Volume 103 — Tennessee Reports

<p>i. Wills. Mffeot of foreign probate.</p> <p>A foreign will, that has been duly probated in common form under the lex domicilii, and a duly authenticated copy thereof filed and recorded, as required by statute in this State, is not open to contest, for -any cause, in the Courts of this State, as regards its dispositions of movable or personal property, even by one who was not a party to or notified of the proceedings in the foreign Court. (Post, pp. 1-15.)</p> <p>Constitution construed: Art. IV;, $1 (U. S.).</p> <p>Code construed: U 3916-3923 (S.); g?3024-3030 (M. & V.); $$ 2184-2190 (T. & S.).</p> <p>Case cited and approved: Williams v. Sanders, 5 Cold., 60.</p> <p>2. Same. Nat/wre and effect of probate.</p> <p>The probate of a will is a proceeding in rem, and binding on all persons interested, whether they were parties to the record or not. (Post, p. 9.)</p> <p>Cases cited and approved: Patton v. Allison, 7 Hum., 328; Pinson v. Ivey, 1 Yer., 349; Pry v. Taylor, 1 Head, 595.</p> <p>3. Same. Effect not denied probate of foreign will.</p> <p>Full faith and credit will not be denied by the Courts of this State to the probate of a will in another State, on account of the failure of the statutes of that State to accord a like effect to wills probated in other States. (Post, pp. 13, 14.)</p> <p>4. Same. Bequeathing mortgages.</p> <p>A bequest of mortgages on real estate is a bequest of personalty. The mortgage is but an incident of the debt secured, and the debt is personalty. (Post, p. IS.)</p> <p>Cases cited and approved: Williams v. Sanders, 5 Cold., 60; McGan v. Marshall, 7 Hum., 127; Ferguson v. Coward, 12 Heis., 572; Vaughn v. Vaughn, 100 Tenn., 284; Leech v. Hills-man, 8 Lea, 747; Clark v.' Jones, 93 Tenn., 641.</p>

<p>Bills, and Notes. Given to recapture money lost at gaming, not enforceable. .</p> <p>If the loser at poker repossesses himself of the identical money-lost, under pretense of borrowing- it from the winner, and gives his note for the amount, such note is not collectible. It is a valid recapture of the money.</p> <p>Code construed: gg 3161-3163 (S.); §2440-3442 (M. & V.); <j 1771-1773 (T. & S.).</p> <p>Gases cited and approved: Hutchinson v. Peters, M. & Y., 263; Kegler v. Miles, M. & Y., 426; Neely v. Lyon, 10 Yer., 473; Collomb v. Taylor, 9 Hum., 689; Garrett v. Yaughn, 1 Bax., 119; Whiteside v. The Executors, Cooke, 38.3; Nichol u.'Batton, 3 Yer., 474; Woodson v. Gordon, Peck, 197; Revier v. Hill, 1 Sneed, 405; Rucker v. Wynne, 2 Head, 620.</p>

<p>DEVISAVIT VEL Nou. Exc1~ustom of fnst?rwment propounded not error, when. -</p> <p>• it is not error, on the trial of an issue of devisavit ~ieI non, foi~ the Court to exclude from the jury ~he instrument propounded for probate, where it has the form of a deed, but is unexe- • outed, and there is no internal or collateral evidehce t~nding to show that it was intendedas a will. •</p> <p>Cases cited: McLean v. McLean, 6 Hum., 452; Watkins v. Dean, 10 Yer., 321; Taylor v. Taylor, 2 Hum., 597; Armstrong v. Armstrong, 4 Ban., 357; Swails v.Bushart, 2 Head, 562.</p>

<p>1. PARTNERSHIP. Sale of assets and good will.</p> <p>A sale of the assets and good will of a drug firm passes to the0 purchaser the exclusive right to a formula for the preparation of a valuable medicine owned by the firm, and the trade-marks used by the firm in placing the medicine on the market (Post, pp. 41-43.)</p> <p>2. Trade.-mark. Right to.</p> <p>A druggist is entitled to the exclusive use of the term ‘ ‘ Storm’s Liver Regulator,” when, for a quarter of a century he had, at great cost and labor, prepared and placed on the market a medicine which was labeled and sold under that designation, and had, as such, become generally, favorably, and distinctively known throughout a wide territorial area. (Post, pp. 41-47.)</p> <p>3. Same. TInla/wful simulation.</p> <p>The proprietor of an established trade-mark is entitled to injunction against the use by another, though innocently done, of an advertising device, which, though differing in minor details, so far resembles his trade-mark, in general features and effect, as to deceive ordinary, incautious observers, although the differences might be obvious to an expert. (Post, pp. 47, 48.)</p> <p>4. Same. TJse of name as.</p> <p>A person has an undoubted right to use his own name in his business, but he may not use it in such manner as to defraud another. (Post, pp. 48-56.)</p>

<p>Tbustbe. Sureties’ liability.</p> <p>After a decree fixing the fund in a trustee’s hands at $4,283.07, and awarding it 12,868.90 to A and remainder to B, an order was entered directing the amount due B (about $1,400) to be paid into Court, and A waived the right to have her portion of the fund so paid in. .The trustee having failed to comply with this order, a motion was entered against him and his sureties for the amount due B. The Chancellor disallowed the motion, and entered judgment for the full penalty of the bond ($3,000), directing A’s claim to be first paid out of this sum, and remainder to B. Held: Error. The trustee had defaulted only as to amount due B, and he was entitled to full recovery on the bond, his claim not being in excess of its penalty.</p>

<p>FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. Lee Thornton, Ch.</p> <p>Appeal from Chancery Court of Shelby County. JOHN L. T. SNEED, Ch.</p>

<p>1. Actions. Right to prosecute not debarred, when.</p> <p>A creditor, who is prosecuting two distinct, concurrent actions to obtain satisfaction of the same debt from different funds of his debtor, does not lose his right to a recovery in either action by receiving the amount of his debt in the other, upon giving refunding bond to await a final decision. (Post, p. 77.)</p> <p>2. Limitations, Statute on. Must be pleaded.</p> <p>A statute of limitations that merely bars the remedy must be pleade'd to be available. The statute barring suit against sureties of a trustee after the lapse of six years from date of their principal’s final settlement is of this class. (Post, pp. 77, 78.)</p> <p>Gases cited: Hamby v. Reid, 101 Tenn., 438; State v. Butler, 11 Lea, 428; Merriman v. Cannovan, 9 Bax., 97.</p> <p>3. Appeal. Taken before executing order of reference, not reversible error.</p> <p>Although the practice is irregular, it does not constitute reversible error, to prosecute an appeal from a decree fixing liability and awarding a reference to ascertain the amounts due before the reference is executed, especially where the reference was not necessary, but ordered merely for convenience in calculating amounts. (Post, pp. 78, 79.)</p> <p>4. Trustee. Compensation.</p> <p>Where a trustee, under authority of a trust deed that is silent as to his compensation, does no more than to sell a stock of jewelry and fixtures and distribute the proceeds among a few creditors, there is no just reason or foundation for allowing him, as compensation for his services, anything in excess of five per cent, of the amount collected and disbursed. (Post, pp. 79-83.)</p> <p>Code construed: U 3525, 5432 (S.); <¡<¡ 2734, 4411 (M. & V.); §§ 1976a-3664 (T. & S.).</p> <p>5. Same. Expenses of selling goods not incl/uded in trust deed.</p> <p>Goods not included in a deed of trust, but conveyed to a third party by the grantor in trust, when mingled with the stock . being- sold under the deed of trust, and sold by the trustee, although it appears that the selling did not interfere extensively with the sale of the trust stock, and that the additional stock was, in some measure, beneficial in enabling the trustee to keep a full line of goods, will not be entirely exonerated from the expense of the sale of the entire property, but will be required to bear their due proportion of the entire expense. 0Post, pp. 84, 85.)</p> <p>6. Same. Liability of sureties.</p> <p>A sum erroneously credited upon the account of a trustee may be charged back against him at the suit of the beneficiary, and his sureties may be held liable therefor, although they might, had there been no credit allowed him, have sustained no liability therefor. (Post, p. 85.)</p>

<p>1. Indictment. For statutory offenses.</p> <p>An indictment lor a statutory offense must charge every act made essential by the statutory definition of the offense. Hence, if a battery is required by the statute to constitute the offense, it must be averred.</p> <p>Cases cited and approved: Harrison v. State, 3 Cold., 334; State . v. Ladd, 3 Swan, 336; Morrow v. State, 10 Hum., 130; White-sides v. State, 4 Cold., 183; Rhodes v. State, 1 Cold., 351.</p> <p>3. Same. Illtreat not sufficient to charge battery.</p> <p>The word “illtreat” does not import violence, and when used alone in an indictmeut does not charge a battery.</p> <p>3. Same. Insufficient to charge assault and battery wtQi intent to commit rape.</p> <p>An indictment that charges that defendant made a felonious assault upon a female, and did “ illtreat ” her, .with intent to have carnal knowledge of her forcibly and against her will, is insufficient, for failure to aver a battery, to charge the statutory offense of assault and battery with intent to commit rape.</p> <p>Code construed: ¿ 6459 (S.); g 5367 (M. & V-); ?4615 (T. & S.l.</p> <p>4. Yekdict. Fixing %mnishment in excess of maximum.</p> <p>A verdict fixing a punishment in excess of the maximum allowed by statute cannot be sustained.</p> <p>Case cited and approved: MeLougalu. State, 5 Bax., 660.</p>

<p>VENDOR and Vendee. Vendor’s equity.</p> <p>The vendor’s equity, or implied lien, for the purchase price of land is defeated by the vendee’s sale and conveyance of the land before the institution of suit to fix and enforce it.</p> <p>Cases cited and approved: Brown v. Vanlier, 7 Hum., 338; Green v. Demoss, 10 Hum., 371; Russell v. Dodson, 6 Bax., 16; Jones v. Ragland, 4 Lea, 539; Simpkinson v. McGhee, 4 Lea, 433; Washington v. Ryan, 5 Bax., 633; Knowles v. Masterson, 3 Hum., 619; Myers v. Ross, 3 Head, 60; Kirkpatrick u Wood, 5 Lea, 435.</p> <p>Cited and overruled: Jarman v. Farley, 7 Lea, 141.</p>

<p>1. Trusts and Monopolies. Association of plumbers illegal, when.</p> <p>By-laws of a master plumbers’ association, incorporated under Act 1875, Ch. 142, g 2, as a nonprofit concern, which punish, by penalties, competition among its members, and restrain their purchases of supplies and materials to a limited class of manufacturers, are illegal and void, both at common law and under our anti-trust statutes, as tending to stifle competition and enhance prices, and no action can be maintained by the association against its member to enforce such by-laws or to recover penalties for their violation. (Post, pp. 101-123.) '</p> <p>Act construed: Act 1875, Oh. 142, Sec. 2.</p> <p>Code construed: §g 2514 et seq., 3185, 6622 (S.); §1974, (M. & V.).</p> <p>Cases cited and approved: 4 Denio, 349 (S. C., 47 Am. Dec., 258); 5 Denio, 434 (S. C., 49 Am. Dec., 282); 79 Ill., 346 (S. C., 22 Am. Rep., 171); 2 D. R. A., 1; 5 D. R. A., 386; 140 ID., 69 (S. C., 15 L. R. A., 3611; 83 Texas, 650 (S. C., 15 L. R. A., 598); 166 ü. S. 290; 161 Pa., 473 (S. C., 24 L. R. A., 247.)</p> <p>2. Same. Q-eneral rule.</p> <p>The Courts, with practical unanimity, hold that contracts, agreements, arrangements or combinations, in whatever form or name, are contrary to public policy and void when they tend to impair competition in trade and to enhance prices to the injury of the public. (Post, p. 106.)</p> <p>3. Same. Limited as to number of persons amd territory.</p> <p>That the master plumbers’ association, whose by-laws are assailed in this case, confined its operations to the city of Memphis and did not embrace all the master plumbers in that city does not relieve the by-laws of their vicious character or render them any the less illegal. (Post, p. 114.)</p> <p>Cases cited and approved: 35 Ohio St., 672; 161 Pa., 473 (S. C., 24 L. R. A., 251); 140 Ill., 69 (S. C., 15 L. R. A., 364); 83 Texas, — (S. C., 15 L. R. A., 602); 37 L. R. A., 130.</p> <p>4. Same. Right to combine not inferred from indi/uidudl freedom.</p> <p>The fact that all the members had, as individuals, an inherent legal right to purchase supplies and materials from any dealer or dealers they might choose did not justify the master plumbers’ association in passing- by-laws requiring them to purchase from a class of dealers that it named. The former is freedom, the latter restraint. (Post, p. 120.)</p> <p>Cases cited and approved: 14 La. Ann., 164; 68 N. Y., 558; 68 Pa., 173; 5 L. R. A., 386; 166 ü. S., 390; 4 Denio, 349; 5 Denio, 434; 79 Ill., 346; 161 Pa., 473.</p> <p>Cited and disapproved: 19 R. I., 355; 54 Miss., 323.</p> <p>5. Same. By-laws within anti-trust law.</p> <p>By-laws of a corporation intended and well calculated to prevent full and free competition in the purchase and sale of articles of legitimate traffic, and to influence the prices thereof; and thereby to injuriously affect trade and commerce, are such “contracts, arrangements, combinations,” and trusts as are prohibited by our anti-trust statutes. (Post, pp. 121, 122.)</p> <p>Code construed: §§ 3185, 6633 (S.).</p> <p>6. CORPORATIONS. No recovery under invalid by-law.</p> <p>A corporation cannot recover of its member a penalty for violation of a by-law void, as an illegal restraint of trade, although the member had indemnified himself, by illegally collecting the amount -from another, as contemplated by the by-law. The corporation is in pa/ri delicto. (Post, pp. Hi, 115.)</p> <p>Case cited and approved: Cowp., 443; 161 Pa., 473 (S. C., 34 L. R. A., 351); 37 L. R. A., 130.</p> <p>■7. Same. By-laws.</p> <p>A by-law of a corporation is invalid if not authorized by its charter,- or if authorized alone by an illegal provision of its charter. (Post, pp. 122, 123.)</p>

