Volume 105 — Tennessee Reports

<p>FROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. L. Ií. Estes, J.</p>

<p>1. Bmi.vma and Loan Associations. Waiver of objection to stockholder's bill to wind up.</p> <p>The objection that a stockholder’s bill to wind up a building and loan association does not aver that the complainant had first made application to the Treasurer oí the State, as required by Acts 1897, Cli. 126, is waived unless it is made by demurrer. This objection cannot be made by the association alter answer, and for the first time on the hearing in this Court, to reverse the Chancellor’s action in sustaining the bill as a general creditor’s bill and appointing a receiver of the company’s assets. (Post, pp. 23-25.)</p> <p>Act construed: Acts 1897, Oh. 126.</p> <p>Code construed: $ 6131 (S.); § 5064 (M. & V.); jj 4321 (T. & S.).</p> <p>Cases cited: Lowe v. Morris, 4 Sneed, 69; Brazelton v. Brooks, 2 Head, 193; Stoeldey v. Rowley, 2 Head, 492; Lowry v. Nafie, 4 Cold., 370; Vincent v. Vincent, 1 Heis., 333.</p> <p>2. Same. Same.</p> <p>The objection that a stockholder’s bill to wind up a building and loan association does not aver that complainant had first made an effort to obtain relief through corporate action, is waived unless made by demurrer. (Post, p. 25.)</p> <p>Case cited: Boyd v. Sims, 87 Tenn., 771.</p> <p>3. Same. Cannot complaAn of erroneous appointment of recei/ver, when.</p> <p>Although a building and loan association has been improperly placed in the hands of a receiver under a general creditor's, bill, filed by one of its stockholders, every allegation of which was denied by its answer, still this Court will not reverse the Chancellor's erroneous action where all of the stockholders have become parties and acquiesce in the Chancellor’s action and the association alone appeals and complains of the decree below. The association is only the trustee of its stockholders, and if the beneficiaries submit, the trustee cannot complain, (Post, pp. 25, 26.)</p> <p>4. Same. Stockholder's hill sustained, when.</p> <p>A general creditor’s t>ill to wind up a building and loan association, that had ceased to do business, filed by a stockholder, claiming to be a creditor also, will be sustained, although it may turn out on the hearing that complainant is a debtor instead of a creditor. He can maintain the bill in his character of stockholder. Besides, the bill having been filed on behalf of all parties in interest, became the common suit of all who came in by petition and gave cost bonds. (Post, pp. 26, 27.)</p> <p>5. Same. Amount due upon death of a member.</p> <p>The personal representative of a deceased stockholder of a building and loan association is entitled by statute to the full amount paid in by the deceased and any profits which have been realized ; in other words, to the full value of the stock at the date of the death. (Post, p. 27.)</p> <p>Code construed: § 2135 (S.); g 1750 (M. & V.).</p>

<p>FROM SHELBY.</p> <p>Appeal in error from tbe Circuit Court of Shelby County. L. Ii. Estes, J.</p>

<p>1. Tax Sale. Void, when.</p> <p>A tax sale of lands, which are at the time of sale subject to a deed of trust, made under a chancery proceeding after the owner’s death, is void, where his heirs are not made parties, although the trustee or his heirs and the beneficiary in the trust deed are made parties. (Post, pp. 51, 52.)</p> <p>2. Saji®. Rights of purchaser upon setting aside tax sale.</p> <p>A purchaser of land at a void tax sale, against whom suit has been instituted by the original owner or his heirs to recover same, may by cross-bill, if the suit is in equity, or by original bill, if the suit is at law, recover and collect by sale of the lands, the amount of the purchase price paid thereon, so far as it was applied to the owner’s benefit, and all amounts paid on subsequently accruing taxes, and all sums expended in improvements of the property to be paid out of rents received, to the extent that the value of the land was enhanced thereby, together with interest on all said amounts. (Post, pp. 52-58.)</p> <p>Code construed: l 5009 (S.); § 3991 (M. & V.); § 3261 (T. & S.).</p> <p>Cases cited and approved: Caldwellv. Palmer, 6 Lea, 654; Elliott v. Cochran, 2 Sneed, 468; Martin v. Turner, 2 Heis., 384; Ar-rington v. Grissom, 1 Cold., 522; Campbell v. Bryant, 1 Leg. E., 137; Jones v. McKenna, 4 Lea, 630; Trousdale v. Maxwell, 6 Lea, 161; Quinby v. Transportation Co., 2 Heis., 596; Wicks v. Sears, 4 Lea, 298.</p> <p>Cited and distinguished: Eoss v. Mabry, 1 Lea, 226.</p>

<p>1. DECLARATION. States a case of actionable negligence, when.</p> <p>A declaration is sufficient which avers that plaintiff, while in a position assigned him by a Superior servant, was injured by reason of the unfitness of the appliances used in the service, whose defects were not of a latent character, but were unknown to plaintiff, who relied upon defendant to furnish safe and suitable appliances for the service, although it fails to aver that defendant knew of such defects or could, by the ex- ■ ercise of reasonable care, have discovered them. {Post, pp. 60-65.)</p> <p>Cases cited and distinguished: Railroad v. Handman, 13 Lea, 430; Bruce v. Beall, 100 Tenn., 579.</p> <p>2. Same. Defects in, cured by verdict, when.</p> <p>Defects in a declaration are cured by verdict “if on the trial the issue requires proof of the fact defeetivély stated or omitted.” [Post, p. 66.)</p> <p>Case cited: Gas Co. v. Williamson, 9 Ileis., 314.</p> <p>3. Same. Amendment of.</p> <p>Objection to a declaration is waived where the parties consent that certain language shall be inserted therein, and that the declaration so amended shall stand as a compliance with an order made upon sustaining demurrer to the original declaration. (Post, pp. 66, 67.)</p> <p>4. Master and Servant. Master’s duty to fwmish safe tools and appliances defined.</p> <p>The duty of the master is absolute to use active diligence to prevent improper or unsafe tools or implements being' furnished an employee, by which he may be injured. And it is likewise the master's duty to furnish his employees places to work in which they will nob be unnecessarily exposed to danger. The, master is held responsible for all defects that are discoverable by the application of the usual and ordinary tests, but not for latent defects not thus discoverable. (Post, pp. 65-69.)</p> <p>Cases cited: Guthrie v. Railroad, 11 Lea, 372; Whitelaw v. Railroad, 16 Lea, 391; Railroad v. Carroll, 6 Heis., 358; Railroad v. Jones, 9 Heis., 39; Railroad v. Elliott, 1 Cold., 613; Iron Co. u Pace, 101 Tenn., 484.</p>

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

<p>If ROM SHELBY.</p> <p>Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.</p>

<p>EROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. B. H. Hexseell, Oh.</p>

