Volume 104 — Tennessee Reports

<p>1. Municipal Cobpoeations. Liability for defeetme sidewalks cmd streets.</p> <p>To render a city liable for injury resulting' from defective sidewalks or streets, it must apppear that the city had actual or constructive notice of the existence of the defect. Notice of defect will be imputed to the city, where, from the nature of the defect, the time of its continuance, and the other circumstances of the particular case, it can be fairly presumed that the city either had, or could, by reasonable diligence, have had, knowledge of the defect.</p> <p>2. Same. Same.</p> <p>The facts are not sufficient to fix liability on a city for an injury resulting from a hole in the sidewalk, which had been dug by a telephone company, in putting up its line, by leave of the city, only an hour and a half before the accident, and, without the city’s actual knowledge, left open at nightfall without any light to signal persons passing by of its dangerous existence. The city was not required to assume in advance negligence on the part of the telephone company.</p>

<p>PROM DAVIDSON.</p> <p>Appeal in error .from Circuit Court of Davidson County. J. W. Bonner, J.</p>

<p>1. Bills astd Notes. Pelease of surety by extension of time.</p> <p>A surety on a note is released where the holder of the note contracts with the principal maker, without the surety’s assent, to extend the time of payment for a definite period Beyond the maturity of the note, upon consideration of payment, in advance, of interest thereon for the period of extension. (Post, pp. 12-15.)</p> <p>Case cited: Bank v. McClung, 9 Hum., 98.</p> <p>2. Same. Same.</p> <p>And, in such case, the contract for extension is valid'and fatal to the surety’s liability on the note, although the interest stipulated and paid for the extension period was at a usurious rate. The payment of the iegal interest afforded a sufficient consideration without the aid of the usury. The usury alone was illegal, and, being separable, did not vitiate the entire consideration. (Post, pp. 15-22.)</p> <p>Code construed: <¡<¡ 3492, 3493, 3499 (S.); U 2700, 2701, 2707 (M. & V.); <¡<¡1943, 1944 (T. & S.).</p> <p>Cases' cited and approved: Apperson v. Cross, 5 Heis., 481; Till-ford v. Summers, 2 Yer., 255; Reed v. Moore, Meigs, 80; Boyers v. Boddie, 3 Hum., 666; Isler v. Brunson, 6 Hum., 277; Bowers v. Douglass, 2 Head, 376; McFerrin v. White, 6 Cold., 499; Ward v. Brandon, 1 Heis., 490; Jackson v. Collins, 2 Heis., 491; Chaffin v. Bank, 7 Heis., 502; Stevenson v. Landis, 14 Lea, 433.</p> <p>Cited and distinguished: Wilson v. Langford, 5 Hum., 320; Howell v. Sevier, 1 Lea, 360; McKamey v. McNabb, 97 Tenn., 238.</p>

<p>Bill. Not broad enough for general creditors’, when.</p> <p>Under a bill, filed on behalf of complainant alone, against a corporation and its assignee alone, to set aside, as defectively-executed and fraudulent, transfer of its property, and subject same to complainant’s debt, the Court cannot assume jurisdiction to administer the affairs of the defendant corporation as an insolvent corporation, as under a general creditors’ bill.</p>

<p>1. Damages. Charge as to vindictive, proper, when.</p> <p>It is not error for the Court to give the usual charge as to vindictive damages, in a ease where the plaintiff was struck and injured, without his fault, by the car of a street railway company, which had left the track while'being run at a hig-h rate of speed over a switch at a place unusually full of danger and peril. (Post, pp. 30, 31.)</p> <p>3. Same. ■ - Verdict not excessive, when.</p> <p>A verdict for $500 is not excessive in a case where plaintiff’s vehicle was struck by defendant’s street car, derailed by reckless running over a switch at a dangerous crossing, and the plaintiff thereby dashed beneath the feet of 'the frightened horses, and “bruised, cut, shocked, and badly frightened.” (Post, pp. 29-32.)</p> <p>3. Same. Evidence of defendants wealth admissible, when.</p> <p>In a case where the facts justify the allowance of punitive damages, it is competent to prove the wealth of the defendant. (Post, p. 31.)</p> <p>Case cited and approved: Cumb. Tel. Co. v. Poston, 94 Tenn., 698.</p> <p>4. Charge of Coubt. Special request.</p> <p>The failure to give a special request cannot be assigned as error when it does not appear from the record that any such request was presented, otherwise than by a statement in the motion for new trial. (Post, p. 32.)</p>

<p>FROM GILES.</p> <p>Appeal in error from Circuit Court of Giles County. Sam HoldiNG, J.</p>

<p>PROM DAVIDSON.</p> <p>Appeal iii error from Second Circuit Court of Davidson County. Jno. W. OhldRess, J.</p>

<p>.FROM MAURY.</p> <p>Appeal from Chancery Court of Maury County. A. J. Abernathy, Ob.</p>

<p>1. PRACTICE. Opening and closing case.</p> <p>It is not reversible error for the Court to refuse to permit the defendant, in an action on an insurance policy, to open and close the case, although he has admitted all facts and issues essential to a prima facie right of recovery by the plaintiff, and seeks to avoid liability alone by reason of alleged false and fraudulent statements of deceased in a certificate of health, upon faith of which the policy had been renewed after it had lapsed for failure to pay premium. (Post, pp. 51, 52.)</p> <p>Cases cited and approved: MeBee v. Bowman, 89 Tenn., 134; Al-loway v. Nashville, 88 Tenn., 527.</p> <p>2. Life Insurance. False statements of assured that do not avoid policy.</p> <p>False statements of the assured, in a health certificate upon faith of which a lapsed life policy has been renewed, to the effect that he had not had certain diseases or consulted a physician, during the lapsed period, will not render the policy void unless the diseases with which he was afflicted were permanent, habitual, and constitutional, indicating- some vice in the constitution and having some bearing- upon the general health and continuance of life. Mere temporary ailments that are curable and pass away will not suffice. (Post, pp. 52-54.)</p> <p>Case cited: K. of P. u Cogbill, 99 Tenn., 28.</p> <p>3. Evidestoe. Opinions of experts.</p> <p>The weight to be given an expert’s opinion upon a hypothetical ease .depends upon the correspondence and agreement of the hypothetical case with the case under consideration. (Post, pp. 54, 55.)</p>

<p>1. Telephone Company. Negligence in delivery of messages.</p> <p>A telephone company, whose operator has received a message for delivery, and negligently failed to deliver same with promptness, is responsible for damages resulting from its operator’s act, although its operators were forbidden by general instructions to receive messages for delivery on the company’s account, but were permitted to do so on their own account, making all arrangements therefor over the company’s line, and receiving the additional compensation for this service for themselves. (Post, pp. 58, 59.)</p> <p>3. Same. Test of company's liability for agents’ acts.</p> <p>The liability of a telephone company to its customers and the public for the acts of its agents and operators is not to be measured by the company’s instructions to its agents and operators, which they are permitted habitually to violate, but by the course of business actually pursued by its agents and operators and recognized and approved by the company. (Post, pp. 59-61.)</p> <p>Case cited: Railroad v. Reagan, 96 Tenn., 139.</p> <p>3. Same. Duty as to delivery of message.</p> <p>The duty of a telephone company and its agents to deliver a message promptly is absolute, and the agent has no right to speculate as to whether its prompt delivery will benefit or avail the sendee. (Post, pp. 61, 62.)</p> <p>4. Same. Damages recoverable for delay in delivery of message, when.</p> <p>In an action by a father to recover damages for the deprivation of seeing his daughter before her death, resulting from the negligent delay of • a telephone company in delivering the summoning message, it must appear, to entitle plaintiff to recover, that he both could and would have arrived before his daughter's death if the message had been promptly delivered. (Post, pp. 62, 63.)</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Second Circuit Court of Davidson County. J. W. Chiddbess., J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. W. Bonner, J.</p>

<p>EROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. ' W. Childress, J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. W. Bonnee, J.</p>

<p>FROM ' DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. H. H. Cook, Ch.</p>

<p>EROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. W. Bonner, J.</p>

<p>Amendmeut. Decla/raMon.</p> <p>An amended declaration, complete in itself, and which does not adopt or refer to the original supersedes and destroys the original as a pleading, and, if defendant pleads to the amended declaration, any error the Court may have committed in overruling demurrer to the original declaration is waived and cured.</p>

<p>FROM LAWRENCE.</p> <p>Appeal in error from Circuit Court of Lawrence County. Robt. B. Williams, J.</p>

<p>RAILROADS. Liability for killing Uve stock.</p> <p>An action cannot be maintained, under Acts 1891, Ch. 101, making’ railroads liable for the killing of stock on their nnfenced track, upon proof that the stock was killed by falling into an unfenced cut. To justify recovery under this Act, the proof must show that the stock was killed by a “moving train or engine or cars.” *</p> <p>Act construed: Acts 1891, Ch. 101.</p>

<p>1. Limitations, Statute of. Begins to run, when.</p> <p>Where a deed absolute in form is, at the instance of the maker and upon parol proof, declared a mortgage, the statute of limitations begins to run against the rights of the vendee or mortgagee only from the date of such declaration. (Post, pp. 124, 125.)</p> <p>2. Mortgages and Deeds oe Trust. Foreclosure sale not ordered, when.</p> <p>Although the Court finds that a deed absolute in form was in fact a mortg-age, foreclosure sale of the property will not be decreed at the suit of the maker after the lapse of ten years, where it clearly appears that the land is not of value sufficient to satisfy the claim of the vendee or mortgagee. (Post, pp. 125, . 126.)</p>

<p>1. Constitutional Law. No-fence law not vicious class legislation.</p> <p>The Act of 1899 (Ch. S3), to prevent stock from running at large, . and thereby obviate the necessity of fencing lands in the coun- . ties of this State having a population of 59,000 or more, according to the Federal census of 1890, or that shall have that number by any. subsequent Federal census, is not vicious class legislation. The classifications of this Act are not arbitrary or capricious, but natural and reasonable, and based upon sound and substantial considerations affecting the public interests. ' (Post, pp. 128-130.)</p> <p>Act construed: Acts 1899, Ch. 23. '</p> <p>Cases cited and approved: Cole Mfg. Co. v. Falls, 90 Tenn., 466; Cook v. State, 90 Tenn., 407.</p> <p>2. Same. No-fence law does not embrace more than one subject.</p> <p>A statute whose general subject, as indicated by its title, is to prevent stock from running at large, and thereby obviate the necessity of fencing lands, is not rendered unconstitutional and void, as containing more than one subject; by providing, in addition to a general prohibition against the running of stock at large, that the owner who permits it shall be subject to indictment, and liable for all damages done, for which a lien is declared upon the trespassing animals. (Post, pp. 130, 131.) Constitution construed: Art. II., Sec. 17.</p> <p>Act construed: Acts 1899, Ch. S3.</p> <p>Cases cited: Cole Mfg. Co. v. Falls, 90 Tenn., 466; Ryan v. Terminal Co., 102 Tenn., 111.</p>

