Volume 110 — Tennessee Reports

<p>1. STATUTORY CONSTRUCTION. Statute read as if word was repeated therein.</p> <p>A statute in these words: “No written or oral misrepresentation or warranty thereof, made in the specifications of a contract or policy of insurance, or on the application therefor, by the assured or in his behalf, shall be deemed material, or defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter represented increased the risk of loss,” must be con.strued as if the word “warranty” were repeated in the last clause thereof.</p> <p>Acts cited and construed: Acts of 1895, ch. 160, sec. 22.</p> <p>Code cited and construed: Sec. 3306 (S.)</p> <p>3. SAME. Representations and warranties put on the same footing in application for insurance.</p> <p>Confessedly the intention of the legislature, as shown in the introductory clause of the foregoing statute, was to put “representations” and “warranties” upon the same footing and make them ineffectual to avoid the policy when as affirmations of facts they were made in good faith and were immaterial; which intention prevails despite the failure to repeat the word “warranties” in the concluding clause of the statute. (Post, p. 7.)</p> <p>3. SAME. FALSITY. Of representations of immaterial facts in applications for insurance never asserted to defeat recovery.</p> <p>Without the aid of the foregoing statute, the law was that only when a representation was made of and concerning a fact material to the risk, could its falsity he asserted to defeat a recovery on a matured policy. (Post, pp. 7-8.)</p> <p>Case cited and approved: Insurance Company v. Booker, 9 Heisk., 624.</p> <p>4. SAME. Manifest intentions of a remedial statute will prevail over the literal meaning of the terms; warranties in insurance policies.</p> <p>The foregoing statute is a remedial statute, “intended to relieve against the hardships arising from the enforcement of the common law as to warranties in insurance policies,” and the unshaken rule in the construction of such statutes is that its manifest intention will prevail over the literal sense of the terms, and, therefore, “when the expression is special or particular, hut the sense is general,- the expression shall he deemed general.” (Post, p. 6.)</p> <p>Statute cited and construed: Acts of 1895, ch. 160, sec. 22.</p> <p>Cases cited and approved: Insurance Company v. Bank (C. C. A.), 73 Fed. Rep., 653; Brown v. Prendergast, 7 Allen, 427.</p> <p>5. SAME. Same. Remedial statute in derogation of common law construed to advance the remedy.</p> <p>Although such statute he in derogation of the common law, the rule in construing it is that everything is to he done in advancement of the remedy that can be done consistently with any fair interpretation of the statute. (Post, p. 6.)</p> <p>Case cited and approved: Railroad v. Dunn, 52 Ill., 260.</p> <p>6. INSURANCE POLICY. Remedial statutes become incorporated therein, and are not thwarted by forms of agreement.</p> <p>The manifest purpose of a remedial statute to redress the wrong and advance the remedy shall not oe destroyed by any technical criticism; nor shall it be thwarted by the insurer in converting, by however carefully chosen, but formal terms, an immaterial statement of fact, made innocently and in good faith by the applicant for insurance, into a covenant of warranty, whose breach would avoid the policy. Whatever the form of the agreement in the application may be, the statute incorporates itself into every policy issued after it becomes operative and serves as an effectual bar to the destruction of the right of the beneficiary, where innocent mistakes of fact which are not material to the risk have been made. (Post, pp. 6-7.)</p> <p>Act cited and construed: Acts of 1895, ch. 160, sec. 22.</p> <p>Code cited and construed: Section 3306 (S.)</p> <p>Cases cited and approved: Dugger v. Ins. Co., 95 Tenn., 245; Light v. Ins. Co., 105 Tenn., 480; Hermany v. Life Association, 151 Pa., 17; Life Assurance Society v. Clements, 140 U. S., 226; Schuermann y. Ins. Co., 165 Mo., 641; Life Association v. Fick-lin, 72 Md., 172.</p>

<p>1. FIDELITY BONDS. Are embraced within statute placing representations and warranties on same footing.</p> <p>The statute providing that no representation or warranty made in negotiation for a contract or policy of insurance or in any application therefor, shall he deemed material or defeat the policy or prevent it from attaching, unless made with actual intent to deceive, or unless the matter represented increases the risk, applies to fidelity bonds given to an employer to indemnify him from loss by the fraud or dishonesty of an employee. '{Post, pp. 19-20.)</p> <p>Acts construed: Acts of 1895, ch. 160, sec. 22.</p> <p>Code construed: Sec. 3306 (S.).</p> <p>3. SAME. ’ Representations of insured. Breach of Bond. Questions of fact. Findings of court of chancery appeals thereon, conclusive.</p> <p>Whether the representations of a bank cashier, made to a guaranty company during negotiations for the issuance of a bond insuring the fidelity of an employee of the bank, were true or made with intent to deceive, and whether there has been a breach of such bond by failure to give prompt notice of an “act capable of giving rise to a claim thereunder,” are questions of fact and the findings thereon of the court of chancery appeals are binding and conclusive upon the supreme court. {Post, pp. 20-23.)</p> <p>Cases cited and approved: Missouri, etc., Trust Co. v. German Nat. Bank (C. C. A.), 77 Fed. Rep., 117.</p> <p>3. SAME. RENEWAL OF. One penalty. Case in judgment.</p> <p>A bond given by a guaranty company to indemnify a bank for loss occasioned by tbe fraud or dishonesty of its bookkeeper provided that said guarantor would make good and reimburse said bank to tbe extent of $7,000, and no further, all pecuniary loss occasioned by said bookkeeper occurring during the continuance of said bond or any renewal thereof. Liability on the bond was limited to one year. A renewal certificate, purporting to be' such, and to be subject to the conditions of the original bond, was executed guaranteeing the fidelity of said employee for the following year. By the fraud and dishonesty of said employee, the bank sustained during the first year a loss of $7,217.50, and during the second year, a loss of $13,157.20. Action to recover full penalties of both bonds.</p> <p>Eeld: That the renewal certificate was a new contract only so far as it extended the indemnity provided by the original bond to another year, and that there was in fact only one bond, with one penalty of $7,000, to which the recovery was limited. {Post, pp. 12, 23-26.)</p>

<p>1. FIRE INSURANCE. Contract oí, is one for personal indemnity.</p> <p>A contract of fire insurance is one of personal indemnity to the party with whom it is made and inures to the benefit only of those who are embraced within the scope of its provisions.</p> <p>Cases cited: Quarles v. Clayton, 87 Tenn., 308; Welsh v. Corporation, 151 Pa., 607.</p> <p>2. SAME. Protects interests both of life tenant and remainder-man, when.</p> <p>A policy or contract of insurance may he taken out for the benefit of both the life tenant and remainderman, if so intended and stipulated.</p> <p>Case cited: Welsh v. Corporation, 151 Pa., 607.</p> <p>3. SAME. Same.</p> <p>The policy or contract will inure to the benefit of both the life tenant and remainderman where the insurance is taken out by the owner of the premises, who subsequently dies and the estate becomes divided into an estate for life and in remainder.</p> <p>Cases cited: Hudnell v. Burkle, 3 Tenn. Cases, 616; Brough v. Higgins, 3 Grattan, 408; Haxhall’s Ex’r v. Shippen, 10 Leigh, 536.</p> <p>4. SAME. Life tenant entitled to proceeds of insurance to exclusion of remainderman, when. -></p> <p>There is no legal obligation on the part of the life tenant to insure the interest of the remainderman, and insurance taken out by the life tenant must be shown to have been stipulated or intended to cover the interest of the remainderman, and, unless such fact appears, it will be treated as a contract for personal indemnity to the life tenant, entitling him to the proceeds, to the exclusion of the remainderman.</p> <p>Case distinguished. Hudnell v. Burkle, 3 Tenn. Cases, 616.</p> <p>5. SAME. Case in judgment.</p> <p>Defendant F., owning a life estate in certain premises, took out a policy of insurance on a house situated thereon which was. burned. Complainant owning the remainder interest in said premises filed his bill against the life tenant and Insurance Company and prayed that the proceeds of the insurance be either applied to replacing the house burned or loaned out until the death of the life tenant, so as to preserve the remainder to him and to enable the life tenant to receive the interest; Defendants demurred on the ground that the contract of insurance is a personal contract — that the interests of the life tenant and remainderman were distinct insurable interests, and the bill failed to show that the policy was intended to cover both interests or to inure to the benefit of the remainderman.</p> <p>Held: The life tenant is entitled to the proceeds of the insurance taken out by her to the exclusion of the remainderman, it not appearing that the policy was intended to cover the interest or inure to the benefit of the remainderman.</p> <p>Case distinguished: Hudnell v. Burkle, supra.</p>

<p>1. CHAMPERTY. Sale of land adversely held is champertous though vendor have perfect title.</p> <p>A sale of lands held by the vendor under a perfect title but in the adverse possession of another at the time is a sale of a pretended title within the statute making such sales null and void as champertous without regard to the duration of such possession. (Post, p. 38-.)</p> <p>Code cited and construed: Sections 3171, 3172 (S.); 2445, 2446 (M. & V.); 1776-1777 (T. & S. and 1858).</p> <p>Cases cited: "Whiteside v. Martin, 7 Yerg., 397; Kincaid v. Meadows, 3 Head, 189, 192; Fain v. Headrick, 4 Cold., 334.</p> <p>2. CHAMPERTOUS DEED. EFFECT OF. Vendor may disregard- and sue in his own name.</p> <p>A conveyance of land adversely held is a nullity and a vendor of such land may disregard his deed and in his own name sue in ejeotment to recover the lands, without specially pleading the invalidity of such conveyance. (Post, pp. 38-39.)</p> <p>Cases cited: Key v. Snow, 90 Tenn., 663; Wilson v. Nance, 11 Humph., 190; Fowler v. Nixon, 7 Heisk., 729; Saylor v. Stewart’s heirs, 2 Heisk., 510.</p> <p>•3. CHAMPERTY. Hot limited to actual possession, where possessor claims under color oí title purporting to convey a fee.</p> <p>Where there is an actual adverse possession of part of a tract of land under deed purporting to convey the entire tract in fee, the possessor has such constructive possession of the remainder, superior and adverse to that which results merely from the ownership of the legal title, as renders a conveyance of land so held ehampertous and void not merely to the extent of the actual possession hut to all the lands inclosed within the boundaries of the assurance of title, under which such actual possession is held. (.Post, pp. 39-41).</p> <p>Cases cited: Dyche v. Gass’s Lessee, 3 Yerg., 397; West v. La-nier, 9 Humph., 771; Rutherford v. Franklin, 1 Swan, 324; Brown v. Johnson, 1 Humph., 264; Pickens v. Delozier, 2 Humph., 400; Mitchell v. Churchman’s Lessee, 4 Humph., 218.</p>

<p>1. TRESPASS. Measure of damages for, in cutting timber. The “mild” and the “harsh” rule.</p> <p>There are two rules for the computation of damages in cases of trespass for cutting timber as in cases of mining trespass, sometimes designated as the “mild” and the “harsh” rule. The mild rule is applied where the wrong was innocently done, by mistake or inadvertence and charges the trespasser with the value of the timber standing in the tree. The harsh rule is applied where the trespass is shown to have been malicious or with full knowledge of the title of the owner, and in willful disregard of his rights, and charges the wrongdoer with the value of the timber after severance and in the form it may be prepared, or converted, for the market, without deduction or compensation for the expense of cutting and preparing for market. (Post, p. 45.)</p> <p>Case cited and approved: Dougherty v. Chesnutt, 86 Tenn., 1, 9, 10.</p> <p>2. SAME. Same. Case ip. judgment.</p> <p>Complainants, the owners of certain lands, sue for the conversion 'of certain timber cut therefrom by L. and B., trespassers, without claim of right, and by them sold to defendant. Before defendant had notice of the trespass, he had purchased timber of the value of $43.50 standing in the tree; after notice and without regard thereto, he purchased other timber of the value of $77 in the tree but worth $246.40 in stave bolts delivered at his factory, in which form L. and B., after severance from com-plaintants’ land, prepared said timber and sold and delivered it to defendant. Insistence by defendant that be was liable only for the value of the timber standing in the tree; complainant contends for application of “harsh” rule above stated. Held:</p> <p>First. The “mild” rule applies to the timber purchased before notice to defendant of the trespass;</p> <p>Second. The “harsh” rule applies to all the timber purchased after notice that L. and B. were trespassers, charging defendant with the value of the timber in its manufactured state as delivered to him. {Post, pp. 43-46.)</p>

<p>CRIMINAL LAW. Misconduct of jury, in examining Code, ground for reversal, when.</p> <p>The jury are the judges of the law under the direction of the court and, it being the duty of the jury to receive'the law as given in charge by the court, an examination of the Code by a juror to ascertain for himself the law, after which he agreed to a verdict for murder when before he was in favor of a conviction for manslaughter, constitutes ground for reversal.</p> <p>Cases cited and approved: Dale v. State, 10 Yerg., 555; Harris v. State, 7 Lea, 538, 554.</p>

<p>1. WILLS. CONSTRUCTION. Investment of money for benefit of life and remainder estates under control of executor as testamentary trustee.</p> <p>Where the testator, after making certain devises and bequests, devised and bequeathed all his “other property and estate” to his wife for life, and after her death to be equally divided among his six children, for their use during life, and after their death to vest absolutely in their children, or the issue of their deceased children, and instructed the executor “to invest any money going to either or all of the heirs as he may think best,” the executor is constituted a testamentary trustee, whose duty it is to invest the money received by him under the will after the death of the testator’s widow in such income bearing property as he may select taking title to himself as trustee for the benefit of the life tenant and the remaindermen, and to retain control and possession of the same, unless the investment be in real estate, when there would be no occasion to withhold possession from the life tenants, and if he declines to execute the trusts then they will be executed under the decree of the chancery court. (Post, pp. 52-57.)</p> <p>Cases cited and approved: Henderson v. Vaulx, 10 Yerg., 30; McHaney v. McNeilly, 10 Heisk., 53o; Covenhoven v. Shuler, 2 Paige, 124.</p> <p>S. SAME. Same. Specific and residuary bequests of articles consumable in the use, distinguished.</p> <p>When there is a specific bequest for life with or without limitation in remainder of articles, such as wine, corn, etc., whose use consists in being consumed, the first taker is entitled abso--lutely; but where the bequest is residuary and not specific, then such chattels must be sold and the interest in the proceeds paid to the first taker, and the principal preserved for re-mainderman. {Post, pp. 55-56.)</p> <p>Case cited and approved: Henderson v. Vaulx, 10 Yerg., 30.</p> <p>3. SAME. Same. Bequests of articles not consumable in the use.</p> <p>But where there is a bequest for life, of articles not necessarily consumable in the use, such as books, plate, etc., with a limitation over, the first taker is only required to give an inventory of the articles specifying that they belong to the first taker for the limited period only, and afterwards to the remainderman and security will not be required unless there is danger that the articles may be wasted or otherwise lost to the remainder-man. {Post, p. 56.)</p> <p>Cases cited and approved: Henderson v. Vaulx, 10 Yerg., 30; Foley v. Burwell, 1st Brown, Ch. 279; Covenhoven v. Shuler, 2 Paige, 124.</p>

<p>1. ACTIVE TRUST. Is created by postnuptial settlement and conveyance of wife’s property to a trustee for her separate use.</p> <p>Where a husband and wife by postnuptial settlement conveyed all of the wife’s property to a trustee, reciting that the purpose and intent of the deed were that said property be vested in and held by said trustee for the sole and separate use of the wife, such conveyance created a special or active trust, and imposed upon the trustee the duty of preserving the trust property for the wife’s separate use during coverture. (Post, pp. 59-63.)</p> <p>Cases cited: Jourolmon v. Massengill, 86 Tenn., 100; Henderson v. Hill, 9 Lea, 32.</p> <p>2. MORTGAGE. Of separate estate, held by trustee with power of disposition in wife on consultation with trustee, is void, unless trustee is joined therein.</p> <p>Where after a postnuptial settlement conveying to and vesting in a trustee the legal title of the wife’s property for her sole and separate use, “with absolute right of disposition as she may choose upon consultation and getting advice from said trustee,” the husband and wife executed mortgages covering the wife’s separate estate in which the trustee did not join, and in respect to which he was not consulted, such mortgages were void, the words “upon consultation and getting advice from said trustee” being equivalent to the “consent of the trustee,” which must be attested by his signature to the instrument; a contrary construction would defeat the purpose of the trust created for the protection of the estate of the wife from the domination and improvidence of the husband. {Post, pp. 59-66.)</p> <p>Cases cited: Deaderick v. Armour, 10 Humph., 588; Pooley v. Webb, 3 Coldwell, 599.</p>

<p>1. SCHOOL FUNDS. School directors causing -loss of, may be sued in equity by beneficiaries.</p> <p>As a general proposition of law, a school district being a quasi corporation, suits affecting the school fund belonging to a par- • ticular district should be brought in its name or for its benefit as a legal entity; but where a loss to the school fund of a particular district is occasioned by the malfeasance or misfeasance of its directors — the managers of such quasi corporation— in order to recover and preserve such funds a suit may be brought in equity against the directors by, and in the name of, the residents of the school district, and patrons of its schools, interested in the fund. (Post, pp. 69-74.)</p> <p>Case cited: Lowry v. Francis, 2 Yerg., 534.</p> <p>2. EQUITY PRACTICE. School funds. Action to protect by one of numerous interested class.</p> <p>Where the persons interested in the subject-matter of the litigation are numerous, one or more of such persons may sue on behalf of the entire class. The patrons of the public schools of a particular district are interested in the preservation and safe management of the school funds of that district and may maintain a suit to prevent them from being lost or destroyed. (Post, p. 73.)</p> <p>Case cited: Lynn v. Polk, 8 Lea, 121.</p> <p>3. SCHOOL FUNDS. Bond to protect. Sureties on, not released by individual action of directors.</p> <p>Where the district directors have advanced school funds to a contractor and have taken a bond with sureties, payable to them in their official capacity, to insure the prompt fulfillment of a contract to erect and deliver a public schoolhouse, the sureties cannot be released from their obligation, by a cancellation or destruction of the bond, upon the authority of one or two of the directors acting as individuals, there being no official action of the board of directors authorizing the cancellation. '(Post, pp. 73-74.)</p> <p>4. SAME. Same. Sureties, liability of. Semble.</p> <p>And it would seem that the sureties on such bond, would not be released by the joint action of themselves and the district directors, even acting in their official capacity, where such release must necessarily result in the loss of' the fund, to protect which the bond was executed. (Post, p. 74.)</p> <p>5. SAME. Same. Sureties may be sued by patrons of school district, when.</p> <p>Where a bond with sureties, is executed, payable to the directors of a school district in their official or representative capacity, and intended to protect the school funds of that district and the directórs and sureties have attempted to unlawfully cancel said bond, an action may be maintained against the sureties by the patrons of said district interested in the fund. (Post, pp. 73-74.)</p> <p>6. SCHOOL DIRECTORS. Liable for loss of school funds, when. Measure of liability.</p> <p>School directors are jointly and severally liable for the loss of school funds belonging to their district when such loss is occasioned by their neglect. The measure of their liability is the full amount so lost with.interest thereon. (Post, p. 74.)</p> <p>Code cited and construed: Sec. 1426 (S).</p>

<p>1. HUSBAND AND WIFE. Presumption that widow claims real estate of husband by inheritance, when.</p> <p>Under the statutes governing the descent of real property the widow inherits the real estate of the husband in ease he dies intestate' and without heirs, and where it appears that- a widow, as such, claimed the real estate of which her husband died seized, and conveyed it by deed purporting to convey an estate in fee, it will be presumed, in the absence of anything to the contrary, that she claimed to have inherited said real estate from her husband. (Post, pp. 78-79.)</p> <p>Code cited: Sec. 4165 (S.); 3272 (M. & V.); 2422 (T. & S. and 18h8.)</p> <p>2. EJECTMENT. Common source of title, case in judgment.</p> <p>Complainants claiming to be the children of H. J., by his first wife, sue, as his heirs at law, to recover real estate owned by him. Defendant claims by deed from the widow of H. J. who was his second wife, and who as such widow claimed the property in controversy, and assumed, by deed, to convey it in fee to defendant. Complainant did not deraign title from the State, and this is assigned as error.</p> <p>Held: It will be presumed, nothing to the contrary appearing, that the grantor of defendant claimed by inheritance from her husband, under the statute, and that, therefore, as complainants claim from a common source, they were not required to deraign title from the State. (Post, pp. 78-79.)</p> <p>3. SLAVE M ARM AGES. Issue of, endowed with, inheritable, blood.</p> <p>The statute declaring all free persons of color who were living: together as husband and wife in this State, while in a condition', of slavery, to be man and wife, and their children to be legitimately entitled to an inheritance in property theretofore acquired by said parents, being remedial in its nature should be-liberally construed, and this court holds that it was intended to-make legitimate and endow with heritable blood the issue of slave marriages, although, before emancipation and the enactment of said statute, such marriages had been dissolved according to the customs in force during the slave period, such, customs being tantamount to a ’divorce. (Post, pp. 79-81.)</p> <p>Code construed: Secs. 4179, 4198 (S.); 3285, 3303 (M. & V.) 2435a, 2447a (T. & S.).</p> <p>Cases approved: Brown v. Cheatham, 91 Tenn., 98; Andrews v„. Page, 3 Heisk., 653, 670.</p> <p>Case distinguished: Shepherd v. Carlin, 99 Tenn., 64.</p> <p>4. HOMESTEAD. Eormal assignment of, not necessary, when..</p> <p>Where the real estate of which an intestate dies seized is worth. less than one thousand dollars, a formal assignment to the-widow as homestead is not necessary to vest in her the life estate in such property — in such case it is “unerringly designated, by law.” {Post, pp. 81-83.)</p> <p>Case cited: Briscoe v. Vaughn, 103 Tenn., 308.</p> <p>5. LIMITATION, STATUTE OE. Does not run against the re-mainderman during existence of life estate.</p> <p>No rule of law is better settled in this State than that the statute ■ of limitations does not run against remaindermen or rever-sioners during the existence of a life estate and, therefore,. wlien the widow of an intestate took a life 'estate in certain realty, the statute of limitations did not begin to operate against the owners of the reversion until her death. (.Post, p. 83.) '</p> <p>3. COURT OF CHANCERY APPEALS. Findings of fact, conclusive. Doctrine reaffirmed.</p> <p>This court cannot go beyond the findings of fact reported by the court of chancery appeals. (Post, p. 83.)</p>

