109 Tenn.

Volume 109 — Tennessee Reports

54 opinions

109 Tenn. 1Cooley v. Galyon (1902)
1. LIBEL AND SLANDER. Privileged communications— Defense of, Row made. In an action for libel and slander .predicated upon words uttered and testimony given by a witness in tbe course of a judicial investigation, a defense that tbe words were spoken without malice as responsive answers to pertinent questions propounded to tbe witness, may be made by special plea or under tbe general issue. (Post, pp. 4-6.) Case cited: Sbadden v. McElwee, 86 Tenn., 148. 3. DEMURRER TO EVIDENCE. Right to, not lost by cross-examination of plaintiff’s witness — Rule stated. It is well settled in this State, that cross examination is only limited by tbe relevancy and competency of tbe evidence sought to be elicited and introduced, and tbe defendant, by exercising tbis right, is not offering original evidence and is nob precluded from demurring to tbe evidence. (Post, pp. 7-8.) Case cited and approved: Sands v. Railway Co., 108 Tenn., 1. SAME. Same. Rule applied. Case in judgment. Where plaintiff, upon the trial of an action for libel and slander liased on words uttered by defendant in the course of his examination as a witness in a judicial proceeding before a master in chancery, has examined in chief a witness, by whom material parts of the record in the chancery proceedings are identified and proven, the defendant may fully cross-examine said witness and by him identify and prove other parts of said record, noit offered by plaintiff, but which are pertinent to the issues, and such evidence so elicited on cross-examination is not original evidence ¡and does not bar defendant from demurring to the evidence upon which plaintiff rests his case. (Post, pp. 7-8, 14.) 4. IiIBEXi AMD SLANDER. Defamatory words to the prejudice of occupation or business actionable per se. It is well settled in this State that defamatory words falsely spoken or written of one, which prejudice him in his business or occupation, are actionable without proof of special damage. (Post, pp. 8-9.) Cases cited and approved: Bank v. Bowdre, 92 Tenn., 723; Mattson v. Albert, 97 Tenn., 232. 5. SAME. Judicial proceedings. Words uttered in, privileged when. Words otherwise actionable, if spoken by a witness in the course of a judicial proceeding and relevant and pertinent to the issue or responsive to questions propounded, are absolutely privileged and can not be made the basis of an action for libel or slander although they were spoken with malice. (Post, pp. 9-14.) Cases cited and approved: Lea v. White, 4 Sneed, 113-5; Cooper v. Phipps, 33 Pac., 986, 22 L. R. A., 839; Hoar v. Wood, 3 Mete., (Mass.), 193; Gardemal v. McWilliams (La.), 9 South., 108, 26 Am. St. Rep., 197. Case reviewed and distinguished:, Shadden v. McElwee, 86 Tenn., 146. 6. SAME. Same. All pertinent testimony privileged. The protection which the law throws around the witness testifying in a judicial proceeding in respect to pertinent and relevant matters or in response to questions propounded, is not confined to parties to sueli proceeding or to words spoken concerning parties thereto, but extends to their testimony in relation to strangers to the litigation. {Post, pp. 12-14.) Citing: Heard on Libel and Slander, sees. 90, 103, 110; New-ell Defam., p. 423; Fisk Soniat, 33 La. Ann., 1400; Vinas v. Insurance Co., 33 La. Ann., 1265. 7. SAME. Same. Case in judgment. Under an order of reference to ascertain the damages accruing on account of delay, in building a house, caused by an injunction, it was shown that the original contractor demanded a certain sum in addition to the contract price to coyer the increase in cost of labor and material consequent upon the delay and that plaintiff (herein) had offered to construct the building for the original price; thereupon the reliability and financial responsibility of plaintiff were questioned, and defendant being examined as a witness, touching these matters and responding to proper questions, testified in substance that plaintiff was neither reliable as a contractor nor of good financial standing. Held, That the question of the reliability of plaintiff as a contractor and his financial responsibility w,ere matters pertinent to the investigation before the master and the testimony of defendant being fairly responsive, no action can be based thereon. (Post, pp. 7, 14-16.)
109 Tenn. 17Griffin v. State (1902)
1. CRIMINAL LAW. Abduction — Indictment—Sufficiency of. In an indictment for the abduction of a female, it is sufficient if the offense is charged in the language of the statute, and it is not necessary to aver the chastity of the female alleged to have been abducted. (Post, pp. 19-22.) Act cited and construed: Act of 1871, chap. 56, sec. 3; Code (S) sec. 6462. Cases cited: Wilson v. State, 103 Tenn., 87; Jenkins v. State, 15 Lea, 674; Scruggs v. State, 90 Tenn., 82. 2. SAME. Same. Same. No duplicity in averring “taking” to have been for “purpose of prostitution and concubinage.” Where an act or offense may be committed by different means or with different intents, the indictment is not bad for duplicity in charging in one count the defendant’s intentions and purposes in the conjunctive form when the statute enumerates the different purposes or intents in the disjunctive; so in an indictment for abduction charging the taking to have been for the “purpose of prostitution and concubinage,” the act or offense complained of in the abduction and the two intents or purposes charged are in the nature of character elements or qualities one or both of which may be present in the mind of the defendant, and proof of either purpose wlil support the indictment. (Post, pp. 2.2-31.) Code cited and construed: Sections 6462, 7084, 7085, 7086 (Shannon). Cases cited and approved: State v. Ailey, 3 Heisk., 8; Cornell v. State, 7 Bax., 530; People v. Parshall, 6 Parker, Crim. Rep., 129; State v. Phipps, 64 N. W., ill; State v. Carr, 6 Oregon, 133; State v. Murphy, 47 Mo., 274; State v. Fitzsim-mons, 30 Mo., 236; Crain v. U. S., 162 U. S., 625. Cases cited and distinguished: Whiteside v. State, 4 Cold., 175; Tucker v. State, 8 Lea, 633. 3.SAME. Same. Elopement with, consent of female no defense. The court below did not err in refusing, at the request oi} defendant, to charge that if he eloped with the female at her own request and without any active persuasion on his part he would not be guilty. Such is not the law, and the request was properly refused. (Post, pp. 31-32.) Case cited and approved: Reg. v. Biswell, 2 Cox. Cr. Cas., 279. 4.SAME. Same. Burden of proof as to chastity. Upon a trial under an indictment for abduction the burden of proof is not on the State to show the female chaste, but| unchastity is matter of defense. (Post, pp. 32-34.) 5. SAME. Same. Same. Reasonable doubt as to chastity. The defendant may discharge the burden on him of showing the unchastity of the female by introducing enough proof to generate a reasonable doubt as to her chastity or chaste living. (Post, pp. 32-34.) 6. JUDGMENT OF COURT. Presumption in favor of lawful action of judge. When the record is silent as .to the presence or absence of defendant when the court pronounced the judgment of the law on him and nothing to indicate his absence, except the mere failure of the entry to show affirmatively'that he was present,, the supreme court will presume that the circuit judge did his duty in such matter in the absence of an affirmative showing to the contrary. (Post, p. 34.) 7. SAME. Erroneous judgment as to infamy corrected in supreme court. When the trial judge included in the judgment of the court a sentence of infamy'when the crime for which the defendant was convicted does not carry with it a judgment of infamy, it is error, but'not reversible error and the supreme court will correct the judgment of the court below, and, by excluding the sentence of infamy, pronounce such judgment as the court below should have rendered. (Post, pp. 34-35.) Cases cited and approved: Foster v. State, 9 Bax., 353-354; Sword v. State, 5 Hump., 101; Johnson v. City of Chattanooga, 97 Tenn., 247.
109 Tenn. 36Gorsuch v. Swan (1902)
NEGLIGENCE. Prima Facie Case — Application of maxim, res ipsa loquitur. Wien a team of horses is found running away, unattended upon a public highway, and doing hurt to plaintiff lawfully thereon, proof thereof makes a prima facie case of negligence against the defendant owner of said horses and places on him the burden of showing that that the runaway was not the result of a lack of care, either on his part or that of his servant. Case cited and approved: Thane v. Douglas, 102 Tenn., 307. Case cited and distinguished: Young v. Bransford, 12 Lea, 232.
109 Tenn. 43Russell v. Dayton Coal & Iron Co. (1902)
FROM RHEA. Appeal from Chancery Court of Ehea County. T. M. McConnell, Chancellor.
109 Tenn. 56Ducktown Sulphur, Copper & Iron Co. v. Fain (1902)
1. DISCOVERY, COURTS OP DAW. Power ample to compel discovery in respect to suits pending therein. In this State it is well settled that either party to an action at law is entitled to a discovery from the other party of any matters material to the issue of such suit, in all cases where the same party would, by the rules of equity, be entitled to a discovery in aid of such suit; and the remedy provided and power conferred upon courts of law to compel such discovery is complete and adequate. {Post, ¶. 62.) Code construed: Sec. 5684 (S); sec. 4549 (M. & V.); 3891 (T. & S.) Case cited: Bumpass v. Reams, 1 Sneed, 598. 2. EQUITY. Injunction. Multiplicity of suits. Courts of equity will not entertain a bill to enjoin a multiplicity of suits upon the ground merely that there is a “community of interest in the questions of law and fact involved;” to warrant such a bill there must be some recognized ground of equitable cognizance, or some community of interest in the subject-matter of the controversy, or a common right or title involved, or there must be some common purpose of pursuit of a single adversary, where each may resort to equity to be joined in one suit. {Post, p. 63.) Case cited and approved: Tribette v. Railroad, 70 Miss.-, 182. 3. EQUITY. Jurisdiction. Unliquidated damages. A court of equity has never had jurisdiction to assess unliquid-ated damages and the Act of 1877 (chapter 97) enlarging the jurisdiction of chancery courts in this State expressly excepts cases of unliquidated damages for injuries to persons, property and character. (Post, pp. 64-65.) Code construed: Section 6109 (S.); 5043 (M. & V.) 4. EQUITY. Discovery. Multiplicity of suits. Injunction. Case in judgment. Complainant filed its hill against twenty-one parties as defendants to enjoin their separate actions at law against complainant to recover damages for alleged injuries to their property from sulphurous smoke and noxious vapors emitted from the sulphur and copper plant of complainant. Said hill alleged that all the defendants had entered into Cham-pertous agreements with their attorneys to prosecute their separate suits against complainant for injuries to their land on the ground that complainant’s aforesaid piant was a nuisance; that defendants had unlawfully comhined and agreed to bring their separate suits, instituted about the same time, to vex and harass complainant with a multiplicity of suits, hut that the particular terms and provisions of said agreement were unknown to complainant, and it had no means of discovering the same except from the parties themselves. Injunction and discovery prayed. Demurrer by defendants. Held: 1st. Complainant not entitled to discovery, its remedy, in the actions at law, being adequate and complete. 2d. There was no such community of interest in the subject-matter, or common right or title involved as would^ warrant an' ' injunction to prevent a multiplicity of suits. 3d. That the averments in respect to the unlawful combination charged, properly construed, were intended as a basis for the discovery prayed and were insufficient to authorize an injunction. Post, pp. 58-66.)
109 Tenn. 67Southern Brass & Iron Co. v. Exeter Mach. Works (1902)
1. SALES OP PERSONALTY — Implied warranty — Action for breach of. A sale by a manufacturer of an engine and attachments of a certain capacity and quality and for a special use and purpose communicated to the seller at the time carries with the sale an implied warranty that said machinery is reasonably suitable and fit for the use and purpose intended; and this rule applies whether the machinery was in stock or specially manufactured to fill the particular order. (.Post, p. 72.) Cited and approved: Overton v. Phelan, 3 Head, 446; Tennessee River Company v. Leeds, 97 Tenn., 574. 2. SAME. Same. Same. Not waived by failure to return goods. The right of action of the buyer for breach of an implied warranty of the quality of the goods is not waived or abandoned by acceptance, use, payment for, failure to return, or offer to return the goods, or, in this case, the machinery. It is well settled that the purchaser of goods with warranty as to quality, either express or implied, may maintain an action and recover for breach of such warranty without a return, or offer to return, of the goods, and after payment. (Post, pp. 72-73, 76.) Cited and approved: Harkleroud v. Nave, 2 Tenn. Cases, 407; Lewis and Jackson v. Hubbard, 1 Lea, 439; Ford v. Thomp- • son, 1 Head, 266; Lawrence v. Yich., 10 Humph., 285; Over-ton v. Phelan, 2 Head, 446. 3. SAME. Return of goods necessary or material when. It is only necessary to return, or offer to return, the goods, when the purchaser elects to rescind the contract and resists payment; or, when payment has been made, seeks to recover the entire consideration, which is the measure of damages in rescission. (Post, pp. 73-74.) 4. SAME. Same. If purchaser elects to rescind, the goods must be returned or tendered to the vendor within a reasonable time, unless return or tender is excused by refusal of vendor to accept them. (Post, p. 74.) 5. SAME. Same. Reason of rule. The return or tender is required of the purchaser because he can not be allowed both to retain the goods and refuse payment of all the purchase price. (Post, p. 74.) 6. SAME. Same. Measure of damages. Where the vendee elects to treat the contract as closed and absolute and sues for a breach of the warranty, the general rule is that the measure of damages is the difference between the value of the property contracted for and that delivered; and, therefore, he need not return or tender back the goods, but has the right to retain them. (Post, p. 74.) Cited and approved: Allen v. Anderson, 2 Hump., 581-3. Cases reviewed and distinguished: Rosson v. Hancock, 3 Sneed, 434; Kentucky Saw Works v. Little River Land and Lumber Co., 42 S. W. Rep., 527.
109 Tenn. 77Harrison v. McMillan (1902)
1. JUSTICE’S WARRANT. Evidence under must lie confined to cause of action stated in. Upon the trial in the circuit court of a suit instituted hy warrant before a justice of the peace and appealed therefrom to the circuit court, the proof must be confined to the cause of action averred in the warrant and it is error for the trial judge to admit evidence of facts constituting a cause of action not embraced in the warrant. (Post, pp. 79-80.) Cases cited and approved: Watkins v. Kittrell, 3 Bax., 38; Sale v. Eichberg, 105 Tenn., 333-346. ' 2. SAME. Illustration of rule — This case. In support of a warrant which averred plaintiffs cause of action to be a “debt due by board account under five hundred dollars,” it was error to admit evidence of the value of the services of plaintiff’s wife in nursing the wife of defendant and to instruct the jury that there could be a recovery therefor as well as for board. (Post, pp. 79, 80.) 3. HUSBAND AND WIFE. Wife’s authority to bind. A wife in the absence of objection interposed by the husband, has the lawful-right to invite her kinsfolk and friends to her husband’s home; and a guest so invited can not, after departure, be made liable for board and lodging at the suit of the husband. (Post, pp. 80, 82.) 4. SAME. Husband’s rights as head of family preserved by what. The rule above stated does not interfere with husband’s common law rights as head of the family, because the wife’s right depends upon the failure of the husband to object when the invitation is given and accepted. (Post, p. 82.) 5. SAME. Marital relation in this country — presumption therefrom. The guest coming, with a lawful and honorable purpose, to the husband’s home, upon the invitation of the wife, has the right to infer full authority in the wife to make the invitation, in the absence of known objection upon the part of the husband; and this presumption arises from and is bound upon the marriage relation in this country and the post of honor and esteem the wife occupies in our modern domestic arrangements. (Post, p. 82.) 6. EVIDENCE. Exclusion, of, error, when. Upon suit for board of defendant's wife, it is error to exclude testimony tending to show that defendant brought his wife to home of plaintiff on the invitation of plaintiff’s wife. (Post, p. 81.) 7. SAME. In an action for board of the serving girl of defendant’s wife, it was error to exclude testimony showing that the serving girl accompanied the wife of defendant to the home of plaintiff upon request of the wife of plaintiff in order to assist in the housework, because such testimony was competent as bearing upon the value of the board to be charged, iif any, for said servant. (Post, p. 83.)