<p>1. Limitations, Statute of. Adverse possession for sen>en years under decree.</p> <p>Adverse possession of land held continuously for seven years under a decree confirming- a chancery sale thereof and purporting- to vest title in fee in the possessor, operates to extinguish all outstanding interests not protected by disability of the owner, and to invest the possessor with tide to the land in fee simple. Such decree constitutes color of title under the first section of the Act of 1839. (Post, pp. 98-100.)</p> <p>Code construed: § 4456 (S.); \ 3459 (M. & V.); § 3763 (T. & S.).</p> <p>Cases cited: Thurston v. University, 4 Lea, 519; Duncan v. Gibbs, 1 Yer., 356; Johnson v. Britt, 9 Ileis., 756.</p> <p>2. Same. Concurrent and successive disabilities.</p> <p>Concurrent disabilities are' available to prevent the running of the statutes of limitation ODly when they are united in one and the same person. Concurrent disabilities existing- in different persons, or successive disabilities, whether of the same or different persons, are never available. (Post, pp. 100-103.)</p> <p>Code construed: g 4450 (S.); § 3453 (M. & V.); | 3759 (T. & S.).</p> <p>3. Same. Same. Example.</p> <p>Hence an infant heir may be divested of his title by seven years’ adverse possession of his lands, if continued as much as three years after ancestor’s death, although both he and his ancestor •were under disability when the adverse possession began, and continued under same ever thereafter. The infant heir succeeds to the ancestor’s right of action in such case, and as to it his disability is not concurrent, but successive, and, therefore, not available. (Post, pp. 100-103.)</p> <p>Cases cited: Guión v. Anderson, 8 Hum., 398; Weissinger v. Murphy, 3 Head, 674; King v. Nutall, 7 Bax., 227; Burns v. Head-rick, 85 Tenn., 103; Alvisu Oglesby, 87 Tenn., 172; Gross v. Disney, 95 Tenn., 596.</p> <p>4. CHANCERY Pleading and Practice. Amendment of bill at hearing allowable.</p> <p>The statutes and practice are very liberal in permitting' amendments of pleadings, to reach the merits. Hence it is allowable to permit a complainant to amend his bill at the hearing by changing a material date so as to conform to the evidence. {Post, p. 103.)</p> <p>Code construed: §2 4587, 6145 (S.); U 3578, 5078 (M. & V.); ?§2867, 4335 (T. & S.).</p> <p>Case cited: Hog-an v. McFarland, 6 Bax., 104.</p> <p>5. Costs. Adjudged against successful appellant, when.</p> <p>Costs are adjudged against the complainant and appellant who has been successful in his suit to remove a cloud prosecuted against an infant who has no property. (Post, pp. 103, 104.)</p> <p>6. Guardian ad Litem. Fee of, not taxed against successfnl adversary.</p> <p>The fee of a guardian ad litem, cannot be taxed as costs or otherwise against the successful opposite party, although the ward may be utterly without funds to pay it. Attorneys are required to serve without compensation in such cases. (Post, pp. 104-106.)</p> <p>Case cited and approved: House v. Whit's, 5 Bax., 690.</p> <p>Cited and disapproved: Yourie v. Nelson, 1 Tenn. Ch., 617.</p>

<p>1. Will. Testator's intention. ■</p> <p>“The intention of the testator is the pole star in the construction of a will.” To ascertain this intention the Court looks to the whole will, the circumstances and environments of the testator, the state and condition of his family, the size and extent of his estate as he believed it to be, etc. (Post, p. 122.)</p> <p>Cases cited: Jones v. Hunt, 96 Tenn., 373; Hottell v. Browder, 13 Lea, 678 ; Thompson v. Gant, 14 Lea, 313 ; Fraker v. Fraker, 6 Bax., 350 ; Hoover v. Gregory, 10 Yer., 444 ; Dixon 1). Cooper, 88 Tenn., 177; Fry v. Shipley, 94 Tenn., 353 ; Old-ham v. York, 99 Tenn., 77; Henderson v. Vaulx, 10 Yer., 34 ; Gana way v. Tarpley, 1 Cold., 537; Bunch v. Hardy, 3 Lea, 547.</p> <p>3. Same. Trust arises upon precatory words, when.</p> <p>In order that precatory words in a will may raise a trust, it is essential that it shall appear (1) that the words are, upon a fair construction, imperative; (3) that the subject of the wish or recommendation be certain ; (3) that the objects or persons intended to have the benefit of the wish or recommendation be certain. (Post, pp. 119, 120.)</p> <p>Cases cited : Anderson u. McCullough, 3 Head, 614; Clark <u. Hill, 98 Tenn., 300 ; Woods v. Woods, 99 Tenn., 60; Frierson u Presbyterian Church, 7 Heis., 684; Thompson v. MeKissaek, 3 Hum., 631; Burks v. Burks, 7 Bax., 356 ; Anderson v. Hammond, 3 Lea, 381 ; Alsup v. Clarke, 15 Lea, 75 ; Hadley v. Hadley, 100 Tenn., 446 ; Cruse v. McKee, 3 Head, 1.</p> <p>3. Same. Same. Example.</p> <p>These precatory words contained in a will, to wit: “ I want to give my wife an executrix’s power to give out of my estate, before division, as ¿much as |15,000 of bequests to my kinfolks, say to Melville Williams $5,000 or $10,000, in her discretion, and the balance to some one else who may be needy,” does not raise a trust without affirmative action on the part of the executrix naming beneficiaries and fixing amounts, except as to |5,000 to Melville Williams, which latter recommendation is held, in view of the testator's environments and relations to Williams, to take effect without any action on the part of the executrix. (Post, pp. 117-124.)</p> <p>4. Same. Interest on legacies.</p> <p>The general rule is that a legacy bears interest from the expiration of one year after testator’s death, even when its enjoyment is postponed to a future date. But under the provision of the will in this case, setting apart a fund and impressing it with a trust in favor of Williams for $5,000, to be paid before distribution, the legacy bears interest from testator’s death. (Post, pp. 124,125.)</p> <p>Gases cited; Darden u. Orgain, 5 Cold., 215; German v. German, 7 Cold., 183; Mills v. Mills, 3 Head, 708; Harrison u Henderson, 7 Heis., 348.</p> <p>5. Same. GMldren charged with sums advanced by executrix for their support without interest.</p> <p>Where a testator provides for equal distribution of his estate among his two children and widow, making the latter his executrix and allowing her a support out of the estate during the course of administration, and then provides for his two children thus: “I give her [the executrix] five years to wind up my estate, but, in the meantime, she must give to Martin and Hattie each §250 per month to live on, ” the children will be charged, on final distribution, with all sums advanced under this clause for their support, but without interest. (Post, pp. 125-129.)</p> <p>6. Same. Widow takes absolute estate, when.</p> <p>The testator’s widow takes an absolute estate, not charged with any trust in any event in favor of the after-born child, under the following provision, to wit: “Should my wife give birth to a child in the next eight months, and the child should live, I will and devise to her (she to provide for the child) my residence, together with all furniture of every kind, carriage horses and carriages, etc., . . . and, after that, one-tliird of all my other property of every kind. In the event the child should not live, say twelve months, then 1 give her my residence, etc., if she desires it, but she must take of my property her one-third less the value of the residence, etc.’’ (Post, pp. 129, ISO.)</p> <p>7. Same. Child is pretermitted, when.</p> <p>And the child having' been horn as anticipated, and not having-been disinherited by the will, nor any definite, certain, and enforceable provision made for it, but one dependent on the will and bounty of the widow, is pretermitted, and, under the statute, “succeeds to the same portion of the testator’s estate as if he had died intestate.” (Post, pp. 129-131.)</p> <p>Code construed: $3925 (S.); §3033 (M. & V.); §3193 (T. & S.).</p> <p>8. Same. Method of ascertaining share of pretermitted child.</p> <p>In ascertaining the distributive share to which a pretermitted child is entitled, dower, homestead and year’s support will not be excluded from the fund for distribution, where the widow has waived these rights by taking a different provision made by the will. (Post, pp. 131-133.)</p> <p>9. Same. Same.</p> <p>The amount or value of special or specific devises and legacies must be taken into account in computing the share of a pre-termitted child; and, in raising- a fund to pay the share of a pretermitted child, each devisee or legatee must contribute in the proportion that the value of his devise or legacy bears to the value of the entire estate for distribution. (Post, pp. 132, 133.)</p> <p>Code construed: § 3936 (S.); § 3034 (M. & V.); § 2194 (T. & S.).</p> <p>10. Same. Time allowed for toinding up estate.</p> <p>A provision in a will allowing the executor five years to wind up the estate does not fix an arbitrary limit upon the administration, but is to be construed rather as an extension of the statutory period. It does not require the removal of a competent and faithful executor because he has been unable to windup the estate within the time allowed. (Post, pp. 133, 134.)</p> <p>11. Attorney at Law. Pees of not allowed out of general fund., when.</p> <p>An attorney who files a bill for some of the legatees and devisees against the executor and other legatees-and devisees, to obtain a necessary construction of the will and distribution and settlement of the estate, will not be allowed fees for his services out of the general estate, but must resort to the shares of his own clients, where the defendants likewise had counsel and became liable for their fees. (Post, pp. 135, 136.)</p>

