Volume 106 — Tennessee Reports

<p>1. Coepobatiojms. Authority to execute mortgage sitfflcient, when.</p> <p>Authority for the execution of a mortgage by a manufacturing corporation, to secure a loan of 11,000, sufficiently appears from a recital in the mortgage itself of the substance of the action taken by the stockholders and directors in these words, to wit: ‘‘ Whereas, at a meeting of the stockholders and directors of said company, held in Kingston, Tenn., on April 5, 1892, a resolution was passed to borrow $1,000 to operate said mill, which Mary L. Byrd agreed to loan upon six months’ time, as here secured, which loan was accepted, and said money advanced.” (Post, pp. 3, 4.)</p> <p>2. Same. Mortgage of, valid utithout seal.</p> <p>The impression of a corporate seal upon a mortgage or other instrument made by a domestic corporation, chartered- and organized under the general incorporation Act of 1875, is not essential to its validity when the corporation has no common seal, and, in the absence of proof to the contrary, the Court presumes that the company had no common seal. (Post, pp. 4, 5.)</p> <p>Act construed: Acts 1875, Chapter 142.</p> <p>Code construed: $ 2054 (S.); I 1704 (M. & V.).</p> <p>Case cited: -Garrett v. Belmont Land Co., 94 Tenn., 473.</p> <p>3. Same. Mortgage sufficiently signed Toy company.</p> <p>The mortgage of a corporation which commences, “We, the Kingston Lumber & Mfg. Co., has this day bargained and sold and do hereby transfer and convey,” etc., and is signed, “Mary L. Byrd, President of the Kingston Lumber & Mfg. Co.,” is sufficiently signed by the corporation to bind it. (Post, pp. 5, 6.)</p> <p>Code construed: § 3679 (S.); £ 2819 (M. & V.); $ 2012 (T. & S.).</p> <p>Case overruled: Garrett v. Belmont Land Co., 94 Tenn., 473.</p>

<p>EEOM KNOX.</p> <p>Appeal from Chancery Court of Knox, County. Geo. W. HeNdebsoN, Special Ch.</p>

<p>FROM KNOX.</p> <p>Appeal from Chancery Court of Knox County. Geo. W. HeNdeesoN, Sp. Cb.</p>

<p>1. Limitation, Statute of. Bringing new action within one year after voVuntaxy nonsuit saves from bar of.</p> <p>A cause of action otherwise bai-red is saved, under the statute, where an action brought thereon in due time is disposed of by voluntary nonsuit, and a new action brought thereon within one year thereafter. (Post, ftp. 30, 31.)</p> <p>Code construed: % 4446 (S.); § 3449 (M. & V.); § 3755 (T. & S.).</p> <p>Cases cited: Railroad v. Pillow, 9 Heis., 348; Iron Co. v. Broyles, 95 Tenn., 613.</p> <p>3. Same. Same.</p> <p>Where an action, commenced in due time in the State Court, is removed to the Federal Court, and there disposed of by voluntary nonsuit, the plaintiff may, within one year thereafter, bring and maintain a new suit on the same cause of action in the State Court, although the latter action would have been barred, but for the saving of the statute. The effect of removal to the Federal Court was to transfer the particular action, and not the cause of action, to the jurisdiction of that Court. (Post, pp. 30-37.)</p> <p>Code construed: $ 4446 (S.); $ 3449 (M. & V.); § 3755 (T. & S.).</p> <p>3. Pleading and Pbactice. Averment of identity of cause of action.</p> <p>In an action brought by an administrator to recover for personal injury of his intestate, naming a particular person as the beneficiary, it is a sufficient averment of the identity of a former action to allege “that the former suit was between the same parties, and for the same cause of action, without naming the beneficiary in either suit.” (Post, p. 37.)</p>

<p>Charge of Court. Court’s refusal to give explanation of, on jury’s request.</p> <p>It is reversible error in a civil case for the Court, on complaint of the jury that they cannot read his written charg-e, or that they do not understand his oral charge, to refuse their request for assistance and explanation, and to send them back to determine the case without adequate knowledge of the law applicable to the case, or reasonable opportunity to acquire such knowledge.</p>

<p>EROM CAMPBELL.</p> <p>Appeal from Chancery Court of Campbell County. Hugh Gr. Kyle, Ch.</p>

<p>FROM SULTJVAN.</p> <p>Appeal from Chancery Court of Sullivan County. ITugti Gr. Nyue, Cli.</p>

<p>FROM JEEEEESON..</p> <p>Appeal from Chancery Court of Jefferson County, JNO. P. Smith, Ch.</p>

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

<p>1. Appeal. Maintainable without, MU of exceptions.</p> <p>This Court will not dismiss an appeal in a law ease on motion for want of bill of exceptions, but will hear and determine the ease upon its merits, as presented by the record, without bill of exceptions. (Post, p. 81.)</p> <p>2. Abatement, Plea in. Waived, when.</p> <p>By resisting' the plaintiff's motion to transfer a case which has been returned before a Justice of the Peace of a wrong' district to a Justice of the district in which the case is properly triable, the defendant waives his plea in abatement to the jurisdiction. (Post, pp. 82-84.)</p> <p>Code construed: g 5933 (S.); g 4896 (M. & V.). g 4181 (T. & S.).</p> <p>3. Same. Same.</p> <p>And it is error for the Circuit Judge to submit a plea in abatement to the Justice's jurisdiction to trial by a jury where no issue has been made upon it by the plaintiff, and the defendant has waived it in the Justice’s Court. (Post, pp. 82-84.)</p>

<p>FROM SULLIVAN.</p> <p>Appeal from Chancery Court of Sullivan County. Jesse L. Rogers, Sp. Ch.</p>