<p>1. SEPARATE ESTATE. Special and active trust created by a conveyance to a trustee-</p> <p>The conveyance of property in trust for the separate use and benefit of a married woman creates a special and active trust. {Post, pp. 87-88.),</p> <p>Case cited and approved: Jourolmon v. Massengill, 86 Tenn., 81.</p> <p>2. SAME. Same. Active trust is not within the purview of the statute of uses.</p> <p>A special and active trust created by a conveyance of property to a trustee in trust for the separate use and benefit of a married woman is not within the purview of the statute of uses, and is not executed by the statute. {Post, pp. 87-88.)</p> <p>Case cited and approved: Jourolmon v. Massengill, 86 Tenn., 81.</p> <p>3. SAME. Death of husband vests absolute title and full power of disposition in wife as a single woman.</p> <p>Property conveyed to a trustee in trust for the separate use and benefit of a married woman vests absolutely in her upon the death of her husband, with full power of disposition over it as a single woman. {Post, pp. 88-89.)</p> <p>’Cases cited and approved: Beaufort v. Collier, 6 Humph., 487; Brown v. Foote, 2 Tenn. Ch., 260; Pooley v. Webb, 3 Cold., 603.</p> <p>4. TRUSTS AND TRUSTEES. Trastee takes estate limited to purposes of the trust, which being executed the trust ceases, and title vests in beneficiary.</p> <p>Trustees take exactly that quantity of interest which the purposes of the trust require, which being executed the trust ceases. So, under a conveyance to one, “his heirs and assigns forever,” as trustees for the sole and separate usé and benefit of a married woman, upon the death of her husband, the purpose of the trust is accomplished and the whole title, legal and equitable, vests in her, with full power of disposition as a single woman, and specifically with power to devise the same. CPost, pp. 89-91.)</p> <p>Cases cited and approved: Ellis v. Fisher, 3 Sneed, 231; Smith v. Metcalf, 1 Head, 64; Rogers v. White, 1 Sneed, 68.</p>

<p>1. PUBLIC BRIDGES. Are county roads.</p> <p>Public bridges are included within the general term “roads and highways” and may be held equivalent to “county road.” (Post, p. 95.)</p> <p>Code cited and construed: Sec. 70 (S.); 57 (M. & V.); 59 T. & S.' and 1858.</p> <p>3. PUBLIC ROADS AND BRIDGES. Suits to protect, must be brought and prosecuted in name of county.</p> <p>The public roads and bridges in this State, except Where otherwise expressly provided, belong to and are under the control of the several counties in which they are located and suits to protect such roads and bridges and enforce the rights of the public therein, e. g., an injunction bill to prevent an obstruction by a turnpike company claiming right -to collect tolls thereon, must be brought and prosecuted in the name of the county or the justices thereof. (Post, pp. 94-97.)</p> <p>Code cited and construed: Secs. 493, 494, 495, 496, 499, 1624, 1626, 1629, 1677, 1707, 6038 (S.); 459, 462, 465 (M. and Y.); 402, 404, 407 (T. and g. 1858.)</p> <p>Cases cited: Hawkins v. Railroad Company, 1 Tenn. Cases, 303; Williamson Co. v. Jefferson, 1 Cold., 419; Evans v. Shields, 3 Head, 73; Beard v. Campbell Co., 3 Head, 98; Cannon v. Mc-Adams, 7 Heisk., 376; Harmon v. Taylor, -15 Lea, 535.</p> <p>3. COMMISSIONER ROAD DISTRICT. Cannot sue to enjoin obstruction of public roads by collection of tolls thereon.</p> <p>The commissioner of a road district is merely the agent of the county to supervise the construction and repair of the public roads and bridges in his district and cannot maintain a suit to restrain the collection of tolls by a turnpike company on a bridge built by it on the ground that its charter has expired and the bridge has become a county highway free of toll; the right to institute and prosecute such suit is vested solely in the county. (Post, pp. 93-97.)</p> <p>Act cited and construed: Acts of 1901, ch. 136, sec. 1.</p>

<p>1. PRACTICE. BIIiIi OE EXCEPTIONS. To granting of a new-trial, considered separately on appeal from final judgment.</p> <p>Under tiie course of practice prescribed by statute and applicable to cases wherein a bill of exception is taken for the purpose of testing correctness of an order granting a new trial before final judgment, and the case subsequently goes to the supreme court on appeal from the final judgment, the action of the circuit judge in granting the new trial must be examined as if a separate case were thereby presented.. {Post, pp. 101-102.)</p> <p>Acts cited and construed: Acts of 1875, ch. 106.</p> <p>Code cited and construed: Sections 4851, 4852 (S.); 3836, 3837 (M. & V.).</p> <p>Case cited: Railroad Co. y. Higgins, 85 Tenn., 620.</p> <p>3. SAME. Same. All grounds for new trial assigned in court below considered by supreme court, whether trial judge specr ifies the ground of his action or not; duty of trial judge not to prejudice parties.</p> <p>While it is the duty of the trial judge in granting a new trial to .specify the ground upon which he bases his action, still his failure to discharge this duty shall not result in injury to the party in whose favor the new trial is granted where the latter has in the court below fully complied with the requirements of law in setting out specifically and accurately the grounds on which the new trial is asked and is otherwise without fault or negligence in the matter; and in such case the party is entitled to have considered in the supreme court all of his grounds assigned below, and if any one of them is found sufficient to justify the action of the trial judge in granting the new trial, that action should be affirmed, although the judge erroneously based his decision upon some other ground, as where the trial judge granted the new trial for supposed errors in his charge-to the jury without specifying them, the supreme court will sustain his action though there may be no error in the charge-as actually given to the jury if there was error in his failure-to give in charge one of the requests of the parties which was; relied upon as one of the grounds for á new trial. (.Rost, ppt 102-103.)</p> <p>Act cited and construed: Act of 1875, ch. 106.</p> <p>Code cited and construed; Secs. 4851, 4852 (S.); 3836, 3837 (M. & V.).</p>

<p>1. EVIDENCE. Of outcry giving warning of dangerous explosive stored in burning building is competent not to show fact, but the panic created thereby, when.</p> <p>Where it is charged in the declaration, in an action to recover damages by fire resulting from the negligence of defendant in having stored in his building large quantities of dynamite, that the fire could have been extinguished before it reached the property of plaintiff by the force of men, with proper appliances, then present and working to that end, but for a public announcement that dynamite, in large quantities, was stored in defendant’s building, followed immediately by a loud explosion which so alarmed the parties endeavoring to check the fire as to cause them to cease their efforts, it is permissible lo prove that while defendant’s building was in flames and just before the explosion, which broke in a solid brick wall between defendant’s and plaintiff’s building, two of defendant’s employees cried out to the assembled crowd that there was dynamite m the building, and warned the people away. This testimony was competent, independent of the doctrine of agency, not to show as a substantive fact that there was dynamite in the building, but as proof of one of two incidents alleged to have caused a panic among those endeavoring to extinguish the fire and occasioned their immediate dispersion and abandonment of their efforts, provided the trial Judge limits the scope of the evidence to this point. (.Post, pp. 107-108.)</p> <p>2. SAME. Conjectural opinions of nonexpert witnesses aer in admissible.</p> <p>The admission of the opinion testimony of nonexpert witnesses, that they could have stopped and controlled a fire at the time of an explosion, had it not occurred, constitutes reversible error. Every fact constituting an element in the opinion of such witnesses was capable of being presented to the jury, and the admission of such opinions is unwarranted intrusions upon the province of the jury dogmatically settling an issue they were called on to try, and of which they are to form their opinion and judgment from the facts. (Post, pp. 108-111.)</p> <p>Cases cited and approved: Bruce v. Beall, 99 Tenn., 303; Otis v. Thorn, 23 Ala., 469; Railroad v. Edmonds, 41 Ala., 667; Tuttle v. City of Lawrence, 119 Mass., 276; Duer v. Allen, 96 Iowa, 36; Pulsifer v. Berry, 87 Me., 405; Gibson v. Hatchett, 24 Ala., 201; Darling v. Thompson, 108 Mich., 215; Railroad v. Natchez, 67 Miss., 399.</p> <p>3. SAME. Opinion testimony of nonexpert witnesses is admissible in what cases.</p> <p>The opinion testimony of nonexpert witnesses is admissible from necessity in cases where the facts from which the conclusion Of the witness is drawn, are of a character so latent or impalpable that it is impossible to present them in a tangible or intelligent form to the jury, for otherwise, their consideration would be lost altogether. Within this class of cases may be found those of identity, resemblance, apparent condition of the body or mind, intoxication, sickness, duration, dimension and velocity, and such like. (Post, pp. 109-110.)</p> <p>4. SAME. Opinion testimony of expert witness is admissible when.</p> <p>The opinion testimony of expert witness is admissible on questions of science or trade, where skill or experience are the essential elements of knowledge. (Post, p. 109.)</p> <p>5. DAMAGES. Measure of, in actions by insured for use of insurer against one negligently or wrongfully causing the fire.</p> <p>In an action by the insured for the use of the insurer, against the one whose negligence' or wrong caused the damages by fire, to recover the loss incurred, and paid to the insured by the insurer, the true measure of damages in the event of a recovery is the damage resulting to the insured from the fire on the insured property, not, however, exceeding the amount paid him on the loss by the insurer. (.Post, pp. 111-112.)</p> <p>6. CHARGE OP COURT. Calculated to mislead, but not doing so is not reversible error.</p> <p>Tne charge of the trial judge, though calculated to mislead the jury, but as a matter of fact evidently not doing so, does not of itself constitute a reversible error. (Post, p. 112.)</p>

<p>I. BILLS OF EXCEPTION. Rule limiting time for filing, may be made; a nullity if filed after time or not affirmatively appearing to have been filed within the time.</p> <p>A general rule or order applicable to all cases, or a special rule or order applicable to a particular case, may be made by the court prescribing a reasonable and limited time for the preparation and filing of bills of exception, during the term; and where such a general or special rule is made, or time for filing the bill of exceptions is extended beyond the -term under the statute providing therefor, it must .affirmatively appear to the supreme court that the bill of exceptions was filed within the time limited, otherwise it will not be considered, and if the record without such bill of exceptions shows no reversible error, the judgment below will be affirmed. (Pos#, pp. 117-120.)</p> <p>Act cited: Acts of 1899, ch. 275.</p> <p>Cases cited and approved: Muse v. State, 106 Tenn., 181; Jones v. Moore, 106 Tenn., 188; Wright v. Redd, 106 Tenn., 719; Patterson v. Patterson, 89 Tenn., 151; Mallon v. Mfg. Co., 7 Lea, 62, 66; Sikes v. Ransom, 6 Johns., 279.</p> <p>3. SAME. Filed during term, if no rule to the contrary, but this is not a matter of right.</p> <p>While a bill of exceptions may be properly made up at any time during the term, if there be no rule or order to the contrary in the court in which the case is tried, yet a party is not entitled as a matter of right to the whole of the term in which to present it. (Post, p. 118.)</p> <p>Cases cited and approved: Mallon v. Mfg. Co., 7 Lea, 62, 66; Patterson v. Patterson, 89 Tenn., 151; Sikes v. Ransom, 6 Johns., 279.</p> <p>3. SAME. Suggestion of diminution of record after decision allowed so as to show bill of exceptions filed within time, when,</p> <p>Where the court raises the question and determines the point upon the record, without any suggestion or argument of counsel, that the bill of‘exceptions was not filed within the limited time, prescribed by the-lower court, an application by petition to be permitted to suggest a diminution of the record, and that upon the correction of a suggested error in dates being made, the cause be reheard, will be allowed. {Post, p. 121.)</p> <p>4. SAME. Same. Record corrected upon admission of counsel without actual suggestion of diminution or award of certiorari.</p> <p>Where the answer to such petition admits its allegations that the mistake alleged existed, it is not necessary that the suggestion of diminution should be actually made or certiorari awarded— the admissions contained in the answer to the petition when taken in connection with the petition, supplying the place of ’both and correcting the record so as to show that the bill of exceptions was filed in time. {Post, p. 121.)</p> <p>5. SUPREME COURT PRACTICE. Trial before circuit judge without a jury and without legal request for written findings, and weight of his findings and judgment. No remandment, when.</p> <p>Where_ the case is tried before the circuit judge without the intervention of a jury, and without a legal request for written findings, his judgment and his voluntary findings, if he file any, are to be treated like the verdict of a jury, when attacked on the ground that there is no evidence to support' the findings or judgment. In such case, if there is any evidence to sustain the judgment, and if there be no other reversible error, the supreme court will affirm the judgment, but if there be no evidence to support the findings or judgment, or if they were based upon incompetent evidence, or if they are found fatally erroneous upon other grounds, the supreme court will then, upon consideration of the testimony at large, render such judgment as the circuit judge should have rendered, without remandment, except in special cases where a new trial is required to meet the ends of justice. (Post, pp. 128-130.)</p> <p>Cases cited and approved: Fogg v. Gibbs, 8 Baxt., 469; Wheeler v. State, 9 Heisk., 393; Dawson v. Holt, 11 Lea, 589; Smith v. Hubbard, 85 Tenn., 306; Eller v. Richardson, 89 Tenn., 576; Glasgow v. Turner, 91 Tenn., 163; Simmonds v. Leonard, 91 Tenn., 183; Woodall v. Foster, 91 Tenn., 195; Montague v. Thomason, 91 Tenn., 168; Cowan v. Mfg. Co., 92 Tenn., 376; Settle v. Marlow, 12 Lea, 474; Stephens v. Mason, 99 Tenn., 512.</p> <p>6. SAME. Requisites and defects of written findings of fact by the trial judge; what the record will be examined for; re-mandment upon reversal, when.</p> <p>Where, under a proper request, the trial judge has made a decision in writing stating the facts found and the conclusions therein in accordance with the statute, the supreme court can look to the record or bill of exceptions as a part thereof, only for the purpose of ascertaining whether there is any evidence to support the findings, or whether there is any error in the admissions or rejection of evidence, or whether such findings contain a substantial and intelligible response to the contentions of the parties as they appear in the evidence considered in relation to the pleadings; and if it appears that the findings .are proper in their technical frame and substance, then the supreme court confining itself wholly to the facts contained in the findings will determine the question of law arising from those facts and either affirm, modify or reverse the judgment of the court below; but if there is no evidence to support the findings, or if the findings do not contain »a substantial response to the request therefor, or if unintelligible, or so framed that no judgment can be safely pronounced therein one way or the other, the supreme court will reverse and remand for a new trial. (Post, pp. 130-131.)</p> <p>Code cited and construed: Sec. 4684 (S.); 3673 (M. & V.): 2959 (T. & S. and 1858).</p> <p>Cases cited and approved: McHale v. Wellman, 101 Tenn., 150, 153; Stanley v. Donoho, 16 Lea, 495.</p> <p>7. CIRCUIT COURT PRACTICE. Duty of counsel as to omissions from written findings of fact by trial judge.</p> <p>It is tbe duty of counsel in tbe court below to call tbe court’s attention to any material facts in tbe record omitted from tbe written findings of fact made in pursuance of a proper request tberefor under tbe statute and ask to bave them incorporated. (Post, p. 131.)</p>

<p>1. MATERIAL ALTERATION. Of written instrument by party beneficially interested, or by bis authority avoids it.</p> <p>A material alteration of the terms of a written instrument made' by a party beneficially interested therein, or by his authority, renders the instrument void, on the grounds of public policy and its validity cannot be restored by erasing the alteration and making it conform to its original terms. (Post, pp. 134-135.)</p> <p>Cases cited and approved: Crockett v. Thomason, 5 Sneed, 342; McDaniel v. Whitsett, 96 Tenn., 12.</p> <p>3. SAME. Of written instrument by a stranger is a mere spoliation and does not avoid it.</p> <p>But a material alteration of the terms of a written instrument made by a stranger, or one who stands as a stranger, without the consent or authority of the party beneficially interested in such instrument, must be treated as a mere spoliation and will not have the effect to render the instrument void. (Post, p. 135.) '</p> <p>3. SAME. Of written contract by agent without authority is a mere spoliation — not avoiding it.</p> <p>So, where a contract for the sale of a machine is altered so as to make it call for greater consideration, by an agent, without any authority from his principal, who when informed of it repudiated the change, such alteration will be treated as a mere spoliation by a stranger, not impairing the validity of the contract in its original form. (Post, pp. 133-136.)</p>

<p>1. WILLS. Construction of. Sale of lands intended by direction that they he “disposed of.”</p> <p>Where in a will after providing for certain specific bequests, it is directed “that the remainder of my property, real and personal, be disposed of, and that my son W. have one-half of the remainder, and my son J. one-fourth and my granddaughter M. and my grandson W. the other fourth,” the intention of the testator to direct a sale for division is obvious, and such construction should be given said provision as being the natural one and most in harmony with the meaning of the expression “disposed of,” used in connection with the alienation of the property. {Post, pp. 139, 142-143.)</p> <p>Z. ADMINISTRATOR cum testamento annexo. No power to sell lánd where will does not name an executor.</p> <p>Under a will containing a direction to sell lands, but not naming or providing for an executor or donee of the power to sell, a sale can only be made through the court of chancery. The statute providing that administrators with the will annexed shall have the same power as the executor had by the will, has no application to a will which does not name or provide for an executor; in which case a sale made by an administrator is void as being without power. (Post, pp. 139, 143-146.)</p> <p>Code construed: Sec. 3976 (S.); 3081 (M. & V.); 2240 (T. & S. and 1858.)</p> <p>Cases cited: Harrison v. Henderson, 7 Heisk., 315, 350; Andrews v. Andrews, 7 Heisk., 247, 249; Green v. Davidson, 4 Baxt., 488, • 490; Caruthers v. Caruthers, 2 Lea, 264; Parker v. Sparkman, 2 Tenn. Cas., 544, 545.</p> <p>3. SAME. Same. No power under doctrine of equitable conversion.</p> <p>Where a will contains a direction to sell lands, and makes provision for the division of the proceeds among certain designated parties, but does not name an executor or donee of the power to sell, an administrator with the will annexed has no authority to treat the estate as personalty under the doctrine of equitable conversion, and as such sell it. The doctrine of equitable conversion is not invoked for the purpose of affecting or controlling the mode by which one species of property is converted into the other, but principally to determine succession. {Post, pp, 139, 146-147.)</p> <p>Cases cited: Shaw v. Chambers, 48 Mich., 355; Wayne v. Pouts, 108 Tenn., 145, 158.</p>

<p>1. APPLICATION OF PAYMENTS. Must be made according to agreement of the parties.</p> <p>Where there is a dispute as to which of two debts, payments shall be applied, and the court of chancery appeals has found that there was an agreement that the payments should be applied to a particular debt, such finding is binding and absolutely conclusive on this court. {Post, pp. 152,-154.)</p> <p>2 JUDICIAL SALES. TAXES. Must be paid out of purchase money.</p> <p>The purchaser of land at a judicial sale for the enforcement of a vendor’s lien is entitled to have the property relieved of all in-cumbrances for unpaid taxes, which must be paid out of the proceeds of sale. {Post, p. 154.)</p> <p>3. SAME. Same. Recovery from beneficiaries of purchase money, after confirmation of sale, when.</p> <p>Where, after the confirmation of the sale, and the vestiture of title in the purchaser, and the delivery of the purchase money notes to the beneficiary, the vendor enforcing the lien, who alone was entitled to the proceeds, the purchaser in a settlement with the vendor is entitled to have the purchase money abated and the notes credited to the amount of such taxes, and where the vendor has been overpaid to recover the same from him. {Post, p. 164.)</p> <p>Cases cited and approved: Williams v. Whitmore, 9 Lea, 262; Childress v. Vance, 1 Baxt., 406.</p> <p>4. COURT OE CHANCERY APPEALS. Its finding of facts, including its inferences of fact from evidentiary facts found, is conclusive.</p> <p>The supreme court is bound by the finding of facts made by the court of chancery appeals, and also by its inferences of fact from the evidentiary facts found and reported by it. Indeed in its final analysis, it is the inferences or conclusions of fact from the testimony in the record, and the evidentiary facts deduced therefrom by the court of chancery appeals that is binding and conclusive on the supreme court. The supreme court is bound by the findings of the court of chancery appeals in its final deductions and conclusions of fact to the same, or even greater, extent than to its finding of detached or evidentiary facts. (Post, pp. 155-156.)</p> <p>Statute cited and construed: Acts of 1895, eh. 76, sec. 11.</p> <p>Code cited and construed: Sec. 6322 (S.).</p> <p>Cases cited and approved: Bond v. Montague, 97 Tenn., 727; Bank v. Evans, 95 Tenn., 705; Hughes v. Powers,.99 Tenn., 486; Ellis v. Insurance Co., 100 Tenn., 181; McQuade v. Williams, 101 Tenn., 334; Trust Company v. Trust Company, 101 Ténn., 545; Sawyers v. Sawyers, 106 Tenn., 597.</p>