<p>EEOM TIPTON.</p> <p>Appeal from Chancery Court of Tipton County. John S. Ooopee, Ch.</p>

<p>EROM SHELBY.</p> <p>Appeal from Chancery Court of Sbelby County. F. H. Heiskell, Ch.</p>

<p>KHOM KAYBTTE.</p> <p>Appeal from Chancery Court- of Eayette County. JOHN S. COOPER, Oh.</p>

<p>FROM DYER.</p> <p>Appeal in error from the Circuit Court of Dyer County. Thos. J. FeippiN, J.</p>

<p>FROM PAYETTE.</p> <p>Appeal in error from Circuit Court of Fayette County. Tiros. J. Fxippisr, J.</p>

<p>1. Misdemeanob. Unauthorized disposition of corpse is.</p> <p>The unauthorized disposition and sale of the dead body of a human being’ for gain or profit is a common law misdemeanor of high grade and malum in se. (Post, pp. 180-182.)</p> <p>2. Same. Unsuccessful attempt to dispose of corpse is.</p> <p>An attempt to make an unauthorized disposition and sale of the dead body of a human being- for gain or profit is likewise a misdemeanor at common law. (Post, pp. 182, 183.)</p> <p>Case cited and distinguished: Whitesides v. Sate, 11 Lea, 474.</p> <p>3. Same. JSmployer and employee.</p> <p>Where employer and employee participate, as such, in the commission of a misdemeanor, they are joint principals. (Post, p. 185.)</p> <p>Cases cited: Atkins v. State, 95 Tenn., 474; Whitesides v. State, 11 Lea, 474.</p> <p>4. Indictment. Sufficient for attempt to sell corpse.</p> <p>An indictment for an attempt to sell a corpse is not objectionable as uniting several distinct offenses in one count, which avers chat the corpse was delivered to one of the defendants, as an undertaker, for burial; that he and his co-defendant conspired not to bury, but to dispose of it for profit and gain to themselves, and that, thereupon, they packed it in a trunk and shipped it away for sale, etc. The true legal import of this indictment, disregarding superfluous narrative, is that defendants made a joint and unlawful attempt to dispose of the corpse for profit and gain to themselves, and this is sufficient. (Post, pp. 179, 180.)</p> <p>5. Punishment. How inflicted.</p> <p>Where a misdemeanor is punishable by both fine and imprisonment, or by either, it is competent for the Court, after the jury has imposed a fine, e. g., of 1750, as was done in this case, to add, in his discretion, imprisonment, e. g., eleven-months and twenty-nine days, as was done in this case. (Post, p. 185.)</p> <p>'6. Same. Of joint offenses.</p> <p>Althoug-h defendants are jointly tried and convicted for their joint offense, it is proper to inflict separate punishment, and each must respond to and satisfy his own sentence. (Post, pp.. 185, 186.)</p>

<p>1. Supreme COURT. Will not set aside verdict on the facts, when.'</p> <p>Unless the complaining party can show that the strongest legitimate view, adverse to himself, of which the evidence is susceptible, affords no support to the verdict, this Court will not set it aside on the facts. (Post, pp. 104-200.)</p> <p>Case cited: Citizens’ Rapid Transit Co. v. Seigrist, 96 Tenn., 120.</p> <p>2. Evidence. Photograph admissible.</p> <p>Photographs of a wrecked building and machinery, taken immediately after the- explosion that caused the injury, are competent evidence to show the condition of the premises and the extent of the damage inflicted, in any ease where these matters are the subject of inquiry. (Post, pp. 200, 201,)</p> <p>Case cited: Bruce v. Beall, 99 Tenn., 309.</p> <p>3. Witness. Inquiry as to collateral matters for purposes of impeachment.</p> <p>The answer of a witness on cross-examination as to a collateral matter is conclusive and cannot be contradicted or disproved for the purpose of impeaching him. (Post, p. 201.)</p> <p>4. Damages. Measure of, for breach of contract.</p> <p>Only such damages as result naturally and proximately are recoverable for breach of contract, but these may include (1) such damages as result immediately and in the usual course of things from the breach of the contract itself, and (2) such damages as result from the breach when considered in connection with the special circumstances which existed at the time the contract was made, and which, according to the understanding of both parties, entered into and became part and basis of the contract. (Post, pp. 201-217.)</p> <p>Cases cited: McDonald v. Unaka Dumber Co., 88 Tenn., 38; Railroad v. Cabinet Co., 104 Tenn.;, 568.</p> <p>5. Same. Same.</p> <p>To render special circumstances existing at the date of making a contract part and basis of the contract, and a proper matter for consideration in estimating the damages for its breach, it is not-essential that those circumstances shall be expressly referred to in the contrast, whether it be written or oral, but it is sufficient if they were known to both parties, and that the contract was, to some extent, based upon them and made with reference to them. (Post, pp. 206, 207.)</p> <p>6. Same. Sonne. Case in judgment.</p> <p>A manufacturer contracted to furnish machinery and make essential repairs upon the plant of a cotton compress company by a fixed date. The date fixed was, and was known by both parties to be, the beginning of the season, which continued during only a portion of the year, during- which the plant could be operated. It was likewise known that it was the purpose ■ and expectation of the compress company to have its plant in readiness for the beginning of the season. The manufacturer failed to complete the work within the time limited, and, when he did complete it, the work and material were of such inferior quality that an explosion resulted as a consequence, and so wrecked the compress plant that it could not be put in condition for operation during that season.</p> <p>Held: The manufacturer was liable not only for damages to the plant from the explosion, and the loss of the price of the work he had done, but for the rental value of the plant during the season of enforced idleness. (Post, pp. 189-194, 207, 208.)</p> <p>7. Same. Same.</p> <p>The rental value of a compress during the season of its enforced idleness is the true measure of damages against one whose negligence has wrecked it by explosion. (Post, p. 208.)</p> <p>8. Charos oe Cotjet. Does not leave constmtction of written contract to the. jury, when.</p> <p>A charg-e of the Court'is not objectionable as leaving- the construction of a written contract to the jury, which merely in-struets the jury with reference to extrinsic circumstances constituting- the basis of the contract which they should take into consideration in estimating damages for its breach. (Post. pp. 208, 209.)</p>

<p>PROM SHELBY.</p> <p>Appeal in. error from Criminal Court, of Shelby •County. J. M’. StetíW; Sp. J.</p>

<p>1. Hospital for Insane. Appointment of trustee to Jitt vacaneyr how made.</p> <p>The statutes do not require confirmation by the Senate of an appointment by the Governor to' the office of trustee of the Asylum for the Insane, when made to fill a vacancy caused by death, resignation, or otherwise than by expiration of full term. And such appointee acquires, without confirmation of' the Senate, complete and perfect title to said office for the entire nnexpired term, although it may continue and extend over one or more sessions of the Legislature.</p> <p>Code construed: l% 2585, 2586 (S.); 2024, 2025 (M. & V.); U 1521,, 1522 (T. & S.).</p> <p>2. Statutes. Meaning of, how ascertained.</p> <p>To ascertain the intention of the Legislature is the controlling object in the construction of statutes. A statute will be taken literally, unless its language is of doubtful import. If the-words of a statute are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of its framers, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation.</p>

<p>Appeal in error from Circuit Court of Shelby County. L. PL Estes, J.</p>

<p>PROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. Geo. Gillham, Sp. Oh.</p>