<p>1. Vendob and Vendee. Vendor’s Men sewed from bar of statute by renewal or new promise, when.</p> <p>The renewal of a purchase-money note given for a conveyance of lands, or a new promise before expiry of limitations, will preserve the vendor's lien, and prevent operation of the statute of limitations against it as to the vendee in possession, from the maturity of the renewal or date of the new promise. (Post, pp. 101, 102.)</p> <p>Cases cited: Sheratz n. Nieodemus, 7 Yer., 8; Thompson <u. Thompson, 3 Lea, 126; Hughes v. Brown, 88 Tenn., 594; Fisher v. Fisher, 9 Bax., 71.</p> <p>2. Estoppel. By swrrender of joint deed to husband and wife and taking one to wife.</p> <p>Where a husband, joint grantee with his wife, returned a deed to the grantor, and requested the execution of a new one to the wife, which was done, and the wife took possession and claimed title thereunder, though such transaction passed no additional interest to the wife, it precluded the husband from asserting his joint interest as against her, and hence he had no interest in the land which the grantor could, subject to his vendor’s lien. (Post, pp. 102-104.)</p> <p>Case cited: Howell v. Hoffman, 3 Head, 563.</p> <p>3. Same. Same.</p> <p>Such transaction also estopped the wife to assert any ownership under the original deed. (Post, p. 104.)</p> <p>4. Same. Same.</p> <p>Though the second deed, for lack of title in the vendor, passed no title, it worked an estoppel against all the parties to the transaction. (Post, pp. 102-104.)</p> <p>5. Deed. Color of title.</p> <p>As it purported to convey the fee, the second deed was a good color of title on which to base adverse possession. (Post, p. 104.)</p> <p>6. Yendok’s Libit. Possession held in subordination to.</p> <p>As the wife paid nothing for the land, and knew that her husband owed for it, the vendor’s lien for the unpaid.price followed the land into her hands, and her possession was in subordination thereto until the maturity of the purchase-money notes, at which time limitations began to run against it, as it would have done against the real vendee. (Post, pp. 103-105.)</p> <p>7. Same. Not saved from bar of wife's possession by husband's renewals and new promises.</p> <p>Renewals and new promises by the husband as to the notes, to which she was not a party, would not prevent limitations running against the vendor's lien on the land in her possession. (Post, pp. 105, 106.)</p> <p>8. Same. Same.</p> <p>That the husband was the agent of the wife in procuring the second deed, or that she accepted it knowing the land was subject to the vendor’s lien, did not imply that she became bound to so hold it for all time, but the implication is that her holding- was to be subordinate to the lien only until the purchase money notes matured and suit would lie to enforce the lien, which presumption is not overcome by the fact that her-husband made renewals and new promises, they being without her knowledge. (Post, pp. 106, 107.)</p> <p>9. Same. Statute of limitations begins to run against, when.</p> <p>Limitations barring a vendor’s lien begin to run from the maturity of the purchase money obligations, and not from the conveyance. (Post, pp. 107, 708.)</p>

<p>1. Bills and Notes. Makers of, become sureties, when.</p> <p>The relation of the makers of a note is that of sureties to one who has assumed its payment for them, and likewise to one who, after such assumption and with knowledge of it, takes an assignment of the debt. (Post, pp. 110, 111.)</p> <p>3. Same. Release of sureties by extension of time for payment.</p> <p>The sureties on a note are not released by reason of the creditor’s agreement with the principal maker to extend the time of its payment for a fixed and definite period beyond maturity, without their consent, made upon consideration of payment of part of the note at or after it became due, although the payment, made pursuant to such contract, may have been made to the creditor’s agent for collection and credited on the note before its maturity. (Post, pp. US-115.)</p> <p>Cases cited: Bank v. Matson, 99 Tenn., 394; 1Toy & Dulaney v. Sinclair, 93 Tenn., 296; Howell v. Sevier, 1 Lea, 360; Wilson v. Langford, 5 Hum., 330; White v. Summers, 1 Bax., 154; Banku Shook, 100 Tenn., 436; MeKamey v McNabb, 97 Tenn., 337.</p> <p>3. Limitations, Statute of. Absenees from State must be pleaded.</p> <p>If the plaintiff proposes to rely upon the defendant’s absence from the State to defeat the plea and bar of the statute of limitations, he must plead the fact more specifically than to aver that his cause of action, “while apparently barred by the statute of limitations, is not in fact barred, but in full force.”' (Post, pp. 115-120.)</p> <p>Cases cited and approved: Cross v. Disney, 95 Tenn., 595; Whaley u. Catlett, 103 Tenn., 348.</p> <p>Cited and overruled: Criner v. Cherry, 3 Shann. Oas., 496.</p> <p>4. Supbeme Coukt. Remand for amendment of pleadings, when.</p> <p>This Court will remand a cause for amendment of pleadings when it appears that a party has followed and been misled in making up the issues by a reported opinion of this Court which the Court deems it proper to overrule. (Post, p. 120.)</p>

<p>Homestead. Exists in several unimproved lots sibilated in separate blocks, when.</p> <p>The head of a family who is owner of four unimproved town lots, worth less than ¡#>1,000, situated in as many separate, hut contiguous, blocks, separated by streets, is entitled to claim them all as homestead, it appearing that one lot could be used for dwelling and outhouses and the other three as truck patches.</p>

<p>1. Raidboads. Construction of, upon street not abatable as a nuAsance, when.</p> <p>The construction and necessary excavation by a steam railway company of its main and side tracks along- and upon a public street, when done by permission of the owner of the fee in the street, who has likewise the right to use or authorize the use of the street for street railway, gas. electric light, and other like purposes, does not, per se, constitute a nuisance that will be abated or restrained at the suit of lot owners abutting on the street who have no interest in the fee in the street, but only an easement of ingress and egress. (Post, pp. 138, 139.)</p> <p>2. Same. Same.</p> <p>The construction' and operation of a steam railroad along and upon a public street will not be abated or restrained as a public nuisance in any ease at the suit of an abutting lot owner, unless he can show that he suffers therefrom some special and particular injury distinct from that suffered by other abutting proprietors on the street. (Post, p. 138.)</p> <p>Case cited: Lowery v. Petree, 8 Lea, 674.</p> <p>3. Same. Damages recoverable agavnst, for impairment of abutting lot owners' right of ingress and egress in street.</p> <p>A steam railway company that constructs and operates its road upon a public street by permission of the owner of the fee in the street, is liable to the owners of abutting lots who possess only an easement of ingress and egress, for impairment of that easement by excavation and by blocking the street with its cars, or by excessive switching. (Post, pp. 139, 140.)</p> <p>Cases cited: Railroad-u. Bingham, 87 Tenn., 522; Harmon v. Railroad, 87 Tenn., 614; Smith v. Railroad,, 87 Tenn., 626.</p> <p>4. Deed. Bownded on street.</p> <p>The owner of a lot abutting on a public street has not title, but only an easement of ingress and egress, in the street, when his deed calls for the side of the street, and a fortiori where his vendor expressly excepts the street from the operation of the deed. (Post, pp. 134-137.)</p> <p>5. Same. Vendee's rights determined from terms and face of deed.</p> <p>A vendee’s z-ights are determined from the terms and face of his deed, and cannot be enlarged by reservations contained in his vendor's dedication of adjoining pz-operty for a public street. (Post, pp. 137, 138.)</p>

