only the truth of all the evidence adduced, hut also admits all the inferences that may he logically and reasonably drawn from the evidence. (Post,, pp. 30S, 309.) Case cited and approved: Hopkins v. Railroad, 96 Tenn., 409. 2. Negligence. In handling nonaivay horse. Neg-ligence in connection with the running- away of a horse may he inferred, in the absence of explanatory circumstances, from the fact that it was the third time that the horse had run away. (Post, pp. 311, 312.) Cases cited: Young v. Bransford, 12 Lea, 232; 13 Minn., 522; 21 Ami Law. Reg., 522.
102 Tenn. 313Telephone & Telegraph Co. v. Shaw (1899)
1. CHARGE or Court. Refusal to give special requests. Refusal to give requested instructions to the jury will not be reviewed by this Court where the request was made before, and not renewed after, the general charge was delivered. (Post, pp. 314, 315.) 2. Damages. Punitive allowed, when. Punitive damages for trespass by a telephone and telegraph company in cutting a tree may be recovered where the owner on the same day of and before the trespass warned the company’s employes not to cut any trees on his premises, and they cut the tree in his absence and over the protest of his wife. (Post, pp. 316-319.) Cases cited and approved: Tel. Co. v. Hunt, 16 Lea, 456; Tel. Co, v. Poston, 94 Tenn., 696. 3. Same. Same. General rule. Punitive damag'es are allowed where fraud, malice, gross negligence, or oppression intervenes. It is not essential that these facts shall appear .by direct proof, but they may be inferred by the jury from the facts of the transaction. (Post, p. 319.) Cases cited and approved: Cox v. Crumly, 5 Lea, 529; Railroad v. Garrett, 8 Lea, 439; Railroad v. Gaines, 13 Lea, 103; Johnson v. Perry, 2 Hum., 569; Bryan v. McGuire, 3 Head, 530. 4. Evidence. Of pecuniary ability admissible, when. When there is any g-round or reason for punitive damages, the pecuniary ability of the wrcmgdoer may be given in evidence. (Post, pp. 317, 318.) Cases cited and approved: Lush v. Fitzhugh, 3 Lea, 307; Railroad v. Gaines, 11 Lea, 103.
102 Tenn. 320Street Railway Co. v. Dan (1899)
1. Street Railroad. Duty of motorman. In an action against a street railway company for negligently crushing and killing a child with one of its ears, an instruction which states, in substance, that it is the duty of a motorman to keep a vigilant lookout for children bn the street, and upon the first appearance of danger, or probable collision with any one of them, to stop his car in the shortest time and space possible, is not subject to the criticism that it makes no allowance for a sudden emergency, where it is apparent from the context that the Judge simply meant that the motorman must do all in his power under the emergencies then surrounding-him to save the child. (Post, pp. 321-325.) 2. Charge oe Court. As to sympathy of jury. A statement of the trial Judge, in his charge to the jury in an action for the negligent killing of a child, that it was natural for them to have, their sympathies aroused in behalf of the suffering, while not altogether proper, is.not cause for reversal, althoug-h he did not state in that immediate connection that they must not allow their sympathies to enter into the consideration of the case, when he was not asked to so charge, -but did in fact so charge in another connection. (Post, pp. 326, 327.)
102 Tenn. 328Turnage v. Kenton (1899)
1. Bouwdaby. Galls. A call to run with a creek controls a call for course; where the line has not been marked. (Post, pp. 332, 333.) Cases cited and aproved: Blount v. Medlin, 2 Tenn., 199; Hebart v. Scott, 95 Tenn., 467; Massengill v. Boyles, 4 Hum., 206. 2. Limitations, Statute of. Adverse possession under eolor of title. Adverse possession for the requisite period of seven years, within the boundaries of a deed describing the land as a single tract, operates to perfect title in the possessor to the entire tract, notwithstanding the lands had been originally granted by the State to different persons and in several tracts. (Post, pp. 333, 334.) Code construed: § 4456 (S.); § 3459 (M. & V.); § 2763 (T. & S.) Cases cited and approved: Brown v. Johnson, 1 Hum., 261; Ramsey v. Monroe, 3 Sneed, 329; Nelson v. Trigg, 4 Lea, 706.