<p>1. Evidence. Res gestw.</p> <p>Declarations are admissible as part of the res gestee for what they are worth, which are made by defendant, three miles distant from the place of killing-, when in the act of starting, armed, in search or pursuit of the party killed, to the effect that he intended merely to chastise said party with his fists for insulting his mother, and not to shoot him except in self-defense. (Post, pp. 136-140.)</p> <p>Case cited and approved: Sawyers v. State, 15 Lea, 694.</p> <p>2. Same. Erroneous exclusion of, not reversible error, when.</p> <p>Erroneous exclusion of testimony is not reversible error if the fact that it tends to prove is otherwise satisfactorily proved in the case. (Post, pp. 140, 141.)</p> <p>3. Same. Exclusion of erroneously admitted, cures error.</p> <p>The exclusion of evidence which has been erroneously admitted, cures the error. (Post, pp. 141. 142.)</p> <p>4. Jury. Misconduct.</p> <p>Although it is reprehensible conduct on the part of a juror to state or intimate to his fellow-jurors that he possesses knowledge of facts, if he weie permitted to relate them, that would turn their sympathies against the defendant, it is not sufficient cause for reversal, when the juror made no statement of fact, and it does not appear that any juror was affected by what he said in their presence. (Post. pp. 142-144.)</p> <p>Case cited: Harvey v. Jones 3 Hum., 159.</p> <p>5. Criminal Law. Criminal responsibility of conspirators.</p> <p>Where two brothers arm themselves for a joint enterprise, to wit, to chastise a party who had insulted their mother — one to inflict the chastisement while the other stands guard — neither .intending to kill, except it became necessary in order to save their own lives, and, in the prosecution of their design, one of the brothers shoots and kills the assailed party, both brothers are equally guilty, even if the other did not participate in the shooting, and was himself shot and, at the time, disabled. {Post, pp. 145-147.)</p> <p>6. Same. Same.</p> <p>All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable, in the nature of things, a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. {Post, p. 147.)</p> <p>7. Seee-deeeiíse. By party In fault.</p> <p>An aggressor in a difficulty, whose act, in provoking and bringing it about, is of a character reasonably calculated to produce, and does produce, fear or apprehension of death or great bodily harm in the mind of his adversary, cannot lawfully defend his life against the deadly defensive act of his adversary by taking the latter’s life, until he has restored his right of self-defense, lost by his initial fault, by abandoning and withdrawing from the contest, and, by word or act, giving notice of that fact to his adversary. Although such aggressor finds it impossible to abandon the contest and give notice of the fact, without peril or even loss of his own life, he cannot, even in that event, lawfully take the life of his adversary. The aggressor’s act is, in such case, unlawful and felonious, and his adversary’s act lawful and necessary, and the former as the guilty party, and not the latter, who is wholly innocent of any fault, must bear all unavoidable consequences flowing from . his wrongful act. {Post, pp. 147-152.)</p> <p>8. Same. Same.</p> <p>But the aggressor in a difficulty, whose act, in provoking and bringing it about, is not of a character reasonably calculated to produce, or does not produce, fear or apprehension of death or great bodily harm in the mind of his adversary, but consists of a simple assault, or assault and battery, attended with little or no violence, may lawfully defend himself, even to the extent of taking his adversary’s life, against such fierce, deadly, and excessive force of his adversary as is reasonably calculated to inspire, and does inspire, in his mind fear or apprehension of death or great bodily barm. In such case the trivial initial fault of the aggressor, that did not threaten his adversary with, death or great bodily harm, will not be permitted to cut off his right of self-defense against the fierce, deadly, and excessive force of his adversary. The duty of abandonment of the contest by tbe ag'gressor, and of giving notice of the fact to his adversary, does not apply in such case unless it may be done without peril to the life or limb of the aggressor. (Post, pp. 147-152.)</p> <p>9. Chabge of Court. As to grade of offense.</p> <p>The charge of the Court in a murder ease sufficiently instructs the jury as to grades of offense, which fully defines all offenses embraced in the indictment, and instructs them to bring in verdict, if they should find defendant guilty, for that grade indicated by his status of mind at the time of the killing. {Post, p. 15,V.)</p> <p>Case cited: Drapers. State, 4 Bax., 246.</p>

<p>STROM DEKALB.</p> <p>Appeal from Chancery Court of DeKalb County. T. J. Fisher, Ch.</p>

<p>1. “Judicial Rbfoem Acts.” Affecting Montgomery County, constitutional and valid.</p> <p>Acts 1899, Ch. 302, which repeals the statutes that had created special Chancery and Criminal Courts for Montgomery Cohnty, and had conferred jurisdiction upon the County Judge to hold same, and had given him a salary out of the State treasury for that service, is constitutional and valid, and has the effect to abolish said special Courts, and to terminate the jurisdiction and salary of the County Judge as regards said Courts, but not as County Judge proper, although no express provision was made for the holding thereafter of the Chancery Courts of said county. (Post, pp. 161-163.)</p> <p>Acts construed: Acts 1899, Ch. 302; Acts 1870, Ch. 115; Acts 1895, Ch. 13.</p> <p>Cases cited: Judge’s Cases, 102 Tenn., 509; Halsey Case, 2 Lea, 316.</p> <p>2. Statutes. Repeal and revivor.</p> <p>Upon express repeal of a statute that had itself repealed a former statute by implication, the latter statute is revived and becomes operative. Hence, upon repeal by Act of 1899 of Act of 1895, providing for a special Chancery Court for Montgomery County, the pre-existing statute, relating to the Chancery Court of that county, repealed by implication, or, rather, suspended by the Act of 1895, was revived, in the absence of other more recent provisions for said Court. (Post, pp. 163-168.)</p> <p>Constitution construed: Art. II., Sec. 17.</p> <p>Acts construed: Acts 1899, Ch. 302; Acts 1895, Ch. 13.</p> <p>Cases cited: Home Ins. Co. v. Taxing Dist., 4 Lea, 644; Zickler v. Bank, post, p. —.</p>

<p>1. Wills. Testator’s intention controls.</p> <p>To ascertain the testator’s intention is the paramount consideration in the interpretation of wills. His intention is to he ascertained from a consideration of the whole will in connection with the circumstances under which it was made. The ordinary rules of construction and the ordinary meaning of language will be made to yield to the clearly ascertained intention of the testator. A general intent overrules an inconsistent particular intent. (Post, pp. 179, 181-183.)</p> <p>Cases cited: Gannaway v. Tarpley, 1 Cold., 572; Armstrong v. Douglass, 89 Tenn., 223; Puryear u Edmondson, 4 Heis., 48; Connell v. McKenna, 1 Leg. Rep., 187; Jones v. Hunt, 96 Tenn., 369; Fry v. Shipley, 94 Tenn., 255; Hottell v. Browder, 13 Lea, 676.</p> <p>2. Same. Equality of distribution under.</p> <p>Where a testator declares, in terms, that “equality shall be the controlling rule in the division ” of his estate, and directs that, “at” his death his executors shall appoint commissioners to value his estate, taking advancements into the estimate, and divide the whole estate equally among his children and grandchildren per stirpes, the valuation of the estate for division is not intended to be made as of the date of testator’s death, but as of the date of the making of the appraisement by the commissioners, if that is not unduly delayed, and a delay of seven months after testator’s death is not unreasonable. (Post, pp. 171, 172, 179-181.)</p> <p>3. Same. Intention controls taking effect at death.</p> <p>In such case the testator’s expressed purpose and intention to have absolute equality in the distribution of his estate so far controls the ordinary statutory rule that a will speaks and ' takes effect as of the testator’s death, as to prevent loss and deterioration of portions of his property between the dates of his death and the appraisement, from working inequality in the division of his estate. (Post, p. 181.)</p> <p>4. Same. Meaning of term, “at my death.”</p> <p>The term, ‘1 at my death, ” means within a reasonable time after his death, when used by a testator with reference to the ap-praisement and distribution of his estate. (Post, pp. 179, 180.)</p> <p>5. Same. Loss of part of estate before distribution.</p> <p>Testator enjoined absolute equality in the distribution of his estate, including advancements. lie devised a bouse and lot to a son, but it, with the residue of his estate, was to be valued-for equal distribution within a reasonable time after his death. After his death, but before appraisement and division of the estate, a heavy loss was sustained in the burning of a business block of houses that so reduced the value of the estate as to make the value of the house devised to his son, added to advancements, more than that son’s share. But for said loss by fire, the son had not received more than his share. Held,: The son must refund so much of the value of the house and lot as, when added to his advancements, exceeds his equal share in the estate. (Post, pp. 171, 172, 179-183.)</p>

<p>FROM! ROBERTSON.</p> <p>Appeal in error from Circuit Court of Robertson County. A. H. Munrord, J.</p>

<p>FROM LAWRENCE.</p> <p>Appeal in error from Circuit Court of Lawrence County. R. A. Haggard., Sp. J.</p>

<p>PROM wiLLIAMSON.</p> <p>Appeal in error from Circuit Court of Williamson County. W. L. Grigsby, J.</p>

<p>1. Verdict. Setting third aside.</p> <p>The statute forbidding the setting aside of a third verdict upon the facts does not apply where one of the preceding verdicts was set aside for surprise. [Post, p. 213.)</p> <p>Code construed: §4850 (S.); § 3835 (M. & V.); §3"m (T. & S.).</p> <p>2. Supeemb Court. Practice. ■</p> <p>Although an error is assigned in due form in this Court, it will not be considered, if it appears that it was not complained of, on motion for new trial, in the lower Court, as was required by the rules of that Court. (Post, pp. 213, 214.)</p> <p>3. Railroads. Rights of passenger iiolding unstamped ticket.</p> <p>Although a passenger may not be entitled to passage upon the return part of an excursion ticket which has not been stamped as required by its terms, yet, if the train conductor, after examination of the ticket, invites him to enter the train, and afterwards takes it up and punches it, such passenger cannot thereafter be rightfully ejected because of his failure to have his ticket stamped. (Post, pp. 214-216.)</p> <p>4. Damages. Excessime verdict for.</p> <p>A verdict and judgment for $400 damages for the wrongful ejection of a passenger, without violence or insult, and causing him loss of only one day’s time and two or three dollars in money, will be set aside for excessiveness. (Post, p. 216.)</p>