<p>EROM PETS TRESS.</p> <p>Appeal from Chancery Court of Fentress County. T. J. Fisher, Ch.</p>

<p>FROM EEHTKESS.</p> <p>Appeal from Chancery Court of Fentress County. T. J. Fisher, Oh.</p>

<p>EROM ERANKLIH'.</p> <p>Appeal in error from Circuit Court of Erank-lin County. Eloyd Estile, J.</p>

<p>1. DECLARATION. Averring negligent injv/ry of passenger Toy ca/rrier insufficient, when.</p> <p>A declaration, in an action by a passenger against a common carrier, is insufficient, which avers, in substance, that the plaintiff was injured by being thrown upon the depot platform by a sudden lurch of the train caused by the engineer’s negligence, when he was in the act of stepping from the train, which he supposed had stopped, but which was, in fact, still in motion and approaching the station, upon an invitation to be implied from the action of defendant’s employes in charge of the train, in blowing whistle, ringing bell, and announcing name of station as the train approached it.</p> <p>Case cited: Railroad v. Massengill, 15 Lea, 328.</p> <p>2. Railroads. Invitation for passenger to alight not implied, when.</p> <p>The compliance by a railroad company with the statutory requirements of sounding whistle, ringing bell, and announcing name of station as trains approach it, does not afford any invitation, express or implied, or any excuse to passeugers for alighting from the train while in motion, and before it.has stopped at the station.</p> <p>3. Same. Rights of passenger alighting from movi/ng train Toy mistake.</p> <p>A passenger who suffers injury in alighting from a moving train, under the mistaken belief, not induced by the fault of the carrier, that the train had reached the station and stopped, has no cause of action against the carrier.</p> <p>4. Same. Same.</p> <p>The fact that a passenger is unable to obtain a seat, and is compelled to stand on the platform of the coach, affords no excuse for his alighting from the train while in motion.</p>

<p>PROM FRANKLIN.</p> <p>Appeal in error from Circuit Court of Franklin County. Floyd Estill, J.</p>

<p>l. Infamy. Ofjv/ror. .</p> <p>Objection that juror is disqualified by a sentence of infamy is propter defectum, and comes too late after verdict. (Post, pp. 176, 177.)</p> <p>Cases cited: McClure u State, 1 Yer., 306; Cartwright v. State, 13 Lea, 630; Draper v. State, 4 Bax., 346; Gillespie y. State, 8 Yer., 507; Hamilton v. State, 101 Tenn., 418; Givens v. State, 103 Tenn., 666.</p> <p>, 3. Same. Shown by record.</p> <p>The fact of infamy, when relied upon, must be proved by production of,the record. (Post, pp. 176, 177.)</p> <p>3. Pbbjtoy. Facts insufficient to support conviction.</p> <p>The facts set out in the opinion are held insufficient to support conviction for perjury. (Post, pp. 177-180.)</p>

<p>1. Ceiminal Practice. Issue sufficiently shown, when.</p> <p>Where it appears, from the record, that the jury, in a felony case, were sworn “to try the issue joined,” there will he no reversal on account of the absence from the record of any formal entry of a plea by the defendant and issue thereon.</p> <p>Code construed: §7217 (S.); ? 6083 (M. & V.); j! 5242 (T. & S.).</p> <p>Case cited and distinguished: Lynch v. State, 99 Tenn., 124.</p> <p>2. Bill of Exceptions. Must be filed in time.</p> <p>When the time for filing bill of exceptions is extended, under Act of 1899, beyond the close of the trial term, it must affirmatively appear that it was filed with the clerk within the time allowed, in order to make it a part of the record.</p> <p>Act construed: Acts 1899, Ch. 275.</p> <p>Case cited: Bettis v. State, 103 Tenn., 339.</p>

<p>EROM DEKALB.</p> <p>Appeal in error from Criminal Court of De-Kalb County. M. D. Smallmaw, J.</p>

<p>'.■FROM' DEKALB.</p> <p>Appeal in error from Circuit Court of DeKalb County. M. D. SmallmaN, J.</p>

<p>1. Cektiobaei and Supebsedeas. Does not Me, when.</p> <p>A judgment cannot be impeached or reviewed by certiorari and supersedea_s upon the ground that the petitioner was not served with process, where it appears from the return of an officer in the original record that he was served with process. The return of the officer cannot be impeached or contradicted in such proceeding. The petitioner’s remedy, if the return is false, is by bill in equity or by action against the officer.</p> <p>Cases cited: Wilson v. Moss, 7 Ileis., 418; MeBee v. State, Meigs, 122; Ridgeway v. Bank, 11 Hum., 525; Gardner v. Barger, 4 Heis., 671.</p> <p>2. Supbeme Coubt. Objection made after hearing comes too late.</p> <p>Objection made aister hearing- of cause that transcript or assignment of errors was not filed within the time required by the rules of Court, comes too late.</p>

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

<p>EEOM DAVIDSON.</p> <p>Appeal iii error from the Circuit Court of Davidson County. J. W. BoNner, J.</p>

<p>I'EOM WHITE.</p> <p>■ Appeal in error from Circuit Court of White County. W. T. Smith, J.</p>

<p>1. Usuby. Code provisions not repealed by conventional interest statute.</p> <p>The Code provisions relating io usury were not repealed or modified hy the Act of 1869-70, creating a conventional rate of interest. (Post, pp. 218, 219.)</p> <p>Acts construed: Acts 1869-70, Ch. 69.</p> <p>Code construed: §§ 6732-3 (S.); §§ 5622-3 (M. & V.); 4821-2 (T. & S.).</p> <p>2. Same. Punishment of.</p> <p>Taking usury, less than ten dollars in amount, is punishable under the Code provision that “the punishment of this offense shall be a fine in no case less than ten dollars nor more than the amount of the usury received.” (Post, pp. 219, 220.)</p> <p>Code construed: \ 6733 (S.); I 5623 (M. & V.); ? 4822 (T. & S.).</p>