109 Tenn. 84Morgan v. Betterton & Co. (1902)
1. SUMMARY PROCEEDINGS. Must be strictly construed. The proceedings before a justice of the peace, under which judgments by motion are rendered, are summary and must be strictly construed." (Post, p. 89.) Cases cited and approved: Erkman v. Carnes, 101 Tenn., 136; Wingfield v. Crosby, 5 Cold., 241. 2. SAME. OFFICIAL BOND. Jurisdiction of justice of the peace to render judgment. In the absence of notice, a justice of the peace has no jurisdiction to render judgment by motion against the sureties upon the official bond of a constable, without the production in evidence, in support of the motion, of a copy of the official bond certified by the clerk of the county court under the seal of the court. Such bond when recorded becomes a judicial record and a copy thereof when used in evidence must be certified as required by the statute. (Post, pp. 88-89.) Code construed: Sections 5982, 476 (S.); 4976, 442 (M. & V.) ; 4171, 385 (T. & S.) 3. SAME. Jurisdiction of justice of peace essential to give circuit court jurisdiction on appeal. Upon an appeal from such judgment of the justice of the peace to the circuit court, that court acquires no jurisdiction to render judgment against the sureties on the official bond, either by the appeal or by the production of a properly certified copy of the bond in that court. (Post, p. 89.) 4. SAME. Evidence of insufficient return will not support motion for nonreturn of execution. When the motion is for a nonreturn of an execution only and contains no averment whatever with respect to an insufficient return, it is error for the trial judge to instruct the jury that they could render judgment for an insufficient return, and to state to them that the motion covered this latter ground. (Post, pp. 89-90.) Ca,ses cited and approved: Watkins v. Barnes, 1 Sneed, 202. 5. COURTS. Appellate jurisdiction, doctrine of, reaffirmed. It is axiomatic that the appellate jurisdiction of a court in any given case is dependent upon the existence of jurisdiction, either original or appellate, in the court from which the appeal comes. (Post, p. 89.)
109 Tenn. 91First National Bank of Morristown v. Hunter (1902)
1. NATIONAL BANKS — Usury paid. No remedy for, by cross bill. In an action by a national bank on notes beld by it, the defendant can not avail himself, by way of set-off, recoupment or counterclaim, either in defense or by cross bill, of the amount of usury .actually paid to complainant bank, even though the notes in suit represent the unpaid remnants of a series of renewals upon which the usury was paid. (Post, (pp. 93-97.) Statutes cited: United States Revised Statutes, secs. 5197-5198. Cases cited: Barnet v. Bank, 98 U. S., 55; Driesbach v. Bank, 104 U. S., 52; Stephens v. Bank, 111 U. S., 197; Haseltine v. Bank, 183 U. S., 136; Hambrig'ht v. Bank, 3 Lea, 40; Barrett v. Bank, 85 Tenn., 426. 2. SAME. Same. Remedy for, separate exclusive action. For usury paid to a national bank, the remedy provided by, •the statute of the United States is exclusive and is a separate action in the nature of debt. (Post, pp. 95-97.) Citing same statutes and cases. 3. SAME. Same. Penalty for — dictum. Under section 5198 of the Revised Statutes of the United States, the penalty to be recovered for usury taken and received by a national bank is twice the amount taken and received within two years next preceding the institution of the action therefor. (Post, p. 97.) 4. SAME. Same. Question reserved. Because not necessary .to a determination of this case, the court reserved the question as to what court or courts has jurisdiction to entertain and enforce an action for usury paid to a national hank. (Post, pp. 97-98.) 5. SAME. Same. Case in judgment. Complainant, a national bank, brought suit in chancery court on two notes for $300 and $275, respectively, the last of a series of notes originally for $4,500 and $1,500, respectively, which had been renewed, discounted and partially paid on from time to time in the bank for about ten years; defendant answered, denying all liability and filed a cross bill seeking to recover double the amount of usury which had been charged and paid under the entire series of renewals and discounts. The notes in suit bore no interest until after maturity. Held, 1st. The complainant bank was entitled to recover the amount of the notes sued on with legal interest thereon from the date of their maturity • 2d. Defendant could not, by set off, defeat complainant’s recovery, or, by cross bill, recover the amount of usury paid to the bank upon the original or series of renewal notes. (Post, pp. 93-98.)
109 Tenn. 99Swepson v. Davis (1902)
1. MALICIOUS PROSECUTION. Termination of former suit in favor of defendant therein essential to authorize aetion for. In order to maintain an aetion for malicious prosecution it is necessary to aver and prove that the former or original suit, upon which the action is based, has been terminated by judgment or decree in favor of defendant therein; without this the action can not be sustained, even though there be a concurrence of malice and want of probable cause with respect to some of the material matters upon which the original suit was, in part, predicated. (Post, pp. 102, 107-117.) Cases cited and approved: 1 Sneed, 228; Sloan v. McCracken, 7 Lea, 626; Gas Company v. Williamson, 9 Heisk., 314; Stewart v. Sonneborn, 98 U. S., 187; Crescent City Live Stock Co., &c., Co. v. Butchers’ Union Slaughter, &c., Co., 120 U. S., 141; O’Brien v. Barry, 106 Mass., 300; Wood v. Laycock, 3 Mete. (Ky.), 193; Luby v. Bennett (Wis.), 56 L. R. A., 261. Cases reviewed and distinguished: Pierce v. Thompson, 6 Pick., (Mass.), 193; Stone v. Crocker, 24 Pick. (Mass.), 81; Reed v. Taylor, 4 Taunt, 616; Masterson v. Brown, 72 Fed., 136; Brown v. McIntyre, 43 Barb., 344; Strong v. Grannis, 26 Barb., 122; Morton v. Young, 55 Me., 24. 3. SAME. Same. Case in judgment. S., by bill in equity, brought suit against D. for a settlement of partnership accounts between them, and therein, among other things, he averred and charged that D. had misappropriated, diverted and fraudulently invested in real estate in his own name large sums of partnership funds, and had thereby overdrawn his account more than thirty thousand dollars; D. answered in detail the transactions complained of and denying all charges of mismanagement and misappropriation and insisting that such charges were calculated to injure and had injured him in his business and personal relations, and further, insisting that the partnership had not been terminated. The chancellor decreed that the dissolution of the partnership should be deemed to have been made as of the date the bill was filed, and that it was not necessary to decide whether it was being run under a contract of five or ten years at the time of the dissolution; that the charge that defendant had misappropriated large sums and invested them in real estate, concealing same from S. was untrue, and that defendant’s dealings with the partnership funds was with the full knowledge and consent of complainant, thereby, in effect, absolving defendant from all charges of bad faith and misappropriation; the case was referred to the master to ascertain the state of accounts between the parties upon a basis stated, with the result that complainant, S., appealed. The court of chancery appeals found, among other things, that “the' main contentions of complainant in his bill are not sustained by the proof” and that “this bill and its serious charges were without any rational foundation,” and allowed defendant an additional credit of $1,575.00 and in other respects affirmed the chancellor’s decree. On appeal to the supreme court, the opinion and decree of the court of. chancery appeals were affirmed and the cause remanded to the chancery court for further accounting, which resulted in a judgment in favor of complainant, S., against D. for $2,150.60; whereupon D. brought this action against S.. for malicious prosecution of said chancery cause. Held, That there having been final judgment in favor of S. in the chancery court proceedings this action can not be maintained by D., although some of the material averments of S.’s bill Tyere false, malicious, and without probable cause. (Post, pp. 101-126.) 3. SAME. Duty of trial judge. On the trial of an action for malicious prosecution, it is the duty of the trial judge to construe the record of the former case, upon which the action is based, and determine for, and properly instruct the jury as to the successful party therein. (Post, pp. 102-103, 116-117.) 4. SAME. Same. Error to leave to jury. Where an action for malicious prosecution is predicated upon a chancery suit in which the final judgment or decree was in favor of complainant therein, it was error in the trial judge to submit to the jury the question as to whether the complainant in said chancery suit was, in fact, the successful party, and for this purpose permit the jury to look to matters in the record of said suit, the decision of which was expressly pretermitted by the court. (Post, pp. 102, 116-117.) 5. SAMS. Judgment in former suit, conclusive as to successful party therein. In an action for malicious prosecution of a chancery suit, in which there was a final judgment or decree for complainant, the court can not look behind the judgment or decree, in order to determine which party, on the contentions made in the hill, was the successful party; the judgment of the court in the former suit is conclusive as to the successful party therein. (Post, sip. 116-117.)
109 Tenn. 128McCreary v. First National Bank (1902)
1. STATE COUKTS. Jurisdiction — Penalty for usury prescribed by an act of Congress. The courts of this State have jurisdiction and will entertain a suit against a national bank to recover the penalty for taking, receiving, or charging usurious interest, imposed by the statutes of the United States. (.Post, pp. 130-135.). Statutes cited: Revised Statutes of the United States, secs. 5197-5198. Cases cited: Hartley v. U. S., 3 Hayw., 44; Bank v. Morgan, 132 U. S., 141. 2. CHANCERY COURTS. Jurisdiction of, suits for penalty. “An action in the nature of an action for debt” against a national bank for taking, receiving, or charging usurious interest, as prescribed by the statutes of the United States, although penal in its effect, is a “civil cause of action,” jurisdiction of which was, by the act of 1877, ch. 97, conferred upon the chancery courts of this State concurrently with the circuit courts. (Post, pp. 130, 131, 135-141.) Act construed: Act of 1877, chap. 97; Code (S.) see. 6109. Cases cited: Martin v. McKnight, 1 Tenn., 330-334; Kelly v. Davis, 1 Head, 73; Hogan v. Chattanooga, 2 Tenn. Cases, 339; Meagher v. Chattanooga, 1 Head, 76; Wood v. Mayor, &e., of Grand Junction, 5 Heiskell, 442; Town of Bristol v. Burrow, 5 Lea, 129; Bobo v. Bank, 92 Tenn., 444. Cases distinguished: Shields v. Davis, 103 Tenn., 544; Baker v. Mitchell, 105 Tenn., 610; Simmonds v. Leonard, 89 Tenn., 622. 3. INTEREST. Penalty does not bear interest. Interest is not recoverable on a statutory penalty unless expressly provided for in the act; therefore in an action against a national bank, to recover the penalty prescribed by the act of Congress for charging usurious interest, interest can not be rlecovered on such penalty. (Post, pp. 131, 141-142.) Case cited: Duncan v. Maxey, 5 Sneed, 115.
109 Tenn. 143Love v. Moser (1902)
1. BILL TO REMOVE CLOUD. Title acquired after suit brought, how availed of. Where, in a suit in equity, to remove a cloud from title, the complainant has no title at the time suit is instituted, hut subsequently acquires one, the rule is that he can not set up such after acquired title by a supplemental or amended bill, but must resort to an original bill. (Post, p. 146.) Citing: Story Equity Pleading, secs. 339-340, 2. SAME. Effect of consent amendment setting up after acquired title. Case in judgment. After complainant filed his bill in equity to remove a cloud from his title, he procured a grant from the State for the land described in the bill. With the consent of defendants the bill was amended on its face setting up the grant. Defendants filed a formal answer to the bill as amended, denying title, but making no question upon the manner of setting up the after-acquired title, until, upon the hearing they objected to the reading of the grant as evidence of title, insisting for the first time upon the rule above stated. The grant was excluded. Held: . 1st. The objection to the grant as evidence of title came too late. 2d. 'By their consent to the amendment and formal answer thereto, defendants must be held to have impliedly agreed to treat and consider the amended bill as in the nature of an original bill setting up the newly acquired title which was proper matter for agreement and avoided circuity of action. 3d. That complainant was entitled to recover on his new .title. (Post, pp. 145-147.) Case cited and approved: Corder v. Dolin, 4 Baxter, 238.
109 Tenn. 148Hair v. Caldwell (1902)
1. MARRIED WOMEN — Testamentary capacity — Rower to devise real estate to husband. In this State, married women over the age of twenty-one years have full power and authority to dispose of their real estate or lands as if unmarried, and the provision in the enabling act to the effect that such testamentary disposition shall not be construed so as to defeat the husband’s tenancy by the curtesy in such lands is not such a limitation upon their testamentary capacity as will defeat a devise of lands or real estate to the husband, it being the manifest intention of the legislature, thereby, to protect th’e husband’s tenancy by the curtesy, not to exclude him from her bounty. (Post, pp. 150-156.) Act construed: Acts of 1869-1870, chap. 99, sec. 6, Shannon’s Code, 4274. 3. SAME. Same. Same. Not before questioned. While this precise-question has not hitherto been before the supreme court for its'adjudication, yet numerous cases have been before it involving the title to real estate held under devises made by married women in favor of their husbands, wherein it was conceded that such devises were valid and effective to convey the title. (Post, pp. 153-154.) Cases cited: Campbell v. Browder, 7 Lea, 240; Thompson v. Gaut, 14 Lea, 310; Molloy v. Clapp, 2 Lea, 589; Reeves v. Hager, 101 Tenn., 712; Stone v. Manning, 103 Tenn., 232; Mitchell v. Kimbrough, 98 Tenn., 535; Maxwell v. Hi-11, 89 Tenn., 587. 3. SAME. Will of, valid without privy examination. Under the statute authorizing married women to make testamentary disposition of their property “in as full, ample and complete a manner as if they were unmarried,” a will executed by a married woman with the formalities required of unmarried women or other persons sui juris, is valid, and acknowledgment with privy examination is not essential to a valid execution thereof. (Post, pp. 154-155.) Act construed: Act of 1869-70, chap. 99, sec. 6, Shannon’s Code, sec. 4247. 4. WILiIi. Unlimited power of disposition given first taker. Effect of — Rule stated. If the first taker be given an estate in fee, or for life, with unlimited power of disposition, the fee or absolute estate vests in the first taker and a limitation over is void. (Post, p. 155.) Case cited and approved: Bradley v. Carnes, 94 Tenn., 27. 5. SAME. Same. Case in judgment. After providing for the payment of her debts, a testatrix devised “all the rest and residue” of her property to her husband, “for and during his natural life,” and gave him full and absolute control thereof, with right and authority to use, occupy, lease, sell, and convey, or otherwise dispose of the same ... in any manner he may wish,” with remainder over to certain designated parties: Hecd: That the husband took an absolute title in fee, and that the limitation over was void. (Post, pp. 150-156.)
109 Tenn. 157State v. Morgan (1902)
1. FALSE PRETENSES. Indictment — Sufficient averment of means of fraud. An indictment for false pretenses sufficiently ayers the means of fraud, which alleges that the defendant represented to the county that he was entitled to county warrants of a designated amount and value for services rendered hy him as constable in small offense cases before a designated justice of the peace. (Post, pp. 159-160, 162.) 2. SAME. Same. Sufficient averment as to false character of pretenses. An indictment for false pretenses which avers that the defendant being entitled to a county warrant for a certain amount for services as constable in small offense cases represented that he was entitled to a warrant for a much larger amount and well knowing that he was not entitled to the warrant for the larger amount, which included false bills of costs taxed in his favor along with legal bills of costs, drew and received from the county a warrant for the designated larger amount, sufficiently avers the false character of the pretenses. (Post, pp. 160-162.) 3. SAME. Same. Fraudulent intent. An indictment for false pretenses sufficiently avers a fraudulent intent which charges that the defendant unlawfully, felon-iously, willfully, fraudulently and falsely represented to the county that he was entitled to a county warrant of - a certain and designated amount and value, which representation he knew to be false, and was made for the purpose of deceiving and obtaining from said county said Warrant, which he did obtain under false .pretenses. (Post, pp. 161, 162.) 4. SAME. Same. Sufficient description of property obtained. An indictment for false pretenses sufficiently describes the property obtained, which avers that it consisted of a county warrant of a designated amount and value and bearing a certain and designated number, that is “Hamilton County Warrant No. 41,311 ... of the value of one hundred and sizty-five dollars.” (Post, pp. 161-162.) 5. SAME. Same. Reliance of party defrauded on false representation. An indictment which charges that the defendant by reason of false and fraudulent representations and illegal, false and fraudulent bills of cost became possessed of a county warrant, sufficiently avers the reliance of the county issuing it on the false pretenses averred. (Post, pp. 161-162, 165.) 6. SAME. Same. Proof of one false pretense sufficient to sustain. In an indictment charging two or more, false and fraudulent pretenses, such as separate fraudulent bills of cost, proof of any one of them, and the obtaining of property thereby, would he sufficient to sustain a conviction. (Post, p. 163.) Case cited and .approved: Britt v. State, 9 Hump., 31, 42. 7. SAME. Same. An indictment for false pretense by means of false, fraudulent, forged and illegal bills of cost is not defective, which fails to set out bills of costs. (Post, pp. 163-164.) Code construed: Sec. 6568 (S). Case cited and distinguished: Wallace v. State, 2 Tenn. Cases 616. 8. SAME. Same. Sufficient if false pretenses alleged to he controlling inducement. In an indictment for false pretenses it is not necessary to aver that the false pretenses constituted the sole inducement by which the property is parted with, it being sufficient if they have a controlling influence. (Post, p. 164-165.) Authority cited: 2 Wharton Crim. Law, sec. 2121. 9. LARCENY.. Indictment — Sufficiency. An indictment for larceny framed in the language of the statute, and which definitely describes the property' taken and gives the name of the owner thereof, is good. (Post, p. 166.) Case cited: State v. Swafford, 3 Lea, 162. 10. SAME. County warrant — subject of. A county warrant may be tbe subject of larceny. (Post, p. 166.) Case cited: Millner v. State, 15 Lea, 179.