102 Tenn. 336Memphis v. American Express Co. (1899)
1. Taxation. Repeal of power of rmmicipality to tax a privilege. A provision in a general revenue law imposing on a business or occupation — e. g., express companies — a specific privilege tax for State purposes, to be paid to the Comptroller ‘ ‘ in lieu of all other taxes except ad valorem tax, ” has the effect to exempt such business or occupation from taxation as a privilege by municipal corporations, and to repeal any existing provision by statute or ordinance imposing such tax on behalf of the municipality. (Post, pp. 339-341.) Acts construed: Acts 1897, Ch. 2, Sec. 6; Acts 1879, Ch. 84, Sec. 7; Acts 1893, Ch. 84, Secs. 4, 5. Cases cited: Hunter v. Memphis, 93 Tenn., 573; Memphis v. Bing, 94 Tenn., 645; Railroad v. Harris, 99 Tenn., 685; Reelfoot Lake, etc., Dist. <o. Dawson, 97 Tenn., 151. 2. Statutes. Repeal. The general and usual clause repealing all laws in conflict with the particular statute has no effect whatever. ■ (Post, p. 341.) Constitution construed: Art. II., Sec. 17. Act construed: Acts 1897, Ch. 2. Case cited: Staten. Yardley, 95 Tenn., 548. 3. Same. Same. Under the title “An Act to provide revenue for the State of Tennessee and the counties thereof,” it is competent for the Legislature to enact that privilegie taxes on certain occupations shall be laid for State purposes only, and thereby repeal, by implication, existing laws or ordinances imposing privilege taxes on the same occupations for municipal purposes. (Post, pp. 341, 342.) Constitution construed: Art. II., Sec. 17. Act construed: Acts 1897, Ch. 2. Case cited and approved: State v. Yardley, 95 Tenn., 553. Cited and distinguished: Knoxville v. Lewis, 12 Lea, 180; Burke v. Memphis, 94 Tenn., 692. 4. Same. Same. A statute purporting to he, and manifestly intended as, a revenue measure will not he treated as an exercise of police power to rescue it from implied repeal by a general revenue Act, even if it does incidentally accomplish the ends of a police measure. (Post. p. 343.) 5. Express Company. Taxation of their wagons. An express company that pays a privilege tax on its business as a unit will not be held liable, in the absence of a clearly expressed legislative intent to impose further burden, for a tax on vehicles imposed by another clause of the same statute. (Post, pp. 343, 344.) Case cited: Bell v. Watson, 3 Lea, 328.
102 Tenn. 345McCarthy v. Catholic Knights (1899)
1. Chancery Pbactice. Amendment of answer. The Court’s refusal to permit amendment of answer at the hearing constitutes no abuse of discretion where it would necessitate a continuance, and the matter of the amendment had long been within defendant’s knowledge, and no reason is assigned why it had not been presented earlier. (Post, pp. 349, 350.) 2. Life Insurance. Applicant’s statement as to age. The statement as to the applicant’s true age, made in an application for membership in a frateral insurance order, which declares that the statement and representations made therein shall be the basis of the contract, is a part of the contract of insurance, although the same is not incorporated or referred to in the policy or certificate issued to the applicant. (Post, pp. 350, 351.) 3. Same. Same. A misstatement as to the applicant’s age in an application for membership in a fraternal insurance order, which is made a part of the contract of insurance, will not defeat a recovery under the policy, notwithstanding- that, contrary to the statement, she had passed the age limit prescribed by the constitution of the order, where she did not know her exact age, the application was made out on one of the association’s blanks, and presumably by some of its officers or members, the date and place of her birth were not filled in the blanks, and the' facts as to her character and age were, under the provisions of the constitution, referred to a committee, upon whose report the certificate was issued upon which dues were paid for nearly seven years. (Post, pp. 350-357.) Cases cited and approved: Insurance Co. v. Booker, 9 Heis., 628; Boyd v. Insurance Co., 90 Tenn., 212; Insurance Co. v. Morris, 3 Lea, 101.
102 Tenn. 358Bedford v. McDonald (1899)
1. PARTNERSHIP. . Creditors'lien upon firm assets. The creditors of a firm cannot, after the members thereof have divided the assets among themselves, waiving or failing to assert any lien they have as partners, set up and enforce such lien, even if the firm was insolvent, unless the division was a fraud upon them. {Post, pp. 360-365.) Cases cited and approved: Gin Co. v. Bannon, 85 Tenn., 712; House®. Thompson, 3 Head, 512; Gill v. Latimore, 9 Lea, 381. 2. Same. Pv/rdhaser of firm assets from partner not innocent, when. One who, with knowledge that a firm had dissolved and was insolvent, accepted in payment of an antecedent debt a transfer from one of the partners of a note which originally belonged to the firm, but which had been allotted to the transferer in a division of the firm assets, cannot claim to be an innocent purchaser without notice entitled to protection against the firm creditors, if the division of the assets between the partners was fraudulent, although his debt was a bona fide one. {Post, pp. 365, 366.) Case cited and approved: Allen v. Bank, 6 Lea, 558. 3. Same. Firm creditor not estopped to claAm pa/rtnership asset, when. A firm creditor will not be estopped to follow a note originally belonging to the firm in the hands of a transferee from one of the partners, after a fraudulent division of the assets by the partners, or to assert that a judgment recovered thereon should be applied to the firm debts, merely because he appeared for the maker of the note, who was his nephew, in the action by the transferee thereon, and did not challenge the latter’s ownership until judgment had been recovered and had been secured by a stayor, where it does not appear that any concessions were granted by the plaintiff in that action in order to quiet his title to the note, or that anything was said on the trial as to the true ownership of the note and no cost or expense was incurred on account of anything done or said by such creditor. (Post, pip. 366, 367.) Cases cited and distinguished: Barham v. Turbeville, 1 Swan, 439; Fields v. Carney, 4 Bax., 137; Galbraith v. Lunsford, 87 Tenn., 104. 4. INJUNCTION. Effect and extent of. An injunction prohibiting one from receiving any of the proceeds of sale under execution upon a judgment recovered by him, does not prevent him from bidding at the sale as any third person might, but, instead of crediting his judgment or applying it in payment, he will be required to pay the amount bid into Court and await further orders before any credit can be given. (Post, p. 368.) 5. Judgment. Stay or's obligation. The stayor of a judgment obtained by a fraudulent assignee of the debt is liable thereon to the assignor’s creditors who successfully impeach the transfer of the claim. (Post, p. 368.) 6. Execution. Sale under, invalid, when. Sale of land under execution will be set aside at the suit of the plaintiff in the judgment, where it was made under circumstances that virtually prevented him from bidding on it, and a bid made by a third party failed to satisfy the judgment. (Post, p. 369.)