<p>1. ATTORNEY AND CLIENT. Attorney for plaintiff cannot prevent the dismissal of the suit because of his lien on the recovery by compromise or final judgment.</p> <p>Under the statute providing that attorneys of record who begin a suit in a court of record shall have a lien upon the plaintiff’s right of action from the date of the filing of the suit, the attorneys of record for the plaintiff in an action for personal injuries, who under the terms of their contract of employment are entitled to a percentage of the recovery by compromise or final judgment in lieu of fees for their services, cannot prevent the plaintiff’s dismissal of the suit, nor are they entitled to prosecute the suit to a termination, but the plaintiff may dismiss his suit without their intervention. (Post, pp. 159-165.)</p> <p>Acts cited and construed: Acts of 1899, ch. 243, sec. 1.</p> <p>Code cited: Code of Ga., Sec. 2814.</p> <p>Cases cited and approved: R. R. v. Wells, 104 Tenn., 707: Sharp v. Allen, 11 Lea, 521; Stanton v. Houston, 12 Heist., 266; Yoak-ley v. Hawley, 5 Lea, 673; Stephens v. R. R., 10 Lea, 450; Thompson v. Thompson, 3 Head, 529.</p> <p>Cases cited and distinguished: Triggs v. Chambers, 56 Ga., 279; Moses v. Bagley, 55 Ga., 283; Coleman v. Ryan, 58 Ga., 132.</p> <p>2. SAME. Attorney’s lien on right of action attaches to recovery by judgment or compromise and when it attaches it cannot be defeated without his consent.</p> <p>The lien declared by the statute in favor of plaintiff’s attorney, upon plaintiff’s right of action, follows the transaction without interruption, and simply attaches to that into which the right of action is merged. If a judicial recovery is obtained the lien attaches to that; if a compromise agreement is made the lien fastens itself to that; and in each case, the attorney’s lien is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent. (Post, p. 162.)</p> <p>Act cited and construed; Acts of 1889, ch. 243.</p> <p>Case cited and approved: Railroad v. Wells, 104 Tenn., 707, 712.</p> <p>3. SAME. Statute creating the attorney’s lien in right of action does not deprive plaintiff of control of his suit.</p> <p>Since the enactment of said statute (Acts of 1889, ch. 243) as before, the plaintiff may prosecute, or compromise, or dismiss his suit at will, and the defendant is liable only for such sum as may be adjudged or stipulated in the plaintiff’s favor. The statute does not deprive the plaintiff of the right to control his own suit, which would subject it to grave constitutional objections. (Post, pp. 164-165.)</p> <p>Cases cited and approved: Railroad v. Wells, 104 Tenn., 707; Yoakley v. Hawley, 5 Lea, 673; Stephens v. Railroad, 10 Lea, 450; Thompson v. Thompson, 3 Head, 529.</p> <p>4. DISMISSAL OP SUIT. Out of term time terminates the case except to render judgment for costs.</p> <p>Suits may be dismissed in writing, out of term time as well as in term time, and further costs saved, and a dismissal in vacation puts an end to the suit and terminates the control of the court over it, and the jurisdiction of the court over it ceases except to render judgment for costs. (Post, pp. 163-164.)</p> <p>Code cited and construed: Sec. 4940 (S.); 3923 (M. & V.); 3199 (T. & S. and 1858).</p> <p>Case cited and approved: Stanton v. Houston, 12 Heisk., 266.</p> <p>5. ATTORNEY AND CLIENT. Attorney for plaintiff cannot prevent her dismissal of her bill for divorce, because she has by attachment impounded the husband’s property to secure alimony.</p> <p>Where a plaintiff in a hill for divorce concludes to withdraw her complaint and becomes reconciled to her husband, her attorney cannot prevent the dismissal of her suit, nor will he be permitted to become coplaintiff with her in the prosecution of her suit because by attachment he has impounded the property of the husband to secure her alimony. (Post, ¶. 165.)</p>

<p>1. COMMON CARRIERS. Contributory negligence of passenger voluntarily and unnecessarily riding on platform of moving train-bars recovery.</p> <p>A passenger who voluntarily and unnecessarily undertakes to ride on tbe platform of a moving train cannot recover damages for injuries sustained in consequence of such perilous exposure. (Post, p. 173.)</p> <p>3. SAME. Same. Case in judgment. Demurrer sustained.</p> <p>A declaration in a suit to recover damages for personal injuries sustained by the plaintiff, while a passenger on one of defendant’s trains, alleging in substance that he purchased a ticket entitling him to transportation and took passage upon the rear coach of defendant’s train, and not being able to secure a seat in that coach, because of the crowded and overloaded condition thereof, he stationed himself on the rear platform of the coach and remained there without objection on the part of the defendant and its agents and employees, and while the train was passing a sharp curve at a reckless, rapid and unusual rate of speed, plaintiff was violently precipitated from the train and greatly injured, but not alleging that plaintiff requested any of the employees of defendant to procure him a seat, or that he attempted to find one in any other coach of the train, or that there were, in fact, no vacant seats in the other cars, or that there was not standing room inside the coach, whose platform plaintiff occupied, or at what rate of speed the train was moving, so as to show that it was immoderate and excessive, even if this were a matter which the law regulated, states no cause of action and is demurrable because it appears from the declaration that the injury was brought about by tbe negligence and imprudence of tbe plaintiff in assuming voluntarily and unnecessarily a position on tbe platform of tbe car admittedly dangerous and not designed for tbe use of passengers. [Post, pp. 167-174.)</p>

<p>1. BASTARDS. Legitimation. Effect of.</p> <p>Legitimation of illegitimate children hy decree of the county court, as provided hy statute, removes the taint of bastardy and gives such children the same inheritable blood as if they had been born legitimate. (Post, pp. 179-180.).</p> <p>Code construed: Sec. 5408 (S.);'4387 (M. & V.); 3642 (T. & S. and 1858).</p> <p>Cases cited: Swanson v. Swanson, 2 Swan, 446; McKamie v. Baskerville, 86 Tenn., 459.</p> <p>2. SAME. Property of — Mother’s right to inherit, not affected by legitimation. Case in judgment.</p> <p>But where an illegitimate child was legitimated by his putative father on an application to the county court, as provided by the statute, such proceeding did not alter his relation to his mother nor affect her right to inherit from him. As to his mother, he was still illegitimate and hence on his death intestate, without child or children or wife, property inherited by him from his father descended to his mother to the exclusion of the heirs at law of his father. (Post, pp. 176-182.)</p> <p>Code cited and construed: Sec. 4166 (S.); 3273 (M. & Y.); 2423 (T. & S. and 1858).</p> <p>Cases cited: Lawson v. Scott, 1 Yerg., 92; McCormick v. Cantrell, 7 Yerg., 615.</p>

<p>1. TAXATION. Constitutional exemption — The term “produce of the State” embraces, what.</p> <p>The term “produce of the State” as used in' article 2, section 30, of the constitution of the State, exempting from taxation all articles manufactured from “the produce of the State” embraces whatever is produced or grown in the State, or is the yield of the State, whether it be crops or timber or coal or iron or marble or wood or any other article which may be treated as produced or grown within the State from or on the soil, or may be found in the soil. (Post, pp. 187-188.)</p> <p>Constitution construed: Art. 2, sec. 30.</p> <p>2- SAME. Same. Logs and lumber are exempt as “articles manufactured from the produce of the soil,” when.</p> <p>Logs grown on the soil of the State, when in the hands of and upon the yard of the sawyer or mill-operating manufacturer, ready to be sawed, and the lumber upon the yard, cut from said logs, are articles manufactured from the produce of the State, within the meaning of article 2, section 30 of the constitution .of the State, exempting from taxation all articles manufactured from the produce of the State. (Post, pp. 188-191.)</p> <p>Constitution construed: Art. 2, see. 30.</p>

<p>1. COMMON CARRIERS. Liable only for wanton injury, where there is no relation of carrier and passenger.</p> <p>If the relation of passenger and carrier has never been established, or if it has been forfeited by the passenger, the carrier owes him no duty, and will be liable to him only for willful, wanton or intentional injury. (Post, pp. 201-202.)</p> <p>3. SAME. Relation of carrier and passenger is not established, when.</p> <p>Where a person boards a train without a ticket, and when the conductor in uniform passes through the ear calling for, and taking up the tickets and fares, it is the duty of such person, when the conductor approaches him, to tender the fare in money, and to' notify the conductor of his destination, and when he fails to do so, and the conductor fails to discover him, the relation of carrier and passenger is not established. (Post, pp. 202-203.)</p> <p>3. SAME. Duty of conductor to look after whom as passengers, when.</p> <p>When the conductor has called for tickets, and ascertained the destination of passengers, he can only be required to see after those, whom, by proper diligence, he has been able to discover, and not after those who evaded or neglected to pay fare or notify him of their destination, and especially is this true of persons who enter or leave the coach improperly, and at a point where they can not be seen by the conductor. (Post, p. 203.)</p>

<p>1. WILLS. Power of sale of property vested in executors by implication, when.</p> <p>It is well settled law that when a testator directs property to he sold without expressly vesting the power in any one, and the proceeds of the sale are made a trust fund or' are to he distributed by the executors, the power to make a sale is, by implication, vested in the executors. (Post, pp. 208-211.)</p> <p>Cases cited and approved: Gee v. Graves, 2 Head., 239; Queener v. Trew, 6 Heisk., 69; Meakings v. Cromwell, 1 Seld., 139; Parker v. Sparkman, 2 Tenn. Cas., 545; Rankin v. Rankin, 36 Ill., 298; Silverthorn v. McKinster, 12 Pa., 71; Vaughan v. Farmer, 90 N. C., 607; Mandlebaum v. McDonell, 29 Mich., 84; Clark v. Horn-thal, 47 Miss., 469; Davis v. Hoover, 112 Ind., 423.</p> <p>2. SAME. Power of sale vested in executors coupled with an interest may be executed by the survivors.</p> <p>When the power of sale of land vested in executors is coupled with an interest, and a trust is created, the survivors are fully authorized to execute the power originally vested in all of the executors, and a sale made by the survivors, in the execution of such power, will be valid and effective to pass the title to the property. (Post, pp. 208, 211.)</p> <p>Case cited and approved: Fitzgerald v. Standish, 102 Tenn., 389.</p> <p>3. SAME. Executors’ exercise of discretion conferred in power of sale is conclusive and not subject to review.</p> <p>When the executors are authorized to divide the property, or sell it for division, the exercise of their discretion as to the necessity or propriety of a sale, instead of a division, will be conclusive and not subject to review. (Post, pp. 208, 211.)</p> <p>Cases cited and approved: Fitzgerald v. Standisb, 102 Tenn., 389; Matthews v. Capshaw, 109 Tenn., 480. ■</p> <p>4. SAME. Equitable conversion, of realty into personalty by direction of sale, when.</p> <p>The doctrine of conversion of real into personal property is recognized in this State, and a provision for the sale of real estate and distribution of the proceeds contained in a will is evidence sufficient to show the intention of the testator to make such a conversion, and is effective to do so. But the intention to make the conversion must be clear and certain, and the direction to sell the land for that purpose imperative and unconditional. The intention must appear by explicit direction and the conversion be obligatory upon the executor or trustee. If the direction to sell is made to depend upon contingencies, or discretion is given to the executors to sell for distribution or divide the property in kind, the intent of the testator to make a conversion is not sufficiently evident and positive and none is effected. (Post, pp. 208, 211-213.)</p> <p>Cases cited and approved: Wheeless v. Wheeless, 92 Tenn., 296; Wayne v. Fouts, 108 Tenn., 145.</p>

<p>1. LIFE INSURANCE. Wills. Husband may, by will, dispose of policy payable to his executors, administrators or assigns.</p> <p>Notwithstanding our statutes, which provide that insurance on a husband’s life shall inure to the benefit of his widow and children or next of kin, to be divided according to the law of distributions, free from the claims of his creditors, a husband may, after taking out a policy on his own life, payable to his executors, administrators or assigns, dispose of the same by will, though if it be made payable to his legal heirs or any other person than his executors, administrators, or assigns, it would not be subject to such disposition. (Post, pp. 216-217.)</p> <p>Code cited and construed: Secs. 4030 and 4231 (S.).</p> <p>Cases cited and approved: Williams v. Corson, 2 Tenn. Ch., 269; Williams v. Carson, 9 Baxter, 516; Gosling v. Caldwell, 1 Lea, 455; Life Asso. v. Winn, 96 Tenn., 226; Handwerker v. Dier-meyer, 96 Tenn., 624; Weil v. Trafford, 3 Tenn. Ch., 108.</p> <p>2. SAME. SAME. Will that deprives widow and children or ■ next of kin of life insurance must use apt words and not general terms.</p> <p>The proceeds of an insurance policy on a husband’s life, made payable on his death to his executors, administrators, or assigns, does not become subject to the claims of creditors under his will, by which he merely directs the prompt payment of all his debts, and provides that after such debts are paid, all the remainder of his property shall go to his wife, but which fails, in any manner by apt words or otherwise, to refer to any policy of insurance on his life. In order to deprive the widow and children or next of kin of the proceeds of such policy, and give the same to creditors, apt words must be used for that purpose, and the use of general terms is not sufficient. (Post, pp. 217-221.)</p> <p>Cases cited and approved: Harvey v. Harrison, 89 Tenn., 470, 476, 477; Rose v. Wortham, 95 Tenn., 506.</p> <p>Cases cited, approved and distinguished: Weil v. Trafford, 3 Tenn. Ch., 108; Union Trust Co. v. Cox, 108 Tenn., 316.</p>

<p>FROM SHELBY.</p> <p>Appeal in error from the. Circuit Court of Shelby County. — L. H. Estes, Judge.</p>

<p>1. STREET RAILROADS. Failure to look and listen for oars not negligence, when.</p> <p>While it is ordinarily the duty of a person traveling on a street in a vehicle to look and listen for the approach of cars, yet this is not an absolute rule of law, hut it is for the jury to say in view of all the proof, whether the plaintiff was guilty of contributory negligence in failing to look and listen. (Post, p. 229.)</p> <p>Cases cited and approved: Citizens’ Rapid Transit Co. v. Seigrist, 96 Tenn., 119; Saunders v. City Suburban-Railroad Company, 99 Tenn., 130; Wilson v. Street Railway Co., 105'Tenn., 74.</p> <p>Case cited, distinguished and approved: Nashville Railway Co. v. Norman, 108 Tenn., 324.</p> <p>S. SAME. Failure to look and listen for cars is negligence, when.</p> <p>But when a person is about to pass over the track of a street railroad in the nighttime, at the foot of a heavy grade, it is his duty to look and listen for the approach of a car before he attempts to pass over the track, and if he' fails to look and listen, and such failure is the direct and proximate cause of the accident, or directly contributes to it as its proximate cause, this fact will defeat the right of recovery. (Post, pp. 229-231.)</p> <p>Case cited and approved: Nashville Railway Co. v. Norman, 108 Tenn., 324.</p>

<p>1. STREET RAILROADS. Liable for negligence of conductor 'in issuing transfer tickets.</p> <p>It is negligence on the part of a street car company for a conductor to give a passenger a wrong transfer ticket, and tlie passenger can accept the transfer ticket without question, and his acceptance of such ticket will not constitute negligence on his part. The passenger will not be required to scrutinize the ticket, but he may assume that the conductor has given him the proper ticket; and if the conductor make a mistake, it is the fault of the company, for which it is liable. (Post, p. 235.)</p> <p>Cases cited and approved: O’Rourke v. Street Railway Co., 103 Tenn., 126-133.</p> <p>3. SAME. 'Same. Damages for wrongful expulsion on defective transfer ticket.</p> <p>When a passenger on a street car pays his fare, and is, by the conductor thereon, given a transfer ticket, which the conductor on another car, to which the passenger properly changes, refuses to accept, and the passenger is forcibly expelled from the car, he can recover from the street car company all approximately resulting damages, including those for humiliation and mortification, if such were in fact sustained. (Post, pp. 235, 236.)</p> <p>Case cited and approved: O’Rourke v. Street Railway Co., 103 Tenn., 135.</p> <p>3. SAME. 'Condition indorsed on transfer ticket unreasonable and void, when.</p> <p>A condition printed on the back of a transfer ticket requiring the passenger to examine date, time and direction, and see that the same are correct, is unreasonable, and tbe passenger will not be required to verify tbe act of tbe conductor in issuing tbe transfer ticket and tbe court will not enforce sucb a condition. (Post, pp. 236-238.)</p> <p>Case cited and approved: O’Rourke v. Street Railway Co,., 103 Tenn., 141.</p>

<p>1. BANKRUPTCY. Evidence sufficient to show preferential payment.</p> <p>Where a debtor to a bank consulted with its cashier with reference to obtaining an extension of time from his other creditors, and the cashier was also aware that the debtor had asked an extension of time and additional line of overcheck with his bank, which, on instructions of the finance committee, the bank had declined to grant, after which the debtor offered to sell his stock of goods to the bank, but it declined to buy, when the cashier advised the making of a general assignment, but instead of this, the debtor sold his stock of goods for a sum eguaí to his indebtedness to the bank, with which sum he discharged his said indebtedness to the bank, within four months before the filing of a petition in bankruptcy, the evidence was sufficient to show that the bank had reasonable ground for believing that a preferential payment was intended, in the sense of bankruptcy law. (Post, pp. 243-244.)</p> <p>Cited and construed: Bankruptcy Law, Act July 1st, 1898 (30 Stat., 562, c. 541.), sec. 60b.</p> <p>2. SAME. Same. Preferential payment to holder of note though the indorser is solvent.</p> <p>The rule as to preferential payments within the sense of the bankruptcy law is not changed by the fact that the payment is made by the maker to the holder of the indorsed note, though the indorser thereon is liable and solvent; and in case of such ■ preferential payment the trustee in bankruptcy may recover from such holder such preferential payment. (Post, pp. 244-246.)</p> <p>Case eited and approved: Bartholow v. Bean, 18 Wall., 635.</p> <p>Cited? and construed: Bankruptcy Law of 1868 (15 Stat., 227, c. 258); Bankruptcy Law of 1898 (30 Stat., 562, c. 541), sec. 60b.</p> <p>8. SAME. Same. Same. Indorser is not released by holder’s refusal to accept preferential payment.</p> <p>Where the holder of a note refuses to receive a preferential payment in the sense of the bankruptcy law, which furnishes the paramount rule of conduct for all the parties to the transaction, the indorser thereon can not rely upon the refusal to accept such tendered payment as a defense to a suit against him by the holder. (Post, pp. 244-247.)</p> <p>Case cited and approved: ■ Bartholow v. Bean, 18 Wall., 635.</p> <p>Cited and construed: Bankruptcy Law of 1868 (15 Stat., 227, c. 258); Bankruptcy Law of 1898 (30 Stat., 562, c. 541), sec. 60b.</p> <p>4. SAME. Same. Same. Same. Holder’s acceptance of .preferential payment leaves him without remedy against in-dorser or bankrupt’s estate.</p> <p>Where a holder of a note receives a preferential payment, he makes himself liable to a judgment for the amount in favor of the bankrupt’s assignee, and loses his right to recover either of the indorser or of the bankrupt’s estate. (Post, pp. 244-247.)</p> <p>Case cited and approved: Bartholow v. Bean, 18 Wall., 635.</p> <p>Cited and construed: Bankruptcy Law of 1868 (15 Stat., 227, c. 258); Bankruptcy Law of 1898 (30 Stat., 562, c. 541), sec. 60b.</p> <p>5. SAME. Original debt not set off against preferential payment sued for.</p> <p>In a suit by the trustee in bankruptcy to recover the preferential payment, the creditor of the bankrupt can not set off the debt on which the alleged preferential payment was made in violation of the bankruptcy law. (Post, pp. 247-250.)</p> <p>Cited and construed: Bankruptcy Law (July 1, 1898, 30 Stat., 565, c. 541), sec. 68.</p> <p>Cases cited, approved and distinguished; Re Little (D. C.), HO Fed., 621; Re Myers (D. C.), 99 Fed., 691.</p> <p>6. SAME. Preferential creditors must surrender preferences before proving claims against bankrupt’s estate.</p> <p>A claim of the creditor, who has received a preference, is not provable in bankruptcy unless the preference be surrendered. The rule applies even though the preference was innocently received. (Post, p. 260.)</p> <p>Cited and construed: Bankruptcy Law (July 1,1898, 30 Stat., 660, c. 641), sec. 57g.</p> <p>Case cited and approved: Pirie, Scott & Company v. Chicago Title and Trust Company, 182 U. S., 438.</p>

<p>1. MECHANIC’S LIEN. Enforcement by bill or petition in chancery and circuit court.</p> <p>Our statutes provide a uniform method of enforcing a mechanic’s lien in the chancery and circuit courts by bill or petition; and this suit, whether in the one court or in the other, should be in the nature of an equity suit, and conducted as such. (Post, pp. 254-255.)</p> <p>Cases cited and approved: McLeod &' McGrath v. Capell, 7 Bax., 196-198; Hillman v. Anthony, 4 Bax., 444-447.</p> <p>Cases approved and distinguished: Brown v. Brown, 2 Sneed, 431; Manufacturing Company v. Campbell, 93 Tenn., 469; Taylor v. Lumber Company, 107 Tenn., 41.</p> <p>Code cited and construed: Secs. 3543, 5306-5311 (S.); secs. 2747, 4286-4291 (M. & V.); secs. 1987, 3543-3548 (T.' and S. and 1858).</p> <p>.3. SAME. Cannot be enforced by attachment upon affidavit in chancery or circuit court.</p> <p>The mechanic’s lien, or the lien of a materialman for materials, furnished to the contractor to be used, and which are used by the contractor, in the erection of a house upon the land of another, under a contract with the owner thereof, Gan not be enforced by an attachment issued or sued out upon an affidavit, and by summons issued. The suit must be commenced by bill or petition under oath setting forth the facts if commenced In the chancery or circuit court. (Post, pp. 254-260.)</p> <p>Cases cited, approved and distinguished: Brown v. Brown, 2 Sneed, '431; Manufacturing Company v. Campbell, 93 Tenn., 469; Taylor v. Lumber Company, 107 Tenn., 41.</p> <p>Code cited and construed: Secs. 3543, 5306-5311 (S.); secs. 2747, 4286-4291 (M. & V.); secs. 1987, 3543-3548 (T. and S. and 1858).</p> <p>3. SAME. Fiat is necessary for attachment to enforce.</p> <p>The clerk of the circuit court has no power to issue an attachment writ to enforce a mechanic’s lien, without the fiat of a judge or chancellor. (Post, pp. 260-262.)</p> <p>Case cited, and approved: Lane v. Wood, 1 Shan. Cases, 648.</p> <p>Case cited and overruled: Brown v. Brown, 2 Sneed, 431.</p> <p>Code cited and construed: Secs. 5211-5221, 5276-5298 (S.); secs. 4192-4202, 4257-4279 (M. & V.); secs. 3455-3463, 3516-3538 (T. & S. and 1858).</p>

