Volume 112 — Tennessee Reports

<p>1. TRANSCRIPT OP RECORD. Copies, if no agreement or order of court for originals to be sent up, are sufficient.</p> <p>The transcript of the record for review in the supreme court is not defective because of the absence of papers, namely, the original ballots in a contested election case, where certified copies thereof are in the transcript, in the absence of an agreement of the parties or an order of the trial court that such original papers be sent up to'the supreme court (Post, ¡p. 4.) •</p> <p>2. JUEY. None in contested election suit over office of sheriff.</p> <p>In contested election suit over the office of sheriff, it is the province of the circuit- judge to hear and determine the controversy, and neither party is entitled to a jury. (Post, pp. 4, 5.)</p> <p>Cases cited and approved: Blackburn v. Vick, 2 Heis., 377-383; Moore v. Sharp, 98 Tenn., 491.</p> <p>3. CONTESTED ELECTION. Case heard de novo upon record in supreme court.</p> <p>The contest over the election of a sheriff is to he tried in the supreme court as an equity case de novo upon the assignments of errors made, and the findings of the circuit judge on questions of the fact are not conclusive. (Post, pp. 4, 5.)</p> <p>Case cited and approved. Moore v. Sharp, 98 Tenn., 493.</p> <p>4. SAME. Votes cast for one and returned for another properly counted by court; case in judgment.</p> <p>Where, in a contested election case over the office of sheriff involving the election in a certain district, in which the uncon-tradicted evidence shows that 53 votes were cast for the contestant, while only 26 were returned for him; and 123 votes were cast for a third candidate, while only 79 were returned for him, hut there is no evidence, except the face of the returns, that contestee received 191 votes, or any other number, and it is evident that the votes not counted and returned for contestant and the third candidate were counted and returned for the contestee, and by taking that number from his returned votes and by adding the 27 votes cast but not counted for contestant to his returned votes, it' is found that contestant has a plurality of votes in the county, he will be declared to have been elected sheriff, and the fact will be so certified. (Post, pp. 3-7.)</p>

<p>1. CONTESTED ELECTIONS. Contestant cannot file replication stating new grounds after twenty days from election.</p> <p>The contestant in a’ contested election case oyer the office of Judge of the inferior courts, etc., cannot more than twenty days after the election, file a further pleading in the form of a replication to the contestee’s answer stating new and distinct grounds upon which to contest the election of the eontestee, and evidence offered to sustain such charges will not be heard or considered. (Post, pp. 21-35.)</p> <p>Cases cited and approved: Black v. Pate (Ala.), 30 So., 438: Loomis v. Jackson, 6 W. Ya., 711; Gillespie v. Dion, 18 Mont., 183; Kindel v. LeBert, 23 Col. 385; Ingerson v. Morlow, 14 Ohio St, 568; Bull v. Southwick, 2 N. M., 321; Vigil v. Pradt, 4 N. M., 375; Thompson v. Ewing, 1 Brews. (Pa.), 67; In re Wilson v. Lucas, 43 Mo., 290.</p> <p>2. SAME. Are statutory proceedings, and the statutes furnish the only remedy.</p> <p>Contested election cases over the office of judge, etc., are statutory proceedings, and the statutes under which they are authorized and conducted furnish the only remedy for contesting such elections. (Post, pp. 21-25.)</p> <p>Code cited and construed: Secs. 1320-1326 (S.); secs. 1109-1115 (M. & V.); secs. 900-906 (T. & S. and 1858).</p> <p>3. SAME. Jurisdiction is conferred upon the chancellor and not upon the chancery court, when.</p> <p>Jurisdiction of the contested election eases over the office of judge, etc., is not conferred upon the chancery court by statutes (Shannon’s Code, sections 1320-1326), but upon the chancellor of the division in which the circuit, or a part of it is situated, or winch, is nearest to it, as the case may he, thus creating a special tribunal for the exclusive purpose of hearing and determining this class of election contests, the proceedings of which aro summary, and not according to the course of the common law. (Post, pp. -22-25.)</p> <p>Case cited and approved: Wade v. Murry, 2 Sneed, 50.</p> <p>Code cited and construed: Secs. 1320-1326 (S.); secs. 1109-1115 (M. & V.); secs. 900-906 (T. & S. and 1858).</p> <p>4. SAME. Statutes are mandatory and jurisdictional, and must toe complied with.</p> <p>The provisions of the statutes (Shannon’s Code, sections 1320-1326) are mandatory and jurisdictional, and must he cpmplied with, in order to authorize the chancellor, before whom the proceedings in contested election .cases over the office of judge, etc., are begun, to hear and determine them. (Post, pp. 23, 24.)</p> <p>Cases cited and approved: Gallagher v. Moore, 12 Heis., 260; Schwartz v. Garfield Co., 14 Colo., 44; Edwards v. Knight, 3 Ohio, 375; Gillespie v. Dion, 18 Mont., 183.</p> <p>Code cited and construed: Secs. 1320-1326 (S.); secs. 1109-1115 (M. & V.; secs. 900-906 (T. & S. and 1858).</p> <p>5. SAME. Statute of limitation barring contests after twenty days applies to amended pleadings.</p> <p>The provision of the statute (Shannon’s Code, section 1320) requiring a sworn statement of the grounds of contest of election to the office of judge, etc., to toe presented to the chancellor . within twenty days after the election, is in the nature of a statute of limitation, and bars all contests which are not begun within the prescribed limit; and this' construction of the statute applies -to all amended or other pleadings, mating new charges upon which to contest the election, with the same force as it does to the original bill. (Post, pp. 24, 25.) Code cited and construed: Sec. 1320 (S.); 1109 (M. & V.); sec. 900 (T. & S. and 1858).</p> <p>6. SAME. Same. But does not apply to defense of contestee, thong’ll it introduces new matter.</p> <p>The statute (Shannon’s Code, section 1320) limiting the time in which a contest of the election may he instituted has no application to the defense of the contestee to the grounds of contest presented against him, and he is not required to make his defense within the time limited to the contestant, though his defense may in part he .an attack on the vote and returns in favor of contestant on the ground of fraud and illegality. (Post, pp. 15-17.)</p> <p>Code cited and construed: Sec. 1320 (S.); sec. 1109 (M. & V.j; sec. 900 (T. & S. and'1858).</p> <p>7. SAME. Same. Same. Statute giving time for defense, but not limiting the time.</p> <p>The provision of the statute (Shannon’s Coda, section 1321) as to the time of trial of contested election cases over the office of judge, etc., was intended to give the contestee time in which to prepare and make his defense, and not to limit the time in which he may do so; and clearly allows him to make defense after the expiration of the limit in which the contestant is required to present his grounds of contest. (Post, pp. 31-35.)</p> <p>Code cited and construed: Sec: 1321 (S.); see. 1110 (M. & V.); sec. 901 (T. & S. and 1858).</p> <p>8. SAME. Pleading and practice to be prescribed by the chancellor.</p> <p>In contested election eases over the office of judge, etc., the chancellor is empowered to prescribe the practice to be pursued in making up the pleadings and presenting the evidence, within the provisions of the statutes (Shannon’s Code, sections 1320-1326) conferring upon him jurisdiction of the case. (Post, pp. 32, 33.)</p> <p>Cases cited and approved: Boring v. Griffith, 1 Heis., 446; Blackburn v. Vick, 2 Heis., 376.</p> <p>9. JURISDICTION. Of subject-matter cannot be conferred by consent.</p> <p>Jurisdiction of the’ subject-matter cannot be conferred upon a court by consent of the parties litigant. . (Post, p. 30.)</p> <p>10. PLEADING AND PRACTICE. Amendments after issue not allowed without reason, negligence shown is ground for denial.</p> <p>The application for permission to amend pleadings, after issue will be denied unless a good reason is given for not presenting the new matter in the original pleading; and certainly the application should be denied, when the amended bill, upon its face, not only fails to state any such reason, but affirmatively shows that none existed, save the negligence of the applicant, and especially when the interest of the parties and the public aljke demands that there should be no unnecessary delay in •commencing the proceeding. (Post, p. 30.)</p>

<p>1, CONTESTED ELECTION. Construction of pleadings. Suit to recover office, not to remove usurper. Case in judgment.</p> <p>Tlie bill in this cause alleged that contestant and contestee were opposing candidates for the office of circuit judge at the regular election held therefor; that on the face of the returns the con-testee was elected but in fact the contestant was legally elected; that the returns as made were false and procured by fraud and corrupt practices in certain designated election districts, thereby rendering the election in such districts void and 'requiring the returns therefrom to be disregarded, and prayed that contestant be declared elected.</p> <p>Held: That the suit was one by contestant, in his own right to contest the election and recover the office — not to annul the election and remove contestee as a usurper. (Post, pp. 40-58.)</p> <p>3. OPEICE. A bill to recover, showing election to be void, must be dismissed.</p> <p>A suit instituted- for the sole purpose of recovering the office of circuit judge, where the allegations of the bill, taken as true on demurrer, show that the entire election was absolutely void and that contestant was not legally elected and is not entitled to recover that office, must be dismissed upon demurrer thereto. (Post, pp. 40-46.)</p> <p>3. ELECTION. Void to extent sufficient to change result- is void in toto. •</p> <p>Where the election is fraudulent and void in nearly half the wards and districts of the county, so that qualified voters in numbers sufficient to have changed the -result of the election were deprived of the right to express their preference by ballot, the election held in the other wards and districts is not a fair expression of the legal voters of the county, and the entire election is void. (Post, pp. 46-48, 53.)</p> <p>Cases cited and approved: Marshall v. Kerns, 2 Swan, 68; Railroad v. Davidson County, 1 Sneed, 639; McCraw v. Harralson, 4 Cold., 41; Barry v. Lauck, 5 Cold., 589; Knox v. Blair, 1 Bart. Elec. Cases, 526; Mann v. Cassidy, 1 Brewster, 11; Knox v. Davis, 63 Ill., 405; Spencer v. Morey, Smith Elec. Cases, 447.</p> <p>4. SAME. Office defined; contested election defined; rules of pleading and practice.</p> <p>The right to hold an office, receive and enjoy its emoluments and exercise its functions, is an incorporeal right, and a contested election is a civil suit brought to recover and enforce a civil right in controversy between contestant and contestee, and the rules of pleading and practice in civil actions are applicable to such contests, except where otherwise provided by statute authorizing the proceedings. {Post, p. 48.)</p> <p>Cases cited and approved: Boring v. Griffith, 1 Heis., 456; Blackburn v. Vick, 2 Heis., 379; State v. McConnell, 3 Lea, 335; Anderson v. Gossett, 9 Lea, 645; Moore v. Sharp, 98 Tenn., 68; Jones v. Glidewell (Ark.), 7 L. R. A., 835.</p> <p>5. PLEADING. Requisites of pleading are peculiarly applicable to election contests.</p> <p>It is a general rule of pleading in all actions that the complainant or plaintiff must, in his bill, petition, declaration, or other pleading in which his cause of action is stated, show to the court such a state of facts which under the law applicable thereto, will entitle him to recover the property, office, or other thing sued for, and this rule is peculiarly applicable to election contests. {Post, p. .48.)</p> <p>6. CONTESTED ELECTION. Right of candidate with certificate of election; pleadings to show otherwise.</p> <p>The candidate who has leceived the certificate of election has a prima facie title to the office, and, as the contest will more or less embarrass him in the discharge of his official duties in which the public is interested, there is every reason for requiring a contestant to show upon the face of the pleading in which his grounds of contest are stated, a clear right to the office for which he sues. {Post, pp, 48, 49.)</p> <p>Cases cited and approved: Boring v. Griffith, 1 Heis., 456; Blackburn v. Vick, 2 Heis., 379; Jones v. Glidewell (Ark.), 7 L. R. A., 835; Brown v. Jefferson, 42 Kan., 605; Tarbox v. Sughrue, 26 Kan., 228.</p> <p>7. SAME. Essential facts to be shown by contestant in his pleadings.</p> <p>In a contested election proceeding, it must appear from the facts charged that there' was both a valid election held and that a majority of the legal voters participating in it, cast their ballots for contestant, for if the bill fails to show either of these essential facts, it is bad upon demurrer and will be dismissed. (Post, p. 49.)</p> <p>8. SAME. Suit to recover office distinguished from action to annul election.</p> <p>A suit to recover an office under an election is essentially differ- • ent from an action brought to have an election annulled and the party in possession of the office declared not ta be "elected and a usurper. One is a suit for the recovery of a private right, and the other is to redress a public wrong. The contestant in the first case must charge that there was a valid election and that he was elected, and in the second that the election was absolutely void' and that no one was elected. The prayer in one case is that the election be held valid and the office decreed to the contestant, while in the other it is that it be adjudged void and that no one was elected. {Post, pp. 49, 50.)</p> <p>9. SAME. Returns not purged upon general charges of fraud..</p> <p>Election returns cannot be purged of illegal votes upon ge'neral charges of fraud and misconduct of the officers of the election, and friends and supporters of the contestee. {Post, p. 50.)</p> <p>Cases cited and approved: Moore v. Sharp, 98 Tenn., 518; Mann v. Cassidy, 1 Brewster, 11.</p> <p>10. SAME. Contestant bound by Ms pleading. Private suit to recover office cannot be converted into public suit to remove incumbent as a usurper.</p> <p>A party seeking to contest tbe result of an election is bound by bis pleadings in which, as in any other civil action, he is required to state the case upon which he predicates his right to recover; and a suit brought solely to recover an office upon the ground that the contestant was in fact elected, while incumbent contestee was defeated, cannot be converted, in the absence of essential averments and proper prayer for such relief, into an action to have the incumbent removed as a usurper, upon the theory that neither the contestant nor the con-testee were elected because the whole election was void. {Post, pp. 50-58.)</p> <p>11. ELECTIONS. What prevented an election, on how the voters would have voted, is .immaterial.</p> <p>It is immaterial what prevented a valid election from being held in the precincts attacked, and no inquiry can be made as to how the voters deprived of the elective franchise would have voted. {Post, p. 52.)</p> <p>IS. CONTESTED ELECTION. Jurisdictional provisions of statute must be complied with.</p> <p>The provisions of the Code under which contested election cases may be instituted are Jurisdictional, and they must be complied with, not only in order to give eontestañt the right to maintain the action, but to confer jurisdiction upon the court or tribunal specially created to hear and determine it. {Post, p. 57.)</p> <p>Case cited and approved: Harmon v. Tyler, 4 Cates, 8, 23, 24.</p>

<p>1. QUARTERLY COUNTY COURT. Jurisdiction of.</p> <p>An accurate statement of the general scope of the duties devolved by law upon the quarterly county court is given by the court, with citations of the statutes contained in the Code from which such statements are drawn. (Post, pp. 63-66.)</p> <p>Code cited and construed: Secs. 5992, 6993, 5997-5999, 6003, 6012, 6015-6017, 6019, 6041-6046, 500, 504, 506-510, 6038, 1617-1647, 6048-6055, 2703, 2704 (S.); secs. 4954, 4955, 4959, 4967, 4968,4970-4972, 4974, 4985-4988, 466, 470, 472-476, 4985, 1322, 1385, 1338-1345, 1354- 1356, 4989, 4990, 2126, 2127 CM. & V.); secs. 4188, 4193, 4195, 4190, 4211-4216, 408, 412, 414-418, 4207, 1182, 1193a, 1619, 1620 (T. & S. and 1858).</p> <p>2. MONTHLY COUNTY COURT. Jurisdiction of.</p> <p>. An accurate view of the scope of the jurisdiction of the county judge or chairman of the county court holding the monthly county court is given by the court with citations of statutes contained in the Code from which such views are drawn. (Post, pp. 67, 68.)</p> <p>Code cited and construed: Secs. 6006, 6022, 6023, 6025, 6027, 6029, 6031-6037 (S.); secs. 4962, 4977, 4984 (M. & V.); secs. 4197-4199, 4201, 4202-4205 (T. & S. and 1858).</p> <p>3. QUARTERLY AND MONTHLY COUNTY COURTS. Jurisdiction of quarterly court is legislative, while that of monthly court is judicial.</p> <p>The statutes setting forth, respectively and in general, the juris-dictipn of the quarterly county court and that of the monthly county court, show in clear outline the diverse nature of the two jurisdictions. The duties devolved upon the quarterly county court are essentially legislative, while the jurisdiction conferred upon the monthly county court is wholly judicial. (Post, pp. 68-70.)</p> <p>4. COUNTY JUDGE OR CHAIRMAN. Vested with all jurisdictions of county court except that expressly conferred upon quarterly court.</p> <p>The county judge or chairman holding the monthly county court has all the jurisdiction belonging to the county court except that which is specially required to he done by the quarterly court, or except such as expressly or by reasonable implication devolves upon the quarterly court. (Post, p. 68.)</p> <p>Code cited and construed: Secs. 511, 5993 (S.); secs. 477, 4955-(M. & V.); sees. 419, 4181 (T. & S. and 1858).</p> <p>5. CONTESTED ELECTION. Jurisdiction in court having power to induct officer.</p> <p>Where no other provision is made for the contest of an election, the' court that has the power to induct into office has the jurisdiction to dispose of the contest. (Post, p. 71.)</p> <p>6. SAME. Same. Offices of county register and county court-clerk.</p> <p>Jurisdiction of contested election cases over the offices of county register and county court clerk is in the monthly county court to be held by the county judge or chairman, and is not in the quarterly county court. (Post, pp. 63-72.)</p> <p>Code cited and construed: Secs, 402, 408, 511, 559, 661, 1154,. 1155, 5993 (S.); secs' 368, 374, 521, 523, 1020, 1021, 4955 (M. & V.); secs. 326, 332, 447, 449, 825 f, 825 g, 4181 (T. & S. and 1858).</p> <p>Case cited and distinguished: Leonard v. Haynes, 14 Lea, 447.</p> <p>7. SAME. Office of county superintendent of public instruction.. Jurisdiction of a contested election case over the office of county superintendent of public instruction is in the quarterly county court electing such officer, and is not in the monthly county court. (Post, pp. 72, 73.)</p> <p>Case cited and approved: Leonard v. Haynes, 14 Lea, 447.</p> <p>8. SAME. Properly certified to circuit court by county judge, when.</p> <p>Where the county judge, because of interest, is incompetent to hear and determine a case upon its merits — e. g., a contest over the office of county register or clerk of the county court — it is proper for him to certify the case to the circuit court. (Post, p. 73.)</p> <p>Code cited and construed: Sec. 5723 (S.); sec. 4688 (M. & V.); see. 3926 (T. & S. and 1858).</p> <p>8. SAME. Mo purging of polls under bills showing void election.</p> <p>Under a hill bottomed alone upon the assertion of title to an office under an election and containing allegations, which' upon demurrer are to he taken as true, showing a violation of all the safeguards which the law has thrown around elections, so that the results rendered are incurably uncertain, there can he no purging of the polls and no relief can he granted except to declare the whole election void. (Post, pp. 74-76.)</p> <p>10. SAME. Essential allegations of a bill to recover an office. Contestants’ plendings fatally defective. Case in judgment.</p> <p>All contestants seeking to recover an office must show the validity of the election and that they were deprived of a sufficient number of votes at the several polling places to he specified to change the result of the election. The hills in these causes are fatally defective, in that, assuming the validity of the elec.tion, they do not set out with that certainty required by law that either of the contestants were deprived of a sufficient number of votes to have changed the result of the election. (Post, p '. 76.)</p> <p>11. PLEADING AND PRACTICE. Court will not seek out irrelevant matters not pointed out.</p> <p>The court is not required to go through , the pleadings and pick out irrelevant matters appearing therein, in the absence of a motion pointing out the objectionable matters with reasonable accuracy. (Post, p. 74.)</p> <p>12. OEEICE. Bill asserting title to, but showing void election,, dismissed upon demurrer.</p> <p>A bill or petition filed for the. sole purpose of asserting title to an office, and to recover same, in which facts are stated showing the whole election to be void, and that no one could have title to an office thereunder, must be dismissed upon demurrer. thereto. (Post, pp. 74-76.)</p> <p>Case cited and approved: Nelson v. Sneed, 4 Cates, 36, 40-46.</p> <p>Case cited and distinguished: Maloney v. Collier, 4 Cates, 78.</p>