102 Tenn. 370Polk v. Williams (1899)
Estoppel. Exists, when. A person, who, by accepting- an order of indefinite amount and giving assurance that at least $100 would be realized thereon, induced the payee to dismiss his suit against the maker, is estopped to deny liability to the payee for at least one hundred dollars. Cases cited and approved: Merriwether v. Larmon, 3 Sneed, 447; Spears v. Walker, 1 Head, 166; Phillips v. Hollister, 2 Cold., 277; Bankhead v. Alloway, 6 Cold., 75; Ruffin v. Johnson, 5 Heis., 609.
102 Tenn. 375Slack v. Suddoth (1899)
Good Will. Not subject of forced sale or transfer, when. No forced sale or transfer can be made of a good will, such as that of a partnership of dentists, in a suit to wind up the partnership, when it is based upon professional reputation and standing or upon business connections, although it might be the subject of a voluntary sale. Case cited: Bank v. Bank, 7 Lea, 420.
102 Tenn. 383Fitzgerald v. Standish (1899)
1. Wills. Surviving executrix may execute power of sale. Under a will devising the widow a life estate and authorizing her and her co-exeeutor, as such, to sell lands, “if, in their judgment, they think it hest, ” the widow may, as surviving executrix, in pursuance of such power, sell the lands to pay debts of the estate and make a valid, fee simple title. (Post, pp. 384-393.) 3. Same. Survival of powers. The general rule is, that powers coupled with a trust, or coupled with an interest in the estate, survive, hut mere naked powers do not survive. (Post, pp. 388-390.) Cases cited and approved: Robinson v. Gaines, 2 Hum., 367; Williams v. Otey, 8 Hum., 563. 3. Same. Discrettona/ry powers. The rule and policy that forbid deleg-ation or survival of discretionary powers, the execution of which rests upon personal trust and confidence, do not apply to discretionary powers conferred upon executors in their representative capacity. (Post, pp. 391, 392.) Cases cited and approved: Deadrick v. Cantrell, 10 Yer., 263; Armstrong u Park, 9 Hum., 195; Belote v. White, 2 Head, 703; Murdock v. Leath, 10 Heis., 176. 4. Innocent Poechasee. Rightful execution of powers presumed in favor of. Where it is doubtful whether a power has been exercised legally or illegally, in favor of innocent purchasers and meritorious claimants, the leg-al execution will be presumed. (Post, %>. 393.) 'Cases cited and approved: Marshall v. Stephens, 8 Hum., 159; Wilburn v. Spofiiord, 4 Sneed, 699.
102 Tenn. 395Shelby County v. Bickford (1899)
PROM SHELBY. Appeal from the Chancery Court of Shelby County. Sterling PiersoN, „Ch.
102 Tenn. 409Burke v. Street Railway Co. (1899)
1. Evidence. Burden of showing contributory negligence on defendant. Plaintiff in an action for personal injuries is not bound to prove affirmatively that he was free from contributory negligence, but where his contributory fault does not appear upon his testimony, the burden of proof to establish it rests upon the defendant. (Post, pp. 410-412.) Case cited and approved: Stewart v. Nashville, 96 Tenn., 50. 2. Charge of Coubt. Erroneous as to use of street crossings. An instruction in an action for personal injuries sustained by one who was struck by a horse and wagon as he was crossing a street, which, in effect, states that whatever may have been the surroundings at the time and place of the accident, the defendant could drive across the crossing at any rate of speed he chose to do and yet presume that the plaintiff would see the way he (the defendant) was using the street and not get in his way, is erroneous. (Post, pp. 412-414.)
102 Tenn. 415Meacham v. Galloway (1899)
1. Hotels. Proprietor’s liability for boarder’s goods. The proprietor of a hotel is not liable for the loss, by theft or otherwise, of the baggage and goods of a boarder, unless it is shown that the loss resulted from the wrongful or negligent act of himself or servants. Case cited and approved: Pullman Palace Car Co. v. Gavin, 93 Tenn., 53. 2. Same. Boarder not guest. A person is a boarder, not a guest, who, for the purpose of entertaining a yisitor, removes, with his family, from his home to a hotel in the same city, and takes rooms in the quarters allotted to regular boarders, for himself, family, and visitors for two or three weeks, at a special rate, less than that charged transient customers. Case cited and approved: Manning v. Wells, 9 Hum., 746,
102 Tenn. 426Viley v. Lockwood (1899)
Lien. Of Ivverymcm. A liveryman waives his lien on a horse by refusing- to deliver it to the owner until he pays, in addition to the "bill for feeding, an unwarranted claim for the training of the horse by a third person.