109 Tenn. 167Wilson v. State (1902)
1. JUROR. What opinions disqualify — what do not. Opinions which disqualify a juror are such as are formed upon personal knowledge, from the statements of witnesses or of those who have heard the testimony or statements of witnesses and repeat them, or from published accounts of the statements of witnesses; and opinions formed from other sources are based upon rumor and do not disqualify. {Post, p. 170.) Cases cited: Woods v. State, 99 Tenn., 187; Turner v. State, 69 S. W. Rep. (Tenn.), 778. 2. CHARGE OF COURT. Inartificial definition of “reason- ' able doubt ” not reversible error, when. The charge of the trial judge, defining “reasonable doubt” as “such doubt as will create in the minds of the jury a feeling of unrest, or misgiving on .the part of the jury, and which will not permit their minds to rest easy upon a verdict of guilty,” was not prejudicial, and therefore not reversible error, and especially is this so when the undisputed facts, including the statements of the defendant, clearly establish his guilt. {Post, pp. 170-171, 177.) 3. TRIAL JUDGE. Statements of to jury, not reversibel error, unless prejudicial to defendant. The supreme court will not reverse for supposed misconduct of the trial judge in his statement to the jury respecting the time for the deliverance of their verdict, when it is plain that such statement could not operate to the prejudice of the defendant. {Post, pp. 171-172.) 4. MURDER. "Verdict for, supported by facts. A verdict of guilty of murder in the second degree, and fixing the punishment of defendant at twenty years’ confinement in the penitentiary, is abundantly sustained by the facts set out in the opinion. {Post, pp. 172-176.) 5. TECHNICALITIES. Not favored by courts. There is a strong and growing inclination upon the part of the supreme' court, repeatedly announced, to escape from the embarrassments of technicalities that are “empty and .without reason” and “tend to defeat law and right.” {Post, pp. 176-180.) Cases cited and approved: Isham v. State, 1 Sneed, 11; Hale v. State, 1 Cold., 167; Wallace v. State, 2 Lea, 35; State v. Staley, -3 Lea, 565; Woods v. State, 14 Lea, 460; Glidewell v. State, 15 Lea, 133; Givens v. State, 103 Tenn., 650. 6. SAME. Shall not protect guilty — No reversal except for errors affecting merits. The day is past for rescuing the guilty by mere technicalities, and when guilt is clearly established, and the merits have been reached, there will be no reversal except for substantial errors which have deprived defendant of some constitutional or legal right. {Post, pp.'176-180.) * Code construed, Sees. 6351 (S); 5268 (M. & V.); 4516 (T. & S.).
109 Tenn. 181Sheafer v. Mitchell (1902)
FROM JOHNSON. Appeal from the Chancery Court of Johnson County. John P..Smith, Chancellor.
109 Tenn. 217Coile v. Hudgins (1902)
1. COURT OR CHANCERY APPEALS — Findings of, conclusive. Under a bill filed by daughters to set aside for fraud, a deed to their mother, the findings by the court of chancery appeals that a sale for $175.00 of interests in realty worth at least $2,000, by the daughter^, was superinduced by misrepresentations of the value of the land and by taking advantage of their youth and inexperience and by her maternal influence ever them are conclusive upon the right of the defrauded daughters to set aside the deeds. (Post, pp. 218-219.) 2. HOMESTEAD — Eorfeiture by nonresident. Our exemption laws are intended for benefit of citizens and residents of the State, and nonresidents are not entitled thereto; therefore, if a widow, to whom has been assigned homestead, removes from the State -and takes up her domicile in another State, she thereby forfeits and abandons said homestead. (Post pp. 219-224.) Cases cited: Hicks v. Pepper, 1 Bax., 42-46; Hawkins v. Pearce, 11 Humph., 44; Emmett v. Emmett, 14 Lea, 369; Graham v. Stull, 92 Tenn., 673; Carrigan v. Rowell, 96 Tenn., 185; Farris v. Si.pes, 99 Tenn., 298; Briscoe v. Vaughn, 103 Tenn., 308. 3. SAME. Same. Intention to retain will not prevent forfeiture. And such abandonment or forfeiture is worked notwithstanding her intention to retain the homestead and the benefits thereof. (Post, p. 223.) 4. SAME. After assignment — an estate the subject of sale-doctrine reaffirmed. After .the homestead has been assigned, it becomes an estate for life and can be rented, leased or sold while the homesteader is a resident of this State* and the vendee, if a resident of Tennessee, will he entitled to hold it. (Post, pp. 221-222.) Case cited and approved: Briscoe v. Vaughn, 103 Tenn., 308.
109 Tenn. 225Bundren v. State (1902)
1. BILL OB EXCEPTIONS. No power in ex-clerk to file. After tlie expiration of Ms term of office, a clerk of the circuit court or trial court has no power to file or indorse as filed a hill of exceptions, and such an act hy him is wholly unwarranted and illegal and will not permit the consideration of a hill of exceptions, so styled in the record, upon an appeal to tMs court. (Post, pp. 227-230.) 2. SAME. Semhle. A clerk of the circuit court has no power to file a hill of exceptions save during the trial term of court or within the time allowed hy an order of the court, authorized hy the act of 1899, ch. 275. (Post, pp. 227-230.) 3. SAME. A nullity unless filed — Rule reaffirmed. It is a well settled rule in this State that unless the record affirmatively shows that the hill of exceptions was filed in •the court helow, no consideration will he given hy this court to that part of the record purporting to he the hill of exceptions, it will he treated as a nullity and no error can be based thereon. (Post, pp. 229-230.) Cited and approved: Bettis v. State, 103 Tenn., 339; Muse v. State, 106 Tenn., 183; Tones v. Moore, 106 Tenn., 188; Wright v. Redd, 106 Tenn., 719. 4. SAME. Presumption in absence of — Rule reaffirmed. It is also well settled in this State that in the absence of a bill of exceptions the presumption is indisputable that, the conclusion reached by the jury is that which the evidence justified and required. (Post, p. 230.) Cited and approved: Scruggs v. Heiskell, 95 Tenn., 455; Pratt v. Gillespie, 97 Tenn., 217; Daniel v. Coal Company, 105 Tenn., 471. 5. MURDER. Verdict of, supported toy facts. Ttoe facts set out in the opinion of the court abundantly support the verdict of guilty of murder in the first degree and negatives the .plea of self-defense. {Post, pp. 230-236.)
109 Tenn. 237First National Bank of Geneva v. Shaw (1902)
1. CONTRACTS. Notes — Construction of, Lex loci. The law of the place where the contract was consummated by delivery or otherwise governs in the construction of the contract and not the law of the place where it is signed or executed. (Post, pp. 240-241.) Cases cited: Hubble v. Morristown Land Co., 95 Tenn., 585; Hall v. Cordell, 142 U. S., 116; Armstrong v. Best, 112 N. C., 59; Milliken v. Pratt, 125 Mass., 374. 2- SAME. Same. Enforcement of, Lex fori. In an action to enforce a contract lex fori governs if repugnant to the lex loci contractus. (Post, pp. 243-244.) Cases cited: Bank v. Walker, 15 Lea, 299; Pearl v. Hansbor-ough, 9 Humph., 429; Milliken v. Pratt, 125 Mass., 374. 3. MARRIED WOMEN. Contracts — Coverture a defense to. While the tendency of legislation in this State is to enlarge the contractual power of married women, yet it is well settled that their contracts are voidable and will be declared nugatory whenever the defense of coverture is interposed. (Post, p. 243.) 4. SAME. Same. Case in judgment. A married woman residing with her husband in this State signed a note and by mail sent it to the payee bank in Ohio, where it was made payable; the acceptance and delivery were in the State of Ohio, by the laws of which married women •are liable on their contracts. Suit by payee bank to collect note. Plea of coverture by married woman. Held: 1st. The note was an Ohio contract, valid and enforceable in that State. 2d. The plea of coverture is a defense in bar of an action to collect said note in this State.
109 Tenn. 245Harrison v. Johnston (1902)
1. COLLATERAL INHERITANCE TAX. Bond for — Need not be given by owner of contingent remainder interest. The owner of a contingent remainder interest, under a will, in personal property subject to the collateral inheritance •tax, is not required, by the provisions of the collateral inheritance tax act, to make report of and give security for the tax within one year from the death of the decedent, and failure so to do does not cause the tax on such interest to become immediately payable and collectible. (Post, pp. 250-252.) Act construed: Acts of 1893, ch. 174, sec. 3; Code, sec. 728 (S). Case cited: In re- Cagar’s will, 111 N. Y., 343. 2. SAME. Question reserved. Whether the provisions of the third section of the collateral inheritance tax act (Acts 1893, ch. 174), requiring the owner of personalty subject to the tax to make report thereof and give security therefor within one year after the death of the decedent, under penalty of causing said tax to become immediately payable and collectible, apply to the owners of vested, remainder interests in such property was expressly reserved. (Post, p. 251.) 3. SAME. Remainder — Payable on termination of life estate. Where the estate subject to the succession tax does not “take .effect in possession or come into the actual enjoyment” of the owner until after the expiration of an estate for life, the tax thereon becomes due and payable upon the termination of the life estate. (Post, pp. 252-257.) Case cited: In re Cooper’s estate, 127 Pa., 435-439. 4. SAME. Same. Termination of life estate by merger. The doctrine of merger applies as well where the remainder interest comes into the possession of the life tenant as when the life estate comes into the ownership of the remainder-men. In either event the life estate is terminated. (Post, pp. 252-253, 257-260.) Case cited: Davis v. Williams, 85 Tenn., 650. 5. SAME. Same. Merger — effect of, on life tenant. Where a life tenant, by purchase of 'the remainder interest, comes into immediate actual possession and beneficial enjoyment of the fee simple estate resultant upon the merger of the two estates, he becomes' liable for the collateral inheritance tax upon the value of the remainder interest at the time of the purchase. (Post, pp. 252-253, 256-260.) Act construed: Acts of 1893, ch. 174, sec. 3; Code, sec. 728 (S). Case cited: In re Cooper’s estate, Í27 Pa., 435. 6. SAME. Case in judgment. A testator, leaving surviving him a widow, hut no children, devised the whole of a large and valuable estate, excepting .some bequests not necessary to be noticed, to his widow for life, with remainder over to his niece, if she should survive the widow, -and, if not, then to St. Luke’s Church. Neither the niece or church made report of the tax or entered into security therefor within a year after the death of the testator. The widow purchased the contingent interests, both of the niece and church, took deeds therefor, and thus became the owner of iand took into actual possession the whole estate. Suit by State, in name of county court clerk, .against life tenant and remaindermen to collect collateral inheritance tax. Held: 1st. That the failure .of the niece and church, owners of contingent remainder interests in the property, to make report of and enter into security for the tax, did not accelerate the payment of the ta,x. 2d. That the remainder .interest, or estate in remainder, in said property was liable for the succession or collateral inheritance tax, payable, however, on the termination of the life, estate. 3d. That by purchasing the estate in remainder the widow terminated her life estate and .'thereby coming into the actual pos.session of the whole estate, became immediately liable for the tax upon the present value of ,the remainder interest, ■that is, the value of the entire estate less the exempt life estate. (Post, pp. 248-260.) 7. SAME. Jurisdiction of county court not defeated by pendency of administration suit in chancery. The fact that an 'estate is being administered in the chancery court does not oust the county court of its jurisdiction to collect the inheritance or succession tax imposed by chapter 174 of the acts of 1893. Section 22 of said act, making it the duty of the chancery court to see that the succession tax upon estates therein administered is paid, only provides an additional or supplemental'remedy. (Post, pp. 260-261,) Code, sec. 754 OS). 8. SAME. Attorney’s fees for collecting taxed as costs. The court will tax, as part of the costs against the party held liable for the tax, the reasonable fees of the attorney employed by the clerk of the county court to collect the tax upon inheritances or successions. (Post, pp. 261-262.) Act' construed: Acts of 1893, ch. 174, secs. 14-16; Code, secs. 743-748 (S). 9. SAME. Eees of district attorney taxed as costs and covered into treasury of State. The. salary paid a district attorney-general is in lieu of all .ether compensation, and fees taxed in his name in a suit for the collection of inheritance tax are for the benefit of the Statej and must be paid into the treasury of the State . -in the same manner as are other fees and costs taxed in favor of the district attorney-general. (Post, pp. 262, 266-267.) Act construed: Act of 1897, ch. 41. 10. SAMS. Appraisement — Onus on defendant attacking valuation shown by. In á -suit.to collect a succession or inheritance tax, where the petition..set forth and averred the.value of the estate to be as fixed by an appraisement, the defendants, if dissatisfied with the appraisement, must show the real value of the property subject to the tax; and especially is this so when defendants had actual notice of the appraisement and an opportunity to examine the appraiser after he had exhibited his appraisement. (Post, pp. 264-266.)
109 Tenn. 268Thompson v. C., N. O. & T. P. Ry. Co. (1902)
1. STATUTE OE LIMITATION'S — Defense of, in action at law, may be made by demurrer to declaration. In an action at law, when the declaration shows on its face that the cause of action is barred by the statute of limitations, such defense may .be made by demurrer. (Post, pp. 270-271.) Cases cited: Whaley v. Catlett, 103 Tenn., 347, 351; Dunlap v. Gibbs, 4 Yerg., 94; MoClung v. Sneed, 3 Head, 219; Wyatt v. Luton, 10 Heist., 458. 3. HUSBAND AND WIFE,- Action by, for injury to wife. The husband joined for conformity. A cause of action for injuries wrongfully inflicted upon the person of a married woman belongs to her alone and must be instituted in her name, the husband joining as a formal party, and a .suit based thereon is for her benefit and can not be dismissed by the husband without the consent of the wife in open court, or in writing proven by two witnesses. (Post, pp. 271-273.) Acts construed: Act of 1849-50, ch.' 106, sec. 1; Code, 2487, 3352 (M. & V.), 4248 (S). Case cited and approved: Fink v. Campbell, 17 C. C. A., 325; (70 Fed. Rep., 667, 668). 3. STATUTE OE LIMITATION — Married women, action by, . for personal injury, within saving clause of statute. An action by a married woman for injuries to her person may be brought at any time during her coverture or within one year after the removal of such disability; she is within the saving clause, or exception, of the statute of limitations. (Post, pp. 271-275.) Code construed: Secs. 2757, 3451 (M. & V.); 4448 (S). Cases cited and approved: Whirley v. Whiteman, 1 Head, 610; Cargle v. Railroad Co., 7 Lea, 719. Cases distinguished: Guión v. Anderson, 8 Humph., 325; Weisinger v. Murphy, 2 Head, 674; Lane v. Farmer, 11 Lea, 568. 4. SAME. Same. Case in judgment. In June, 1902, plaintiffs, Thompson and wife, brought suit against defendant railway company in the circuit court of Roane county to recover damages for injuries sustained by the wife on August 28, 1899, and caused by the alleged negligence of defendant company. Declaration set out the facts. Defendant demurred on the ground that the action was barred by the statute of limitation of one year. Held: 1st. That the cause of action belongs to the wife. 2d. That the husband is a mere formal party, though upon recovery of judgment he might reduce it to possession subject to the wife’s equity. 3d. That the wife, being under the disability of coverture, she was within the saving clause of the statute of limitations, and her right of action was not barred. (Post, pp. 270-275.)