<p>1. ELECTION. Void to an extent sufficient to change the result, had all voted one way is void as a whole.</p> <p>Where an election is void in a sufficient number of wards and districts to change the result of the election had all the voters in said wards and districts voted one way, the whole election is. void. (Post, pp. 84, 85, 89, 90, 103, 104.)</p> <p>2. ' CONTESTED ELECTION. Allegations as to number of votes must be specific and not indefinite.</p> <p>In a contested election case seeking relief by purging the polls, casting out all the votes improperly counted for contestee, and adding to the vote of the contestant all the votes really received by him at the election, and not counted for him, an allegation that contestant received “many legal votes” which were not counted for him, and that “many votes” were counted for con-testee which were illegal and fraudulent, is too general and indefinite for any purpose whatever as to the number of votes, tPost, pp. 84-89, 104, 105.)</p> <p>Cases cited with approval: Skerrett’s Case, 2 Parsons, 509; Mann v. Cassidy, 1 Brewster, 11; Gibbins v. Sheppard, 2 Brewster, 2; Batturns v. Megary, 1 Brewster, 162; Carpenter’s Case, 2 Parsons’ Select Equity Cases, 543; Kneass’ Case, Id., marg., p. 553.</p> <p>3. SAME. Validity of election may be determined in contested election case.</p> <p>It is settled law under the authorities in this State that the validity of an election may be determined in a contested election case, especially where the Code provides for the contest (Post, pp. 90-95.) '</p> <p>Cases cited and approved: Marshall v. Kerns, 2 Swan, 67; Railroad v. Davidson Co., 1 Sneed, 693-694; MeCraw v. Harralson, 4 Cold., 34; Barry v. Lauek, 5 Cold.-, 688; Puckett v. Bean, 11 Heis., 600; Lewis v. Watkins, 3 Lea, 174; State v. Birchfield, 12 Lea, 30» Lawrence v. Ingersoll, 88 Tenn., 62.</p> <p>Code cited and construed: Secs. 1308-1332 (S.);'secs. 1097-1121 (M. & V.); secs. 888-912 (T. & S. and 1858).</p> <p>4. SAME. Validity of election cannot be determined where contest lies, when.</p> <p>The validity of an election cannot be tried under sections 5165 to 5180 of Shannon’s Code, where a contested election, which is usually a contest as to which of two parties was elected, may be instituted and prosecuted. {Post, pp. 95-101.)</p> <p>Cases cited and approved: State, ex rel., v. Conner, 8 Bax., 11; State, ex rel., v. Wright, 10 Heis., 237; State v. Campbell, 8 Lea, 74; State v. McConnell, 3 Lea, 332; State, ex rel., v. Glenn, -7 Heis., 472; Winston v. Railroad, 1 Bax., 60; Anderson v. Gos-sett, 9 Lea, 647; Hooper v. Rhea, 3 Shannon’s Cases, 147.</p> <p>Code cited and construed: Secs. 5165-5180 (S.); secs. 4146-4161 ' (M. & V.); secs. 3409-3424 (T. & S. and 1858).</p> <p>5. OFFICE. Defined.</p> <p>Office is an incorporeal right, and consists in the right to execute a public trust and to take the emoluments belonging to it; and an injury to this right is an injury to a private right. {Post, pp. 100-101.)</p> <p>Cases cited-and approved: Dodd v. Weaver, 2 Sneed, 670; Boring v. Griffith, 1 Heis., 456; Moore v. Sharp, 14 Pickle, 65.</p> <p>6. CONTESTED ELECTION. Defined.</p> <p>A contested election is usually a contest as to which of two, parties. was elected, and is not in any sense a criminal proceeding, but a controversy between two private individuals, as to the right to exercise the functions and enjoy the emoluments of the office, and a party lias a right to enforce it hy civil proceedings. (Post, pp. 97, 101.)</p> <p>Cases cited and approved: Dodd v. Weaver, 2 Sneed, '670; Boring v. Griffith, 1 Heis., 456; Moore v. Sharp, 14 Pickle, 65.</p> <p>7. SAME. Invalidity of election must be tried in contested election case under statute.</p> <p>The validity of any election for which a contest proceeding is provided by the Code must be determined and can only be determined in that form, and it cannot be entertained by the court of chancery under sections 5165 to 5180 of Shannon's Code; and if acts in violation of the elective franchise cannot be redressed under the statutes which make provisions for contested elections, they can not be redressed at all. (Post, pp. 101, 102.)</p> <p>8. SAME. Same. Invalidity of election may be sole redress sought.</p> <p>Redress for the invalidity of an election may be the sole purpose of an action,, and there need not be an assertion on the part of the party making such question that he received a sufficient number of votes at the election to entitle him to the office. (Post, p. 102.)</p> <p>9. SAME. Same. Whether only a candidate or any citizen may make questions as to validity of election is reserved.</p> <p>Question whether any citizen, as such, who was not a candidate at the election in question, or who is not interested in the office as incumbent, can make the question as to the invalidity of the election, is not decided, but a diotum is cited going to such extent. (Post, p. 102.)</p> <p>Case cited: Marshall v. Kerns, 2 Swan, 67, 71-72.</p> <p>10.SAME. Any court or person required to induct into office or to recognize the officer may question validity of election.</p> <p>Any court or officer whose duty it is to induct the person offering into office, or who is called upon by legal process, as by mandamus, to recognize him, may make^ the point of the invalidity of the election. (Post, p. 102.)</p> <p>11. SAME. Invalidity of election and contestant’s election may lie alleged.</p> <p>In every contested election case under the Code, two distinct grounds of action may be alleged, namely, first, that the election is void, and secondly, if valid, that the contestant is entitled to the office, on the ground that, after a purging of the polls, it will appear that lie has received a majority of the votes cast at such election. (Post, p. 102.)</p> <p>IS. SAME. Same. Improper statement of one ground does not affect the other ground properly stated.</p> <p>In a contested election case, one of the grounds may be properly stated on the face of the petition, and the other improperly or not sufficiently stated, and one may be stricken out on demurrer for insufficiency and the other retained as being stated with sufficient fullness and accuracy to meet the objections raised by demurrer. (Post, pp. 102-103.)</p> <p>13. SAME, Same. Same. One of the two grounds properly stated may be sustained and the other rejected on the evidence.</p> <p>In a contested election case both the invalidity of the election and its validity and contestant’s election after purging the polls may be stated on the face of the petition with sufficient fullness and accuracy to resist the assaults of a demurrer and the parties may go to proof, and one be sustained and the other rejected on the evidence. (Post, p. 103.)</p> <p>14. SAME. Jurisdiction of contested election case over office of county judge.</p> <p>A petition addressed to the chancellor of the division in which the election was held is sufficient in a'contested election case over the election and office of a county judge. (Post, p. 105.)</p> <p>Code cited and construed: Secs. 1313, 1320 (SO; secs. 1102, 1109 (M. & V.); secs. 893, 900 (T. &• S. and 1858).</p>

<p>1. EVIDENCE. Of conditions before or after accident remaining’ unchanged is admissible.</p> <p>While in negligence cases the condition of the appliances or premises at the time or place of injury is the material question, yet evidence of conditions-before or after the accident may be ■ received, where it is also shown that the conditions testified to remain unchanged down to the occurrence of the injuries or to the time to which the evidence relates. (Post, pp. 114-115.)</p> <p>Cases cited and approved: Railroad v. Lindamood, 1 Cates, 411-412; District of Columbia v. Arms, 107 U. S., 519.</p> <p>S. SAME. Same. Of conditions so soon before or after accident as warrant inference of same conditions is admissible.</p> <p>So, evidence is admissible of conditions existing so short a time before or after the accident as, under the circumstances, to warrant an inference of fact that the same conditions existed when the injuries were received. (Post, pp. 114-115.)</p> <p>Case cited and approved: Railroad v. Lindamood, 1 Cates, 411-412.</p> <p>3. SAME. Same. Case in judgment.</p> <p>In an action against a street railroad company for personal injuries to a passenger caused by his .being thrown from his seat violently to the ground by the sudden jerking or jolting of the car caused by defective rails and switch board or frog, and it appearing that the track at the point of the accident had been in the same condition for several months prior thereto as at the time of the accident, it was proper and not error to admit the testimony of witnesses that they had been nearly thrown from the cars at that point on previous occasions, that they had seen cars derailed at that point and had helped to put them back on the track. (Post, pp. 111-115.)</p> <p>4. NEGLIGENCE. Of parent is not imputable to child, where it is not negligent.</p> <p>In an action by a child through its next friend to recover damages for personal injuries, the negligence of its parent in actual custody and control of the child is not imputable to the child, where the child is not guilty of any negligence, but uses due care. (Post, pp. 115-126.)</p> <p>Cases cited and approved: Whirley v. Whiteman, 1 Head, 610; Bamberger v. Railroad, 95 Tenn., 18; McGarry v. Loomis, 63 N. Y., 104; Lennan v. Gas Light Co., 44 N. Y., 459.</p> <p>Case cited and disapproved: Hartfield v. Roper, 21 Wend., 615.</p> <p>Cases cited and distinguished: Railroad v. Stratton, 78 Ill., 88; Railroad v. Grable, 88 Ill., 441; Railroad v. Moore, 59 Texas, 64; Railroad v. Bolin, 27 Micli., 504, 516; Railroad v. Caldwell, 74 Pa., 421; Stillson v. Hannibal, 67 Mo., 671; Waite v. Railroad, El. Bl. & El., 719-728; Koons v. Railroad, 65 Mo., 592; Holly v. Boston G-. L. Co., 8 Gray, 132; Grethen v. Railroad (C. CO, 22 Fed., 609; The Burgundia (D. CO, 29 Fed., 464; Railroad v. Logue, 158 Ill., 621; Carter v. Towne, 98 Mass., 567; Carter v. Towne, 103 Mass., 507;' Morrison v. Railroad, 56 N. Y., 302; Lannen v. Gas Light Co., 46 Barb. 264; Lannen v. Gas Light Co., 44 N. Y., 459; Railroad v. Snyder, 18 Ohio St., 400; Kay y. Railroad, 65 Pa., 276; Railroad v. Mahoney, 57 Pa., 187; Railroad v. Caldwell, 74 Pa., 421.</p> <p>5. SAME. Same. Case in judgment.</p> <p>A child passenger on a street car in the actual custody of his parent is not guilty of any negligence himself, and no negligence of the parent can be imputed to him, where he is sitting in his seat, and holding to the guard attached to the seat, and not leaning out nor committing any incautious act, and his parent is sitting on the opposite seat facing him, when owing to a plunging and jerking of the car caused by a defect in the track, he was violently thrown to the ground and severely injured. (Post, pp. 111-126.)</p> <p>6. SAME. Same. Refusal to charge that parent’s negligence proximately contributing to injury of child' prevents its recovery is not prejudicial, if neither was negligent.</p> <p>Ordinarily a failure and refusal to charge a request that if the negligence of the parent in the actual custody and control of a child proximately contributed in any degree to produce the injury the defendant would not be liable would constitute prejudicial and reversible error; but where no heedlessness on the part of the child is shown, nor negligence on the part of the parent in failing to prevent incautious acts of the child, there would be no basis for imputing to the child any .negligence- on the part of the parent that proximately contributed to the injury. (Post, pp. 115-126, but especially 124.)</p> <p>Case cited and approved: Railroad v. Norman, 108 Tenn., 334.</p> <p>7. CHARGE. Refusal of request explaining meaning of terms not used in regular charge is not error, when.</p> <p>Refusal to charge a request instructing the jury as to the meaning of the proposition that “a carrier of passengers must provide for their safety as far as human skill and foresight will go” is not error, where the proposition was not so charged in the regular charge, and for this reason, there was no occasion to explain what was meant by those terms or such proposition. (Post, pp. 126-127.)</p> <p>8. SAME. That railroad tracks must be kept in reasonably safe condition cannot be complained of.</p> <p>In an action against a street railroad for personal injuries to a passenger, on account of a defective track, it can not complain of a charge that it was its duty to keep its track, cars, and appliances, and its switches and frogs in a reasonably safe order and condition. (Post, p. 127.)</p>

<p>1. VERDICT. Of jury settles conflicting' theories.</p> <p>Where there is a discrepancy and controversy over the facts, the supreme court will adopt the theory of the party in whose favor the jury .found and returned the verdict. (Post, pp. 131, 132.)</p> <p>S. RAILROADS. May use right of way for legitimate railroad purposes; precautions to prevent obstructions from becoming dangerous.</p> <p>A railroad company may use its right of way for any legitimate railroad purpose, and may place a pile of lumber or other material upon it; but, when it does so, it must adopt all precautions necessary to prevent such obstructions from becoming dangerous. (Post, pp. 133-137.)</p> <p>Cases cited and approved: Cordell v. Railroad, 70 N. Y., 119; Dillingham v. Parker (Tex.), 16 S. W., 335; Guggenheim v. Railroad, 33 N. W., 161; Railroads v. Hicks, 13 Ill. App., 407; Railroad v. Nelson, 59 Ill. App., 308.</p> <p>3. SAME. Same. Obstructing view must' use precautions to prevent accidents.</p> <p>If a railroad company obstructs the view, or permits it to be obstructed, with piles of lumber near its track, it must, under such conditions, use such increased care and caution as circumstances would require to prevent accidents. (Post, pp. 133-134.)</p> <p>See citations under headnote 2.</p> <p>4. SAME. Same. Same. Maxim that one must use his own property so as not to injure others is not applicable in such cases.</p> <p>The maxim that one is bound to so use his own property as not to hinder others is not applicable to the cases stated in head-notes two and three, and does not alter or destroy the rules therein stated. (Post, pp. 135-136.)</p> <p>5. SAME.. Same. Same. Obstructions may relieve plaintiff of contributory negligence, and increase railroad company’s care and vigilance.</p> <p>Obstructions placed by a railroad company upon' its right of way so as to obscure the view may relieve the injured party of contributory negligence in not seeing the approaching train, and must be considered upon the question of the proper degree of care and vigilance which' the railroad company is ■ bound to exercise in the running and management of its trains, and in .giving warnings of its approach. It can not be an independent ground of recovery. (Post, pp. 136-137.)</p> <p>See citations under headnote 2.</p> <p>6. DAMAGES. For personal injuries is compensation; charge leaving amount to jury is erroneous.</p> <p>In an action for personal injuries, the plaintiff is entitled to recover compensation for the injury received and sustained, and a charge to the jury to “estimate from the proof the amount of damages plaintiff is entitled to recover” . . . to “assess the amount of damages plaintiff .is entitled to,” ... to “fix the amount ... as you believe, from the evidence and the law, plaintiff is entitled to and at a sum you think right and proper” ... is erroneous. (Post, pp. 137-139.)</p>