<p>1. Deed. Execution of, by corporation valid, When.</p> <p>A deed, binds a corporation, thongh not signed by the corporate name, where it purports on its face to be the deed of the corporation, recites in the in testimonium clause that the corporation has caused its corporate seal and the names of its president and secretary to be attached thereto, and which in fact bears the corporate seal, and is signed by its president and secretary in their official capacities. (Post, pp. 278, 279.)</p> <p>Code construed: l 3679 (S.); # 2819 (M, & V.); g 2012 (T. & S.).</p> <p>2. Mortgages and Deeds of Trust. Reservation that does not vitiate.</p> <p>A mortgage or deed of trust is not vitiated by a stipulation or reservation that nothing therein contained shall prevent the maker, a gaslight company, from “using or expending its money and assets in extending its works, or from selling or exchanging, when deemed expedient for the increase and benefit of its business, its town lots, buildings, manufactories, and machinery, the security of the bonds not to be lessened thereby,” where the money and other personal property of the maker is not embraced in the conveyance. “Assets,” as here used, embraces only personalty. The power to sell or exchange realty, as here given, is a limited one, and could be made effectual only by consent and conveyance by the trustee and for the purpose of the trust. (Post, pp. 279, 280.)</p> <p>Case cited: Nrierson v. Blanton, 1 Bax., 272.</p> <p>3. Contracts. Manner of construing.</p> <p>It is the duty of the Court to construe written contracts, if their meaning be in doubt, so as to give them effect rather than destroy them. (Post, p. 280.) , ■</p> <p>Cases cited: Morley v. Power, 10 Lea, 219; Frierson v. Blanton, 1 Bax., 273.</p> <p>• 4. CORPORATIONS. Innocent holder of corporate bonds.</p> <p>One who advances money to a corporation npon faith of its bonds deposited as collateral security, is a holder of such bonds for value in due course of trade, and entitled to protection as such. (Post, pp. 281, 282.)</p> <p>5. Same. Same.</p> <p>One who is compelled as surety to pay the debt of a corporation, and thereafter takes the note of the corporation for the amount secured by deposit of its bonds, is holder of such bonds for value and in due course of trade, and entitled to protection as such. (Post, p. 282.)</p> <p>Case cited: Atlanta Guano Co. v. Hunt, 100 Tenn., 89.</p> <p>•6.- Same. Authority of directors to pledge bonds of, as collateral security for its debts.</p> <p>Directors are authorized not only to sell, but likewise to pledge the company’s bonds as collateral security for existing indebtedness and future loans, where the bonds were issued under a resolution of the stockholders for the purpose of paying an existing floating indebtedness for improvements and to make others, and to retire an existing bond' issue, the directors being authorized by the resolution to use the bonds for these purposes in such manner as they might, in their judgment and discretion, deem best. (Post, pp. 282-284.)</p> <p>Gases cited: Baxter v. Washburn, 8 Lea, 15; Hunt & Bro. v. Gaslight Co., 95 Tenn., 136.</p> <p>7. Same. Directors'’ right to vote.</p> <p>Directors of a corporation are not disqualified to vote to apply the bonds or other effects of the company to secure or pay its debts held by another corporation in which they are officers or interested, especially when they are acting pursuant to a resolution of the stockholders. (Post, pp. 284, 285.)</p> <p>8. Same. Directors’ right to secure fhemsel/ues.</p> <p>Directors of a corporation are not forbidden, by reason of their position, to deal with the company, and where they have become indorsers for the accommodation of the company, they are permitted, while it is a going concern expecting to continue in business, to secure indemnity against possible loss from such indorsements. They may receive collateral security ' direct from the company, or may retain collaterals held by the principal debtor upon their payment of the debt. (Post, ■ pp. 285-289.)</p> <p>9.Same. Directors’ dealings with company scrutinized.</p> <p>But the Courts will closely scrutinize all transactions between a corporation and its directors, by which the latter take benefits. (Post, p. 289.)</p> <p>10. Same. Not treated as insolvent, when.</p> <p>A corporation will not be declared insolvent and its property administered as a trust fund for its creditors, and its dispositions thereof set aside, where the bill that prays such relief in the alternative, avers, and the proof shows, that the assets of the corporation are largely in excess of its indebtedness, and that it was, and expected to continue, a going concern at the date of the transactions. (Post, pp. 289-292.)</p> <p>Cases cited: Marr v. Bank, 4 Cold., 471; Moseby v. Williamson, 5 Heis., 378; Comfort v. McTeer, 7 Lea, 660; Tradesman’s Pub. Co. v. Car Wheel Co., 95 Tenn., 634; McLaren v. Boiler Mill Co., 95 Tenn., 696; Memphis, etc., Co. v. Ward, 99 Tenn., 173.</p> <p>11. Same. Sale of corporate properties under mortgage not set aside, when.</p> <p>A fair, open, public sale of the corporate properties, made under and pursuant to the provisions of 'a mortgage, will not be set aside at the instance of creditors or stockholders, for the reason that directors of the corporation united with others in the purchase, where it appears that such directors were creditors and holders of bonds of the corporation, but did not procure or invite the sale, which was forced by other bondholders. (Post, pp. 292-298.)</p> <p>13. Same. Same.</p> <p>The sale of the mortgaged property under the provisions of the mortgage and upon the facts set out in the opinion is held not to be premature, though made for the entire indebtedness upon default in payment of interest only. (Post, pp. 298-301.)</p> <p>13. Mechanics’ Lien. Inferior' to mortgage lien, when.</p> <p>The mechanics’ lien is inferior to that of a mortgage where the materials for which the lien is asserted were furnished after registration of the mortgage and without notice to'the mortgagee, though upon a contract made prior to the mortgage. (Post, pp. 302, 303.)' Cases cited: Baxters. Washburn, 8 Lea, 15; Green v. Williams, 92 Tenn., 224; Electric Light Co. v. Gas Co., 99 Tenn., 387.</p> <p>14. Ceoss Bill. TTnnecessaiy, when.</p> <p>A cross hill is unnecessary and will be dismissed where the relief which it seeks can be as well obtained under the answer to the orig-inal bill. (Post, p. 303.)</p> <p>15. Attorney at Law. Pees of.</p> <p>An attorney at law whose services have been rendered in defense of a suit in which no funds of his client have been brought under control of the Court, is not entitled to decree or lien for fees in the cause. (Post, pp. 303, 304.)</p>

<p>EROM WEAKLEY.</p> <p>Appeal in error from Circuit Court of Weakley County. W. H. Swigg-aet, J.</p>

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

<p>FROM SIIEEBY.</p> <p>Appeal in error from tbe Circuit Court of Sbelby County. L. H. Estes, J.</p>

<p>EROH SHELBY.</p> <p>Appeal from Chancery Court of Shelby Connty... Jno. L. T. Sneed, Ch.</p>

<p>X. lTEA.trDui.ENT Conveyance. Example of.</p> <p>A conveyance is f raudulent in fact and void upon attack of the grantor's creditors, where one, indebted to insolvency and sorely pressed by his creditors, transfers, without making any provision for his creditors, his entire property, consisting chiefly of a stock of goods, to a brother, who was not a merchant or financially responsible, taking his note, without security, for the larger portion of the purchase price, and permitting the brother to retain the remainder upon an unfounded claim, it appearing that both parties co-operated at the time and afterwards in a scheme to defeat the grantor’s creditors. (Post, pp. 373-380.)</p> <p>Cases cited: Robinson v. Frankie, 85 Tenn., 484; 6 Wall., 3991</p> <p>3. Same. The creditor's lien and its enforcement.</p> <p>From the date of filing his bill to set aside his debtor’s fraudulent conveyance, the creditor acquires a lien upon the property involved, enforceable against the whole world, althoug-h the bill may not have been sworn to, and did not se.ek attaeh■ment or injunction or otherwise actually impound the property; and, in such case, the creditor may, by supplemental proceedings, follow the property into the hands of purchasers pendente lite, who, of necessity, take same with lis pendens notice of the creditor’s rights, and may recover same or its proceeds from such purchasers, or obtain judgment for its conversion, being entitled, of course, to only one satisfaction in case of judgments against successive purchasers of same property. (Post, pp. 380, 381.)</p> <p>Code construed: § 6097 (S.); § 5031 (M. & V.), $ 4388 (T. & S.).</p> <p>Cases cited: August v. Seeskind, 6 Cold., 166; Brooks v. Gibson, 7 Lea, 371; Metteu. Dow, 9 Lea, 103; Epperson u Robertson, 91 Tenn., 413; Solinsky v. Bank, 85 Tenn., 368; Gage v. Epperson, 3 Head, 669; Arrendale u Morgan, 5 Sneed, 703; Chesney v. Rodgers, 1 Heis., 343; Bank v. Haller, 101 Tenn., 85; Knott v. Cunningham, 3 Sneed, 305; Brown v. Kinchloe, 3 Cold., 198; Turner v. Brock, 6 Hei's., 50.</p> <p>3. Same. Set aside under till objectionable as setting up antagonistic claims, when.</p> <p>Although a hill to set aside a fraudulent conveyance may he objectionable as seeking-, in the alternative, to recover in affirmance of that conveyance, thereby uniting antagonistic grounds for relief, still complainant will not be repelled on this account, where this question was not made specifically by demurrer, and the alternative feature of the bill was abandoned in the preparation and prosecution of the case, and relief sought alone on the first ground stated in the bill. (Post, pp* 381-384.)</p> <p>Cases cited: Cunningham v. Campbell, S Tenn'. Ch., 713; Bank/u. Pettit, 9 Heis., 447; James v. Kennedy, 10 Heis., 613.</p>