109 Tenn. 276State ex rel. Kincaid v. Hamilton (1902)
1. STREETS AND HIGHWAYS. Dedication. Concurrence of intention and acceptance necessary. In order to consummate ,a dedication at common law of private property to tlie public use, there must be not only a plain and unequivocal intention upon the part of the owner to appropriate the property to the public use, but it is essential that there be an acceptance by use, or otherwise, on the part oí the public. {Post, pp. 282-286.) Cases cited and approved: Scott v. Cheatham, 12 Heiskell, 719; Mathis v. Parham, 1 Tenn. Ch., 533. 2. SAME. Same. May be revoked before acceptance. The owner of the property may revoke the dedication of a street or highway, however decisively his intention to dedicate may have been manifested, at any time before there has been an .acceptance either by formal action of the public authorities or common use, showing a clear intent to accept .and enjoy the easement for the specific purpose of the proposed dedication. {Post, p. 286.) Case cited: Mathis v. Parham, 1 Tenn. Ch., 533. 3. SAME. Same. Semble. The mere fact of subdividing a large tract of land into smaller parcels or lots and laying off streets, avenues and alleys thereon, as shown by a map recorded in the office of the register of the county, and selling lots by references to said map, without acceptance by the public by use, or otherwise, does not constitute .a dedication of 'the land covered by said streets and highways to the public use. 4. SAME. Same. Rights of purchaser of lots bought with reference to a plat. Where a large body of land has been platted into a town site, and a map thereof, showing subdivision into lots, streets and alleys, has been duly recorded in the office of the county register, a purchase of one of said lots by reference to the plat or map only acquires an easement in such of said streets or ways as are necessary or convenient for him to reach a highway. (Post, pp. 284-285.) Cases cited: Badeau v. Mead, 14 Barb., 328; Chapin v. Brown, 10 Atl., 639; Bell v. Todd, 51 Mich., 21 (16 N. W., 304). 5. SAME. Same. Same. Case in judgment. A private corporation owning a large body of land platted it into a town site, laying off streets, avenues and alleys, and " sold a number of lots to complainant by a reference to a registered map showing subdivisions into lots and streets platted thereon. There was no acceptance of the proposed dedication, except such as might be inferred from the purchase of lots by reference to the map. Under foreclosure proceedings against the .owner, defendants bought several large portions of the town site, and by enclosing them obstructed ' several of the streets shown on said map. Bill by complainant .to compel defendant to open the streets so obstructed. Held: That complainant was not entitled to have all of the streets obstructed opened, but only such as abut on his lots and are necessary to convenient ingress and egress to his property. (Post, pp. 278-287.) Cases cited: Bupra. Cases distinguished: Wilson v. Aeree, 97 Tenn., 378; Mayor v. Howard, 1 Tenn. Cas„ 68; Mayor v. Gill, 1 Tenn. Cas., 326.
109 Tenn. 288D. M. Steward Mfg. Co. v. Steward (1902)
1. PATENTS. Rights of inventor before issuance of patent. The inventor of a new and useful improvement in a patentable article has no' exclusive right to- its use and manufacture until he obtains a patent therefor; and no suit can be maintained by the inventor against any one for its use, manufacture or sale until a patent has been obtained. (Post, pp. 301-302.) Cases cited: Gayler v. Wilder, 10 How., 477, 493 (U. S.); Marsh v. Nichols, Shepard & Co., 128 U. S., '605, 612; Durham v. Seymour, 161 U. S., 235; Rein v. Clay,ton, 37 Fed. Rep., 354-458. 2. SAME. Use by employer o invention of employee— License presumed, when. When a .person, ,in the employment of another In a certain line of work, devises an improved method or instrument for doing that work, and uses the employer’s property and the service of co-employees to develop his invention into practicable form, and assents to its use by his employer, he is presumed to have so far recognized the obligations of his service, and the benefits resulting to him from the use of the property, as to have given his employer an irrevocable license to use his invention. (Post, pp., 305-306.) Case cited: Solomon v. United States, 137 U. S., 342. 3. SAME. Same. The employee, himself the owner of a patent, can not, without his employer’s consent, and in the absence of a special arrangement for compensation, introduce his patented article into the business of his employer and afterwards demand royalties, damages >or profits from his employer for such use. (Post, pp. 306-307.) Cases cited: Barry v. Crane (C. C.), 22 Fed. Rep., 396-7; Tnhe Works v. Bridgewater Iron Co. (C. C.), 26 Fed. Rep., 334; McCIurg v. Kingsland, 1 How., 203; Gill v. United States, 160 U. S., 42.6; Manufacturing Co. v. Eustis, 51 N. J. Eg.., 565. 4. CORPORATION. Officers of, are trustees for cestui gue trust. The officers and directors of a corporation .occupy a position of trust, and will not be allowed to deal with the corporate funds and property for their individual gain. They will not be permitted to deal for the corporation and for themselves at the same time; and, as trustees; they will be held to account for all profits made by their use of corporate property and assets. (Post, pp. 303-305.) Citing: Thompson on Corporations, secs. 4010-4022; Bank v. Downey, 53 Cal., 466 (31 Am. Rep., 62); Mallory v. Mallory-Wheeler Co., 61 Conn., 131. 5. PATENTS. By corporate officers — -Case in judgment. Defendant Steward, being the president and general manager of complainant manufacturing company, while in its employ invented useful .and valuable gas tips, which he caused to be manufactured by complainant, without any contract for the payment of royalties; he directed an employee of the company to ascertain the exact cost of manufacture, to which he added one hundred and fifty per cent, as profit to complainant company, and then sold the tips to himself, doing business under another name, at cost and said profit added; he then placed the tips on the market at a price double that paid complainant company and realized large profits from sales so made. These transactions were without the knowledge or consent of the directors of complainant company, of whom defendant was the largest stockholder and the active and controlling manager. Suit by complainant for profits. Held: 1st. Defendant was not entitled to recover royalties on tips manufactured prior to the issuance of his patents. 2d. That defendant must account to- complainant for all profits realized by him on the resale of the tips belonging to complainant company and sold to himself at cost and one hundred and fifty per cent, added. {Post, pp. 290-307.)
109 Tenn. 308Chattanooga Electric Ry. Co. v. Cooper (1902)
1.' PERSONAL INJURY — Contributory negligence — Wrong action produced, by sudden peril — General rule. It is a settled law that a person placed in a position of sudden peril and injured by the negligent act of another is not barred from his action therefor because by reason of the impending danger his judgment is confused and he fails to make the most judicious choice between the means of escape from the .threatened injury, and takes a wrong step, which, had he avoided, the injury would not have occurred. (Pont, pp. 311-312. Cases cited: Railroad Co. v. Gurley, 12 Lea, 46; Marble Co. v. Black, 89 Tenn., 124. 2. SAME. Same. Same. Rule extended. The rule above stated is not restricted to cases where the peril producing the confusion of judgment and the consequent wrong effort to escape is the negligent act of the party doing the injury, but extends to cases where, without fault himself, the “person injured is placed in a position of sudden peril by a third person and absolves him from exercising that degree of care required under ordinary circumstances. (Post, pp. 312-314.) 3. SAME. Same. Same. Qualification of rule. But, in order .to entitle the injured party to invoke the rule above stated and claim immunity thereunder, he must have been without fault in placing himself in the position of peril or danger. (Post, pp. 313-3.14.) 4. CHARGE OP COURT. Contributory negligence — Sudden peril from act of third person — Case in judgment. Plaintiff’s intestate was killed by an electric car, in front of which he inadvertently ran iin .a moment of excitement while endeavoring to escape apparently threatened peril from a rapidly advancing automobile. There -was proof tending to show negligence upon the part of the motorman, in that he was looking at the automobile instead of watching the .track in front of him, and but for this, intestate would not have been killed. Defendant insisted that intestate could have avoided both the apparently threatened peril and contact with the car by turning in a different direction, and, failing in this, his own negligence .proximately contributed to his death and barred recovery, even though the motorman was guilty of negligence. A special request covering this contention was refused by the trial judge, who, on this point, said to the jury: “It is true, as insisted by counsel for plaintiff in this ease, that if a .man is in a place of danger, and he is excited to such 'an extent that he can not act with sound judgment .and 'discretion — in other words, if the automobile was upon him (the deceased), and he was excited by the situation, and did the wrong thing under the circumstances — the law would not hold him accountable, would not charge him with contributory negligence.” This was assigned as error by plaintiff in error, who insisted that “a different rule applies when the danger is brought about by a third person or an independent agency.” Hem: 1st. That the rule applies even though the sudden peril causing mistake of judgment and consequent false' effort to escape, was not the negligent act of defendant proximately causing the injury. 2d. But to entitle intestate to the benefit of this extension of the rule, he must have been without fault in placing himself in the position of peril or danger, which was a question for the jury, and the trial judge erred in failing to so qualify Ms charge by apt instructions to the jury. (Post, pp. 310-314.)
109 Tenn. 315State ex rel. Clyde v. Mayor of Bristol (1902)
1. MUNICIPAL BONDS. Validity of, Bes Adjudicata. It is now settled in this State that when the supreme court has adjudged an issue of bonds by a municipality to be valid and authorized by the statute under which they were issued, it is too late to question the original validity of the bonds upon any ground whatever; therefore, a municipality has no right to have such questions reviewed as a defense to a petition for a mandamus to compel .the levy of a tax to pay judgments rendered on interest coupons from such bonds, in favor of bona fide purchasers acquiring title after said bonds have been held valid. (Post, pp. 317-324.) Case cited and approved: Richardson v. Marshall Co., 100 Tenn., 440. Oases distinguished: Brownsville v. Loague, 129 U. S., 493; Harshman v. Knox County, 122 U. S., 306. 2. SAME. Bona Pide Purchasers, Bights of. Where certain municipal bonds have been held valid by the supreme court of the State and are, thereafter, placed upon the market and pass into the hands of bona fide purchasers, the validity of such bonds in the hands of such holders must be determined by the l'aw as judicially construed at the time said bonds were marketed ¡and can not be disturbed by a subsequent different interpretation of the law. (Post, pp. 322-324.) Cases cited: Douglass v. Pike Co., 101 U. S., 677; Taylor v. Ypsilanti, 105 U. S., 60; New Buffalo Tp. v. Cambria Iron Co., 105 U. S., 73. 3. TAXATION. Implied powers — In absence of constitutional or statutory inhibition. It is a sound principle of law that where a valid act of the legislature confers upon a municipality power to issue bonds it impliedly authorizes the levy of sufficient taxes to meet the debt or satisfy .the interest thereon, unless the constitution of the State prohibits .such implied power, or the statute authorizing the debt or some general act contain provisions which repel such an implication. (Post, pp. 324-326.) Case cited: Citizens’ Saving & Loan Assn. v. City of Topeka, 20 Wall., 655; Ralls Co. Ct. v. U. S., 105 U. S., 733; City of Quincy v. U. S., 113 IT. S., 332; United States v City of New Orleans, 98 U. S., 393; U. S. ¶. Macon Co., 99 U. S., 582; U. S. v. Clark Co., 96 U. S., 211; Lowell v. City of Boston, 111 Mass., 460; Scotland Co. Ct. v. U. S., 140 U. S., 41; Felton v. Hamilton Co. (C. C. A.), 97 Fed., 825. Case distinguished: Nichol v. Morgan, etc., 9 Humph., 52. 4. CONSTITUTIONAL LAW. Power of the Legislature. Taxation. It is a fundamental canon of construction, applicable to State constitutions, that the legislature has all the powers which belong to or reside in the people except when restricted by express provisions, or necessary implication therefrom in the constitution. There is nothing in the constitution of this State which prohibits the legislature from conferring, by implication, authority upon ,a municipality to levy taxes to pay any particular debt. (Post, pp. 326-327.) Constitution construed: Secs. 28 and 29 of article 2. 5. TAXATION. Manner of levy, controlled by general law in absence of special provisions. It is well-settled law in this State that when an act óf the legislature authorizes the levy of a tax, and is silent as to manner by which the levy shall be made, the general law relating to taxation controls. (Post., pp. 327-328.) Cases cited: City of Memphis v. Bethel, 3 Tenn. Cases, 206; Town of Bristol v. Dixon,-8 Heisk., 864. 6. SAME. Case in judgment. By an act of the general assembly power and authority was conferred upon the municipal authorities of the city of Bristol to issue bonds for certain purposes. These bonds have been declared valid by the supreme court of this State, by which judgments were rendered upon coupons thereon .in favor of relators who by proper petition ash for a mandamus to compel bbe levy of a tax to pay said judgments. Among other defenses interposed, it was insisted in behalf of the city that it had no authority to levy such tax. Held : That the power to issue bonds carried with it by necessary implication authority .to levy a tax to pay said bonds and the interest accruing rthereon and that the manner of levying the tax was fixed by the general law. (Post, pp. 317-330.)
109 Tenn. 331Chattanooga Light & Power Co. v. Hodges (1902)
1. NEGLIGENCE. Proximate cause — “Concurrence of these essentials.” To warrant a recovery in an action for personal injuries sustained through the alleged negligence of defendant, the plaintiff must show not only that the defendant was guilty of negligence, hut that such negligence was the proximate cause of the injuries complained of. (Post, p. 335.) St. PROXIMATE CAUSE. What is — Determined hy the special facts of each case. The determination of the proximate cause of a specific injury, and whether such injury is the natural consequences of the wrongful act complained of, must at last be left to a sound judgment upon the special facts of each case >and often upon the nicest discrimination. (Post, pp. 337-338.) Cases cited and approved: Harrison v. Berkley, 1 Strob., 547 (47 Am. Dec., 578); Insurance Co. v. Tweed, 7 Wall, 49. 3. SAME. Same. General definition approved. The proximate cause of an injury may, in general, be stated to he that act or omission which immediately causes or fails to prevent an injury; an act or omission occurring, or concurring with another, which had it not happened, the injury would not have been inflicted. (Post, p. 338.) Cases cited: Deming v. Cotton Press Co., 90 Tenn., 353; Telegraph Co. v. Zopfi, 93 Tenn., 369; Railroad v. Kelly, 91 Tenn., 699; Anderson v. Miller, 96 Tenn., 35. 4. SAME. Wrongdoer liable for consequential injuries, when. It is well settled that a wrongdoer is liable not only for the proximate results of his acts, but for such consequential injuries as, according .to the common experience, naturally result from the wrongful act in the usual .and ordinary course of events. (Post, pp. 338-339.) Cases cited: Wiley v. Railroad Co., 44 N. X, 248; Railroad v. Kellogg, 94 U. S., 469. 5. SAME. Intervening; act of party injured — Proximate cause, when. Although the doer of the act complained of has been guilty of negligence, yet he will not he held liable if the injury results, not as the natural consequence of the original negligent act, but from an intervening act of the party injured, such as no reasonable man. would expect to occur, and so obviously fraught with peril as to deter a man of reasonable intelligence; in such case the intervening act will be treated as the proximate cause. (Post, pp. 339-341.) Cases cited: Sharp v. Powell, L. R., 7 C. P., 253; State v. Railway Co., 65 Tex., 274; Pike v. Railway Co. (C. C.), 39 Fed. Rep., 255. 6. SAME. Proximate or intervening cause — Question for court when facts undisputed. While ordinarily it is'for the jury to determine the proximate cause of an injury, yet where the facts are incontrovertible, the question of proximate or .intervening cause is for the court. (Post, p. 341.) Cases cited: Holman v. Security Co. (Colo. App.), 45 Pac. Rep., 519; Stone v. Railroad Co. (Mass.), 51 N. E., 1 (41 L. R. A., 794); Bradley v. Railway Co., 94 Mich., 35; Butcher v. Hyde, 152 N. Y., 142. 7. SAME. Injury to employee running into burning building. Case in judgment. Plaintiff’s intestate was employed by defendant as an engineer in its power house which, through the negligent condition and arrangement of its electric wires in connection with highly combustible lumber, was caused or allowed to take fire. Although there was a, telephone in the building, intestate, instead of sending in an alarm'over it, ran to a house across the street and sought to use a telephone located therein; failing in this, he returned, ran into the main entrance of the building from which flames and smoke were then issuing and went down the burning hallway into the telephone booth, or box, when it was on Are; remaining there but a short time, he came ouit with his clothing aflame and so horribly burned that from the injuries thus received he died. Held: That, although there may have been such negligence on the part of defendant in the construction of the building as to cause it to take fire, yet the intervening act of plaintiff’s intestate in returning into the building was me proximate cause of his injury and barred a recovery for his death.