102 Tenn. 428Robinson v. Bierce (1899)
1. Covenants. When ’breached. Covenants of seizin, and against incumbrances, are breached and action lies at once if an incumbrance exists against the land at date of the deed; but a covenant of warranty is not breached, so that action lies, until actual eviction. (Post, pp. 431, 432.) Cases cited and approved: Barnett v. Clark, 5 Sneed, 436; Kin-caid v. Britton, 5 Sneed, 133; Austin v. Richards, 7 Heis., 665; Crutcher v. Stump, 5 Hay., 100; Allison v. Allison,'1 Yer., 16; ITerriss v. Harshea, M. & Y., 48; Kenney v. Norton, 10 Heis., 388; Austin v. McKinney, 5 Lea, 499; Collis v. Cogbill, 9 Lea, 137; Stipe v. Stipe, 3 Head, 168; Greenlaw v. Williams, 3 Lea, 533; Williams v. Burg, 9 Lea, 455. 3. Same. Burden of proof in action on. If a covenantee pays off an incumbrance without submitting to suit and making defense, or affording his covenantor opportunity to defend against it, the burden is upon him, in a suit to recover of the covenantor the amount thus paid, to show that the incumbrance was a valid and subsisting one at the time of payment. ■ (Post, pp. 432, 433.) 3. Limitations, Statute oe. Action to same right from ban'. An action to enforce a lien subject to statutory bar, must, in order to arrest the running of the statute of limitations and keep the lien alive, not only be brought in time, but must be prosecuted, after commencement, with such reasonable diligence as will save a Us pendens lien from loss by laches. (Post, pp. 433-438.) Cases cited: Mamau. Roberts, 11 Lea, 57; Williamsonv. Williams, 11 Lea, 355; Anderson v. Tolbot, 1 Heis., 407; Zook v. Smith, 6 Bax., 313. 4. Same. Tax Men lost, when. The lien for taxes is lost and ceases to.be an incumbrance upon the property, within the meaning of the covenants of a warranty deed conveying’ it, where an action to enforce the lien, brought in due time, was permitted to slumber in the Court for eleven years without the taking of a single step therein. (Post, pp. 433-438.) Acts construed: Acts 1885, Ch. 24.
102 Tenn. 439Schilling v. Darmody (1899)
1. Husband and Wife. Intermarriage extingvAshes pre-existing debt. The intermarriage of a man with a woman to whom he has loaned money, evidenced by a note and secured by a trust deed of her real estate, extinguishes the debt and also the mort-g-age, as a matter of law. (Post, pp. 440-Í48.) Cases cited: 'Joiner v. Franklin, 13 Lea, 423; Cox v. Scott, 9 Bax., 305; Bennett u Bead, 4 Heis., 440; MeCampbell v. McCampbelb 2 Lea, 661; Castellar v. Simmons, 1 Tenn. Cas., 65. 2. Mobtgages and Deeds of Trust. Title revests wi mortgagor on satisfaction of secured, debt. On payment or ■ satisfaction of a debt secured by mortgage, the title to the property therein conveyed revests in the mortgagor without a reconveyance. (Post, pp. 448, 449.') Cases cited and approved: Hannum v. Wallace, 4 Hum., 143; • Boss v. Young, 5 Sneed, 627; Carter v. Taylor, 3 Head, 30. 3. Same. Heir not required to petty off, when. ■ The .heir of a woman who gave a note an d trust deed .upon land to secure an indebtedness to one to whom she was afterwards married is not required, under the equitable maxim, ‘ ‘ He who seeks equity must do equity, ” when he seeks the removal of a trust deed as a cloud upon the title to the lands, to pay the amount of the debt which the deed was executed to secure. (Post, p. 449.) 4. Supreme Court. Will not remand, for proof, when. The appellate Court may not remand a cause without a final disposition thereof on the merits, on the ground that full proof of the facts and circumstances were not made and to enable the making of such proof in the Court below, when the case does not fall under Shannon’s Code, 4905, because the applicant has had full opportunity to establish such facts if they existed, and the failure to do so must be imputed to inability or negligence upon the trial in the lower Court. . (Post, pp-449, 450.) Code construed: §4905 (S.); §-(M. & V.); §-(T. & S.).
102 Tenn. 451Carroll v. Taylor (1899)
Chancery Practice. Cross bill disposed of in admanee of original-bill. The Chancellor, upon discovering-, on a hearing of the whole-case, that the original cause is unprepared for a decree, and that the auxiliary case made by the cross complainant is pre pared and of such a nature as to admit of full determination without affecting the original cause, may dispose of the latter and hold the former open for further adjudication. Case cited: Cocke v. Trotter, 10 Yer., 313.