<p>1. Chanceky Pleading and Pbactice. Final decree upon pro eon-fesso proper, when.</p> <p>An averment in a bill that a defendant had fraudulently received and converted property of complainant's debtor, who was likewise made defendant, “worth between three and four thousand dollars,” is sufficiently definite to justify a final decree, upon pro eonfesso, without evidence or reference, against such fraudulent grantee, for a debt, described in the bill as a judgment against said debtor, for 1803.05, dated May 23, 1892, being only about one-third the amount of the alleged liability of such fraudulent grantee. (Post, pp. 386-392.)</p> <p>Cases cited: Ross v. Meek, 93 Tenn., 666;' Haralson v. MeGavock, 10 Lea, 719.</p> <p>2. Same. Defendant entitled to benefit of denials of co-defendants answer, when.</p> <p>In a suit by a creditor to set aside a fraudulent conveyance of his debtor and to hold the fraudulent grantee liable for the value of the property, when the debtor answers on oath denying all fraud, there can be no decree upon pro eonfesso without proof against the fraudulent grantee, as he, in such ease, is entitled to the benefit of his co-defendant’s answer and denial. (Post, pp. 392-397.)</p> <p>Cases cited: Simpson v. Moore, 5 Lea, 372; McDaniel v. Goodall, 2 Cold., 395; Cherry»u Clements, 10 Hum., 552; Hennessee v. Ford, 8 Hum., 500; Petty v. Hannum, 2 Hum., 102; Caldwell v. McFarland, 11 Lea, 467; Phillips v. Hollister, 2 Cold., 271; Butler v. Kinzie, 90 Term., 31; Smith v. Cunnrag-ham, 3 Terra.. Ch., 573.</p>

<p>County. IAabiUty for its employee's negUgenee.</p> <p>A county is not liable for injury caused by the negligent discharge of duty by one of its employees engaged in the service of one of its public institutions — e. g., a house of correction and reformation for the young — although the statute that authorized did not make compulsory, but left optional with the county, the establishment and maintenance of such institution, and regardless of the fact that the institution may yield an income that' supports it, or. may yield more or less than that, or nothing at all.</p> <p>Code construed: § 496 (S.); 2463 (M. & V.); §404 (T. & S.).</p> <p>Cases cited: Wood v. Tipton County, 7 Bax.. 113; Grant v. Lindsay, 11 Heis., 651; Railroad v. Wilson County, 89 Tenn., 604; Turnpike Co. v. Davidson County, 14 Lea, 74; Hawkins v. Justices, 13 Lea, 356.</p>

<p>LANDLORD and Tenant. Notice to quit. ■</p> <p>Where husband and wife, by virtue of a stipulation in a mortgage of their lands, held by them as tenants by the entireties, become tenants from month to month, of the purchaser at the foreclosure sale, the tenancy cannot be terminated as to the'wife, and suit for her dispossession maintained, upon notice to the husband alone.</p> <p>Case cited: Cole Mfg. Co v. Collier, 95«Tenn., 122.</p>

<p>FROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.</p>

<p>1. Declaration. Sufficient averment of negligence.</p> <p>A declaration in an action lor personal injuries is not had on demurrer assigning that the allegation oí negligence is too' vague and indefinite, which avers that defendant “did wrongfully and negligently run one of its engines and cars upon, over, and against the plaintiff. ” (Post, p. 418.)</p> <p>Cases cited: Bailroad v. Pratt, 85 Tenn., 9; Bailroad v. Davis, 104 Tenn., 444.</p> <p>2. Same. Evidence of specific defect admissible under general averment of negUgence.</p> <p>And it is competent to prove, under such general averment of negligence in one count of the declaration, the specific fact that the brakes of defendant’s train were defective or out of repair, even though in other counts other specific acts of negligence may be averred omitting this one. (Post, pp. 418,419,426.)</p> <p>Cases cited and' distinguished: Coal Co. v. Daniel, 100 Tenn., 65; Fletcher v. Bailroad, 102 Tenn., 1.</p> <p>3. Bailroads. Observance of statutory precaxvtions for prevention of accidents required of dummy lines.</p> <p>Dummy lines, whether in or outside of a city, are railroads within the meaning and purview of the statutes requiring the observance by railroads of certain statutory precautions for the prevention of accidents. (Post, p. 422.)</p> <p>Code construed: g 1574 (S.)j g 1298 (M. & V.); g 1166 (T. & S.).</p> <p>Case cited: Katzenberger v. Lawo, 90 Tenn., 239.</p> <p>4. Same. Not excused from observance of statutory precautions, when.</p> <p>In a case where the statute prescribing the observance by railroads of certain statutory precautions for. prevention of accidents in the operation of their trains is applicable, it is essential that the railroad company shall show affirmatively due observance of the required precautions, and the burden is. upon it to do so. It constitutes no defense, in such case, if proved that the accident and injury would have occurred even if the precautions had been observed. (Post, pp. 419-423.)</p> <p>Cases cited: Railroad v. Burke, 6 Cold., 45; Railroad v. Connor, ■9 Heis., 36; Hill v. Railroad, 9 Heis., 837; Railroad v. Smith, 9 Heis., 863; Railroad v. Thomas, 5 Heis., 366; Railroad v. Foster, ■88 Tenn., 678; Railroad v. St. John, 5 Sneed, 534.</p> <p>5. Same. Contributory negligence constitutes no defense for nonobservance of statutory precautions.</p> <p>Contributory negligence of the plaintiff constitutes no defense for a railroad company’s failure to observe statutory precautions, but goes only in mitigation of damages. (Post, p> 420.)</p> <p>Cases cited: Railroad v. Burke, 6 Cold», 45; Railroad v. Smith, 6 Heis., 177; Railroad v. Walker, 11 Heis., 385; Simpson v. Railroad, 5 Lea, 456; Railroad v. Foster, 88 Tenn., 675; Railroad Connor, 3 Bax., 383.</p> <p>6. Same. What constitutes defense for nonobservance of precautions.</p> <p>If it is shown by the railroad company that observance of the statutory precautions was, under the circumstances, impossible, this constitutes a good excuse and defense for nonobservance of same, provided it is clear that such impossibility does not arise out of any default of the railroad company. (Post, p. 421.)</p> <p>Cases cited: Railroad v. Scales, 3 Lea, 688; Railroad v. Swaney, 5 Lea, 119; Railroad v. Foster, 88 Tenn., 680; Railroad v. Anthony, 1 Lea, 516; Railroad v. Selcer, 7 Lea, 559; Hill v. Railroad, 9 Heis., 837.</p> <p>7. Same. Burden of proof on railroad company.</p> <p>The burden is upon the railroad company to show due observance of statutory precautions, or that such observance was impossible, and that it was guilty of no negligence in providing effectual means for prevention of accidents, and that the accident was unavoidable. (Post, pp. 421-425.)</p> <p>Code construed: $ 1576 (S.); g 1300 (M. & V.); § 1168 (T. & S.).</p> <p>Cases cited: Railroad v. Gardner, 1 Lea, 690; Horne v. Railroad, 1 Cold., 74; Railroad v. Fugett, 3 Cold., 404; Burke v. Railroad, 7 Heis., 463; Railroad v. Connor, 9 Heis., 31; Railroad v. Mitchell, 11 Heis., 400; Dillard Bros. 'v. Railroad, 3 Lea, 396 Railroad v. Stewart, 13 Lea, 432; Railroad v. Pratt, 85 Tenn., 9; Railroad v. Parker, 12 Heis., 50; Summers v. Railroad, 7 Lea, 204; Railroad v. Smith, 6 Heis., 177; Railroad v. Nowlin, 1 Lea, 525; Railroad v. Stone, 7 Heis., 471; Railroad v. Logue, 13 Lea, 35; Railroad v. Smith, 9 Heis., 864; Simpson v. Railroad, 5 Lea, 456.</p> <p>8. Same. Liable though it may not be shown that injury resulted from nonobservance of precautions.</p> <p>It is not essential that it shallnappear that plaintiff’s injury was the result of defendant’s failure to comply with statutory precautions to entitle him to recover. It is sufficient if, at time of the accident, the train of defendant was running without compliance with all statutory precautions. (Post, p. 426.)</p> <p>9. Chaege op Court. Ms to common law negligence, proper, when.</p> <p>It is proper for the Court to charge upon the subject of common law negligence as well as upon statutory negligence, where both are charged in separate counts of the declaration and there is evidence tending to prove each. {Post, pp. 427, 428.)</p> <p>Case cited and distinguished: Railroad v. Howard, 90 Tenn., 144.</p> <p>10. Verdict. Supported by evidence, when.</p> <p>The facts set out in the opinion are held to support a verdict for plaintiff for $1,200. {Post, pp. 429, 430.)</p>