<p>1. Pleading and Pbactice.’ What may be shown under plea of not guilty.</p> <p>In an action against a city for an injury caused by a defective plank walk upon an alleged street, the city may show, under the plea of not guilty, that it had never accepted the street nor become responsible for its repair. (Post, pp. 223, 224.)</p> <p>2. New Teial. Sv/rprise.</p> <p>Surprise that justifies the granting of a new trial cannot be predicated of the introduction of any evidence that is pertinent to the issue made by the pleadings. Each party is required to anticipate and come prepared to meet such evidence of his adversary. (Post, pp. 224, 225.)</p> <p>3. Same. Same.</p> <p>A party waives his right to a new trial on account of surprise, if he fails to take immediately all available steps, during the trial, to avert injurious consequences. (Post, pp. 225, 226.)</p> <p>Case cited: Railroad v. Jones, 100 Tenn., 522. y</p> <p>4. Charge oe Court. Refusal of requests.</p> <p>Requests for instructions that are fully covered, by the original charge are properly refused. (Post, pp. 226-228.)</p>

<p>FROM DAVIDSOK.</p> <p>Appeal in error from Circuit Court of Davidson County. John W. Otiildeess, J.</p>

<p>PROM! .DAVIDSON.</p> <p>Appeal in error from Circuit Court -of Davidson County. John W. Chtldeess, J.</p>

<p>Pleading- and Pkactioe. Issue narrowed by statement of parties.</p> <p>Where, on the trial in*the Circuit Court of an appealed case, commenced by Justice’s warrant describing the cause of action in general terms as “a plea of debt due by damages,” the parties, in response to an inquiry of the Court, make statement of the matter in controversy, the plaintiff stating that he sued for the wrongful killing of a horse by the defendant’s moving train, and the defendant stating that its defense was that it had observed all statutory precautions, all facts not put in issue by this statement will be treated as admitted, and the plaintiff is entitled to recover, if defendant fails to prove its defense, without other proof than that of value of the animal.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. H. I-I. CooK, Ch.</p>

<p>EROM DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. H. H. OooK, CL</p>

<p>EROM DAYIDSOW.</p> <p>Appeal from Chancery Court of Davidson County. How. IT. H. Cook, Oh.</p>

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

<p>FROM DAVIDSON. ■</p> <p>Appeal from the Chancery Court of Davidson County. Hon. Henry H. Cook, Ch.</p>

<p>KEtOM. DAVIDSON.</p> <p>Appeal from tbe Chancery Court of Davidson County. Hon. H. H. Cook, Ch.</p>

<p>1. Husbard and Wife. Husband’s interest in wife’s lands.</p> <p>The surviving’ husband has no interest or estate, as tenant by the curtesy or otherwise, in lands in which his deceased wife held only a life estate. (Post, pp. 342, 343.)</p> <p>Cases cited: Beecher v. Hicks, 7 Lea, 207, 214; Alexander v. Miller, 7 Heis., 81; Bigley v. Watson, 98 Tenn., 353; Stovall v. Austin, 16 Lea, 700, 706.</p> <p>2. Will. Devise gives life estate with remainder over to children.</p> <p>A devise of lands to testator’s daughter “ to have and to hold during her natural life, and at her death to go to her legal heirs,” does not give the daughter a fee simple title, hut only a life estate, with remainder to her children or their descendants. “ Legal heirs ” in this devise is equivalent to “ children and their descendants.” (Post, pp. 343-346.)</p> <p>Cases cited: Alexander v. Wallace, 8 Lea, 572; Ingram v. Smith, 1 Head, 426; Gosling v. Caldwell, 1 Lea, 454; Boydu Robinson, 93 Tenn., 34.</p> <p>3. Same. Does not give absolute power of disposition.</p> <p>Absolute power of disposition is not conferred upon a devisee to whom lands are given for her natural life, with remainder to her children, by a subsequent provision giving her power to sell the lands, if she should at any time desire to do so, hut requiring her to reinvest the proceeds in other lands, taking deed for same to herself for life, with remainder to her children, and appointing a trustee to see that this part of his will is strictly complied with. (Post, pp. 343-346.)</p> <p>Cases cited: Bradley v. Carnes, 94 Tenn., 27; Young- v. Ins. Co., 101 Tenn., 311.</p>

<p>KROM EUTHÉRFORD.</p> <p>Appeal in. error from Circuit Court of Rutherford County. W. C. Houstoh, J.</p>

<p>EROM DEKALB.</p> <p>Appeal in error from Circuit Court of DeKalb County. M. D. Smallman, J.'</p>

<p>1. Chancery Pleading and Practice. Complainant’s right of dismissal.</p> <p>It is a general rule, though not of universal application, that a complainant may, as a matter .of course, dismiss his bill at any time before final decree, upon payment or assumption of all costs. (Post, pp. 363, 364.)</p> <p>Cases cited: Gillespie ®. McBwen, 1 Shan. Cas., 400; Stone v. Huggins, 1 Shan. Cas., 564: Parteen. Goldberg, 101 Tenn., 664; Allen®. Dayton, etc., Co., 95 Tenn., 480.</p> <p>2. Same. Same.</p> <p>Complainant’s right to dismiss his bill is not defeated by the filing of defendant’s answer as a cross bill, where no cost bond is given, no process issued, no appearance entered, and no answer thereto filed, although proof may have been taken on the issues presented by the bill and answer. (Post, pp. 364-366.)</p> <p>Cases cited: Partee ®. Goldberg, 101 Tenn., 664; Alien®. Dayton, etc., Co., 95 Tenn., 480.</p> <p>3. Same. Answer not effeotiime as cross bill, when.</p> <p>An answer, though framed and filed as a cross bill, is not effective as such where no cost bond is given, no process issued, no appearance entered, and no answer thereto filed. (Post, pp. 364-366.)</p> <p>Cases cited: Harrell ®. Harrell, 4 Cold., 377; Curd ®. Davis, 1 Heis., 574; Hall®. Fowlkes, 9 Heis., 745; Keele®. Cunningham, 2 Heis., 288.</p>

<p>1. Evidence. Of previous condition of platform whose defects caused plaintiff’s injury, admissible. '</p> <p>It is competent for the plaintiff to prove the existence, on the day before his injury, of the defect, to wit, a'hole in the platform, which caused the injury sued for. (Post, pp. 369, 370.)</p> <p>S. Master and Servant. Fellow-servants.</p> <p>Servants of different masters, though engaged in the same general work, are not fellow-servants — e. g., the driver of the horse power of a wheat thresher, employed by the owner of the machine, is not a fellow-servant of a boy employed by the owner of the wheat being threshed to carry water to the hands engaged in the work. (Post, pp. 371-373.)</p> <p>3. Same. Master’s Mobility for servant’s acts.</p> <p>Unless the servant acts in the particular matter under the express or implied authority of his master, the latter cannot be held for his acts. Hence the owner of a wheat thresher cannot be held for the act of his servant, the driver of the horsepower, to whom no authority over others has been delegated, in requesting a boy, employed by the owner of the wheat being threshed, to approach him, while the machine was in motion, thereby sustaining serious iujury. (Post, pp. 372, 373.)</p>