<p>1. PLEADING AND PRACTICE. Every intendment made in. favor of a bill upon demurrer to it.</p> <p>It is a well settled rule that upon a demurrer to a bill, the benefit of every intendment will be made in favor of the bill as a. pleading. (Post, pp. 142.)</p> <p>2. RAILROADS. Contractor’s lien for construction or repair of-roadway is enforceable in chancery court,</p> <p>The principal or original contractor is entitled to a lien on a railroad, its franchises or property, for construction or repair-of the railroad roadway and' appurtenances, and may enforce his such lien in the chancery court. (Post, pp. 142-147.)</p> <p>Acts cited and construed: 1883, ch. 220; 1891, ch. 98.</p> <p>3. SAME. Objection to subcontractor’s notice of lien cannot be-made for first time on appeal.</p> <p>The defects in a subcontractor’s notice to a railroad of his lien for construction or repair of its roadway, or the absence of such notice, may be waived; and the same is waived by not making, any objection or defense in the court below, because of the defect in such notice or the absence thereof, for the objection-can not be made for the first time on appeal in the court of-chancery appeals or in the supreme court. (Post, pp. 149-150.)</p> <p>Cases cited and approved: Railroad v. Miller, 80 Va., 821; Wheeler v. Ralph, 4 Wash., 617; Fire Extinguisher Co. v. Carpet Works, 199 Pa., 647; Holmes v. Budd, 11 Iowa, 186.</p> <p>•4. SAME. Same. Case in judgment.</p> <p>Where a subcontractor’s notice to a railroad and his original hill claims a lien for $13,000 only, hut hy an amended hill a claim is made for $23,000, and a lien for that amount is sought to be enforced, which bills were answered by the railroad without making any question upon the notice, the question can not be made for the first time upon appeal, and the lien may be enforced for the amount found to be due under the bill as amended. (Post, pp. 147-150.)</p> <p>•5. STATUTES. Original to be read as containing amendments,, when.</p> <p>When a statute is amended by a subsequent statute, the original act is to be read as if it contained the provisions of the amend-atory act, as to all authorized actions occurring after the enactment of the amendatory statute. {Post, pp. 145-146.)</p>

<p>1. INSURANCE. Statute as to nonassessment insurance is not vicious class legislation, and is valid under police powers.</p> <p>The statute providing that no misrepresentations or warranty, unless made with actual intent to deceive, or. unless the risk ■of loss is thereby increased, shall defeat or avoid an insurance policy, is not vicious class legislation, hut is a valid exercise ■of the police power, though it applies only to nonassessment insurance companies, and does not apply to assessment insurance companies, and is not, for such reason, unconstitutional. (Post, pp. 156-162.)</p> <p>■Code cited and construed: Sec. 3306 (S.).</p> <p>Acts cited and construed: 1895, ch. 160, see. 22.</p> <p>•Cases cited and approved: Light v. Insurance Co., 105 Tenn., 480; Insurance Co. v. Stallings, 2 Cates, 1; Insurance Co. v. Bank & Trust Co., 72 Fed., 413; White v. Insurance Co., 4 Dill. (Mo.), 177; Society v. Clements, 140 U. S., 226; Wall v. Society (C. C.), 32 Fed., 273; Insurance Co. v. State, 153 U. S., 446; Reilly r. Insurance Co., 43 Wis., 449; Insurance Co. v. Leslie, 47 Ohio St., 409; Hermany v. Association, 151 Pa., 17, 24; Albert v. Insurance Co., 122 N. C., 92; Insurance Co. v. Rudwig, 80 Ky., 223 (overruling Insurance Co. v. Curry, 13 Bush, 312); White v. Society, 163 Mass., 108; Hogan v. Insurance Co., 164 Mass., 448-450.</p> <p>S. SAME. Nonassessment only embraced in Acts 1895, ch. 160,</p> <p>Nonassessment insurance companies of all kinds are embraced in Acts 1895, ch. 160, but no assessment company is embraced in said act. (Post, pp. 157-158.)</p> <p>Acts cited and construed: 1895, ch. 160, secs. 9, 10, 13, 22; 1895, ch. 220; 1887, ch. 178.</p> <p>3. SAME. Failure to observe fire-proof safe clause does not avoid policy.</p> <p>A covenant and warranty contained in a fire insurance policy and in the application therefor that the insured will keep his books of accounts and inventories securely locked in a fire-proof safe at night, and when the building is not actually open for business, in some place not exposed to fire which would destroy the building, fall directly within the terms of the statute providing that no warranty made in the negotiation of a contract or policy of insurance, or in the application therefor, shall defeat or avoid the policy, unless made with actual intent to deceive, or unless the risk of loss is thereby increased; and a policy is not rendered void by such covenant and warranty. (Post, pp. 162-164.)</p> <p>Code cited and construed: Sec. 3306 (S.).</p> <p>Acts cited and construed: 1895, ch. 160, sec. 22.</p> <p>4. SAME. Testimony showing that correct statements of insured were put down wrong by agent of insurer exonerates insured.</p> <p>Where the applicant for insurance states a matter truly to the-agent of the insurance company, but the agent puts it down wrong, and the application is signed by the applicant without. reading same, it is competent to prove such facts, notwithstanding the application, and when such facts are proved, the insured is exonerated from the charge of misrepresentation. (Post, p. 165.)</p> <p>Cases cited and approved: Insurance Co. v. Sorrels, 1 Bax., 352; Insurance Co. v. Bank, 88 Tenn., 369; McCarthy v. Catholic Knights, 102 Tenn., 345, 352; Light v. Insurance Co., 105 Tenn.,. 480; Insurance Co. v. Estes, 106 Tenn., 472.</p> <p>5. SAME. Same. Case in judgment as to legal title béing in firm, when in one member only.</p> <p>Where the legal title or property insured is in one member of the firm, and not in the firm, and the agent of the insurance company is so informed, but he puts it down in the application as belonging to the firm, which application is signed without being read, testimony is competent to show the truth and to exonerate the insured from the charge of misrepresentation, tPost, pp. 165-166.)</p> <p>See citations under headnote 4.</p> <p>6. SAME. Same. Case in judgment as to incumbrances.</p> <p>Where the insured makes no statements as to incumbrances, and signs the application, written by the agent of the insurance company, without reading it, he is not guilty of misrepresentation, though the application erroneously states that there were no incumbrances on the property. {Post, pp. 165-166.)</p> <p>See citations under headnote 4.</p> <p>7. SAME. Misrepresentations as to incumbrances, such as liens, do not avoid policy.</p> <p>Misrepresentation as to incumbrances will not avoid a policy of insurance, because incumbrances or liens do not increase the risk, as the secured debt would remain after the destruction of the property. {Post, p. 166.)</p> <p>Cases cited and approved: Light v. Insurance Co., 105 Tenn., 480; Insurance Co. v. Estes, 106- Tenn., 472.</p> <p>8. SAME. Delay in furnishing proofs of loss does not defeat suit, when. '</p> <p>An action may be maintained upon an insurance policy providing that notice and proofs of loss must be furnished within certain time after loss, but not imposing a forfeiture for failure to furnish them within the prescribéd time, though they are not furnished until after the time limited, but are furnished prior to the suit, and this is true though the policy provides that no action can be maintained until after a full compliance with such requirement. {Post, pp. 166-168.)</p> <p>Cases cited and approved: Steele v. Insurance Co., 93 Mich., 81; Hall v. Insurance Co., 90 Mich., 403; Tuhhs v. Insurance Co., 84 Mich., 646; Rynalski v. Insurance Co., 96 Mich., 396; Insurance Co. v. Brown (Ky.), 29 S. W., 313; Vangindertaelen v. Insurance Co., 82 Wis., 112; Flatley v. Insurance Co., 95 Wis., 618; Kahnweiler v. Insurance Co. (C. C.), 57 Fed., 562; Insurance Co. v. Downs, 90 Ky., 236; Insurance Association v. Evans, 102 Pa., 281; Taker v. Insurance Co., 124 Ala., 681; Rheims v. Insurance Co., 39 W. Va., 672; Shell v. Insurance Co., 60 Mo. App., 644; Insurance Co. v. Mattingly, 77 Tex., 162.</p> <p>9. SAME. Statute imposing penalties for bad faith, litigation is constitutional and valid.</p> <p>A statute imposing a penalty not exceeding twenty-five per cent, upon insurance companies refusing, not in good faith, to pay their policies, and on the insured for bringing suit not in good faith, is constitutional and valid. There is such difference between insurance business and other kinds of business as to justify such statute. {Post, pp. 168-175.)</p> <p>Act cited and construed: 1901, ch. 141, secs. 1 and 2.</p> <p>Constitution of the United States cited and construed: 14th amendment.</p> <p>Cases cited and approved: Insurance Co. v. Daggs, 172 U. S., 557; Insurance Co. v. Warren, 181 U. S., 73; Association v. Met-tler, 185 U. S., 308; Insurance Co. v. Lewis, 187 U. S., 335; Insurance Co. v. Dobney, 189 U. S., 301.</p>

<p>1. ADMINISTRATION'. Statutory preference in appointment of ■ administrator is mandatory, -when; but not -when.</p> <p>The statute prescribing to whom administration shall be granted is mandatory in the preference prescribed where the applicants in the different classes are equally fit and suitable; but the personal fitness of the applicants may be considered by the court, and may be of sufficient importance to justify the court in appointing one in a class mor-e remotely preferred, for instance, the largest creditor when more fit and suitable may be appointed instead of the next of kin. {Post,' pp. 177-184, and especially 182-183.)</p> <p>Code cited and construed: Sec. 3939 (S.); sec. 3047 (M. & V.); sec. 2206a (T. & S.).</p> <p>2. SAME. Trial of contest over appointment is to be on the merits and de novo on appeal to circuit court.</p> <p>In a suit to set aside the appointment of an administrator involving a contest between the plaintiff and the defendant over the right to administer, on appeal from the county court to the circuit court, the cause stands for hearing there upon its merits and de novo. {Post, pp. 177-184, and especially 184).</p> <p>3. SAME. Same. Prevention of trial on merits by erroneous ■holding of trial judge on question of law is cause for new trial.</p> <p>Where the trial judge holds the statutory preference in the appointment for administrators to be absolutely mandatory, and yielding to this holding, counsel failed to introduce any evi- ' dence, it can not avail that both court and counsel agreed or submitted to this proceeding, but a new trial will be granted. {Post, pp, 177-184, and especially 184).</p>

<p>1. BILL OF EXCEPTION'S. Necessary for review of action on petition for removal to federal court.</p> <p>In the absence of a wayside hill of exceptions, preserving and embodying in the record the petition, bond, affidavits, etc., for the removal of the cause from the State court to the federal court, the action of the lower court upon the petition cannot be reviewed by the State supreme court upon appeal of the cause-after a trial on its merits, because there is nothing before such court for review. (Post, pp. 191-192.)</p> <p>Case cited and approved: Railroad v. Fort, 4 Cates, 432.</p> <p>3. RAILROADS. Negligence to' go upon track without looking or listening; exceptions.</p> <p>A railroad track is an admonition of danger, and to go upon it without looking or listening is generally an act of negligence, but this is not an inflexible rule, for there are many conditions and environments that excuse the exercise of this legal duty. (Post, 'p. 202.)</p> <p>See citations under headnote 3.</p> <p>3. SAME. Crossing tracks without looking or listening is not negligence per se, when.</p> <p>Crossing a railroad track without listening when it is seen there is no danger, or when one is deaf, or the noise of the surroundings are so great as to preclude all possibility of hearing, or crossing, without looking, when the view is absolutely cut off, or so obstructed that nothing can be seen until entrance upon the track, is not negligence per se. (Post, pp. 201-204.)</p> <p>Cases cited and approved: Patton v. Railroad, 89 Tenn., 371; Railroad v. Dies, 98 Tenn., 663; Wilson v. Railroad, 106 Tenn., 74; Railroad v. Ives, 144 U. S., 408.</p> <p>4. SAME. Same. Case in judgment.</p> <p>Whether a person driving across a railroad track is negligent in failing to look and listen, where the loud noise of a mill probably drowned the noise of the approaching train, and a string . of cars parked on the side track obstructed the view of it, is a question for the jury; for the failure to look and listen under such circumstances does not constitute negligence per se, or as a matter of law. (Post, pp. 200-204.)</p> <p>See citations under headnote 3.</p> <p>6. SAME, Inability to hear or see an approaching train requires great care in crossing railroad tracks.</p> <p>Where one about to cross a railroad track cannot hear an approaching train on account of the noise of a mill, nor see it on account of obstructions, he must exercise a greater degree of care before attempting to cross the track than if there had been nothing to interfere with his sight or hearing. (Post, pp. 204-205.)</p> <p>Cases cited and approved: Railroad v. Weaver, 9 Lea, 47; Phillips v. Railroad, 111 Mich., 274; Merkle v. Railroad, 49 N. J. Law, 473.</p> <p>6. CHARGE OF COURT. On assumed facts not in evidence, if prejudicial, is reversible error.</p> <p>An instruction to the jury upon assumed facts which do not exist in the evidence and which are clearly disproved by all the evidence if prejudicial to the losing party is reversible error. (Post, pp. 205-208.)</p> <p>Cases cited and approved: Railroad v. Winters, 85 Tenn., 240; O’Rourke v. Railroad, 103 Tenn., 124; James v. Bank, 105 Tenn., 3; Railroad v. Houston, 95 U. S., ,703.</p> <p>7. SAME. That jury shall allow punitive damages, which are discretionary, is reversible error.</p> <p>The allowance of punitive, exemplary, or vindictive damages, when warranted by the facts, is left to the sound discretion of the jury; and an instruction to the jury that, if they find the negligence of the defendant was gross or wanton, they “should mahe proper additions” by way of punitive damages, is reversible error in making the assessment of punitive damages compulsory and not discretionary. (Post, pp. 208-213.)</p> <p>Cases-cited and approved: Ferguson v. Moore, 98 Tenn., 342; Railroad v. Brooks, 83 Ky., 129; Robinson v. Superior, etc., 94 Wis., 345; Day v. Woodworth, 54 U. S., 371; Hooker v. Newton, 24 Wis., 292.</p> <p>Cases cited and distinguished: Davidson Benedict Co. v. Sever-son, 109 Tenn., 572.</p> <p>8. VERDICT. So excessive as to evince partiality, passion, and caprice.</p> <p>A verdict for $17,000 for wrongful death, where there was contributory negligence on the part of the decedent, is so excessive as to evince partiality, passion, and caprice on the part of the jury. (Post, pp. 110, 135.)</p>

<p>1. HOTELS. One procuring no accommodations is not a guest; ease in judgment.</p> <p>One cannot become the guest of a hotel unless he procures some accommodations there. A traveling salesman turning his grips over to the porter of a hotel, with the intention of going there, but changing his, mind and not going there nor procuring any accommodations there, does not become a guest of the hotel so as to charge it with an innkeeper’s liability. (Post, pp. 216-217.)</p> <p>Case cited and approved: Whitemore v. Haroldson, 2 Lea, 312.</p> <p>2. SAME. Liability of innkeeper for goods of one not a guest is that of a gratuitous bailee.</p> <p>An innkeeper, to whom one not a guest sends goods to be held without compensation to be made therefor, will not be liable as an innkeeper, if the goods are lost; but will be liable only as a gratuitous bailee, that is, for loss or damage occasioned by gross negligence. (Post, p. 217.)</p> <p>Case cited and approved: Whitemore v. Haroldson, 2 Lea, 312.</p> <p>3. SAME. Same. Not liable as bailee for baggage delivered to its porter by one not a.guest, when.</p> <p>Where a traveling salesman turns his grips over to the porter of a hotel, intending to become a guest there, but changing his mind, goes elsewhere, and does not become a guest there, the hotel does not even become a mere bailee, though the porter deposits the grips in the hotel office without notice to the clerk, baggage keeper or other employee of the hotel and without their knowledge. The porter is the gratuitous bailee and not the hotel. (Post, pp. 217-218.)</p>

<p>A. HOTELS. Absolute insurers of guest’s property -under common law.</p> <p>The innkeeper was, under the common, law, an absolute insurer of the property of his transient guest. (Post, pp. 223-224.)</p> <p>3. SAME. Construction of statute relieving from liability for loss of guest’s property.</p> <p>While the statute relieving the proprietors of hotels from liability for loss of certain property of guests under certain conditions is in derogation of the common law, and for that reason must he strictly construed, still at the same time it must he construed with reference to its evident object and purpose, namely, the benefit and protection of hotel keepers. (Post, pp. 224, 229, 230.)</p> <p>Cases cited and approved: Rosenplanter v. Rosselle, 54 N. Y., 255; Stewart v. Parsons, 24 Wis., 242.</p> <p>•8 SAME. Same. Watch and fob embraced in the words “jewels and ornaments’ ’ in statute relieving hotel keepers from liability.</p> <p>A watch used for a timekeeper or chronometer and the fob attached thereto are embraced in the words “jewels and ornaments” in the statute providing that whenever the proprietor a hotel shall provide a safe for the keeping of any jewels or ornaments belonging to the guests, and the guest does not deposit them there, the proprietor shall not be liable for their loss by theft or otherwise; and under this statute the hotel • keeper is relieved from liability for loss. (Post, pp. 224-232.)</p> <p>Acts cited and construed: 1879, ch. 145.</p> <p>•Code cited and construed: Sec. 3593 (S.).</p> <p>'Cases cited and approved: Meacham v. Galloway, 102 Tenn., 419; Hyatt v. Taylor, 42 N. Y., 258; Rosenplanter v. Rosselle, 54 1ST. Y., 255; Stewart v. Parsons, 24 Wis., 242.</p> <p>Cases cited and distinguished or disapproved: Ramaley v. Iceland, 43 N. Y., 539;Berstein v. Sweeney, 33 N. Y. Super. Ct., 276; Gile v. Libby, 36 Barb. (N. Y.), 77; Maltby v. Chapman, 25 Md., 310; Murchison v. Sergent, 69 Ga., 207.</p>