<p>1. WRIT OS’ ERROR, AND SUPERSEDEAS. Suing out, operates as entrance of appearance.</p> <p>Where, after judgment by default is taken, and a writ of inquiry is awarded and executed, the damages ascertained, and final judgment therefor is entered, the defendant sues out a writ of error and supersedeas, he thereby enters his appearance, and the supreme court obtains jurisdiction of his person, and its judgment against him is valid and conclusive of the matters therein adjudged, although the original summons may not have been served, upon him. (Post, pp. 264-268.)</p> <p>Cases cited and approved: Palmer v. Malone, 1 Heisk,, 549; Woolridge v. Boyd, 13 Lea, 151; Hurt v. Long, 90 Tenn., 448; Taylor v. Sledge, 108 Tenn., 719.</p> <p>3. RES AD JUDICATA. Judgment by default is as conclusive as judgment upon defense.</p> <p>A judgment by default is as conclusive against the parties as one rendered in a case where the defendant appears and makes defense, as to all material matters properly pleaded and averred in the declaration. (Post, pp, 268-270).</p> <p>Case cited, distinguished and approved: Sale v. Eichberg, 105 Tenn., 333.</p> <p>3. SAME. Same. Case in judgment.</p> <p>Where a landlord rents a building to a tenant, and during the tenant’s occupancy the floors fall, which the tenant claims was caused by reason of defective construction or want of proper repairs, and the landlord by reason of the tenant’s wrongful overloading the upper floors, and the tenant sues the landlord for damages sustained and recovers a judgment by default, wbicb is thereafter affirmed by the supreme court upon a writ of error, sued out by the landlord, subsequent to which the landlord sues to recover damages from the tenant for the alleged wrongful overloading of the building, the issue in both actions is the cause of the falling of the floors, and therefore the judgment in the first action is res adjudlcata and conclusive against the landlord, and a bar to the maintenance of his suit. (Post, pp. 264-270.)</p> <p>Case cited, distinguished and approved: Sale v. Eichberg, 105* Tenn., 333.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby County. — ■ F. H. Heiskell, Chancellor.</p>

<p>1. STREET RAILROADS. Negligence presumed from falling of trolley wire.</p> <p>Negligence on the part of an electric street railway company, in the selection, construction or supervision of its trolley wire, is presumed, without further evidence, from the fact that such wire, dangerously charged with electricity, falls on or near a public street, even if its fall was caused by a slipping of the trolley pole of a passing car, and this presumption of negligence must be overcome by the street railway company. (Post, pp. 280-281.)</p> <p>Case cited and .approved: Chattanooga Electric Railway Company v. Mingle, 103 Tenn., 667.</p> <p>.3. SAME. Doctrine of res ipsa loquitur applied.</p> <p>The doctrine of res ipsa loquitur applies in case of breakage of the wires of an electric street railway company, so as to require the company to repel the presumption of negligence arising from the mere fact of breakage. (Post, p. 282.)</p> <p>Case cited and approved: Chattanooga Electric Railway Co. v. Mingle, 103 Tenn., 667, 671. .</p> <p>3. SAME. Same. Evidence, sufficient to support finding of negligence. Case in judgment.</p> <p>In an action against an electric street railway company for injuries caused by the falling of a trolley wire, though it is not definitely shown what caused the breakage and fall of said wire, but tbe plaintiff testified tbat the trolley pole of an approaching car knocked the wire down and the employees of the company, whose duty it was to make repairs testified in general terms auite emphatically as to the quality of the wire, its condition and frequent inspection.</p> <p>Eeld: That, in view of the presumption of negligence arising from the manner of the injury, a finding of negligence was sustained by the evidence. (Post, pp. 280-281.)</p> <p>4. SAME. Highest degree of care required in the construction and maintenance of electric wires.</p> <p>Electric street railroad companies, in view of the danger attendant upon the breakage and falling of overhead electric wires in the streets and the results to be apprehended to persons in the street, should be held to the highest or utmost degree of care in the construction, maintenance and operation of its lines. • (Post, pp. 281-287.)</p> <p>Case cited, approved and distinguished: Chattanooga Electric Ry. Co. v. Mingle, 103 Tenn., 667, 670.</p> <p>Cases cited and approved: Street Ry. Co. v. Nugent (Md.), 38 Atl., 779; Denver Const. Co. v. Simpson, 21 Colo., 371; Giraudo v. Electric Imp. Co., 107 Cal., 120; Block v. Milwaukee Street Railway Co., 89 Wis., 371; Haynes v. Raleigh Gas Co., 114 N. C., 203; City Electric Railway Go. v. Conery, 61 Ark., 381; Cook v. Wilmington City Electric Co., 9 Houst., 306; McAdam v. Central Railroad Co., 67 Conn., 445.</p>

<p>1. GIFTS INTER, VIVOS. Not effective and valid when dependent on contingency.</p> <p>Where a bank depositor delivered to another his bank book showing a sum of money due to him in a certain bank which was subject to be drawn out by draft or written orders, and at the same time stated to the donee that he was going away, and wanted her to have the money to his credit in the bank as evidenced by said book, and that if he did not return, he wanted her to understand that it was hers, and said book was delivered to her for the purpose of enabling her to collect said money in the event he did not return, and he then went away, there is no valid gift inter vivos, because the donor retained control and dominion over the property, and it was within his power upon his return to revoke this gift at any time. The gift was not therefore complete and executed, and hence did not take effect in ‡r&senti. The donee’s dominion and control over the gift was entirely dependent upon the contingency of the nonreturn of the donor and that matter was left in uncertainty. The donee manifestly had not complete and executed title to the gift so long as there was a contingency dependent upon the return of the donor; and this contingency is not removed by an unexplained absence of more than seven years without any knowledge or information of his whereabouts, though diligent inquiry had been made therefor. (Post, pp. 290 — .)</p> <p>Cases cited and approved:, McEwen v. Troost, 1 Sneed, 186; Brunson v. Brunson, Meigs, 630, 641; Sheegog v. Perkins, 4 Bax., 273, 281; Marshall v. Russell, 93 Tenn., 265; Grover v. Grover (Mass.), 24 Pick., 261; Dale v. Lincoln, 62 Ill., 22; Taylor v. Henry, 48 Md. 550; Walden v. Dixson, 5 T. B. Mon., 170.</p> <p>2. GIFTS INTER VIVOS OR, CAUSA MORTIS. Delivery of possession is necessary to make gift absolute and irrevocable; effect of delivery.</p> <p>The parol gift of a chattel or chose in action, whether it be a gift inter vivos or causa mortis, uoes not pass title to the donee without delivery and transfer of possession. The effect of a valid delivery is to place the ’subject of the gift in the control and dominion of the donee, and his title and right of possession, by said gift and delivery, become absolute and irrevocable.' (Post, pp. 293-296.)</p> <p>Cases cited and approved: McEwen v. Troost, 1st Sneed, 186; Marshall v. Russell, 93 Tenn., 265; Grover v. Grover (Mass.), 24 Pick., 261; Dale v. Lincoln, 62 Ill., 22; Taylor v. Henry, 48 Md., 550.</p> <p>3. GIFTS INTER VIVOS. The intention must be clearly made out.</p> <p>In order to’ make a gift inter vivos complete, it must appear absolutely and beyond a doubt that the donor intended to part with his dominion over the property. If the intention to give is not clearly made out, it can not be supported, and if upon the facts, the matter be enveloped in doubt, that- doubt must prevail against the hypothesis of a gift. (Post, pp. 295-296.)</p> <p>Case cited and approved: Sheegog v. Perkins, 4 Bax., 273, 281; 282.</p> <p>4. GIFTS INTER VIVOS, or CAUSA MORTIS. . Stronger evidence required to establish gifts causa mortis than gift inter vivos.</p> <p>It is well settled that stronger, more cogent and stringent evidence is required to establish a gift causa mortis than a gift inter vivos, because the former donations amount to a revocation pro tanto of written 'wills, and, not being subject to the forms prescribed for nuncupative wills, are of a dangerous nature, open to the door of fraud and perjury. (Post, p. 296.)</p> <p>Cases cited and approved: Brunson v. Brunson, Meigs, 630, 641, 642; Sheegog v. Perkins, 4 Bax., 273, 281.</p>

<p>1. AGENCY. Collector of rents, paying same over to his principal, without notice from payor, is relieved from liability.</p> <p>A rental agent, who collects rents voluntarily paid to him by the actual tenant of his principal, is the mere carrier or instrument through which the rents are paid by the occupant of the property to his acknowledged landlord. The money is paid to the agent to be paid to his principal, and he has no right to withhold it from him, nor to question his right to it. Where the agent pays to his principal money voluntarily paid to him for that purpose, without notice from the payor not to. do so, he is relieved from all responsibility for it. (Post, pp. 299-300.)</p> <p>Cases cited and approved: • Roach’v. Turk, 9 Heisk., 709; Met-calf v. Denson, 4 Bax., 565.</p> <p>3. AGENCY. REGISTRATION. Registration is no constructive notice to rental agent.</p> <p>Registration is only constructive notice to creditors and subsequent purchasers, or parties claiming some interest in, or lien upon, the property, and the rental agent is not affected with constructive notice of the registration of a deed, made by the trustee under a deed of trust depriving his principal of his title to the rented land. (Post, pp. 300-301.)</p> <p>Case cited and approved: Frizzell v. Rundle, 88 Tenn., 397.</p> <p>3. AGENCY. Rental agent, collecting rents is not affected by actual notice from owner, who is not his principal.</p> <p>The rental agent is not affected by actual notice, given him by the purchaser of land, sold under deed of trust, that he had purchased the property and would hold the agent for the rents collected. The money which the agent collects does not belong to such purchaser. It is not paid for him. The rental agent is not his agent. The money is paid to the rental agent to be paid to, his' principal, and the agent has no right to withhold it from his principal upon the demand of such purchaser. Such purchaser is not prejudiced by the action of the agent. The principal is answerable to such purchaser for the rents which he has received. (Post, p. 301.)</p> <p>Cases cited and approved: Bank v. Bank, 6 Pet., 8; Hancock v. Gomez, 58 Barb., 490; Aubry v. Pish, 36 N. Y., 47.</p> <p>4. SAME. Rental agent merely receiving and paying over rents to his principal is not a trespasser against another, the owner of the land.</p> <p>The rental agent, who continues to collect the rents for his principal after another person has purchased the same at a sale made under the principal’s deed of trust, where such agent does not take possession of the property, but merely receives the rents which the tenants had contracted to pay the principal, and delivers the same to him, is not a trespasser, and is not liable on this ground. (Post, pp. 301-302.)</p>

<p>FROM CROCKETT.</p> <p>Appeal from tbe Chancery Court of Crockett County. —A. G-. Hawkins, Chancellor.</p>

<p>1. JUDGMENT LIEN. Does not attach, where judgment debtor is a mere conduit for transmission of title.</p> <p>Where a judgment debtor is the mere conduit or channel for the transmission of title from the vendor to the purchaser, there is no such seizin in him as affords a point of time for a judgment lien to attach to the land, as where the vendor makes a deed to the judgment debtor and he makes a deed to the vendor’s purchaser, and the two deeds are withheld by the respective grantors, and are simultaneously delivered to the pur- ■ chaser, who at the same moment delivers them to the register for registration. (Post, pp. 308-309.) v</p> <p>Case cited and approved: Huffaker v. Bowman, 4 Sneed, 94.</p> <p>Case cited, distinguished and approved: Gregg v. Jones,. 5 Heisk., 459.</p> <p>Code cited and construed: Sec. 4139 (S.); sec. 3244 (M. & V.); sec, 2399 (T. & S. and 1858).</p> <p>S. FRAUDULENT CONVEYANCES. Innocent purchaser is not affected by fraud between his grantors, when.</p> <p>It is immaterial whether the original transaction between the vendor and judgment debtor, whereby the debtor conveyed to the vendor the land in controversy, was fraudulent or not, where if it was fraudulent, the purchaser in no way participated in the fraud, and was not advised of any wrong that might have been perpetrated by the parties. (Post, p. 309.)</p> <p>3. JUDGMENT LIEN. FRAUDULENT CONVEYANCE. Case in judgment.</p> <p>A. debtor transferred all his property to a third person several months before the rendition of a judgment against him, after which the complainant, without notice of any fraud in the conveyance, offered to buy part of the land included therein. The third person declined to convey, direct, but offered to make a. conveyance back to the judgment debtor, who would convey to complainant. This was done, and both deeds were simulta--neously delivered to complainant, and by him to the register for registration. . ¡ \</p> <p>Held, that it was immaterial whether there was any fraud in the original transaction or not, because the complainant had -no notice thereof, and that no judgment lien attached to the land while passing through the judgment debtor as mere conduit for the transmission of the title. (Post, pp. 308-310.).</p>

<p>1. DEPOSITIONS. May be read or not when witness is present; right to cross-examine.</p> <p>When a deposition of a witness, in or out of the county, has been taken by either party, and the opposite party has brought the witness into court by subpoena, the party who has taken the deposition may read it, or may examine the witness orally, or may decline to do either, as he chooses; but in either event the opposite party may examine the witness, treating him as the witness of the party who has taken his deposition, as to all matters, whether brought out in the deposition or not. (.Post, pp. 313-315.)</p> <p>Code cited and construed; Sec, 5626 (S.); sec. 4591 (M. & V.); see. 3837 (T. and'S. and 1858).</p> <p>Cases cited and approved; Ford v. Ford, 11 Humph., 89; Turney v. Officer, 3 Head, 567; Puryear v. Reese, 6 Cold., 27; Sweat v. Rogers,* 6 Heisk., 122.</p> <p>Case cited and overruled: Puryear v. Reese, 6 Cold., 21.</p> <p>2. STATUTORY CONSTRUCTION. Word “shall” is a convertible term with the word “may” when.</p> <p>Under a statute providing that a witness, whose deposition has been taken, if summoned by the opposite party, shall be examined as if summoned by the party taking his deposition, the word “shall” therein used does not make an examination imperative, hut is only intended to lay down the rule that he' may be examined orally by either party. The word “shall” has been held to he a convertible term with the word “may.” (Post, p. 315.)</p> <p>Cases cited and approved: Bank v. Johnson, 3 Humph., 28; Barnes v. Thompson, 2 Swan, 313.</p>

<p>1. CHANCERY PLEADING AND PRACTICE. Bill of inter-pleader. Objection on account of complainant’s interest in subject-matter, where and how made.</p> <p>The insistence that a bill of interpleader can not be maintained, because complainant asserts on the face of the bill an interest in the fund .to the extent of compensation for his services is an objection that must he made by a demurrer interposed in the lower court, and such objection can. not be made for the first time in the supreme court. (Post, p. 326.)</p> <p>2. SAME. Bill of trustee for instructions may propound questions involving his duties, the trust estate, and the title of himself and others to the property.</p> <p>A bill filed by a trustee for instructions and directions in respect of the disposition of a trust fund in his hands may propound questions involving not only his duty within the acknowledged limits of the trust, and with reference to the trust estate, but also the determination as to the title of the trustee and others to the property. (Post, pp. 326-327.)</p> <p>Cases cited and approved: Daniel v. Pain, 5 Lea, 258; Traphagen v. Levy, 45 N. X Eq., 448.</p> <p>3. SAME. Same. Bill of trustee propounding questions involving title of himself and others to the property must make all interested persons parties.</p> <p>Where a trustee’s bill for-instructions propounds questions involving the determination as to the title of the trustee and others to the property, all persons interested in the several questions should be before tbe court, in order that they may be bound by the court’s decree. In their absence, the decree will serve only for the guidance and protection of the trustee in his relations to his trust. Unless such parties are before the court, it is manifest that the court should stay the case until they are brought in, or limit its determination of questions presented to the present need of the trustee. (Post, p. 327.)</p> <p>Cases cited and approved: Daniel v. Fain, 5 Lea, 258; Traphagan v. Levy, 45 N. J. Eq., 448.</p> <p>4. SAME. An estoppel, to be available, must be pleaded.</p> <p>The defense of estoppel must be pleaded in the answer. It is well-settled law in this State that an estoppel in order to be available, must be pleaded. The rule is founded upon the doctrine that evidence relating to matters not stated in the pleadings can not be made the foundation of a decree. (Post, p. 330.)</p> <p>Cases cited and approved: Bank v. Insurance Company, 85-Tenn., 87; Turley v, Turley, 85 Tenn., 260.</p> <p>5. CORPORATION'S. Consolidation by purchase; consideration for giving surplus of bonds issued and held to retire previously issued outstanding bonds to stockholders.</p> <p>Where the stockholders -of two corporations agree upon a consolidation, by one purchasing and taking over the entire property and franchises of the other, and issuing stock and bonds to its stockholders in payment thereof, and assuming all the debts of the absorbed corporation and issuing and setting aside $100,000 in bonds for the purpose of retiring $96,000 of outstanding bonds of the- absorbed corporation, with an agreement that any surplus of the $100,000 should be divided between the then stockholders of the two corporations, there was a valuable consideration to support the resolution and contract disposing of the surplus. (Post, pp. 320, 330-332.)</p> <p>6. SAME. Same. Who can and who cannot object to such disposition of corporate property.</p> <p>Where, in such case as stated in the foregoing headnote, all the-stockholders in both corporations fully agree, and no objection, is made by a dissenting stockholder, nor by an existing creditor, nor by a subsequent creditor, no other authority can object to-'•such disposition of the corporate property, unless it be the State-in some proper proceedings. (Post, p. 333.)</p> <p>7. SAME. What transfer of stock carries with it.</p> <p>'All the transfer of stock in a corporation carries with it is the-right to receive dividends, and to participate in corporate meetings, and the remote right to share in the assets on hand at the dissolution of the corporation. (Post, pp. 333-334.)</p> <p>8. SAME. Same. Such surplus accrues to stockholders as. individuals and does not pass with sale of their stock.</p> <p>The transfer of all the stock in the absorbing corporation after-the consolidation of the two corporations, as in the case stated', in the fifth headnote, does not, by implication, pass the interest of the stockholders in the surplus as an incident to the stock,, the right to participate in which accrued to them as individuals. (Post, p. 334.)</p> <p>9. SAME. Same. Surplus not abandoned by mortgage approved, by stockholders making no mention of it.</p> <p>The surplus mentioned and disposed of in the fifth headnote was not abandoned because the mortgage executed by the absorbing-corporation to secure its bonds, and which was approved and confirmed by the stockholders of both corporations, made no-mention of the surplus. (Post, p. 334.)</p> <p>10. SAME. Same. Surplus does not include appreciation in value but the excess of the four bonds.</p> <p>The term surplus as used in the fifth headnote refers only to the excess of the four bonds, and does not include the subsequent appreciation in value of the new or collateral bonds before the old bonds were retired. (Post, pp. 325, 334-335.)</p> <p>11. TRUST AND TRUSTEES. Trustee allowed compensation, counsel fees, and costs out of trust fund on a bill for instructions.</p> <p>The cost of this suit, which was a bill for instructions filed by the trustee, compensation of the trustee, and his counsel fees were paid out of the entire trust fund, which included the appreciation in value above the par value as well as the surplus defined in the tenth headnote. (.Post, pp. '319, 324, 32'6, 335-336.)</p>

<p>1. FRAUD. A bank is affected with, its president’s knowledge where it takes the benefit of his fraud in a contract.</p> <p>Where a bank held all the shares of stock, representing the entire capital stock of a corporation, as collateral security, pledged to it to secure an indebtedness by the owner thereof, and sold the same to enforce the collection of its debts, with an agreement with the owner, that the hank would buy said property at the sale, and sell it to the owner at the sale price, made by the president of the hank who owned a controlling interest in the stock of the hank, and was actively engaged in the management of its affairs, and iñ fact controlled its acts and contracts as he saw proper, and purporting to act in the capacity of president of the bank, in making such agreement with the owner of such pledged collateral security, at which sale the bank became the purchaser of said property, and when the owner sought to appropriate the benefits of the agreement, upon which he had relied and acted, the president repudiated the contrapt and asserted the hank’s ownership of the property, the legal result is that the president’s knowledge in respect to the agreement became the knowledge of the hank, and thus haying knowledge of the president’s fraud, and buying the property and keeping it with that knowledge, the bank became a party to the fraud and responsible therefor. {Post, pp. 341-345.)</p> <p>Cases cited and approved: Bank v. Campbell, 4 Hum., 395; Franklin v. Ezell, 1 Sneed, 497, 500; Tagg v. Bank, 9 Heisk., 479; Winslow v. Harriman Iron Company (Tenn. Ch. App.), 42 S. W., 698; Barnard v. Iron Company, 85 Tenn., 139, 148, 149.</p> <p>2. SAME. Same. Charge to jury as to the authority of the bank president, and ratification by bank’s acceptance of benefits of his contract.</p> <p>Where, in an action against a bank for conversion of certain pledged property worth fifty thousand dollars, which was purchased by the bank for thirty-one thousand and seven hundred dollars, under the agreement as stated in the foregoing headnote, it is proper for the court to charge the jury that it was without the general scope of the bank president’s authority to make such an agreement, and unless the authority by the bank to the president to make the same or the bank’s acceptance of the benefit of the agreement is shown, the contract would not be binding on the bank. (Post, pp. 342-346.)</p> <p>Cases cited and approved: Bank v. Campbell, 4 Hum., 394; Franklin v. Ezell, 1 Sneed, 497, 500; Tagg v. Bank, 9 Heisk., 479; Winslow v. Harriman Iron Company (Tenn. Ch. App.), 42 S. W., 698; Barnard v. Iron Company, 85 Tenn., 139, 148, 149.</p> <p>3. SAME. Same. Same. Fraud is not obviated because the owner owed the bank more than the value of the property.</p> <p>Where, under such agreement as stated in the foregoing head-notes the bank got property worth fifty thousand dollars, for the sum of thirty one thousand and seven hundred dollars, it could not obviate such fraud as harmless on the ground that it was not benefited by the purchase, and likewise the owner was not injured because the hank could have continued to bid up to the full amount of the debt which was more than fifty-nine thousand dollars, and would have gotten the property in any event, where the bank still retained against such owner and debtor the balance of the indebtedness, for which the securities had been deposited after deducting the thirty-one thousand and seven hundred dollars. (Post, pp. 345-346.)</p> <p>4. CONVERSION. Holding property as security for debts for which, it was not pledged is a conversion. ,</p> <p>Where property is pledged to a bank as security for debts, and the bank asserts the right to hold the property as' security for other debts, for which it had not been pledged, and refuses to deliver it up except upon payment of those other debts, it is an unwarrantable assumption of authority over the property, and amounts to a conversion. (Post, pp. 346-356 and especially 354-355.)</p> <p>Cases cited and approved: Gillett v: Bank of America, 160 N. Y., 549-559; Adams v. Clark, 9 Cush., 215.</p> <p>5. TENDER. Actual not necessary where creditor demands more than he is entitled to, when.</p> <p>Where the pledgee asserts a right to hold the property pledged as security for debts for which it had not been pledged, and for which it was not liable, and refuses to deliver it up except on payment of those debts, actual tender of the amount of the debt secured by the pledge is not necessary, if the debtor is ready, willing and able to pay such debt. {Post, pp. 346-357 and especially 355-357.)</p> <p>Cases cited and approved: Ball v. Stanley, 5 Yerg., 199; Pearson v. Douglas, 1 Bax., 151; Bradford v. Poster, 87 Tenn., 11; Rogers v. Tindall, 99 Tenn., 356-363; Lamar v. Sheppard, 84 Ga., 561; United States v. Lee, 106 U. S. 196, 202; Ratcliff v. Yance, 2 Mill Const. (S. C.), 239.</p> <p>6. RES AD JUDIO ATA. Suits must be between same parties in same capacity or character, and about same subject-matter.</p> <p>In order that a judgment may be effective as res adjudieata, it is essential that the party sought to be precluded thereby should have sued or been sued in both cases, in the same capacity or character, and to enforce the same right, and it must appear not only that the subject-matter of the two suits is the same, but that the proceedings were for the same object and purpose, the same point being directly in issue. {Post, pp. 357-364 and especially 362-363.)</p> <p>Cases cited and approved: Estill v. Taul, 2 Yerg., 467; Nicely v. Boyles, 4 Humph., 177; McKissick v. McKissick, 6 Humph., 75; Hurst v. Means, 2 Sneed, 546; Swaggerty v. Neilson, 8 Bax., 32; Walker v. Day, 8 Bax., 77; Railroad v. Adkins, 2 Lea, 248; Shannon v. Woollard, 12 Lea, 663; Coulter y. Davis, 13 Lea, 451; Melton v. Pace, 103 Tenn., 484; Knight v. Atkisson, 2 Tenn. Ch., 284.</p> <p>7. SAME. Same. Case in judgment.</p> <p>In a former action by the pledgee against the indorser of certain notes, the indorser pleaded that the notes had been secured by property, which the pledgee had sold, worth more than twice the value of the notes, and that before the sale the indorser tendered the pledgee the amount due on the notes, and demanded release of the security which the pledgee refused, but the indorser, by express averment, declined to litigate the validity of such sale, insisting that according to the pledgee’s own contention, the sum for which said property was sold had not been correctly credited. A cross bill was filed in said former suit by the indorser, to which the pledgee and principal debtor were made parties to recover usury charged by the pledgee. A judgment was rendered against the indorser for the balance due on the notes after deducting the usury, and the proceeds of the sale of the property.</p> <p>Held: that such judgment was not res adjudicada in subsequent action by the indorser and principal debtor, as partners and pledgeors, against the pledgee to recover as upon an implied assumpsit the value of the pledged property, on the ground that the same had been converted by the pledgee, the tort being waived. (Post, pp. 357-364.)</p>