<p>1. Evidence. Bes gestee.</p> <p>Sudden exclamations and outbursts of bystanders, as well as of participants, are parts of tbe res gestee, and as such may properly be brought forward in evidence whenever the occurrence producing them is undergoing judicial investigation. Hence the crying and alarm of plaintiff’s children, at the time of his expulsion from a street car, are admissible in his behalf a,s part of the res gestee, in his suit against the ‘company for damages. (Post, pp. 128, 129.)</p> <p>Cases cited and approved: 69 N. Y., 158 (S. C., 25 Am. Rep., 163); 16 Ill., 558 (S. C., 63 Am.' Dec., 324); 14 L. R. A., 613.</p> <p>2. Charge of Court. Ghvving abstractions.</p> <p>The giving of mere legal abstractions in charge to the jury, though a reprehensible practice, is not reversible error, unless it appears probable that the jury were thereby misled, to the prejudice of the party complaining. (Post, pp. 130, 131.)</p> <p>3. Street Railroads. Bights of passenger wrongfully expelled.</p> <p>If a passenger on a street car, who has paid full fare and complied with all other reasonable and valid conditions to entitle him to passage, is expelled by the conductor on account of a defect in his ticket or transfer check, imputable not to any fault of the passenger, but solely to the fault and negligence of the company’s agent who issued it, he can maintain an action for damages for such expulsion, and cannot be required to pay a second fare and seek redress by action for breach of contract or for negligence of the agent who issued • the ticket. (Post, pp. 131-133.)</p> <p>Cases cited and approved: 143 U. S., 60-75; 166 Pa. St., 4 (S. C., .8 Am. Neg. Cas., 617); 95 Iowa, 98 (S. C., 29 L. R. A., 173); 70Fed. Rep., 585; 4 Am. Neg. Cas. (Ark.); 1; 79 Ga., 358 (S. C., 8 Am. Neg. Cas., 135); 77 Ga., 673; 63 Me., 298 (S. C., 8 Am. Neg. Cas., 340); 125 Ind., 229; 64 Mich., 634; 137 Mass., 293.</p> <p>Cited and disapproved: 52 Fed. Rep., 197; 37 Mich., 342; 53 Mich., 118 (S. C., 8 Am. Neg. Cas., 430); 34 W. Va., 65 (S. C., 8 Am. Neg. Cas., 663); 54 Wis., 334 (S. C., 8 Am. Neg. Cas., 678); 4 A. & E. R. Cas. (N. S.), 515; 135 Mass., 407.</p> <p>4. Same. Ticket and contract.</p> <p>The actual contract, not the ticket, controls the rights and duties of carrier and passenger. The ticket is hut evidence of the contract. It is'the act of the carrier over which the passenger has no control. The carrier is alone responsible for mistakes therein and their consequences. The passenger has the right to presume and rely upon the ticket as correctly expressing the contract. (Post, pp. 132, 133.)</p> <p>5. Same. Same.</p> <p>A ticket may he regarded as the carrier’s written direction by one agent to another agent concerning the particular transportation. In such case the act of each agent is the act of the common principal. The carrier’s negligence through one agent in issuing the ticket can afford no excuse or justification for his wrongful act, through another agent, in expelling a rightful passenger. The carrier cannot create or acquire a right by doing two negligent or wrongful acts through' two agents. (Post, pp. 133, 134.)</p> <p>6. Same. Same.</p> <p>The undoubted right of a carrier to require passengers to procure and present tickets does not imply the right to expel passengers because the tickets they offer chance to be defective or void without their fault. “Before the rule of expulsion for want of proper tickets can be made absolute and universal in its application, the carriers must discharge the reciprocal duty of absolute and universal accuracy in the issuance of tickets.” To justify expulsion of passengers on account of defective tickets, made.so by the carrier’s fault, is to visit upon the innocent passenger the consequences of the carrier’s negligence. (Post, pp. 134, 135.)</p> <p>Cases cited distinguished: Railroad®. Fleming, 14 Lea, 146; Railroad ®. Benson, 85 Tenn., 637; Railroad®. Turner, 100 Tenn., 334.</p> <p>7. Same. Ga/rrier’s convenience will not Justify disregan’d of passenger’s rights.</p> <p>“ It is no answer to the legal right of the bona fide passenger to say that the carrier’s general interest is better subserved by his expulsion than by his carriage, by the violation of his coh1 tract than by its observance. His right is not to be affected by the mistakes of ticket agents or the attempted frauds of impostors; these are to be met, if met at all, otherwise than through a rule that excludes innocent as well as fraudulent passengers. It is not allowable to punish the innocent with the guilty, to prevent the escape of the guilty.” (Post, p. 136.)</p> <p>■ 8. Same. Conditions indorsed on ticltet unreasonable and void, when.</p> <p>A condition indorsed upon the transfer check of a street railway company is unreasonable and void which requires the passenger to examine the “date, time, and direction” indicated by the conductor’s punch, and to see that the same are correct. The passenger has the right to assume correct action on the part of the company’s agents. (Post, pp. 140-142.)</p> <p>9. Same. Same.</p> <p>A condition indorsed upon the transfer.check of a street railway company is unreasonable and void which requires the passenger, in the event of controversy with the conductor about the check and its refusal, to pay another regular fare “and apply at the office of the company for refund of same within three days. ” This condition places the entire burden of the company’s negligence upon the innocent passenger. (Post, pp. 142, 143.)</p>

<p>1. Sales. Seller’s right to reclaim property by reason of buyer’s fraud.</p> <p>The seller of goods may reclaim them from an insolvent buyer or his assignee for creditors, where the buyer obtained them with the fraudulent intent not to pay for them, and this fraudulent intent may be deduced from the circumstances surrounding the transaction. (Post, pp. ISO, 151.)</p> <p>Cases cited: Brooks v. Paper Co., 94 Tenn., 701: Boyd v. Mosely, 3 Swan, 661; Mississippi Mills v. Bank, 9 Lea, 314; Belding Bros. v. Frankland, 8 Lea, 67; Pettigrew V. Turner, 6 Hum., 440; Brownu. Vanlier, 7 Hum., 339.</p> <p>3. Replevin. Verdict sustained by proof.</p> <p>A verdict for the plaintiff, in an action of replevin by the seller of goods to recover them from an assignee of the buyer, upon the ground that the latter had obtained them with the fraudulent intent not to pay for them, will not be set aside by this Court, as unsupported by the evidence, where it appears that on October 31, 1894, defendant’s assignor made an assignment "to him, preferring certain creditors; that early in the preceding summer he began to buy goods from various dealers, including plaintiff, in unusually large quantities, all over the country; that he always stipulated for such period of credit as would bring the time of payment beyond the time when the assignment was made; that he was more particular as to time than prices; that the assignment was made just before the bills for a large part of such goods became due, and that the purchaser did not testify to show good faith or explain his conduct. (Post, pp. 145-153.)</p> <p>Cases cited and approved: Kirkpatrick v. Jenkins, 96 Tenn., 87; Minton v. Stahlman, 96 Tenn., Ill; Street Railroad v. Seigrist, 96 Tenn., 134; Young v. Cowden, 98 Tenn., 581.</p> <p>3. Chabqe of Couet. Should not direct verdict.</p> <p>It is not the practice in this State to instruct a jury that there is no evidence to support an issue, except on a demurrer to the evidence. (Post, pp. 153,154.)</p> <p>4. Evidence. TransactAon with third person not incompetent, when. ,</p> <p>In replevin for goods alleged to have been purchased by an insolvent, with intent not to pay therefor, evidence that he gave another person an order as part of the same fraudulent scheme, which was so much larger than ushal that he refused to fill it, is not incompetent because it relates to a transaction with a person not a party to the suit, or because it was not shown to have occurred before the purchase from plaintiff. (Post, p. 154.)</p>

<p>1. Champerty. Example of.</p> <p>A transaction is champertous whereby a person becomes surety for the contestants of a will on condition that he is to have an heir’s part of the estate if the contest proves successful. {Post, pp. 159, 160.)</p> <p>Code construed: §§3176-3777 (S.); §§3450, 3451 (M. & V.); §§1781, 1783 (T. & S.).</p> <p>Cases cited and approved: Weedon v. Wallace, Meigs, 386; Dow-ell v. Dowell, 3 Head, 503; Hayney v. Coyne, 10 Heis., 340.</p> <p>2. Same. Court dismisses on its own motion.</p> <p>Although no question of champerty was made in the lower Court, and none suggested by counsel in this Court, nevertheless, if the fact is made to appear, this Court will, of its own motion, refuse to proceed to a determination of the case and dismiss the suit. {Post, p. 160.)</p> <p>Cases cited and approved: Webb v. Armstrong, 5 Hum., 379; Vincent v. Ashley, 5 Hum., 593; Saylor v. Stewart, 2 Heis., 510; Dowell v. Dowell, 3 Head, 503; Benton v. Henry, 3 Cold., 84; Hayney v. Coyne, 10 Heis., 340»</p> <p>’3. Same. Effect of repeal of champerty laws.</p> <p>This Court will not dismiss a case for champerty where no question, on that account, was made in the lower Court, and none in this Court until after the repeal of the champerty laws by Acts 1899, Ch. 173. {Post, pp. 160, 161.)</p> <p>Act construed: Act 1899, Ch. 173.</p> <p>4. WITNESS. Not subject to rule.</p> <p>The proponent and chief beneficiary in a will cannot be placed under the rule excluding witnesses from the court room during a contest over the probate of the will. {Post, pp. 161, 162.)</p> <p>Act construed: Act 1871, Ch. 107.</p> <p>Code construed: §5599 (S ); §4566 (M. & V.).</p> <p>Cases cited: Wisener v. Maupin, 2 Bax., 342; Lenoir Co. v. Smith, 100 Tenn., 127.</p> <p>5. Same. Same.</p> <p>A party who is wrongfully put under the rule excluding witnesses from the court room does not lose his right to object on appeal by obeying the rule, rather than remaining in the court room and taking an exception if his testimony is excluded on that ground. (Post, pp. 162, 163.)</p>

<p>1. Public Highways. Duty and liability of owners of adjacent ■ lands:</p> <p>■ The owner of real estate adjacent.to a public highway must keep it in such condition near the highway as not to endanger persons traveling witti due caution along the highway'. If, in express terms or by implication, he invites the public to .come upon his premises and use them, he must keep them in such condition that persons using them by such invitation, with due caution, shall not be injured by defects therein. But he owes no' duty to trespassers or mere licensees who come upon his premises without invitation, express or implied. They assume all risks. (Post, pp. 165-177.)</p> <p>. Oases cited: Niblettu Nashville, IS Heis., 684; 68 N. Y., 292; 26 L. B. A., 686; 53 Conn., 186; 4 C. B. (N. S.), 556; 7 Id., 731; 115 N. Y., 56 (S. C., 12 Am. St. B., 772); 70 Texas, 400 (S. C., 8 Am. St. B., 611); 16 L. B. A., 640; 38 B. B. A., 573; 134 Ind., 269 (S. C., 39 Am. St. B., 261); 143 Ill., 182 (S. 0., 36 Am. St. E., 376); 156 Mon., 426 (S. 0., 32 Am. St. E., 463;; 4 Ohio St. B., 236.</p> <p>2. SAJfE. Same.</p> <p>Whether the owner of real estate adjacent to a public hig'hway has extended an invitation to the public to enter upon and use it is a question for the jury to determine from all the facts and circumstances, and should not be arbitrarily assumed to be one way or the other in the Court’s charge to the jury. (Post, pp. 177, 178.)</p> <p>3. Samb. Same.</p> <p>If a third person, for whose act the owner is not responsible, creates a dangerous state of affairs on the latter’s property, of which he had no knowledge, and which, by using ordinary diligence, he could not know, then he would not be held responsible therefor, even to a party injured while rightfully on the premises. (Post, p. 178.)</p>

<p>1. Pleading and Pbactice. Waiver of misnomer.</p> <p>Nonresident defendants, by coming in and defending on the merits, waive a misnomer in the writ of attachment upon which service by publication was based, in describing the defendant company as a corporation rather than a partnership. (Post, pp. 180, 181.)</p> <p>2. Same. Describing firm in process.</p> <p>The names of the members of a firm should, for greater regularity and certainty, be given in the process by which an action is commenced, but the omission of their names does not make the process void. (Post, p. 181.)</p> <p>Case cited and approved: Marshall v. Hill, 8-Yer., 100.</p> <p>3. Judgment. Adapted, to the situation.</p> <p>A Court of Law may, in an attachment suit, protect the interest acquired by third parties under a prior 'attachment in the attached fund, which is in custodia legis, by directing that the fund shall be applied to the payment of its judgment, subject to the prior attachment. (Post, pp. 182, 183.)</p>