<p>1. EVIDENCE. Of complainant as a witness does not overcome positive denial in sworn answer, when.</p> <p>The evidence of the complainant as a witness is not sufficient to overcome the positive denial of defendant in his answer under oath, where the oath was not waived under the statute. (Post, pp. 235-236.)</p> <p>Cases cited and approved: Baker v. Barfield, 4 Hum;, 514; Raines v. Jones, 4 Hum., 490; Woodfork v. Bank, 3 Cold., 497.</p> <p>2. STATUTES OE LIMITATIONS. Requisites to revive barred debt.</p> <p>In order to remove the bar of the statutes of limitations, there must be either an express promise to pay, or an acknowledgment of the debt, accompanied by an expression of willingness to pay it. (Post, p. 236.)</p> <p>Cases cited and approved: Warren v. Cleaveland, 3 Cates, 174, and the authorities there cited.</p> <p>3. SAME. Renewal note does not renew mortgage by merely referring to it as in force.</p> <p>A mortgage on land is not renewed or extended by a renewal note for the debt secured, although the renewal note for the debt recites that “This is a renewal of a former note for land which is secured by mortgage which is still in force.” (Post, pp. 236-238.).</p> <p>Acts cited and construed: 1885, ch. 9.</p> <p>Cases cited and approved: McElwee v. McElwee, 97 Tenn., 649; Runnells v. Jacobs, 100 Tenn., 397; Bank v. Smith, 107 Tenn., 476.</p> <p>Case cited, distinguished, and approved: Christian v. John, 3 Cates. 92.</p>

FROM SUMNER. Appeal in error from the Circuit Court of Sumner County. — B. D. Bell, Judge. Statement by Mr. Justice Neil. The plaintiff below was a dealer in eggs, poultry, and produce, having places of business at Gallatin and Nashville, this State. On Saturday, the twenty-ninth day of June, 1901, he consigned to Wm. Soeder & Son, at Philadelphia, Pa., a shipment consisting of 25% barrels of dressed poultry.

<p>1. FLEAS IN ABATEMENT. Pleading over upon adverse action to, when and when not. prior to Acts 1897, ch. 121.</p> <p>Prior to Acts 1897, ch, 121, the rule was, both at law and in equity that on striking out a plea in abatement, as frivolous or overruling it on demurrer, or when it was held insufficient, the defendant had the right to plead over; but where the issue tendered by the plea was tried on the merits, and the issue was found against the plea, there could be no further pleading, • but plaintiff was entitled to judgment on the merits of his demand. (Post, p. 276.)</p> <p>Cases cited and approved: Simpson v. Railroad, 89 Ténn., 304-308; Rogers v. O’Mary, 95 Tenn., 514, 518, 519.</p> <p>2. SAME. And in bar at the same time under Acts 1897, ch. 121.</p> <p>Under Acts 1897, ch. 121, a plea in abatement and a plea in bar or to the merits may be filed at the same time, and .the plea in bar will not overrule the plea in abatement. (Post, pp. 277-282.)</p> <p>Acts cited and construed: 1897, ch. 121.</p> <p>Case cited and approved: Railroad v. McCollum, 105 Tenn., 623.</p> <p>3. SAME. Pleading over after judgment against, in all cases under Acts 1897, ch. 121. .</p> <p>The defendant may plead over to the merits under Acts 1897, ch. 121, upon the rendition of a judgment against his plea in abatement, either upon motion to strike out, or upon being set down for argument upon its sufficiency, or upon demurrer, or upon an issue as to its merits. (Post, pp. 277-282.)</p> <p>Acts cited and construed: 1897, ch. 121.</p> <p>4. SAME. Same. Judgment may he rendered upon overruling, if leave to plead over is not asked for.</p> <p>To put the lower court in error for entering judgment on the merits, upon overruling a plea in abatement, it must affirmatively appear that application was made for leave to plead over, and that it was refused. {Post, pp. 275-276, 280-282.)</p> <p>Code cited and construed: Sec. 6179, suhsec. 4 (S.); sec. 5112, subsec. 4 (M. & V.); sec. 4369, suhsec. 4 (T. & S. and 1858).</p> <p>Acts cited and construed: 1897, ch. 121.</p> <p>Case cited and approved: Ross v. Meek, 93 Tenn:, 666.</p> <p>Case cited: McBee v. State, Meigs, 123.</p> <p>Case cited and disapproved: Kendrick v. Davis, 3 Cold., 524.</p> <p>5. STATUTES. To be enforced by the courts when constitutional, regardless of hardships.</p> <p>It is the duty of the courts to obey and administer the acts of the legislature, when they are constitutional, however great the hardships may be that will flow from them. It is the duty of the courts to ascertain the meaning of .acts, and then enforce them. {Post, p. 279.)</p> <p>Acts cited and construed: 1897, ch. 121.</p> <p>6. SAME. In derogation of common law, must be strictly construed.</p> <p>The statute (Acts 1897, ch. 121) providing that upon overruling a plea in abatement for any cause, the defendant may plead over to the merits, is in derogation of the common law, and must be strictly construed. {Post, pp. 277, 280, 282.)</p> <p>Acts cited and construed: 1897, ch. 121.</p> <p>7. PRO CONFESSO. Should be entered before final decree, but its omission is not reversible error.</p> <p>The order pro confesso is a very proper form and should be taken and entered prior to taking and entering a final decree: and ■while the failure to take it is error, yet it is not an error affecting merits, and therefore, under our statute, is not reversible error because it is a mere matter of form, and really adds nothing essential to the case, which may be treated as if such order pro oonfesso had been entered as in the case of amendments. (Post, pp. 282-284.)</p> <p>Code cited and construed: Sec. 6351 (S.); sec. 5268 (M. & V.); sec. 4516 (T. & S. and 1858).</p> <p>Cases cited and approved: Cornelius v. Merritt, 2 Head, 98; Mc-Bee v. Petty, 3 Cold., 178; Brooks v. Gibson, 3 Shannon’s Cases, 760; Ross v. Meek, 93 Tenn., 666, 668, 669; Cowan v. Donaldson, 95 Tenn., 322.</p> <p><8. SAME. Warrants decree without proof when allegations of hill are sufficient, otherwise proof is required.</p> <p>A bill confessed with distinct and positive allegations sufficiently definite to fix not only the ground of the .defendant’s liability but also the amount, warrants the rendition of a decree, without proof, but where the allegations are indefinite, or the demand of the complainant is, in its nature, uncertain, the certainty requisite to a proper decree must be afforded by propfs, and the case stands for trial upon proof to be taken. (Post, pp. 284-288.)</p> <p>Cases cited and approved: Haralson v. McGavock, 10 Lea, 719; Ross v. Meek, 93 Tenn., 666; Dunscomb v. Wallace, 105 Tenn., 385; Williams v. Corwin, Hopk. Chy., 471, 476.</p> <p>9. SAME. Same. Case in judgment.</p> <p>A bill alleging that defendant is indebted to complainant in the sum of five hundred dollars, accruing from the breach of a contract to buy lumber, without stating the quantity and price of the lumber, with like indefinite statements as to the amount and value of the lumber taken but not paid for, undergrading, etc., though confessed, does not warrant a decree without proof making such allegations more definite. (Post, pp. 284-288.)</p>

<p>•1. INSURANCE. Conditions in policy, application, constitution, and laws of fraternal order enforced.</p> <p>Where an insurance policy or benefit certificate is taken out in a fraternal and beneficiary order and accepted, subject to conditions on the back thereof, in the application, and in the constitution and laws of the fraternity, such conditions will be enforced.</p> <p>2. SAME. Same. Policy made payable to children of the insured, if wife does not survive him, enforced.</p> <p>Where such a policy or benefit certificate is made payable to the wife of the insured upon his death subject to the conditions, appearing as stated in the foregoing headnote, that if she did not survive the insured, the benefit should be paid to his next living relatives in a specified order, upon the death of the wife prior to that of the insured husband, her interest in the policy or certificate ceased, and passed to his children, the next class of beneficiaries in line.</p> <p>' Case cited and distinguished: Handwerker v. Diermeyer, 96 Tenri., 619.</p>

<p>1. GUARDIAN AND WARD. Ward may sue in his own name through guardian, who thus becomes next friend.</p> <p>While under our statutes, a guardian-is entitled to the possession of the personal estate of his ward and the profits of his lands, and is authorized to .bring such suits in relation thereto as he may deem necessary, still the minor ward is not precluded, in a proper case, from instituting a suit with regard to his property in his own name, through his guardian, who thus becomes for the time being, his next friend. (Post, pp. 299-300.)</p> <p>Code cited and construed: Secs. 4272 and 4273 (S.); secs. 3376 and 3377 (M. & V.); secs. 2506 and 2507 (T. & S. and 1858).</p> <p>Cases cited and approved: ' Simpson v. Alexander, 6 Cold., 619; Thomas v. Dike, 11 Vt., 273; Bradley v. Amidon, 10 Paige, 235; Segelken v. Meyer, 94 N. Y., 479; Sanderson v. Sanderson, 17 Fla., 829; Downs v. Friel, 57 Md., 531; Simpson v. King, 1 Ir. Equity, 11.</p> <p>Case cited' and distinguished: Minter w. Clark, 92 Tenn., 459.</p> <p>2. SAME. Same. Ward may sue former guardian through succeeding guardian as next friend.</p> <p>When the guardian is removed, a right of action accrues to the ward, and he may bring his suit, through his next guardian or through any succeeding guardian, as next friend, against the removed guardian and the sureties on his bond for the property withheld by-such removed guardian. (Post, pp. 301.)</p> <p>Case cited and distinguished: Minter v. Clark, 92 Tenn., 459.</p> <p>3. SAME. Same. Same. Ward may sue through guardian, though guardian’s action is barred.</p> <p>While the action of the guardian as such may be barred by the statutes of limitations, yet the ward may maintain a suit in his own name through the guardian who thus becomes the ward’s next friend for the time being. (Post, pp. 300-301.)</p> <p>Case cited and distinguished: Minter v. Clark, 92 Tenn., 459.</p> <p>4. SAME. Guardian is chargeable with compound interest during guardianship, but not afterwards.</p> <p>A guardian will be charged with compound interest up to the time of his removal, and with legal interest only from that time upon the amount then found to be due as the statute allowing compound interest does not extend beyond the termination of the guardianship. (Post, p. 303.),</p>

<p>1. PLEADING. Plea of not guilty does not impliedly admit negligence averred.</p> <p>In an action for wrongful death, where the declaration avers that defendant “negligently constructed and negligently maintained” its telephone wires “in an unlawful and dangerous manner” a plea of “not guilty” raises the general issue and does not impliedly admit the negligent construction and negligent maintenance by defendant of its wires in an unlawful and dangerous manner as averred. (Post, pp. 306-307.)</p> <p>Case cited and approved: Norton v. Scholefield, 9 Mees. & W., 665.</p> <p>2. SAME. Same. Kule. not changed by statute; plaintiff must prove negligence under such issue.</p> <p>Under our statute providing that the defendant may enter a general denial of the plaintiff’s cause of action, equivalent to the general issue previously in use, a plea of “not guilty” raises the general issue, and does not impliedy admit the averment that defendant “negligently constructed and negligently maintained” its telephone wires “in an unlawful and dangerous manner” by which it is averred that the plaintiff’s intestate was wrongfully killed, but plaintiff is required “to prove such -aver-ments. (Post, pp. 307-308.)</p> <p>Code cited and construed: Sec. 4634 (S.); sec. 3623 (M, & Y.); sec. 2913 (T. & S. and 1858),</p>

<p>1. REGISTRATION. Of chattel mortgage acknowledged before a justice of the peace in another State and there recorded is not entitled to registration here.</p> <p>A chattel mortgage acknowledged before a justice of the peace in another. State, where it was executed and duly recorded and so duly certified to he recorded, is not entitled to registration in this State, upon the removal of the- mortgaged property into this State so as to affect creditors of the mortgageor with constructive-notice. {Post, pp. 311-312, 316-319.)</p> <p>Case cited and approved: Lally v. Holland, 1 Swan, 401.</p> <p>2. SAME. Of a chattel mortgage in another State does not defeat lien of mortgageor’s attaching creditors here; comity not applicable.</p> <p>A chattel mortgage executed and recorded in another State embracing property there but afterwards removed to this State; without proper registration here, will not give the mortgagee priority over the lien of resident attaching creditors of the mortgageor. The doctrine of comity will not give nonresidents priority over the liens of residents. (Post, pp. 313-319.)</p> <p>Cases cited and approved: Lally v. Holland, 1 Swan, 401; Har- . risen v. Sterry, 5 Cranch, 209; Le Prince v. Guillemot, 1 Rich. Eq., 213; Wrecking Co. v. Katie, 3 Woods, 186; Donald v. Hewitt, 33 Ala., 545; Crowell v. Skipper, 6 Fla., 583; Lee v. Creditors, 2 La. Ann., 604; Corbett v-. Littlefield, 84- Mich., 35; Saunders v. Williams, 5 N. H., 215.</p> <p>Cases cited and distinguished: Eaves v. Gillespie,'1 Swan, 128; Bank v. Hill, 99 Tenn., 42; Hughes v. Ahston, 105 Tenn., 70.</p> <p>3. SAME. Creditors are affected only by constructive notice of registration, while purchasers are affected by actual notice.</p> <p>A chattel mortgage is good between the parties without registration, the only purpose of which is to effectuate notice to third persons. The only notice that can bar a creditor is the constructive notice which the statute causes to flow from a proper registration, or noting for registration, although a purchaser may be barred by actual notice. The doctrine of comity cannot give effect to foreign registration laws. (Post, pp. 314-315.)</p> <p>4. STATUTES. Have no extraterritorial force beyond State, except by comity and laws of other States.</p> <p>The statute laws of a State have of themselves no extraterritorial force", and whatever effect they have in foreign States they have by virtue of the laws of such States or under the doctrine. of the comity of States. (Post, p. 312.)</p>

FROM DAVIDSON. Appeal from the Chancery Court of Davidson County. — John Allison, Chancellor. Statement by MR. Justice Neil : This action was brought in the chancery court of Davidson county to collect of the defendant $800 as damages for failure to furnish a correct abstract of title of certain real estate in Davidson county which the complainant purchased of one Campbell.

FROM BEDFORD. Appeal from tbe Chancery Court of Bedford County— W. S. BeaRden, Chancellor. Statement by Mr. Justice Neil: On November 7, 1901, tbe defendant Gant recovered a decree in tbe chancery court of Bedford county against C. A. Wamble for $473.85 and costs; and on December 17, 1901, a certified copy of this decree was registered in Moore county, in wbicb county Wamble lived.