109 Tenn. 343Southern Ry. Co. v. Thompson (1902)
1. ACTION. In forma pauperis. Plaintiff removing from State loses benefit of. The right to prosecute an action in forma pauperis is confined to citizens or residents of this State and when one so suing removes from the State, pending suit, he will, upon proper motion, be required to execute a bond for costs, failing in which his suit will toe dismissed. (Post, pp. 341-345.) Act construed: Act of 1901, ch. 126. 2. COURT. Refusal by, to require bond — Harmless error, when. Where a resident plaintiff was prosecuting ran action in forma pauperis and removed from the State, pending suit the action of the court denying defendant’s motion to require a bond to toe given toy plaintiff was harmless error, when, upon the trial, defendant was defeated on the merits, thus becoming liable for all the costs. (Post, p., 345.)
109 Tenn. 346Heald v. Wallace (1902)
1. ABATEMENT. Death of one of several plaintiffs before judgment. Where pending an action in tort for the negligent hilling of a person, brought by several parties plaintiff, as the next of kin of decedent, one of the co-plaintiffs dies before judgment, the action as to him abates and can not be revived in the name of his administrator. {Post, pp. 350-351.) Cases cited: Loague v. Railroad, 91 Tenn., 458; Railroad v. Bean, 94 Tenn., 388. 2. SAME. No abatement, by death of one or more of several plaintiffs after judgment — Why. The death of one or more joint plaintiffs after judgment in an action in tort, and pending an appeal, does not work an abatement of the suit ,as to such decedents, because the judgment converts the tort into a debt, and the appeal does not vacate, only suspends, the judgment. {Post, p. 351.) Oases cited: Akers v. Akers, 16 Lea, 7; Kimbrough v. Mitchell, 1 Head, 540; Baker v. Dansbee, 7 Heisk., 231. 3. SAME. Death of one of several statutory beneficiaries does not work abatement as to the others. Upon the death of a person caused by the wrongful act or omission of another, the statutory beneficiary of the right of action therefor is that person or class of persons named in the statute as being entitled to the recovery at the death of the decedent. If that beneficiary be one person who dies, the action abates; but if the right of action accrues to a class of persons, .and there are several persons composing that class, the death of .one or more of them, either before or after suit brought, will not work an abatement .of the cause of action as to the others of the class surviving; and the survivors, if liability is established, are entitled to recover full damages, notwithstanding -the right of action of one or more members of itbe class has been extinguished by death. (Post, pp. 351-353.) Code construed: Sec. 4573 (S); 3564 (M. & V.), secs. 2851, 2852 (T. & S.). Case distinguished: Railroad Co. v. Bean, 94 Tenn., 388. 4. DEMURRER TO EVIDENCE. Objection to admissibility of evidence waived by — when. It is well settled that a demurrer to the evidence waives objections interposed to the admissibility of evidence by the party who files the demurrer. (Post, pp. 353-354.) Case cited: Railway Co. v. -Leinhart, 107 Tenn., 635. 5. SAME. Will not preclude consideration of plaintiff’s evidence improperly excluded. A defendant by demurring to the evidence can not deprive plaintiff of the right to malee available questions upon rulings of the trial court excluding competent evidence. (Post, pp. 354-355.). Case cited: Washburn v. Shelby County, 104 Ind., 321. 6. SAME. To avail plaintiff, evidence improperly excluded must be preserved by bill of exception. The demurrer to the evidence is a mere pleading and brings before the supreme court only the admitted evidence; therefore, to entitle plaintiff to have considered by the supreme court such portions of his evidence as were improperly excluded by the trial court, the same must be preserved and made part of the record 'by bill of exceptions, duly authenticated by the signature of the trial judge. (Post, pp. 355-356, 357.) Cases cited: Nance v. Chesney, 101 Tenn., 470; State v. Haw-Inns, 91 Tenn., 140; Garrett- v. Rogers, 1 Heislc, 321; Wynn v. Edwards, 7 Humph., 419. 7. SAME. Plaintiff can assign errors on appeal of defendant, when. The supreme court will review the action of .the trial court in excluding testimony of plaintiff, on appeal of defendant whose demurrer to the admitted evidence has been overruled, provided the excluded testimony is made a part of the record by bill .of exceptions; otherwise, great injustice might be done plaintiff. (Post, pp. 355,-356-357.) 8. MASTER AND SERVANT. Safe place to work — Mines. The general rule of law — the common law — making it the duty of the master to furnish the servant with a safe place to work is usually applied to a permanent place and does not apply to such places as are constantly shifting and are being transformed as the direct result of the servant’s labor, as a room or place to work in a mine. (Post, pp. 364-365.) Cases cited: Finalyson v. Mining Co., 14 C. C. A., 492, 67 Fed., 510; Railroad Company v. Jarvi, 53 Fed., 65; Mining Co. v. Clay’s Admr. (Ohio), 38 N. E., 610. 9. SAME. Same. Increased hazards assumed by servant— When. The duty of the master does not extend to keeping safe the place of the servant’s labor where the place is known to be dangerous, or wher-e the work which the servant is employed to do consists in making a dangerous place safe or in constantly changing the character of the place for safety by the lahor performed, as in an entry room of a mine; in such cases the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of the employment, assumed by the servant. (Post, pp. 365-368.) Cases cited: Fraser v. Lumber Co., 45 Minn., 235; McGinty v. Reservoir Co., 155 Mass., 183; Coal Co. v. Scheller, 42 Ill. App., 619; Armour v. Halin, lll'XJ. S., 313; Blazenic v. Coal Co. (Iowa), 72 N. W., 292; Minneapolis v. Lundin (C. C. A.), 58 Fed. Rep., 525; Railroad Co. v. J'ackson (C. C. A.), 65 Fed. Rep., 48; Railroad Co. v. Brown (C. C. A.), 73 Fed. Rep., 970. Case distinguished: Iron Co. v. Pace, 101 Tenn., 484. 10. SAME. Mining Act of 1881, Construction of. The act of 1881, ch. 170, providing for “the ventilation of coal mines and collieries, and for the protection of human life,” charges the mine owner with the duty of employing a competent and practical inside overseer to be called the “mining boss;” upon the mine boss so employed is imposed the duty of maintaining a careful watch over the ventilation and tim-bering, and to see, as the miners advance in their excavation, that all loose coal, rock or slate overhead is secured against falling, and all other matters connected with or pertaining to the safety of the men at work in the mine; and the miner having charge of the working place is charged with the duty of keeping the roof thereof properly propped and. timbered to prevent the falling of coal, slate or ro.ck. These duties are reciprocal and are obligations imposed upon the mine owner and miner alike — equally imperative and binding upon both, and the penalty for a violation thereof is denounced against all the parties named. (Post, pp. 368-370.) 11. SAME. Same. Question reserved. Can the custom of a mining .company or a rule for the government of its -employees, made and published oy the company, relieve the employer of the statutory duty imposed upon him? Decision reserved. (Post, pp. 370-372.) IS. CONTRIBUTORY NEGLIGENCE. Bars action when. Case in judgment. Plaintiff’s decedent, a miner of many years’ experience, was employed by defendant and while engaged in driving the neck of a work room he uncovered a large rock in the roof' of said room; he continued to work under this overhanging rock for parts of two days — from ten to fourteen work hours —further uncovering and undermining it with full knowledge of the danger, instead of suspending work and either placing proper timber supports thereunder or calling upon the mine boss to do so; when he had excavated and removed the last natural support of said rock, it fell upon and killed him. Action by next of kin for death. "Held: That deceased was guilty of gross contributory negligence which was the proximate cause of the accident producing his death, and that therefore the action could not be maintained. (Post, pp. 357-360, 372-374.)
109 Tenn. 375Jones v. Ducktown Sulphur, Copper & Iron Co. (1902)
1. APPEAL. Time of filing oath or bond for. . The party appealing must canse his appeal bond or oath in lieu thereof, to he filed within the time allowed hy law— otherwise it is a nullity; and so, when the oarn for appeal, though sworn to before the clerk within time, was not marked hy him as filed until after expiration of time limited for filing — said oath should be treated as a nullity. (Post, pp. 382-383.) Gases cited: Davis v. Wilson, 85 Tenn., 383-386; Andrews v. Page, 2 Heisk., >642. 2. SUPREME COURT. Practice — wh'en oath or bond not filed in court below. Where the oath for appeal is not filed within time, in court below, the supreme court will, upon proper motion, dismiss the appeal, unless appellant gives bond or -takes and files the oath in lieu thereof in this court; or he may file the record for error on the oath; and reasonable time will he allowed him to take either of these steps. (Post, pp. 382-383.) Cases ciited: Wilson v. Corry, 1 Lea, 391; Mowry v. Davenport, 6 Lea, 83; Adamson v. Hurt, 3 Tenn. Cas., 324; Campbell v. Boulton, 3 Bax., 354. 3. SAME. Same. Action at law — what errors corrected. An appeal from the circuit court in a case not of an equitable nature is an appeal in error — unlike a broad appeal in chancery — and -only errors -affecting appellant can he corrected on such appeal. (Post, p. 383.) Case cited in: Gallena v. -Sudheimer, 9 Heiskell, 189, 192. 4. JOINT TOUT FEASOBS. Declaration. Demurrer. When a demurrer is filed to a declaration in an action for damages against alleged joint itort feasors, the question of joint liability must be determined by the case stated in the declaration. (Past, pp. 383-386.) 5. SAME. Who are — Case in judgment. Plaintiffs brought their respective actions for damages against two mining companies, as defendants, who are described in the declaration as the “owners” of certain mines, and it is alleged that “they are engaged in the business of mining” and that “they have under their management and control divers mining pits . . . necessary to the conduct of their business . . . and “that the defendants are constantly . . . causing immense quantities of smoke, together with other poisonous vapors and gases to be discharged upon plaintiff’s lands,” thereby causing the injury complained of. Defendants demurred on the ground that they are improperly joined, in that no joint trespass is averred, and in their brief inform the court that they are separate corporations owning and operating separate and distinct plants, located a considerable distance apart. Held : 1st. For the facts upon which the actions are predicated, the count must be governed solely by the face of the declaration. 2d. That the fair and natural construction of the language used in the declaration is that defendants jointly owned -the mines, etc., and were jointly operating them and therefore the demurrer should be overruled. (Post, pp. 378-382, 383-386.) 6. SAME. Question reserved. Whether two tort feasors can be properly sued together, when their several acts complained of .are separate and distinct, not done by collusion, by confederation or as simultaneous acts of wrongdoing, or when they do not sustain to each other any contractual relation, but when their separate and independent acts merely concur in a general result, is a question reserved and not passed on by the court. (Post, pp. 385-386.) '7. HUSBAND AND WIFE. Action, for damages to rents of wife’s lands. A husband is entitled to the rents and profits of his wife’s lands owned by her in fee, and without joining her as plaintiff, may maintain an action for such injuries to said lands as impair their annual productive value or lessen the rents and profits thereof, accrued up to the date or the suit brought. (Post, pp. 886-389.) Construing: Acit of 1879, ch., 141; Code, sec. 4239 (S); 3343 (M. & V.). Cases cited: Guión v. Anderson, 8 Humph., 298; Corley v. Corley, 8 Bax., 7, 9; Abies v. Abies, 86 Tenn., 333; Brasfield v. Brasfield, 96 Tenn., 580; Jordan v. City of Benwood, 42 W. Va., 312; Dry Dock Co. v. Armstrong, (C. C.) 17 Fed. Rep., 216.
109 Tenn. 390Scott & Light v. State (1902)
FROM HAMILTON. Appeal in error from the Circuit Court of Hamilton County. Floyd Estill,, Judge.
109 Tenn. 398Neas v. Borches (1902)
CONSTITUTIONAL LAW. Police power. Class legislation. .This case involves the construction of the act .of the general assembly (Acts of 1901, ch. 133), providing that sales in bulk of stocks of merchandise .or any portion thereof, otherwise than in the ordinary course of business, shall be presumed to be fraudulent and void as against the creditors of the seller, unless the parties make a detailed inventory showing quantity and cost price to the seller of the goods sold,' at least five days before the sale, and unless the purchaser makes diligent inquiry as to the names of the creditors of the seller and gives them five days’ notice stating cost price and price to be paid. Held: 1st. Said act is a valid exercise of the police power of the State. 2d. That it is not void as arbitrary class legislation. 3d. That it does not take away the property of the citizen, blit only regulates sales of merchandise in such way as to prevent fraud.
109 Tenn. 407Railroad Co. v. Lindamood (1902)
FROM WASHINGTON. Appeal in error from Circuit Court of Washington County. C. J. St. John, Special Judge.
109 Tenn. 415Slatton v. Tennessee Coal, Iron & R. R. (1902)
1. ADVERSE POSSESSION. Outside of boundaries recited in a deed, is not under color of title and inoperative beyond actual possession. It is well settled that there can be no constructive adverse possession which is not based upon a claim under an assurance or color of title purporting to convey an estate in fee and a possession outside of the boundaries recited in a deed, is not under -such color of title, and, being limited in effect to the actual possession, can not be invoked by the possessor as constructive adverse possession of land within the deed. (Post, p. 423.) 2. SAME. Not perfected, under doctrine of relation, by • color of title subsequently acquired. Under our statutes, in order to perfect title by adverse possession, there must be a concurrence of adverse possession for the full period, of seven years and an -assurance or color of title purporting to convey a fee under which the possessor claims during the whole of said period, and a color of title subsequently acquired can not be invoked to perfect, by relation, the adverse possession. (Post pp. 423-424.) -8. PAROL SALE OE LAND. Is not void, merely voidable. Vendee in possession under, bolds for himself. It is now the law in this 'State that a parol sale of land is not void, but merely voidable; therefore, a vendee in possession of lands under a parol contract of sale holds for himself, and -not as a tenant at will whose possession inures to the benefit, and perfects the title, of his vendor holding an assurance or color of title purporting to convey the fee. (Post, pp. 424-425.) Cases cited and approved: Brakefield v. Anderson, 87 Tenn.,. 211; King v. Coleman,'98 Tenn., 571; EUlege v. Cooke, 5 Lea, 627; Sullivan v. Ivey, 2 Sneed, 487; Redmond v. Bowles,. 5 Sneed, 551; Beard v. Bricker, 2 Swan, 50; James v. Patterson’s Lessee, 1 Swan, 309; Fain v. Headerick, 4 Cold., 334. Cases distinguished: Valentine v. Cooley, Meigs, 613; Napier’s Lessee v. Simpson, 1 Tenn.,'452; Winnard v. Roh-hins, 3 Humph., 614. 4. CHAMPERTY. Extends only to actual possession where' possessor has no color of title. A deed to lands, a part of which is in the adverse possession of another, but not under color of title, is champertous-only to the extent of land in actual possession. (Post, pp.. 425-426.
109 Tenn. 427Earnest v. Little River Land & Lumber Co. (1902)
1. LANl» LAW. GRANT BY STATE. Conveys to first grantee the absolute title in fee, leaving nothing to be thereafter disposed of. Primarily the title to land is vested absolutely and indefeasibly in the State and this title, where the land is granted hy the State pursuant to statutes authorizing grants, passes to the first grantee, leaving nothing to be thereafter disposed of — nothing upon which a subsequent grant can operate. (Post, p. 432.) Cases cited and approved: Crutsinger v. Catron, 10 Humph., 27; Coal Co. v. Wiggins (C. C. A.), 68 Fed. Rep., 449. 2. SAME. SAME. Same. First grant conclusive upon State and junior grantees. The first grant by the State, like the first patent hy the United States of part of the public domain, carries the fee and is conclusive not only against the State, but all claiming under junior grants, unless it is void on its face, and junior grantees take nothing by their grants. (Post, pp. 431-433.) Cases cited and approved: Bagnell v. Broderick, 13 Peters, 450; Hooper v. Scheimer, 23 How., 235; Johnson v. Towsley, 13 Wall., 72; Gibson v. Chouteau, 13 Wall., 92. 3. SAME. Adverse possession, under color of title, for seven years vests possessor with absolute title in fee. Where the State, by grant, has divested herself of title to certain lands and a person has held adverse possession thereof for a period of seven years under an assurance of title purporting to convey a fee, the statute (Acts 1819, ch. 28, sec. 1) takes away the title of the real owner, and transfers it, not in form, hut in legal effect to the adverse possessor and thus vests him with an absolute estate in fee simple. (Post, pp. 432-439.) Code construed: :Ses. 4456 (S); 3459 (M. & V.); 2763 (T. & S. and 1858). Cases cited and approved: Wallace v. Hannum, 1 Humph., 449; Waterhouse v. Martin, Peck, 393; Norris r. Ellis, 7 Humph., 464; Belote v. White, 2 Head, 712. Case,overruled: Coal Creek Co. v. East Tenn. Co., 105 Tenn., 563. 4. SAME. Same. Case in judgment. Where the State made three successive grants of the same lands, and after those claiming under the grantee in the third grant had been in adverse possession for seven years, the grantees in the second grant, the complainants herein, brought suit claiming that such adverse possession had, by extinguishing the title given by the first grant, vitalized or infused title into their intermediate grant, by virtue of which they have both the right of property and the right to the possession of their lands as against the defendants. Held: That by virtue of the operation of the first section of . the act of 1819) the effect of the adverse holding by defendants was to draw to, and vest in them, the absolute and indefeasible title which the first grantees received from the State under their grant. (Post, pp. 429-439.)