<p>1. Evidence. Admissible wider scope of pleadings, when.</p> <p>A bill charging' that the action of a railroad was due to an agreement between itself and other carriers, the terms of which are unknown to the complainant, but whose tenor was to restrain trade and commerce, is broad enough to let in full evidence as to what was done at a meeting at which the agreement was made, and what policies were there outlined, and of the division of traffic, if any, there made, and the circumstances connected with it. (Post, pp. ZOO, 201.)</p> <p>2. Common Cabbies. Designation of route for through shipments.</p> <p>The right to designate the route of through shipments at through rates lower than local rates belongs to the carrier; and not to the shipper, in the absence of any sufficient or controlling reason to the contrary. (Post, pp. 202-215.)</p> <p>Cases cited: Trans. .Co. v. Bloch Bros., 86 Tenn., 415; Birdu. Railroad, 99 Tenn., 719; Railroad v. Brumley, 5 Lea, 401; Dillard Bros. v. Railroad, 2 Lea, 288; Tel. Co. v. Munford, 87 Tenn., 190; Railroad v. Odill, 96 Tenn., 61.</p> <p>3. Same. Same..</p> <p>An illegal advantage to a shipper over other shippers, by way of rebates from a fast freight line, will not be ground for giving him the right, as against other carriers, to designate the route for a through shipment at through rates. (Post, pp. 216, 219, 220.)</p> <p>4. Same. Same.</p> <p>The carrier’s right to select the route for through shipments does not extend to the selection of insolvent lines, or uncertain or unreliable agencies. (Post, pp. 220.)</p> <p>5. Same. Unlawful combinations.</p> <p>A declaration of policy made by each of several carriers at a meeting, which is simply an expression of a right which the carriers had without such declaration, and which is not made for an illegal purpose, and does not operate prejudicially to shippers, although it declares that rates are not to be reduced, does not constitute an unlawful combination, where the rates referred to are reasonable rates, which have resulted from free competition. (Post, pp. 221-223.)</p> <p>6. Same. Same.</p> <p>An injunction against observing a declaration of policy by carriers, will not be granted on the ground that it may be made the basis of illegal acts and practices thereafter, when they are not its direct and necessary effect. (Post, pp. 223-226.)</p> <p>7. Same. Not partners.</p> <p>An agreement among several connecting carriers regarding through shipments does not constitute them a partnership. (Post, pp. 226, 227.)</p> <p>8. Injunction. Mandatory granted, when. '</p> <p>A mandatory injunction will not be granted except in extreme cases, and when Courts of Law are unable to afford adequate redress, or when the injuries complained of cannot be compensated in damages. (Post, p. 216.)</p> <p>9. Same. Anti-trust laws not enforced hy.</p> <p>The anti-trust statutes, State and Federal, are not enforceable by mandatory injunction, at the instance of a private party. (Post, pp. 226, 231.)</p>

<p>1. Besulting Trust. Exists, when.</p> <p>A resulting trust arises in favor of the wife’s heirs where she devised her land to her husband, upon his promise that, if he survived her, he would devise same to her heirs, and he survived and failed to perform his promise. (Post, pp. 233-235.)</p> <p>2. Same. Proof that will sustain.</p> <p>To sustain a resulting trust, upon parol evidence, in the teeth of the terms of a written instrument, it is not essential that the evidence he of a character to remove all reasonable doubt, but only that it be so clear, cogent, and convincing as to overcome the opposing evidence, coupled with the presumption that obtains in favor of the written instrument. (Post, pp. 234, 235.)</p> <p>Cases cited: MbCammon v. Pettitt, 3 Sneed, 246; McBee v. Bowman, 89 Tenn., 132; Sanford v. Weeden, 2 Heis., 76.</p> <p>3. SUPREME Court. Will not reverse, when.</p> <p>This Court will not reverse for the admission or exclusion of evidence where the record fails to show, in any way, the action of the lower Court in regard to the matter. (Post', p. 236.)</p> <p>Cases cited: Anderson v. Bailroad, 91 Tenn., 44; Kelly v. Fletcher, 94 Tenn., 14.</p>

<p>Guardian and Ward. Rights of emancipated nonresident wa/rd defined.</p> <p>A minor, domiciled in another State, by .whose laws he is emancipated from all disabilities of infancy, is entitled to receive and recover, in the same manner as an adult, his real estate, as well as his personal funds, having a situs and being in the hands, control, and .possession of a -guardian appointed and resident in this State. The lex domicilii controls as to ward’s capacity.</p> <p>Case cited and approved: Woodward v. Woodward, 87 Tenn., 644.</p>

<p>1. Foreign CORPORATION. Mortgage of, taken before qualification validated, vuhen.</p> <p>A mortgage taken by a foreign corporation before it has qualified to do business in the State, is validated" by subsequent registration of its charter in the office of the Secretary of State and of abstract thereof in the county where the land is situated, as required by the curative Act of 1895, and the mortgagee may enforce same for the amount of money actually loaned, with six per cent.-interest. (Post, p. 250.)</p> <p>Act construed: Acts 1895, Ch. 119.</p> <p>Case cited and approved: Butler v. Association, 97 Tenn., 679.</p> <p>2. Will. Gimes absolute poioer of disposition. -</p> <p>Under a will devising lands to the children of two of testator’s sons, and providing that the two sons, respectively, shall “have the power to sell or convey, by deed or otherwise, or to dispose of the land in any way they see proper, for the benefit of their children, they, my [his] two sons, being the judges of what is best for their children,” the two sons take an absolute power of disposition, not incumbered with any sort of trust in favor of testator’s grandchildren, and may mortgage the property to raise money for any purpose they may choose, especially where no fraudulent purpose in entertained by the mortgagors, or, if entertained, not disclosed or known to the mortgagee. (Post, pp. 251-257.)</p> <p>Cases cited: Webster v. Helm, 93 Tenn., 325; Steifel v. Clark, 9 Bax., 470; Bostick v. Winton, 1 Sneed, 524; 136 Pa. St., 367; 116 Pa. St., 547; 147 Mass., 616; 37 Hun, 476.</p> <p>3. Mortgages and Deeds op Trust. Recital of power to make.</p> <p>And, in such case, it is not essential that the mortgage should recite or refer to the power in the will pursuant to which it is made. (Post, pp. 254-256.)</p> <p>Cases cited and approved: Young- u Mutual Ins. Co., 101 Tenn., 311; Pate v. Pierce, 4 Cold., 113; 134 U. S., 572; 56 Minn., 216; 33 N. Y., 383.'</p> <p>4. Tbtjsts. Application of proceeds of trust property.</p> <p>Nov, in such, case, is the mortgagee under obligation to see to the proper application of the money borrowed on the mortgage. (Post, p. 256.)</p> <p>Cases cited: Young v. Mutual Ins. Co., 101 Tenn., 311; Williams v. Otey, 8 Hum., 563; Loughmiller v. Harris, 2 Heis., 553; Harris V. Smith,'98 Tenn., 286; Brown®. Poote, 2 Tenn. Ch., 225.</p>

<p>1. Writ of Error Dismissed for want of bond.</p> <p>A writ of error granted, upon the applicant giving bond for costs, will he dismissed on motion if bond is not given as required.</p> <p>2. Pauper Oath. Cannot be substituted for bond.</p> <p>Where the fiat granting writ of error requires bond for costs to be given, a pauper oath will not suffice.</p> <p>3. Same. Insufficient.</p> <p>A pauper oath made more than a year before it is filed or used is bad.</p>

<p>Contbact. Illegal.</p> <p>Where an occupation, e. g., selling sewing machines, has been declared a privilege, not to be pursued without license and payment of tax, one who makes a sale without compliance with the law, cannot maintain an action to recover back the ' property, under a provision of the contract reserving that ■ right upon the seller’s default in making payment of the purchase price. The contract is in such case illegal, and the Courts will not aid in its enforcement.</p> <p>Act construed: Act 1895, Ch. 120.</p> <p>Cases cited and approved: Stevenson v. Ewing, 87 Tenn., 46; Carey Lombard Co. v. Thomas, 92 Tenn., 587.</p>

<p>Í. Demurrer to Evidence. Sufficiency of.</p> <p>’i It is not essential that a demurrer to evidence should set out and . specify in what particulars the evidence is insufficient to warrant a judgment. It is sufficient to set out the evidence therein in detail, admit its truth, and all proper and legal deductions to be drawn therefrom, and aver generally that no recovery is warranted thereby. (Post, pp. 267, 268.)</p> <p>■ Cases cited: Hopkins v. Railroad, 96 Tenn., 409; Summers v. , Railroad, 96 Tenn., 459; Corbettv. Smith & Co., 101 Tenn., 368.</p> <p>2. Railroads. Plaintiff’s negligence does not defeat statutory action , agcuinst.</p> <p>In actions agai.nst railroad companies for injuries resulting from failure to observe the statutory precautions for prevention of > accidents, the plaintiff’s negligence, though “ the direct and proximate cause ” of his injury, will not defeat his recovery, but only mitigates the damage. (Post, pp. 268, 269.)</p> <p>■ Cases cited: Railroad v. Foster, 88 Tenn., 672; Patton v. Rail- ' road, 89 Tenn., 370.</p> <p>3. Same. Compliance with precautions relieves of liability.</p> <p>■ It is a complete defense to an action for an injury caused by a collision that the railroad company employed every possible precaution and means to prevent the accident, brought about ’ by the plaintiff’s negligence. Impossibilities are not re- . quired. (Post, pp. 269-271.)</p> <p>Code construed: $1574 (S.); $ 1298 (M. & V.); $ 1166 (T. & S.).</p> <p>Cases cited: Railroad v. Seales, 2 Lea, 688; Railroad v. Swaney,</p> <p>; 5 Lea, 119; Railroad v. House, 96 Tenn., 555. .</p>

<p>1. Mortgages and Deeds of Trust. Enforcement and setting aside of.</p> <p>Where complainant seeks to set aside a mortg-age upon his property as illegal and void, but offers to refund the amount borrowed thereon, with legal interest, and the defendant seeks by cross bill to foreclose and enforce the mortgage, the Court, finding the mortgage void, will refuse relief on the cross bill, and will render decree against complainant, in accordance with the offer of his bill, for the amount borrowed, with interest, and, in the absence of a tender of this amount, for costs also.</p> <p>2. Same. Illegal and voidable, when.</p> <p>A mortgage taken by a foreign corporation before it has qualified to do business in the State is void, and a subsequent mortgage, taken after the corporation has qualified to do business in the State, for the secret purpose of validating the first, but under pretense of making concessions to the mortgagor, is likewise void, as being without consideration and obtained under a false pretense.</p>

<p>1. Municipal CORPORATIONS. Liability for tort of -policeman.</p> <p>The rule that pi-otects a municipal corporation from liability for the personal tort of its policeman does not apply if the policeman’s act had the sanction of the city authorities. (Post, p. 279.)</p> <p>Cases cited: Conelly v. Nashville, 100 Tenn., 262; Irvine v. Chattanooga, 101 Tenn., 291.</p> <p>2. Same. Ratification of policeman’s wrongful act.</p> <p>A municipal corporation cannot he held to have ratified its policeman’s wrongful act in removing a fence by the fact that its Recorder fined the owner for restoring the fence to its original location. (Post, p. 279.)</p> <p>Case cited: Pesterfield v. Vickers, 3 Cold., 205.</p> <p>3. Dedication. What constitutes.</p> <p>The owner of land will be held to have irrevocably dedicated it to public use, notwithstanding an undisclosed intent to the contrary, where his acts and conduct have been such as should fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and have been so received and acted upon by the public for such length of time that the public accommodation and private rights would be -materially affected by a denial or interruption of the enjoyment of the easement. (Post, pp. 279-282.)</p> <p>4. Same. By married woman.</p> <p>A feme covert is estopped to deny the dedication of her, property to public use, where to permit such denial would operate as a fraud upon others who had acquired rights upon the faith of her acts and declarations evidencing the dedication. (Post, pp. 282, 283.) . '</p> <p>Cases cited: Galbraith v. Lunsford, 87 Tenn., 89; Pilcher v. Smith, 2 Head, 208; Howeli v. Hale, 5 Lea, 405.</p> <p>5. Same. Length of time requisite to.</p> <p>The use of property by the public for twenty years, or any other specific time, is not essential to the creation of implied easement therein. The manner of its use is more material than • the length of time the use has continued. (Post, pp. 283, 284.)</p> <p>6. Same. Request for instructions erroneously refused.</p> <p>In this particular case the Court holds it error for the Judge to refuse to charge on behalf the city as follows, to wit: “If the fence of Mrs. Wolfe was set back on a line with other fences by her husband, and she allowed it to remain set back for eight years, and she allowed the strip of ground in question to be used by the public as a part of the street or sidewalk without objection on her part, said acquiescence by her would amount to a dedication of said strip of land to the public use, and this would be true although she did not authorize or consent to the setting back of the fence in the outset.” (Post, p. 284.)</p>