<p>1.PRACTICE. Arrest of judgment. Motion in, waives subsequent motion for new trial.</p> <p>A motion for a new trial should precede a motion in arrest of judgment which being in the nature of an advanced step in defense, under well settled rules of pleading and practice, waives that which should have gone before. (Post, pp¡ 366-368.)</p> <p>Cases cited and approved: Snapp v. Moore, 2 Tenn., 236; Ins. Co. v. Crunk, 91 Tenn., 376; Freeman v. Railroad, 107 Tenn., 340.</p> <p>3. SAME. Same. Case in judgment.</p> <p>Following the entry of the verdict of conviction, the record contains the following recital: “Comes now the defendant and moves the court in arrest of judgment and for a new trial, which motion being heard was overruled.” Eeld:</p> <p>1. It is an incorrect practice to enter and have acted upon these two motions at the same time.</p> <p>2. It will not be presumed that the motion for a new trial was . made and overruled before the motion in arrest was entered and acted upon.</p> <p>3. That the legal effect of the waiver of the motion for a new trial by a motion in arrest so entered, is to confine the supreme court to error apparent on the face of the record. (Post, p. 368.)</p> <p>3. SAME. Same. Motion in, must specify the errors complained of.</p> <p>A motion in arrest of judgment should state concisely the defects complained of and the ruling of the lower court upon a general motion in arrest, failing to point out the matters complained of, can not be reviewed in this court on appeal. (Post, p. 369.)</p> <p>Cases cited and approved: Corn v. Brazleton, 2 Swan., 272; State v. Steele, 3 Heisk., 135.</p>

<p>1. CONSTITUTIONAL LAW. Compensation of judges and chancellors fixed by definite legislative enactments.</p> <p>The compensation of judges and chancellors in this State must, under the constitution, be ascertained and fixed by law, that is, by statute enacted by the legislature. (Post, pp. 379, 381, 382, 383.)</p> <p>Constitution cited and construed: Art. 6, sec. 7.</p> <p>Case cited and approved: Shelby County v. Judges, 3 Shannon’s Cases, 508.</p> <p>2. SAME. Same. Cannot be delegated by legislature to county courts.</p> <p>The power to ascertain and fix the compensation of judges and chancellors vested in the legislature, the only lawmaking power in this State, can not be delegated to the county courts, or any other body. (Post, pp. 381, 382.)</p> <p>Acts cited and construed: 1901, ch. 140; 1869-70, eh.-28, sec. 11.</p> <p>Constitution cited and construed: Art. 6, sec. 7.</p> <p>Case cited-and approved: Shelby County v. Judges, 3 Shannon’s Cases, 508.</p> <p>3. SAME. Same. Same. Statute making appropriation as addition to judges’ salary unconstitutional.</p> <p>A statute authorizing the county court to appropriate for the judges and chancellors, holding the several courts of such county, additional compensation to that of their regular salaries, as fixed by the general law of the State, is unconstitutional. This result can not be evaded by assuming that the statute was in the nature of a conditional law to take effect uDon the happening of the contingency, that is, upon the appropriation being made by the county court, and then stand as if the statute had definitely fixed the salaries at the amount fixed in the general law and the appropriation made by the county court. CPost, pp. 381-382.)</p> <p>Constitution cited and approved: Art. 6, sec. 7.</p> <p>Case cited and approved: Shelby County v. Judges. 3 Shannon’s Cases, 508.</p> <p>4. SAME. Power of taxation. Legislature may delegate, to counties for county purposes only.</p> <p>The power of taxation, under the constitution is vested in the legislature, and it can delegate this power to counties only to the extent of imposing taxes for county purposes. (Post, pp. 379-380, 384-386.)</p> <p>Constitution .cited and construed: Art. 2, secs. 1, 28, 29; art. 7, secs. 1-3.</p> <p>Case cited and approved: Shelby County v. Judges, 3 Shannon’s Cases, 508.</p> <p>5. SAME. Same. Salaries of judges not county purpose.</p> <p>The judges of the chancery, circuit and criminal courts are State officers, elected and commissioned as such, holding State offices, created and existing for' distinctively and essentially State purposes. The judge is not a county officer, although he presides in a single county. He is a State officer, and Ms salary must be paid out of the treasury of the State. (Post, pp. 381, 384, 387, 389-390.)</p> <p>Acts cited and construed: 1901, ch. 140; 1869-70, ch. 28, sec. 11.</p> <p>Constitution cited and construed: Art. 2. secs. 1, 28 and 29: art 7, secs. 1 and 3.</p> <p>Case cited and approved: Shelby County v. Judges, 3 Shannon’s Cases, 508.</p> <p>6. SAME. Same. Same. Courts determine what is county purpose; legislature is not exclusive judge.</p> <p>It is the province of the courts to determine whether or not the purpose, for which the county may be authorized by the legislature to levy taxes, is a county purpose, aid if it be not a county purpose the law to that extent must be declared void. The legislature is not the exclusive judge of what is a county purpose, but the courts are the ultimate exclusive judgés thereof. (Post, p. 383.)</p> <p>Constitution cited and construed: Art. 2 secs. 28 and 29.</p> <p>Case cited and approved: Shelby County v. Judges, 3 Shannon’s Cases, 508.</p> <p>7. SAME. County courts. Jurisdiction and powers of solely statutory.</p> <p>The county courts of this State were created by the general assembly under the authority vested in it by the constitution to ordain and establish such inferior courts as from time to time may be necessary, and possess no jurisdiction or powers but those conferred by constitutional. enactments. (Post, pp. 387-388.)</p> <p>Case cited and approved: Railroad v. Wilson County, 89 Tenn., ■ 600.</p> <p>8. SAME. Same. Power to levy taxes or appropriate money for other than county purposes cannot be conferred by the legislature.</p> <p>The county courts of this State have no inherent power to levy taxes or appropriate the county revenues; their powers of taxation and to make appropriations are confined to such purposes as may be lawfully conferred upon them by the legislature; and that body has no power under the constitution, to authorize county courts to make appropriations for any purpose other than a county purpose. A statute authorizing a county to exercise the taxing power for any purpose other than a county purpose is unauthorized, unconstitutional and void. (Post, pp. 381, 387-388.)</p> <p>Acts cited and construed: 1901, ch. 140; 1869-70, ch. 28, sec. 11.</p> <p>Constitution cited and construed: Art. 2, secs. 1, 28 and 29.</p> <p>Case cited and approved: Railroad v. Wilson County, 89 Tenn., 600.</p> <p>9. SAME. Second circuit court of Shelby county is a State court, and not a county court.</p> <p>The second circuit of Shelby county, created and established by Acts 1893, ch. 99 (Code, secs. 189 to 194 inclusive), and vested with exclusive jurisdiction over all appeals, and certiorari and supersedeas from judgments of justices of the peace of the county, and concurrent jurisdiction with other courts in divorce cases, and attached to and made a part of the fifteenth judicial circuit of the State is a State court and not a county court, and that clause of the said statute requiring the salary of the judge holding the court to be paid out of the county treasury is unconstitutional and void. (Post, pp. 375-376, 390-391.)</p> <p>Constitution cited and construed: Art. 2, sec. 29.</p> <p>Acts cited and construed: 1893, ch. 99; Code, secs. 189-194 (S.)</p> <p>10. SAME. The probate court of Shelby county is a county court, and the judge’s salary is payable out of the county treasury.</p> <p>The probate court of Shelby county, created and established by</p> <p>Acts 1870, ch. 86 (Code, secs. 387 to 391 Inclusive), and clothed with all 'the judicial powers and jurisdiction of the county court, is unquestionably a county court, created for well recognized and established county purposes, and the provision in-the statute creating the court that the judge thereof shall be paid out of the county treasury is valid. (Post, pp. 374-375, 390-391.)</p> <p>Acts cited and construed: 1870, ch. 86; Code, secs. 387-391 (S).</p>

<p>1. REAL ESTATE AGENTS. Facts showing an exclusive agency ior sale of lot.</p> <p>Where a landowner’s daughter, who generally attended to her business, gave a real estate broker the sole agency for the sale of a lot, and he placed his sign as such sole agent thereon, which was done with the knowledge of both the owner and her daughter, and the daughter referred a prospective purchaser to said broker with the statement that the matter was entirely out of her hands, and there was no denial of the existence of an agency, it was held that these facts show that the said broker was the owner’s sole agent and that he had the exclusive agency for the sale of the lot. (Post, pp. 393-394.)</p> <p>2. SAME. Same. Sole agent entitled to commission, though sale is effected by another.</p> <p>Where a real estate broker, who had the sole agency for the sale of a lot, commenced negotiations with the purchaser, he is entitled to his commission, though the sale was effected through the agency of another. (Post, pp. 394-395.)</p> <p>3. SAME. Same. Same. Sole agency terminated by sale, but compensation is not defeated thereby.</p> <p>While it is true that the sole agent for the sale of a certain lot is terminated by sale thereof to one with whom the agent had commenced negotiations, still this does not affect the agent’s right to his compensation. (Post, pp. 394-395.)</p>

<p>1. RAILROADS. Ejection of discharged newsboy from train without demanding fare, and refusing to accept fare, when tendered, wrongful, when. Case in judgment.</p> <p>Where a newsboy, who was employed by a railroad news company, and was, by contract with the railroad company, to be transported by it, without the payment of fare, and was to be subject to its orders, and amenable to its rules and regulations, in the same manner as its own servants, violated one of its rules, the penalty for which was discharge from its service, and for which he was discharged, his right to be transported without payment of fare thereupon ceased, but he did not thereby forfeit his right to remain upon the train, and proceed as a passenger upon the payment of fare. Under such circumstances, it became the duty of the conductor to demand payment of fare, and upon the failure or refusal to pay, he could then have rightfully ejected such discharged newsboy, but (he was ejected from the train without being given an opportunity to pay his fare. After this ejection, he subsequently returned and offered to pay his fare to a point to which he desired to go, but was again ejected. Tb'<t* vVd/„ r^'taí4a í>U-íAa.4t»</p> <p>Held. Both ejections were wrongful. {Post, pp. 400-405.) ^</p> <p>Cases cited, approved and distinguished: Railroad v. Harris, 9 Lea, 180, 186-187; Hibbard v. Railroad, 15 N. Y., 455; State v, Campbell, 32 N. J. Law, 309; Railroad v. Wright, 68 Ind., 586.</p> <p>2. SAME. Same. Wrongfully ejected newsboy may return and tender fare entitling him to passage, when.</p> <p>The rule that, when a person upon a train, claiming the rights of a passenger, has forfeited or failed to perfect these rights by refusal to pay fare, and the train has been stopped, and the train crew are in the act of putting him off the train, such person caif not restore his original status, and acquire and perfect his rights as a passenger, by then offering to pay the legal fare, is not apnlicable to this case, as appears in the foregoing headnote, because the reason of the rule does not exist, as the train was not stopped in this qase to put the newsboy off, but it was already standing at a station, and as he had not refused to pay his fare, and thereby breached the contract between the passenger and carrier. (Post, pp. 403-404.)</p> <p>Cases cited, approved and distinguished: Railroad v. Harris, 9 Lea, 180, 186-187; Hibbard v. Railroad, 15 N. Y., 455; State v. Campbell, 32 N. J. Law' 309; Railroad v. Wright, 68 Ind., 586.</p> <p>3. SAME. Same. Same. Instruction to jury is not erroneous; loss of time; physical suffering; damages in discretion of jury.</p> <p>In an action against a railroad company for wrongful ejection from its train, an instruction to the jury as follows: “If you find for the plaintiff, under the foregoing instruction you may consider his loss of goods, if any, his loss of time, his mental and physical suffering, if any, his humiliation of feeling, and give what, in your sound discretion, would be a fair and just compensation,” contains no error under the facts of this ease, because (1) if there was no evidence of the value of the time lost, then under the well-known rule the error is innocuous, where the court is unable to see that any injury resulted; (2) the evidence that plaintiff was jerked off the car was sufficient to justify the instruction authorizing damages for physical suffering, and (3) the instruction to the jury to give what, in their sound discretion, would be a fair and just compensation, was said with reference to tlie testimony, to wliieli the jury were referred, and could not have been misunderstood by them. (Post, pp. 405-406.)</p> <p>Case cited, approved and distinguished: Girdner v. Taylor, 6 Heisk., 244, 246. ■</p> <p>4. SAME. Same. Same. Charge upon punitive damages that is not erroneous.</p> <p>In an action against a railroad company for a wrongful ejection from its train, an instruction to the jury that “Whenever the-element of malice or oppression or a reckless disregard of the-rights of others, enters into a transaction, and when the act is. done in the strict line of the duty of the conductor, but done under a state of facts not justifying the act done, and in a. wrongful, or perhaps careless manner, to the injury of the plaintiff, then the law blends the interests of society with those of the aggrieved individual, and authorizes the jury in its discretion to give exemplary damages. These are allowed in addition to -damages for compensation or actual damages, to punish the offender, and deter others from the repetition of like offenses,” is not a model of correct expression, but there is no-reversible error in it. (Post, pp. 406-407.)</p> <p>5. SAME. Same. Same. Same. Evidence justifying charge-upon punitive damages.</p> <p>In an action against a railroad company for a wrongful ejection-from its train, a charge upon punitive damages is authorized by evidence that the plaintiff was forcibly jerked from the train,, and then held and restrained of his liberty by the railroad company’s servants. (Post, p. 407.)</p> <p>Cases cited and approved: Railroad v. Lea, 90 Tenn., 574; American Lead Pencil Company v. Davis, 108 Tenn., 257.</p> <p>6. SAME. Same. Same. Same. Charge as to line of duty of conductor not erroneous.</p> <p>By the language, “and when the act is done in the strict line of duty of the conductor,” used in the charge as shown in the fourth headnote, in the connection in which it was used, the circuit judge intended to indicate to the jury (and correctly) that the act or acts complained of must have been, not of a character lying outside of the scope of the employment of the conductor as a servant of the company, but of a character falling under that employment, but not justified by the facts of the particular case, and moreover was done in a malicious or oppressive way, or in reckless disregard of the rights of others. (.Post, pp. 407-408.)</p> <p>Case cited and approved: Railroad v. Garrett, 8 Lea, 438, 449.</p> <p>7. SAME. Same. Same. Same. Charge using word “careless” for the word “reckless” not erroneous, when.</p> <p>The charge contained in the fourth headnote is not objectionable because of the expression “or perhaps careless manner,” because, while the word “careless” was not strictly speaking a correct word to express the meaning intended, still it could not have misled the jury, for, in the connection in which it was used, it must have conveyed to their minds the meaning carried by the word “reckless.” (Post, pp. 408-409.)</p> <p>Cases cited, approved and distinguished: Railroad Company v. Starnes, 9 Heisk., 53; Railroad v. Garrett, 8 Lea,- 438, 449.</p> <p>8. SAME. Same. Same. Verdict of $350,00 for wrongful ejection from train is not excessive, when.</p> <p>In an action against a railroad company by a newsboy for a wrongful ejection from its train, where it appears that the plaintiff was forcibly jerked from the train, and thereafter held and restrained of his liberty by the company’s servants, ana his stock in trade of the value of twelve dollars was lost and .destroyed in consequence, a verdict for two hundred and fifty dollars is not excessive. (Post, pp. 400, 409-410.)</p>

<p>1. LIFE INSURANCE. Failure to pay premium note avoids policy, when so stipulated in policy.</p> <p>A policy of insurance, containing a stipulation to the effect that the nonpayment, at maturity of any premium note, given by the assured, and accepted by the insurer, would forfeit the policy, is rendered void and nonenforceable .by the nonpayment of the note at maturity. (Post, p. 414.)</p> <p>Cases cited and approved: Thompson v. Insurance Company, 104 U. S., 252; Insurance Company v. Pendleton, 112 U. S., 696; Pitt v. Insurance Company, 100 Mass., 500.</p> <p>:3. SAME. Failure to pay premium avoids policy, when so stipulated in the note and the receipt therefor, though not so stipulated in the policy.</p> <p>Where a policy of insurance contains no stipulation to the effect that nonpayment at maturity of the premium note, given by the assured, and accepted by -the insurer, would forfeit the policy, still, where a note, given in payment of the premium, provides that if it be not paid at maturity the policy shall be void, and the receipt given for the note states that it is agreed that a past-due note is not payment, and any obligation given in exchange for the receipt when not paid at maturity, shall render the receipt and policy void, the policy is rendered void and nonenforceable by failure to pay the premium note at maturity. (Post, pp. 413-421.)</p> <p>Cases cited and approved: Klein v. Insurance Company, 104 U.</p> <p>S., 88; Holly v. Insurance Company, 105 N. Y., 437; Insurance ""Company v. Lewis, 187 U. S., 335; Thompson v. Insurance Company, 104 U. S., 252; Insurance Company v. Pendleton, 112 XL S., 696; Kerns v. Insurance Company, 86 Pa., 171; Insurance-Company v. Meyers (Ky.), 59 S. W., 30; Insurance Company v. Pentecost (Ky.), 49 S. W., 425; Gorton v. Insurance Company, 39 Wis., 121.</p> <p>Cases cited, distinguished and approved: Insurance Company v.. Hardie, 37 Kan., 674; McAllister v. Insurance Company, 101 Mass., 558; Insurance Company v. Barracliff, 45 N. X Law, 543; Fithian v. Insurance Company, 4 Mo. App., 386; insurance Company v. French, 30 Ohio State, 240.</p>