102 Tenn. 455Laughlin v. Johnson (1899)
1. Descent and Distribution. Inheritance by illegitimates. At common law illegitimates had no inheritable blood, but this has been changed by statute in this State. (Post, p. 456.) 2. Same. Same. Under Acts 1866-67, Oh. 36, Sec. 10 (Shannon’s Code, § 4169), providing for inheritance from the mother by illegitimates, equally with legitimate children, and that, “ should either of such children die intestate, without child, his or her brothers and sisters shall, in like manner, take his or her estate,” illegitimate children share equally with legitimate children the estate of a legitimate child who dies leaving no child, without regard to the source from whence the property came, whether from the mother or elsewhere. (Post, pp. 456-461.) Act construed: Acts 1866-67, Ch. 36, Sec. 10. Code construed: l 4169 (S.); l 3274 (M. & V.); g 2423a (T. & S.). Cases cited: Riley u Byrd, 3 Head, 19; Woodward v. Duncan, 1 Cold., 562; Scoggins <u. Barnes, 8 Bax., 560; Murphy v. Por-trum, 95 Tenn., 605; Shepherd v. Carlin, 99 Tenn., 64.
102 Tenn. 462Carpenter v. Frazier (1899)
1. Corporation s. Registration of facsimile of great seal. It is a substantial and sufficient compliance with the requirement that the facsimile of the great seal of the State appearing on a charter of incorporation shall be registered along with the other portions of the charter, as a condition precedent to its validity, if the Register, at the proper place on the record, makes a scroll or other similar device, manifestly intended as a facsimile of the great seal, however inartistically it may be executed. (Post, pp. 464, 465.) Code construed: § 2026 (S.); $ 1693 (M. & V.). Case cited and distinguished: State v. Brewer, 7 Lea, 682. 2. Building and Loan Associations. Amoumt due on mortgage. The method announced in Rogers v. Hargo, 92 Tenn., 35, for ascertaining amount due on mortgage of a building and loan association is reaffirmed. (Post, p. 466.) Cases cited and approved: Rogers v. Hargo, 92 Tenn., 35; Carpenter v. Richardson (oral).
102 Tenn. 467Memphis City Bank v. Smith (1899)
1. Mortgages and Deeds oe Trust. Application of proceeds. Under a trust deed that directs application of the proceeds of the trust property (1) to expenses, (2) to debts due bank A as its president may direct, (3) to debts due bank B as its president may direct, and further provides that the trust is created for “the exclusive protection and indemnity of said banks against loss on account of indebtedness ” to them of the maker of said trust deed, and further authorizes said banks to exhaust all personal and • collateral securities held by them, respectively, before making application of the proceeds of the trust — under such deed the president of bank A, although he is likewise the president of bank B, and the two institutions are owned and operated by the same parties, has no authority to divert any part of the proceeds of the trust to payment of debts due bank B xxntil all debts of bank A are fully paid, at least so far as sureties thereon are concerned. (Post, pp. 468-472.) 2. Same. Same. Nor, under such trust deed, has the president of said banks, or the president of either of them', any authority to divert a collateral owned jointly by the maker of the deed and another, and deposited to secure their joint note, to the payment of an unsecured debt of the maker of the deed. (Post, p. 472.) 3. Ustjby. Allowed under answer. Under his answer to a bill seeking to recover a note against him, a surety may have reference to ascertain any credit for usxxry paid by his principal upon the notes sued on and upon notes out of which they originated as renewals. (Post, pp. 472, 473.)
102 Tenn. 474Street Railroad Co. v. Howard (1899)
1. Supreme Court. Will not set verdict aside, when. This Court will not set aside a verdict for plaintiff for want of evidence to support it, when the plaintiff’s testimony on the trial makes out a case, although it is impeached by his statement on a former trial that did not make out his case. The question presented was one of credibility of the witness, not of sufficiency of evidence, and therefore peculiarly a matter for the jury. (Post, pp. 476, 477.) 2. Evidence. Bes gestee. The statement of a street car motorman, “ that he saw plaintiff and thought he would get off the track,” made fifteen minutes after the collision that resulted in plaintiff's injury, at the place of the collision, but after plaintiff had been extricated from the car wheels and his wounds washed, is not admissible as part of the res gestee. (Post, pp. 477, 483.) Cases cited and approved: Denton v. State, 1 Swan, 278: Diwid-die v. Railroad, 9 Lea, 309; 144 Mass., 148; 51 JST. Y., 295; 53 Mich., 322; 74 Mo., 553; 119 U. S., 09; 45 Kan., 503. 3. Street Railway Companies. Bights to use of track. The rule that at crossings a street railway company has, in the operation of its cars, no preferential right of way over vehicles and pedestrians, has no application to the operation of its cars over that portion of its track between crossings, where, under the law, it ha,s a superior, though not exclusive, right of way. (Post, pp. 483-485.) Case cited and approved: Citizens’ Rapid Transit Co. v. Segrist, 96 Tenn., 123.