<p>EROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton County. T. M.- McConnell, Oh.</p>

<p>Municipal Corporations. Inability for damages caused by grading streets.</p> <p>Á municipal corporation that' permits a third person to grade its streets is liable for the resulting damages to the ingress and egress of the owners of abutting lots, although such grading was not authorized by any formal' or valid action of the city authorities.</p> <p>Acts construed: Acts 1891, Ch. 31; Acts 1893, Ch. 41.</p> <p>Code construed: \ 1988 (S.).</p> <p>Cases cited: City v. Nichol, 3 Bax., 338; Memphis v. Lasser, 9 Hum., 760; Knoxville v. Bell, 12 Lea, 159.</p>

<p>FROM AH OX.</p> <p>Appeal in error from Circuit Court of Knox County. Joseph W. ' Sheep, J.</p>

<p>1. Garnishment. Fund not subject to.</p> <p>A fund is not subject to garnishment by the depositor’s creditor, which has been placed in bank, earmarked as a trust fund, and upon which cheek has been drawn, but not presented before service of garnishment, applying it, in accordance with an antecedent agreement, to the exoneration from liability for the depositor of the surety who signed the note with him to raise the fund.</p> <p>Cases cited: MeGuffey v. Johnson, 9 Lea, 555; Stockard v. Stock-ard, 7 Hum., 303; Wharton v. Lavender, 14 Lea, 178.</p> <p>2. Same. Same. Parties.</p> <p>A surety upon a refunding bond given upon withdrawal of an attached fund during the progress of the cause, is sufficiently before the Court to authorize a decree settling his rights in the fund.</p> <p>3. Same. Same. Same.</p> <p>The debtor whose funds are attached, may defend by setting up, in favor of a person not a party to the cause, a superior title derived from himself.</p>

<p>Municipal Corporations. Not Viable on bond, when.</p> <p>In an action on an alleged city bond, there can be no recovery where non est factum and statute of limitations are pleaded, ’ where the bond had been due some fourteen years before institution of suit thereon, and there is no proof of the city’s recognition of its existence or promise to pay it during that period by payment of interest thereon, or providing sinking fund for its payment, or otherwise.</p>

<p>1. Homestead. Attaches prior to judgment Men.</p> <p>Upon the purchase of land by the head of family, against whom there exists, at the time, a judgement in a Court of record, the homestead attaches in his favor and prevails over the lien of the judgment.</p> <p>2. Same. Debtor's purchase of homestead not fraudulent as to his creditors.</p> <p>The purchase of homestead by a debtor, with funds furnished by his wife and sons, is not fraudulent as to his creditors.</p> <p>Cases cited: Hollands v. Webb, 2 Shann. Cas., 583; Dolbey v. Mullens, 3 Hum., 437; Wagner v. Smith, 13 Lea, 569; McCrae v. McCrae, 103 Tenn., 719.</p>

<p>RKOlvI ir.lMtX.TOX..</p> <p>¿Appeal in error from Circuit Court of Hamilton County. Elotd Estele, T.</p>

<p>B’BOM KHOX.</p> <p>Appeal in error from Circuit Court of Knox County. Joseph W. Sheet), J.</p>

<p>STROM HAMILTON.</p> <p>Appeal from. Chancery Court of Hamilton County. T. jVL. McConnell, Oh.</p>

<p>1. ADVERSE Possession. By father and son.</p> <p>Adverse possession of land held jointly by a father and his minor son for the term of seven years, under a deed purporting to convey the title in fee to the son, invests him with title.</p> <p>Case cited: McLemore v. Durivage, 93 Tenn., 483.</p> <p>3. Same. By tenants in common.</p> <p>'Adverse possession of land held by one of several tenants in common, but not adversely to his co-tenants, for the term of seven years, under deeds purporting to convey the lands in fee to the several tenants in common, invests them all with title according to their respective claims.</p> <p>Cases cited : Cunningham v. Koberson, 1 Swan, 138; Merri-weather v. Yaulx, 5 Sneed, 311; Elliott v. Holder, 3 Head, 699.</p> <p>3. Same. -Successive possessions may be connected.</p> <p>And the successive possessions of different tenants in common, . holding under deeds, may be connected to make out the requisite seven years.</p> <p>Cases cited: Kelson -v. Trigg, 4 Lea, 701; Ellege v. Cooke, 5 Lea, 633; Napier’s Lessee v. Simpson, 1 Tenn., 448.</p> <p>4. Same. Continuity of, not broken.</p> <p>The continuity of adverse possession, held under a deed to the ■possessor, is not broken by suit and recovery against his vendor after the making- of the deed.</p>

<p>I'licm KNOX.</p> <p>Appeal in error from Circuit Court, of Knox County. Joseph W. Sneed, J.</p>

<p>PROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. Leon TouROtaion, Sp. Ch.</p>

<p>1. IntA-NT. Authority of next friend.</p> <p>The nest friend, hy whom an infant’s action for damages has been prosecuted to judgment, has no authority to receive the amount recovered, or to satisfy the judgment. That can be done by the regular guardian alone, during the infant’s minority, and by the infant himself, after his majority.</p> <p>Cases cited : Miles v. Ilaigler, 10 Yer., 10; Benton v. Pope, 5 Hum., 393; Barbee v. Williams, 4 Heis., 533; Green v. Perkins, 3 Lea, 494.</p> <p>3. Same. Satisfaction of judgment by next friend set aside.</p> <p>An admission of record of satisfaction of a judgment confessed in favor of an infant, made by his next friend, will be set aside in equity, at the suit of the plaintiff therein after his majority, and the judgment enforced in his favor, except as to a reasonable fee paid to his attorney for services rendered in obtaining the judgment.</p> <p>3. Same. Judgment confessed in faroor of, not set aside, when.</p> <p>Confession of judgment in favor of an infant will not be held to-be conditioned upon a confession of satisfaction thereof by his next friend, although both are embraced in one and the same entry of record. And the confessed satisfaction will be set aside as illegal and unauthorized, while the confessed judgment will be permitted to stand and be enforced.</p>