<p>X. STARE DECISIS. Decisions long1 acquiesced in and establishing rules of property will not be overruled. ’</p> <p>While a court should not hesitate to overrule a decision which has been recently made, when fully convinced that it is erroneous rather than perpetuate error, yet a very different principle prevails when it has been acquiesced in for many years, and has established a rule of property; and in such case it should not be disturbed, indepentent of any doubts that may be entertained of its correctness. A greater evil can scarcely be imagined than the habitual fluctuation in judicial opinion as to questions affecting the rights, and regulating the .conduct of a whole community in relation to real property. When a decision or a series of decisions have established a rule of property, and more particularly a rule affecting the title to real estate, which has become generally known, and has been acted upon, such a landmark should not be disturbed. (Post, pp. 455-461.)</p> <p>Cases cited and approved: Napier v. Simpson, 1 Tenn., 448; Talbot v. McGavock, 1 Yerg., 277; Nelson v. Allen, 1 Yerg., 376; Vance v. McNairy, 3 Yerg., 197; Mitchell v. Lipe, 8 Yerg., 179; Atkinson v. Dance, 9 Yerg., 427; State v. Hicks, 9 Yerg., 486; Thompson v. Watson, 10 Yerg., 368; Smith v. McCall, 2 Humph., 163, 166; Sherfy v. Argenbright, 1 Heisk., 143; State, ex rel., v. Whitworth, 8 Lea, 594; Case v. Joyce, 89 Tenn., 337; Pollock v. Farmers Loan & Trust Company, 158 U. S., 689; Sparrow v. Kingman, 1 N. Y., 242.</p> <p>3. SAME. Same. Case in judgment.</p> <p>A decision of the supreme court that a city was not hound by designation, on a map or plan, indicating that dedicated property was intended by the original proprietors to be used for a promenade, but that the city took the property as its own corporate property, acquiesced in for sixty-nine years, and treated as respeets the particular land as establishing a rule of property, on the faith of which rights have been acquired, will not be disturbed on a bill filed by property owners seeking to enjoin contracts by the city affecting the property, on the ground that the city in respect thereto sustains toward complainants the relation of trustee. {Post, pp. 427-455, and especially 451-455.)</p> <p>Cases cited and approved: Memphis v. Wright, 6 -Yerg., 497; Hardy v. Memphis, 10 Heisk., 127; Adams v. Memphis, 2 Cold., 645; Napier v. Simpson, 1 Tenn., 448; Talbot v. McG-avock, 1 Yerg., 277; Nelson v. Allen, 1 Yerg., 376; Vance v. McNairy, 3 Yerg., 197; Mitchell v. Lipe, 8 Yerg., 179; Atkinson v. Dance, 9 Yerg., 427; State v. Hicks, 9 Yerg., 486; Thompson v. Watson, 10 Yerg., 368; Smith v. McCall, 2 Humph., 163, 166; Sherfy v. Argenbright, 1 Heisk., 143; State, ex rel., v. Whitworth, 8 Dea, 594; Case v. Joyce, 89 Tenn., 337; Pollock v. Farmers Loan & Trust Company, 158 U. S., 689; Sparrow v. Kingman, 1 N. Y., 242.</p> <p>is. SAME. Same. Same. Were the question new, it would probably be held otherwise.</p> <p>Where the proprietors dedicated to a city a strip of land indicated on a town map or plan as the “Public Promenade,” and the “Public Landing,” by the registration of the map, which was accepted by the city, it would probably be held, if the question were new, that the public promenade became at once, upon the acceptance by the city, a perpetual pleasure ground for the people of the city, and that the municipal authorities had no power to sell it, or donate it, or in any manner contract it away, for railway purposes, or for any purpose foreign to dhat indi-eated by the name which the original proprietors gave to it, and that the legislature itself could not, acting constitutionally, empower the city authorities to make any such disposition of it, since that would be a disposition of the property of the citizens of the city without their consent, and that a court of equity should enforce the execution of such a trust, but the question was settled as stated in the second headnote in favor of the city’s absolute ownership, and adverse to the rights of the citizens as' beneficiaries of the promenade as a pleasure ground. (Post, pp. 449-451, 455.)</p> <p>Cases cited, approved generally: Hardy v. Memphis, 10 Heisk., 127; Jacksonville v. Railroad, 67 Ill., 544; Cincinnati v. White, 6 Pet., 431; Watertown v. Cowen, 4 Paige, 510; Leclercq v. Gallipolis, 7 Ohio (7 Ham.), 217, pt. 1; Carter v. Chicago, 57 Ill., 287; Pierce v. Thompson, 48 Mo., 361; Warren v. Lynn City, 22 Iowa, 351; New Orleans v. United States, 10 Pet., 662; Church v. Portland (Or.), 22 Pac., 528, 6 L. R. A., 259; Sturmer v. Randolph County (W. Va.), 26 S. E., 532, 36 L. R. A., 300; Rowzee v. Pierce (Miss.), 23 South., 307, 40 L. A. R., 403, 65 Am. St. Rep., 625.</p> <p>4. MUNICIPAL CORPORATIONS. Police powers cannot be surrendered, removal of obstructions from streets by bill in equity or by indictment.</p> <p>A city can not legally annul the police powers which it possesses, or for any consideration agree to forego them. The authority is ample for the removal of obstructions upon the streets, on application of the State by bill in equity, or by indictment in the criminal court for the punishment of the offender and the abatement of the nuisance. (Post, pp. 461-463.)</p> <p>Cases cited and approved; Railroad v. Chicago, 96 Ill., 627; Attorney-General v. London, 8 Beav., 270; Attorney-General v. Forbes, 2 Myl. & C., 123; Attorney-General v. Galway, 1 Molloy, 103; United States v. Duluth, 1 Dill., 469, Fed. Cas. No. 15001; People v. St. Louis, 10 Ill., 351; Newark Aqueduct Board, v. Passaic, 45 N. J. Eq., 393; Georgetown v. Alexandria Canal Company, 12 Pet., 91.</p> <p>5. SAME. Landowners having no special or peculiar interest cannot enjoin execution oí city contracts, because they run for a long time.</p> <p>Landowners, having no special or peculiar interest different from that of other inhabitants of the city as to the length of time city contracts have to run, or as to the closing of the streets, have no right to present a hill upon these subjects for the purpose of restraining the execution of the contracts, because of the long time they have to run, nor because under such contracts the streets are closed or obstructed. {Post, pp. 463-464.)</p> <p>Case cited and approved: Patton v. Chattanooga, 108 Tenn., 197.</p> <p>6. SAME. Landowners having no land abutting on streets have no special or peculiar interest authorizing their suit to enjoin closing of such streets.</p> <p>Landowners who do not own any land abutting on streets about to be closed by a contract with the city affecting the streets, have no special or peculiar interest authorizing them to maintain a bill to restrain the execution of such contract. {Post, pp. 464-465.)</p> <p>Cases cited and approved: Brumit v. Railroad, 106 Tenn., 124, 138; Patton v. Chattanooga, 108 Tenn., 197.</p> <p>7. SAME. Owner of land abutting on streets may sue for damages for obstruction, and owner of fee therein is entitled to compensation for occupancy by steam railroad.</p> <p>Where there is an obstruction put upon a street which unlawfully impairs the easement of access of an abutting owner to his property, he may have his action for damages, and, from time to time, continuous actions of this character, until the nuisance is abated; and if he owns the fee to the center of the street, and a new or additional burden is put upon it, as the imposition of a steam railway, he may have compensation for the value of his property so taken. (Post, pp. 464-465.)</p> <p>Cases cited and approved: Railroad v. Bingham, 87 Tenn., 522; Harmon v. Railroad, 87 Tenn., 614; Railroad v. Doyle, 88 Tenn., 747.</p> <p>8. SAME. Right of city to abandon streets, or to sell where it owns fee; right of access by abutting owner. ■</p> <p>A city has the right to abandon a street, that is, its easement of way which it holds in trust for the public, if for the public interest, and upon such abandonment the fee reverts to the owners; but the city can not sell the land covered by the street unless it owns the fee, and can not even then do. so in such way as to debar an adjoining owner from having access to his lot over the same, or at least over so much as leads from his lot to the next adjoining public street on each side. (Post, pp. 464-465.)</p> <p>Cases cited and approved: State v. Taylor, 107 Tenn., 455; Attorney-General v. Railroad Company, 19 N. J. Eq., 394.</p> <p>9, SAME. Interference by State, where city exceeds its corporate powers.</p> <p>. If a city has exceeded its corporate powers in making contracts for too long a time, or in closing its streets, the matter is one for interference or correction by the State, upon a bill filed for that purpose by the attorney-general, and a citizen can not maintain such action unless he has a special or peculiar interest in the matter. (Post, pp. 463-465.)</p>

<p>1. STREET RAILROADS. Evidence of what was said and done is competent where passenger is carried beyond destination, when.</p> <p>Where, in an action against a street railway company for personal injuries, the plaintiff’s contention is that she was negligently carried beyond her destination on the trip out from the city to her home, and the conductor would not return with her to her destination, but carried her on to the terminus of the road and brought her back, and again carried her beyond her destination on her return; that the conductor treated her rudely on the trip out and back, and negligently and wantonly in the return trip carried her beyond her stopping place, and that she was injured in attempting to get off at a place beyond her destination where the car stopped on the return trip, the'evidence of what was said and done by the conductor and plaintiff was not only competent, but constituted the very gist of the action. (.Post, pp. 471-472.)</p> <p>2. SUPREME COURT PRACTICE. Case viewed from plaintiff’s standpoint and theory, when.</p> <p>A case in the supreme court where a judgment has been rendered in favor of the plaintiff in the court below on the verdict of the jury must be viewed from the plaintiff’s standpoint, and on his theory, as the jury evidently gave the weight of their verdict in his favor on his theory and standpoint. (Post, pp. 471-472.)</p> <p>3. CHARGE OE COURT. Negligence solely contributing to injury means sole cause of injury, when.</p> <p>Where, in an action against a street railway company for personal injuries, the court charges the jury that if plaintiffs negligent act solely contributes to bringing about the injury for which he complains, he can not recover, the trial judge meant if the negligence of the plaintiff produced or was the sole cause of the injury, he can not recover, because to give the word “contribute” its legal signification would make the charge unintelligible as one can not contribute solely to effect a given result, but only in connection with some other act. Assuming that it was intended to charge the doctrine of concurrent negligence, it is not reversible error because there was no request for any other additional charge. (Post, pp. 472-474.)</p> <p>4. SAME. Want or meagerness of charge on contributory negligence is not reversible error where there is no request for additional charge, when.</p> <p>Where, in an action for personal injury the defendant insisted throughout the trial that'there was, and could be no contributory negligence or concurrent negligence under the proof, but that the facts presented a case of sole negligence on the part of plaintiff, or sole negligence on part of defendant, depending on whether the jury adopted the plaintiff’s or defendant’s theory of the facts, the want of a charge on contributory negligence or the meagerness of a charge thereon, is not reversible error where there was no request for additional instructions. (Post, pp. 473-474.)</p> <p>Case cited, distinguished and approved: Nashville Street Railway Company v. Norman, 108 Tenn., 331.</p> <p>5. STREET RAILROADS. Conductor must not start car while passenger is alighting.</p> <p>It is the duty of a conductor of a street car to see and know that no one is in the act of alighting when he starts his car- at a regular stopping place for the discharge and reception of passengers. (Post, pp. 474-477.)</p> <p>Cases cited and approved: Railroad Company v. Mitchell, 98 Tenn., 31; Highland Company v. Burt, 92 Ala., 29; Gilbert v. Street Railway Company, 160 Mass., 403; Losee v. Street Railway Company, 63 Hun, 405; 18 N. Y. Supp., 297.</p> <p>6. SAME. Assistance must be rendered aged and infirm passengers in alighting from ear.</p> <p>It is the duty of those in charge of a street car to give greater care and consideration to aged and infirm persons, whose age- or infirmity is apparent from their appearance, than to other persons, and if necessary to assist them in getting off the car, and for failure to perform such duty, the employer is liable. (Post, pp. 474-477.)</p> <p>Case cited and approved: Railroad Company v. Mitchell, 98 Tenn., 31.</p> <p>7. CHARGE OF COURT. Correctly stating theory of both parties is not reversible error.</p> <p>Where the judge in his charge to the jury states the plaintiff’s theory without stating any hypothetical fact, which was not brought out by some of the witnesses, and the plaintiff’s theory is correctly set forth as well as that of tñe defendant, the defendant can not sustain an assignment of error on this ground. (Post, p. 477.)</p> <p>8. COMMON CARRIER. Liability for violence and insult to passengers.</p> <p>A contract to carry passengers is not one of mere toleration and duty to transport the passengers on its cars, but it also includes the obligation on the part of the carrier to guarantee to its passengers respectful and courteous treatment, and to protect them not only from violence and insult from strangers, but also from violence and insult from the carrier’s own servants. (Post, p. 478.) ■</p> <p>Case cited and approved: Traction Company v.- Lane, 103 Tenn., 376, 383.</p> <p>9. DAMAGES. Exemplary, punitive or vindictive damages allowable, when.</p> <p>Punitive damages are allowed when a wrongful act is done with a had motive or so recklessly as to imply a disregard of social obligations, or when there is negligence so gross as to amount to misconduct and recklessness. What amounts to gross negligence under the facts of the case, or to a disregard of the safety of the person injured, is a discretionary ground for exemplary damages. There need not be positive proof of malice or oppression, if the transactions or facts shown in connection therewith, fairly imply its existence and it is left to the jury to look at all the circumstances in order to see- whether there was anything in the conduct of the defendant to aggravate the damages. (Post, pp. 477-481.)</p> <p>Cases cited and approved: Telegraph Company v. Shaw, 102 Tenn., 318; Traction Company v. Lane, 103 Tenn., 376; American Lead Pencil Company v. Davis, 108 Tenn., 264.</p> <p>10. SAME. Same. Case in judgment.</p> <p>Where a conductor carried a passenger beyond her destination, though he was requested in ample time to stop there, but neglected to do so, presumably because engrossed in conversation with his companions, and carried her to the end of the line, became angry and quarreled with her, on the return, demanding additional fare and threatening to take her back to town, and joined the motorman in laughing at her or in such manner as to indicate it to her and her fellow passenger, and again carried her by her stopping place on the return at a high rate of speed, laughing with the motorman at her discomfiture, and stood and saw her attempt to get off, and started his car before she was safely on the ground, throwing her violently and seriously injuring her, are facts sufficient, not only to call for charge upon the feature of punitive damages, hut also justify the jury in giving them. (Post, pp. 471-472, 479-481.)</p>

<p>1. CRIMINAL LAW. Pleading' and practice. Time of filing plea of autrefois convict.</p> <p>A plea of former conviction should be tendered along with plea of not guilty and before the trial is begun. (Post, pp. 484-485.)</p> <p>2. SAME. Refusal of permission to file a plea of autrefois convict, not erroneous, when.</p> <p>Where, on a prosecution for murder, a-plea to the effect that defendant had been convicted of the assault, which caused the death, was not tendered until after the State had closed its case, and the defendant had been examined as a witness in his own behalf, it was proper to refuse to allow the plea to be filed. (Post, pp. 484-485.)</p> <p>3. SAME. Conviction .for assault and battery not á bar to subsequent prosecution for murder.</p> <p>It is well-settled law that a conviction of a misdemeanor included in a felony is no bar to a subsequent prosecution for murder, predicated on the fact that the person assaulted had died from his injuries, for the felony is not consummated until after the conviction of the misdemeanor, as was the murder in this case, by the- death of the assaulted party after judgment before the justice of the peace. (Post, pp. 484-486.)</p> <p>Case cited and approved: Mikels v. State, 3 Heisk., 321.</p> <p>4. SMALL OFFENSE LAW. Conviction, under, for assault and battery does not bar conviction for murder, the result of such assault.</p> <p>The act of 1870-71, chapter-27, providing that in criminal cases in which a defendant shall have been brought before a justice of the peace under the provisions of the small offense law, shall have submitted and been fined, as provided by law, and shall thereafter be indicted for the same identical offense as a felony, he may plead the former conviction in bar, does not render a conviction for an assault a bar to a prosecution for murder, which was the result of the assault to which defendant had submitted before the justice of the peace. (Post, pp. 485-486.)</p> <p>Statutes cited and construed: Acts of 1870-71, ch. 27.</p> <p>Code cited and construed: Sec. 7180 (S).</p> <p>5. SAME. Not intended to provide convenient mode of escape for felons.</p> <p>The legislature did not intend to provide a convenient mode for felons to escape merited punishment by permitting them to submit under the small offense of law to the misdemeanor involved in the felony. (Post, p. 486.)</p>

FROM LAUDERDALE. Petition for mandamus upon the relation of W. A. Barfield, against R. E. Maiden, Circuit Judge, to compel him to sign and certify a bill of exceptions.

<p>1. CONSTITUTIONAL LAW. Statutes prohibiting sales of intoxicating liquors except by manufacturers in wholesale packages or quantities are constitutional.</p> <p>Our statutes, known as the Four Mile Law, with its amendments (Acts 1877, ch. 23, Acts 1887, ch. 167, Acts 1899, ch. 221, and Acts 1903, ch. 2), prohibiting the sale of intoxicating liquors in this State, except in certain incorporated cities, are not unconstitutional as class legislation, because they except from their operation sales by manufacturers of such liquors in wholesale packages or quantities. This exemption is operative in favor of manufacturers only when they sell in wholesale quantities or in packages, or quantities designed and suitable for purpose of trade, and to be sold again, and not to sales to persons for consumption or as retailers, though the sales may be made by manufacturers. (Post, 495-507.)</p> <p>'Cases cited and approved: State v. Rauseher, 1 Lea, 97; Hatcher v. State, 12 Lea, 368; Moore v. State, 96 Tenn., 544; Harrison v. State, 96 Tenn., 548; State v. Frost, 103 Tenn., 686; Brinkley v. State, 108 Tenn., 476; Reymann Brewing Company v. Brister, 179 U. S., 445; Adler v. Whitbeck, 44 Ohio St., 574.</p> <p>Statutes cited and construed: Acts 1877, ch. 23; Acts 1887, ch. 167; Acts 1899, ch. 221; Acts 1903, ch. 2.</p> <p>:2. SAME. Same. Statutes regulating, restricting and prohibiting manufacture and sale of intoxicating liquors under police powers are constitutional.</p> <p>The traffic in intoxicating liquors is universally recognized as a proper subject for police regulation, and may be controlled, restricted, or even totally prohibited under the police power, without violating any constitutional right. It is for the legislature to decide when the exigency exists for the exercise of the police power in the regulation, restriction and even prohibition of .liquor traffic, and its exercise is not controlled by the courts. The exercise of this power with respect to the manufacture and sale of intoxicating liquors, even to the extent of abolishing them, is not a denial of an equal protection of the law, nor a violation of the fourteenth amendment to the constitution, of the United States. (Post, pp. 504-506.),</p> <p>Cases cited and approved: Theilan v. Porter, 14 Lea, 626; Boston Beer Company v. Massachusetts, 97 U. S., 25; Bartemeyer v. Iowa, 18 Wall., 129; Mugler v. Kansas, 123 U. S., 623; Powell v. Pennsylvania, 127 U. S., 683; Munn v; Illinois, 94 U. S., 113; Kidd v. Pearson, 128-U. S., 1; Crowley v. Christensen, 137 U. S., 86; Miller v. Ammon, 145 U. S., 421; Gray v. Connecticut, 159 U. S., 74; Poster v. Kansas, 112 U. S., 205; Eilenbecker v. Plymouth Company, 134 U. S., 31; License Cases, 5 How-., 504; Giozza v. Tiernan, 148 U. S., 657.</p> <p>Constitution of United States cited and construed: 14 Amend.</p> <p>3, SAME. Same. Same. What may he done by legislation under police power.</p> <p>The police power of the government is a power, the proper exercise of which is essential to the safety and tranquility of every well ordered community. This police power extends over a large range of subjects, namely: the public health, the public morals, the public safety, and the public welfare, under any one of which the regulation and restriction of the sale of intoxicating liquors would readily fall. The courts have wisely refrained from prescribing limits to the exercise of the police power by the government. The police power embraces all such legislation as will preserve and promote the public welfare by. prohibiting all hurtful things to the comfort, safety and welfare of society, and the establishment of such rules and regulations for the conduct of all persons, and the use and management of all property as may be conducive to the public interest. (Post, pp. 504-506.)</p> <p>Cases cited and approved: Theilan v. Porter, 14 Lea, 626; Boston Beer Company v. Massachusetts, 97 U. S., 25; Bartemeyer v. Iowa, 18 Wall., 129; Mugler v. Kansas, 123 U. S., 623; Powell v. Pennsylvania, 127 U. S., 683.; ,Munn v. Illinois, 94 U. S., 113; Kidd v. Pearson, 128 U. S., 1; Crowley v. Christensen, 137 U. S., 86; Miller y. Ammon, 145 TJ. S., 421; Gray y. Connecticut, 159 U. S., 74; Foster y. Kansas, 112 TJ. S., 205; Eilenbecker v. Plymouth Company, 134 TJ. S., 31; License Cases, 5 How., 504; Giozza v. Tiernan, 148 TJ. S., 657.</p> <p>4. PRIVILEGES, License to exercise, granted by State may be revoked by the legislature.</p> <p>The grant of a privilege to tipple, wbicb might be exercised within an incorporate town, irrespective of its proximity to incorporated institutions of learning, does not include the right to do so upon the repeal of the charter of the town, nor preclude the legislature from repealing the charter of the town, nor change the results of such repeal. (Post, pp. 507-509.)</p> <p>Cases cited and approved: Johnson v. State,, 3 Lea, 470; Brinkley v. State, 108 Tenn., 475.</p> <p>5. STATUTORY CONSTRUCTION. Obsolete and inoperative part of statute is not revitalized by amendment, when.</p> <p>Where a statute prohibiting the sale of intoxicating liquors in towns of two thousand inhabitants or less, subsequently incorporated, but excepting sales made by persons having licenses at the date of the passage of the act, during the time for which such licenses were granted, which period could not exceed one year, is, nearly two years thereafter, amended by striking out the word “two” and inserting therefor the word “five” so as to extend the provisions thereof to towns of five thousand inhabitants or less, subsequently incorporated, the amendment does . nor re-enact or revitalize the provisions of the former act excepting from its operation sales made under licenses in force at the time of the passage thereof. The said exception expired by its own limitation when the licenses then existing terminated, and became dead and obsolete law, and was so at the passage of the amending law and did not become incorporated into it nor resuscitated by it. (Post, pp. 509-511.)</p> <p>Statutes cited and construed: Acts 1899, ch. 221; Acts 1903, ch. 2.</p> <p>0. CRIMINAL LAW. Wholesale liquor dealer as aider and ' abettor is equally guilty with the retail liquor dealer for the violation of the law, where the offense is a misdemeanor, when.</p> <p>Where a saloon was opened and intoxicating liquors were sold in violation, of the law, and a wholesale dealer, who was the instigator of the entire matter, and who encouraged and induced the nominal owner thereof to enter into the business, and who, or his firm, furnished the money to conduct it, and sold him his stock of liquors, and who went with the saloon keeper to the mayor of the city to make negotiations to be allowed to engage in the business, and failing in that, notified the mayor that they would commence selling liquors, and was present in and about the saloon when the illegal sales were made, and was in fact, the chief beneficiary of the business, is equally guilty with the saloon keeper, in whose name the sale was made. He was an aider and abettor, and guilty of'the misdemeanor as a principal.. (Post, pp. 511-513.)</p>