<p>1. COMMON CARRIERS. Are insurers of passenger’s baggage, except against the act of God, the public enemy, or himself.</p> <p>It is well settled that, in the carriage of a passenger’s baggage, the carrier assumes the full responsibility of a common carrier of goods, and becomes an insurer of its safety against any accident which is not caused by the act of God, the public enemy, or the fault of the owner or the passenger himself. (Post, p. 339.)</p> <p>2. SAME. Not insurers of the baggage carried by passengers in day coaches.</p> <p>A railroad company is not liable as an insurer of the safety of the baggage, hand luggage, grips, and parcels carried by passengers in day coaches, and kept in their control and custody during the entire trip. (Post, pp. 340-341.)</p> <p>3. SAME. Employees of sleeping car company are employees of the railroad company.</p> <p>The employees of the sleeping car company are the employees of the railroad company, and the railroad company is responsible for the conduct of the sleeping car company’s employees. (Post, p. 341.)</p> <p>Cases cited and approved; Railroad ¶. Ray, 101 Tenn., 10; Mann Boudoir Car Co. v. Dupre, 21 L. R. A., 289, note.</p> <p>4. SAME. Same. Railroad is insurer of a passenger’s baggage deposited in sleeping car, when.</p> <p>Where a passenger carries his suit case or valise into a sleeping car, and deposits it by or about the seat of the berth to be occupied by Mm, and afterwards, on retiring, places it under bis berth without assuming and retaining the exclusive possession and control thereof, and not directly or impliedly denying any right of possession or custody to the employees of the railroad company, such baggage must be considered as in the custody of the employees of the sleeping car company, who are at the same time employees of the railroad company, and the railroad company must be treated as insuring its safety. (Post, pp. 3.42-344.)</p> <p>Cases cited and- approved: Railroad v. Katzenberger, 16 Lea, 380; Pullman Palace Car Company v. Cavin, 93 Tenn., 53; Railroad v. Ray, 101 Tenn., 10; Railroad v. Roy, 102 U. S. 451; Thorpe v. Railroad, 76 N. Y., 406; Dwinelle v. Railroad, 120 ¡ST. Y., 117.</p> <p>5. SAME. Same. Same. Railroad company is liable for loss of passenger’s baggage in sleeping car without explanation — res ipsa loquitur.</p> <p>Where there is a loss of the baggage of a passenger in a sleeping car, and no explanation can be given, the loss must have occurred through neglect or theft, lies ipsa loquitw. And without negligence shown or inferred, the railroad company is the insurer of the baggage, and responsible for its loss. (Post, p. 344.)</p>

<p>1. BILL OF EXCEPTION'S. Written findings of facts and conclusions thereon are a part of record without.</p> <p>The findings of facts and conclusions thereon hy the court, when reduced to writing at the request of either party in accordance with the statute, signed hy the trial judge and filed, become and constitute a part of the record for all purposes without a hill of exceptions. (Post, pp. 347-348.)</p> <p>Code cited and construed: Sec. 4684 (S.); sec. 3673 (M. & V.); sec. 2959 (T. & S. and 1858).</p> <p>Case cited and approved: Hinton v. Insurance Co., 2 Cates, 113.</p> <p>2. SAME. Same. Is not necessary where error of law in conclusions upon facts only is involved.</p> <p>A hill, of exceptions in such cases is only necessary when the judgment of the court is challenged upon some ground other than error of law in the conclusions upon the facts found. (.Post, p. 347.)</p> <p>Case cited and approved: Hinton v. Insurance Co., 2 Cates, 113.</p>

<p>1. COMMON CARRIERS. Contracts of through transportation limiting liability to their own lines are valid; consideration is not necessary.</p> <p>A common carrier is under no legal obligation to transport goods beyond its terminus, and when contracting for through transportation, it may lawfully stipulate that it shall not be liable for loss after the goods have passed beyond the limits of its own line and upon the lines of another. It is not necessary that such stipulation be supported by any consideration. (Post, pp. 355-358.)</p> <p>Cases cited and approved: Dillard v. Railroad, 2 Lea, 288; Railroad v. Brumley, 5 Lea, 401; Transportation Co. v. Blóch, 86-Tenn., 392; Telegraph Co. v. Munford, 87 Tenn., 190; Bird v. Railroad, 99 Tenn., 719.</p> <p>3. SAME. Same. No liability for delay according to scheduled time known to shipper, when; special train not required.</p> <p>Where the initial carrier receives and forwards a shipment of live hogs at the earliest practicable schedule time, involving a delay of four hours at one of its own connecting lines, a schedule well known to the shipper, and in view of which the shipment was made, : o duty devolves lipón such carrier to make up a special train to forward such shipment, and where it delivers the hogs in good condition, and practically on schedule time, to the connecting and forwarding line, it is not liable for the injured condition of the hogs when delivered to the consignee, where it stipulated in the contract of shipment that its liability should cease upon its delivery to the forwarding carrier. (Post, pp. 358-361.)</p> <p>3. SAME. Contracts limiting common law liability are valid, when.</p> <p>A common carrier may limit its common law liability for loss or damage of freight not caused by its own negligence, if the special contract be fairly obtained, just, and reasonable, and upon sufficient consideration; but the carrier must at the time bold itself in readiness to transport the freight with or without such limitation, and must allow the shipper a reasonable and boma /ide alternative between the two modes of shipment. (Post, pp. 354-355, 361-368.)</p> <p>Cases cited and approved: Railroad v. Wynn, 88 Tenn., 321; Railroad v. Gilbert, 88 Tenn., 430, 431-435; Railroad v. Manchester Mills, 88 Tenn., 653, 655; Lancaster Mills v. Cotton Press Co., 89 Tenn., 31; Railroad v. Sowell, 90 Tenn., 17, 24; Deming v. Cotton Press Co., 90 Tenn., 327; Railroad v. Craig, 102 Tenn., 301, 302.</p> <p>4. SAME. Same. Contract cannot be avoided because executed hurriedly, carelessly, or ignorantly, if no fraud.</p> <p>A shipper cannot avoid the limitations imposed by a special contract by showing that he executed it hurriedly, or without due care, nor by showing that he was ignorant of the provisions of the contract, where no fraud on the part of the carrier appears. (Post, pp. 355, 367.)</p> <p>■ Cases cited and approved; Coles v. Railroad, 41 Ill. App., 607; Johnstone v. Richmond, 39 S. C., 55; Insurance Co. v. Railroad, 72 N. Y., 90; Bethea v. Railroad, 26 S. C., 96; Insurance Co. v. •Railroad, 72 N. Y., 90; Hill v. Railroad, 73 N. Y., 351.</p> <p>5. SAME. Same. Testimony of shippers that they had never been offered a common law contract, and knew of none is competent, when.</p> <p>The testimony of the plaintiffs and other shippers that they had no knowledge of any bill of lading for the shipment of live stock other than the special live stock contract limiting the common law liability, and did not know of any other contract under which stock could have been shipped, and that they had never been offered any other or different contract in all their experience as shippers, was competent to show whether the carrier had a common law contract of shipment, and held itself in readiness to give, the shipper the benefit of such alternative, and to contradict the evidence of the carrier in this respect. (Post, pp. 353-354, 368-369.)</p> <p>6. SAME. Same. Burden to show negligence rests upon shipper, and the absence of it upon carrier, when.</p> <p>In a suit against a common carrier for a loss of goods shown, in the absence of a special contract limiting its liability, the carrier must affirmatively show that the loss was occasioned by some cause for which it was not responsible, as for instance, the act of God or the public enemy; but where there is a limited liability contract, and the loss falls within one of the excepted clauses, the burden of proof is upon the shipper to show the carrier’s negligence. (Post, pp. 369-371.)</p> <p>Cases cited and approved: Runyan v. Caldwell, 7 Hum., 134; Burke v. Railroad, 7 Heis., 462; Railroad v. Mitchell, 11 Heis., 404; Sommers v. Railroad, 7 Lea, 201; Railroad v. Holloway, 9 Bax., 188; Merchants’ Dispatch, etc., Co. v. Bloch, 86 Tenn., 392; Railroad v. Wynn, 88 Tenn., 331; Railroad v. Reeves, 10 Wall., 176; Transportation Co. v. Downer, 11 Wallace, 129; Clark v. Barnwell, 12 How., 272.</p> <p>7. SAME. Same. Same. Case in judgment showing negligence and supporting verdict against carrier.</p> <p>Where it appears that there was a delay of about seven hours wholly unaccounted for by the carrier in the shipment of hogs from Nashville to Louisville, that the weather was very warm, and the hogs were left exposed to the heat of the sun, standing on the side tracks at different stations, that they had been in the possession of the, final carrier nineteen hours, and had been in transit for over twenty-eight hours, without being fed or watered as required by act of congress in interstate shipments, and when they were delivered nearly a third of them were dead, there is sufficient evidence of negligence to support the verdict against the carrier holding it liable for the loss, notwithstanding a special contract limiting its common law liability. {Post, pp. 353-354, 371-373.)</p> <p>8. SAME. Terms “other animals” refer to the hogs shipped, when.</p> <p>Where in a contract for the shipment of hogs, it is agreed that certain classes of animals and fowls shall he of a certain value, and then provides that “other animals” shall he valued at a certain sum, the terms “other animals” refer to the hogs shipped. {Post, pp. 373-376.)</p> <p>9. SAME. Contract fixing value of property shipped is valid, when.</p> <p>A contract fairly made, fixing a reasonable value on property shipped, is not void as against public policy, nor for any other reason. {Post, pp. 374-375.)</p> <p>Cases cited and approved: Railroad v. Sowell, 90 Tenn., 19; Railroad v. Starnes, 91 Tenn., 518; Hart v. Railroad, 112 U. S., 331, 343.</p> <p>Case cited and distinguished: Railroad v. Wynn, 88 Tenn., 320.</p> <p>10. SAME. Contract value of property shipped is void, when.</p> <p>A contract of shipment fixing the value of hogs at five dollars each, where they are shown to be worth two or three times this much, is unreasonable and void. {Post, pp. 376-377.)</p> <p>Case cited and approved: Railroad v. Lockwood, 17 Wall., 379.</p> <p>11. SAME. Evidence of market value of property shipped, where validity of contract fixing value is in issue, when.</p> <p>Evidence of the market value of the hogs shipped is admissible, notwithstanding a contract fixing their value and limiting liability for their loss at five dollars each, where the validity of the contract was in issue for want of consideration and for other causes, where the court charged that if the contract was valid, the recovery should he limited to the value fixed, hut that if it was invalid, then the recovery should he the market value. {Post, pp. 373-377.)</p>

<p>1. CHARGE OF COURT. Not error to refuse request substantially charged in stronger language.</p> <p>It is not error to refuse to charge a special request, where the court has charged the same in substance in language even stronger in favor of the party making the request than that contained'in the request. (Post, pp. 383-384.)</p> <p>2. SAME. Same. Case in judgment.</p> <p>In an action to recover damages for the burning of a mill by - sparks emitted from the engine of a railroad company, it is not error to refuse a special request to charge that plaintiff, in order to recover, must not only prove that the fire might have proceeded from defendant’s engine, but must show by reasonably affirmative evidence that' the mill was ignited by sparks emitted from defendant’s engine, where the court charged that the burden was on plaintiff to prove that the building was destroyed by fire which originated from a spark from an engine of the defendant, and that the plaintiff, in order to make out a prima facie case, must prove by a preponderance of the evidence that the fire was caused by a Spark from one of defendant’s engines.</p> <p>3. SAME. Failure to charge upon circumstantial evidence, without request, is not error.</p> <p>Where there is no request for an instruction upon circumstantial evidence, the circuit judge cannot be put in error for a failure to charge thereon. (Post, pp. 381, 384 )</p> <p>4. NEW TRIAL. Properly refused upon affidavit as to absence of -witness, -when. ®</p> <p>There is no error in refusing a new trial upon affidavit that the testimony of the engineer on a certain engine was lost to defendant through no fault of its attorneys, where the defendant knew that said engine passed the building that day, and knew the very hour when it did pass, for the defendant has not acquitted itself of negligence in respect of the absence of the said engineer. (Post, pp. 382, 384.)</p> <p>5. PLEADING. Averment of possession is immaterial in suit for destruction of building by fire.</p> <p>In an action by the owner and lessor for the destruction of his building by fire, an averment that he was in possession of the building is immaterial for whether in possession or not he could sue for an injury to his interest. (Post, pp. 382, 384.)</p> <p>6. LEASE. Of room, apartment, or • cellar in a building ceases upon destruction of building.</p> <p>Where the property rented is a room or apartment in a building, or a cellar, or some part of the. building as distinguished from the whole building, the destruction of the building brings the interest of the lessee to an end. (Post, pp. 385-387.)</p> <p>Cases cited and approved: Winton v. Cornish, 5 Ohio, 477; Stock-well v. Hunter, 11 Mete. (Mass.), 448; Graves v. Berdan, 26 N. Y., 498; McMillan v. Solomon, 42 Ala., 356; Ainsworth v. Ritt, 38 Cal., 89; Bank.v. Boston, 118 Mass., 125; Alexander v. Dorsey, 12 Ga., 12; Harrington v. Watson, 11 Or., 143; Porter v. Tull, 6 Wash., 408; Kerr v. Exchange Co., 3 Edw. Chy., 316; Chesebrough v. Pingree (Mich.), 40 N. W., 747, 1 L. R. A., 529; Wattles v. Ice & Coal Co., 50 Neb., 251; Waite v. O’Neil, 76 Fed., 408.</p> <p>7. SAME. Of building carries land, when; and lessee is liable for rent after destruction of building.</p> <p>Where a building is rented without any language indicating that only the building itself is leased, as distinguished from the sub-jacent land, both, the building and the land' pass under the lease, and a destruction of the building will not end the lease, but the lease will continue to the end of the term, and the lessee is liable for the rent up to the expiration of such term. (Post, pp. 386-387.)</p> <p>Cases cited and approved: Hicks v. Parham, 3 Hay., 225; Banks v. White, 1 Sneed 613; Hibbard v. Newman, 2 Bax., 285; Mc-Nairy v. Hicks, 3 Bax., 378; Waite v. O’Neil, 76 Fed., 408.</p> <p>8. SAME. Lessor and lessee may each, sue for injury done his interest in premises.</p> <p>Where a leased building is destroyed by fire, through the negligence of another, the reversioner and tenant each have a right of action for the injury.done to his estate in the premises, and in an action by the owner of the reversion, the value of the leasehold interest'should be proved, and deducted from the total valuation of the building. (Post, pp. 387-392.)</p> <p>Cases cited and approved: Colcough v. Railroad, 2 Head, 171; Wood v. Griffin, 46 N. H., 231; Dock Co. v. Armstrong, 17 Fed., 216; Sherman v. Iron Works, 2 Allen, 524; Getz v. Railroad, 105 Pa., 547; Crowell v. Railroad, 61 Miss., 631; Attersol v. Stevens, 1 Taunt., '202.</p> <p>Case cited and disapproved: Austin v. Railroad, 46 N. H., 231.</p>

<p>1. INSURANCE. Life policy payable upon contingency to assured’s executors, administrators, or assigns, is assignable to extent of interest. •</p> <p>Where a policy of life insurance is payable to the assur'edls wife should she survive him, otherwise to his executors, administrators, or assigns, he has the absolute control over the policy to the extent of his contingent interest in the policy which he may assign. (Post, pp. 400-402.)</p> <p>Cases cited and approved: 'Williams v. Corson, 2 Tenn. Chy., 269; Rawson v. Jones, 52 Ga., 458; Swift v, Association, 96 Ill., 309; Pilcher v. Insurance Co., 33 La. Ann., 322; Insurance Co. v. Flack, 3 Md., 341; Winchester v. Stebbins, 16 Gray (Hass.),-52; Wason y. Colburn, 99 Mass., 342; Insurance Co. v. Ryan, 8 Mo. App., 535; Edington v. Insurance Co., 13 Hun, 543.</p> <p>3. SAME. Same. Parol assignment, of. policy to wife divesting husband of contingent interest; so upon her death, he takes as husband, and not under policy.</p> <p>Where a policy of life insurance, payable to the assured’s wife ■ should she survive him, otherwise to his executors, administrators, or assigns, is by the assured delivered to his wife, with the intention that she should keep it alive by paying the pre-. miums on it, and that it should belong to her, there is a valid parol assignment to her divesting him of all contingent interest in it, and vesting this interest in her, giving her the absolute and entire interest in the policy, so that upon, her death leaving him surviving, he would take, not under the terms.of the’ policy, but by virtua of his right as surviving husband. (Post, pp. 402-403.)</p> <p>Cases cited and approved: Chapman v. Mellwrath, 77 Mo. 38; Leinkauf v. Calman, 110 N. Y., 50; Thompson v. Emefy, 27 N. H., 269; Neve v. Insurance Co., 2 McMul. (S. C.), 237; Marcus v. Insurance Co., 68 N. Y., 625; Jones v. Gibbons,,9 Vesey, 407.</p> <p>3. HUSBAND AND WIPE. Husband’s right to wife’s choses in action by survivorship rests on common law, and not •statute. •</p> <p>The right of the husband to the choses in action of the wife by reason of his survivorship rests upon a rüle of the common law of this State, and not upon any statutory enactment. (Post, p. 403.)</p> <p>4. SAME. Same. Husband feloniously killing wife cannot take her choses in action, nor can his representatives hold same.</p> <p>The rule of the common law by which the surviving husband becomes the owner of his predeceased wife’s choses in action does not apply, where he makes himself- the survivor by felo-niously taking her life; and, therefore, in such case, his legal representatives cannot hold, as against her legal representatives, the proceeds of a life policy owned by her, though collected from the insurance company by his representatives. (Post, pp. 403-413.)</p> <p>Cases cited and approved: Jacobs v. State, 3 Hum., 493; Burt v. Insurance Co., 187 U. S., 362; Society v. Bolland, Pauntleroy’s Case, 4 Blye, N. R., 194-211; Riggs v. Palmer, 115 N. Y., 506; Woodman v. Pitman, 79 Me., 456; Cleaver v. Associaion, L. R., 19 B. Div., 147.</p> <p>Cases cited and distinguished: Owens, v. Owens, 100 N. C., 240;. Deem v. Milliken, 6 Ohio Cir. Ct. R., 357, affirmed in 53 Ohio St., 668; Shellenberger v. Ransom, 41 Neb., 631; Carpenter’s Estate, 170 Pa., 203.</p> <p>5. SAME. Same. And question of forfeiture provided against in constitution does not arise.</p> <p>Where the husband feloniously kills his wife, he acquires no estate in her choses in action, and therefore has nothing to forfeit in it, and the question of forfeiture provided against by the constitutional provision that “no conviction shall work corruption of blood or forfeiture of estate” does not arise. (.Post, p. 413.)</p> <p>Constitution cited: Art. 1, see. 12.</p> <p>6. SAME. Same. Same. In which party’s possession the funds are when suit is instituted is immaterial.</p> <p>The fact that the proceeds of the policy of insurance owned by the deceased wife were in the hands of the administrator of the husband who had feloniously killed her does not enter into the consideration and determination of the questions involved, for it is regarded and treated as immaterial, where the funds* were at the time of the institution of the suit. (Post, pp. 406, 413-414.)</p> <p>7. COURT OE CHANCERY APPEALS. Finding that man was “desperate” is not a finding that he was “insane.”</p> <p>The finding by the court of chancery appeals that one was “desperate” when he killed another is not a finding or inference drawn from the evidence in the case that he was “insane” at the time of the murder. (Post, p. 415.)</p> <p>8. ' CONSTITUTIONAL LAW. Provision against corruption of blood or forfeiture of estate does not involve devolution of property. '</p> <p>The constitutional provision that “no conviction shall work corruption of blood or forfeiture of estate” has no connection whatever with the devolution of property. (Post, pp. 415-416.)</p> <p>Constitution cited: Art. 1, sec. 12.</p> <p>9. SAME. Provision against attainder in federal constitution does not involve devolution of property.</p> <p>The provision in the constitution of the United States (art. 1, secs. 9 and 10) prohibiting bills of attainder does not apply so • as to allow the surviving husband to take the choses in action of Ms predeceased wife, where he made himself the survivor by feloniously taking her life. {Post, p. 416.)</p> <p>Constitution of the United States cited: Art. 1, secs. 9 and 10.</p> <p>10. ESCHEAT. None where husband is incapacitated to take wife’s choses in action because he killed her.</p> <p>Where the surviving husband is incapacitated to take the choses in action of his predeceased wife, because of his feloniously killing her, there is no escheat of the property to the State, but it rests in her administrator. {Post, p. 417.)</p> <p>' 11. HUSBAND AND WIFE. Choses in action of deceased wife go to her children where the husband incapacitated himself to take same by killing her.</p> <p>Where the surviving husband made himself the survivor by felo-niously killing his wife, and thus incapacitated himself to take her choses in action, the proceeds thereof should, as a matter of right, as well as of sound public policy, pass to those of her blood who stood in closest relationship with, her at the time of her death, to wit, her children. {Post, pp. 417-418.)</p> <p>IS. STATUTES. English and North Carolina as well as Tennessee statutes repealed by Code of 1858.</p> <p>All prior public and general statutes, whether English or statutes passed in this State, or brought into it from North Carolina, were in effect repealed'by the Code of 1858. {Post, pp. 416-417.)</p> <p>Code cited and construed: Sec. 58 (S.); sec.. 42 (M. & V.); sec. 41 (T. & S. and 1858).'</p> <p>Case cited and approved: State v. Miller, 11 Lea, 620.</p>