<p>1. Pbivy Examination. Effect of certificate.</p> <p>The certificate in proper form of a married woman’s privy examination to a deed cannot he avoided by extrinsic proof that her examination was not as full and technical as the statute requires. Such certificate cannot be attacked for mere irregularities, but only for fraud or duress imputable to the eon-veyee.</p> <p>Cases cited: Campbellv. Taul, 3 Yer., 548; Shields®. Netherland, 5 Lea, 194; Ronner v. Welcker, 99 Tenn., 636.</p> <p>3. Same. Not assailable by answer.</p> <p>The certificate of privy examination of a married woman to a deed, if in proper form, cannot be assailed even for fraud or duress, even if imputable to the conveyee, by a mere answer to a bill seeking to enforce the deed. Such certificate is assailable only by original or cross bill.</p>

<p>1. Sheriff's Deed. Essentials to validity of.</p> <p>To be valid the deed of a Sheriff must show a proper judgment, execution, levy, and sale. (Post, p. 292.)</p> <p>Cases cited and approved: Byers v. Wheatley, 3 Bax., 160; Harlan v. Harlan, 14 Lea, 120.</p> <p>2. Execution. Authority to issue.</p> <p>An execution issues, as a matter of course, upon a judgment at law or a decree in chancery for a specific sum of money, without any order awarding or directing its issuance in express terms. The judgment or decree is in and of itself an award of execution. (Post, pp. 292-295.)</p> <p>Code construed: ¿<¡4698, 4728, 4732, 4736 (S.); $$ 3684, 3714, 3718, 3722 (M. & V.); \\ 2970, 2998, 3002, 3007 (T. & S.).</p> <p>Cases cited and approved: Johnson v. Ball, 1 Yer., 291; Daley v. Perry, 9 Yer., 442; Bank v. McClung, 9 Hum., 95; Battle v. Bering, 7 Yer., 529.</p> <p>3. Same. Same.</p> <p>When, in a vendor’s suit to recover purchase money and enforce his lien, there is a decree for a specific sum and for sale of the land, if, after the sale and application of proceeds, there remains a balance due on the decree, execution issues as a matter of course, though not awarded in terms by the Court. In such case the issuance of execution is suspended until after the sale. (Post, pp. 292-295.)</p> <p>4. Same. Same.</p> <p>And, in such case, the execution issues without an order, although the decree directing the sale of the land states that the Court resei'ves the right to enter a decree enforcing any balance remaining due the vendor after the sale. This reservation possesses no force or virtue whatever. (Post, pp. 295, 296.)</p> <p>5. Same. Runs against whom.</p> <p>Where a decree adjudges distinct and separate amounts against each of several defendants, the executions thereon should issue against each defendant separately for the sum adjudged against him. (Post, p. 296.)</p> <p>6. Ejectment. Claiming title from common source.</p> <p>The purchaser of land at execution sale can recover it from one claiming a junior and inferior title under the execution debtor, upon the production and proof of a valid Sheriff’s deed, without further deraignment of title. Both parties claim from a common source, and are estopped to deny title originally in the execution debtor. (Post, pp. 296, 297.)</p> <p>Cases cited and approved: Wortham v. Cherry, 3 Head, 469; Aliens. Moss, 1 Leg. Rep., 354 (S. C., 2 Shannon’s Rep., 317); Moss v. Bank, 7 Bax., 216; Earley v. Beecher, 7 Lea, 256.</p> <p>7. Same. Title.</p> <p>A purchaser of land at-Sheriff’s sale, made within one year after rendition of judgment, acquires a title superior to that of a purchaser from the execution debtor after the judgment lien attaches, but before sale. (Post, p. 297.)</p> <p>Code construed: §{S 4708, 4710 (S.); U 3694, 3696 (M. & V.); <¡<¡ 2980, 2982 (T. & S.).</p> <p>Case cited and approved: Bridges v. Cooper, 98 Tenn., 394.</p> <p>8. Homestead. Defeated hy absoVate deed.</p> <p>The owner of land who conveys it in fee by an absolute, unconditional deed, defeats his right of homestead therein. (Post, p. 297.)</p>

<p>1. Mechanics’ Lien. Construction of statutes relating to.</p> <p>Mechanics’ lien statutes are strictly construed against those seeking to he admitted to their benefits, but are liberally construed as to the inclusion of property and subjecting it to the lien.</p> <p>Cases cited: Barnes v. Thompson, 2 Swan, 314; Alley v. Lanier, 1 Cold., 540; Steger u Ref. Co., 89 Tenn., 453; Ragon v. Howard, 97 Tenn., 334; Thompson v. Baxter, 92 Tenn., 305.</p> <p>2. Same. Does not attach, when.</p> <p>A florist is not entitled under our statutes to a mechanics’ lien upon a hotel and its adjacent grounds for his labor and material, expended, under contract with the owner, in adorning and improving the property, by grading, and graveling the grounds and walks, and by putting out flowers, shrubs, and trees, and doing other work of like character.</p> <p>Code construed: §3531 (S.); j¡ 2739, 2740 (M. & V.); U 1981, 1981a (T. & S.).</p> <p>Case cited and approved: Thompson v. Baxter, 92 Tenn., 305.</p>

<p>1. Homestead. Transferable as a life estate.</p> <p>Homestead, when assigned, becomes a vested life estate in the lands embraced, and passes by deed of the owner in the same manner as any other life estate. (Post pp. 311-316, 318.)</p> <p>Cases cited: Cowan v. Carson, 101 Tenn., 533; Thompson v. Stacy, 10 Yer., 493; White u. Nashville, 3 Swan, 364; Latta v. Brown, 96 Tenn., 356.</p> <p>3. Same. Assignment of.</p> <p>A levy on lands of less value than $1,000 “subject to the homestead rights ” of the debtor, operates as an assignment of homestead that invests him with a life estate therein that he may convey by deed. (Post, pp. 311-316.)</p> <p>3. Same. Abandonment of.</p> <p>Since the Act of 1879 the right of homestead is not dependent upon occupancy, and hence assigned homestead is not abandoned by removal from the premises, except by permanent removal beyond the limits of the State; or by other unequivocal, attendant act showing a clear intention to abandon homestead and not to receive its benefits. (Post, pp. 316-318.)</p> <p>Acts construed: Acts 1879, Cb. 171.</p> <p>Case cited and approved: Farris v. Sipes, 99 Tenn., 299.</p> <p>4. Same. Same.</p> <p>The rights of the vendee of assigned homestead are not affected by the vendor’s permanent removal from the State after the sale. (Post, pp. 317, 318.)</p>

<p>1. Municipal Corpoeations. Contract of, invalid.</p> <p>A municipal corporation is not bound by a contract entered into by its Board of Mayor and Aldermen at a special meeting-, of which some of the members were not leg-ally notified and at which they were not present. (Post, pp. 321, 322.)</p> <p>Cases cited: 36 Minn., 176; 52 Mich., 538; 75 Iowa, 371; 16 Kan., 303; 33 N. Y., 138; 4 Cal., 77; 7 Conn., 314.</p> <p>3. Same. Liable on implied promise,* when.</p> <p>A municipal corporation may be held upon an implied promise for the benefits actually received under an invalid contract for the improvement of its streets, when the contract was fair and ' reasonable in its terms, and clearly within the scope of the powers of the City Council, who were fully aware of its existence and infirmity, but nevertheless permitted it to go unre-scinded and unchallenged, and allowed the other party to it to continue work under it for several months and to completion, under the belief that all was satisfactory and with the unquestionable result of large and permanent advantage to the city. (Post, pp. 322, 323.)</p> <p>Cases cited: Gaslight Co. v. Memphis, 93 Tenn., 612; 96 U. S., 341; 9 Cal., 453; 15 L. ft. A., 364; 6 L. R. A., 318; 23 Am. Rep., 144; 13 Oregon, 248.</p> <p>3. Limitations. Statutes of, begins to run, when.</p> <p>Where a contract contemplates continuous acts until a certain result is accomplished — e. g., the making- of specified improvements of the streets of a city — an action for the value of the labor done or of the benefits conferred does not accrue until the final act is complete, and hence the statute of limitations does not begin to run until that date. (Post, p. 323.)</p>

<p>1. Husbastd and Wife. Resulting trust.</p> <p>When a husband obtains his wife’s funds under an agreement to reinvest them in land for her benefit, and, with intent and purpose to perform this agreement, purchases land, paying the purchase price in part with her funds and in part with his own, but taking the entire title to himself, he holds the lands in trust for her benefit to the extent and in the proportion that her funds contributed to pay the purchase price. {Post, pp. 325-328.)</p> <p>Cases cited: Pritchard u Wallace, 4 Sneed, 405; Click v. Click, 1 Heis., 607; Pillow v. Thomas, 1 Bax., 120; McClure v. Doak, 6 Bax., 364.</p> <p>2. Same. Same.</p> <p>The wife’s right to a resulting trust, otherwise attaching, is not affected by the husband’s failure to obtain a valid deed or title to the land at the date of the transaction. Her right attaches upon his obtaining title subsequently. {Post, p. 328.)</p> <p>3. Same. Same.</p> <p>The wife does not acquire a lien upon the land for repayment of her funds, but takes an interest with her husband in the land, in proportion to the amount of the purchase price paid by her, where the land was purchased by the husband and deed taken in his name, under an express agreement with the wife that they should share it in the proportion that each paid on the purchase price. {Post, p. 329.)</p> <p>Cases cited: Turner v. Pettigrew, 6 Hum., 438; Ganaway v. Tarpley, 1 Cold., 580; Sandford v. Weeden, 2 Heis., 75; Ezell v. Wright, 3 Lea, 514; Gordon v. English, 3 Lea, 639.</p> <p>4. Same. Same.</p> <p>If the wife has a trust in lands held in her husband’s name, that is enforceable against him, it will be' enforced against his heirs, devisees, and personal representatives. {Post, pp. 329, .330.)</p> <p>5. Wills. Election.</p> <p>The statement in a will that one of the devisees has a specified interest in a tract of land standing in the testator's name, and therein devised, does not put the devisee to an election between his interest in this land and the benefits conferred upon him by the will. The mention of the devisee’s interest is made obviously for the purpose of recognizing and excepting it out of the operation of the will. (Post, p. 330.)</p> <p>Case cited: Colvert v. Wood, 93 Tenn., 454.</p>

<p>1. Seduction. What is.</p> <p>In seduction it is enough to sustain plaintiff’s case that her willingness or consent to the illicit act was not the result of her own sexual desire or curiosity, aroused by mere opportunity, hut Was induced by acts and conduct, of whatever nature, of the defendant, without which there would have been no willingness or consent on her part. The effectiveness of the defendant’s acts and conduct to induce the plaintiff’s consent rather than their nature, is the material inquiry. The character and situation of the parties, their intelligence, education, . , etc., are material matters for consideration in determining the nature of the female’s consent. (Post, pp. 332-337.)</p> <p>Oases cited: Reedu Williams, 5 Sneed, 580; Franklin v. McCorkle, 16 Lea, 628; Graham v. McReynolds, 90 Tenn., 678; Ferguson v. Moore, 98 Tenn., 342.</p> <p>2. Same. Verdict supported.</p> <p>The facts set out in the Court’s opinion, support a judgment of $2,250 for the plaintiff. (Post, pp. 332, 335, 336.)</p> <p>3. Evidence. Confirmatory statements.</p> <p>In an action for seduction it is competent to support the plaintiff’s evidence on the trial by her confirmatory statement, made next morning after her seduction, giving her version of the affair, especially when it was vigorously assailed and stoutly disputed and denied by defendant. (Post, p. 338.)</p>

<p>1. Bill of Exceptions. Filed too late, when.</p> <p>It was settled law, prior to the Act of 1899, that a bill of exceptions filed after the close of the term at which the case was tried, came too late, and, therefore,-.could not be considered as part of the record. {Post, p. 340.)</p> <p>Cases cited: Clark v. Lary, 3 Sneed, 77; McGavoek v. Puryear, 6 Cold., 34; Jones v. Burch, 3 Lea, 747; Sims V State, 4 Lea, 359; Patterson u. Patterson, 89 Tenn., 151; Ballard v. Railroad, 94 Tenn., 205.</p> <p>2. Same. Sa/me.</p> <p>Under Acts 1899, Ch. 275, authorizing the Court to allow parties time to prepare and file bills of exceptions, not to exceed thirty days after the close of the trial term, if the bill of exceptions appears to have been filed after the expiration of the time allowed by the Court for that purpose, it will not be treated or considered as part of the record. (Post, pp. 341, 342.)</p> <p>Act construed: Acts 1899, Ch. 275.</p>

<p>1. Indictment. Indorsements.</p> <p>It is a fatal defect if the indictment, as copied into the transcript, fails to show the indorsement ‘ ‘ a true hill, ” signed by the foreman of the grand jury. (Post. p. 344.)</p> <p>Code construed: \ 7055 (S.); # 5931 (M. & Y.j; § 5093 (T. & S.)</p> <p>Cases cited: GuDkle v. State, 6 Bax., 626; State v. Herron, 86 Tenn., 448; Canupp v. State, 97 Tenn., 636.</p> <p>2. Same. Same.</p> <p>In copying indictment upon the minutes and into the transcript on appeal, the Clerk should copy all indorsements found-thereon. (Post, pp. 344, 345.)</p> <p>Code construed: § 5892 (S.); $ 4854 (M.- & V.); § 4077 (T. & S.).</p> <p>Cases cited: Brown 'v. State, 7 Hum., 155; State v. Herrin, 86 Tenn., 448.</p> <p>3. Supreme Court. Remanding for stvpply of papers.</p> <p>If it appears on suggestion of diminution that the omitted paper has been lost or mislaid, or is purposely concealed by an interested party, this Court will remand the cause for its supply and certification. (Post, pp. 345, 346.)</p>