<p>1. Mabbiagb and Divobce. Sufficient cause for wife’s divorce.</p> <p>A wife is entitled to absolute divorce on account of cruel and inhuman treatment that renders it unsafe and improper for her to cohabit with her husband, or to be under his dominion and control, where it appears that, on one occasion, he had, without justification or excuse, assaulted her in a brutal manner; had falsely charged her, before suit, with infidelity to her marriage vows, and had, by cross bill, reiterated that false charge; had falsely accused her, a white woman of excellent character, of illicit relations with a hired negro, that resulted in her pregnancy; and had, during many years, engaged with her in violent quarrels, calling her, upon slight provocation, grossly indecent and offensive names; and had confessed to her his own adultery on several occasions after marriage; although she may have in some measure, inexcusably, but not wantonly, provoked his bad temper and conduct. (Post, pp. 218-225.)</p> <p>Code construed: (¡<¡4202,4219 (S.); <¡§ 3307, 3324 (M. &V.); §<¡2449, 2466 (T. & S.).</p> <p>2. Same. Defense of condonation.</p> <p>The general rule that defenses are not available unless they are presented by plea or answer, is not, it seems, universal in its application to the defense of condonation of adultery in divorce cases. Condonation, it seems, will be available, though not relied on in the pleadings, if it appears in the proof that the injured party, with full knowledge of the facts, has forgiven the offense, or has procured or connived at its commission. But our statute, which requires the complainant, seeking divorce on account of defendant’s adultery, to show by affirmative proof, in the absence of any plea or answer, that there has been no condonation dispenses with pleading the fact in any case. (Post, pp. 225, 226.)</p> <p>Code construed: § 4213 (S.); <! 3318 (M. & V.); <¡ 2460 (T. & S.).</p> <p>Cases cited and approved: Cameron v. Cameron, 2 Cold., 375; 18 N. J. Eq., 33; 31 N. J. Eq , 225; 4 Paige, 433; .9 Ind., 105; 24 Ore., 416; 39 Ala., 348; 39 Wis., 651.</p> <p>3. Same. Same.</p> <p>The Court will not, mero motu, without pleadings, raise the defense of condonation, even where it might, if pleaded, he legally available in order to defeat the wife’s suit for divorce against a recusant and ruffianly husband, who confessed adultery, and is shown to have assaulted his wife with brutal violence; to have falsely assailed her virtue by the grossest charges of lechery and immorality; to have slandered her vilely; and to have treated her with gross indignity and great cruelty. (Post, p. 227.)</p> <p>4. Same. Same.</p> <p>Condonation is not a valid defense to the wife’s suit for divorce on account of such cruel and inhuman treatment of the husband as renders it unsafe and improper for her to cohabit with him, or remain under his dominion and control. (Post, pp. 227-232.)</p> <p>Cases cited and approved: Thomas v. Thomas, 2 Cold., 124; 116 Ill., 509; 34 La. Ann., 301; 39 La. Ann., 491; 2 Paige, 110.</p>

<p>Baii/roads. Refusal of return passage on commutation ticket.</p> <p>The purchaser of a round-trip, not transferable, railroad ticket, is not entitled to return passage thereon, or to damages for refusal of such return passage, where he purchased and accepted the ticket at one-half the regular fare, upon the condition, among others indorsed thereon, that the ticket should not be good for return passage until he should identify himself before a specified agent of the company as the original purchaser, by signing his name on the back of the ticket, and by other means, if required, where he signed the acceptance of the ticket, before an agent of the company to whom his true name was unknown, as “H. Thomas,” and was refused certificate of identification by the other specified agent of the company upon this signature, because his true name was known to that agent as “ H. Thomas Sinnott,” and was, in consequence, refused return passage on the ticket.</p>

<p>1. Railboads. Fencing private passway.</p> <p>Railroad companies are not forbidden to fence, nor excused from fencing', their tracks at intersections with private ways or crossing's, used by owners of farms, or reasonably necessary and proper for their use as a means of passing from one field to another, but in closing or obstructing such private ways or crossings against the entrance of stock upon their tracks, the railroad company must provide for the free use of the same by the landowners, by the erection of gates, properly constructed bars, or other appropriate means, and the railroad companies must keep these in proper repair, and use due diligence to keep them closed. (Post, pp. 243-245, 247, 248.)</p> <p>Case cited and distinguished: Railroad v. Thompson, 101 Tenn., 197.</p> <p>2. Same. Keep gates closed.</p> <p>A railroad company is not liable, in the absence of other negligence, for the killing of stock that entered upon its track • through an open gate maintained at the intersection of its track with a farmer's private passway, where it had not left the gate open, and had no actual knowledge of that fact, and was not affected with notice of the fact by the length of time the gate had remained open, or by other circumstances. (Post, ,2?p. 245-247.)</p> <p>3. Same. IAdbility for■'killing stock, on fenced track.</p> <p>Railroad companies are not absolved from all liability'for stock killed upon their lawfully fenced tracks. For stock killed upon lawfully fenced tracks, by collision with trains, railroad companies are liable if the killing was the result of the intentional or grossly negligent act of their servants. But it seems that railroad companies are not liable for the killing of stock on their lawfully fenced tracks, by collision with their trains, where the killing was the result of ordinary common law negligence of their employes. (Post, pp. 247-249.)</p> <p>Acts construed: Acts 1891, Ch. 101.</p> <p>4. Same. Same.</p> <p>Landlord and tenant stand upon precisely the same ground as regards their rights against a railroad company for the killing of stock by its trains upon a lawfully fenced track. (Post, pp. 247, 248.)</p>

<p>1. Breach of Promise. Validity of marriage contract.</p> <p>A marriage contract, to be consummated upon the death of the divorced wife of one of the parties, is not “void for indefiniteness and uncertainty.” (Post, pp. 251, 252.)</p> <p>2. Same. Same.</p> <p>A marriage contract is not void, as being in illega] restraint of marriage, by which two persons, duly qualified to make the contract, agree to marry each other, not at any specific or certain date, but upon the termination of the life of a specified third party. (Post, p. 253.)</p> <p>3. Same. Same.</p> <p>A marriage contract is not void, as being “against public policy,” which provides for its consummation upon the death of the divorced wife of one of the parties, the delay being “ self-imposed and self-terminable at any moment, ” and stipulated on account of “religious scruples” of one-of the parties. (Post, pp. 253-255.)</p> <p>4. Same. What constitutes breach of.</p> <p>It constitutes a breach, for which immediate action lies, for a party to a marriage contract, to be consummated upon the death of his divorced wife, to enter into another marriage before the happening of that event. (Post, pp. 255-260.)</p> <p>5. Same. Verdict not excessive.</p> <p>The verdict of f 2,800 is not so large, in view of the facts set out in the opinion, as to indicate prejudice, passion, caprice, or corruption on the part of the jury, and cannot, therefore, be disturbed for alleged excessiveness. (Post, pp. 264-266.)</p> <p>Cases cited: Goodall v. Thurman, 1 Head, 216; Tenn. Coal, etc., Co. v. Roddy, 85 Tenn., 400; Jenkins v. Hankins, 98 Tenn., 545.</p> <p>6. EvideNOE. Contradictory statements 'properly excluded.</p> <p>It is not error for the Court to refuse to permit a witness to be interrogated as to matters of mere hearsay as basis for his contradiction. But if the witness should be permitted to answer questions of this character, his answers should be conclusive, as relating to collateral matters, upon the party calling for them, and not subject to contradiction. (Post, pp. 262-264.)</p> <p>Case cited: Saunders v. Street Railroad Co., 99 Tenn., 131.</p>

<p>FROM COFFEE.</p> <p>Appeal in error from Circuit Court of Coffee County. If. D. SmalemaN, J.</p>

<p>ChaNOeby Cotjbt. Unjoins judgment for cost, when.</p> <p>Chancery Court will enjoin the judgment of a Court of Law, adjudging costs upon continuance of a case, where it was obtained or rendered by fraud, accident, or mistake, and the complaining party is free from fault.</p> <p>Cases cited and approved: Williams v. Tenpenny, 11 Hum., 176; Rowland v. Jones, 2 Heis., 321.</p> <p>2. Same. Same.</p> <p>And the Chancery Court will grant relief in such ease, in the exercise of its own inherent jurisdiction, although the party might also obtain relief at law by writ of error coram nobis.</p>

<p>1. INHERITANCE Tax. Brothers and sisters liable for.</p> <p>Shares in estates oí decedents, excepting estates of less value than $250, passing "by intestacy or testament to brothers and sisters, are, and have been ever since the passage of the general Assessment Act of 1895, liable to the inheritance tax imposed by Acts 1893, Ch. 174. (Post, pp. 279-304.)</p> <p>Acts construed: Acts 1893, Chs. 89, 174; Acts 1895, Ch. 4 (Ex. Sess.); Acts 1899, Ch. —.</p> <p>Case cited and approved: Bailey ®. Drane, 96 Tenn., 16.</p> <p>2. Statutes. Repeal and revivor.</p> <p>The provision of Acts 1893, Ch. 174', subjecting to inheritance tax the shares, among others, of brothers and sisters of the decedent; which was repealed by implication by the general Revenue Act (Ch. 89) of that year, passed at a later hour on the same day, was revived and became operative upon the repeal of said repealing Act by the general Revenue Act (Ch. 4, Ex. Sess.) of 1895. (Post, pp. 289-304.)</p> <p>Acts construed: Acts 1893, Ch. 89, 174; Acts 1895, Ch. 4 (Ex. Sess.).</p> <p>Case cited and approved: Bailey v. Drane, 96 Tenn., 16.</p> <p>3. Same. Same.</p> <p>As a general rule, when two statutes stand in irreconcilable conflict the later one repeals or suspends the earlier one by implication to the extent of such conflict; and upon the simple repeal of the later statute the earlier one is restored to vitality. (Post, pp. 282, 283. 298.)</p> <p>Cases cited and approved: Bailey®. Drane, 96 Tenn., 16; Insurance Co. v. Taxing District, 4 Lea, 644; Maney u State, 6 Lea, 221; Knoxville®. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; The Druggists’ Cases, 85 Tenn., 450; Poe®. State, 85 Tenn., 495; Terrell v. State, 86 Tenn., 523; Hunter®. Memphis, 93 Tenn., 571; Shelton®. State, 96 Tenn., 521; State®. Yardley, 95 Tenn., 546.</p> <p>4. Same. Repeal of revenue statutes not famoved.</p> <p>Repeals by implication and especially of revenue and collection statutes are not favored. (Post, pp. 288, 289, 298.)</p> <p>Cases cited and approved: Iron Co. v. Pace, 89 Tenn., 707; Durham v. State, 89 Tenn., 731; Burnett v. Maloney, 97 Tenn., 699; Bailey v. Drane, 96 Tenn., 16; 3 Cliff., 251.</p> <p>5. Same. Repeal of general revenue statutes.</p> <p>Under the practice that prevails in this State of enacting- a general revenue system in a single statute, and re-enacting it, in like manner, at short intervals, with such additions and omissions as are deemed advisable, the latest general revenue statute repeals, by implication, all earlier ones, even as to matters embraced in former statutes and merely omitted fi-om the last one. The latest statute constitutes the whole law as regards all matters, which, under the prevailing legislative practice, may be deemed within the scope of a general revenue statute. (Post, pp. 283-288.)</p> <p>Cases cited and approved: The Druggists’Cases, 85 Tenn., 450; Terrell v. State, 86 Tenn., 533; Rodemer v. Mitchell, 90 Tenn., 65; Poe v. State, 85 Tenn., 495; Maxwell v. Stuart, 99 Tenn., 409; State v. Butcher, 93 Tenn., 679; Chattanooga v. Neely, 97 Tenn., 527.</p> <p>6. Same. Same.</p> <p>But a general revenue statute does not repeal by implication an earlier statute devoted to a special subject of taxation, e. g., inheritances or railroads, not mentioned in the general statute, and creating by separate and attentive consideration of the particular subject an appropriate and effective system for the taxation of that subject. (Post, pp. 288-301.)</p> <p>Acts construed: Acts 1893, Ch. 174; Acts 1895, Ch. 4. (Ex. Sess.)</p> <p>Cases cited: Harris v. State, 96 Tenn., 496; Insurance Co. v. Taxing District, 4 Lea, 648.</p>