102 Tenn. 486A. Landreth Co. v. Schevenel (1899)
1. FRAUD. Does not vitiate contract or settlement, when. Fraud in procuring the settlement and compromise of the claims of a wholesale merchant against a retail merchant cannot be predicated of the latter’s failure to keep his promise to contihue the business and his relation with the former, although he did not intend to keep the promise when he made it, as it relates to a matter in the future, and, besides, the benefit from the continuance of the business is uncertain and purely speculative. (Post, pp. 488-491.) Cases cited: Farrar v. Bridges, 3 Hum., 565; 81 Fed. Rep., 64; 15 C. B., 207. 2. Rescission. Statu quo. To authorize the rescission of a contract or settlement for fraud, the parties must be put in stat/u, quo. (Post, p. 492.) 3. Same. Promptness required. A party seeking to repudiate a contract for fraud of the other party, must do so at onee upon learning of the facts constituting the fraud. (Post, pp. 492, 493.) Cases cited and approved: Woodfolk v. Marleyv98 Tenn., 467; 93 D. S., 62; 48 S. W. R., 729; 83 N. Y., 300. 4. Fraudulent Conveyance. Debts must be shown. Complainant must prove debts due him in order to justify the setting aside of an alleged fraudulent conveyance of his debtor at his instance. (Pos^t, pp. 492, 493.) Case cited: 17 Wall., 521.
102 Tenn. 495Boyd v. Hunt (1899)
1. Easemeitt. Alley. Failure to use an alley, in order to amount to an abandonment of an easement therein, must be accompanied by some act of the owner of the dominant estate clearly indicating- his purpose to set up no further claim, and such intent cannot be inferred from the mere fact, in connection with long nonuse, that the owner of the servient estate excavated under and projected his buildings above the alley, erected at its entrance a gate, which, however, was not inconsistent with the enjoyment of the easement, and may have been attributed by the owner of the easement to a desire to keep out the public. (Post, pp. 496-508.) 2. Same. Created Toy stipulation in deed. A stipulation in a deed, that the lot conveyed shall adjoin an alley, to be carved out of the grantor’s adjoining property, and to be perpetually kept open for the common use, imposes a servitude upon the land thus set apart as an alley, and in this land the grantee has the dominant, and the grantor the servi-ent, estate. (Post, pp. 496-498.) • Cases cited: Crutchfield u Car Works, 8 Bax., 242; Brew v. Van Deman, 6 Heis., 433. 3. Same. Passes by transfer of dominant estate. And such easement passes by conveyance of the lot to which it is thus annexed. (Post, pp. 498, 499.) 4. Same. Nonuser. Mere nonuser, however long continued, affords no sufficient evidence of abandonment of an easement created by express grant. The failure to use must be accompanied by some act of the owner of the dominant estate, clearly indicating his - purpose to set up no further claims, in order to work abandon- . ment. (Post, pp. 499, 500.) Cases cited and approved: Railroad v. French, 100 Tenn., 209; 83 Ky., 628; 110 Ill., 264; 49 N. Y., 348; 82 Pa. St., 208; 47 N. J. Eq., 421 (S. C., 10 L. R. A.. 276); 38 N. J. Eq., 20; 11 Gray, 423; 140 Mass., 205; 112 Mass., 224; IS L. R. A., 535. Cited and distinguished: Monaghan v. Memphis Fair Co., 95 ■ Tenn., 108.
102 Tenn. 509McCully v. State (1899)
1. Judges. Benioval of, by concurrent resolution. The removal of a Judge by concurrent vote of the two houses of the General Assembly, as authorized by Art. VI., Sec. 6, of the Constitution, cannot be justified or sustained where the resolution of removal negatives the existence of any cause of removal personal to the Judge or affecting the administration of his office, and recites as the sole cause for his removal a superfluity of Judges, and the necessity to reduce their number and judicial expenses to subserve the public welfare. The removal contemplated by the provision is for “cause” affecting the official personally or the administration of his office, to be effected after notice and trial. (Post, pp. 512-531.) Constitution construed: Art. VI., See. 6. Acts construed: Acts 1899, Chs. 64, 155. Cases cited: Hawkins v. Kercheval, 10 Lea, 535; 72 N. Y., 449; 39 N. J. L., 14; 1 Burr, 517; 57 Mo. App., 203. 2. Coubts. Abolition of circuits cmd chancery divisions. It is the law of this State, established by repeated adjudications, that the Legislature has the constitutional power to abolish a circuit or chancery division and reassign the counties composing it, and thereby deprive the incumbent Judge or Chancellor of his official character and powers, and of his right to draw a salary from the State. (Post, pp. 531-575.) Constitution construed: Article VI., Secs. 1, 4, 7. Act construed: Acts 1899, Ohs. 64, 155. Cases cited and approved: State, ex rel., v. Campbell, 3 Shan., 335; Halsey v. Gaines, 2 Lea, 316; State v. McConnell, 3 Lea, 332; State v. Algood, 87 Tenn., 163; 30 L. R. A., 153; 30 Ark., 566; 72 Iowa, 401. Cited and distinguished: State v. Leonard, 86 Tenn., 485; Keys v. Mason, 3 Sneed, 6; Cross and Mercer, ex parte, 16 Lea, 489; Powers v. Hurst, 2 Hum., 24; Pope v. Phifer, 3 Heis., 682; State v. Cummings, 98 Tenn., 667; State u Glenn, 7 Heis., 472; Normant v. Smith, 5 Yer., 270; Venable v. Curd, 2 Head, 586; Brewer v. Davis, 9 Hum., 208; Staten. McKee,'8 Lea, 24. 