<p>Railboads. Liability for injw'y to person on its track.</p> <p>The general rule that a railroad company is not bound, in the operation of its trains, to anticipate the presence of a trespasser nor to provide for his safety, when his presence is not known, does not excuse it from the exercise of ordinary care to observe the presence of persons on its track, and to save them from injury by its moving trains or ears, when such persons are using the company’s tracks from necessity or by permission, and in accordance with a long-continued custom, on business at a depot, and the company therefore had reason to expect their presence on its tracks.</p>

<p>1. CHANCERY Pleading and Practice. Excluded, evidence must he preserved by bill of exceptions.</p> <p>Evidence excluded by the Chancellor ceases to be part of the record unless it is restored and made such by bill of exceptions.</p> <p>3. Limitations, Statute oe. Bars resulting trust.</p> <p>Ten years bars suit to set up a resulting trust.</p> <p>Cases cited: Henderson v. Tipton, 88 Tenn., 256; Loveu. Welch, 88 Tenn., 259.</p> <p>3. Descent and Distribdtion. Half blood.</p> <p>D. died intestate, leaving to his two children a tract of land. Subsequently both of the children died intestate — one without issue and the other leaving one child. D. had married a widow, who had two children before her marriage to him. These children of the wife claimed to inherit title to an interest in said land with D.’s grandchild. Held: D.-’s grandchild takes exclusive title.</p> <p>Code construed: $ 4163, Sub. $3 (S.); 32,68-3270 (M-. & V.); <S 2420 (T. & S.)</p> <p>Case cited: Deadrick v. Armour, 10 Plum., 588.</p>

<p>FROM WARREN.</p> <p>Appeal from Chancery Court of Warren County. WALTER S. BeardeN, Ob.</p>

<p>Ybedict. Joint, set aside as to part, a/nd sustained as to other defendants.</p> <p>A joint verdict for damages against several defendants may be set aside, if found erroneous as to part of them, and sustained and enforced against the others, if found correct as to them.</p> <p>Cases cited andapproved: Bentleyu Hurxthal, 3 Head, 377; Smith v. Foster, 3 Cold., 147; Webb v. State, 4 Cold., 204; Cox v. Crum-ley, 5 Lea, 530.</p> <p>Cited and overruled: Draper v. State, 1 Head, 262.</p>

<p>1. Elbotioits. Of school directors under Acts 1899, Oh. 218.</p> <p>Acts 1899, Ch. 218, properly construed, authorizes the election of school directors, as therein provided, in all school districts wherever situated that are not coextensive with the civil districts.</p> <p>Act construed: Acts 1899, Ch. 218.</p> <p>2. Constitutional Law. Subject of statute is expressed in title, when.</p> <p>And, thus construed, said Act is not amenable to the constitutional objection that its body embraces more than is expressed in its title.</p> <p>Constitution construed: Art. II., Sec. 17.</p> <p>Act construed: Acts 1899, Ch. 218.</p>

<p>PROM MARSHALL.</p> <p>Appeal from Chancery Court of Marshall County. WALTER S. BEARDEH, Ch.</p>

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

<p>1. Injunction. Judgment on bond upon dissolution.</p> <p>Upon dismissal on demurrer of an injunction bill restraining the prosecution of an action at law for collection of notes, the defendant is entitled to decree against complainant for the amount due on the notes and costs, and against the sureties on his injunction bond for interest and costs only. (Post, pp. 426,427.)</p> <p>Case cited: Horton v. Cope, 6 Lea, 155.</p> <p>2 Same. Practice upon injunction of action at law.</p> <p>1 is the better practice for Courts of Equity to require parties to confess judgments in actions at law before granting, or as a condition of granting, injunction to stay proceedings therein. But, even if confession of judgment at law is not exacted upon granting an injunction in such case, a Court of Equity will, nevertheless, upon dismissal of the bill-and dissolution of the injunction, proceed ordinarily to dispose of the matters involved, and refuse to permit any renewal of the litigation in the law Court. (Post,.pp. 427-429.)</p> <p>Cases cited: Chadwell u Jordan, 2 Tenn. Chy., 635; Perkins v. Woodfolk, 8 Bax., 414.</p>

<p>t. Abatement. Plea in abandonment of.</p> <p>A plea in abatement upon which no action was invoked in the lower Court must be treated by this Court as having been abandoned.</p> <p>2. Constitutional Law. Act of 1897, Ch. 114, relating to landlords’ a/nd furnishers’ liens, valid.</p> <p>A statute does not authorize imprisonment for debt in violation of the Constitution, which makes it a misdemeanor, and punishable as such, to dispose of property, or its proceeds, which is subject to a landlord’s or furnisher’s lien, with the purpose of defeating the collection of the debts secured by such lien.</p> <p>Act construed: Acts 1897, Ch. 114.</p> <p>3. Same. Same.</p> <p>A statute does not embrace two subjects in violation of the constitutional provision, but only two subdivisions of one general subject, which forbids, under the penalties of a misdemeanor, disposition of property subject to landlord’s or furnisher's liens with intent to defeat the collection of the indebtedness secured by such liens. ■</p> <p>Constitution construed; Art. II., Sec. 17.</p> <p>Act construed: Acts 1897, Ch. 114.</p>

<p>Administbation. Priority of.</p> <p>Letters of administration granted to a creditor of tlie estate, or-even to a stranger, five years after an intestate’s death, will not he revoked on application of the widow or next of kin claiming priority of right to administer, in the absence of some-satisfactory explanation of their delay in asking for letters of' administration.</p> <p>Code construed: § 3939 (S.); $ 3047' (M. & V.); § 2206a (T. & S.).</p> <p>Cases cited: Wilson v. Hoss, 3 Hum., 142; Varnell v. Loague, 9' Lea, 161.</p>

<p>FROM DICKSON.</p> <p>Appeal in error from Circuit Court of Dickson County. A. H. MuktouBj J.</p>