<p>KROM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County. J. W. BoNNer, J.</p>

<p>1. Chancery COURT. Jurisdiction.</p> <p>Chancery Court has jurisdiction of a suit brought by a Clerk and Master against a county to recover back the fees and emoluments of his office, paid, under protest, into the county treasury, by direction of the unconstitutional statute known as the “Estes fee bill,” so far as the amount so paid exceeds the allowances for salaries and expenses paid by the county under said statute, for the benefit of his office. (Post, pp. 319, 320.)</p> <p>Cases cited: Cocke v. Porter, 3 Hum., 15; Polk v. Lynn, 8 Lea, 336; Dodd v. Benthall, 4 Heis., 608.</p> <p>3. Ghaitcery Pleading and Practice. Certainty in averments of bill.</p> <p>A bill brought by a Clerk and Master to recover fees and emoluments paid into a county treasury under protest, pursuant to the direction of an unconstitutional statute, is sufficient, thoug-h it does not contain a specific prayer for a money decree, where it sets forth all the facts and circumstances by apt averments, showing the payment of money to the county from time to time under protest. (Post, pp. 320, 321.)</p> <p>Cases cited: O’Connor v. Knoxville Hotel Co., 93 Tenn., 708; Dodd v. Benthall, 4 Heis., 608.</p> <p>3. Statutes. Conflict between printed Act and enrolled and manuscript Act.</p> <p>In case of conflict of the printed Act with the enrolled Act corresponding with the original manuscript Act, the enrolled Act is presumed to be the correct one. (Post, pp. 321-323.)</p> <p>4. Same. Conflict between words and figures.</p> <p>Where a statute undertakes to express a number in both words and figures, and the two conflict, the expression m words prevails, especially where the expression in figures is inclosed in brackets, and may be rejected without producing incompleteness of sense or sentence, and, if adopted, would destroy the statute. (Post, pp. 323-326.)</p> <p>Act construed: Acts 1897, Ch. 124.</p> <p>Cases cited: Warder v. Millard, 8 Lea, 581; Brewer v. Mayor, 86 Tenn., 732.</p> <p>5. Coijbt of CnAsrcEBY Appeals. Finding of fact.</p> <p>'A finding of the Court of Chancery Appeals, based wholly upon an examination of the legislative journals, that a statute should not have contained a certain parenthetical clause that produced a conflict in its terms, is characterized as a finding of fact that is conclusive upon this Court, but the Court, nevertheless, took the precaution to examine the journals for itself before concurring in the finding. (Post, pp. 325, 326.)</p> <p>6. Estes Ebe Bill. Vicious class legislation.</p> <p>The statute known as the “ Estes Pee Bill,” which puts certain county officials upon salaries to be paid out of the county treasury, giving them deputies, to be paid likewise out of the county treasury, whose number and amount of their salaries are to be fixed, under certain restrictions, by the County Courts, and which requires such officials to pay all fees and emoluments of their respective offices into th e county treasury as indemnity for the salaries so paid, is unconstitutional and void, as vicious class legislation, by reason of the omission, in the provisions of its eighth section, to place any restriction upon the discretion of the County Court in fixing the number of deputies allowable to 'the respective county officers, and the amounts of their salaries, in that class of counties, embracing only Knox and Hamilton, having a population of not. less than 50,000 nor more than 90,000, while material, restrictions are placed upon the discretion of the County Courts, in this regard, with respect to the classes of counties having above 90,000 and below 50,000 population. (Post, pp. 328-334.)</p> <p>Constitution construed: Art. XI., Sec. 8.</p> <p>Act construed: Acts 1897, Ch. 124.</p> <p>Case cited: Sutton v. State, 96 Tenn., 708.</p> <p>7. Same. Same.</p> <p>Although the objectionable feature of the “Estes Pee Bill” is confined to its eighth section, the other provisions of the Act are so intimately interwoven with and dependent upon that section, and the whole scheme and operation of the Act so vitally affected and disturbed by the elimination of that section, that it cannot be presumed that the Legislature would have passed the Act without that section, and therefore the entire Act falls with that section. (Post, %>. 334.)</p> <p>Act construed: Acts 1897, Ch. 124.</p> <p>Cases cited: Dawson v. Reelfoot Lake District, 97 Tenn., 151; Tillman v. Cocke, 9 Bax., 439; Jones v. Memphis, 101 Tenn., 188.</p> <p>8. Constitutional Law. Glass legislation affecting counties.</p> <p>Class legislation that is vicious cannot be justified or sustained in behalf of counties any more than in behalf of individuals. {Post, p. 328.)</p> <p>Cases cited and approved: Sutton v. State, 96 Tenn., 696; Burk-holtz v. State, 16 Lea, 71; Woodard v. Bryan, 14 Lea, 520.</p>

<p>FROM DAVIDSON.</p> <p>J. C. McReynolds and W. Ii. WilliamsoN for Complainant.</p>

<p>1. Bbeach oe Promise. Averment of date of'contract in declaration.</p> <p>Averment that the marriage contract “ was made on the-day oí January, 1S95, and at and on divers other days and times before the commencement of this suit,” is sufficient in a declaration in a breach of promise action. (Post, %>. 353.)</p> <p>2. Same. Seduction.</p> <p>In an action for breach of marriage promise the plaintiff may aver and prove her seduction in aggravation of damages. (Post, p. 353.)</p> <p>Cases cited: Conn v. Wilson, 2 Tenn., 233; Goodall v. Thurman, 1 Head, 814; Williams v. Hollingsworth, 6 Bax., 15; Ferguson v. Moore, 98 Tenn., 344; Kaufman v. Fye, 99 Tenn., 145.</p> <p>3. Same. Evidence of mother's disreputable character.</p> <p>In an action for breach of marriage promise the general reputation and standing of plaintiff's family may be shown to enhance or diminish damages, but it is not competent for defendant to prove that plaintiff's mother was a prostitute and mother of an illegitimate child. (Post, pp. 353, 354.)</p> <p>Case cited: Thompson v. Clendenning, 1 Head, 297.</p> <p>4. Same. Promise not made in consideration of illicit intercourse.</p> <p>There can be no recovery for breach of a marriage promise made upon consideration of illicit intercourse. But the fact that the seducer resorted to such promise as an artifice to overcome the scruples of a modest and virtuous female and to induce her to surrender her virtue, will not render the contract illegal and void. (Post, pp. 354-356.)</p> <p>Case cited; Goodall v. Thurman, 1 Head, 214.</p>

<p>PROM OBTON.</p> <p>Appeal in error from Circuit Court of Obion County. W. H.. Swiggabít, J.</p>

<p>1. DECREE. Not annulled, when.</p> <p>Decree by default, rendered against a nonresident upon publication, will not be set aside, upon a bill assailing it, filed fifteen years after its rendition, and after partial loss of the original files, because a confessedly imperfect transcript of the original record fail to disclose any affidavit of nonresidence authorizing the publication, especially where it appears that the complaining party had actual knowledge of the pendency of the suit, and knew, in a general way, of its object. (Post, pp. 369, 370.)</p> <p>2. Same. Withi/n scope of hill.</p> <p>A decree pronounced upon a bill filed by an executrix against all parties interested in the testator's estate, to obtain construction of the entire will, declaration of the rights of the parties, and sale of land to pay debts, does not go beyond the scope of the bill in declaring that certain clauses of the will are prec-atory, especially where the fund mentioned in such clauses may be needed and applied to satisfy the claims of creditors or other legatees. (Post, pp. 369, 370.)</p> <p>3. Same. Not objectionable as settling futwre rights.</p> <p>And such decree is not objectionable as having been made upon a bill prematurely brought to settle future rights, where it is apparent that debts and legacies which testator directed to.be paid out of the rents and income of his land cannot be satisfied in that manner and that the debts must be paid by sale of realty, thereby cutting off legacies, in part, at least. (Post, pp. 370, 371.)</p> <p>4. Same. Estoppel of.</p> <p>A party who has, for fifteen years, submitted to a decree declaring the provisions made for him by a will as merely preca-tory, and appropriating the fund out of which it should have been paid to other purposes, cannot recover personal decree therefor against the executor for the misappropriation or recover the property itself. (Post, pp. 371-375.)</p>

<p>.FROM WEAKLEY.</p> <p>Appeal from Chancery Court of Weakley County. John S. Cooper, Oh.</p>

<p>1. DivoRCe. Decree for, not reviewdble by writ of error coram nobis.</p> <p>A decree awarding- divorce and custody of children cannot be reviewed or reversed by writ of error coram nobis. The statute forbids review or reversal of such decree except on appeal. The remedy for a fraudulent decree granting divorce is by bill in equity to set it aside.'</p> <p>Code construed: §§6819, 4844, 4845, 4890 (S.); §§5705, 3829, 3830, 3875 (M. & V.); §<¡4883, 3116, 3117, 3158 (T. & S.).</p> <p>Cases cited: McBee v. McBee, 1 Heis., 561; Parmenter v. Par-menter, 3 Head, 235; Crawford v. Williams, 1 Swan, 341; Elliott v. McNairy, 1 Bax., 343; Leftwick v. Hamilton, 9 Heis., 310; Chaney v. Bryan, 15 Lea, 589; Thoms v. King, 95 Tenn., 60.</p>