<p>1. Actions. For personal injuries do not survive at common law.</p> <p>At common law actions for personal injuries abate with the death of the injured party, and no right of action survives or arises in such cases in favor of the widow or children, or next of kin of the deceased. (Post, pp. 352-354.)</p> <p>Cases cited: Bream u Brown, 5 Cold., 170; Chambers v. Porter, 5 Cold., S76; Platley v. Railroad, 9 Heis.,‘234; Fowlkes v. Railroad, 9 Reis., 831; Trafford v. Express Co., 8 Lea, 97; Railroad v. Lilly, 90 Tenn., 564; Railroad v. Pitt, 91 Tenn., 86; Railroad v. Bean, 94 Tenn., 393.</p> <p>2. Same. For personal injuries, survive by statute.</p> <p>The statutes saving to the widow, children, next of kin, and personal representatives of a decedent the right to recover damages for his personal injuries, preserve for their benefit the original cause of action that accrued to the decedent and devolves it upon them, but do not create any new and independent cause of action in their favor. (Post, pp. 352-355.)</p> <p>Code construed: §§4025-4027, 4029 (S.); R 3130-3132, 3134 (M. & V.); R 2291, 2292 (T. & S.).</p> <p>Cases cited and approved: Haley v. Railroad, 7 Bax., 242; Loague v. Railroad, 91 Tenn., 460; Railroad v. Johnson, 97 Tenn., 670.</p> <p>Cited and disapproved: Railroad v. Pounds, 11 Lea, 130.</p> <p>3. Same. Acts 1883, Oh. 186, does not create new cause of.</p> <p>Acts 1883, Ch. 186, enlarging the scope of the damages recoverable in actions, brought under existing statutes, by the widow, children, next of kin or personal representatives of a decedent for his personal injuries, does not create any new or independent cause of action, but merely regulates the damages recoverable under an existing cause of action. (Post, pp. 354, 355.)</p> <p>Act construed: Acts 1883, Ch. 186.</p> <p>Case cited and approved: Loague v. Railroad, 91 Tenn., 461.</p> <p>4. Limitations, Statute of. Bars action for personal injwries.</p> <p>As the statutes that save a right of recovery for the personal injuries of a decedent to his widow, children, next of kin, and personal representatives, do not create a new and independent cause of action for them, but merely preserve the right of action that accrued to the decedent for their benefit, the statute of limitations that began to run against the decedent continues to run against those who succeed to his rights, notwithstanding their disabilities, and bars the action unless it is brought "within one year after the injury was done. (Post, pp. 355, 356.)</p> <p>Cases cited: Fowlkes v. Railroad, 9 Heis., 830; TrafEord u Express Co., 8 Lea, 107; Greenlee v. Railroad, 5 Lea, 419,</p> <p>5. Same. Concealment of cause of action.</p> <p>An averment of fraudulent concealment of cause of action by defendant, in order to save the running of the statute of limitations, must show the concealment definitely, and that it continued up to a date that rendered it impossible for the statute to run before commencement of suit. (Post, pp. 356, 357.)</p> <p>Case cited: Haynie v. Hall, 5 Hum., 393.</p>

<p>1. Rescission. ' By vendee: •</p> <p>If .a vendee is otherwise entitled to rescission, on account of failure of title to part of the land purchased, his right will not • ■ be defeated by the fact that he surrendered that part of the land to the adverse superior claimant without suit or contest. (Post, pp. 359, 360.)</p> <p>Case cited: Callis v. Coghill, 9 Lea, -138.</p> <p>2. Same. Mutual mistake.</p> <p>An executed sale in gross of land will be rescinded, at the suit of the vendee, on the ground of mutual innocent mistake of the parties, where title failed to one-half in quantity and to more than one-half in value of the lands intended and supposed to be embraced in the deed, including a part, specifically pointed out by the vendor, on which the vendee expected to and did erect his home. (Post, pp. 359-367.)</p> <p>Cases cited and approved: King v. Doolittle, 1 Head, 78; Cook v. Sumner, 1 Sneed,.716; Helm v. Wright, 2 Hum., 72; Cromwell v. Winchester,-2 Head, 390; Horn v. Denton, 2 Sneed, 125.-</p> <p>Cited and distinguished: Waters v. Hutton, 85 Tenn., 109; Moses v. Wallace,¿7 Lea, 413; Blakemore v. ICimmons, 8 Bax., 473 ; Meek v. Bearden, 5 Yer., 467.</p> <p>3. Same. Pleadings.</p> <p>Under a bill averring a certain state of facts and claiming rescission for fraud, the Court may deny rescission for the alleged fraud, and grant it, if the facts averred and proved justify it, on the ground of mutual innocent mistake. (Post, p. 367.)</p>

<p>1.. CONTRIBUTORY Negligence. Question for ¡¡wry.</p> <p>It lies within the exclusive province of the jury to determine, under proper instructions from the Court, whether upon the facts the plaintiff has been guilty of any contributory negligence, and whether, if guilty, plaintiff’s contributory negligence has. been of such character as to defeat his action in toto, or merely to mitigate and reduce the damages. (Post, pp. 369-372.)</p> <p>2.' Same. Forgetfulness of known danger.</p> <p>Momentary forgetfulness of a known danger, that caused plaintiff’s injury does not per se constitute such contributory-negligence as will defeat his action. It is a fact to be considered by the jury along with the other facts of the case bearing upon the question of-contributory negligence. (Post,pp. 372-374.)</p> <p>3. Charge of Court. Special requests.</p> <p>To put the lower Court in error for refusing to give special requests, they must be accurate in every respect. (Post, p. 372.)</p> <p>Cases cited and approved: Railroad v. Fain, 12 Lea, 35; Railroad v. Gurley, 12 Lea, 46.</p>

<p>1. Common Carrier. Liability for insults to passengers.</p> <p>A common carrier — e. g., an electric street railway company — is liable in damages to a passenger not only for injury to his person by the violence of its employe, but likewise for injury to his feelings by the indecent and insulting language of its employe, upon the ground, not of tort or negligence, but of breach of its contract, that obligates the carrier not only to transport the passenger, but to guarantee him respectful and courteous treatment, and to protect him from both violence and insult from strangers, and, a fortiori, from its own employes. (Post, pp. 382, 383.)</p> <p>Case cited: Wadsworth v. Tel. Co., 86 Tenn., 707.</p> <p>2. Same. Same.</p> <p>That a common carrier did not authorize or ratify, but promptly repudiated the violent act or insulting language of its employe that caused injury to the person or feelings of its passenger will not excuse it from liability to the passenger for the damages thus resulting from the breach of its contract. The obligation of its contract is absolute. If it selects agents to perform its contract the carrier and not the passenger must take the risk and assume responsibility for the acts and conduct of their agents. (Post, pp. 384, 385.)</p> <p>Case cited: Pullman Palace Car Co. v. Gavin, 93 Tenn., 33.</p> <p>3. D amases. Vindictime.</p> <p>Exemplary damages are allowed when a wrongful act is done with a bad motive and in disregard of social obligations, or where there is negligence so gross as to amount to positive misconduct. Where fraud, malice, gross negligence or oppression intervenes the law blends the interests of society and of the aggrieved individual, and gives such damages as will operate to deter the defendant and others from similar acts of misconduct. (Post, pp. 388, 389.)</p> <p>Cases cited: Doughty v. Shown, 1 Heis., 303; Railroad v. Garrett, 8 Lea, 439; Cox v. Crumley, 5 Lea, 539; Railroad v. Guinan, 11 Lea, 103.</p> <p>4. Same. Same.</p> <p>Although a common carrier did not authorize or ratify, hut promptly repudiated the grossly oppressive and insulting conduct of its employe towards its prssenger, it cannot thereby escape liability for exemplary damages. Its agent’s act is its own act. (Post, p. 389.)</p> <p>5. DECLARATION. Count on the facts.</p> <p>Under a count on the facts in a declaration the Court will grant such relief, either for tort or for breach of contract, as is justified by the averments. (Post, pp. 386, 387.)</p>

<p>1. Workhouse. Corporal punishment of conmiot.</p> <p>If workhouse commissioners have authority under the statute to inflict corporal punishment upon the inmates of that institution, they have no power to delegate that authority to a workhouse superintendent or other person. (Post, p. 393.)</p> <p>Code construed: §7422 (S.).</p> <p>Cases cited: Cornell u State, 6 Lea, 624; Smith v. State, 8 Lea, 744; Boone v. State, 8 Lea, 789.</p> <p>2. Same. Inmate's cMld.</p> <p>The superintendent cannot lawfully receive an inmate’s child into that institution, or permit it to remain even on payment of its board. Much less can he lawfully demand payment of its board and upon a saucy refusal of his illeg'al demand proceed to chastize the inmate. (Post, pp. 394, 395.)</p>

<p>Ejectment. Plaintiff’s title.</p> <p>The plaintiff in ejectment must show a perfect title to recover even against a defendant who has no title or is a naked trespasser. He cannot recover upon comparison of titles with the defendant.</p> <p>Cases cited: Kingu Coleman, 98 Tenn., 570; Hubbard u. Godfrey, 100 Tenn., 156; Garrett v. Belmont Land Co., 94 Tenn., 479.</p>

<p>1. Constitutional ■ Law. Privileges and immunities of citizens of other States.</p> <p>Under that provision of the Federal Constitution which guarantees to the citizens of each State all the privileges and immunities of'citizens in the several States, a State Legislature is forbidden to pass a statute securing to resident creditors of an insolvent foreign corporation priority over creditors of the same class who reside in other States of the Union, in the distribution of its assets, and hence See. 5, Ch. 31, Acts 1877, which undertakes to accomplish this result, is to that extent unconstitutional and void. (Post, pp. 400-406.)</p> <p>Constitution construed: Art. IV, Sec. 2 (U. S.).</p> <p>Act construed: Acts 1877, Ch. 31.</p> <p>2. Same. Corporation is not a citizen.</p> <p>A corporation is not a citizen within the meaning of that clause of the Federal Constitution which guarantees to the citizens ' of each State all privileges and immunities of citizens in the several States. Hence See. 5, Ch. 31, Acts 1877, is operative against corporations of other States and against residents of foreign countries. (Post. p. 401.)</p> <p>Constitution construed: Art. IV., Sec. 2 (U. S.).</p> <p>Act construed : Acts 1877, Ch. 31.</p> <p>3. *Foreign Cobpoeation. Distribution of its assets among creditors.</p> <p>Where a foreign corporation becomes insolvent, leaving assets in this State for distribution, having creditors resident in this State and in foreign countries, and in other States of the Union, including in the latter class a corporation, the rights of the several classes of creditors are declared to be as follows:</p> <p>(1) Creditors, except the corporation, residents of other States of the Union, are entitled to a pro rata, to be ascertained by an equal division of the entire fund for distribution among all the creditors of the said several classes.</p> <p>(3) The creditors resident in this State are entitle^, in addition to the pro rata received by creditors who are residents of other States, by virtue of Acts 1877, Ch. 31, Sec.' 5, to such sums out of the pro rata assigned to the creditors resident in foreign countries, and to the corporation resident in another State of the Union, as will fully satisfy their claims.</p> <p>(3) Creditors of foreign countries and the corporation of another State take equally with creditors of other States of the Union, but take nothing as against Tennessee creditors until the latter are fully paid. (Post, pp. 400-406.)</p>

<p>1. Municipal Cobpobations. Delay to advertise impounded stoclc that does not vitiate sale.</p> <p>Delay of five days to advertise an impounded mule will not vitiate the sale of the stock and defeat the title of an innocent purchaser, especially when the delay was employed in a search for the owner. {Post, pp. 408-412.)</p> <p>2. Same. Impounding ordinance unreasonable and void, when.</p> <p>A municipal ordinance that directs sale of impounded stock upon two days advertisement is unreasonable and void, and a purchaser at a sale thereunder or his innocent vendee acquires no title. {Post, pp. 412-414.)</p> <p>Cases cited: Knoxville v. King, 7 Dea, 444; Moon v. State, 11 Lea, 35.</p>

<p>1. Exemption. Of harber chair and, mirror.</p> <p>A large chair and mirror, such as are commonly used in harber shops, are exempt, to the head of a family, from execution for his debts.</p> <p>3. Same. Same.</p> <p>A barber is a mechanic, .and as such entitled to exemption from execution for his debts of a chair and mirror used in the prosecution of his trade.</p> <p>Cases cited: Story v. Walker, 11 Lea, 515; Waite v. Praneioli, 90 Tenn., 191.</p>