3. Constitutional Law. Use of journal in construing Constitution. While the proceedings of a Constitutional Convention may be properly looked to, and are of value in ascertaining the mischief designed to be remedied and the purpose sought to be accomplished by a particular provision, still, if the meaning of the language used is clear, it must be assumed that the Constitution was adopted by the people in its obvious sense, and not as having some other secret or abstruse meaning, deducible alone from the proceedings of the Convention. (Post, pp. 518-521.) Case cited and approved: State v. Wilson, 12 Lea, 259. 4. Same. Store decisis in construction of. The rule of stare decisis applies with peculiar force in the construction of Constitutions. “A principal share of the benefit expected from written Constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion.” (Post, p. 533.) 5. Same. Legislative authority. The Constitution invests the General Assembly with legislative authority in general terms, and it is a well-settled rule of construction that a State Legislature, in its sphere of legislative action, has unlimited power, except so far as restrained by the Constitution of the State or the Dnited States. (Post, pp. 549, 550.) Case cited and approved: Henley v. State, 98 Tenn., 665. 6. Same. Constitutional provision violated by a statute must be pointed out. It is a familiar rule that a statute will not be annulled as in conflict with the Constitution unless its assailant can put his finger on the specific provision of the Constitution that the statute expressly, or by unavoidable implication, contravenes. (Post, pp. 550, 551.) Case cited and approved: Henley v. State, 98 Tenn., 665. 7. Same. Statute not declared unconstitutional, when. The wisdom, policy, and desirability of statutes are matters addressed to the intelligence, patriotism, and discretion of the General Assembly. Hence a statute will not be annulled as unconstitutional because it may be supposed to violate-the best policy, or some natural equity, or to interfere with the rights of freemen, or upon the idea that it is opposed to some spirit of the Constitution not expressed in its words, or because it may be supposed to be contrary to the genius of a free people. (Post, %>■ 551.) Case cited and approved: Iienley v. State, 98 Tenn., 665.
102 Tenn. 700Railroad v. Neely (1899)
1. New Tbial. Refusal of, error, when. That there are some substantial facts to support it does not justify a trial Judge in refusing to set aside a verdict with which he is not satisfied on the facts. Case cited and approved: Railroad u. Brown, 96 Tenn., 559. 2. Same. Rule of Supreme Court. The rule thalj a verdict will not be disturbed upon the facts, if there is any evidence to support it, is one that prevails in this Court, but not in the lower Courts. Cases cited and approved: Tate v. Gray, 4 Sneed, 592; England u Burt, 4 Hum., 400; Nailing u Nailing, 2 Sneed, 631; Vaulxu. Herman, 8 Lea, 683; Turner u. Turner, 85 Tenn., 389; Railroad . v. Roddy, 85 Tenn., 403.
102 Tenn. 704Railroad v. Tiernan (1899)
1. Railroads. Fencing track. The fences along a railroad right of way, to meet the requirements of the statute on that subject, must be up to the standard at all points, including those at which gates are maintained. (Post, p. 706.) Act construed: Acts 1891, Ch. 101. Cases cited and approved: Polk n. Lane, 4 Yer., 36; Smith v. Jones, 95 Tenn., 342. Cited and distinguished: Railroad u Hughes, 94 Tenn., 450. 2. Same. Same. The mere erection by a railroad company of a fence, which • originally conforms to the standard fixed by the statute on that subject, does not afford it perpetual immunity from liability for stock killed on the track, but to continue its immunity the company is bound to exercise ordinary care to keep the fence, including the gates, in good repair and closed at all points. (Post, p. 707.) Act construed: Acts 1891, Ch. 101. 3. Same. LiabiMty for MlUng stock. Since the passage of the railroad “ fencing Act ” of 1891, it is not essential, in order to exonerate it from liability for the killing of live stock on a lawfully fenced track, that a railroad company shall show, in addition to the fencing of its track, that it has complied with all the requirements for the prevention of accidents on unfenced tracks. (Post, pp. 707, 708.) Act construed: Acts 1891, Ch. 101. Code construed: g 1574 (S.), § 1298 (M. & V.), 1166 (T. & S.). Cases cited and’ approved: Railroads v. Crider, 91 Tenn., ,489; Railroad v. Russell, 92 Tenn., 108; Railroad v. Stonecipher, 95 Tenn., 313;nSmith v. Jones, 95 Tenn., 342.