<p>FROM CARROLL.</p> <p>Appeal from Chancery Court of Carroll County. A. G. Haweiws, Chancellor.</p>

<p>1. Boundary. Extensions of calls of'enPry Toy survey.</p> <p>A line of an elder special entry, whose controlling’ call is for course and distance, cannot he extended by survey to nearly double its call for distance, thereby embracing more than double the original acreage, so as to defeat or prejudice the intervening rights of a junior special enterer. (Post, pp. 398, 399.)</p> <p>Cases cited: Ely v. College, 2 Sneed, 689; Nolen v. Wilson, 5 Sneed, 339; Bleidorn v. Pilot Mt., 89 Tenn., 199.</p> <p>2. Same. Galls for course and distance control, when.</p> <p>A call for course and distance controls a call for a stake in the edge of a large lake, where it appears that it would double the length of the line and more than double the acreage of the tract to conform to the latter call, and that the point designated as the edge of the lake is not susceptible of ascertainment and location with any reasonable degree of certainty. (Post, pp. 395, 399.)</p> <p>3. Entry. Special.</p> <p>An entry is special which calls to begin on “a beech tree, the southeast corner of a twenty-acre entry, No. 793, in the name of Wm. Owen in Blount’s line, and also for corners of Geo. Courtrer’s occupant entry,” the objects called for being well known at date of entry and easily ascertained at present. (Post, p. 399.)</p> <p>4. Evidence. Record.</p> <p>Where a Court partition of land constitutes a link in title, it cannot be proved by production of a copy of the final decree alone. hut must be proved by production of a copy of all essential parts of the record. (Post, p. 399.)</p>

<p>1. Ejectment. Plaintiff must show title.</p> <p>To maintain an ejectment bill the complainant must show title by deraignment from the State or from a common source, or by the requisite possession under color of title. (Post, p. 402.)</p> <p>2. Foecible Entry and Detainer. Possession essential.</p> <p>Forcible entry and detainer or unlawful detainer cannot be maintained for lands of which the plaintiff has never had possession otherwise than to stretch a wire across it, making no inclosure. (Post, p. 402.)</p> <p>3. Burden oe Proof. Upon complainant, when.</p> <p>The burden is upon the complainant in ejectment to establish his boundary where that is in dispute. (Post, pp. 402-405.)</p>

<p>Municipal CORPORATIONS. Jurisdiction of Recorder of Paris.</p> <p>The Kecorder has no jurisdiction, either under the general law, or under the charter of the city of Paris, the material provisions of which are set out in the opinion, to fine and commit a person for violating Acts 1895, Ch. 67, entitled, “An Act for the protection of hotel, inn, and hoarding house keepers.”</p> <p>Acts construed: Acts 1895, Ch. 67; Acts 1897, Ch. 309.</p> <p>Code construed: $ 3594 (S.).</p>

<p>1. Marriage amd Divorce. Cruel and inhuman treatment as grou/nd for dA/oorce.</p> <p>It constitutes such cruel and inhuman treatment as justifies the granting of a divorce to the wife, for the husband, a man of inordinate lust, to compel her, a woman of delicate health, by threats, to submit to abnormal sexual intercourse, in violation of the laws of nature and decency, and to the serious impairment of her health. Personal violence is not essential, but if it were, such acts constitute it.</p> <p>Cases cited: 63 Minn., 213; 27 N. J. Eq., 71; 41 L. R. A., 802.</p> <p>2. Same. Wife is a competent witness.</p> <p>And in a suit for divorce for cruel and inhuman treatment of the wife, she is a competent witness in her own behalf, to prove any facts that constitute, in law, such treatment.</p> <p>Cases cited: Malone v. Malone (memorandum opinion).</p> <p>3. Same. Husband’s admissions competent.</p> <p>In a suit for divorce for cruel and inhuman treatment of the wife, the husband’s admissions, or conversations, relating to the treatment of his wife, are competent evidence on her behalf.</p>

<p>FROM CARROLL.</p> <p>Appeal from Chancery Court of Carroll County. A. Gr. HAWKINS, Cb.</p>

<p>FROM GIBSON.</p> <p>Appeal in error from Circuit Court of Gibson County. Jno-. R. Bond, J.</p>

<p>FROM GIBSON.</p> <p>Appeal County. in error from Circuit- Court of G-ibson John R. Rond, J.</p>

<p>1. Registration. Void for want of description of property.</p> <p>Registration of a mortgage is ineffectual against the mortgagor’s creditors in which the mortgaged property is not sufficiently described — e. g., where the calls are for a lot running 163 feet north, thence back on the same line 109 feet south, and thence 263 feet east, thus forming a right angle, but inclosing no land. (Post, pp. 438, 439.)</p> <p>3. Same. Effect of notation.</p> <p>Notation of a deed in the Register’s office stands for full and accurate registration of the instrument; but notation has performed its office when actual registration of the 'deed has taken place. A defective actual registration cannot be aided by the presumption that is made in favor of notation. (Post, pp. 439, 440.)</p> <p>Code construed: §§3749, 3750, 3751 (S.); §§3887, 2888, 2889 (M. & V.); §§ 2072, 2073, 2074 (T. & S.).</p> <p>Cases cited and approved: Flowers v. Wilkes, 1 Swan, 408; Swep-son v. Bank, 9 Lea, 714; Hughes v. Powers, 99 Tenn., 480.</p> <p>Cited and disapproved: Phillips v. Erwin, 1 Overton, 335.</p> <p>3. Same. Ineffectual against prior levy on mortgagor's land.</p> <p>The registration of a mortgage, or its re-registration after a defective and invalid registration, made after a levy upon the mortgaged land by the mortgagor’s creditor, is ineffectual to defeat such levy. (Post, p. 440.)</p> <p>Case cited: Bank v. McCarty, 99 Tenn., 469.</p> <p>4. Decree. In foreclosure suit.</p> <p>In a suit to foreclose a mortgage, the complainant is entitled to decree for his debt, although he fails in the matter of foreclosure. (Post, p. 441.)</p>

<p>1. DECLARATION. Averment of negligence sufficient.</p> <p>In an action against a railroad company for killing plaintiff’s intestate, it is a sufficient averment of negligence, in the declaration, to state, without more specific allegation of facts, that the defendant had “wrongfully, carelessly, and negligently run its cars and engine upon and against the deceased, thereby causing his death.” The plaintiff is entitled, under this averment, to show and recover for a death that resulted from collision with a train of defendant company, running without observance of the statutory precautions to prevent accidents. (Post, pp. 445-448.)</p> <p>Cases cited: Cumberland, etc., Co. v. Cook, 103 Tenn., 730; Turnpike Co. v. Crockett, 2 Sneed, 263; Cotton Oil Co. v. Shamblin, 101 Tenn!, 264; Railroad v. Pratt, 85 Tenn., 9.</p> <p>2. Same. Need not negative plaintiff’s negligence.</p> <p>It is not essential that a declaration in an action seeking a re- ' eovery for negligence of the defendant, should negative negligence or fault on the part of the plaintiff. (Post, p. 448.)</p> <p>Case cited: Stewart v. Nashville, 96 Tenn., 55.</p> <p>3. Railroads. Observance of statutory precautions.</p> <p>The statutory precautions for prevention of accidents, such as the sounding of whistle and ringing of bell, must be observed on trains of a railroad company approaching a town incorporated under the laws of this State, and situated wholly, or in part, within this State, although the station for such town may be located across the line in another State. (Post, p. 449.)</p> <p>4. Same. Same.</p> <p>The requirement of the statute is that the bell or whistle shall be sounded at the distance of one mile from the corporate limits of the town, not one mile from the depot or station. (Post, p. 450.)</p> <p>Case cited: Webb v. Railroad, 88_Tenn., 124.</p> <p>5. Same. Same.</p> <p>The omission to ring hell or sound whistle on a railway train at the distance oí one mile from the town which was the scene of the accident, is not cured or obviated by the sounding of the whistle or ringing of the bell at short intervals for one- • half or three-quarters of a mile before reaching the town. (Post, pp. 449, 450.)</p> <p>6. Same. Same.</p> <p>It is not essential that the nonobservance of the statutory precautions should have been the proximate cause of the'injury to entitle plaintiff to recover. It is sufficient that the injury occurred while the railroad company was running its trains in violation of the statutes. (Post, p. 450.)</p> <p>Case cited: Collins v. Railroad, 9 Heis., 841.</p> <p>7. Evidence. Of number, ages, and sex of plaintiff’s cMldren admissible.</p> <p>In an action brought by a widow against a railroad company for . the killing of her husband, it is competent, although the declaration is silent as to the children, for the plaintiff to prove the number, ages, and sex of her children upon the question of amount of damages. The children are beneficiaries with the widow in the recovery in such ease. (Post, pp. 451, 452.)</p> <p>Cases cited: Sample v. Smith, 1 Shannon’s Cases, 284; Collins v. Railroad, 9 Heis., 841; Railroad v. Loague, 91 Tenn., 458.</p>

<p>EROM PERRY.</p> <p>Appeal in error from Circuit Court of Perry-County. Levi S. Woods, J.</p>

<p>PROM CARROLL.</p> <p>Appeal, from Chancery Court of Carroll County. A. G-; ITawkins, Cb.</p>