<p>EROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. H. G. Kyle, Oh.</p>

<p>1. Constitutional Law. Recitals of amendatory statutes sufficient, io7ien.</p> <p>The recital in the caption or body of a statute that it amends “Section 4614 of the Code,” is such recital of the title of the amended statute as satisfies the constitutional requirement that amendatory statutes shall recite in their caption, or otherwise, the title or substance of the statute amended. (Post, pp. 453, 454.)</p> <p>Constitution construed: Article IL, See. 17.</p> <p>Act construed: Acts 1893, Oh. 129.</p> <p>Case cited and approved: State v. Runnels, 92 Tenn., 320.</p> <p>2. Same. Same.</p> <p>A statute which purports and declares in its caption that its object is to amend that section of the Code which punishes carnal abuse of females under ten years of a ge, “so as to raise the .age of consent as set forth in said section,” contains, in its caption, such recital of the substance of the amended statute as satisfies the constitutional requirement that amendatory statutes shall recite, in their caption or otherwise, the title or substance of the statute amended. (Post, pp. 453, 454.)</p> <p>Constitution construed: Article II., Sec. 17.</p> <p>Act construed: Acts 1893, Ch. 129.</p> <p>Code construed 6455 (S.); I 5365 (M. & V.); § 4614 (T. & S.).</p> <p>3. Same. Same.</p> <p>The title and substance of the original age of consent statute having been sufficiently recited in the caption or body of the amendatory statute, it was unnecessary to refer to an intermediate amendatory statute merely changing the punishment of the offense, otherwise than as ‘' Chapter 56, Acts 1871. ” (Post, pp. 453, 454.)</p> <p>Constitution construed: Article II., Sec. 17.</p> <p>Act construed: Acts 1893, Ch. 129.</p> <p>4. Same. .Title and subject of statutes.</p> <p>A statute whose general subject, as deduced from a just and proper analysis of its caption and provisions, is the prevention and punishment of unlawful carnal connection with young females, does not embrace more than one subject, within the meaning of the constitutional provision, although it provides that the age of consent be raised from ten to twelve years, and also for the punishment of unlawful carnal knowledge with females over the age of twelve and under the age of sixteen years and one day. (Post, pp. 454, 455.) '</p> <p>Constitution construed: Article II., Sec. 17.</p> <p>Act construed: Acts 1893, Ch. 129.</p> <p>5. Same. Same.</p> <p>A statute with one general subject may, without violation of the constitutional provision, embrace as many subdivisions, provisos, exceptions, etc., pertinent to that subject, as can be grouped together without incongruity. (Post, p. 455.)</p> <p>Constitution construed: Article II., Sec. 17.</p> <p>6. Same. Same.</p> <p>A statute whose general subject, as expressed in the title, is the prevention of unlawful carnal connection with young females, does not violate the constitutional requirement that statutes shall contain but one subject, which shall be expressed in the title, by providing for the punishment of aiders and abettors in the crime. (Post, pp. 455, 456.)</p> <p>7. Same. Same.</p> <p>It is not essential to the validity of a statute that its title shall be an index or epitome of its provisions, nor that its title shall set out the modes, means,' or instrumentalities that shall be provided in the body of the Act for the accomplishment of its general purpose as expressed in the title. (Post, p. 456.)</p> <p>Case cited: State v. Yardley, 95 Tenn., 546.</p>

<p>1. Assignment op EBRor. Insufficient, when.</p> <p>An assignment of error that “the verdict is against the evidence,” or, what is the same thing, against “the charge of the Court,” is wholly insufficient to challenge the sufficiency of the evidence to support the verdict. The assignment of error, to be effective for this purpose, must aver there is no evidence to support the verdict. (Post, pp. 458, 459.)</p> <p>Cases cited and approved: Kirkpatrick v. Jenkins, 96 Tenn., 85; Cherokee, etc., County v. Hilson, 95 Tenn., 2; Poole v. Jackson, 93 Tenn., 62; Railroad v. Kenley, 92 Tenn., 208; Railroad u Stoncipher, 95 Tenn., 316.</p> <p>2. Chaege oP Court. Additional instructions.</p> <p>After the Court has charged the jury fully and accurately upon a particular subject, he may properly refuse to give further instructions on that subject at the request of a party. (Post, pp. 459, 460.)</p> <p>3. Same. Same.</p> <p>Thé Court’s refusal to give special requests for further instructions made by a party cannot be assigned as error unless the requests were presented after the regular charge was delivered, and are, in their nature, additional, not mere repetitions of the charge. (Post, pp. 461, 462.)</p> <p>Cases cited and approved: Roller v. Bachman, 5 Lea, 158; Railroads v. Foster, 88 Tenn., 673; Railroad v. ÉLendrix, 88 Tenn., 711; McCadden v. Lowenstein, 92 Tenn., 614.</p>

<p>Actions. Dismissal must be pleaded.</p> <p>A defendant cannot avail himself of a compromise and dismissal of the action by mere motion if the plaintiff resists, but must plead the fact.</p>

<p>1. CORPORATIONS. Stockholders’ liability on subscriptions.</p> <p>Subscribers to the stock of a corporation to be organized with a capitalization of 130,000, cannot be held upon their contract if, without their acquiescence or .participation, the corporation is capitalized at $35,000. (Post, pp. 468-472.)</p> <p>Cases cited: 18 Wall., 333; 136 Mass., 155; 9 Cush., 433.</p> <p>3. Same. Same.</p> <p>Subscriptions to the stock of a corporation cannot be enforced if the corporation has not the power to issue shares of stock to the subscribers in compliance with the terms of their contract. (Post, pp. 473, 474.)</p> <p>Case cited and approved: Railroad u Knoxville, 98 Tenn., 3.</p> <p>3. Same. Same.</p> <p>The receiver and creditors of an insolvent corporation stand upon no hig'her ground than the corporation itself in a solvent state, as regards the enforcement of a contract of subscription which the corporation, without fault or participation of the contesting subscribers, has failed or disabled itself to perform on its part. (Post, p. 473.)</p> <p>4. Same. Same.</p> <p>Subscribers to the stock of a corporation are not estopped, especially if estoppel is not relied upon in the pleadings, to resist collection of their subscriptions on account of the failure of the company to comply with essential conditions of the contract of subscription, by the fact that they may have become directors, or attended meetings of the directors and stockholders, if they did not participate or acquiesce in the. illegal-acts of the corporation, but promptly repudiated such action after notice. (Post, pp. 474, 475.)</p> <p>¿ases cited: 4 C. B., 404; 30 N. H., 390; 5 Neb., 56; 39 Me., 571.</p>

<p>1. Homestead. Effect of levying officer’s failure to assign.</p> <p>The sale, under execution, of land which is subject to homestead; and of greater value than $1,000, without assignment of homestead therein to the debtor, is voidable at his election. The statute-requiring the officer levying execution to assign homestead in the lands levied on, is so far mandatory as to render the sale made without compliance with its terms voidable. It is the sale, not the levy, that is voidable. {Post, pp. 479, 480.).</p> <p>Code construed: U 3798, 3804 (S.); U ¿935, 3940 (M. & V.); ?¿?{ 3110a, 3114a, 3116a (T. & S.).</p> <p>Cases cited: Cowan v. Carson, 101 Tenn., 533; Briscoe v. Vaughn, ante, p. 308; Flatt v. Mack, 16 Lea, 371; Gray v. ilaird, 4 Lea, 313; Burnett v. Austin, 10 Lea, 565.</p> <p>3. Res Adjüdicata. What is not.</p> <p>A- decree dismissing a bill, which has been vacated by appeal, is not such an adjudication of the matters therein pleaded as will defeat a subsequent bill filed for the same purpose. (Post, pp. 481-483.)</p>

<p>1. Res Adjudicata. Essentials of.</p> <p>In order that a judgment may he effective as res adjwMeata, it is essential that the party sought to he concluded thereby should have sued or been sued, in both cases, in the same capacity or character, and to enforce the same right. (Post, p. 488.)</p> <p>2. Same. Case in judgment.</p> <p>Hence, children inheriting from both father and mother are not estopped to set up title to the whole of a tract of land inherited from the mother by reason of the fact that a part of it had been, by inadvertence, embraced in the description of a tract, which they, as heirs of their father, had brought to sale by decree for foreclosure of a mortgage, especially where the purchaser had the fullest notice of the state of the titles. (Post, pp. 485-489.)</p>

<p>1. Demurrer to Evidence. Not proper upon agreed facts.</p> <p>It is not proper practice to demur to evidence where the facts are agreed upon by the parties. (Post, p. 495.)</p> <p>3. Same. Insufficient, when.</p> <p>A demurrer to evidence is bad which does not set out the evidence otherwise than by reference to a written agreement as exhibit No. 1 thereto, which agreement was not marked filed, or made part of record by bill of exceptions. (Post. p%y. 492, 493.)</p> <p>Case cited: Hopkins v. Railroad, 96 Tenn., 418.</p> <p>3. Jtjby Trial. Not proper, when.</p> <p>It is not proper practice to submit a case to a jury where the parties have agreed upon the facts and amount of plaintiff’s recovery, should one be awarded. There remains no question, in such case, except one of law for the Court. (Post. pp. 494, 495.)</p>

<p>1. Actions. By parent for minor child's injwies.</p> <p>The parent can maintain action for loss of service and expenses of care and treatment of child resulting from personal injuries of the child by another’s negligence, although the child has already recovered in a suit brought by himself for such injury.</p> <p>Case cited: Bamberger v. Citizens’ Street Railroad Co., 95Tenn. 30.</p> <p>2. New Tbial. Misconduct of jury.</p> <p>And it is misconduct on the part of the jury that requires the granting of a new trial, and reversal of judgment for defendant, for them to introduce into their deliberations, and consider for any purpose, on the trial of the parent’s action for his child’s injuries, the fact that the child had, himself, recovered a judgment therefor.</p> <p>Cases cited and approved: Ryan v. State, 97 Tenn., 206; Citizens’ Street Railway Co. v. Burke, 98 Tenn., 653.</p>

<p>1. “ UNIFORM Text-book Act.” ConstttuMonal.</p> <p>Acts 1899, Ch. 205, commonly known as the “ Uniform Text-hook Act,” which authorizes the selection and adoption, through a commission, of a uniform series of text-books for the public schools of the State, and provides for conveniently furnishing same to patrons at reasonable prices, and for the enforcement, under penalties, of the use in the public schools of the particular books adopted is a constitutional and valid statute. (Post, pp. 504-537.)</p> <p>Act construed: Acts 1899, Ch. 205.</p> <p>2. Same. Monopoly and special primileges.</p> <p>That feature of the “ Uniform Text-book Act” of 1899 does not render it obnoxious to the constitutional provisions against monopoly and special class legislation which authorizes a commission appointed by the Governor to select and adopt a uniform series of text-books for the public schools of the State, and to 'contract with the publisher or publishers who will furnish the books cheapest to provide and sell them at fixed prices to patrons of the schools, and which provides further for the enforcement, under penalties, of the use in the public schools of the particular books thus adopted. (Post, pp. 511-519.)</p> <p>Constitution construed: Art. I., ?§ 8, 22; Art. XI., § 8.</p> <p>Act construed: Acts 1899, Ch. 205.</p> <p>Cases cited: Memphis v. Memphis Water Co., 5 Heis., 529.</p> <p>3. Same. Same.</p> <p>The privilege which a publisher acquires under a contract with the State to furnish the patrons of the public schools with a uniform series of text-books, to be used therein, is not of a monopolistic nature, where the purchaser obtains that privilege in open and free competition with all other publishers, by consenting to furnish the books at a less price than others. If this be a monopoly, it is one for the benefit of the State and its citizens, and not prohibited by the Constitution. The monopoly prohibited by the Constitution is a privilege farmed out to the highest bidder or conferred because of favoritism to the donee, and not one awarded to the lowest bidder or for the convenience and benefit of the public. (Post, pp. 518, 519.)</p> <p>4. Same. Same.</p> <p>Persons who avail themselves of the benefit of the public schools have no just cause to complain of any infringement of their freedom to contract, if the State, that establishes and maintains the schools, prescribes a uniform series of text-books for its schools, procures and designates a publisher to furnish them at the lowest price obtainable, and compels the use of these particular books in its schools to the exclusion of all others. Th e light of the citizen to purchase any books he may choose on the open market cannot avail him to force the books of his choice into the schools maintained by the State. (Post, pp. 51&-518.)</p> <p>Cases cited: Transportation Co. v. Bloch, 86 Tenn., 392; Marr v. W. U. Tel. Co., 85 Tenn., 529; Coleman v. Satterfield, 2 Head, 264; Taylor v. Taylor, 12 Lea, 490; Truss v. State. 13 Lea, 311; Dugger v. Ins. Co., 95 Tenn., 245.</p> <p>5. Same. Contract valid though State is not bound.</p> <p>Although the State does not bind itself by the contract with the publisher to furnish text-books to the patrons of the public schools the contract is nevertheless valid and binding upon the publisher, and inures to the benefit of the patrons. (Post, pp., 519, 520.)</p> <p>Case cited: 5 Sawyer, 502.</p> <p>6. Same. Stipulation that prices shall he as law here as elsewhere.</p> <p>The stipulation in the contract that the publisher has never furnished, and is not now furnishing, the same books to any State, county or school district at a less price, where like conditions prevail as in this State, and under this contract, is not too indefinite for enforcement. (Post, pp. 520, 521.)</p> <p>7. Same. Cash pwchases.</p> <p>The provision in the statute and contract that the purchaser shall pay cash for books in certain cases is a reasonable and valid one. (Post, pp. 522, 523.)</p> <p>8. Same. Does not delegate legislative power.</p> <p>The “Uniform Text-book Act” of 1899 does not delegate legislative power — i. e., the power to enact and repeal statutes — but only confers administrative or executive functions, by its provisions for a commission to select textbooks for the schools, to make contracts for obtaining them, and to arrange and perfect details of plans for delivery of books to patrons at lowest price obtainable, and, in connection with the Governor, to announce when everything is ready for the operation of the schools under the Act. The Act, by its terms, goes into effect from its date, and is not, therefore, put into effect by any act of the Governor or commission. The arrangement of details, under the Act, is such as is usually and necessarily left to a commission or other public agent. It is impossible of direct performance by the Legislature. (Post, pp. 523-526.)</p> <p>9. Same. Local-government.</p> <p>The ‘ ‘ Uniform Text-book Act ” of 1899 denies no just measure of local self-government to the people. The people have no inherent right to administer their local school affairs as each county or district shall deem right and proper. No such right is conferred by the Constitution. The establishment and regulation of public schools are legislative functions. The legislative power, in this regard, is practically unlimited and is not exhausted by exercise. It may abolish old systems and inaugurate new ones at its pleasure. (Post, pp. 527-533.)</p> <p>Constitution construed: Art. XI., $ 1?.</p> <p>10. Same. School fund.</p> <p>The fact that a portion of the funds to maintain the public schools may be derived from taxes levied by the counties does not wrest the public schools from such regulation and control by the Legislature as is provided in the “ Uniform Text-book Act ” of 1899. (Post, pp. 530-533.)</p> <p>11. Same. Legislative power.</p> <p>The power of the Legislature to regulate and control the public schools is based upon the police power and the right of the State to regulate institutions charged with a public use. (Post, pp. 514-516.)</p> <p>18. Constitutional Law. Must point out clause violated.</p> <p>The principle is reaffirmed and illustrated that he who assails . the constitutionality of a statute must put his finger on the specific provision of the Constitution which it, expressly or by necessary implication, violates. (Post, p. 510.)</p> <p>13. Same. General assault on statute unamaiUng.</p> <p>The principle is reaffirmed and illustrated that a statute cannot be ‘ ‘ invalidated upon some supposed or assumed natural right or equity; nor upon the general statement that it is opposed to the inherent rights of freemen; nor upon any spirit supposed to pervade the Constitution not expressed in words; nor because it is opposed to the genius of a free people; nor upon any general or vague interpretation of a provision beyond its plain and obvious import.” (Post, pp. 510, 511.)</p> <p>Cases cited: Bell v. Bank, Peck, 269; Hope v. Deadrick, 8 Hum., 8; Demoville & Co. v. Davidson County, 87 Tenn., 220; Davis v. State, 3 Lea, 277; Stratton v. Morris, 89 Tenn., 497; Luehrman v. Tax. Dist., 2 Lea, 438; Reelfoot Lake v. Dawson, 97 Tenn., 159; Henley v. State, 98 Tenn., 683.</p> <p>14. Police Power. Scope.</p> <p>The scope and meaning of the term “police power ” has never been defined. It extends to the health, morals, safety, peace, order, comfort, convenience, and general well-being of the public; but this enumeration of the qbjects for which it may be exercised is not complete. (Post, pp. 531, 533.)</p> <p>Cases cited: Smith v. State, 100 Tenn., 505; Harbison v. Knoxville Iron Co., post, p. 421.</p>