<p>1. BILL OF EXCEPTIONS. Must be made and filed during term, when.</p> <p>To preserve exceptions to the action of the trial court in relation to any matters not a part of the record, which a hill of exceptions is necessary to bring into the record, a bill of exceptions embodying such matter must be tendered, authenticated by the signature of the presiding judge, and filed in the case during the term of court at which the action complained of occurred. (Post, pp. 439-440.)</p> <p>Cases cited and approved: McGavock v. Puryear, 6 Cold., 34; Garrett v. Rogers, 1 Heis., 321; Steele v. Davis, 5 Heis., 75; Jones v. Burch, 3 Lea, 747; Darden v. Williams, 100 Tenn., 414; Nance v. Chesney, 101 Tenn., 466.</p> <p>S. SAME. Same. To make petition and bond for removal to the federal court a part of the record.</p> <p>The petition and bond for the removal of a cause from the State to the federal court are not part of the record in the cause, unless filed and made a part of the record by a bill of exceptions during the term of court at which they were presented; and their incorporation in the bill of exceptions made on the final trial at a subsequent term is not. effective to make them a part of the record. (Post, pp. 438-440.)</p> <p>3. SAME. Same. Same. Statute extending time beyond term is not applicable to wayside bills of exceptions, when.</p> <p>The statute (Acts 1899, ch. 275) authorizing the trial judge to allow time in which to file bills of exceptions after final judgment does not apply to wayside bills of exceptions of the character required to make the petition, and bond for the removal of a cause from the State to the federal court a part of the record. (Post, pp. 439-440.)</p> <p>Acts cited and construed: 1899, ch. 275.</p> <p>4. EVIDENCE. That fires were originated by sparks from locomotives before and after fire sued for is competent, when.</p> <p>In an action against a railroad company for damages for the destruction of plaintiff’s property by fire alleged to have been negligently communicated from an unknown locomotive .of the defendant, testimony' offered by the plaintiff tending to show that the locomotives operated by defendant upon the line of the road near plaintiff’s burned property within a few weeks before and after the fire destroying same threw sparks and burning cinders from their smokestacks, which set out and originated fires as far from its track as the place where plaintiff’s burned property stood, is competent. (Postl pp. 440-450.)’</p> <p>Cases cited and approved: Burke v. Railroad, 7 Heis., 456, 464; Railroad v. Short, 2 Cates, 713, 717; Railroad v. Tyne, 7 Am. ■& Eng. Ry. Cas., 515; Railroad v. Richardson, 91 U. S., 454; Sheldon v. Railroad, 14 N. Y., 218; Diamond v. Railroad, 6 Mont., 580; Railroad v. McClelland, 42 Ill., 355; Crist v. Railroad, 58 N. Y., 638; Henderson v. Railroad, 144 Pa., 461.</p> <p>5. SAME. Same. Such is competent in chief to show habitual negligence and probability of fire.</p> <p>Such testimony as that stated in the foregoing headnote is relevant and competent evidence in chief, to show habitual negligence upon the part of the defendant railroad company in the* equipment, repair, and management of its locomotives, and that they would and did discharge sparks and cinders, • which, under similar conditions, would originate fires so far from its track as the property destroyed was situated, and the consequent possibility and probability that the fire complained of was communicated in this manner. (Post, pp. 443-444, 446.)</p> <p>See citations under the fourth headnote.</p> <p>6. SAME. Same. Such is competent in rebuttal to contradict evidence of defendant.</p> <p>Such testimony is also competent in rebuttal, as tending to con- ' tradict the evidence offered by defendant that its locomotives ■were properly constructed, equipped, in good repair, and carefully handled. {Post, p. 444.)</p> <p>7. SAME. Same. And is not rendered incompetent by defendant’s evidence identifying locomotives, and showing them properly equipped.</p> <p>The testimony stated in the fourth, fifth, and sixth headnotes is not rendered incompetent by the fact that defendant had filed depositions to the effect that only four locomotives had passed from which fire could have escaped, identifying them, ' and that they were properly equipped with spark arresters and appliances, and carefully handled, especially where plaintiff proves that a fifth train passed after the identified trains and about fifteen minutes ■ before the fire whose locomotive discharged great volumes of smoke which covered and enveloped the burned property. {Post, pp. 441-442.)</p> <p>See citations under fourth headnote.</p> <p>8. CARE. Commensurate with the risk or hazard must be exercised by railroads.</p> <p>Where there is a severe drouth and the wind is blowing strongly from the direction of the railroad towards nearby property, and the running of trains is attended with unusual danger from sparks, the law requires of the railroad company ordinary care which care is commensurate with the risk or hazard. {Post, pp. 450-454.)</p> <p>9. SAME. Same. A question for jury under facts of each case.</p> <p>What would be or what would not be ordinary care is always a question for the jury, and must depend upon the facts and circumstances of each case. {Post, p. 450.)</p> <p>10. SAME. Same. Burden of proof is on railroad when fire originates from its sparks.</p> <p>Where it is shown that fire was communicated from the locomotive of a railroad company to the property destroyed, the burden of proof is upon the company to show, that it has performed and discharged all of its duties in the equipment and management of its locomotives. (Post, p. 454.)</p> <p>Case cited and approved: Simpson v. Railroad, 5 Lea, 457.</p> <p>11. INTEREST. May be allowed by jury upon value of property destroyed.</p> <p>In actions for the destruction of property, juries when finding for plaintiff may in their discretion allow interest upon the amount found by them as value of the property destroyed from the date of its destruction; for the jury in such a case has the equitable power to give interest in the way of damages, if they think justice requires it. (Post, pp'. 438, 454-459.)</p> <p>Code cited and construed: Secs. 3492, 3494 (S.); secs. 2700, 2702 (M. & V.); secs. 1943, 1945 (T. & S. and 1858).</p> <p>Cases cited and approved: Cole v. Sands, 1 Tenn., 106; Cherry v. Mann, Cooke, 268; Davidson County v. Olwill, 4 Lea, 34; Railroad v. Wallace, 91 Tenn., 35.</p> <p>IS. SAME. Same. May be calculated and included in judgment upon verdict when properly allowed by jury.</p> <p>Where the jury returns a verdict in favor of plaintiff for a certain sum as the value of property destroyed, with interest from the date of the destruction which date is shown by the pleadings and proof, it is proper for the trial judge to allow, calculate, and include legal interest in the judgment upon the yer-diet. (Post, pp. 438, 459-462.)</p> <p>Cases cited and approved: Knights of Pythias v. Allen, 104 Tenn., 628; Hattenback v. Hoskins, 12 Iowa, 109; Gibson v. Lewis, 27 Mo., 532; Barrett v. Wills, 4 Leigh, 114; Gaff v. Hutchinson,. 38 Ind., 341; Buchanon v. Townsend, 80 Tex., 534; Griffin v. Chadwick, 44 Tex., -406'; Paige v. Cody, 1 Cow., 115.</p>

<p>1. NEW TRIAL. Granted by supreme court where circuit judge refused it, but expressed his dissatisfaction with verdict.</p> <p>If the circuit judge is dissatisfied with the verdict of the jury, it is his duty to set it aside and grant a new trial; and if it appears to the supreme court, from statements made by the circuit judge in passing upon the motion for a new trial, that he was really not satisfied with the verdict, hut refused to set it aside, it is the duty of the supreme court, when it has acquired jurisdiction of the cause, to grant a new trial on the ground of the trial judge’s dissatisfaction with the verdict. (Post, pp. 466-468.)</p> <p>Cases cited and approved: Pettitt v. Pettitt, 4 Hum., 191,193; England v. Burt, 4 Hum., 400, 401, 402; Jones v. Jennings, 10 Hum., 428, 429; Nailing v. Nailing, 2 Sneed, 630, 632, 633; Tate v. Gray, 4 Sneed, 592; Vaulx v. Herman, 8 Lea, 683, 687; Railroad v. Poster, 10 Lea, 866; Turner v. Turner, 85 Tenn., 387; Railroad v. Roddy, 85 Tenn., 410; Railroad v. Mahoney, 89 Tenn., 332; Railroad v. Lee, 95 Tenn., 388; Railroad v. Brown, 96 Tenn., 559, 562; Jenkins v. Hankins, 98 Tenn., 545; Railroad v. Neely, 102 Tenn., 700; Railroad v. Lawson, 105 Tenn., 639.</p> <p>2. SAME. Same. Reasons for rule.</p> <p>The reasons for the foregoing rule are, in substance, that the circuit judge hears the testimony, sees the witnesses, and observes their demeanor upon the witness stand, just as the jury does; that he is especially qualified for correction of errors the inexperienced jury may have made, for which purpose he is the thirteenth juror. (Post, pp. 468-469.)</p> <p>3. SAME. Same. Supreme court cannot act until trial judge has acted.</p> <p>The supreme court has no power to act on motion for a new trial until the circuit judge has acted. {Post, p. 470.)</p> <p>Cases cited and approved: Railroad v. Lee, 95 Tenn., 388; Railroad v. Brown, 96 Tenn., 559; Railroad v. Neely, 102 Tenn., 700.</p> <p>4. SAME. Same. Reasons needlessly given by circuit judge considered by supreme court to determine his satisfaction or dissatisfaction with verdict.</p> <p>In deciding the motion for a new trial, the circuit judge is not hound to give any reasons for. his decision, any more than the jury is hound to do so; and if he gives reasons for his action, the supreme court looks to them only for the purpose of determining whether he passed upon the issues, and was satisfied or dissatisfied with the verdict thereon. {Post, pp. 470-471.)</p> <p>5. SAME. Same., Case in judgment.</p> <p>Where a special judge in refusing a motion for a new trial, states that he is not satisfied with the verdict, and has grave doubts whether he should not set aside the verdict, and believes he would do so if he were the regular judge, the supreme court will grant a new trial, because of his dissatisfaction with the verdict.</p>

<p>X. CLASS DOCTRINE. Defined; and is -applicable, -when.</p> <p>Where property is conveyed, devised, or bequeathed to a class of persons, subject to fluctuation by increase or diminution of its number in consequence of future births or deaths, and the time of enjoyment', division, payment, or distribution o'f the prop-, erty is fixed at a subsequent period, or on the happening of a future event, the entire interest vests in such persons, only as at that time fall within the descriptions of persons constituting such class, and members of the class antecedently dying are not actual objects of the gift. (Post, pp. 474-478, 480-482.)</p> <p>Cases cited and approved: Frierson v. Van Burén, 7 Yer., 606; Satterfield v. Mayes, 11 Hum., 58; Deadrick v. Armour, 10 Hum., 588, 600, 601; Womack v.. Smith, 11 Hum., 484; Morton v. Morton, 2 Swan, 318; Fulkerson v. Bullard, 3 Sneed, 260; Beasley v. Jenkins, 2 Head, 1-92; Parrish v. G-roomes," 1 Tenn. Chy., 581, 583; Connell v. McKenna, 2 Shannon’s Cases, 190; Land Co. v. Hill, 87 Tenn., 589, 595, 596; Franklin v. Franklin, 91 Tenn., 119, 123, 133, 134; Blass v. Helms, 93 Tenn., 166; Nichols v. Guthrie, 109 Tenn., 535.</p> <p>3. SAME. Same. Case in judgment.</p> <p>Where land is conveyed in trust for the benefit, of a daughter for and during her natural life, and at her death to go to her children forever, the children take as a class, and not as individuals, and the entire estate vests in the children living at the death-of the life tenant and. mother; and a child dying prior to that time had no interest in the estate which she could transmit to her child and heir.</p> <p>3. , SAME. Same. Subsequent period for distribution is fixed, bow.</p> <p>The subsequent period may be fixed and established by the use of such expressions as “then living,” referring to some event, as the death of a life tenant, but it is not necessarily indicated in this manner alone, as it may be indicated simply as at or after the death of some prior taker of the estate, or after a certain time. (Post, pp. 478-482.)</p> <p>Cases cited, and approved: Deadrick v. Armour, 10 Hum., 588, 600, 601; Land Co. .v. Hill, 87 Tenn., 589, 595, 596; Blass v. Helms, 93 Tenn., 166; Nichols v. Guthrie, 109 Tenn., 535; Frier-son v. Van Burén, 7 Ter., 606; Satterfield v. Mayes, 11 Hum., 58; Beasley v. Jenkins, 2 Head, 192; Connell v. McKenna, 2 Shannon’s Cases, 190; Parrish v. Groomes, 1 Tenn. Chy., 581, 583; Fulkerson v. Bullard, 3 Sneed, 260.</p> <p>4. SAME. Exceptions to rule in first headnote arise, when.</p> <p>The exceptions to the rule in the first headnote arise where the class notion is disintegrated, by finding in the will or deed, as the case may be, some indication of a purpose to create a separate or severable interest; and such separate or severable interest has been established in' quite a number of the cases on slight grounds, yet the grounds were sufficient to support the distinction. (Post, pp. 476, 478-482.)</p> <p>Cases cited and approved: Cathey v. Cathey, 9 Hum., 470; Bridge-water v. Gordon, 2 Sneed, 5; Harris v. Alderson, 4 Sneed, 250; Petty v. Moore, 5 Sneed, 126; Alexander v. Walch, 3 Head, 493; McClung v. McMillan, 1 Heis., 655; Puryear v. Edmonson, 4 Heis., 43; Bowers v. Bowers, 4 Heis., 294; Green v. Davidson, 4 Bax., 488, 490, 491; Allen v. Allen, 2 Tenn. Chy., 28, 32; Whitman v. Young," 1 Tenn. Chy., 586; Davis v. Goforth, 1 Lea, 31; Elkins v. Carsey, 3 Shannon’s Cases, 293; Owens v. Dunn, 85 Tenn., 131; Balch v. Johnson, 106 Tenn., 249-254; ' Smith v. Smith, 108 Tenn., 21.</p> <p>Cases cited and distinguished: Ward v. Saunders, 3 Sneed, 387, 390, 393; Elkins v. Carsey,-3 Shannon’s Cases, 293.</p>