102 Tenn. 710Medlin v. Balch (1899)
1. Damages. For detention of cow. One who detains another’s milch cow that has broken into his premises is liable for the damages resulting from such detention. 2. VeRdict. Not excessime. A verdict of three dollars for the unlawful detention of a milch cow, for a short period, is not so excessive as to evince prejudice or passion, .or to indicate that anything was allowed for the owner’s mental anguish over his loss.
102 Tenn. 714Hamilton v. Henney Buggy Co. (1899)
1. Replevin. Proper judgment on the several bonds. A judgment oí this Court upon affirming a judgment of the Circuit Court, which affirmed a judgment of a Justice of the Peace for defendant in replevin, will, if all the bonds are in the penalties required and sufficient, he against plaintiff and his original sureties for double the value of the property, to be satisfied by its return, and for the damages and cost, and also against the sureties on appeal from the Justice to the Circuit Court for the same measure of relief, and against the sureties for the appeal to the Supreme Court only for costs and damages, consisting of interest on the recovery, but the judgment against the sureties on the Justice’s appeal bond must be limited to cost if the bond is so limited, and the recovery on the ■ original replevin bond must be limited to the amount of its penalty. Code construed: §2 5152, 5144 (S.); 224133, 4126 (M. & V.); 22 3397, . 3390 (T. & S.). 2. Same. Same. Acts 1885 consPi'ued. Acts 1885, Ch. 59, does not affect or contemplate any change in the form or substance of an original judgment for defendant in replevin. That Act simply contemplates and provides for a supplemental judgment, not extinguishable, in whole or in part, by return of the property for any part of the original judgment that may remain unsatisfied upon the return of the first execution thereon. Act construed: Acts 1885, Ch. 59. Cases cited: Nighbert u Hornsby, 100 Tenn., 82.
102 Tenn. 719Whitelaw Furniture Co. v. Boon (1899)
Evidence. Bwrden of proof. The burden is upon the seller, who, having’ under a condition of the contract of sale, reclaimed the property on account of the buyer’s failure to pay the full price, is afterwards sued by the latter for that part of the purchase money paid before reclamation, to prove, in order to protect himself, strict compliance with the provisions of Acts 1839, Ch. 81, with reference to the advertisement and resale of the property. Act construed: Acts 1889, Ch. 81. Code construed: $ 3669 (S.). Gases cited: 32 Ala., 557; 35 Ark., 430; 50 Ga., 103; 53 Iowa, 84.
102 Tenn. 721Smith v. State (1899)
Juey. Incompetent jit/ror. A juror is not competent to serve in the Criminal Court of a county if he has within two years served as a juror in the Circuit Court of that county. Code construed: 5793, 5799, 5800, 5821 (S.); §§4756,4763,4764, 4785 (M. & V.); <¡<¡ 3981, 3988, 3989, 4010 (T. & S.). Case cited and approved: State v. Goodwin, 13 Lea, 238.
102 Tenn. 724Ward v. State (1899)
1. Pdea in' Abatement. Strictness required. The greatest strictness is required in pleas in abatement, and no intendment is made in their favor. They must contain a full and positive averment of all material facts. (Post, pp. 726, 727.) Case cited and approved: Grove v. Campbell, 9 Yer., 7. 3. Same. Not sufficient, when. A plea in abatement to an indictment for forgery is fatally defective, for want of certainty in its averments, which alleges that defendant had been extradited, and was still held, under another charge of forgery pending in the same Court, without stating the name that had been forged or identifying the indictment that had been the basis of the extradition otherwise than by a g-eneral reference to the records of the Court, in which numerous indictments for forgeries were pending against defendant. (Post, pp. 726, 727.) 3. Extradition. Defendant not entitled to benefits of, when. 'Although the extradition of a party has been agreed upon by the two countries, still, if he is not delivered in accordance with that arrangement, but is caught by the accredited agent of this country at a port in a neighboring State, on board an American ship, sailing under an American flag, while voluntarily making his way back to this country, he is not entitled to any of the benefits of extradition. (Post, pp. 726, 727.) 4. Charge oe Court. Not part of record. The Court’s charge and the requests for further instructions, though copied into the transcript, are not part of the record unless they are, by some appropriate language, made part of the bill of exceptions. (Post, pp. 727, 728.) 5. Juror. Opinion. Although a juror states he has no opinion in the particular case on trial, he is nevertheless incompetent if he had formed and expressed an opinion adverse to defendant from an attentive reading of a newspaper report of the evidence delivered on a former trial of defendant on a similar charge, which included an accurate report of material evidence to he used in the pending case, introduced on the former trial to show scienter. (Post, pp. 728-737.) Cases cited: Woods u State, 99 Tenn., 186; Spence v. State, 15 Lea, 539. 6. Same. Same. And, in such case, it is error for the Court to refuse to permit counsel to examine the juror touching such newspaper report. (Post, pp. 728-737.) 7. Same. Challenges. This Court will reverse for the error of compelling the defendant to take an incompetent juror, over his objection and offer to challenge for cause, when it appears that defendant' exhausted his full number of peremptory challenges on other objectionable jurors. (Post, pp. 728-737.)