<p>Chancery Jurisdiction. Contest for office of Sheriff.</p> <p>The Chancery Court has no jurisdiciion of a contest over the office of Sheriff. The Circuit Court has exclusive jurisdiction of such contest. A contest of this character is not a “ cause ” within the meaning of the Act of 1877, conferring upon Chancery Courts concurrent jurisdiction of “ all civil causes of action triable in the Circuit Court,” except for unliquidated damages.</p> <p>Acts construed: Acts 1877, Ch. 97.</p> <p>Code construed: §<¡1309, 6109 (S.); §§ 1098, 5043 (M. & V.); §889 (T. & S.).</p> <p>Cases cited and approved: Simmons v. Leonard, 89 Ténn., 623; Anderson u Gossett, 9 Lea, 644.</p> <p>Cited and distinguished: Morris v. Nashville, 6 Lea, 337.</p>

<p>Paedost. Conviction.</p> <p>A conviction is final in such sense that the Governor’s power to grant pardon attaches under the Constitution where, according to the usual practice, the Clerk, without special direction oí the Court, enters formal judgment and sentence on the verdict of the jury, although the defendant on the same day. obtains an order releasing himself on bond “pending the filing and hearing of the motion for a new trial,” hut subsequently obtains a pardon and abandons the making of a motion for new trial.</p> <p>Constitution construed: Art. III., See. 6.</p> <p>Code construed: § 7227 (S.); I 6093 (M. & V.); § 5252 (T. & S.).</p> <p>Cases cited: Allen u. State, M. & Y., 295; Smith u State, 6 Lea; 638; Crane v. State, 94 Tenn., 98.</p>

<p>1. Easement. Drainage of surface water.</p> <p>A landowner, whether in country or city, has an easement for drainage of surface water in its natural flow over the lower lands of a neighboring owner, and if the latter places an obstruction of any character upon his land that arrests this drainage, and thereby causes injury to the former, an action lies for the damages.</p> <p>Cases cited: Carriger v. Railroad, 7 Lea, 388; Railroad v. Hays, 11 Lea, 382; Railroad v. Mossman, 90 Tenn., 157.</p> <p>2. Action. Maintainable by occupant of lot.</p> <p>The occupant of a town lot or other lands, whether he is the owner in fee, a life tenant, or a lessee, if injured in his possession by the wrong of another — e. g., by the obstruction of his natural drainage of surface water over the lower lands of a neighboring proprietor' — may recover damages for the injury done, the amount of damages to be measured by the injury ' to Kis particular estate or interest in the property. /</p> <p>3. Same. Same.</p> <p>Although a pond, from which noxious vapors are emitted, causing sickness to plaintiff, is situated on his own premises, he may, nevertheless, maintain an action, for the damages thus sustained, against the neighboring- landowner, whose wrongful act, in obstructing the natural flow of surface water across his premises, had created the pond.</p> <p>4. Proximate Cause. Averment of.</p> <p>It is not essential to aver, in direct terms, that defendant’s wrongful act was the natural and proximate cause of plaintiff’s injury. It is sufficient if, from the facts averred, it appears substantially and as a necessary inference that plaintiff’s injury resulted from defendant’s wrongful act.</p>

<p>COVENANTS. Bun with land and bind assignee.</p> <p>Purchasers, immediate and remote, oí the properties, including' rights of way, of a railroad company, and whether at forced or voluntary sale, are hound by its contract or covenant to run daily passenger trains along and over a portion of its right of way conveyed to the ■ company, upon consideration that it would so run its trains. Such covenant runs with the land and binds assignees, although there is no express provision to that effect in the original contract. It is a continuing covenant, upon which the landowner and his vendees may sue the company and its assignees as often as breaches occur.</p> <p>Cases cited and approved: 79 Ala., 569; 125 Ind., 19; 131 Ind., 413; 76 Ind., 488; 108 Mass., 175; 64. Ga., 492; 21 Ohio, 235; 58 Ill., 65; 27 Pa. St., 257; 6 Vt., 276; 82 Ga., 501; 64 N. C., 1; 9 Ohio St., 351.</p> <p>Cited and distinguished: Bream v. Dickerson, 2 Hum., 128; Brooks v. Smith, 1 Shannon, 158; 44 Ohio St., 612; 4 N. Y., 130; 92 Cal., 95.</p>

<p>1. Constitutional Law. Title and subject of statutes.</p> <p>If the title of a statute be limited to a particular part or branch .of a general subject the legislation under that title, to be valid, must be confined within the limits so prescribed. (Post, pp. 591, 592.)</p> <p>Case eited and approved: Hyman v. State, 87 Tenn., 109, 113.</p> <p>,2. Same. Case, in judgment.</p> <p>Acts 1899, ch. 107, is unconstitutional for the reason that matters are treated in the body of the statute that are not expressed in the title. The subject expressed in the title is “the filing and recording of labels, trademarks,” etc., and their protection. The matters treated in the body of the statute are (1) that named in the title; (2) adopting or using labels, trademarks, etc., not filed and recorded, and their protection; (3) the unauthorized use of the name or seal of one person by another. (Post, pp. 590-592.)</p> <p>Constitution construed: Art. II., §17.</p> <p>Act construed: Acts 1899, Ch. 107.</p>

<p>1. Taxation. Imposition of privilege tax does not legalize an unlawful business.</p> <p>The imposition of a privilege tax upon a business — e. g., the sale of cigarettes — that is forbidden and punished by the criminal laws, does not operate to render such business legal, or to entitle one who has paid the tax and obtained license therefor to pursue such business in violation of the criminal laws. (Post, pp. 597-600.)</p> <p>Constitution construed: Art. II., $28.</p> <p>Acts construed: Acts 1897, Ch. 30; Acts 1899, Ch. 432.</p> <p>Cases cited: Palmer & Cartwright v. State, 88 Tenn., 563; State v. Sehlier, 3 Heis., 283; French v. Baker, 4 Sneed, 193; Robertson v. Henegar, 5 Sneed, 258.</p> <p>2. Statutes. Bepeal.</p> <p>Repeals of statutes by implication are not favored. The repug-nancy between the two statutes must be very plain and unavoidable. Both their terms and necessary operation must be wholly irreconcilable. (Post, pp. 600-602.)</p> <p>Cases cited: Durham v. State, 89 Tenn., 728; Frazier v. Railroad, 88 Tenn., 140; Reelfoot Lake District v. Dawson, 97 Tenn., 152; Austin v. State, 101 Tenn., 573.</p> <p>3. Same. Same. Case in judgment.</p> <p>Acts 1898, Ch. 30, forbade, under penalty, the sale of cigarettes. Acts 1899, Ch. 432, imposed a privilege tax on dealers in cigarettes “not sold in violation of criminal law.” The former statute was an exercise of police power; the latter an exercise of the taxing power. Held: That Act of 1899 did not repeal Act of 1897 by implication. (Post, pp. 600-603.)</p> <p>Acts construed: Acts 1897, Ch. 30; Acts 1899, Ch. 432.</p> <p>Case cited: Austin v. State, 101 Tenn., 573.</p> <p>4. ' CigaRextes. Not legitimate articles of commerce.</p> <p>The doctrines of the case of Austin v. State, 101 Tenn., 566, holding that cigarettes are not legitimate articles of commerce, and that the ten-cigarette package is not the original package of commerce, are reaffirmed. (Post, pp. 602, 603.)</p>

<p>1. Actions. Maintainable by bona fide holder of punchouts, when.</p> <p>One who has purchased fairly, honestly, and at a reasonable price, coupons, scrip, punchouts, store orders, or other evidences of indebtedness payable, by their terms, otherwise than in money, issued by an employer to his employe for the latter’s wages, is, within the meaning of Acts 1899, Ch. 11, a bona fide holder thereof, and entitled, under that Act, to recover, on the same conditions as the employe himself, the face value of such paper in money, although it purports, on its face, to be “not transferable.” (Post, pp. 606-610.)</p> <p>Act construed: Acts 1899, Ch. 11.</p> <p>2. Constitutional Law. Employer’s Act constitutional</p> <p>Acts 1899, Ch. 11, which compels employers to pay, in money at face value, when presented as therein required, coupons, scrip, punchouts, store orders, or other evidences of indebtedness, payable, by their terms, otherwise than in money, issued to their employees for wages, is not unconstitutional as an unjust and arbitrary curtailment of the freedom of contract, in violation of “the law of the land” and “due process of law” clauses of the State and Federal Constitutions. (Post, pp. 610-615.)</p> <p>Constitution construed: Art. I., Sec. 8; TJ. S. Con., XIV. Amendment, Sec. 1.</p> <p>Act construed: Acts 1899, Ch. 11.</p> <p>Cases cited and approved: Stratton v. Morris, 89 Tenn., 521; Henley v. State, 98 Tenn., 698; Sutton v. State, 96 Tenn., 710; Harris v. Railroad, 99 Tenn., 705.</p> <p>3. Same. Corporations included in “law of the la/nd” and “duepro-cess ” clauses of Constitutions.</p> <p>The word “man” in the “law of the land” clause of the State Constitution, and the word “person” in the “due process” clause of the Federal Constitution, include corporations. (Post, p. 611.)</p> <p>Constitution construed: Art. I., See. 8; U. S. Con., XIY. Amendment, Sec. 1.</p> <p>Cases cited and approved: Railroad v. Harris, 99 Tenn., 705; Har-bison v. Knoxville Iron Co., ante, p. 431; Dugger v. Ins. Co., 95 Tenn., 350; 164 U. S., 578; 165 U. S., 154.</p> <p>4. Same. Both “liberty ” and “property ” include right of contract.</p> <p>The words “liberty” and “property” as used in said clauses of the State and Federal Constitutions include and protect the right of lawful contract as to labor and its compensation. (Post, p. 611.)</p> <p>Constitution construed: Art. I, Sec. 8; CJ. S. Con., XIV. Amendment, Sec. 1.</p> <p>Cases cited: Harbison v. Knoxville Iron Co., cmte, p. 431; Bank v. Divine Grocery Co., 97 Tenn., 611; Dugger v. Ins. Co., 95 Tenn., 353; 165 U. S., 589; 169 U. S., 391; 137 U. S., 684; 16 Wall., 137; 58 Am. Hep., 640.</p> <p>5. Same. Right of contract subject to curtailment by statute.</p> <p>The right of contract is not absolute and unlimited, but subject to control by any legislation that does not conflict with said clauses of the State and Federal Constitutions. (Post, pp. 611, 612.)</p> <p>Case cited: Harbison v. Knoxville Iron Co., ante. p. '431.</p> <p>6. Same. “Law of the land ” and “due process of law ” are the same.</p> <p>The terms “law of the land” and “due process of law” mean the same thing. (Post, p. 421.)</p> <p>Cases cited: Railroad v. Harris, 99 Tenn., 704; 96 U. S., 431.</p> <p>7. Same. Legislative power.</p> <p>All legislative authority of the State is vested in the General Assembly; and every enactment of that body, whenever passed, has the force of a valid law, unless it be in conflict with some delegated power of the Federal government, or with some restriction of the State Constitution. The Courts cannot annul statutes upon the supposed ground of their conflict with principles of natural equity or with the inherent rights of freemen or the like. (Post, pp. 613, 614.)</p> <p>Constitution construed: Art. 11., Sec. 3.</p> <p>Cases cited and approved: Reelfoot Lake Dist. v. Dawson, 97 Tenn , 159; Stratton v. Morris, 89 Tenn., 512; Henley v. State, 98 Tenn., 682.</p>