<p>1. WILLS. Setting aside probate. Right to contest.</p> <p>It is well settled that it is not a matter of course to set aside the prohate of a will; a stranger in blood to the testator will not be permitted to disturb an existing probate. Therefore one who is not an heir or distributee of the testator at the time of his death, and would not have been if those under whom he claims had died before the testator, had no standing in court to resist the probate of a will or have the probate in common form set aside for the purpose of a contest. {Post, pp. 518-520, 522-523.)</p> <p>Cases cited and approved: Wynne v. Spiers, 7 Humph., 407; Cornwell v. .Cornwell, 11 Humph., 485; Bank of Tenn. v. Nelson, 3 Head, 637.</p> <p>2. SAME. Right to contest does not pass by inheritance or descent.</p> <p>The right to contest a will is a mere right of action in which nothing can be properly recovered. It is in no sense a property right, neither can it be assigned nor pass *by inheritance or descent. {Post, pp. 520-521.)</p> <p>Cases cited and approved: Morrison v. Deaderick, 10 Humph., 343; Storrs v. St. Luke’s Hospital (Ill.), 54 N. E., 185, 72 Am. St. Rep., 215.</p> <p>3. SAME. Question reserved.</p> <p>The court reserved the question as to whether a grandson, or other lineal descendant, would be entitled to contest the will of his grandfather or ancestor where the son or daughter of the testator, through, whom the claim is made, survived him, hut died before the contest could he or was begun. (Post, pp. 521-522.)</p> <p>4. SAME. Case in judgment.</p> <p>The testatrix, by last will and testament, devised her property to her granddaughter, with remainder to another in the event of the granddaughter’s death before majority. After the death of the granddaughter who had taken under the will, and who died before majority, the son-in-law of the testatrix, who was the father of the granddaughter, filed a petition in the county court against the contingent remainderman, and the administrator with the will annexed of the testatrix, charging that said testatrix was without testamentary capacity and for this reason asking that the probate in common form of her will be set aside, and claiming all the property disposed of by said will, as the only heir at law of his daughter, who would have inherited all the property of her grandmother, the testatrix, had she died intestate.</p> <p>Held: The father of the granddaughter being a stranger in blood, to the testatrix, and being wholly incapable of inheriting from her even if the grandmother had been dead at the date of the death of the testator, had no such interest as entitled him to have the probate in common form set aside or to question the testamentary capacity of the testatrix. (Post, pp. 616-523.)</p>

<p>X. TAXATION. Manufacturing corporation of another State, selling and distributing its manufactured products from ware-' houses here through its agent, is a merchant and taxable as such under statute.</p> <p>A foreign manufacturing corporation of another State, having an agent in this State, to whom it ships its manufactured products to be kept in stock in the agent’s warehouses, and to be used to fill contracts of sales made by its traveling salesmen, or contracts made by certain intending purchasers by their depositing specifications of goods desired with the local, agent, who had no authority to fix prices, but who had authority to deliver the goods so specified to certain local dealers previously designated by the said corporation, upon their filing such specifications, is a merchant dealing through such agency in the meaning and sense of our statute (Acts 1901, ch. 174, sec. 27) defining the term “merchant” as including all persons, copartnerships or corporations, engaged in trading or dealing in any kind of goods, wares, or merchandise, whether the same be kept on hand for sale, or be purchased and delivered for profit as ordered, and is taxable as a merchant under said statute providing that merchants shall pay an ad valorem tax upon the capital invested in their business equal to that levied upon other taxable property. {Post, pp. 527-535, 538-542.)</p> <p>Statutes cited and construed: Acts of 1901, ch. 174, sec. 27.</p> <p>Cases cited and approved: Webb v. The State, 11 Lea, 662; Kurtb v. Tbe State, 86 Tenn., 134.</p> <p>■Cases cited and distinguished: State v. Smith, 6 Hum., 394; Taylor v. Vincent, 12 Lea, 284.</p> <p>S. SAME. Same. Interstate commerce clause of federal constitution not violated; goods not in transit. .</p> <p>The manufactured goods of a manufacturing corporation of another State, shipped in large quantities, by taking advantage of high stages of water in the river, to its local agent here to be kept in stock in the agent’s warehouses in anticipation of ' sales, and to be used to fill contracts of sales made by its traveling salesmen, or contracts made by certain intending purchasers by their depositing specifications of goods desired with the local agent who had no authority to fix prices, but who had authority to deliver the goods so specified to certain local dealers previously designated by such corporation, upon their filing such specifications, are not in transit from one state to another, for the reason that the goods have not been sold to any one, and the statute (Acts 1901, ch. 174, sec. 27) taxing the .goods with a merchant’s tax while thus stored, is not a violation of the federal constitution (art. 1, sec. 8, subsec. 3) empowering Congress “to regulate commerce with foreign nations, and among the several States, and among the Indian tribes,” although an effort was generally made to secure agreement from intending purchasers to take the output of the corporation’s mills before the goods were manufactured, there being usually enough of such contracts in existence, and calling for a sufficient quantity of goods to cover the expected output for sixty or ninety days, the time within which the purchasers were required to select the quality of the goods, the quantities of which and the prices of the different qualities of which were fixed by the respective contracts. {Post, pp. 527-535, 538-546.) •</p> <p>Statute construed: Acts 1901, ch. 174, sec. 97.</p> <p>Constitution of the United States cited and construed: Art. 1„ sec. 8, subsea 3.</p> <p>3. SAME. Same. Same. Goods of nonresident owner are not. exempt from taxation when sold in original packages from mass of property in this State.</p> <p>The fact that the manufactured goods of a manufacturing corporation of another State are sold in the original packages does, not exempt it from taxation in this State on the goods stored and warehoused here for the purpose of sale in this State and other States, as shown in the foregoing headnotes, and which goods: are so dealt with as to make them a part of'the common mass, of property in this State. (Post, pp. 536-537, 546-547.)</p> <p>Cases cited and approved: Woodruff v. Parham, 8 Wall., 123;: Hinson v. Lot, 8 Wall., 148; Brown v. Houston, 114 U. S., 622; Coe v. Errol, 116 U. S., 517; Pittsburg, etc. Company v. Bates,, 156 U. S., 577; Emert v. Missouri, 156 U. S., 296.</p> <p>Cases cited and distinguished: Brown v. Maryland, 12 Wheat.,, 436; Welton v. Missouri, 91 U. S., 275; Leloup v. Mobile, 127 U. S., 641; Asher v. Texas, 128 U. S., 129; Robbins v. Taxing District, 120 U. S., 489; Leisy v. Hardin, 135 U. S., 100; Lyng v. Michigan, 135 U. S., 161.</p> <p>4. SAME. Same. Same. Manufacturer of another State taxed! as merchant here is not discriminated against, when.</p> <p>A merchant’s tax levied against a manufacturing corporation of another State upon its business in selling its goods manufactured in other States, out of the produce of .other States, massed, stored and warehoused in this State, for sale in this and other States, through its local agents and traveling salesmen, is not a discriminative tax, and the question of a discriminative tax does not arise because the tax is not a direct tax. (Post, pp. 547-548.)</p> <p>Cases cited and approved: Jenkins v. Ewing, 8 Heisk., 456, 484.-</p>

<p>1. MANDAMUS. Power to issue, practice, and making up issues regulated by statute; pleadings governed by common law.</p> <p>The power to issue mandamus and the practice under it, is, to some extent, regulated in this State by statute, by which the return to the writ is made traversable, and the averments of the petition may be put in issue by denial, on the return or answer, in which event the case will be determined by the court, or tried by the court on evidence. With these exceptions, the proceeding is one largely controlled by the rules of pleading established by the common law. (Post, p. 556.)</p> <p>Cases cited and approved: State v. Marks, 6 Lea, 12, 17; Harris v. State, ex rel., 96 Tenn., 496, 513.</p> <p>Code cited and construed: Sections 5331-5339 (S.); 4310-4318 (M. & V.); 3567-3575 (T. & S. and 1858).</p> <p>2. SAME. Intendments against insufficient answer.</p> <p>Whenever it appears that the return to a writ of mandamus fails to answer the important facts alleged in the petition, every intendment will be made against it. (Post, p. 556.)</p> <p>Cases cited and approved: Harris v. State, ex rel., 96 Tenn., 496, 513.</p> <p>3. SAME. Same. Allegations not denied taken as true.</p> <p>The allegations in the petition for a writ of mandamus not denied nor confessed, and avoided in the answer thereto, are taken to be true. (Post, p. 556.)</p> <p>Case cited and approved: Harris v. State, ex rel., 96 Tenn., 496, 513.</p> <p>4. SAME. Motion for peremptory writ upon pleadings is equivalent to demurrer to answer.</p> <p>If the relator iñ a mandamus proceeding moves for a peremptory rit upon the pleadings, this motion is equivalent to a demurrer the answer or return for not stating facts sufficient to constitute a defense. (Post, p. 556.)</p> <p>Cases cited and approved: State, ex rel., v. Marks, 6 Lea, 12, 18-19; Harris v. The State, ex rel., 99 Tenn., 496, 513.</p> <p>6. SAME. If set for hearing on bill and answer, latter taken as true.</p> <p>Where, in a mandamus proceeding in the chancery court, the cause is set down for hearing by the complainant or petitioner, on the bill or petition and the answer of the defendant, every fact properly set out and averred in the answer must be treated as proved and as true. (Post, pp. 576-577.)</p> <p>6. MUNICIPAL CORPORATIONS. Right of corporator to examine books not prevented by ordinance, when.</p> <p>A provision of a city ordinance that every officer or agent of a city shall at all times, whenever requested, submit his books and official papers to the inspection of the mayor, or any member of the legislative council, or to any person or committee authorized by the legislative council to examine the same, is not exclusive so as to prevent the examination of such books by any person other than those specifically designated, even if the right of a corporator to make an examination on suitable occasions can be cut off by an ordinance or by-law. (Post, pp. 573-674, 576, 690.)</p> <p>Case cited and doubted: People, ex rel., v. Cornell, 47 Barb., 329.</p> <p>7.jgfSAME. Taxpayer’s right to examine books not prevented be- cause grand jury has right to do so.</p> <p>The general right and power of the grand jury to examine the books of the municipal officials is not exclusive, so as to prevent such examination by a resident citizen and taxpayer of the municipal corporation. (Post, pp. 575-676, 590.)</p> <p>8. SAME. Examination of books cannot be refused because of applicant’s political hostility, when.</p> <p>The fact that the corporator making application for the privilege of examining the books of the municipal corporation is politically hostile to the administration and to the custodian of the books furnishes no excuse for refusing to permit such examination, unless it shall appear that the examination is sought with the corrupt purpose of merely furthering such animosity. (Post, pp. 563, 590.)</p> <p>9. SAME. Examination of books cannot be refused on the ground of inconvenience.</p> <p>The worry and inconvenience resulting from the examination of the books and records of a municipal corporation, and the fact that the transactions to be examined are numerous and involve many millions of dollars, furnish no sufficient reason for denying a corporator the right to examine such hooks. (Post, pp. 574-575, 590-591.)</p> <p>10. MANDAMUS. To compel permission to examine city’s books where no fraudulent or dishonest purpose appears.</p> <p>Where, in a mandamus proceeding, to compel the mayor of a city to allow the relator to examine the books of the city, it appears that prior to the application for permission to examine the said books, the city was much indebted, and without funds, and that a committee of two hundred citizens had been called together by the mayor for the purpose of devising ways and means to raise revenue to meet the city’s needs, and no facts appear to show that the proceeding was instituted for a fraudulent and corrupt purpose, but it appears that the application was refused by the mayor because in his opinion the proposition to examine the books was made to impede and thwart the object had in view by calling the committee of citizens together, rather than to forward such object, it is not shown that the relator was actuated by a fraudulent and dishonest purpose, such as to justify the denial of the writ of mandamus. {Post, pp. 591-592.)</p> <p>11. SAME. Same. "Where examination of city’s hooks is for the public interest,</p> <p>The right of a citizen and taxpayer of a city to make an examination of the hooks and papers of the city, in theory, is absolute, but in practice, it is discretionary, for when refused by the custodian of the hooks, then the right must be enforced by mandamus, and this writ is not of absolute right, but merely discretionary, to be awarded only in a proper case so the right can be denominated only as “qualified right.”</p> <p>But where it appears to be important to the public interests that a general examination of the books of a municipality should be had, the court should allow such examination at the suit of one who is a citizen and taxpayer of a corporation. {Post, pp. 577-589, 592-593.)</p> <p>Cases cited: Deaderiek v. Wilson, 8 Baxt., 108; Herbert v. Ash-burner, 1 Wilson, 297; King v. Babb, 3 Term Rep., 582; Rex v. Guardians of Great Farrington, 9 B. & C., 541; People, ex rel., v. Cornell, 47 Barb., 329; In re Steinway, 159 N. Y., 250; Cock-burn v. Bank, 13 La. Ann., 289; State v. Einstein, 46 N. J. Law, 479; Bank v. Hunt, 76 Mo., 439; Wannell v. Kem, 57 Mo., 478; People v. Railroad, 50 N. Y. Sup., 456; Rex y'. Shelley, 7 Term Rep., 746; Rogers v. Jones, 5 D. & R., 484; King v. Lucas, 10 East, 235; King v. Allgood, 4 M. & S., 162; Buck v. Collins, 51 Ga., 391; Webber v. Townley, 43 Mich., 538, 539; Bean v. People, 7 Colo., 201; Reg. v. Marquita Min. Co., 1 El. & El., 289; Rex v. Merchants’ Co., 2 B. & Ad., 115; Commonwealth v. Iron Co., 105 Pa., 11; Railroad v. White, 1 L. B., 282; Imp. Gas Co. y. Clark, 7 Bing., 95; Hoyt y. Bank, 1 Duer, 652; Rex y. Hostman, 2 Strange, 1223; Mayor of Southampton v. Graves, 8 T. R., 590.</p> <p>IS. SAME. Same. Examination of city’s books for specific purpose.</p> <p>The right to an examination of a city’s books, for a special purpose, as to obtain specific information to use in litigation, and the like cases, while not in principal standing upon higher grounds, yet is the more easily grantable, because, such examination does not involve so much time, and so much inconvenience * to the custodian of the books and papers, and so much interruption of business as in case of a general examination. (Post, p. 593.)</p> <p>13. SAME. Same. Eor general examination of city’s books, grantable, when.</p> <p>A general examination of a city’s books, papers, and records, ■ should not be lightly granted, nor permitted with unnecessary frequency; the occasion should be grave and important; the person seeking the examination should be trustworthy and at all times and at every stage, subject to the supervision of the court, for the prevention of oppression and the safety of the books and records. (Post, pp. 594-595.)</p> <p>14. SAME. Same. Same. Case in judgment.</p> <p>Where the period of examination sought covers a course of five years, during which time many millions of dollars were collected and expended, much money borrowed and interest paid, tax rates very heavy and very burdensome, application was made to the legislature for an increase of the means of raising taxes, the city became deeply indebted, a committee of two hundred citizens were called together by the mayor to devise ways and means for raising revenue to repair and improve the streets, a taxpaying citizen was entitled to an examination of the hoots of the city for the purpose of learning its financial condition and ascertaining the true facts relative to the expenditure of its revenues. (Post, pp. 595-596.)</p> <p>15. SAME. Commencement of proceedings fixes right to, which cannot he affected by subsequent acts of defendant.</p> <p>After judicial proceedings have been instituted for mandamus for the purpose of obtaining a general exámination of the city’s books, such proceedings can not be thwarted by the appointment of a committee on the part of the custodian of the books, or his associates in authority, to make an examination in lieu of the one sought. The right of the petitioner becomes complete upon the filing of his petition, and can not.be affected by subsequent acts of the defendant taken without his consent and to which he was not a party. (Post, pp. 596-597.)</p> <p>16. SAME. Writ directed to mayor as custodian of books.</p> <p>The mayor of Memphis, under the laws governing that city, is the custodian of the books and papers of that city in such sense that he can he justly called upon to produce them and he is vested with such powers as to make it proper that a writ of mandamus to enforce a taxpaying citizen’s right to examine the books should he directed to the mayor. (Post, pp. 561-562, 573, 597.)</p> <p>Cited: Watkins Dig. (1902), pp. 19-20, secs. 4 and 6; p. 22, sec. 1-2; p. 170, article 5.</p> <p>17. SAME. Remandment for entry of decree awarding temporary writs, with directions.</p> <p>This cause was remanded t.o the chancery court of Shelby county for the entry of a decree awarding the peremptory writ with directions that such decree shall reserve to the court below the powers and control necessary to prevent oppression, and to secure the preservation of the books and papers, and to so order the examination as to interfere as little as practicable with the transaction of current business, and that said decree shall reserve to each party the right from time to time to apply to said court for instructions pending the examination. (Post, 2>. 597.)</p>

<p>1. STATUTES AND CONSTITUTION. Amendatory acts must recite title or substance of amended law, under constitutional provisions.</p> <p>The constitutional provision (art. 2, sec. 17) requiring that all acts which amend former laws shall recite in their caption, or otherwise, the title or substance of the law amended, is violated and not complied with, by a mere reference in the amendatory act to the act to be amended by chapter and volume of an authorized publication of acts, because such a reference is not a recital of the title or substance of the act desired to be amended. The controlling requirement is that the title or substance of the act to be amanded must appear from an inspection of the amendatory act. (Post, pp. 602-608, 618.)</p> <p>Statutes cited and construed: Acts 1891, ch. 52; Acts 1903, ch. 43.</p> <p>Code cited and construed: Sections 3074, 3075, 3076 and 5584 (S.); section 4552 (M. & V.); section 3799 (T. & S. and 1858).</p> <p>Case cited and approved: Burnett v. Turner, 87 Tenn., 124.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>3. SAME. Same. Failure of amendatory act to recite title or substance of law amended, is not cured by a reference to it in Shannon’s Code.</p> <p>The fact that the law sought to be amended is referred to in the caption and body of the amendatory act, as being certain sections of Shannon’s Code of Tennessee, does not in anywise cure the defect in the failure of such amendatory act to recite in its caption, or otherwise, the title or substance of the' law sought to be amended, because said code is not enacted into a code or law, and has no general title recognized by law, and while it is exceedingly valuable and remarkably accurate, it has not the verity of enacted law or acts, within the meaning of the constitutional provision. (Post, pp. 604, 611-613, 618-619.)</p> <p>Statutes cited: Acts 1881, ch. 67; Code, sections 3074, 3075, 3076 and 3540 (S.); section 2746 (M. & V,); section 198'6 (T. & S. and 1858).</p> <p>Case cited and approved: Burnett v.-Turner, 87 Tenn., 129.</p> <p>S. SAME. Same. Amendatory act purporting to amend, a specified section of the code sufficiently recites title of amended law where Code of 1858 is intended.</p> <p>The title of an amended law is sufficiently recited in the amenda-tory act, where it is entitled an act to amend a specified section of the Code of Tennessee, or a specified section of the code, where the code of 1858 is intended. (Post, pp. 615, 617.)</p> <p>Cases cited and approved: State v. Runnels, 92 Tenn., 320; State v. Brown, 103 Tenn., 449.</p> <p>Case cited, distinguished and approved: Shelton v. State, 96 Tenn., 521.</p> <p>4. SAME Same. Amendatory act must recite either the title or substance of the law to be amended.</p> <p>Amendatory act must recite in the caption, or otherwise, either the title or substance of the act to be amended, though it is unnecessary to recite both, for the constitutional provision (Art. 2, sec. 17) requiring such recitation is mandatory and an act not complying therewith is invalid and void. (Post, p. 608.)</p> <p>•Cases cited and approved: Cannon v. Mathes, 8 Heisk., 516; McGhee v. State, 2 Lea, 622; Morrell v. Fickle, 3 Lea, 82, 86; Truss v. State, 13 Lea, 312; Bank v. Haselton, 15 Lea, 239; Hy-man v. State, 87 Tenn., Ill; Ransome v. State, 91 Tenn., 717; State v. Runnels, 92 Tenn., 320.</p> <p>5. SAME. Same. Same. Amendatory act reciting substance of that portion of act to he amended is sufficient.</p> <p>An amendatory act reciting the substance of that portion of the act which it is intended to amend, so that the legislature may see and understand the effect of its action is sufficient, and it is. not necessary to recite the substance of other portions of the act which are to be affected in no way by the amendment. (Post, pp. 609-610.)</p> <p>Cases cited and approved: State v. Caines, 1 Lea, 736.</p> <p>6. SAME. Same. Amendatory act reciting title of amended act and proposing to amend it is sufficient, valid and constitutional.</p> <p>The title of the amendatory act reiting the title of the original act proposed to be amended, without enlarging its scope, or indicating the character of the proposed amendment, is sufficient and the amendatory act is valid and constitutional, if -the amendment is germane to the original act and is embraced in the title to the original or amended act, since the title of the original act is made part of the amendatory act the particulars of the amendatory act need not be shown by its title. (Post, pp. 611, 613, 614.)</p> <p>Cases cited and construed: Hyman v. State, 87 Tenn., 109; State v. Algood, 87 Tenn., 166; Ruohs v. Athens, 91 Tenn., 20.</p> <p>7. SAME. Implied repeals not governed by constitutional requirement as to recitation of title, or substance of amended law in amendatory act.</p> <p>The constitutional provision (art. 2, see. 17) requiring that “all acts which repeal, revive or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended,” does not apply to acts which, by their written provisions work a repeal of previous acts by nee-essary implication, and the presence of an express repealing clause has no force -whatever to place the act under the constitutional requirement and provision. (Post, pp. 611, 616-618.)</p> <p>Cases cited and approved: Insurance Company v. Taxing District, 4 Lea, 644; Ballentine v. Pulaski, 15 Lea, 633; Railroad v. Sadler, 91 Tenn., 508; Henley v. The State, 98 Tenn., 665-667;. Memphis v. Express Company, 102 Tenn., 340; State, ex rel. Tyler, v. King, 104 Tenn., 163, 168; Zickler v. Bank 104 Tenn., 277.</p> <p>8. SAME. The term “otherwise” in constitutional provision means preamble or body of the amendatory act.</p> <p>The term “otherwise” in the constitutional provision (art. 2, sec. 17) requiring that “all acts which repeal, revive or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended” can only mean the preamble or body of the act as contra-distinguished from the title or caption. (Post, pp. 609, 615.)</p> <p>Cases cited and approved: State v. Gaines, 1 Lea, 736; Bank v. Haselton, 15 Lea, 239; Ransome v. State, 91 Tenn., 717; State v. Runnels, 92 Tenn., 320; State v. Yardley, 95 Tenn., 557; Shelton v. State, 96 Tenn., 521.</p> <p>9. SAME. The term “substance” in constitutional provision is synonymous with the word “subject.”</p> <p>The term “substance” in the constitutional provision (art. 2, sec. 17) requiring that “all acts which repeal, revive or amend former laws shall recite in their caption, or otherwise, the title or substance of the law repealed, revived, or amended,” is synonymous with the word “subject.” (Post, pp. 613-614.)</p> <p>Case-cited and approved: Ransome v. The State, 91 Tenn., 717.</p> <p>10. SAME. The word “caption” used in constitutional provision is synonomous with the word “title”</p> <p>The word “caption” used in the constitutional provision (art. 2, sec. 17) requiring that “all acts which repeal, revive or amend former laws, shall recite in their caption or otherwise, the title or substance of the law amended” is synonymous with the word “title.” (Post, p. 615.)</p> <p>Case cited and approved: State v. Runnels, 93 Tenn., 320.</p> <p>11. SAME. All intendments and doubts in favor of constitutionality of statutes.</p> <p>Every intendment must be made in favor of the constitutionality of statutes that can be legally indulged, and all doubts must be resolved in favor of it. (Post, p. 610.)</p> <p>Cases cited and approved: Morrell v. Fickle, 3 Lea, 82; Cole v. Manufacturing Company, 90 Tenn., 466; State v. Yardley, 95 Tenn., 546.</p>