<p>1. Assi&kment of Error. Insufficient, when.</p> <p>Assignment of error on account of exclusion of evidence is insufficient when it fails to cite the pages of the record where the questions and proposed answers may be found. (Post, p. 451.)</p> <p>2. Sttpbeme Court. No reversal for exclusion of evidence, when.</p> <p>This Court will not reverse on account of the lower Court’s refusal to permit a witness to answer a competent and relevant question, unless it appears affirmatively in the record what answer the witness would have made, and that such answer would have constituted relevant and material evidence. It is not sufficient for counsel merely to say that he expected the witness to prove other facts. (Post, pp. 451, 452.)</p> <p>3. Same. No reversal fur admission of evidence, when.</p> <p>This Court will not reverse on account of the admission of incompetent evidence, unless the record shows that proper exception was made in the lower Court. (Post, p. 452.)</p> <p>4. Charge of Court. Refusal of request proper, when.</p> <p>Court’s refusal to charge a correct request is not reversible error where the matter has been fully covered by the original charge. (Post, pp. 452, 453.)</p> <p>5. Verdict. Not set aside, when.</p> <p>A verdict will not be set aside for want of evidence to support it where the theory of each party was supported by evidence, and the question for the jury to determine was where the weight of the evidence lay. (Post, pp. 453, 454.)</p>

<p>1. Chancert Pleading and PRACTICE. Proof of averments of bill and answer essential, when.</p> <p>Averments of hill, not admitted by answer, mnst be proved. So, likewise, averments of answer not responsive to bill must be proved. (Post, pp. 460, 462-464.)</p> <p>'2. Same. Answer not in confession and avoidance, but in denial, when.</p> <p>Averments of answer are not in confession and avoidance, but constitute a denial of the contract set out in the bill that puts complainant to proof thereof, which admit the terms of the contract as set out in the bill, but state, in addition, that the contract contained other material provisions and stipulations. (Post, pp. 462-464.)</p> <p>’3. Same. Bill of exceptions essential to preserve evidence heard on jury trial.</p> <p>Evidence heard on jury triai of issues in a chancery cause does not constitute part of the record on appeal to this Court unless it has been preserved and made such by bill of exceptions. (Post, pp. 469, 460, 465.)</p> <p>4. Supreme Court. Will not sustcti/n verdict on jv/ry trial of chancery cause, when.</p> <p>When, on a jury trial of issues in a chancery court, a vital con-, troverted fact — e. g., the existence and terms of the contract sued on — is not submitted to or found by the jury, this Court cannot sustain a decree based upon a verdict in favor of complainant, in the absence of evidence, made part of the record by bill of exceptions, establishing the contract independently of the jury’s verdict. (Post, pp. 464-466.)</p>

<p>Chancbey Pleading and Practice. Petition does not lie to enforce attorneys’ Men, when.</p> <p>If attorneys, who have filed a divorce bill for the wife, attaching property of the husband, have, under Acts 1899, Ch. 244, any lien at all for services upon the attached property after the wife’s voluntary dismissal of her suit, such lien cannot be enforced by petition filed in the original cause, without attachment of the property, six months after final decree upon such voluntary dismissal, and after the term of court at which said final decree was rendered has passed. The Court’s intimation seems to be against the existence of such lien, but the question is not decided.</p> <p>Cases cited: Pleasant v. Kortrecht, 5 Heis., 694; Hunt v. Mc-Clanahan, 1 Heis., 503; Covington v. Bass, 88 Tenn., 496.</p>

<p>1'EOM DAVIDSON.</p> <p>Appeal in error from Circuit Court of Davidson County.</p>

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

<p>Í’EOM LINCOLN.</p> <p>Appeal in error from Circuit Court of Lincoln County. M. D. Smaxxman, J.</p>

<p>1. INSURANCE, Fire. Waiver of limitation upon bringing action for loss.</p> <p>By making an absolute denial of liability a fire insurance company waives the provision of its policy allowing it sixty days after proofs of loss are made in which to pay the loss without suit. (Post, pp. 515, 516.)</p> <p>Case cited: Insurance Co. v. Thornton, 97 Tenn., 1.</p> <p>2. Same. Waiver of condition as to ownership of insured property.</p> <p>A condition t-hat avoids a fire policy if the assured’s interest in the insured property is other than that represented in his application, is not available to defeat the insurer’s liability in an action on the policy where the assured answered correctly as to his interest in the property, but the agent of the company wrote his answer incorrectly and obtained his signature to the application without his knowledge of the incorrectness of his answer; and the truth of the matter may be shown by parol evidence contradicting the written application. (Post, pp. 516-518.)</p> <p>Case cited: Insurance Co. u Sorrels, 1 Bax., 352.</p> <p>3. Same: Sufficient compliance with condition as to occupancy of insured property.</p> <p>It is a sufficient compliance with the condition in a fire policy that the insured premises shall not become vacant, that a tenant of the owner lived with his family in a small house in the yard duly thirty-six feet distant from the insured premises, and slept in one room of the insured premises, although he did not have access to the other rooms, especially where the assured informed the company’s agent, at the time of effecting the insurance, that he expected to be absent with his family • from the insured premises, .leaving a person to sleep in the house, and this was assented to by the agent with an intimation that it would suffice if some one lived in the yard. (Post, pp. 518-522.)</p> <p>Case cited and distinguished, Insurance Co. v. Ridge, 9 Lea, 507.</p>

<p>BBOM DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. H. H. Cook, Oh.</p>

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

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

<p>TfEOM ROBERTSOW.</p> <p>Appeal in error from Circuit Oonrt of "Robertson Comity. A. IT. Muwford, J.</p>

<p>1. Adoption. Custody of child after death of adoptive father.</p> <p>The right to custody of an illegitimate infant child reverts to its surviving mother upon the death of its adoptive father to the exclusion of his surviving widow. But the mother’s right will he subordinated to the best interests of the child.</p> <p>Code construed: §$ 5409-5411 (S.).</p> <p>Cases cited: Lawson v. Scott, 1 Yer., 92; Gardenhire v. Hinds, 1 Head, 404; State v. Paine, 4 Hum., 523.</p> <p>2. Same. Same. Case in judgment.</p> <p>The surviving mother is denied the custody of her illegitimate child of seven years of age in favor of the widow of its deceased adoptive father, when the mother is unable to properly care for it, and there exists an attachment, as well as a bond of blood, between the child and the widow, and there is no complaint of neglect or want of ability on the part of the widow to provide for it.</p> <p>3. Same. Statutes relating to are strictly construed.</p> <p>Statutes relating- to ‘adoption of children, being in derogation of common law, are strictly construed, and will not be held in the absence of express provision to that effect to intend to confer rights to custody of children upon persons who are not parties to the record of adoption, and who have not assumed any of the obligations of an adoptive parent.</p> <p>Code construed: §§ 5409-5411 (S.); §§ 4388-4390 (M. & V.); 3643-3645 (T. & S.)</p>