<p>1. Nuisance. What constitutes.</p> <p>The owner of a town lot creates a public nuisance who conveys, by a private sewer, the garbage and water from a kitchen sink, with hydrant water, into a public alley, where they form a noxious pond in front of a neighbor’s house. [Post, p. 618.)</p> <p>Code construed: g 6869 (S.); § 5746 (M. & V.); <¡ 4913 (T. & S.).</p> <p>2. Municipal Cobpoeations. Abatement of nuisance.</p> <p>The failure or refusal of a city to abate or remove a public nuisance, caused by the collection of garbage and water from a private sewer into a noxious pond in a public alley, by the erection of a public sewer for that purpose, or by prosecution of the person creating the nuisance, does not render the city liable in damages to a citizen suffering injury from the nuisance. (Post, pp. 618-624.)</p> <p>Cases cited and approved: Horton v. Mayor, 4 Lea, 47; Davis v. Knoxville, 90 Tenn., 601-603; McCrowell v. Mayor, 5 Lea, 688; Conelly v. Nashville, 100 Tenn., 265.</p> <p>Cited and distinguished: Memphis.^. Lasser, 9 Hum., 757; Nashville v. Brown, 9 Heis, 1; Niblett v. Nashville, 12 Heis., 684; ' Knoxville v. Bell, 12 Lea, 158; State v. Shelbyville, 4 Sneed, 177; Staten. Barksdale, 5 Hum., 143.</p>

<p>1. “ Jud&bs’Acts.” ConstitiitionaMty and effect of.</p> <p>The judicial reform statutes of 1899, whereby certain chancery divisions and judicial circuits were abolished, and the jurisdiction and pending' business of the Courts composing same were- transferred to other existing divisions and circuits and the Judges thereof, are constitutional and valid; and said statutes had the effect to extinguish the abolished divisions and circuits, but not the Courts composing same, and removed the Chancellors and Judges thereof from office, depriving them of their right to future salary, and divesting them of all judicial functions, which are transferred to the Chancellors and Judges of the surviving divisions and circuits. (Post, pp. 626-640.)</p> <p>Constitution construed: Art. II., Secs. 1, 2; Art. VI., Secs. 1, 4, 7.</p> <p>Acts construed: Acts 1899, Chs. 212, 214.</p> <p>Cases cited and approved: Coleman v. Campbell, 3 Shannon’s</p> <p>' Cases, 355; Halsey v. Gaines, 2 Lea, 316; State v. Thornton, 102 Tenn., 509; McCully v. State, 102 Tenn., 509.</p> <p>Cited and distinguished: State v. Leonard, 86 Tenn., 485.</p> <p>2. Same. Omission of county in general redistricUng Act does not vitiate judicial reform statutes.</p> <p>The omission of a county from the general judicial redistricting Act, to go into effect in 1902, does not vitiate the judicial reform statutes of 1899 abolishing certain chancery divisions and judicial circuits and assigning the counties and Courts comprising same to other existing divisions and circuits. (Post, pp. 643, 644.)</p> <p>3. Constitutional Law. Departments of government.</p> <p>The State Constitution creates distinct and independent departments of government, invests each with exclusive powers, and forbids any department to invade the province or assume the powers of another department. Hence, the Courts will not assume to keep the conscience or review the discretion of the Legislature, and thereby pass upon the wisdom, policy, expediency, or good faith of the action of that body in passing or refusing to pass statutes. If statutes violate no clause of the Constitution, the Courts have no power over their life. The Legislature is amenable to the people for its action in matters confided to its exclusive discretion.. The ballot box, not the Courts, is the remedy for abuse of its powers in matters of this character. (Post, pp. 640, 642-647.)</p>

<p>FROM JEEFERKOIT.</p> <p>Appeal in error from Circuit Court of Jefferson County. W. R, liicms, J.</p>

<p>1. Negligence. Presumed, when.</p> <p>Negligence on the part of an electric street railway company in the selection, construction or supervision of its guy wire, is presumed, without further evidence, from the fact that such wire, dangerously charged with electricity, falls on or near a public street, even though its fall was caused by a stroke from the deranged trolley of a passing ear. (Post, pp. 667-672.)</p> <p>3. Electbic Street Railways. Required to exercise high degree of care.</p> <p>Electric street railways are required to exercise a high degree of care both in the construction of their lines and in the continued maintenance of the same in a good and safe condition. (Post, p. 670.)</p> <p>Cases cited: 31 Col., 371; 107 Cal., 120.</p>

<p>Privilege Tax. On ayents for laundries located outside the State, valid.</p> <p>The imposition of a privilege tax upon “agents for laundries located outside the State ” does not infringe the commerce clause of the Federal Constitution. The business in which such agent engages, to wit, gathering up soiled linen and forwarding it to his nonresident principal to be laundered, and receiving- and delivering it to the owners on its return, and collecting the price of the service, does not constitute a transaction of commerce.</p> <p>Case cited and approved: 8 Wall., 168.</p> <p>Cited and distinguished: State i>. Scott, 98 Tenn., 254.</p>

<p>Appeal. Contempt.</p> <p>Appeal does not lie from a judgment inflicting punishment for contempt committed in the presence of the Court. The remedy against arbitrary and oppressive judgments in such cases is by habeas corpus, or by writ of error or certiorari, with su- . persedeas to be granted by this Court.</p> <p>Cases cited: Ex parte Martin, 5 Yer., 456; Ragsdale v. State, 2 Swan, 415; State v. Galloway, 5 Cold., 327; Hundhausen v. Ins. Co., 5 Heis., 702; Brooks v. Fleming, 6 Bax., 331; State v. Warner, 13 Lea, 52.</p>

<p>1. Municipal CORPORATIONS. Charter void, when.</p> <p>Strict and literal compliance with statutory requirements is essential in proceeding's for the incorporation of a municipality. Hence, a municipal charter is void if it does not appear that the application or charter was registered as required by statute. Production of the charter in proof by the County Register, without his certificate of its registration, affords no presumption that it has been reg-istered. (Post, pp. 688, 689.)</p> <p>Code construed: $ 1897 (S.).</p> <p>Cases cited and approved: Woodbury v. Brown, 101 Tenn., 707; Ruohs v. Athens, 91 Tenn., 35.</p> <p>S,. Same. No estoppel to assert invalidity of charter.</p> <p>The dismissal of a suit brought to enjoin the incorporation of a municipality upon the ground that the proceedings were fraudulent and intended to evade the four-mile law, does not prevent or estop anyone in a subsequent suit to insist upon the invalidity of the charter on account of failure to comply with essential requirements of the statutes, especially when such defects occurred subsequent to such dismissal. (Post, pp. 689, 690.)</p> <p>A. Same. Active operations required under fou/r-mile law.</p> <p>To render sales of liquor within four miles of a school-house legal as having been made within au incorporated town, there must be not only a valid incorporation of the town, but active organization and operation, in good faith and- for corporate purposes must be maintained under its charter. (Post, pp. 690-693.)</p> <p>Cases cited and approved: State v. Waggoner, 88 Tenn., 394; Buck v. State, 5 Lea, 351.</p> <p>-4. Same. Power of Legislative over.</p> <p>The Legislature has absolute power over the creation of municipal corporations. It may, at its pleasure, provide for their creation, or prohibit their creation altogether. It dictates the terms upon which municipal charters shall be granted. It confers such powers and duties and imposes-such burdens and restrictions upon them as are deemed expedient. (Post, p. 695.)</p> <p>5. CONSTITUTIONAL Law. Amendment of foiw-mile law.</p> <p>Acts 1899, Ch. 231, which makes all municipal corporations, created after its passage, with not exceeding two thousand inhabitants, subject to the operation of the four-mile law, is constitutional and valid. If the classification doctrine applies to statutes of this character, the classification of this statute is not arbitrary and capricious, but natural and reasonable. (Post, pp. 693-697.)</p> <p>Constitution construed: Art XI., §8.-</p> <p>Act construed: Acts 1899, Ch. 221.</p> <p>Cases cited and approved: Railroad v. Harris, 99 Tenn., 708; Bal-lentine v. Pulaski, 15 Lea, 633; Williams v. Nashville, 89 Tenn., 487; Reelfoot Lake Dist. v. Dawson, 97 Tenn., 153; Burnett v. Maloney, 97 Tenn., 697.</p> <p>Cited and distinguished: Hatcher v. State, 12 Lea, 368.</p>

<p>1. Contract. Not against publAc policy.</p> <p>A contract is not void, as being contrary to public policy, by which the seller of a livery stable and outfit obligates himself to the purchaser not to engage in the same business at the same place so long as the latter continues in the business at that place.' (Post, pp. 699, 700.)</p> <p>Cases cited: Slack v. Suddoth, 102 Tenn., 375.</p> <p>2. Damasks. Measwre of.</p> <p>The measure of damages for the breach of a contract by the seller of a livery stable and outfit not to engage in business at the same place so long as his purchaser remained in that business, is not the difference in the value of the property with the good will and without the seller’s competition, and the value of the property without the good will and with competition of the seller, but such actual damages and loss as the purchaser may be able to prove up to the date of the institution of the action. (Post, pp. 700-704.)</p> <p>Cases cited: Muse v. Swayne, 2 Lea, 251; Leinau v. Smart, 11 Hum., 307; Slack v. Suddoth, 102 Tenn., 375; Bank u. Bank, 7 Lea, 420.</p> <p>3. Injunction. Is the effective remedy, tohen.</p> <p>Injunction is the effective remedy for breach of a contract by which one party agrees not to eng'age in business in competition with another at a particular place for an unlimited time, where the contract does not fix any amount that shall be recoverable for its breach. (Post, p. 703.)</p>

<p>1. Shbrij'E'. Compensation of.</p> <p>A Sheriff who has contracted with a county to keep all prisoners confined in its jail and workhouse, whether for trial or under workhouse sentence, for a gross sum payable monthly, relinquishing to the county all fees allowed by law for such service, cannot repudiate the contract after it has been observed by the parties for nearly six years, the county, during-that period, having paid the stipulated compensation and received the legal fees, and recover from the county the amount that the fees may have exceeded the compensation paid, upon the ground that both parties, in making the contract, acted upon the belief and misapprehension that the sections of the workhouse law authorizing the contract were constitutional, when, in fact, they were unconstitutional, and have since been so declared. Under such contract the Sheriff secured the care of the workhouse convicts, to which he was not entitled by law without contract, and a sum certain for an uncertainty, and is estopped, having appropriated these benefits, to set up said defense. (Post, pp. 706-718.)</p> <p>Cases cited: Speck v. State, 7 Bax., 51; State v: Cummins, 99 Tenn., 067.</p> <p>■2. Same. Same.</p> <p>Where a Sheriff has been allowed less than he is entitled to under the law, for attending on the courts, he may recover the balance by action ag-ainst the county, notwithstanding the fact that -he collected and received the amount allowed. (Post, pp. 717, 718.)</p>

<p>Homestead. Not defeated Toy will.</p> <p>While a widower with minor children can, by deed, alienate the homestead so as to cut off the right of the children thereto after his death, he cannot accomplish this end by will devising all his lands to be sold to pay his debts.</p> <p>Cases cited: Caldwell u Hayes, 1 Shannon, 601; Cowan v. Carson, 101 Tenn., 523.</p>

<p>Execution Sale. Purchaser’s title.</p> <p>Caveat emptor applies to execution sale, and the purchaser at such sale can take no better title or greater interest than the execution debtor enjoyed. Hence, the purchaser takes nothing, though the execution debtor was clothed with an apparently'perfect legal title, if, in fact, he held the property as a mere trustee, and had no beneficial interest therein.</p>

<p>Municipal Corporations. Smiday ord/incmoe.</p> <p>It is a violation of a city ordinance forbidding tbe sale of goods, wares, and merchandise on Sunday, for a groeer and butcher to convey from his store to the homes of his customers, by means of a delivery wagon, goods that had been purchased, taken out of the general stock, wrapped up, set aside, and charged to customers on Saturday night. The sale was not . complete until the delivery at the homes of the customers.</p> <p>Case cited: McKinney v. Nashville, 96 Tenn., 79.</p>

<p>Declaration. Insufficient averment of negligence.</p> <p>It is an insufficient averment of negligence on the part of a telephone company, in setting its pole, to state that the pole was “carelessly, wrongfully, negligently, and unlawfully erected within the right of way of a turnpike or other public thoroughfare, without averring more specifically that it was so located as to endanger public travel along the highway.</p> <p>Cases cited and approved: Cotton Oil Co. v. Shamblin, 101 Tenn., 263; Franklin Turnpike Co. v. Crockett, 2 Sneed, 263.</p>