<p>1. CORPORATIONS. Private defined.</p> <p>A private corporation is created for the immediate benefit and advantage of the individuals constituting it, and the franchises conferred are to he exercised for their advantage, and the property owned by it is held .for them, and the profits may be divided among them. (Post, pp. 494-495, 500.)</p> <p>2. SAME. Public defined.</p> <p>Public corporations are created for public purposes, and the property 'controlled by them is devoted to public purposes; and the corporators have no private beneficial interest in the franchises granted or the property controlled further than that possessed in common by all citizens in the property of the State, except, the right to be and act as corporators. (Post, p. 495.)</p> <p>3. SAME. Same. Public interest or character is not affected by source of the property.</p> <p>The public character of the property and interest in a public corporation is not affected by the source from which the property comes, for a purchase by or a gift to the corporation is in reality a purchase by or a gift to the public, and property so acquired is to be administered by the corporation as an agency of the State. (Post, p. 495.)</p> <p>4. SAME. Public are under the control of the legislature.</p> <p>Public corporations created for public convenience, with no private rights involved, are public agencies, and as such are under the control of the legislature. (Post, pp. 496-502.)</p> <p>Cases cited and approved: Governor v. McEwen, 5 Hum., 241; Mobile School Commissioners v. Putnam, 44 Ala., 506; Trustees of the University of Alabama v. Winstead, 5 Stew. & P., 17; Head v. Curators of Missouri, 47 Mo., 224; University of North. Carolina v. Maultsby, 43 N. C., 257; State of Florida, ex rel., v. Knowles, 16 Fla., 577.</p> <p>Case cited and distinguished: Trustees of Dartmouth College v. Woodward, 4 Wheat., 519.</p> <p>5. SAME. Same. Case in judgment.</p> <p>Carrick Academy of Franklin county, incorporated by the legislature, was a mere educational agency of the State, and was a public institution under the. control of the legislature, and a statute authorizing the trustees ’ of that academy to lease the academy property to a certain other incorporated educational institution is valid and constitutional. (Post, pp. 485-502.)</p> <p>Acts cited and construed-: 1789, ch. 3; 1803, chs: 81 and 82; 1806, chs. 7 and 8; 1807, ch. 64;. 1809, chs. 52 and 109; 1817, ch. 97, sec. 4; 1881, ch. 63.</p>

<p>1, CHANCERY PLEADING. Amended bill by a trustee not introducing a new cause of action nor a new party, but relating back so as to preserve lien.</p> <p>Where complainant files a bill as trustee for a certain named bank alleging that as trustee of such bank, he . recovered a certain described judgment against defendant, and subsequently files an amended bill alleging that the judgment was recovered in the name of said bank for the use of complainant as trustee for certain named creditors of said bank, such amended bill does not alter the cause of action stated in the original bill, nor -does it, in legal contemplation, bring forward a new and</p> <p>■ independent party as the party* to recover under the original bill, and it relates back to the date of the filing of the original bill for the purpose of preserving any liens on the property secured by the original bill. {Post, pp. 507-511.)</p> <p>Case cited and approved: Love v. Railroad, 108 Tenn., 104.</p> <p>2. FRAUDULENT CONVEYANCES. Bill to set aside creates lien without attachment, when.</p> <p>A creditor’s bill to set aside fraudulent conveyances of property or other devices resorted to for the purpose of hindering and delaying creditors creates a lien on the property from the date of its filing, and an attachment is not essential for this purpose. {Post, pp. 511-513.)</p> <p>Code cited and construed: Sees. 6097 and 6098 (S.); secs. 5031 and 5032 (M. & V.); secs. 4288 and 4289 (T. & S. and 1858).</p> <p>Case cited and approved: Epperson v. Robertson, 91 Tenn., 407.</p> <p>3. CHANCERY JURISDICTION. None to aid' a judgment creditor where execution is leviable by garnishment without impediment or discovery.</p> <p>Where no discovery is sought or needed, a bill by a judgment creditor, with execution returned nulla bona and unsatisfied, will not lie in chancery to reach an asset or debt which was leviable at law, where no obstacle or impediment was in the way of the enforcement of an execution by garnishment, and there was no lien, fraud, trust, nor equitable interest in the property. (Post, pp. 506-507, 513-525.)</p> <p>Code cited and construed: Secs. 6091-6095 (S.); secs. 5025-5029 (M. & V.); secs. 4282-4286 (T. & S. and 1858).</p> <p>Acts cited and construed: 1832, ch. 11.</p> <p>Cases cited and approved: Erwin v. Oldham, 6 Yer., 185, 186; Hoard v. Casey, 4 Sneed, 179; Ewing v. Cantrell, Meigs, 364; Graham v. Merrill, 5 Cold., 633; Penniman v. Smith, 5 Lea, 130; Weakley v. Cockrill, 6 Lea, 270; Ewing v. Cook, 85 Tenn., 332; Jourolmon v. Massengill, 86 Tenn., 118, 119, 121; Porter v. Lee, 88 Tenn., 787, 791; McKeldin v. Gouldy, 91 Tenn., 678.</p> <p>Cases cited, approved and distinguished: Embree v. Reeve, 6 Hum., 37; Riddle v. .Motley, 1 Lea, 470; Turley v. Massengill, 7 Lea, 363; Cresswell v. Smith, 8 Lea, 699; Imboden v. Perrie, 13 Lea, 505.</p>

<p>1. SEPARATE ESTATE. Married woman’s recovery for personal injuries is her separate estate.</p> <p>The recovery of a married woman for personal injuries by her suit, in which her husband joins merely for conformity, which is not a suit to recover damages resulting to him for loss of his wife’s services, is in her name and for her use, and is her separate estate, and is not subject to the control and marital rights of her husband. (Post, p. 529.)</p> <p>2. ACCORD AND SATISFACTION. Made by married woman with assent and approval, and joinder of her husband.</p> <p>A contract of accord and satisfaction for personal injuries to a married woman may be made by her, with the assent and approval of her husband, by his joining with her in the same, or by his signing the same, and indorsing his approval thereon. (Post, p. 529.)</p> <p>3. SAME. Set aside for fraud in the action at law, when relied upon.</p> <p>An accord and satisfaction, when relied on in an action at law, may be set aside and disregarded or repudiated and annulled for fraud pr misrepresentation, either in the execution of the contract or in the inducement to the execution, and may be so set aside in such action at law, and it is not necessary to resort to the chancery court for such purpose.' (Post, pp. 529-531.)</p> <p>Cases cited: Byers v. Railroad, 94 Tenn., 345; Prater v. Marble Co., 105 Tenn., 499; Railroad v. Harris, 158 U. S., 326; Lum-ley v. Railroad, 76 Fed., 73, 22, C. C. A., 60; Wdgner v. Insurance Co., 90 Fed., 395, 33 C. C. A., 121.</p>

<p>1. CONSTITUTIONAL LAW. Road law applicable to only one county under population classification is constitutional.</p> <p>A road law under population classification applicable to only one county is not for that reason unconstitutional.</p> <p>Acts cited and construed: Acts 1901, ch. 55.</p> <p>Constitution cited and construed: Art. 11, sec. 8.</p> <p>Case cited and approved. Condon v. Maloney, 108 Tenn., 82.</p> <p>3. SAME. House bill substituted for identical senate bill which, had passed two readings and then read and passed once is constitutionally enacted.</p> <p>Where the senate bill and the house bill are the same in tenor and substance in their caption and body, and the house bill duly passed by the house is transmitted to the senate after the senate bill had duly passed its two readings, and thereupon the house bill is substituted for the senate bill and read and passed in the senate, the law is constitutionally enacted, and the constitutional requirements (art. 2, sec. 18) that a bill shall be read and passed in each house on three seperate days is complied with.</p> <p>Acts cited and construed: Acts 1901, ch. 55.</p> <p>Constitution cited and construed: Art. 2, sec. 18.</p>

<p>1. UNLAWFUL ENTRY AND DETAINER. Action of, maybe based on a constructive possession, when.</p> <p>Constructive possession of a tract of land under deed definitely describing its boundaries, connected wit-h actual possession of á part of the premises, is sufficient to authorize and maintain an action of unlawful entry and detainer.</p> <p>Cases cited and approved: Davidson v. Phillips, 9 Yerg., 93; Hopkins v. Calloway, 3 Sneed, 11; Phillips v. Simpson, 2 Head, 430.</p> <p>2. SAME. Same. Collusion between adverse claimant and tenant of landlord. Case in judgment.</p> <p>Plaintiffs in an action of unlawful entry'and detainer had a'deed to the land sought to be recovered, definitely describing the boundaries and claimed to the extent of the boundaries. There was a house on the land occupied by defendant as tenant of plaintiffs, hut the remainder was uninclosed mountain land. A claimant of the land, under hostile title, built a cabin upon a different part of the premises,, and induced the tenant to move into it and attorn to him. Suit to dispossess tenant.</p> <p>Seld: That the landlord could not thus, by collusion between his tenant and an adverse claimant, be deprived of his possession, which was of the entire tract and sufficient to maintain his action.</p>

<p>FROM COFFEE.</p> <p>Appeal from the Circuit Court of Coffee County.— Joseph C. Higgins, Judge.</p>

<p>1. VERDICT. Hot stating whether it is murder in the first or second degree is a nullity.</p> <p>The jury is required in their verdict of guilty under an indictment for murder to ascertain whether it is murder in the first or second degree, and in such case a verdict of guilty as charged in the indictment, or a verdict of guilty as charged in the indictment, with mitigating circumstances, is an absolute nullity. (Post, pp. 558-561.)</p> <p>Code cited and construed: Sec. 6441. (S.); sec. 5351 (M. & V.); sec. 4600 (T. & S. and 1858).</p> <p>Acts cited and construed: 1829, ch. 23, sec. 3.</p> <p>Cases cited and approved: Kirby v. State, 7 Yer., 259; McPherson v. State, 9 Yer., 280; Charleston v. State, MS., 1892.</p> <p>3. SAME. Same. Court’s acceptance of null verdict and discharge of jury operates as a mistrial, and not as a discharge of prisoner.</p> <p>The court’s acceptance of such null and invalid verdict, and its discharge of the jury does not operate to discharge the prisoner, but only operates as a mistrial of the case, and the case stands for a new trial. (Post, pp. 562-563.)</p> <p>Cases cited and approved: Kirby v. State, 7 Yer., 259; Murphy v. State, 7 Cold., 524; State v. Ragsdale, 10 Lea, 671; Mayfield v. State, 101 Tenn., 673; Pitts v. State, 102 Tenn., 141; Charleston v. State, MS., 1892.</p> <p>3. SAME. Same. Same. Reason for rule is prisoner’s presumed consent and waiver by failure to object.</p> <p>The reason for the rule in the foregoing headnote is that the accused has the right to have the verdict cured before the jury is discharged, and for failure to interpose any objection either to the verdict or to the discharge of the jury, the law infers that he consented thereto and thereby waived his objection to being again put upon trial as in case of a mistrial. (Post, pp. 562-563.)</p> <p>Case cited and approved: Murphy v? State, 7 Cold., 524.</p> <p>4. SAMS. May be amended by jury, when.</p> <p>A jury may amend or change their verdict at any time before they have been discharged, and, if they bring in an informal or insufficient verdict, the court may send them back to the jury room with instructions to amend it and put in proper form. (Post, pp. 561-562.)</p> <p>Case cited and approved: George v. Belk, 101 Tenn., 625.</p>

<p>1. SALES. Of personal property are complete, and title vests in purchaser, when. Intention of parties controls.</p> <p>While, ordinarily, anything remains to he done b'y the seller or purchaser, as where delivery is not made as contracted for, or the property sold is not set aside from other property of like character, or where measurement is necessary to ascertain the purchase price, the contract is incomplete and executory, and the title remains in the seller; but the intention of the parties, as expressed by the terms of the contract, or implied from surrounding circumstances, is always controlling, and sales may be completed without delivery and ascertainment of the quantity sold, or of the exact consideration to be paid. {Post, p. 568.)</p> <p>Cases cited and approved: Bond v. G-reenwald, 4 Heisk., 453, 460; Barker v. Freeland, 91 Tenn., 112; Fitzpatrick v. Fain, 3 Cold., 19; Bush v. Barfield, 1 Cold., 92; Riddle v. Yarnum, 20 Pickering (Mass.),' 280.</p> <p>3. SAME. Same. Case in judgment of a complete sale.</p> <p>Where there was a sale and purchase of a specified quantity of corn to be shelled, sacked, and stored by the seller, and to be delivered at the purchaser’s mill when ordered, where it was to be weighed and paid for at a specified price, which corn was promptly shelled, sacked and stored, and delivery tendered then, and again in about three months, when, on both occasions, the purchaser requested the seller to hold the corn for him a while longer, and made some small payments on the purchase price; and after another month the seller again tendered delivery, when the purchaser.repudiated the contract, and refused to accept the corn at any time, the contract first made was executory, but under the subsequent understanding and agreement of the parties it became complete and executed, notwithstanding the corn had not been weighed, delivered or paid for. (Post, pp. 566-569.)</p> <p>3. SAMS. Same. Same, Seller holding possession may use or sell the property, and- sue for damages when contract is breached. Measure of damages.</p> <p>Though the sale, as shown in the foregoing headnote, was complete, and the corn was the property of the purchaser, subject to the right of the seller to require payment upon delivery, still the seller, after tendering delivery, as showing in the 'foregoing headnote, may use the corn, o'r dispose of it by sale without notice to the purchaser, and sue for and recover the difference between the market value and the contract price. (Post, p. 569.)</p> <p>4. SAME. Same. Same. Same. Rights and remedies of seller holding possession in executory and executed sales when contract is breached by purchaser.</p> <p>The rights and remedies of vendors of personal property for enforcing payment of the purchase price, is the same -in executory and executed contracts, where he holds possession of the property, though title be vested in the purchaser; and where the purchaser refuses to complete the sale by accepting delivery and making payment, the vendor has three methods of indemnifying himself against loss, namely: (1) He may store or retain the property of the vendee, and sue for the entire purchase price; (2) he may sell the property upon notice to the vendee, and recover the difference between the price obtained on such resale, after the payment of expenses, and the contract price, and, (3) he may keep the property as his own, and recover the difference, between the market value at the time and place of delivery, and the contract price. (Post, pp. 569-571.)</p> <p>Cases cited and approved: Cole v. Zucarello, 104 Tenn., 65, 66; Dustan v. McAndrew, 44 N. Y., 72, 78; Moore v. Potter, 155 N. Y., 481; Ackerman v. Reubens, 167 N. Y., 405.</p> <p>'Case cited and overruled: McClure & Crozier v. Williams, 5 Sneed 718.</p>

PROM SMITH. Appeal in error from the Circuit Court of Smith County. — CoRdell Hull, Judge. .Statement by Mr. Justice Neil : The plaintiff in error was indicted in the circuit court of Smith county for violating the age of consent law, in that he had carnal knowledge of one Ethel Willis. a young girl over the age of 12 and under the age of 18 years..

<p>1. SALOON. Unlawful to keep open, or do any business therein on Sunday, except in case of emergency.</p> <p>The owner of a saloon, except in case of an emergency, cannot keep it open on Sunday, or engage in any work pertaining to the business thereof, or allow others to do so; therefore, where a barkeeper, in the performance of his usual duties, entered the saloon on Sunday, for the purpose of icing the beer, by replenishing the refrigerator, and admitted the porter to carry away the slops, he was properly convicted under the statute forbidding any person to “keep open on Sunday any place where liquors are sold or dispensed,” in the absence of proof that a quantity of ice sufficient to preserve the beer could not have been placed in the refrigerator before the saloon closed Saturday night.</p> <p>Code cited and construed: Sec. 6784 (S.); sec. 5671 (M. & V.); sec. 4861 (T. & S. and 1858).</p> <p>Cases cited and approved: McKinney v. Nashville, 96 Tenn., 79; Newbern v. McCann, 105 Tenn., 166.</p>

<p>1. PHYSICIANS. Definition of term “practicing’’ and how proven.-</p> <p>The term “practicing,” in respect of the subject in connection with which it is used, indicates the pursuit of a business, and the fact that a person has been pursuing such business may be proven, in some eases, by a single, clear and definite act, or by a series of acts of a similar nature. (Post, p. 593.)</p> <p>S. CRIMINAL PRACTICE. State not required to elect one of several acts under indictment for unlawfully practicing medicine. Case in judgment.</p> <p>Where, under an indictment for unlawfully practicing medicine without a license, the State had proven several instances of advising patients, prescribing for them or administering medicine to them, the defendant moved to compel the State to elect upon which act or offense the conviction would be sought. The motion was denied.</p> <p>Held: The motion to compel an election was properly denied, because each several instance was not necessarily an offense, but these facts taken together, considered in connection with the further fact that defendant had no license' to practice, tended to show that the defendant was engaged in the forbidden occupation, and go to prove the charge of practicing without a license. (Post, pp. 593-595.)</p> <p>Statute cited and construed: Acts of 1901, chapter 78.</p> <p>Case cited, approved and distinguished: Holt v. State, 107 Tenn., 639.</p>

<p>FROM MONTGOMERY.</p> <p>Appeal from the Criminal Court of Montgomery County. — T. F. Martin, Special Judge.</p>

<p>1. CONSTITUTIONAL LAW. Power of the legislature to redistrict a county, reaffirmed.</p> <p>It is now settled law in this State that the legislature has the right to redistrict a county and abolish the offices of justices of the peace.in civil districts extinguished by such redistricting. (Post, p, 607.)</p> <p>Case cited and approved: The Redistricting Cases, 111 Tenn., 234. •</p> <p>*3. SAME. Reducing number of districts does not abolish, county court. Case in judgment.</p> <p>The general assembly, by a statute properly enacted (Acts of 1903, ch. 363) redistricted Maury county, and abolished a number of civil districts by merging them with other original districts which were not extinguished, thereby reducing the number of districts in the county from twenty-five to nine. The defendant was indicted for falsely assuming to be a justice of the peace and acting as such for one of the districts which had been abolished by said act. Upon demurrer raising the question, the act was held by the trial judge to be unconstitutional and the indictment was quashed. The State appealed.</p> <p>Held: 1. The legislature had full power to redistrict the county and abolish the office of justice of the peace in civil districts extinguished thereby;</p> <p>2. The statute was not unconstitutional on the ground that it abolished' the county court, because that court is composed of the justices of the peace of the districts, and the number of districts is immaterial.</p> <p>Cases cited and approved: The Redistricting Cases, 111 Tenn., 234; Colbert v. Bond, 110 Tenn., 370; Railway v. Wilson County, 89 Tenn., 600.</p> <p>Case cited and distinguished: Pope v. Phifer, 3 Heisk., 682.</p> <p>3. OFFICE. Vacancy in, how filled.</p> <p>Where an office is newly created, there is a vacancy therein, within the meaning of the constitutional provision that “the election of all officers and the filling of all vacancies, not otherwise directed or providéd by this constitution, shall be made in such manner as the legislature shall direct.” (Post, p. 608.)</p> <p>Case cited and approved: Condon v. Maloney, 108 Tenn., 82.</p>