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

<p>FROM ROBERTSON.</p> <p>Appeal in error from Circuit Court of Robertson County. Lytton Taylor, Sp. J.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from Chancery Court of Davidson County. Andkew Alt.ison, Ch.</p>

<p>Ií-ROjVT MATTRY.</p> <p>Appeal from Chancery Court of Maury County. ANDREW J. AbERNATHYj Oh.</p>

<p>1. ACTION. Against State.</p> <p>The express declaration of the Constitution that “suits may be brought against the State in such manner and in such Courts as the Legislature may by law direct,” carries with it a positive implication that they shall not be brought otherwise, or at all, unless legislative authority therefor be affirmatively given. (Post, pp. 628-630.)</p> <p>Constitution construed: Art. I., Sec. 17.</p> <p>2. Sajie. Against Insurance Commissioner is not against State.</p> <p>An action brought by an insurance company against the Commissioner of Insurance, to restrain a threatened revocation of its license, is not one that is prosecuted “with a view to reach the State, its treasury, funds, or property,” and therefore not within the prohibition of the statute forbidding the Courts to entertain jurisdiction of suits ag'ainst the State or its officers. (Post, pp. 628-630.)</p> <p>Code construed: $4507 (S.); $ 3507 (M. & V.); $$ 2807, 2807a (T. & S.).</p> <p>3. Instoance. Object and construction of insurance statutes.</p> <p>The chief object of the statutes creating an insurance department, and placing a commissioner at the head of it to administer its affairs, is to protect policy holders, and these statutes should be construed with that object in view. (Post, p. 645.)</p> <p>4. Sam®. Poivers of Insurance Commissioner.</p> <p>The powers of the Commissioner of Insurance, with reference to granting, refusing, and revoking licenses of insurance companies conferred by our statutes, are discretionary and judicial. His decision of any question that lies within the scope of his authority, as defined by statute, will not be reviewed by the Courts. It is final and conclusive. But his determination that any matter lies within the scope of his statutory authority is subject to review by tlie Courts, and, if erroneous, will be vacated or arrested. (Post, pp. 640-643.)</p> <p>Code construed: $§3274, etseq., (S.). •</p> <p>Act construed: Acts 1895, Ch. 160.</p> <p>Case cited: State v. Thomas, 88 Tenn., 495.</p> <p>5. Same. Same. Case in judgment.</p> <p>The Commissioner of Insurance has power, under our statutes, to revoke, and he will not be enjoined by the Courts from revoking the license of a foreign insurance company that undertakes to utterly repudiate, and persists in its utter repudiation of its contract, represented to the commissioner and policy holders as unconstitutional, to reinsure all the risks or policies of another foreign insurance company, numbering several hundred in this State, on the ground that the contract between the two companies was conditioned upon performance of certain things by the reinsured company, in which it had defaulted. The commissioner’s authority for such action will be found in those general provisions of the statutes which empower him to revoke the license of any foreign insurance company that “has failed to comply with the law,” or that “shall violate or neglect to comply with any provision of law obligatory upon it.” (Past, pp. 643-650.)</p> <p>Act construed: Acts 1895, Ch. 100, Secs. 5, 12,</p> <p>6. Same. Same. Meaning of clauses authorizing revocation of license.</p> <p>The Commissioner of Insurance is authorized by the above-quoted general provisions to revoke the license of foreign insurance companies, not only for failure or neglect to comply with the requirements of the statute laws, but for failure and neglect to comply with the broader obligations of the common law that go to the general integrity of their business and affect all policy-holders in the same way. (Post, pp. 643-650.)</p> <p>Act construed: Acts 1895, Ch. 160, Secs. 5, 12.</p> <p>7. Injunction. Not allowed against public officer, when.</p> <p>The rule is so general and obvious as to be almost axiomatic, that a public officer, clothed with discretionary or quasi-judicial power, as contradistinguished from mere ministerial duty, cannot be coerced by mandamus or restrained by injunction in the exercise of his judgment under that power; otherwise the Court would substitute its judgment for his, which is not permissible. The Courts will inquire whether such officer has exceeded his power, or has acted under an unconstitutional statute, and restrain him, in a proper case, if he has done so. {Post, pp. 639, 640.)</p> <p>Case cited: Lynn v. Polk, 8 Lea, 121.</p> <p>8. MaNdamtjs. Allowed agcvlnst public officer, when.</p> <p>If the law plainly prescribes a specific act, which is due in point of time, but has been refused on demand, if simply affecting a private right, or only omitted if of public concern, the Court will interpose, at the instance of the proper party, and by mandamus set such officer in motion, leaving him, however, the free exercise of his own judgment and discretion in the manner of performance. {Post, p. 640.)</p> <p>Cases cited: Turnpike Co. v. Marshall, 2 Bax., 132; State v. Miller, 1 Lea, 606; Mor ley v. Powers, 5 Lea, 698.</p> <p>9. CORPORATIONS, Foreign. Statutes of.</p> <p>A corporation is an artificial person created by law, and possessed of only such powers and rights as its charter confers. It has no inherent migratory power, and can receive none from the sovereignty of its creation that will be effective in other sovereignties. Its recognition in another government is always a matter of pure comity, and never a matter of absolute right. Consequently, a corporation created by one country or State can enter another country or State, and conduct its business there, only by the latter’s permission, and only on such terms and conditions as it may see fit to impose. Any State may, in its discretion, entirely exclude corporations of other States and countries from doing business within its borders, or it may admit them under restrictions, and with the exaction of security for the faithful performance of their contracts with citizens. {Post, pp. 630, 631.)</p> <p>Cases cited: Ins. Co. v. Ins. Co., 11 Hum , 25; Young v. Ins. Co., 85 Tenn., 196; Stateu Phoenix Ins. Co., 92 Tenn., 420; Dugger v. Ins. Co., 95 Tenn., 246; State, ex rel., v. Schlitz Brewing- Co., 104 Tenn., 752.</p> <p>10. Same. Same.</p> <p>After foreign corporations have been admitted the State may revoke their authority to do business, and expel them from its borders whenever it chooses, and upon whatever ground and through whatever agency the Legislature may prescribe. The authority resulting to them from "the mere grant of admission never has the sanction of legal, right, hut that of comity merely; and from the very nature of the act the government must always be held to have an implied, if not an express, power of revocation. (Pont, p. 631.)</p> <p>Case cited: State, ex ret., v. Schlitz Brewing Co., 104 Tenn., 715.</p> <p>11. Same. Same.</p> <p>A corporation is a “person” within that clause of the fourteenth amendment to the Federal Constitution,-which forbids deprivation of “life, liberty or property without due pr-ocess of law,” but is not a “ citizen ” within the pi-ovision of the same amendment forbidding the abridgment of the “privileges or immunities of citizens of the United States,” nor within the meaning of that other clause of the Federal Constitution which declares that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” (Post. pp. 63L, 632.)</p> <p>Case cited: Harbison v. Iron Co., 103 Tenn., 432.</p>