<p>IfROM HAMILTOH.</p> <p>Appeal from Chancery Court- of Hamilton County. T. 1VI. HoOoniíjell, Ch.</p>

<p>FROM CUMBERLAND.</p> <p>Appea] in error from Circuit Court of Cumberland County. W. T. Smith, J-</p>

<p>1. Appeal. Not dismissed for want of bond, when.</p> <p>Appeal will not lie dismissed for want of bond where one is tendered before the motion to dismiss on that account is disposed of. (Post, p. 538.)</p> <p>3. Same. Lies by Hoad Commissioner.</p> <p>A Road Commissioner is an interested party to a contest over the-opening of a public road, in such sense that he may prosecute-an appeal from the judgment of the County Court refusing to-sustain his action in opening the road. (Post, pp. 538, 539.)</p> <p>Code construed: §§1631, 1635 (S.).</p> <p>3. Same. What constitutes record on appeal from Cownty Cov/rt to Circwlt Court.</p> <p>A transcript, not the original papers, constitutes the record to be sent up on appeal to the Circuit Court from a judgment of the County Court, and it is not necessary that a seal be placed to the certificate to the transcript. (Post, p. 539.)</p> <p>Code construed: §§1635, 4883, 4885 (S.); §§ 3867, 3870 (M. & V.); §§3150, 3153 (T. & S.).</p> <p>4. Notice. Waiver of.</p> <p>Notice of the contemplated opening of a public road is waived by the landowner’s appearing and making defense on the merits in the Courts. (Post, p. 539.)</p> <p>5. Public Roads. Objection that a commissioner was not a freeholder immat&'ial.</p> <p>The objection that one of the commissioners for the laying out of a public road was not a freeholder becomes immaterial in the Circuit Court when the contest is tried de novo. (Post, pp. 539, 540.)</p> <p>Case cited: Patton u. Clark, 9 Yer., 369.</p> <p>6. Same. Contest heard at jvrst term.</p> <p>A road contest stands for trial in the Circuit Court, on appeal, at the term on the first day of which the. transcript was filed. (Post, p. 540.)</p>

<p>1. Principal and Surety. Sv/rety liable before stayor of judgment, when.</p> <p>Where a surety actively co-óperates with his principal in procuring stay of a judgment against both, he is liable before the stayor.</p> <p>2. Supreme Court. Will not reverse upon question not made below.</p> <p>This Court will not reverse upon a question not made or suggested in the lower Court.</p> <p>Case cited: Jones v. Cullen, 100 Tenn., 24.</p>

<p>Ji-KOM MCMINN.</p> <p>xlppeal in error from tbe Circuit Court of Mc-Minn County. J Gf. Parks, J.</p>

<p>EROM M. MINK.</p> <p>Appeal from the Chancery Court of kicMinn County. T. - M.. . McOoNNEun, Ch.</p>

<p>1. Navigable Stbeam. What is.</p> <p>A river is navigable which is occasionally, during good tides,, used for steamboat navigation, although its navigability has not been declared or recognized by statute, State or Federal. (Post, pp. 553-556.)</p> <p>Cases cited: Elder v. Burrus, 6 Hum., 367; Stuart v. Clark, 2 Swan, 9; Sigler v. State, 7 Bax., 493.</p> <p>2. Same. Power of State over.</p> <p>The State Legislature has undoubted power to authorize the obstruction of navigable streams situate entirely within the- territorial limits of the State — e. g., by the construction of railroad bridges over same. (Post, pp. 556, 557.)</p> <p>3. Same. Authority to huilcl bridges over, construed.</p> <p>Authority conferred upon a railroad company by its charter to ‘ ‘ build bridges ” does not give the right to obstruct navigable streams by permanent structures of this character. (Post, pp. 557-560.)</p> <p>Cases cited: Cantrell v. Railroad, 90 Tenn., 638; Railroad v. Hicks, 5 Sneed, 427.</p> <p>4. Same. Right to obstruct, not acquired by prescription.</p> <p>A prescriptive right to obstruct a navigable stream — e. g., by an unauthorized railroad bridge — cannot be acquired by the maintenance of the obstruction for any length of time, however g-reat. (Post, pp. 560, 561.)</p> <p>Case cited: Elkins v. State, 2 Hum., 542.</p> <p>5. Same. Question of navigability one of fact for jury.</p> <p>The question of navigability of a stream is one of fact for the jury. (Post, p. 562.)</p> <p>6. PRESCRIPTION. Right by, must be specially pleaded,.</p> <p>Right by prescription, when relifed on as a defense, must be specially pleaded. It cannot be shown under the general issue. (Post, pp. 560, 561.)</p> <p>7. Same. Not error to chci/rge statutes relating to, when.</p> <p>It is not error for the Court to charge the statutes relating to the navigability and obstruction of navigable streams, especially when it is clear that the stream in question is navigable independently of statute. (Post, p. 561.)</p> <p>Code construed : 1808, 6869 (S.); \\ 1513, 5746 (M. & V.); §§ 1399, 4913 (T. & S.)</p>

<p>FROM CAMPBELL.</p> <p>Appeal from Chancery Court of Campbell County. Hugh Gr. Kyl:e; Ch.</p>

<p>FROM RHEA.</p> <p>Appeal in error from Circuit Court of Rhea County. M. D. Smallman, J.</p>

<p>EROM CAMPBELL.</p> <p>Appeal from Chancery Court of Campbell County. Hugi-i G. Kyle, Ch.</p>

<p>PROM ANDERSON.</p> <p>Appeal from Chancery Court of Anderson County. R. Ii. Sansom, Special Ch.</p>

<p>1. Chancery Court. Has not jurisdiction of contest over Mayor's office.</p> <p>The Chancery Court has not jurisdiction to try a contest over the election of Mayor of a city. The Circuit Court takes jurisdiction of such contests, under that provision of the Code conferring jurisdiction upon that Court in all cases where it is not conferred upon another tribunal. Such contest is not a “cause” within the Act of 1877 enlarging the jurisdiction of Chancery Courts.</p> <p>Act construed: Acts 1877, Ob. 97.</p> <p>Code construed: § 6063 (S.); § 4997 (M. & V.); g 4225 (T. & S.).</p> <p>Cases cited: Shields v. Davis, 103 Tenn., 538; Boring v. Griffith, 1 Iieis., 456.</p> <p>2. Jurisdiction. Question of, when made.</p> <p>Objection for want of jurisdiction of the subject-matter by a Chancery Court may be made at any time, and cannot be waived by consent, appearance, plea, or answer.</p> <p>Cases cited: Lowe v. Morris, 4 Sneed, 68; Merchant v. Preston, 1 Lea, 280; Starnes v. Newsome, 1 Tenn. Ch., 245.</p>

<p>1. Guardian and Waed. Guardian's liability.</p> <p>A guardian cannot toe held by the administrator or next oí kin oí his deceased ward to account for a fund consisting of a legacy to the ward, which, as to the corpus, had been, without authority, paid over toy the executor to the guardian, and, as to the interest, had been exhausted toy the guardian in supplying the ward with necessaries, where, by the terms of the will, the corpus had reverted to testator’s estate upon the ward’s death before attaining his majority.</p> <p>Cases cited: McAlister v. Olmstead, 1 Hum., 310; Galbraith v. State, 10 Lea, 574.</p> <p>3. Will. Legacy reverts to testator's estate, when.</p> <p>Under the terms of the will set out in the opinion, the principal of the legacy to the ward reverted, on his death before his majority, to the testator’s estate, the ward or his guardian being entitled only to the interest that accrued thereon in the ward’s lifetime. (Post, VP- 615, 617, 621, 622.)</p>