109 Tenn. 451Troughber v. Akin (1902)
FROM ROBERTSON. Application for supersedeas to restrain execution of an order of Chancery Court of Robertson County appointing a receiver to take charge of and rent out the lands in controversy.
109 Tenn. 480Matthews v. Capshaw (1902)
FROM PUTNAM. Appeal from the Chancery Court of Putnam County. T. J. Fisher,, Chancellor.
109 Tenn. 495Marshall & Bruce Co. v. City of Nashville (1902)
FROM DAVIDSON. Appeal from the Chancery Court of Davidson County. H. H. Cook, Chancellor.
109 Tenn. 517Crockett v. McLanahan (1902)
1. ELECTIONS. Bill attacking result of, on account of illegal votes — names of voters pertinent to issue. In a bill filed to enjoin an issue of municipal bonds claimed to have been voted in aid of a railroad, .and challenging the election on the ground that the bonds or municipal aid subscription had-not been carried by a three-fourths majority of the legal voters, as required by. statute, it is necessary to set out specifically the names of the illegal or disqualified voters in order that an issue in respect of their qualification may •be made. (Post, p. 524.) Cases cited: Moore v. Sharp, 98 Tenn., 493; Blackburn v. Vick, 2 Heisk., 383. 2. LIBEL. Pleadings privileged -when — Pertinency the test. In an action for libel based on alleged defamatory matter contained in pleadings, the cardinal inquiry is whether such matter is pertinent to the issue involved; if it is. or fairly supposed to be so, the pleading is absolutely privileged. (Post, pp. 522-526.) Cases cited: Lea v. White, 4 Sneed, 111; Shadden v. McEl-wee, 86 Tenn., 152; Jones v. Brownlee (Mo.), 61 S. W. Rep., 795; 53 L. R. A., 448. 8. SAME. Same. Pertinency of, to he determined by court. In an action for libel, it is a question for the court to determine whether the alleged libelous matter in a pleading is 'pertinent to the issue in that suit: and by pertinency of matter to the issue is meant probable cause. (Post, pp. 524, 526.) Note. — As to privilege of defamatory words in pleading, see note to Randall v. Hamilton (La.), .22 L. R. A., 649. 4. SAME. DECLARATION. "What averments therein not admitted by demurrer. It is well settled that a demurrer to a declaration does not admit inferences from the facts or conclusions of law averred therein. (Post, pp. 525, 526.) Oases cited: Park v. Kelly Axe Co., 49 Fed. Rep., 618; Kent v. Lake, etc., Co., 144 U. S., 75; Hopper v. Covington, 118 U. .S., 148; Greef v. Society (N. Y.), 64 N. E., 714, 46 L. R. A., 288, 73 Am. St. Rep., 659. 5. SAME. Same. Same. Neither are the averments in a declaration as to the meaning and construction of a writing or record upon which the action is based admitted by a demurrer. (Post, p. 525.) Cases cited: National Park Bank v. Halle, 30 Ill. App., 17; L. & N. R. R. Co. v. Palmes, 109 U. S., 244. 6. SAME. Pleadings absolutely privileged — No action whatsoever thereon. The immunity which the law confers upon the pleader of matters absolutely privileged, e. g., matter pertinent to the issues involved, is a shield of defense against not only a party to the record, hut a stranger thereto. (Post, pp. 521-526.) Cases cited and approved: Cooley v. Galyon, 109 Tenn., 1; Henderson v. Broomhead, 4 Hurl. & N. (Eng. Exch.), 569. Case overruled on this point: Ruohs v. Backer, 6 Heisk., 395; 19 Am. Rep., 598. 7. SAME. Application of principles to case in judgment. Defendant herein filed a hill in equity to enjoin the issuance of bonds of the city of Nashville in aid of the Nashville & Clarksville Railroad Company, authorized to he issued by an apparent three-fourths majority of the voters of said city at an election held for that purpose; one of the grounds upon which said bill was predicated was that the bonds, or municipal subscription, has not received the necessary three-fourths majority of legal votes, and, .in support of this contention, it was averred that plaintiff herein (and a large number of others) had illegally voted in said election; .whereupon plaintiff herein brought this action for libel, alleging in his declaration, in substance, that defendant had charged him with being guilty of a misdemeanor and a violation of the criminal laws of the State and that said charge was made “falsely, recklessly, wantonly . . . and without probable cause, and not under such circumstances as created a belief in the mind of defendant, herein, that it w,as true.” The defense, interposed by demurrer, was that the alleged libelous matter was absolutely privileged. The circuit judge sustained the demurrer and plaintiff appealed. Held: 1st. That the demurrer to the declaration did not admit the allegation that the charge complained of was made without probable cause, that being a question of law. 2d. That the question .of the legality of plaintiffs vote was pertinent to the issues in the bond suit and the allegations of the bill in respect thereto were absolutely privileged and no action could be based thereon by plaintiff though a stranger to that suit.
109 Tenn. 535Nichols v. Guthrie (1902)
1. WILLS. Construction of. Devise over. Class doctrine. A devise of lands to the testator’s granddaughter for her natural life and at her death to be equally divided among her children then living, or the descendants of such children, comes within the class doctrine and only those children, or the descendants of children, living at .the death of the life tenant would fake the remainder estate. (Post, pp. 537, 538.) Cases cited and approved: Satterfield ¶. Mayes, 11 Humph., 58; Womack®. Smith, 11 Humph., 483; Beas-ley v. Jenkins, 2 Head, 192; Connell v. McKenna, 2 Tenn. Cas., 190. 2. REMAINDER. Devised to class, does not vest in individuals composing class. Where a testator devises land to his granddaughter for life and at her death to be equally divided among her children then living, or the descendants of such children^ the remainder estate vests in the remaindermen, as a class, during the continuance of the estate for life, and does not vest in the individuals members of the class until the termination of the particular estate by the death of the life tenant. (Post, pp. 537, 538, 539.) Case cited .and approved: Satterfield v. Mayes, 11 Humph., 58. 8. CONTINGENT REMAINDER. Not subject to execution,, when. Where, under a will devising lands for life with remainder over, the interest of the remainderman is contingent on his being alive at the death of the life tenant, such contingent remainder interest, not being the subject of conveyance at common law, is not subject to execution and sale thereunder by a judgment creditor of the remainderman during the continuance of the life estate. (Post, pp. 537, 539-542.) 4. SAME. Whether subject to execution. Semble. “The weight of authority seems to be that a legal contingent remainder is not subject to execution.” (Post, p. 541.) Cases cited: Henderson v. Hill, 9 Lea, 34; Watson v. Dodd, 68 N. C., 528. 5. SAME. Not rendered leviable by statute, when. Where, under a will, there is a devise of lands for life with remainder over to such members of a class as may be' alive at the death of the life tenant, the statute, providing that the words “real estate,” “real property” and “lands,” include lands, tenements and hereditaments, and all rights thereto and interests therein, does not make the interest of such ra-maindermen expectant on the death of the life tenant subject to execution, because such remainderman has no interest, legal or equitable, in the land devised until the termination of the life estate. (Post, pp. 537, 542.) Code cited: Sec. 63 (S); 49 (M. & V.); 51 (T. & S. and 1858.) 6. SAME. Conveyance of, by estoppel. A vendee, to whom has been conveyed the contingent remainder interest of a member of a class, in which is vested a remainder expectant upon the death of the life tenant, takes title against his vendor by estoppel, on the death of the life tenant. (Post, pp. 537, 542-543.)
109 Tenn. 544State v. Dalton (1902)
1. PARDONING POWER, Vested solely in the governor. The power to grant reprieves and pardons is hy the constitution vested solely in the governor, and the general assembly can not, directly or indirectly, take it from his control, and vest it in others, or authorize or require it to he exercised hy any other official or authority. (Post; p. 547.) Constitution construed: Art. 3, sec. 6. 2. SAME. Not vested in workhouse commission or hoard of pardons. The power to pardon being vested exclusively in the governor of the State, any attempt by the legislature to vest this power in any official, board or commission to any extent, or in any form, advisory or otherwise, or to regulate its exercise, is in violation of the constitution and an absolute nullity. (Post, pp. 547-548.) Act cited and construed: Act of 1891, ch. 123, sec. 18. Code cited and construed: Sec. 7423 (S). 3. COURTS. Power of, over record during term. It is well settled that so long as the court remains in session, the record is, by a fiction of the law, in the breast of the judge, and all orders and judgments entered at that term may he vacated or modified at any time during the term. (Post, p. 548.) 4. SAME. Power of, over final judgment ends with close of term. But after the adjournment of the term, the court no longer has power over its final judgments, and any order or judgment made at a subsequent term affecting a final judgment unquestioned hy proceedings in error (except in certain statutory cases for the correction of clerical misprisions) is coram, non judice and void. (Post, pp. 547-549.) Code construed: 7226 (S); 6092 (M. & V.); 5251 (T. & S. and 1858.) Cases cited: Van Bibher v. Sawyers, 10 Humph., 81; Bank v. Fowlkes, 4 Sneed, 462; Johnson v. Tomlinson, 13 Lea, 604; Anderson v. Thompson, 7 Lea, 259. 5. PARDONING- POWER. Invasion of. Case in judgment. Defendant was indicted and arraigned at the May .term of the circuit court, upon a .charge of petit larceny. He entered a plea of guilty, the jury fixed Ms punishment at confinement in the county workhouse for eleven months and proper judgment was pronounced. At the succeeding September ternl of the court, an order was entered relieving defendant from the judgment for costs and remitting the remainder of the imprisonment during good behavior. The State appealed. Held: The order remitting imprisonment and relieving defendant from cost as adjudged at a former term was a nullity, because an invasion of the pardoning power vested solely in the governor by the constitution, and an attempt to vacate a final judgment rendered at a former term of court. (Post, pp. 546-549.)
109 Tenn. 550Jones v. Nashville (1902)
1. MUNICIPAL CORPORATIONS. No arbitrary rule for testing reasonableness or unreasonableness of ordinances. There is no arbitrary rule by which the reasonableness or unreasonableness of municipal ordinances can be tried and tested, but much depends upon the surrounding circumstances, and the nature, purpose, and operation of the ordinance in question. (Post, p. 557.) 2. PUBLIC SERVICE CORPORATIONS. By-laws of. Same rule applied. The same rule for testing the reasonableness or unreasonableness of municipal ordinances regulating the public service in furnishing water, etc., may be applied to the by-laws of public service corporations for the regulations of their business relations with the public, for such by-laws and ordinances of municipalities are much alike, and largely subject to the same limitations and rules of construction. (Post pp. 557-558.) ’ 3. MUNICIPAL ORDINANCES. General requisites of. Ordinances must be consonant with .the constitution and statutes of the United States and of the State, and with the general principles of .the common law; they must be authorized by the charter of the corporation or the general laws applying thereto, and consistent with the objects and purposes of its creation; they must be general and applicable alike to all persons and property affected by them, and certain in their application and operation, and their execution not left to the caprice of those whose duty it is to en-* force them; they must be just; they should be adapted to the locality and affairs which it is intended they shall control and affect; they must not be harsh and oppressive; they must not discriminate in favor of or against any class of persons or property, hut must he general in their nature and impartial in their operation and effect. (Post, p. 558.) Case cited and approved: Long v. Taxing District, T Lea, 137. 4. SAME. Same. Such, ordinances are reasonable and valid. Ordinances free from the objectionable features enumerated, and containing those stated to be necessary, in the last headnote, may, as a general rule, be said to be reasonable •and valid. (Post, p. 558.) . 5. SAME. Prohibiting supply of water until past due indebtedness therefor is paid, are valid. Case in judgment. An ordinance declaring it unlawful to furnish water to those indebted for water until said indebtedness is discharged, and prohibiting the city officials and employees from providing water to such consumers until all their indebtedness for water previously supplied shall have been discharged, is .in conformity with the general rule and principles, and, therefore valid. (Post, pp. 555-568.) Cases cited and approved: Watauga Water Co. v. Wolfe, 99 Tenn., 43-2; Wood v. City of Auburn (Me.), 32 Atl., 903; 29 L. R. A., 376; Tacoma Hotel Co. v. Tacoma Water Co., 3 Wash., 316; Williams v. Gas Co. (Mich.), 18 N. W., 236; Shiras v. Ewing, 48 Kan., 170; People v. Manhattan Gas Light Co., 45 Barb., 136. Cases distinguished: Crumley v. Watauga Co., 99 Tenn., 420; Merrimae River Savings Bank v. Lowell, 26 N. E., 97; 10 L. R. A., 122; Am. Water Works Co. v. Nebraska, 64 N. W., 711. 6. WATER COMPANIES. Have power to adopt and enforce reasonable rules denying water to those refusing to comply therewith. A water company which is under legal obligation to furnish water to all inhabitants of a city, at designated rates, and without discrimination, may adopt reasonable rules for the conduct of its business and the operation of its plant, and such rules, as far as they affect its patrons, are binding on them and may be enforced even to the extent of denying water to those who refuse .to comply therewith. (Post, p. 561.) Case cited and approved: Watauga Water Company v. Wolfe, 99 Tenn., 432. 7. SAME. Same. But cannot refuse water for past indebtedness therefor, where credit has been extended, and the right waived by furnishing water in the meantime; otherwise, where credit has not been extended, nor right waived. But an incorporated water company obligated by law and express contract to furnish water to a city and its inhabitants can not .arbitrarily refuse to furnish water to an applicant tendering the price as required by its rules, until he should pay an old debt .whiet he owed the company for piping and water and for which the company had extended him credit by taking his duebill therefor, and had in the meantime, furnished him water; and such company so refusing to furnish water to such applicant is liable to him for his damages incurred by such refusal; but this is not the case where the indebtedness is current and credit has not been extended by a city furnishing water to its inhabitants under an ordinance prohibiting .the furnishing of water to those indebted for water previously furnished until the indebtedness therefor shall have been discharged. (Post, p. 562-568.) Case cited, distinguished and approved: Crumley v. Watauga Water Co., 99 Tenn., 420.
109 Tenn. 569Town of McMinnville v. Stroud (1902)
1. MUNICIPAL COUP ORATIONS. Can. not maintain an action for violation of criminal statute. A municipal corporation is without power to maintain a civil action based upon a violation of one of the criminal statutes of the State. Crimes under these statutes must be punished by presentment or indictment, as provided by law. Case cited and .approved: State v. Haynes, 104 Tenn., 406. 2. ARREST OP JUDGMENT. Por failure to show cause of action in warrant, notwithstanding default. A warrant in a civil suit by a municipality for an alleged violation of a criminal statute, and neither showing the existence nor charging the violation of a municipal ordinance, fails to state a cause of action, and a default thereon does not furnish any foundation for a judgment; in such case a motion in arrest of judgment should be sustained.