<p>1. CORPORATIONS. Save corporate existence, when.</p> <p>The complainant corporation, haying been chartered in 1873 by ■decree of a Chancery Court for a term of twenty years, and having had its charter limit extended five years by Ch. 197, Acts 1887, and the persons constituting the corporation having before its dissolution availed themselves of the privilege granted by Ch. 146, Acts 1893, has such corporate existence as entitles it to mainta'n this action for collection of a debt. {Post, p. 666.)</p> <p>Acts construed: Acts 1887, Ch. 197; Acts 1893, Ch. 146.</p> <p>Case cited: Heck v. McEwen. 13 Lea, 97.</p> <p>2. Same. Power to lease property.</p> <p>A private corporation has inherently, and by statute, the power to lease to another corporation, as well as to individuals, all, or at least such part, of its property as will not cripple its exercise of its franchise. The statute that authorizes corporations to “dispose of” their property confirms to them the power to lease same. {Post, pp. 667-672.)</p> <p>Code construed: \ 1473 (T. & S.).</p> <p>Cases cited and distinguished: Marble Co. v. Harvey, 93 Tenn., 115; Mallory v. Oil Works, 86 Tenn., 604.</p> <p>3. Same. Same. ■ •</p> <p>Private corporations are not embraced by Acts 1887, Ch. 196, which regulates the method and formalities by which corporations may make valid leases and dispositions of their property and franchises. That statute, though general in terms, is restricted by necessary construction to quasi public corporations. {Post, pp. 672-677.)</p> <p>Act construed: Acts 1887, Ch. 196.</p> <p>Cases cited: Parker v. Bethel Hotel Co., 96 Tenn., 253; Erazier v. Railroad, 88 Tenn., 153.</p> <p>' 4. Same. Same.</p> <p>Acts 1887, Ch. 196, prescribing' method and formalities for a valid leasing or disposition of property and franchises by corporations, does not, even as to quasi public corporations, require observance of its provisions as to ordinary leases and dispositions of corporate property that do not cripple or interfere with the proper discharge of corporate duties, but only to the lease and disposition of those corporate properties and franchises which are coextensive with corporate life and are essential to corporate integrity and to the proper discharge of those corporate duties and functions that are imposed by law. {Post, pp. 672-677.)</p> <p>Act construed: Acts 1887, Ch. 198.</p> <p>5.. Same. Neglect or abuse of corporate privileges.</p> <p>Unlawful neglect or abuse of corporate privileges affords no defense to an action of the corporation to recover a debt.. {Post, p. 672.)</p> <p>Case cited: Barron u Turnpike Co., 9 Hum., 304.</p> <p>6. Statutes. Construction of.</p> <p>When the intent oí a statute is clear, general words will be restrained to that intent, and words of narrower import will be expanded to embrace and effectuate that intent. Words may be modified, altered or supplied so as to obviate repugnancy to or inconsistency with such intent. (Post, pp. 672-677.)</p> <p>7. Lease. Stipulation for liquidated damages.</p> <p>A stipulation in a lease of a coal mine for the term of twenty-five years, subject to surrender at the option of the lessee at the end of any year, cons itutes a valid contract for liquidated damages, and is enfqrceable as such, which provides that the lessee shall take out, at least, a specified number of bushels per annum, at a specified royalty per bushel, paying the rental quarterly: and that, in default of taking out the specified quantity, he should, nevertheless, at the end of the year, pay for that amount. (Post, pp. 677-684.)</p> <p>Case cited: Railroad v. Cabinet Co., 104 Tenn., 568.</p> <p>8. Same. Collecting rental, no bar to claim for liquidated damages. ■</p> <p>Collection of rentals on the coal actually taken out by the lessee constitutes no bar to a subsequent action for his breach -of ■ contract in failing to take more, for which liquidated damages are stipulated. (Post, pp. 684-687.)</p> <p>9. Same. Not void by reason of inferior quality of coal.</p> <p>Under a finding of the Court of Ch ancery Appeals, that the coal was not unmerchantable, but merely of inferior quality, this Court cannot declare the minimum royalty provision in the lease of a coal mine void for want of consideration. (Post, pp. 687, 688.)</p>

<p>FROM CHEATHAM.</p> <p>Appeal from Chancery Court of Cheatham County. J. S. Gbibbue, Oh.</p>

<p>. 'FROM SÍTETJBY.</p> <p>A.ppeal in error from Circuit Court of Shelby County. L. H. Estes, J.</p>

<p>1. Measure op Damages. For conversion of personal property of special value to owner.</p> <p>For conversion of personal property, e. g., pictures and unpublished manuscripts, which, by reason of association, or for1 other reason, is of peculiar value to the owner, such as it has to no other person, and is not susceptible of supply or reproduction in kind, the measure of damages is not the ordinary one of market value at time and place of conversion, but the actual value to him who owns it at that date. The valuation should be made, in such case, with reasonable consideration of and sympathy with the feelings of the owner. (Post, pp. 713-715.}</p> <p>2. Charge op Court. Correct as to expert evidence.</p> <p>It is not error for the Court to instruct the jury, in a case where the facts justify a charge upon the question, that “the testimony of experts introduced for the purpose of establishing insanity or mental unsoundness, if paid for, should be received with great caution and carefully weighed by the jury,” adding that “it was lawful and proper for an expert physician to charge a reasonable compensation or fee for his professional opinion or services.” (Post, pp. 715-717.)</p> <p>Cases cited: Persons v. State, 90 Tenn., 291; Wilcox v. State, 94 Tenn., 112. '</p>

<p>FROM DYER.</p> <p>Appeal in error from Circuit Court of Dyer County. Ticos. I. Edtppih, J.</p>

<p>PROJt LAUDERDALE.</p> <p>Appeal in error from Circuit Court of Lauder-dale County. Two. J. Flippin, J.</p>

<p>.FROM SHELBY.</p> <p>Appeal from Chancery Court of Shelby County. F. H. Hetskei.l, Oh.</p>