<p>1. WILLS. Construction of. Devise, with, gift over “in case of’ death of devisees take effect, when.</p> <p>It is an established rule in the construction of wills, that where a. devise, or bequest, is made to a person with a gift over in case-of the death of the devisee, or legatee, the gift over is contingent upon such devisee or legatee dying in the lifetime of the-testator; therefore, where a devise, or bequest, is made to A,, and in ease of his death, or if he die to B, A surviving the testator takes, the estate devised absolutely. (Post, pp. 629-632.)-</p> <p>Cases cited: Lowfield v. Stoneham, 2 Stra., 1261; Northey v. Bur-bage, Pre. Ch., 471; Hinckley v. Simmons, 4 Yes., 160; King v. Taylor, 5 Yes., 806; Turner v. Moor, 6 Yes., 556; Cambridge v. Rous, 8 Ves., 12; Webster v. Hale, Id., 410; Ommaney v. Be-van, 18 Ves., 291; Wright v. Stevens, 4 B. and Aid., 574; Lord Binden v. Earl of Suffolk,’ 1 P. Williams, 96; Crigan v. Baines,. 7 Sim., 40; Taylor v. Stainton, 2 Jur. (N. S.), 634; Howard V» Howard, 21 B., 550.</p> <p>S. SAME. Same. Same. That gift over is to children of devisee-does not alter rule; applies both to realty and personalty.</p> <p>The rules of construction, stated in the first headnote, is not affected by the fact that the gift over, in case of the death of the devisee, is to his children and the rule applies to devisees of realty as well as bequests of personalty. (Post, p. 630.)</p> <p>Citing: Slade v. Milner, 4 Mad., 144; Schenck v. Agnew, 4 K. & J., 405; Rogers v. Rogers, 7 W. R., 541.</p> <p>3. SAME. Same. Contingent remaindermen proper parties, when. Supreme court will remand upon demurrer improperly sustained, when. Case in judgment.</p> <p>The testator devised one half of his property to his wife, and the other half to his three children, a married daughter and two sons. By a subsequent clause of his will, he provided that “in case” any of his children named in the will “shall die leaving a child or children at the time of his or her death,” the property thereby devised to a child or children so dying should go to the surviving grandchild or grandchildren. In -conformity with the desire of the testator as expressed in the third clause of the will, his married daughter, in the division and settlement of the estate, became the owner of a certain house and lot in Memphis, which she and her husband contracted to sell'to one Weaver, who, after a part payment, objected to the title on the ground that the testator’s other children and the children of said married daughter, took a contingent interest in said property under said will.</p> <p>Thereupon, the married daughter and her husband as complainants, filed a bill against said Weaver as defendant, to enforce specific performances of said contract of sale. Defendant Weaver filed an answer and cross bill against, not only the complainants in the original bill, but also their children, and the children of testator’s two sons. All of said grandchildren being minors, a guardian ad litem was duly appointed for each of them. The original complainants demurred to the cross bill on the ground that said grandchildren were not proper parties. The demurrer was sustained and the cross bill dismissed on the ground that said grandchildren had no interest in the property and were improperly made defendants. The cause was then heard upon the original bill and the answer thereto, and the chancellor held the title of the married daughter good and de-screed specific performance. Defendant Weaver appealed and both he and the minors assigned errors.</p> <p>Held: 1. Tb'at testator’s grandchildren took an interest in the-property devised only in tbe event of tbeir respective parents. • dying before tbe death of tbe testator, and tbe married daughter-surviving tbe testator took tbe share devised to her absolutely.</p> <p>Cases cited and approved: Vaughn v. Cator, 85 Tenn., 302; Mea-cbam v. Graham, 98 Tenn., 190.</p> <p>Cases distinguished: Alston v: Davis, 2 Head, 268; Cowan, Me-Clung & Company v. Wells, 5 Lea, 682; Hottell v. Browder, 13 Lea, 676; Stovall v. Austin, 16 Lea, 700; Armstrong v. Douglass,. 89 Tenn., 219.</p> <p>2. That complainant’s children, while not necessary parties, were proper parties defendant to "the cross bill filed by defendant. That although the question of construction could have been settled with no one before the court except the original complainants, and the defendant, the decree would not have been, binding as res adjudicada on complainant’s children.</p> <p>3. Testator’s other grandchildren were not proper parties defendant to the cross bill.</p> <p>4. The demurrer having been improperly sustained on the ground, that complainant’s children were not proper parties defendant to the cross bill, no decree granting specific performance could be entered, but the cause was remanded for issue in the cross, bill and other proceedings in conformity with the opinion of the court. (Post, pp. 623-637.)</p> <p>4. STAKE DECISIS. Doctrine of, does not apply where particular point or rule in question was not considered by court in cases urged as controlling.</p> <p>Although a case should be found presenting a state of facts tO' which the rule, stated in the first headnote might have been applied, yet if the court did not have the rule in mind and upon some other ground than an intentional disregard of it, reached a conclusion in the solution of the ease, the same as that which. would have been reached upon a purposed disregard of it, such case would not be authority: for the proposition that the court had abrogated or declined to enforce the rule. (Post, pp. 635-636.)</p>

<p>1. SEPARATE ESTATE. Created by husband’s gift of personalty to wife.</p> <p>It has long been the established rule in this State that transfers, and gifts of personal property made by husband to his wife, without words to that effect, by implication, and as a matter of law, vests in the wife, a technical separate estate in the property so transferred. (Post, pp. 642-646.)</p> <p>Cases cited and approved: Powell v. Powell, 9 Hum., 486; Mc-Campbell v. McCampbell, 2 Lea, 664; Sherron v. Hall, 4 Lea, 600; Templeton v. Brown, 86 Tenn., 65; Carpenter v. Franklin, 89 Tenn., 142; Snodgrass v. Hyder, 96 Tenn., 675.</p> <p>3. SAME. Creation of seperate estate in land by husband’s conveyance to wife.</p> <p>A conveyance of lands made by husband to his wife in the usual form, without any words indicating an intention to do so, by necessary implication, and as a matter of law, vests in the wife a technical separate estate in the premises conveyed. The conveyance in this case, reciting a consideration of love and affection, was in consideration of an antenuptial contract, but this was not considered essential to the creation of the separate estate. (Post, pp. 640-653.)</p> <p>Cases cited and approved: McMillan v. Peacock, 57 Ala., 127; Helmetag v. Frank, 61 Ala., 69; Kimbrough v. Kimbrough, 99’ Ga., 134; Whitten v. Whitten, 3 Cush. (Mass.), 199; Sayers v. Wall, 26 Grat., 373; Garland v. Pamplin, 32 Grat.', 314; Leake v. Benson, 29 Grat., 156; Dening v. Williams, 26 Conn., 231; Steel v .Steel, 36 N. C., 452; Sims v. Ricketts, 35 Ind., 181; Haines v. Haines, 54 Ill., 77; Smith v. Seiberling, 35 Fed. Rep., 677; Mara-man v. Maraman, 4 Mete. (Ky.), 84; Callahan v. Houston, 78 Tex., 494; Story v. Marshall, 24 Tex., 305; Putnam v. Bieknell, 18 Wis., 333.</p> <p>Cases cited, approved and distinguished: Murdock v. Railroad, 7 Bax., 572; Vick v. Gower, 92 Tenn., 391.</p> <p>3. SAME. Conveyed by wife with privy examination without joinder of husband.</p> <p>A wife invested with a separate estate in land may, without the consent or joinder of her husband, convey the same by deed with proper privy examination, and her such deed is valid and effective to vest in her grantee a good title to the property, free from all marital or other rights of her husband. (Post, . pp. 640-641, 653-654.)</p> <p>4. ANTENUPTIAL, CONTRACTS. Marriage is a valuable consideration to support.</p> <p>Consideration of marriage is a valuable consideration, and -is sufficient, by all the authorities, to support a settlement by the husband upon his wife, where made in pursuance of an ante-nuptial contract. “(Post, p. 646.)</p> <p>Cases cited and approved: Nelson v.'Trigg, 2 Tenn. Cases, 645; Spurlock v. Brown, 91 Tenn., 241.</p>

<p>1. MUNICIPAL CORPORATIONS. Invalid charter validated by legislative recognition, as well as by direct legislation.</p> <p>The implied legislative recognition of a municipal charter fatally defective and invalid on account of omissions, and failure to comply with the statutory requirements in the general law providing for incorporation of municipal corporations, is as effectual to validate the charter as any direct legislation expressly validating the same could be. (Post, pp. 659-668, and especially 665-668.)</p> <p>Statutes cited and construed: Acts 1893, chs. 163, 111, 139; Acts 1901, ch. 402.</p> <p>Cases cited and approved: Woodbury v. Brown, 101 Tenn., 707; Commanche County v. Lewis, 133 U. S., 198; Commissioners v. Rose, 140 U. S., 71; Jameson v. People, 16 Ill., 257; People v. Farnham, 35 Ill., 562; Allen v. Archer, 49 Me., 346; Swain v. Comstock, 18 Wis., 465; Bow v. Allenstown, 34 N. H., 351; Bes-sey v. Unity Plantations, 65 Me., 347; City of Atchison v. Butcher, 3 Kan., 104.</p> <p>Cases cited and distinguished: Ruohs v. Athens, 91 Tenn., 20; Norton v. Shelby County, 118 U. S., 425.</p> <p>2. LEGISLATURE. May validate acts that it . can authorize in advance.</p> <p>It is beyond doubt within the power of the legislature to give force and effect to an act invalid for irregularities, where it has power to authorize in advance such act to be done. (Post, p. 665.)</p> <p>Cases cited and approved: Shields v. Land Company, 94 Tenn., 123; Butler v. Association, 97 Tenn., 679.</p> <p>3. SAME. May create a municipal corporation by special act.</p> <p>It is now settled law in this State that there is no check upon the power of the legislature to create a municipal corporation by a special act. (Post, p. 665.)</p> <p>Case cited and approved: State v. Wilson, 12 Lea, 255.</p> <p>4. MUNICIPAL CORPORATION'S. Bonds of, issued after charter is validated are binding; new corporation liable for debts of old, when.</p> <p>Bonds issued by municipal corporation after its defective and invalid charter has been validated by legislative recognition thereof, are legal and binding on the corporation; and where the charter has been repealed and another granted by the legislature declaring that all legal claims existing against said old corporation shall be assumed and paid by the new corporation, such obligations are binding upon the new corporation. (Post • pp. 664-668.)</p> <p>5. TAXPAYERS’ BILL. CHANCERY PRACTICE. Taxpayers of a town may maintain bill to declare its bonds void and to enjoin their payment.</p> <p>A bill is maintainable by the resident taxpayers of a town to have bonds issued in the name of the town declared void for illegality in their issuance, and to enjoin the further collection of taxes to pay interest on them. This seems to have been conceded without question in this case. (Post, p. 657.)</p>

<p>1. CONTRACTS. Rescission of. To effectuate minds of parties must unite.</p> <p>It takes two to make a contract; and just as true, it takes,two to do away with one, in the absence in the contract itself of a term allowing either party to retire at pleasure; and that would he a rope of sand, because it would lack the quality of legal obligement. (Post, pp. 674, 679.)</p> <p>3. SAME. Renunciation of, by one party not legally efficient to cancel. „</p> <p>A contract for the purchase and sale of property in esse, at a fixed price, to be delivered within a certain future time, is not rescinded, by the mere declaration made .by the purchaser to the seller, before the expiration of the time in which the con- - tract was to be executed, of his renunciation of the contract. (Post, p. 678.)</p> <p>Case cited and distinguished: Ault v. Dustin, 100 Tenn., 366.</p> <p>8. SAME. Same. Declaration of renunciation by one may be withdrawn before assented to by other party.</p> <p>A declaration made by a purchaser of goods in esse, to the seller, before performance is due, of his renunciation of the contract of sale, amounts only to a declaration of an intention to breach the contract which may be retracted, and, if retracted before the seller assents to its abandonment by the purchaser, the contract remains in full force and effect. (Post, p. 679.)</p> <p>Case cited and distinguished: Ault v. Dustin, 100 Tenn., 366.</p> <p>4. SAME. Wrongful attempt to rescind, effect of.</p> <p>A party wrongfully making a renunciation of a contract, entitled the other party, if he pleases, to agree “to the contract being put an end to,” subject to the retention by him of his right to bring an action in respect to such wrongful rescission. The other party may adopt such renunciation of the contract, by so acting upon it, as, in effect, to declare that he too treats the contract at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation. (.Post, pp. 679-680.)</p> <p>5. SAME. Rescission of, for goods not in esse-different rule of construction applies.</p> <p>A contract for the purchase of, or an order for goods not in esse, but yet to be manufactured, is governed by a different rule of construction; in such case the purchaser may notify the manufacturer or seller not to proceed with the work, and the party so notified has no right to continue to manufacture, he can not go on and thereby increase the damages to which the purchaser has subjected himself by countermanding the order for the goods. (Post, p. 680.)</p> <p>Case cited: Ault v. Dustin, 100 Tenn, 366.</p> <p>6. SAME. Measure of damages for breach of, for sale of goods in esse, deliverable during a certain month.</p> <p>In an action to recover for'the breach of a contract for the sale of goods in esse, which were to have been delivered “during” a certain month, the measure of damages 'is the difference between the contract price and the market price at the place of delivery on the last day of the month. (Post, pp. 681-682.)</p> <p>Cases cited and approved: Coffman v. Williams, 4 Heisk., 233; Paragon Refining Company v. Lee Brothers, 98 Tenn., 643-645; Cole v. Zucarello, 104 Tenn., 64.</p> <p>7. CONTRACT. Cancellation of. Measure of damages for breach. Case in judgment.</p> <p>Defendants contracted with the complainants to deliver certain goods in esse, at a future day, that is “during” the month of August, but prior to this date, on account of defendants’ failure to route the goods as directed by complainants, the latter notified defendants by two letters of the cancellation of the contract, which, however, defendants refused to accede to. A short time thereafter and before the time had arrived for the delivery of the goods, and the performance of the contract, complainants had a clerk, representing defendants, write them that, by an agreement with an agent of defendants, the contract had been revived, and that they were willing to accept the goods, to which defendants replied that they regarded the contract as canceled. During this correspondence between the parties, the goods covered by the contract had advanced in price. Defendants failed and refused to deliver the goods during the month of August as provided in the contract, insisting that said contract had been cancelled by complainants. Bill by complainants to recover damages for breach of contract.</p> <p>Held: 1. That the minds of the parties did not unite as to the cancellation before complainants retracted their declared intention to renounce said contract, and as the goods to be delivered were in esse, the contract was never canceled.</p> <p>2. That complainants were entitled to recover as damages the difference between the contract price and the market price at the place of delivery on the last day of the month.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby, county.— F. H. Heiskell, Chancellor.</p>

<p>1. RAILROADS. Evidence of other fires caused by engines competent, when.</p> <p>Wherein an action against a railroad company for damages from fire caused by sparks from its locomotives evidence of the setting of other fires by other locomotives is offered, such evidence is competent if it appears that the other locomotives were of similar construction to the one in question. (Post, p. 717.)</p> <p>2. SAME. Same. Incompetent and erroneously admitted, when.</p> <p>But where the evidence of other fires caused by other locomotives shows that such fires occurred a year or more before the fire in question, and it does not appear that the engines alleged to, have set out the other fires weré of similar construction to those in use by the railroad company at the time of the fire complained of, such evidence is incompetent and its admission constitutes reversible error. (Post, p. 716.)</p> <p>3. CONTRIBUTORY NEGLIGENCE. Proper use of property by the owner, not.</p> <p>There can be no contributory negligence in the proper use by the owner of his own property or land. He is not bound to presume future negligence on the part of the adjoining owners, or to guard against such negligence. (Post, p. 718.)</p> <p>Case cited: L. & N. R. R. Co. v. Lumber Co. (Ala.), 28 South, 438.</p> <p>4. SAME. Same. Case in judgment.</p> <p>This action was instituted to recover of the railroad company, plaintiff in error, the value of a bale of cotton alleged to have been ignited and destroyed by sparks from one of the company’s engines, while the cotton was stored upon an opept platform about fifty feet from the main track of the railrpad. It was insisted that placipg said cotton in such close proximity to the railroad track was such contributory negligence as barred a recovery. „</p> <p>Held: Plaintiff, owner of the cotton, was not guilty of contributory negligence.</p>

<p>1. INSURANCE. Provision of release contained in policy of, material element of the contract.</p> <p>It is well. settled that a provision in a policy or contract of insurance for the release of an insurance company from liability for nonpayment of the premiums is a material element of the contract, and that on violation of such provision, unless there has been a waiver thereof, neither a court of law nor equity will enforce the contract. (Post, p. 729.)</p> <p>Cases cited and approved: Dale v. Insurance Co., 95 Tenn., 38; Insurance Co. v. Statham, 93 Tenn., 24; Klein v. Insurance Co., 104 IT. S., 88.</p> <p>3. INSURANCE COMPANY. May be estopped to insist upon forfeiture, when.</p> <p>But it is equally well settled that an insurance company can and ought to he estopped from insisting upon a forfeiture for nonpayment of the premiums when due, when, by any course of action, representation or dealings, the assured has been led to believe that by conformity thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part. (Post, p. 729.)</p> <p>Case cited and approved: Insurance Co. v. Eggleston, 96 U. S., 572.</p> <p>3-. SAME. General agent of, may waive conditions in a policy, when.</p> <p>It is well settled in this State that a general agent of an insurance company may waive conditions in. the policy and that a company will be estopped to insist upon .them in the enforcement of forfeiture, wlien such agent acts within the apparent scope of his employment as such agent of the company. (Post, pp. 730-732.)</p> <p>Cases cited and approved: Murphy v. Continental Life Ins. Co., 3 Baxter, 440; Southern Life Insurance Co. v. Booker, 9 Heisk., 606.</p> <p>4. SAME. Agent of, having ostensible general authority, binds principal, when.</p> <p>An agent of an insurance company, having ostensible general authority to solicit applications and make contracts for insurance, and to receive first premiums, binds his principal by any acts or contracts within the general scope of his apparent authority,, notwithstanding the actual excess of authority. Such agent is presumed to have full power to waive immediate payment of premiums, to make contracts for .credit, to accept annual premiums, and to issue renewal receipts, thereby extending or renewing policies of insurance. (Post, pp. 732-737.)</p> <p>Cases cited: Murphy v. Conn. Life-Ins. Co., 3 Baxter, 440; Sheldon v. Life Ins. Co., 25 Conn., 207; 26 N. Y., 460; 43 Barb., 361-367; 2 Hun, 359; 4 Hun, 801; 5 Hun, 98; 32 N. Y., 622-624; 35 N. Y„ 133; 51 N. Y., 122; 66 N. Y., 225; 68 N. Y., 439, 625, 626; 120 Mass., 330; 22 Conn., 575; 12 Wall., 285, 303; 67 Wis., 422; 20 Barb., 469; Farnum v. Insurance Co., 83 Cal., 246; Miss. Yal. Co. v. Neyland, 9 Bush., 436; Ball & Sage Wagon Co. v. Insurance Co. (C. C.), 20 Fed., 232; Stewart v. Insurance Co., 155 N. Y. 257.</p> <p>5. SAME. Act of subagent employed to perform part of general agent’s duty, binding on principal, when.</p> <p>It is well, known that according to the ordinary course of business a general agent of an insurance company has the right to employ such clerks or subagents as may be necessary and proper in order to perform the business for which he has been appointed agent. And a subagent employed by a general agent and charged by him with the duty of performing some portion of the ordinary, usual and well-known duties pertaining to the position of general agent, has power to bind the principal when his act is in the course of that employment, and within the general scope of authority of such general agent. (Post, pp. 737-738.)</p> <p>Cases cited and approved: Bodine v. Exchange, etc., Ins. Co., s>l N. Y., 117; Arff v. Star Fire Ins. Co. (N. Y.), 25 Northeastern, 1073; Steele v. Insurance Co. (Mich.), 53 Ns, W., 514; Goode v. Ins. Co. (Va.), 23 Southeastern, 744; Lingenfelter v. Ins. Co., '19 Mo. App., 252; Ins. Co. v. Bradford (Pa.), 50Atl., 286.</p> <p>Case cited, approved and distinguished: Insurance Co. v. Ewing, 2 Baxter, 305.</p> <p>6. SAME. Estopped to deny liability. Case in judgment.</p> <p>This ease was instituted by defendant in error to recover of plaintiff in error, insurance company, the amount of a certain accident policy wherein it was provided that there should be no insurance thereunder, unless the premium was actually paid prior to any accident by reason of which claim was made; but for a long time prior to the accident, upon which the suit was predicated, a course of business had been adopted by the company’s general agent and the insured, as to the payment of the premiums, by which insured was directed to retain premiums as they became due until they were called for by some person connected with the general agent’s office, and in pursuance of such custom, the payment due prior to the accident causing the insured injury, was not paid when due, but was subsequently collected by one of the employees of said general agent and remitted to the company after insured had suffered the injury. It was insisted by the insurance company that under the provis-' ion contained in the policy to the effect that there should be no insurance thereunder unless the premium was actually paid prior to any accident by reason of which claim might be made, and the further provision that no agent of the company had authority to waive any condition of the policy and that no waiver would be recognized unless by the president or some other general officer of the company, was a material part of the contract, and not having been complied with rendered the policy nonenforceable. It was insisted upon by the insured that the company had estopped itself by the acts of its general agent and his course of déaling with the insured to insist upon forfeiture. The trial judge charged the jury according to the insistence of the insured and refused to charge as insisted upon by the company.</p> <p>Belli: There was no error in the charge of the trial judge, and that the insurance company was estopped to deny liability upon the policy sued on.</p>