109 Tenn. 572Davidson Benedict Co. v. Severson (1902)
1. MEASURE OE DAMAGES. Eor wrongful injuries resulting in death. General rule stated. Under statutes (Shannon’s ode, secs. 4025-4028), . providing that the right of action for personal injuries caused by-negligence, resulting in death, shall not thereby abate or be extinguished, but shall survive for the benefit of the widow and children or next of kin of decedent, and providing the manner and by whom suit therefor may be prosecuted, and under a subsequent statute (Shannon’s Code, sec. 4029) providing that in the cases mentioned above, the party suing shall, if entitled to damages., have the right to recover for mental and physical suffering, loss of time and expenses, resulting to the deceased from the personal injuries,- and also the damages resulting to the parties for whose use the right of action survives, the damages recoverable consist of two classes: First, damages purely for the injury to the deceased himself; Second, the incidental damages suffered by the widow, children, or next of kin, from the death; And both are recoverable in one and the same action. (Post, pp. 576-639 generally, but especially 578-580, 594-595, 614-617, 632.) See acts and cases cited under last headnote. 2. SAME. Same. What damages are embraced in first class. In the first class are embraced damages for the mental and physical suffering, loss of time and necessary expenses resulting to the deceased from the personal injuries. (Post, pp. 614, 620.) 3. SAME. Same. What damages are embraced in the second class, and how determined. In the second class is embraced the pecuniary value of the life of the deceased: Railroad v. Wyrick, 99 Tenn., BOO; Collins v. Railroad, 9 Heisk., 851; Railroad v. Stevens, 9 Heisk., 12. To be determined— (a) Upon a consideration of kis expectancy of life, Ms age, condition of health and strength. Railroad v. Spence, 93 Tenn., 173; Railroad v. Stacker, 86 Tenn., 343. (b) Capacity for labor, and for earning money through skill in any art, trade, profession, occupation or business. Railway Co. v. Howard, 90 Tenn., 144; Bridge Co. v. Barnes, 98 Tenn., 401; Railway v. White, B Lea, 540. (c) And his personal habits as to sobriety and industry Railroad v. Prince, 2 Heisk., 580. All modified, however, By the' fact that the expectancy of life is at most only a probability, based upon experience, and also by the fact that the earnings of the same individual are not always uniform. Railroad Co. v. Spence, 93 Tenn., 173. (Post, pp. 614-61B, 620.) 4. SAME. Same. Same. But one cause of action. There is but one cause of action embracing the first and second classes of damage. While in some of the oases (notably, Collins v. Railroad, 9 Heisk., 8B1), it is said that damages belonging to the second class are to be estimated as if the deceased were himself still alive, but totally disabled, and in that condition suing for the injury, yet, for practical purposes, it is unnecessary that this supposition be called to the attention of the jury, or considered by them; for it is sufficient that the pecuniary value of the life destroyed may be ascertained, as far as such a matter can be ascertained at all, in the manner and according to the rules already laid down. (Post, pp. 616-617, 633-634.) 5. SAME. Same. Existence of beneficiary to be shown but not to enhance damages. It is proper to prove the existence of children or next of kin of the deceased, not for the purpose of enhancing the damages, but only to show the existence of beneficiaries provided for in the statute. (Post, p. 617.) Oases cited and approved: Collins v. Railroad, 9 Heisk., 841; Railroad v. Davis, 104 Tenn., 442; Freeman v. Railroad, 107 Tenn., 340; Daniel v. Coal Co., 105 Tenn., .470. 6. SAME. Same. Not necessary to prove widow or next of kin dependent on deceased. There need be no testimony introduced for the purpose of showing that the widow, children, or next of lcin, were dependent for support or pecuniary aid upon .the deceased in his lifetime; it is sufficient, so far as this phase of the matter goes, to prove the status of widow, child, or next of kin, as such. {Post, p. 623.) 7. SAME. Same. Nothing can be allowed as “solatium,” or for mental anguish, to the widow or next of kin. Under these statutes there can be no allowance as damages to the beneficiaries of the cause of action for their grief or mental anguish occasioned by the death of the deceased or as a “solatium,;” that is, for the loss of moral aid, comfort, counsel and companionship of the deceased. {Post, pp. 630-631, 633.) Cases cited: Railroad v. Prince, 2 Heisk., 580; Railroad v. Stevens, 9 Heisk., 12-18; Railroad v. Wyrick, 99 Tenn., 500. 8. SAME. Same. Double damages in second class not allowable. Case in judgment. Instructions to the jury in an action for the wrongful death of decedent, that the measure of damages is such as the deceased himself could have recovered had he been permanently disabled for life and were himself prosecuting the suit, and in addition thereto also such pecuniary damages as have been sustained by the widow and child (the only beneficiaries of the recovery sought in the case) consequent upon the decedent’s .death, are erroneous, in 'that, these two clauses virtually cover the same damages, and the last clause allowing pecuniary damages . . . sustained by the widow, etc., the jury are, in effect, directed to duplicate the damages which had already been provided for in the direction that they were to assess such damages as the deceased himself could have recovered had he been permanently disabled for life, and he himself were prosecuting the suit. There is no warrant for the allowance of duplicate damages either in the statutes or the decisions of the supreme court. {Post, pp. 676-639 generally, but especially 634-639.) Acts cited and construed: Acts of 1871, ch. 78; Acts of 1883, ch. 186. Code cited .and construed: Secs. 4025-4029 (S); 3130-3134 (M. 6 V.); 2291-2293 '(T. & S.' and 1858). Cases cited and reviewed: Railroad v. Burke, 6 Cold., 45; Railroad v. Prince, 2 Heisk., 580; Railroad v. Stevens, 9 Heisk., 12; Railroad v. Mitchell, 11 Heisk., 400; Collins v. Railroad, 9 Heisk., 841; Sample v. Smith, 1 Tenn. Cases, 284; Fowlkes v. Railroad, 9 Heisk., 829; Haley v. Railroad, 7 Baxt., 239; Trafford v. Express Co., 8 Lea, 96; Railroad v. Smith, 9 Lea, 470; Railroad v. Smith, 9 Lea, 685; Railroad v. Pounds, 11 Lea, 127; Railroad v. Top.pins, 10 Lea, 58; Railroad ®. Conley, 10 Lea, 531; Railroad v. Gurley, 12 Lea, 46; Railroad v. Go.wer, 85 Tenn., 465; Railroad v. Stacker, 86 Tenn., 343; Railroad v. Howard, 90 Tenn., 144; Loague v. Railroad, 91 Tenn., 458; Railroad v. Spence, 93 Tenn., 188; Bamberger v. Railroad, 95 Tenn., 13; Andrews v. Railroad, (Nashville Dec. Term, 1893); Holstont’. Coal & Iron Company, 95 Tenn., 521; Railroad v. Johnson, 97 Tenn., 667; Railroad v. Wyrick, 99 Tenn., 500; Whaley v. Cottell, 103 Tenn., 347; Railroad v. Davis, 104 Tenn., 442; Daniel v. Coal Co., 105 Tenn., 470; Freeman v. Railroad, 107 Tenn., 340; Railroad v. Bean. 94 Tenn., 388; Railroad v. Bentz, 108 Tenn., 670; Bridge Co. v. Barnes, 98 Tenn., 401; Railroad v. White, 5 Lea, 540; Railroad v. Wallace, 90 Tenn., 54; Railroad v. Fleming, 14 Lea, 137; Railroad v. Guinan, 11 Lea, 98; Spiro v. Felton (C. C.), 73 Fed. Rep., 91; Railroad v. Butler, 57 Pa., 335.
109 Tenn. 640Tennessee Central Railroad v. Campbell (1902)
1. CERTIORARI. WRIT OR. Imbedded in the common law. The writ of certiorari does not owe its existence to constitutional provision or statutory enactment. It originated in and came to us with the common law, and it is one of .the most efficient remedies provided by that admirable system of jurisprudence whose boast is that there is no wrong without a remedy. (Post, p. 645.) 2. SAME. SUPREME COURT. Has inherent power to grant. The supreme court of this .State with supervisory jurisdiction over the proceedings and judgments of inferior tribunals, has- inherent power to grant the writ of certiorari whenever necessary to enforce its jurisdiction. (Post, p. -.) 3. SAME. Same. Hot restricted by constitution. The right of the supreme court to grant certiorari, in proper cases, is not restricted by the constitutional provision that judges of inferior courts of law and equity shall have power to issue such writs in civil cases to remove them from, any inferior jurisdiction into a court of law. (Post, pp. 645-646.) 4. SAME. SAME. Has also full statutory power to grant. In addition to its inherent power the supreme court has also full statutory authority to issue the writ of certiorari, whenever authorized by law, and in all cases where an inferior tribunal exercising judicial functions has exceeded its jurisdiction or is acting illegally, when, in the judgment of the court, there is no other plain, speedy or adequate remedy at law, and whenever such writ is necessary for the exercise and enforcement of the jurisdiction of the supreme court. (Post, pp. 646-647.) Code cited amd construed: Secs. 4834, 4853, 6329, 6336 (S); 3106, 3123, 3124, 4496, 4503 (1858). 5. SAME. Is a distinct and substantive mode of review by the supreme court. Certiorari, like “appeal,” “appeal in the nature of a writ of error,” and “writ of error” is a distinct and substantive mode of review by which the judgment of inferior tribunals may he reviewed and corrected by the supreme court, and, in proper cases, is as much a matter of common right as either of the others. And of its use for such purposes, the decisions of the supreme court furnish numerous precedents. (Post, p. 647.) Cases cited: Durham v. United States, 4 Hayw., 69; Kearney v. Jackson, 1 Yerg., 294; Railroad v. Bate, 12 Lea, 573; Warner v. State, 13 Lea, 52; J'ohnson v. Harris, 16 Lea, 136; State v. Taxing District, 16 Lea, 245; Brizendine v. State, 103 Tenn., 677. 6. SAME. No general rule for its use, but peculiarly applicable to statutory proceedings in derogation of the common law. The cases in which it will lie can not be defined. To do so would destroy its comprehensiveness and its usefulness. But it is peculiarly applicable to a statutory proceeding, such as condemnation proceedings, wherein judgments may be pronounced against a defendant and executed, by an appropriation of his land, before final disposition of the entire case is made, and from which no appeal or writ of error will lie. (Post, p. 648.) 7. SAME. Will issue to review final judgments in condemnation proceedings. Supersedeas. Certiorari will issue to bring before the supreme court for review judgments in condemnation proceedings appropriating the lands of citizens for public purposes, where the right to do so is for any reason denied, but such judgments must he final in their nature; and, where merits .are shown, a supersedeas will issue to prevent the actual appropriation of the property until the right to condemn is determined. (Post, p. 649.) 8. FINAL JUDGMENT. In proceedings to cond mn land, what is. Proceedings to condemn land are dual in their nature and results. To the plaintiff is adjudged the land sought to be appropriated, ¡to the defendant the damages recoverable therefor. The judgment in favor of plaintiff definitely ascertains the exact part of the land condemned to his use, places him in possession thereof, and, notwithstanding the damages of defendant are yet to he ascertained and adjudged, is final for every purpose and entitles defendant to have the question of plaintiff’s power to exercise -the right of eminent domain tried and determined by the highest court of the State before he is deprived of either the possession or title to his property, and, in a case showing merits, to a supersedeas staying execution of such judgment until final determination in the supreme court. (Post, pp. 649-653.) Code construed: ¡Secs. 1844-1867 (S); 1325-1348 (1858). 9.¶ SAME. What is not. In a proceeding to condemn land for railroad purposes there is no final judgment reviewahle by certiorari until judgment is rendered for the -recovery of the land by plaintiff, and a determination by the trial court that plaintiff had the right to have the land condemned for such purposes is not such final and reviewable judgment. (Post, pp. 651-653.), Construing code: Idem. 10. CERTIORARI. Supreme Court. Case in judgment. Proceedings iby railroad company to condemn defendant’s land. Defendant denies plaintiff’s power to exercise the right of eminent domain. Upon the preliminary trial of this Issue, the circuit judge held that the plaintiff had the right to condemn for railroad purposes the lands described in its petition and appointed commissioners to set it apart and assess the damages accruing to defendant. The report of the commissioners has not been made, but they are proceeding to execute the order of the court. Defendant tendered a hill of exceptions and prayed an appeal "which was denied. Defendant filed a petition for certiorari to review the action of the circuit judge upholding plaintiff’s power of eminent domain. Held: 1st, That the supreme court has power to grant writs of certiorari to review final judgments in proceedings to condemn land. 2nd, That the application in this case, is premature, there being no final judgment for the recovery of. the land.
109 Tenn. 655Tennessee Central Railroad v. Campbell (1902)
1. CHARTER. Defective acknowledgement to amendment. Curative act. By the express provisions of the statute (acts of 1901, ch. 118) an amendment to a charter of a railroad company, originally defective because of acknowledgment before a notary public, is validated. Post, pp. 663-664.) Act cited: Acts of 1901, ch. 118. 2. SAME. RAILROAD. Location of line, not being definitely fixed in charter, discretion vested in company. Where a railroad company was authorized by its charter to build and operate a line of railroad between two designated points or termini, and no exact and definite line is fixed in the charter, discretion as to the location of .the line is vested in the company, provided there is not a substantial departure from the course and direction indicated by the charter. (Post, pp. 664-667.) Case cited: Railroad Co. v. Stoddard, 6 Minn., 150. 3. SAME. Same. Same. Case in judgment. Condemnation proceedings by the railroad company were opposed on the ground that it was attempting to build a belt line around the city of Nashville, for which it was without charter authority. By its charter the railroad company was authorized to build a line of railroad from the State line beyond Clarksville to the eastern terminus in Roane county by way of Nashville. The company insisted that it was not constructing, or proposing to construct, a belt line, but only a main line from N. to C. It appeared that while the route selected was not the most direct one between the two places and did encircle the city of Nashville to the extent of some ¡ten miles, it was virtually forced upon the company by economic considerations, growing out of the physical features and topography of the country, instead of other purposes and designs, such as a belt line to reach industrial enterprises and business centers. Held: The route proposed is not a belt line. (Post, pp. 661-667.) 4. RAILROAD. Line of, need not be located by directors of railroad company. Whatever may be the policy of other States the policy of this State, in respect to the location of the line of a railroad between the termini designated in its charter, is liberal and broad, and there being no statutory requirement that the line of a railroad be located by the directors, the fact that the proposed route .was not located by the company, or approved by the formal action of its directors, but only by the president upon the suggestion and under the advice of its general manager and engineers, can not be set up in condemnation proceedings as a defense impeaching the validity of the location. (Post, pp. 667-671.) Code cited and construed: See. 1542e, 1560, 2024 et seq., 2076, 2413, 2415, 1844-1867 (S). 5. CHARTER. Construction of — Question for Court. Whether a railroad company has under its charter the right to maintain condemnation proceedings and acquire thereunder a certain roüte for the location of its line of railroad, is a preliminary question involving the right to condemn, to be determined by .the court whose duty it is to construe the language of the charter. (Post, pp. 671-673.) Cases cited: McWhirter v. Cockrell, 2 Head., 10; Evans v. Shields, 3 Head, 70; Scudder v. Falls Co., 1 N. J. Eq., 694; Savannah v. Hancock, 91 Mo., 54; Railroad Co. v. Chicago, 166 U. S.. 234.
109 Tenn. 674Blackburn v. Blackburn (1902)
FROM GILES. Appeal from the Chancery Court of Giles County. A. J. Abernathy, Chancellor.
109 Tenn. 684Thomas v. State (1902)
1. NEW TRIAL. Examination of witnesses in open court, approved. The examination of witnesses in open court upon motions for new trial involving controverted questions of fact is approved and pronounced the better practice. (Post, p. 687.) 2. SAME. Findings of fact by trial judge, entitled to what weight. It is settled law that the findings of fact of the trial judge upon all questions of fact arising upon motions for a new trial should he given the same weight and effect as in cases tried by them on the merits or the verdict of a jury. (Post, p. 687.) Cases cited and approved: Mann v. State, 3 Head, 373; Collins v. State, 15 Lea, 68; King v. State, 91 Tenn., 617; Ellis v. State, 92 Tenn., 100. 3. SAME. Such findings will not be disturbed when supported by any material evidence. So, it is now well settled in criminal as well as civil cases, that upon motions for a new trial involving controverted questions of fact, such as the misconduct or disqualification of jurors, the findings of the trial judge will not be disturbed, when there is any material evidence to support them. (Post, p. 688.) Case cited and approved: Ryan v. State, 97 Tenn., 211. 4. JUROR. Incompetency of, must be seasonably shown to court — Otherwise fatal to motion for a new trial. Where, on a motion for a new trial based upon the alleged disqualification of certain of the jurors by reason of previously formed or expressed opinions adverse to defendant, there was no showing that the disqualification alleged was unknown to defendant or his counsel, when the jurors were sworn, or at any time before verdict, a new trial will not he granted. In such cases it is the duty of defendant to give information to the court of the alleged disqualification or misconduct as soon as known to him and his failure to show that he has done so is fatal to his motion for a new trial. (Post, pp. 688-689.)