<p>1. Eailboads. Right of way defined.</p> <p>The deed, not its charter, determines extent and width of a railroad company’s right of way, where the company obtains, or accepts, from.the owner of land through which its road passes, a deed, long acquiesced in by both parties under a construction by the Courts that excluded its charter rights, which conveys to the company for its purposes a portion of land different from that prescribed by its charter, being wider at some places and narrower at others; and the conditions, reservations, and mutual obligations created by said deed must be observed by the parties, notwithstanding the conflicting provisions of the company’s charter. (Post, pp. 466-485.)</p> <p>2. Samis. Same.</p> <p>In land appropriated by deed or charter provision to right of way for a railroad, the railroad company has an easement— the right to use it for ail lawful and necessary railroad purposes, but the fee remains in the original owner, with the right to possess and use, in a lawful manner, any part of the right of way not occupied, or in actual use, by the railroad company. The possession and use of the property by neither party is adverse to the other unless the same is obtruded beyond his own sphere and rights upon those of the other party. (Post, p. 477.)</p> <p>Cases cited: Eailroad v. Telford, 89 Tenn., 293; Eailroad v. French, 100 Tenn., 209; Eailroad v. McEeynolds, 48 S. W. Eep., 258 (Ch. App.).</p> <p>3. Same. Same.</p> <p>< It is not an invasion of the railroad company’s rights, nor an unlawful or adverse use of the land appropriated to its right of way, for the owner of the fee to enter on the premises and erect inclosures and platforms, plant trees and flowers, and open artificial lakes, provided these do not immediately interfere with the company’s operations, or necessary use of the premises, especially if the right of way is held under a deed that reserves to the grantor the free joint use of the premises for the benefit of his hotel erected on adjoining property. (Post, pp. 477-481.)</p> <p>4. Same. Same.</p> <p>The Courts will not undertake to make other than a general declaration of the rights of the parties under a deed conveying a right of way to a railroad company, where there does not appear to be any necessity for more specific present relief. (Post, pp. 482-484.)</p> <p>5. Res Adjudicata. Construction of deed.</p> <p>A decree construing a deed and fixing the meaning of its calls is conclusive upon the parties in subsequent litigation over the same matter. (Post, pp. 481, 482.)</p>

<p>Botjndaby. Construction of calls.</p> <p>The calls of a deed are for a right angled parallelogram. The first, second, and third corners are marked and known objects. The call for first line is 56 poles, bnt the actual distance between the first and second corners is 71 poles. The calls for third and fourth lines are south 56 poles, instead of 71 poles, to a stake, and thence east to the beginning.</p> <p>Held: That the tract should be run and located so that the opposite lines should be equal in length, making the first and third lines 71, instead of 56, poles in leng-th, especially as the parties had long acquiesced in this view.</p>

<p>FEOM CHESTER.</p> <p>Appeal from Chancery Court of Chester County. A. G. HawiciNS, Cb.</p>

<p>1. Murder. Verdict for murder in second degree supported by facts.</p> <p>The Court holds that the facts set out-.in the opinion sustains a verdict of murder in second degree, with sentence of fifteen years, against the defense of accidental killing. (Post, pp. 502-506.)</p> <p>2. Evidence. In rebuttal.</p> <p>Defendant’s statement of a confessional character, which he de-' nied on cross-examination, is admissible in rebuttal to impeach his testimony, although it could have been introduced as evidence in chief to prove his g'uilt. (Post, pp. 506, 507, 509.)</p> <p>3. Same. Not part of conversation.</p> <p>The defendant is not entitled to explain a confessional statement proved by the State by proof of a subsequent distinct conversation, although the times and places of the two. conversations are not far removed from each other. (Post, pp. 506-509.)</p> <p>4. Same. Res gestee.</p> <p>A self-serving statement, made by defendant so long after the criminal act as not to constitute part of the res gestee, is not admissible in his behalf. (Post, pp. 506-509.)</p> <p>Cases cited; Nelson v. State, 2 Swan, 257; Mayfield v. State, 101 Tenn., 676.</p> <p>5. Cíiabge of Court. Pailwre to charge as to self-defense.</p> <p>It is not error for the Court to omit, on the trial of a murder case, to charge on the subject of self-defense, where the sole defense was accidental killing. (Post, p. 509.)</p> <p>6. Same. As to criminal responsibility.</p> <p>The Court’s charge as to legal accountability is correct in murder ease, which states that a child under seven years of age is conclusively presumed not to tie accountable, that a person between the ages of seven and fourteen years is presumed prima facie incapable of committing crime, and that a person oyer fourteen years of age is presumed to be accountable for his acts and capable of committing crime. (Post, pp. 510, 511.)</p>

<p>1. Paeol Trust. Enforceable when.</p> <p>One who, pursuant to a parol agreement with a widow, bids off for her benefit the lands of her deceased husband sold at administration sale for payment of debts, but in violation of that ag-reement takes title to himself and sets up adverse claim to the land, will be compelled, by a Court of Equity, notwithstanding the statute of frauds, to surrender the benefits of the purchase to the widow, upon her assumption of all its burdens and obligations, especially where it appears that she intended the purchase for herself and children, and that the land broug-ht more than enough to pay the husband’s debts, and that other bidders were deterred by the representation made by the successful bidder, that he was bidding for the *widow and children. And the same measure of relief will be granted the widow against a purchaser from such party with notice of her rights.</p> <p>Cases cited: Haywood v. Ensley, 8 Hum., 460; Guinn v. Locke, 1 Head, 113; Saunders v. Harris, 1 Head, 185; Parker v. Bragg, 11 Hum., 213; Reynolds v. Baker, 6 Cold., 229; Martin v. Lincoln, 4 Lea, 344; Hays v. Worsham, 9 Lea, 595; Thompson v. Thompson, 48 S. W. Rep., 145 (Ch. App.); McLanahan v. MeLanahan, 6 Hum., 99.</p> <p>2. Tjsndbr. Not essential.</p> <p>And it is not essential that the widow should, in such ca^e, make tender of money with her bill. It is sufficient that she agrees to assume all burdens and obligations of the purchase as the Court shall declare them.</p>

<p>CRIMINAL Practice. Imprisonment for misdemeanor.</p> <p>It is the exclusive province of the Judge to impose and fix the term of imprisonment for misdemeanors. Hence, where the jury returned a verdict of guilty of simple assault, and fixed, as punishment, a fine of $75, it was not error for the Court to add to this punishment imprisonment in county jail for the term of eleven months and twenty-nine days.</p> <p>Cases cited: Atchison u State, 13 Lea, 375; Durham v. State, 89 Tenn., 733; Wickham v. State, 7 Cold., 535.</p>

<p>FROM OBION.</p> <p>Appeal in County. W. error from Circuit Court of Obion H. SwiG-G-ART, J.</p>

<p>1. Clerk. Compensation.</p> <p>Clerk of Circuit Court is not entitled to, and cannot be allowed by the Court, a commission upon or out of a fund paid into his hands, as the assessed value of defendant’s property, in a proceeding by a railroad company to condemn land for its use.</p> <p>2. Same. Same.</p> <p>The Clerk receives the fund, in such case, in his capacity as Clerk, and not “as trustee, receiver, or commissioner under the appointment of the Court, ” within the meaning of the statute permitting the Court to make allowance to such appointees where no fees are fixed by law.</p> <p>Code construed: \ 1859 (S.); \ 1564 (M. & V.); § 1340 (T. & S.).</p> <p>3. Same. Saime.</p> <p>Nor does this case fall within the statute authorizing the Court to make discretionary disposition of costs in cases not otherwise expressly, or by fair implication, provided for. That statute copiers discretion to dispose of costs allowed by law, but does not confer power to create new items of costs.</p> <p>4. Costs. Buie.</p> <p>Costs are created alone by statute. Unless there is a statute to authorize it, the Court cannot give costs to or against anyone.</p> <p>Case cited: Mooneys v. State, 2 Yer., 578.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. J. S. Galloway, J.</p>

<p>PROM PERRY.</p> <p>Appeal from Chancery Court of Perry County. A. G-. Hawkins, Oh.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from Circuit Court of Sbelby County. J. S. Galloway., J.</p>

<p>PROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. J. S. Callow ay, J.</p>

<p>FROM SHELBY.</p> <p>Appeal iii error from the Circuit Court of Shelby County. L. TI. Estes, J.</p>

<p>RROM MADISON.</p> <p>Appeal in error from the Circuit Court of Madison County. Levi S. Woods, J.</p>

<p>PROM SHET.BY.</p> <p>Appeal iu. error from the Circuit Court of Shelby County. L. H. Estes, J.</p>

<p>eeoM haywood.</p> <p>Appeal from the Chancery Court of Haywood. County. JohN S. Cooper, Cb.</p>

<p>1. Malicious Pbosecution. Effect of advice.</p> <p>It is not a complete defense to an action for malicious prosecution that defendant, before instituting- the proceedings complained of, applied, in good faith, to a Justice of the Peace, and laid all the facts, as he understood them, before such Justice, and obtained his opinion that they were sufficient to authorize the issuance of a warrant for plaintiff’s arrest, if it should, nevertheless, turn out that the facts were not correctly understood and reported, or that the opinion was not well founded in law. (Post, pp. 598-604.)</p> <p>Cases cited-: Kendrick v. Cypert, 10 Hum., 291; Morgan v. Duffy, 94 Tenn., 686.</p> <p>2. Same. Aider and abettor Viable.</p> <p>One who aids and abets another, or ratifies his acts, in a malicious prosecution is equally liable to the party injured with the principal actor for the damages sustained. (Post, pp. 605, 606).</p>

<p>EROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby County.. JohN L. T. Stshged, Oh.</p>

<p>1. Demurber. To whole bill bad, ivlien.</p> <p>A demurrer to the whole ¡bill, which offers a defense to only a part of it, is had. (Post, pp. 615-618.)</p> <p>2. Same. Pa/per not part of bill.</p> <p>A will whose construction is sought, though filed and copied into the transcript, cannot be looked to on demurrer, where it is not exhibited with no.r made part of the bill. (Post, p. 618.)</p> <p>3. REMAINDERMAN. Rights of.</p> <p>A remainderman can maintain bill to enjoin the administratrix, who is likewise widow and sole distributee of the life-tenant, from receiving a fund left by the intestate on deposit in bank, in his own name, upon averment that the life-tenant had sold and conveyed the entire estate in property, consisting of realty, and had set apart and deposited jsaid fund as the portion of the proceeds due the remainderman for his interest; that complainant ratified and accepted such fund in lieu of his interest in the land, and that defendant was insolvent and the liability-of the sureties on her bond for such fund questionable, if she was allowed to receive it. (Post, pp. 615-622.)</p>