<p>FROM KNOX.</p> <p>Appeal in error from Circuit Court of Knox County. Jos. W. Sneed, J.</p>

<p>1. Pleading and Practice. Making issue on amended declaration.</p> <p>When a case is tried upon an issne made upon the original declaration, and without plea to an amended declaration restating the original cause of action, but without objection on that account, this Court will treat the amended declaration as being incorporated with the original declaration, and as put at issue by the pleas offered to the original declaration.</p> <p>3. Railboads. Turntables.</p> <p>A railroad company that maintains a turntablé, or other machinery of like attractive and dangerous character, in a position exposed and accessible to children, and in such condition as to be set in motion by them, is liable for any damages to a child of tender (6) years injured by the action of himself and companions in setting such machinery in motion.</p>

<p>FROM WASHING-TON.</p> <p>Appeal from Chancery Court of Washington County. JohN P. Skith, Oh.</p>

<p>RJtOM HAMILTON.</p> <p>Appeal in error from Circuit Court of Hamilton County. Eloyd Estill, J.</p>

<p>1. Vbbdict. When set aside on the facts.</p> <p>This Court will not reverse a verdict upon consideration of the facts alone, if there is any material evidence to support it. The trial Judge acts upon a different rule. He should set aside a verdict if satisfied that it is not justified by the facts, but he should not set it aside merely because he, trying the case originally, would have decided it differently from the jury.</p> <p>Case .cited: Tate v. Gray, 4 Sneed, 591.</p> <p>2. Same. Same. Case irn judgment.</p> <p>The language of the trial Judge, refusing a new trial, indicates an application of the rule appropriate to his own Court, and not of the rule peculiar to this Court, when he stated that, after excluding from consideration the statements of certain witnesses deemed utterly unreliable, “that it was a close question on the other facts in the case, and the jury having adopted the plaintiff’s theory, under the well-settled rule of law, their verdict should not be disturbed.”</p>

<p>EROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton County. T. M. McConnell, Oh.</p>

<p>RROM HAMILTON.</p> <p>Appeal in error from Circuit Court of Hamilton County. íxoyd Estill, J.</p>

<p> FROM HAMILTON. </p> <p>Appeal from Chancery Court of Hamilton County. T. M. McConnell, Ch.</p>

<p>Stbeet Railroad. Duty to aMghting passengers.</p> <p>A street railroad company is not held to that high degree of care and liability, which it owes to a passenger on its cars, in favor of one who has alighted from its car at his destination, a public place — e. g., an intersection of streets, over which the company has no special control — and is proceeding to the sidewalk. The company does, however, owe to such person, at such public place and while near its track, a very high degree of care. At its stations or other places under the control of the company, persons do not, it seems, lose at once their character of passengers on alighting from the cars.</p>

<p>FROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton County. T. M. McConnell, OR.</p>

<p>PROM HAMILTON.</p> <p>Appeal from Chancery Court of Hamilton County. T. M. McCoNNell, Ch.</p>

<p>1. Receiver. Of railroad subject to swit, when.</p> <p>Action lies in any Court having jurisdiction of the subject-matter and parties against the receiver of railroad properties appointed by the Chancery Court, in the absence of anyprohibition by the Court appointing him, for any tort or default committed or incurred by him in the operation of the impounded property; but, it seems, the plaintiff, when he succeeds in obtaining judgment, must seek its satisfaction through the Court, and in the cause in which the company’s properties are impounded. (Post, pp. 705, 70S.)</p> <p>2. Same. Same.</p> <p>The receiver of railroad properties is not exempted from suit in other Courts than that of his appointment for his torts and defaults committed and incurred in the operation of the property, by an order of the appointing Court forbidding suits elsewhere by bondholders, creditors, and other parties interested in the properties of said railroad company and the subject-matter of this suit,” and requiring them to present their claims in that cause. (Post, pp. 704, 705.)</p> <p>3. Injunction. Operates upon parties, not upon Oowrts.</p> <p>Injunction operates upon parties, not upon Courts. Hence, if an enjoined party brings an action in violation of the injunction, the Court in which the action is brought may, as matter of comity, recognize the injunction, and refuse to proceed, or it may lawfully refuse to do so. The effective remedy in such case is to proceed against the offending party for contempt in the Court granting the injunction. (Post, p. 707.)</p> <p>4. Negligence. What constitutes.</p> <p>It constitutes negligence per se on the part of a railroad company, or its receiver, to permit a child of tender (6 or 7) years to- . climb upon and ride on one of its cars loaded with loose dirt that was liable to slip and throw the child off at any time. (Post, pp. 707, 708.)</p> <p>5. Infant. Capacity to testify.</p> <p>Where an infant of tender (7) years has been permitted to testify without objection, exception to his testimony, for want of capacity, cannot be thereafter taken by request for instruction to the jury to disregard it. (Post, pp. 708, 709.)</p> <p>6. Damasks. Elements of.</p> <p>In an infant’s action, brought by next friend for his personal injury, there can be no recovery for medical expenses incurred by the father for the infant's cure, nor for the infant’s loss of' time which belonged to the father. (Post, pp. 709, 710.)</p>

<p>1. Mandamus. Granted by this Court to control action of Circuit Judge, when.</p> <p>This Court has jurisdiction, by mandamus, to compel a Circuit Judge to vacate his illegal and arbitrary action, taken out of term time, in having a judgment entered as if during term, and appeal granted as of date after close of term, and to compel him to reinstate the case on his docket for such further proceedings as might be desired and appropriate, when such relief is invoked by a party who seeks, but, by the Judge’s unwarranted action, is denied any effective review of the case on appeal or writ of error. (Post, pp. 113-716, 721-728.)</p> <p>'Constitution construed: Article VI., Section 2.</p> <p>■Cases cited: Miller v. Koger, 9 Hum., 236; State v. Hall, 3 Cold., 255; State u Elmore, 6 Cold., 528; Whitfield v. Greer, 3 Bax., 78; Newman v. Justices, 1 Heis., 787; State v. Hall., 6 Bax., 7; Alexander u State, 14Lea, 88; Vanvabry v. Staten, 88 Tenn., 334.</p> <p>:2. Same. Other remedy does not defeat jurisdiction of this Court.</p> <p>The existence of other adequate remedies at law, or in equity, does not defeat or affect the jurisdiction of this Court to issue mandamus to control the action of inferior Courts and judges in aid of its appellate jurisdiction and as a necessary incident to its effective exercise. (Post, pp. 728-733.)</p> <p>Constitution construed: Article VI., Section 2.</p> <p>Code construed: $ 377, (S.); g. 344 (M. & V.).</p> <p>Cases cited and approved: King v. Hampton, 3-Hay., 59; Miller v. Conlee, 5 Sneed, 434; Miller v. Kog-er, 9 Hum., 236; Ward v. Thomas, 2 Cold., 565; Memphis v. Halsey, 12 Heis.. 210; State ■u. Hull, 3 Cold., 255; Ing v. Davey, 2 Lea, 276; Vanvabry u Staton, 88 Tenn., 340; State v. Hall, 6 Bax., 7; State v. Elmore, 6 Cold., 529.</p> <p>Cited and distinguished: State v. Commissiones, 1 Shan. Cases, 490; Whites Creek Co. u Marshall, 2 Bax., 124.</p> <p>3. Same. Judge taxed ivitk costs.</p> <p>Where, in a proceeding- by mandamus against a Judge of an inferior Court, it appears that his action has been wholly unwarranted and arbitrary, as in this ease, and manifests a partisan spirit on his part, he will be taxed with all the costs of the proceeding. (Post, %>. 735.)</p> <p>Cases cited: State v. Puckett, 7 Lea, 709; Hawkins v. Kercheval, 10 Lea, 535; Ingersoll v. Howard, 1 Heis., 347.</p> <p>4. New Trial. Motion for, not essential, token.</p> <p>Motion for new trial is not essential when a case is tried by the Judge without the intervention of a jury. (Post, pp. 715-743.)</p>