109 Tenn. 690Shelton v. Campbell (1902)
X. INHERIT AN CE TAX. Maturity of, and interest on, are not postponed lay pending will contest, when. The collateral inheritance and succession tax becomes due and payable at the end of one year from the death of the decedent, from which time interest shall be charged at the rate of six per cent, per annum on such tax; and the fact that proceedings to test the yalidity of the will are pending can not postpone the maturity of th.e tax, where it appears that the tax will be payable, and at the same rate, whether the will is sustained or overthrown. (Post, pp. 693-697.) Acts cited and construed: Acts of 1893, ch. 174, secs. 3 and 4. Code cited and construed: Secs. 724, 756 (S). Z. SAME. Assessable only on “clear value” of the estate. Clear value defined — How ascertained. The collateral inheritance and succession tax is assessable only on the clear value of the estate, which is the net value after the payment of all debts and expenses of administration, or the execution of the will, including the expenses and attorney’s fees incurred 'by the executor in resisting' a contest of the will, for these fees and expenses must be treated as expenses of administration and deducted from the amount of the estate, in order to ascertain its clear value. (Post, p. 696.) 3. SAME. Amount to be approximated and paid subject to revision upon final settlement, when. In such case, it is the duty of the executor and clerk of the county court to make an estimate of such fees and expenses, and to allow tentatively for them, and thus app'roximate the amount of tax to be paid; and this amount should be paid subject to revision upon final statement and settlement oí accounts. {Post, p. 696.) Acts cited and construed: Acts of 1893, ch. 174, sec. 11. Code cited and construed: Sec. 736 (S). 4. SAME. Statute is a complete system of collateral inheritance taxation. The inheritance tax act (Acts 1893, ch. 174) was designed to furnish a complete system of taxation upon the subject of collateral inheritance taxes; that is, a system, in and of itself, to be executed according to the provisions of said act. {Post, p. 698.) Case cited and approved: Ziekler v. Union Bank and Trust Co., 104 Tenn., 281. 5. SAME. Jurisdiction of chancery court over, concurrent with county court, when. The suit of the county court clerk for the collection of collateral and inheritance succession taxes should be brought in the county court, upon which court the jurisdiction is conferred by statute, but such suit may be instituted and maintained in the chancery court, where there is no demurrer or plea to the jurisdiction, but such suit must be conducted and treated as though it had been brought in the county court. {Post, pp. 694, 697-698.) Acts cited and construed: Acts of 1893, ch. 174, secs. 14-15. Code cited and construed: Secs. 740, 743, 746 (S). •6. SAME. County court clerk to collect; may employ as attorney State revenue agent individually, but not officially. It is made the duty of the county court clerk to collect the collateral inheritance and succession tax and for this purpose, whenever necessary, he is authorized to employ an attorney to represent him in his suit in the county court, or in the chancery court where there is no objection to the jurisdiction, but not in the circuit court, nor in the supreme court. The State revenue agent in his official capacity can not represent the county court clerk, but in his individual capacity he may be employed, as attorney to represent said clerk as any other attorney might be employed, and be entitled to receive the same compensation. (Post, pp. 694, 697-700.) Act cited and construed: Acts of 1893, ch. 174, secs. 14, 15, 16, 20. Code cited and construed: Sees. 740, 741, 743, 748, 752 (S). 7. SAME. Attorney’s fee to be paid to clerk’s attorney by the delinquent; but not for services in the circuit or supreme court; State revenue agent as such attorney. The attorney employed by the county court clerk to represent him in his suit to collect the inheritance and succession tax is entitled to a reasonable fee for his services rendered in the county court, or in the chancery court where there is no objection to the jurisdiction, to be paid, in addition to the tax, by the party liable for the tax, but for his services in the circuit or supreme court said attorney shall have no fee; and where the State’s revenue agent is employed as such attorney, his fee is to be fixed and paid under the inheritance tax statute, and not under the statute creating his office and defining his duties. In this case a fee of five per cent, was allowed upon a collection of $4,000. (Post, pp. 694, 698-700.) Act cited and construed: Acts of 1893, ch. 174, secs. 14, 15, 16, 20. Code cited and construed: Secs. 743, 747, 748, 752 (S).
109 Tenn. 701Webb v. Fisher (1902)
FROM DEKALB. Appeal in error from Circuit Court of DeKalb County. Jos. C. Higgins, Judge.
109 Tenn. 711Omohundro v. Elkins (1902)
1. TENANTS IN COMMON. Entitled, as between themselves, to an accounting for rents, when. In a proceeding for partition, or sale of land for partition, cotenants wiho have .not .received their proper 'Share of rents are entitled to an accounting against one of their number who has received more .than 'his share, and the excess found to have been collected will he charged against the share of the tenant receiving same in the distribution of the fund or partition of .the proyerty. (Post, pp. 115-716.) Case cited: Tyner v. Fenner, 4 Lea, 469-473. 2. MORTGAGE. By tenant in common, prior to suit for partition, superior to claim of cotenant for rents. Where a mortgage is executed upon lands by a tenant in common, before suit for partition is instituted, the lien of the mortgage thereunder upon the interest of the mortgageor is superior to, an 'doverrddes the right of a cotenant to reimbursement for rents collected in excess of his share, such right being a mere equity that arises upon the filing of a bill for partition, making claim for reimbursement upon proper allegations in respect thereof. (Post, pp. 716-717.) Cases cited: Burns v. Dreyfus, 69 Miss., 211; Clark v. Hershy, 52 Ark., 473; Brittiman v. Jones, 56 Ark., 624; Burch v. Burch, 82 Ky., 622; Houston v. McCluney, 8 W. Va., 135; Welch v. Ketchum, 48 Minn., 241; Stover v. Cory, 53 Iowa, 108.
109 Tenn. 718L. & N. R. R. v. Voss (1902)
1. PRACTICE. CONTINUANCE. To defeat, offer to admit statements made on affidavit as testimony of absent witness, insufficient. Where an application based upon an affidavit showing sufficient ground, is made for a continuance on account of the absence of witnesses, an offer by the adversary party to allow the statements made in the affidavit to be read on the trial as the testimony of the absent witness is insufficient to defeat the right to a continuance. In such case, in order to defeat the continuance, there must be an admission of the truth of the matters which it is claimed could be proven by the absent witness. {Post, pp. 719-722.) Cases cited and approved: State v. Baker, 13 Lea, 330; Smith v. Creason’s Exr., 5 Dana, 298; Maughmer v. Bering, 46 S. W. R., 917; Murphy v. Murphy, 31 Mo., 322. 2. SAME. SAME. Erroneous refusal to grant, for absent witness, cured by proof of same facts by other witnesses. Where there has been an erroneous refusal to grant a continuance on account of absent witnesses, and during the trial the party seeking the continuance was able to procure other witnesses by whom he could and did prove the same facts to which it was claimed the absent witness would testify, such error is cured and rendered innocuous. (Post, pp. 722-723.) Cases cited and approved: Porter v. State, 3 Lea, 496; Wo-mack v. State, 6 Lea, 146; Rexford v. Pulley, 4 Baxt.,- 365-6.
109 Tenn. 724Alexander v. Morris (1902)
X. WRIT OR ERROR. May be prosecuted by guardian ad litem of person of unsound mind in forma pauperis, when. Except in actions for false imprisonment, malicious prosecution and slanderous words, a guardian ad litem of any idiot, lunatic or person of unsound mind, duly appointed by any court of this State, may prosecute a writ of error to correct a judgment against his ward, without giving bond and security for costs, by -taking and subscribing an oath that he has no property of his ward out of which to bear the expenses of such action and that he verily believes that his wiard is entitled to the redress sought. (Post, pp. 725-726.) Act construed: Acts of 1871, ch. 111. Code construed: Sec. 4929 (S); 3913 (M. & V.). 2. SAME. Is a mode or form by which suits are prosecuted. While the statute, in express terms, provides for only the commencement and prosecution of a suit upon the pauper oath, yet the provision, in legal contemplation, embraces all proceedings for the correction of errors, such as appeals or writs of error, these being modes by which suits are prosecuted. (Post, p. 726.)
109 Tenn. 727Terminal Co. v. Jacobs (1902)
1. NUISANCE. Roundhouse for storage of engines is not a nuisance per se. A roundhouse of large capacity for the storage and safe keeping of locomotive engines, erected near the dwelling of another, is not of itself ,a nuisance. (Post, pp. 733, 736.) 3. SAME. Landowner can not avoid liability by a lease to another, where the very existence of the thing let is a nuisance. Where -a landowner erects or creates a nuisance upon, his land, he can not rid himself of his liability arising therefrom by a lease of the property to another, for 'in such case the liability of .a landowner rests upon the ground that the very existence of the thing constitutes a nuisance, the responsibility for which can not be shifted by a mere letting or contracting with ¡another.* (Post, pp. 734-735, 736-737.) Cases cited and approved: Rosewell v. Prior, 2 Salk., 459; s. c., 12 Mod., 639; Swords v. Edgar, 59 N. Y., 29; Rex v. Pedley, 1 Ad. & El., 822; Marshall v. Cohen, 44 Ga., 489; Irvine v. Wood, 51 N. Y., 224; Chicago v. Robbins, 2 Black, 418. 3. SAME. Same. "Where the nuisance is created by an improper use of a proper structure, the lessee alone is liable, and not the landowner. Where the structure or work, whatever it may be, is not of itself a nuisance, and where the lease is general in its character, if the use of such structure or work does not of necessity make a nuisance, but after the lease it is used by the lessee so as to create one, the lessee alone is liable. If the landowner lets .to another premises, mot ,in themselves a nuisance, but which may or may not be used by the lessee so as to become a nuisance, and it is entirely at his option so to use .them or not, and the lessor receives the same rent, whether they are so used or not, the lessor can not be made responsible for the act of his lessee. (Post, pp. 735-736, 739.) Case cited and approved: Rich v. Basterfield, 4 C. B., 783. 4. SAME. Same. Same. Same. Jury to pass upon question whether nuisance was created necessarily by ordinary use, or by improper use of the lessee. Where a roundhouse, or other building, was .not a nuisance at the date of the lease, and only became one upon its use by the lessee, the liability of the owner would depend upon the fact to be passed upon by the jury under proper instructions, whether the nuisance complained of arose necessarily from its ordinary use or from its improper use, by the lessee. In the first instance he would be liable, and in the second, the lessee alone would be chargeable. Por the rule is that, .in order to charge the owner of the premises, the nujsance must necessarily result from the ordinary use of the premises by the lessee, or for the purposes for which they were let; and where the nuisance is created by the improper or negligent use of the premises by the lessee, he alone is chargeable for the damages resulting therefrom. (Post, pp. 737-738'.) 5. Same. Same. Same. Same. Reversible error to withdraw or reject evidence of lease of premises to another. In an action against the landowner to recover damages on the ground that a structure or building on the premises is a nuisance, where the structure or building is not of itself a nuisance, or the nuisance was not a necessary result of the construction thereof, it is reversible error to withdraw from the jury testimony that the defendant landowner did not control or operate the premises, or the buildings and structures thereon; and it is also reversible error to reject a lease contract offered as evidence to show the facts of the lease. (Post, pp. 738-739.) Case cited and approved: Rich v. Basterfield, 4 C. B:, 783. 6. EVIDENCE. Title or ownership can not be proved by-reputation, when. In an action against the owner of a railroad roundhouse for damages resulting from a nuisance created by the alleged improper location and operation, or management thereof, and by the incessant noise of the locomotive engines housed therein, and by the smoke, gases, cinders and soot cast off by them, where the defense was that the roundhouse was occupied, managed and controlled by a lessee or tenant of the defendant, it is reversible error to allow the .plaintiff, over the defendant’s objection, to testify that said engines were by general reputation the property of the defendant, for such testimony is incompetent to prove title. (Post, p. 739.) Cases cited and approved: Jones v. Jennings, 10 Humph., 428; Berniand v. Beecher, 76 Oal.„ 394. 7. NUISANCES. Damages. Evidence. Erroneous admission of testimony as to damage to fee cured by proper instruction to jury that damage to use only could be considered. Where the owner and occupant of premises sued for damages resulting from a nuisance created by the improper location and operation or management of an adjacent railroad roundhouse, it is error to admit testimony as .to the effect of the alleged nuisance upon the value of the property or of the fee; but where the trial judge instructed the jury that in the assessment of damages, should they find for the plaintiff, they might consider such things as affected the use of plaintiff’s property as a residence or home, e,tc., considering the discomforts, annoyance, etc., which he may have suffered from the alleged nuisance, the objectionable testimony was practically excluded from the consideration of .the jury, and the erroneous admission thereof was -rendered (harmless. (Post, pp. 739-740.) Cases cited and approved: Railroad v. Church, 108 U. S., 317. 8. NUISANCE. Corporations. Charter rights. Corporation is not exempt from liability for nuisances created by its improper use of roundhouse, authorized by its charter. A corporation authorized by its charter to acquire and hold at such places as it shall find expedient, all necessary real estate on which, to construct, operate and maintain terminal railroad facilities, appurtenances and accommodations, in selecting a place for its roundhouse, acts in a private capacity, and is responsible for the injurious consequences which may result from its improper use 'by it, for its charter gives it no right to enjoy its property at the expense of another’s property, and in this respect it stands no higher than an individual, and is entitled to no 'superior rights or immunities, and such charter right is no defense in an action against it for damages resulting from a nuisance created by it in the improper use of its roundhouse and engines. (Post, pp. 740-743.) Cases cited and approved: Hill v. Asylum, L. R., 4 B. Div., 433; Truman v. R. R., 25 Ch. Div., 423; Beseman v. R. R. (N. J. Sup.), 13 Atl. Rep., 167; R. R. v. Church, 108 TX S„ 317; Cogswell v. R. R., 103 N. Y., 10. 9.3Ü.MAXI1SE. Corporations. Maxim applicable to corporations as well as to individuals. The maxim, “So use your own as not to injure another’s property,” will be applied to a corporation as well as to an individual. (Post, p. 741.)
109 Tenn. 745Elliott v. Cumberland Coal & Coke Co. (1902)
1. LIMITATIONS, STATUTE OF. Effect of adverse possession under deed describing as one tract several parcels consolidated. The general rule is, that after several tracts of land have been consolidated and a deed executed for the consolidated tract, describing it as one tract, the former subdivisions became obliterated or unimportant, and a .person in the adverse possession of some part of said land, under said deed, for the time and in the manner prescribed by the statute, .will perfect his title to the extent of the boundary described. {Post, pp. 766-767.) 2. ADVERSE POSSESSION: To constitute bar, must be on land in dispute. Doctrine of interlap. It is well settled that .possession to be adverse so as .to put in operation the statute of limitations, must be an actual possession of some part of the land in dispute and in cases of conflicting boundaries the land covered by the interlap of such boundaries is the land in dispute, and a possession outside of the interlap is, therefore, not on th'e disputed territory and is wholly ineffectual to cause the bar of the statute as to, or in any way affect, the lands within the interlap. (Post, pp. 767-770.) Cases cited: Napier’s Lessee v. Simpson, 1 Tenn., 448-453; Talbot v. McGavock, 1 Yerg., 262; Smith v. McCall’s Heirs, 2 Humph., 163; Tilghman v. Baird, 2 Sneed, 197; Poster v. Grizzle, 1 Cold., .531; Smith v. Lea, Id., 548; Kelley v. Hare, 1 Humph., 163; Stewart v. Harris, 9 Humph., 714; Hightower v. Smith, 7 Yerg., 500; Waddle v. Stuart, 4 Sneed, 536; Creech v. Jones, 5 Sneed, 633; Snoddy v. Kreuteh, 3 Head, 304; Peck v. Houston, 5 Lea, 227; Boles v. Smith, 1 Tenn. Cases, 149;. Hunter v. Bills, 3 Tenn. Cases, 97; Mining Co. v. Heck., 15 Lea, 497. 3. SAME. Same. Case in judgment. Complainant claims title to 400 acres of land under a deed describing and bounding it as one tract, although the area was originally in three separate parcels covered by three separate entries. The defendant claims title under two adjoining grants Nos. 4975 and 5061, for 5,000 acres each. Complainant claims title to the extent of the boundaries of his deed by adverse possession thereunder for more than seven years. Complainant’s actual possession is within the boundary of grant No. 4975, but he has no actual possession on the land within the interlap of said deed and' said grant No. 5061. Held: That complainant is entitled to so much of said 400 acre tract as lies within the boundaries of grant No. 4975, but to none that lies within the boundaries of grant No. 5061, although embraced in the lines of his deed to the 400 acre 'tract.