<p>1. Supbejie Court. Will not reverse for technical error.</p> <p>The error is technical, and not sufficient ground for reversal, where, in an action on a life policy, the plaintiff was permitted to put a duplicate, instead of the original policy, in evidence, there being no controversy that the duplicate was in all respects correct. (Post, p. 625.)</p> <p>2. Interest. On life policy.</p> <p>In an action where there is a full recovery for the face value of a life policy, interest thereon follows, as matter of law, from the time the amount fell due, and the jury have no discretion to disallow interest. Hence, where the jury has returned a verdict for the face value of policy, without adding interest, the Court may himself compute and add the interest, or peremptorily instruct the jury to do so. (Post, pp. 626-633.)</p> <p>Code construed: §§ 3494, 4894 (S.); §1 3703, 3879 (M. & V.); U 1945, 3163 (T. & S.).</p> <p>Cases cited: Brady v. Clark, 13 Lea, 336; Ins. Co. v. Van, 1 Shan. Cases, 443; Ins. Co. v. Meux, 1 Shan. Cases, 440; Ins. Co. v. Hamilton, 5 Sneed, 369; Williams v. Inman, 5 Cold., 367; Davidson County v. Olwill, 4 Lea, 34; Stumps v. Cooper, 3 Bax., 334.</p> <p>3. Jury. Reprimand of , by Oov/rt improper.</p> <p>While it is irregular and improper for the Court to induce action of a jury by reprimand, yet it does not constitute reversible error, when the action induced was clearly legal, and such as the Court himself could have performed without the aid of the jury. (Post, p. 631.)</p> <p>Case cited: Brady v. Clark, 13 Lea, 336.</p> <p>4. Same. Not finally discharged.</p> <p>A jury has not been finally discharged, so as to prevent their-reassembling- to complete and render their verdict, where, by previous consent of parties, they delivered their verdict to the-Clerk in the absence of the Judge, but were, at that time, directed by the Clerk, at the request of one of the parties, to return at a specified hour and deliver their verdict to the Court. (Post, pp. 626-628.)</p> <p>5. Evidence. Erroneous ruling as to admission immaterial, when.</p> <p>An erroneous ruling as to admission of evidence becomes immaterial and constitutes no cause for reversal, when no material evidence is offered or admitted under the ruling. (Post, pp. 633, 634.)</p> <p>6. Same. Opinions not admissible.</p> <p>The opinions of witnesses who are not physicians or experts, that the assured was a physical wreck from the use of morphine and whisky, and that he was a slave to the habit, are not competent to show forfeiture of a life policy by reason of the use of said drugs by the assured to the impairment of health and the shortening of his life. (Post, pp. 634, 635.)</p> <p>7. Same. Same.</p> <p>Where a physician, without any statement of facts, testifies that he did not know whether his patient took more whisky and morphine than was prescribed, but “ thought he did, ” his answer is incompetent. (Post, p. 635.)</p> <p>8. Life Insubastce. Forfeiture of policy by use of drugs.</p> <p>Forfeiture of a life policy on account of the use of forbidden drugs, causing impairment of health and hastening- death, does not occur where such drugs were used by the assured as an invalid, under the adyice of a physician, and in g-ood faith" as a medicine, and in such quantities and manner as they were prescribed. (Post, pp. 635-637.)</p>

<p>E.ROM SHELBY.</p> <p>Appeal from tbe Chancery Court of Shelby County. E. H. Heiskell, Ch.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby County. Jno. L. T. Sneed, Ch.</p>

<p>EROM SHELBY.</p> <p>Appeal 'from the Chancery Court of Shelby County. F. H. Heiseell, Oh.</p>

<p>1. Jurisdiction. Of ecclesiastical matters.</p> <p>The civil courts have no jurisdiction oí ecclesiastical controversies involving no property rights — e. g., removal ol the pastor of a church and appointment of his successor, under color of ecclesiastical authority — and the tribunals of the church have exclusive authority, without interference of the civil courts, to determine finally all such controversies. (Post, p. 668.)</p> <p>Cases cited: Nance v. Busby, 91 Tenn., 330.</p> <p>2. Same. Same.</p> <p>The pastor of a church has ordinarily no such property right in his salary as entitles him to appeal to the civil courts to prevent his removal and his substitution by another pastor under ecclesiastical authority. (Post, p. 669.)</p> <p>3. Same. Defense of want of, made by answer.</p> <p>Want of jurisdiction of a Chancery Court over the subject-matter of a purely ecclesiastical controversy may be effectively relied upon by answer. (Post, p. 668.)</p> <p>Cases cited: Galyon v. Gilmore, 93 Tenn., 677; Agee v. Dement, 1 Hum., 332; Dixon v. Caruthers, 9 Yer., 30; Dean®. Snelling, 2 Heis., 484.</p>

<p>FROM SHELBY.</p> <p>’ Appeal from the Chancery Court of Shelby County. JNO. L. T. Sheed, Ch.</p>

<p>1. EbpleviN. Affidavit and writ.</p> <p>An affidavit for a writ of replevin is in substantial compliance with the statutory requirement that it shall state “that the defendant has seized or that he detains” the property to be replevied, which states that plaintiff is entitled to the property, that it is in defendant’s possession, and that it was not subject to seizure.</p> <p>Code construed: § 5130 (S.); §4113 (M. & V.); § 3376 (T. & S.).</p> <p>3. Same. Objection to affidavit and lorit.</p> <p>Objections of a formal character to the affidavit upon which a Justice’s replevin writ issues, must be made in the Justice’s Court or the same are waived.</p> <p>3. Same. Maintainable by mortgagee for mortgaged property.</p> <p>A mortgagee who has advanced only part of the sum stipulated, may, nevertheless, maintain replevin for the mortgaged property upon the mortgagor’s default in repaying the sum advanced, where the mortgagee 4s justified or excused from advancing the remainder of the stipulated sum by the default of the mortgagor in declining to plant and raise a crop, which was likewise to be covered by the mortgage.</p> <p>4. Evidence. Admission of incompetent.</p> <p>A party cannot complain of the admission of incompetent evidence which he himself elicits on cross-examination of his adversary’s witness.</p>

<p>1. Road Commissioners. Secretary’s term of office.</p> <p>The statutes authorizing- Road Commissioners to elect a secretary being silent as to his term of office, the Commissioners have the power and discretion to declare and fix the term.</p> <p>Acts construed: Acts 1883, Ch. 167; Acts 1893, Ch. 177.</p> <p>2. Same. Filling vacancy i/n office of secretary.</p> <p>And where Road Commissioners elect a secretary for a term of two years and he resigns, the person elected to fill the vacancy will hold for the unexpired portion of the term of two years only.</p> <p>3. Oeeice. Contract to divide term of, illegal.</p> <p>A contract whereby two persons agree to divide between themselves the term of a public office is contrary to public policy and void.</p>

<p>Mechanics’ Lien. Superior to vendor’s, when.</p> <p>Mechanics’ lien is superior to vendor’s, where, as inducement to Ms conveyance of the land, the vendor stipulates that certain buildings and improvements shall be erected thereon, according to plans and specifications, and at a price, to be approved by himself, and agrees to advance and loan a certain sum to the vendee for this purpose, the last installment of which was not to be paid until the land was cleared of all other liens than the vendor’s, and where the mechanic’s lien is creaitedfor labor and materials employed in making the stipulated improvements.</p> <p>Case cited: Eagan v. Howard, 97 Tenn., 334.</p>

<p>1. Action's. For breach, of city ordinance are civil actions.</p> <p>An action brought before a City Court, for recovery and enforcement of a flue or penalty for breach of a city ordinance, is a civil action in the nature of an action of debt.</p> <p>Cases cited: Meaher v. Chattanooga, 1 Head, 76; Wood u Grand Junction, 5 Heis., 440.</p> <p>2. Municipal Corporation. Health ordinance.</p> <p>A city ordinance forbidding, under penalty, the removal of a pla" card put up by the health officer, upon certificate of the attending physician showing the presence of an infectious disease, is not violated by the removal of such placard by the owner of the premises, where it has been put up on premises where there is at the time no sickness whatever, and in the teeth of the opinion of the family physician to that effect.</p>

<p>1. Constitutional Law. Statute creatina attorney's lien valid.</p> <p>Tlie statute (Acts 1899, Oh. 343) giving to plaintiff’s attorneys of record, in actions broug-ht in courts of record, a lien for fees upon the right of action from the date of institution of the suit or of subsequent employment of the attorney with notice of that fact, is constitutional and valid. (Post, pp. 708-710.)</p> <p>Act construed: Acts 1899, Ch. 343.</p> <p>3. Same. Policy or impolicy of passing statutes.</p> <p>The question whether it is politic or impolitic to enact a statute is one exclusively for the Legislature, with which the Courts have no concern. The Courts will not even consider that question as affecting their action in passing upon the constitutional validity of statutes. {Post, p. 710.)</p> <p>Constitution construed: Art. II., (¡3.</p> <p>Cases cited: Reelfoot Lake Dist. v. Dawson, 97 Tenn., 159; Sutton v. State, 96 Tenn., 696; Henley v. State, 98 Tenn., 665.</p> <p>3. Same. Statute creating new right need not prescribe remedy.</p> <p>There is no constitutional requirement that a statute creating a new right shall likewise prescribe a method for enforcement of that right. Hence the statute creating a lien upon plaintiff’s right of action in favor of his attorneys is not invalid for failure to prescribe a method for enforcing that lien. The general law provides ample means for enforcement of this lien. ■ {Post, pp. 710, 711.)</p> <p>4. Same. Statute deela/ring lien upon intangible, right valid.</p> <p>There is nothing- in the Constitution that forbids the Legislature to declare a lien'in favor of attorneys upon the intangible, incorporeal rights of action of their clients. The Constitution does not limit legislation to tangible and corporeal matters. {Post, p. 711.)</p> <p>5. Same. Statute creating attorney's lien does not ti/nduly deprive plaintiffs of control of their suits.</p> <p>The statute (Acts 1899, Ch. 243) extending- attorney’s lien to their client's right of action in certain cases is not invalid as unduly depriving the client of control of his action. (Post, pp. 711, 712.)</p> <p>Act construed: Acts 1899, Ch. 243.</p> <p>6. ATTORNEY'S Lien. Statute enlarging does not render defendant liable for plaintiff's attorney fees.</p> <p>The statute (Acts 1899, Ch. 243) extending the lien of attorneys to their clients’ right of action in certain eases, has not the effect to render defendants liable for the fees of plaintiff’s attorneys. The attorney’s right in all cases is limited by the amount that his client recovers or receives upon verdict or good faith compromise. (Post, pp. 711, 712.)</p> <p>Act construed: Acts 1899, Ch. 243.</p> <p>7. Same. Method of enforcing lien.</p> <p>Where an action, in which plaintiff’s attorney has a lien upon the right of action under the statute, is compromised and dismissed, without consent of attorneys, upon defendant's payment or agreement to pay plaintiff a fixed sum, the proper practice is to enter judgment for the compromise amount, to be satisfied by the payment of the fee of plaintiff’s attorney when the amount of such fee shall be fixed by agreement or other appropriate method. (Post, pp. 712, 714.)</p> <p>Cases cited: Pleasants v. Kortrecht, 5 Heis., 695; Hunt'll McClan-ahan, 1 Heis., 510; Perkins v. Perkins, 9 Heis., 95.</p> <p>8. Costs. Of appeal.</p> <p>Where, on appeal, the judgment of the lower Courtis changed in form merely and not in its legal effect, the appellant will be deemed the unsuccessful party, and taxed with the costs of the appeal. (Post, p. 714.)</p>

<p>1. Anti-trust Law. Constitutionality of.</p> <p>The anti-trust statute of 1897 is in all respects constitutional and valid. (Post, pp. 717-752.)</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>2. Same. Same.</p> <p>The exclusion, by a distinct section, of agricultural products and live stock in the hands of the producer or raiser from the operation of an anti-trust statute whose title embraces all trusts, combinations, etc., without exception, does not render the statute obnoxious to the constitutional objection that its body embraces a subject not expressed in its title. (Post, pp. 725-730.)</p> <p>Constitution construed: Art. II., §17.</p> <p>Acts construed: Acts 1897, Ch. 94.</p> <p>3. Same. Same.</p> <p>A provision in an anti-trust statute declaring the measure of damages recoverable by. injured parties from violators of the statute to be the-full consideration paid for goods controlled by the trusts, does not render the statute obnoxious to the constitutional objection that it embraces a subject not expressed in the title, where the title authorizes provisions both for recovery of damages and penalties. The provision may be treated as one relating to either damages or penalties. (Post, pp. 740-743.)</p> <p>Constitution construed: Art. II., $ 17.</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>4. Same. Same.</p> <p>An anti-trust statute whose title and body undertake to deal with both articles of domestic manufacture and imported goods, is not obnoxious to the constitutional objection that it embraces and deals with more than one subject. Trade and its obstruction by trusts is the general subject of the statute, and embraces commerce in both domestic and imported goods. (Post, pp. 743-745.)</p> <p>Constitution construed: Art. II., $17.</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>5. Same. Same.</p> <p>A provision in an anti-trust statute excluding agricultural products and live stock in the possession of the producer or raiser from its operation, does not render the statute void as vicious class legislation. The classification is not arbitrary and capricious, but natural and reasonable, and the statute is not, therefore, in conflict with either the Federal or State Constitution. (Post, pp. 730-737.)</p> <p>Constitution construed: Art. I., $8; Art. XI., $8;_ XIY. Amendment (U. S.).</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>6. Same. Same.</p> <p>An anti-trust statute, otherwise free from exception, is not obnoxious to constitutional objection because of its restriction and regulation of the right of contract — the right to acquire and dispose of property. The right of contract is not absolute, but subject to just restriction and control by the law of the land. (Post, pp. 745-748.)</p> <p>Constitution construed: Art. I., $ 8.</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>7. Same. Same..</p> <p>That provision of the anti-trust statute which authorizes the “Court” to impose the fine and imprisonment, refers not to the Judge, but to the Court and jury, and is not obnoxious to the objection that it undertakes to confer powers upon the Judge in violation of the Constitution. (Post, pp. 737-740.)</p> <p>Constitution construed: Art. VI., $ 14.</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>Cases cited: Railroads v. Crider, 91 Tenn., 490; France v. State, 6 Bax., 479; McGhee v. State, 2 Rea, 625; Morton v. State, 91 Tenn., 443.</p> <p>8. Constitutional Law. Title and subject of statute.</p> <p>The constitutional requirement that statutes shall have but one subject, that subject to be expressed in the title, is mandatory, and a statute is void in toto that violates this requirement in either of its branches. (Post, pp. 726-741.)</p> <p>Constitution construed: Art. II., §17.</p> <p>Act construed: Acts 1897, Ch. 94.</p> <p>Cases cited: Cannonu. Mathes, 8 Heis., 504; Staten. McCann, 4 Lea, 1; Murphy v. State, 9 Lea, 379; Ragio v. State, 86 Tenn., 275; Cole Mfg. Co. v. Palls, 90 Tenn., 482; State v. Yardley, 95 Tenn., 346.</p> <p>9. Same. Same.</p> <p>It is not essential to the constitutionality of a statute that its title shall epitomize or recite in detail the provisions contained in its body. (Post, pp. 726, 727.)</p> <p>Constitution construed: Art. II., § 17.</p> <p>Cases cited: State v. Brown, 103 Tenn., 450; State v. Yardley, 95 Tenn., 346.</p> <p>10. Same. Same.</p> <p>It is essential to the constitutionality of a statute that its body and provisions shall conform to and be confined within the scope of its title, whether that title is general or special, broad or narrow. (Post, pp. 728, 729.)</p> <p>Constitution construed: Art. II., §17.</p> <p>Cases cited: State v. Bradt, 103 Tenn.-, 584; Hyman v. Sta,te, 87 Tenn., 109.</p> <p>11. Same. Same.</p> <p>It is not essential to the constitutionality of a statute that its provisions shall be made co-extensive with the scope of its title. Omissions, exceptions, and provisos which are germane to and embraced within the general scope of the title, may be embodied in the statute without mention in the title, unless they are by the terms of the title specifically and positively forbidden. (Post, pp. 728, 729.) »</p> <p>Constitution construed: Art. II., § 17.</p> <p>Cases cited: State v. Brown, 103 Tenn., 450; Cannon v. Mathes, 8 Heis., 519; Railroads u Crider, 91 Tenn., 494; State u Yardley, 95 Tenn., 546; Bank v. Devine Grocery Co., 97 Tenn., 603.</p> <p>12. Same. Glass legislation.</p> <p>Class legislation is not obnoxious to any constitutional objection, either under Federal or State Constitution, where it is based on classifications that are not arbitrary or capricious, but natural and reasonable. (Post, pp. 731-733.)</p> <p>Constitution construed: Art. I., $8; Art. XI., $8; XIV. Amendment (U. S.).</p> <p>Cases cited: Harbison v. Knoxville Iron Co., 103 Tenn., 423; State v. Frost, 103 Tenn., 686; Breyer v. State, 102 Tenn., 103; Railroad v. Harris, 99 Tenn., 686; Sutton v. State, 96 Tenn., 696, 710; Henley n, State, 98 Tenn., 667; Stratton v. Morris, 89 Tenn., 500; Railroads v. Crider, 91 Tenn., 490; State v. Alston,</p> <p>94 Tenn., 674; 177 Ü. S., 164; 175 U. S.,-; 172 U. S., 557; 170 U. S., 283; 165 ü. S., 150; 163 ü. S., 81.</p> <p>13. Same. Same.</p> <p>Classification for legislation is a matter in regard to which the legislative body has a wide range of discretion. “Classification for such purposes is not invalid because not depending on scientific or marked differences in things or persons, or in their relations. It suffices if it is practical, and is not reversible unless palpably arbitrary.” (Post, pp. 731-733.)</p> <p>Cases cited: 170 Ü. S., 294; 172 U. S., 562.</p> <p>14. Same. Of statutes of doubtful meaning.</p> <p>Statutes passed with due form and ceremony, when tried for unconstitutionality, are entitled to the benefit of every reasonable doubt. And if a statute is susceptible’of two meanings, that one will be adopted, though the less plausible, which reconciles it to the Constitution, rather than another which brings it in conflict with that instrument. (Post, p. 740.)</p> <p>Cases cited: Cole Mfg. Co. v. Falls, 90 Tenn., 466; Railroads v. Crider, 91 Tenn., 491; State v. Yardley, 95 Tenn., 548; Austin v. State, 101 Tenn., 564; Railroad v. Harris, 99 Tenn., 686; Henley v. State, 98 Tenn., 666.</p> <p>15. Same. Policy of legislation.</p> <p>With the wisdom, policy, and expediency of legislation the Courts have nothing to do. That is a question exclusively for legislative discretion, which is not reviewable by the Courts. (Post, pp. 740, 741.)</p> <p>Cases cited: Sutton v. State, 96 Tenn., 696; Reelfoot Lake, etc., Dist. v. Dawson, 97 Tenn., 159; Henley v. State, 98 Tenn., 665; Railroad v. Wells, ante, p. 706.</p> <p>16. Same. Bight of contract.</p> <p>The right of contract is a part of both the right of “ property■” and the right of “liberty,” but it is, nevertheless, subject to restriction and control, without violation of Federal or State Constitution, by statutes enacted in such manner as to become the law of the land. (Post, pp. 746-748.)</p> <p>Constitution construed: Art. I., $8.</p> <p>Cases cited: Harbison v. Knoxville Iron Co., 103 Tenn., 432; Dayton, etc., Co. v. Barton, 103 Tenn., 605.</p> <p>17. Same. When a statute is a law of the land.</p> <p>To constitute the law of the land it is indispensable that a statute: (1) must have been passed witli due form and ceremony; (2) must embrace equally all persons who are now or may hereafter be in like condition, and, if class legislation, must, in addition, be natural and reasonable in its classification, and (3) it must conform to all other requirements in the Constitution. (Post, pp. 747, 748.)</p> <p>Case cited: Harbison v. Knoxville Iron Co., 103 Tenn., 423.</p> <p>18. Statutes. Exceptions.</p> <p>An exception in a statute, though put in a distinct and separate section, has the same legal effect as if inserted in its proper place as part of a section. (Post, pp. 729, 730.)</p> <p>19. CHANCERY Court. Has jurisdiction of proceedings under Antitrust Act.</p> <p>Chancery Court has jurisdiction to enforce, by injunction or otherwise, against corporations, whether domestic or foreign, the forfeitures denounced for violation of the Anti-trust Act of 1897. (Post, 748 — 750.)</p> <p>Act construed: Acts 1897, Gh. 94.</p> <p>Code construed: $6109 (S.); $ 5043 (M. & V.).</p> <p>20. Same. Same.</p> <p>And such proceeding in the Chancery Court is “ due process of law” within the meaniDg of that term as used in the Antitrust Act pf 1897. (Post, p. 750.)</p> <p>21. Same. .Same.</p> <p>And the Chancery Court has jurisdiction to enforce the forfeitures denounced by the Anti-trust Act of 1897, without any precedent judgment or conviction at law. (Post, pp. 750, 751.)</p> <p>22. Same. Same.</p> <p>Chancery Court has jurisdiction, under Anti-trust Act oí 1897, to proceed ag-ainst ag-ents and employees of offending corporations only as such, and not personally, except for disobedience to orders of the Court. (Post, pp. 751, 752.)</p> <p>23. Foreign CORPORATIONS. Eights of.</p> <p>Foreign corporations have no absolute right to recognition in the State. They can be excluded altogether or admitted on any terms the State chooses to prescribe. (Post, pp. 752, 753.)</p> <p>Cases cited: State v. Phoenix Ins. Co., 92 Tenn., 420; Dugger v. Ins. Co., 93 Tenn., 246; 8 Wall., 168; 155 ü. S., 648; 172 U. S., 566; 177 U. S., 28.</p>