<p>1.FUTE AND COSTS. Judgment for, must fee secured by more than one surety — Valid judgment not reversed because based on -wrong reason. Case in judgment.</p> <p>Plaintiff in error, convicted of a misdemeanor in a circuit court, was fined and taxed with tbe costs of the case. Thereupon he offered to secure such fine and costs by one of the attorneys of the court who was solvent, good for the amount, and who expressed a willingness to become such surety and tendered himself with the plaintiff in error. The court declined to accept the attorney as surety and the plaintiff in error being .unable to procure any one else, was sentenced to the workhouse. From this judgment he prayed and was granted an appeal.</p> <p>Held: 1. The statute providing that a defendant may “confess judgment for the fine and costs with good sureties,” and thereby secure a discharge, is mandatory.</p> <p>Code cited and approved: Secs. 7214, 7215 (S.)</p> <p>2. The statute prohibiting attorneys from becoming sureties upon any bail bond or recognizance for the appearance of defendants in pending criminal cases does not apply to a case where a fine is assessed, and does not inhibit an attorney from becoming a surety for such fine.</p> <p>Statute construed: Acts of 1903, ch. 48.</p> <p>3. The appeal was from a final judgment on the verdict, and was properly allowed.</p> <p>4. The tender of the surety was properly made to the court.</p> <p>5. A tender of only one surety is insufficient under the provision of the statute allowing a defendant to confess judgment for a fine and costs with good “sureties.”</p> <p>6. The judgment sentencing defendant to the "workhouse was valid and correct on the record, and will not be reversed, although the trial judge assigned a wrong reason for his action.</p>

<p>1. QUO WARRANTO. Statutory action in the nature of, under control of district attorney-general, and not relators.</p> <p>Although a suit may be instituted for the forfeiture of the charter of a corporation, in the name of the State,' by the attorney general of the district where brought, on information of any person, •on giving security for costs, such suit is under the control of the district attorney-general, and may be dismissed on his motion or petition, without the consent of the relators. (Post, pp. 616-620.)</p> <p>'Code cited and construed: Secs. 5165-5169 (S.); secs. 5146-5150 (M. & V.); secs. 3409-3413 (T. & S. and 1858).</p> <p>Cases cited and approved: State, ex rel., v. Turnpike Co., 3 Tenn. Chy., 163; State v. McConnell, 3 Lea, 333; State v. Campbell, 8 Lea, 74; State, ex rel., v. Agee, 105 Tenn., 588.</p> <p>2. SAME. Same. Power of district attorney-general, not affected by liability of relators for costs.</p> <p>The liability for costs is one of the perils assumed by relators in a suit instituted in the name of the State to forfeit the charter of a corporation, and that considerable costs have accrued in the preparation of the case does not affect the right of the district attorney-general to dismiss it whenever he deems that •the public interests demand that course. (Post, pp. 619-620.)</p>

<p>1. HOMESTEAD AMD SOWER. Allowed widow out of personalty by substitution or subrogation, where land has been subjected to payment of lien debt, when.</p> <p>The rights of the widow to homestead and dower are superior to the claims of general creditors of her deceased husband and,’ as the decedent’s personal estate is the primary fund for the payment of all his debts, including his personal debts that are liens on his land, if the lien creditors subject the land to the payment of their lien debts, without resorting to 'the personalty for payment, the widow is entitled to be substituted or subrogated to the rights of such lien creditors for reimbursement out of the personalty for the loss of homestead and dower in the land so subjected to the payment of the lien debts, notwithstanding the insolvency of the personal estate.</p> <p>■Code cited and construed: Sec. 3985 (S.); sec. 3090 (M. & V.); sec. 2252 (T. & S. and 1858).</p> <p>Case cited and approved: Yoe-v. Sansom, 48 S. W., 317.</p> <p>'Cases cited, approved, and distinguished: Williams v. Woods, 1 Hum., 408; Boyd v. Martin, 9 Heis., 384; Featherston v. Boaz, 2 Tenn. Cases, 296; Gwynne v. Estes, 14 Rea, 672, 673; Gibson v. Crehore, 5 Pickering, 146; Creecy v. Pearce, 69 N. C., 67.'</p> <p>13. SAME. Same. Not defeated by marshaling assets, when.</p> <p>Homestead and dower will not be defeated by the marshaling - of assets, as the rule for marshaling assets is inapplicable to a case where the widow is asserting her right to homestead and dower against the .general creditors of her deceased husband’s estate. {Post, pp. 635-636.)</p> <p>Cases cited and approved: G Wynne v. Estes, 14 Lea, 673; Gilliam v. McCormack, 86 Tenn., 698; White v. Fulghum, 87 Tenn.,. 288.</p> <p>3. ADMINISTRATION AND INHERITANCE. Heir or devisee-may be reimbursed out of personalty for land sold to pay Een debts thereon as against the distributee or legatee, but not as-against creditors.</p> <p>The rights of creditors of a decedent are superior to the claims, of the heir or devisee, and where the land has been subjected to the payment of a lien debt thereon, the heir or devisee is: not entitled to subrogation, or reimbursement out of the personalty, as against the creditors, but he is entitled to such, subrogation or reimbursement, as against the distributee or-legatee. (Post, pp. 628-632).</p> <p>Case cited and approved: O’Conner v. O’Conner, 88 Tenn., 76..</p>

<p>1. WRIT OR ERROR. Does not lie from chancellor’s decree made at chambers; but an appeal lies.</p> <p>A writ of error will not lie to review the chancellor’s decree made at chambers under the provisions of the statute (Acts 1903, ch. 248), for the appeal therein given is the exclusive and only method provided for taking the case to the supreme court for revision of the chancellor’s decree so rendered at chambers. {Post, pp. 645-646.)</p> <p>See headnote 17.</p> <p>Acts cited and construed: 1903, ch. 248, see. 4.</p> <p>2. CONSTITUTIONAL LAW. Provision in statute for removal, of county seat upon two-thirds of the vote in the preceding" governor’s election is unconstitutional.</p> <p>A section of a statute (Acts 1873, ch. 103, sec. 6) providing that the county seat shall not he removed to any place, unless a vote is cast for the removal to said place equal to two-thirds of the vote cast in the next preceding governor’s election is void and unconstitutional, because in violation of the constitution (art. 10, sec. 4), providing that the seat of justice of any county shall not be removed without the concurrence of two-thirds of the qualified voters of the county. {Post, pp. 646-647:)</p> <p>Constitution cited and construed: Art. 10, sec. 4.</p> <p>Acts cited and held unconstitutional: 1873, ch. 103, sec. 6.</p> <p>3. SAME. Same. Unconstitutional provision in a statute does not affect the rest of the statute, when.</p> <p>The statute (Acts 1873, ch. 103) can well stand without the said sixth section, inasmuch as the constitutional provision (art. 10, sec. 4) takes the place of the said sixth section, and inasmuch as it may be reasonably presumed that the legislature would have enacted the remaining provisions of the statute, even if its attention had been drawn to the unconstitutionality of the sixth section; and, therefore, the validity of the rest of the statute is not affected by the unconstitutionality of the sixth section thereof. {Post, p. 647.)</p> <p>Acts cited and construed: 1873, ch. 103.</p> <p>Cases cited and approved: Bouldin v. Lockhart, 3 Bax., 262; Jones v. Memphis, 101 Tenn., 188.</p> <p>4. SAME. Removal of county seat without concurrence of legislature, where county has not been reduced since the constitution of 1870. .</p> <p>The seat of justice of a county reduced for the purpose of forming a new one before the constitution of 1870, but not reduced since then, may be removed upon the concurrence of two-thirds of tlie qualified voters of the county, without-the concurrence of two-thirds of hoth branches of the legislature. {Post, pp. 648-649.)</p> <p>Constitution cited and construed: Art. 10, sec. 4.</p> <p>5. SAME. Same. Word “is” is used in the sense of words “shall be” or “may be,” when.</p> <p>The word “is” in the constitutional provision (art. 10, sec. 4): that “where an old county is reduced for the purpose of forming a new one,” etc., is used in the sense of the words “shall be” or “may be.” (Post, pp. 648-649.)</p> <p>Constitution cited and construed: Art. 10, sec. 4.</p> <p>6. ELECTION. Statute enacted too late to be put in operation does not apply to that particular election.</p> <p>Where the election for the removal of a county seat is advertised to be held and is held so soon after the enactment of a law putting a county under the operation of the Dortch law that there is not time to put the machinery of that law into operation, such law does not apply to such election. {Post, pp. 647-648.)</p> <p>Acts construed: 1903, eh. 235.</p> <p>Case cited and approved: Davis v. Rogersville, 107 Tenn., 588.</p> <p>7. DEMURRER. Raises questions on face of bill only, and copy of decree filed by defendant can not be considered upon demurrer for res adjudicata.</p> <p>In disposing of a demurrer presenting the point that the complainants are bound by a decree entered in a former suit, a copy of the decree in such suit filed by the defendant is not a part of the bill, and, therefore, can not be looked to by the court, as the face of the bill only can be considered in disposing of a demurrer. {Post, p. 649.)</p> <p>8. RES ADJUDICATA. Voluntary dismissal of bill is not.</p> <p>The settled rule is that a mere voluntary dismissal on the part of the complainant will not prevent the bringing of a new suit upon the same subject-matter by the same complainant against the same defendant. {Post, p. 650.)</p> <p>Case cited and approved: Mabry v. Churchwell, 1 Lea, 416, 424.</p> <p>'9. SAME. Same. Mere dismissal by consent of parties is not.</p> <p>The mere dismissal of a cause by consent of parties will not bar a future action. (Post, pp. 650-654.)</p> <p>Cases cited: Hodges v. Baucbman, 8 Ter., 186; Pry v. Taylor, 1 Head, 594; Brown v. Brown, 86 Tenn., 318; United States v. Parker, 120 U. S., 89; Haldeman v. United States, 91 U. S., 584; and cases cited therein, and in the opinion on pages 650-654.</p> <p>10. SAME. Same. Same. Effect of consent decrees.</p> <p>A consent decree is binding according to its terms upon those who agree to it, and it can not be appealed from or questioned by writ of error, but can be attacked only by an original bill, or bill of review in the nature of an original bill, for fraud. (Post, p. 654.)</p> <p>Cases cited and approved: Jones v. Williamson, 5 Cold., 371; Milly v. Harrison, 7 Cold., 199; Revis v. Wallace, 2 Heis., 658; Williams v. Neil, 4 Heis., 279; Dillard v. Harris, 42 Tenn. Chy., 197; Mayo v. Harding, 3 Tenn. Chy., 237, 241; Hix v. Gosling, 1 Lea, 573; Jones v. McKenna, 4 Lea, 630, 639; Penniman v. Smith, 5 Lea, 136; Boyce v. Stanton, 15 Lea, 346, 375-376; Greenlaw v. Pettit, 87 Tenn., 467, 476; Bigley v. Watson, 98 Tenn., 353, 357-358; Wilson v. Schaefer, 107 Tenn., 334.</p> <p>11. SAME. Public is not concluded by suit on its behalf by parties assuming to represent it, except by a decision upon a fairly presented case.</p> <p>Before the rights of the public are concluded in a litigation by parties complainant, assuming as citizens and taxpayers to stand forth as the champions of public rights and the conservators of the interests of all other citizens and taxpayers standing in the like case, there must be a reasonably fair presentation of the case to a court of competent jurisdiction, and a consideration and determination of the matter by the court. iPost, p. 657.)</p> <p>12. SAME. Same. Complainants assuming to act for the public may abandon suit on terms as to costs, etc., but the public is not bound thereby.</p> <p>Persons assuming to appear for the public as parties complainant, in the capacity of citizens and taxpayers, in litigation affecting public interests, have the option to abandon the position assumed, and may make terms as to costs and expenses, but in so abandoning the suit they do not act for or bind the public, but only themselves. (Post, p. 658.)</p> <p>13. SAME. Same. Same. Complainants assuming to act for the public can not conclude the public by agreement with adversaries, except as to evidence, when.</p> <p>Aside from reasonable and bona fide agreements as to evidence, made during the progress of a cause, persons assuming to appear for the public as parties complainant, in the capacity of citizens and taxpayers, in litigation affecting public interests, can not conclude the rights of the public by their agreements with adversary parties or adverse interests. (Post, pp. 658-659.)</p> <p>Case cited, approved, and distinguished: Pry v. Taylor,. 1 Head, 594.</p> <p>.14. COUNTY SEAT REMOVAL. Upon concurrence of two-thirds of the qualified voters, and not by consent of complainants in suit on behalf of the public.</p> <p>The removal of a county seat can be brought about only by the - vote of two-thirds of the qualified voters of the county, and can not be accomplished by the agreement and consent of the parties complainant, assuming to act for the public in the capacity of citizens and taxpayers, in a suit to prevent such removal. (Post, p. 658.)</p> <p>See headnotes, 2, 4, and 5.</p> <p>Constitution construed: Art. 10, sec. 4,</p> <p>15. SAME. Suit to prevent, for want of requisite vote, is not a contested election case, but a case to restrain the exercise of unconstitutional powers, and the chancery eourt has jurisdiction. '</p> <p>Where the jurisdiction of the chancery court is invoked to prevent the removal of the county seat on the ground that the concurrence of two-thirds of the qualified voters of the county, has not been obtained as required by the constitution (art. 10, sec. 4), the controversy does not fall under the classification of contested election cases, but, on the contrary, falls under the class of cases wherein the court restrains public officers from the exercise of unconstitutional powers, and the chancery court has jurisdiction. {Post, pp. 659-661.)</p> <p>Code cited and construed: Sec. 6063 (S.); sec. 4997 (M. & V.); sec. 4225 (T. & S. and 1858).</p> <p>Cases cited and approved: Bradley v. Commissioners, 2 Hum., 428; Ford v. Farmer, 9 Hum., 154; Gotcher v. Burrows, 9 Hum., 595; Bridgenor v. Rodgers, 1 Cold., 258; Cocke v. Gooche, 5 Heis., 294; Winston v. Railroad, 1 Bax., 60; Humphreys Co. v. Houston Co., 4 Bax., 593; Stuart v. Blair, 8 Bax., 141, 147; Bouldin v. Lockhart, 1 Lea, 195; Lynn v. Polk, 8 Lea, 121; Trading Stamp Co. v. Memphis, 101 Tenn., 181; Weaver v. Davidson Co,, 104 Tenn., 315; Patton v. Chattanooga, 108 -Tenn., 221-227.</p> <p>16. SAME. Chancery jurisdiction to go behind findings of county court as to vote for.</p> <p>The chancery court has jurisdiction to inquire whether two-thirds of the qualified voters of the county voted in favor of the removal of the county seat, and it may go behind the findings of the county court, and determine for itself whether, in fact, two-thirds of all the qualified voters of the county voted in favor of the removal, because the power of the county court in the premises is not judicial, but legislative, and its action in such matters is subject to review, for it has not power to purge the polls. (Post, pp. 660-662.)</p> <p>Cases cited and approved: Bouldin v. Lockhart, 3 Bax., 262, 274-276; Bouldin v. Lockhart, 1 Lea, 196; Braden v. Stumph, 16 Lea, 681.</p> <p>17. APPEAL. Questions not before supreme court upon special appeal considered as arising out of questions properly before the court.</p> <p>Questions made in demurrer which were overruled by the chancellor are not brought up to the supreme court, as such, by the special appeal of complainants from those parts of the decree sustaining certain points of the demurrer and dismissing the bill thereon, and can not, therefore, be considered' from that standpoint, yet they may be considered as collateral to and arising out of other questions properly before the court. (Post, pp. 645, 659.)</p> <p>See headnote 1.</p> <p>18. SAME, Matters not brought to the attention of the court below will not be considered upon a special appeal, when.</p> <p>The action of the chancellor in modifying the injunction and increasing the penalty of the injunction bond can not be considered by the supreme court upon a special appeal from a decree dismissing the bill upon demurrer, where no objection as to these matters was brought to the attention of the chancellor when he granted the special prayer for an appeal, and where they are not included therein. (Post, pp. 659, 662.)</p>

<p>1. EVIDENCE. Strict rules relaxed as to age and pedigree.</p> <p>In matters of age and pedigree, the strict rules as to the introduction and admissibility of evidence, from necessity, do not apply. (Post, p. 680.)-</p> <p>3. SAME. Same. Inscriptions, engravings, public registers, and hearsay evidence generally, are admissible as to age and pedigree.</p> <p>- In matters relating to age and pedigree, inscriptions on tombstones and on family portraits and charts, engravings in rings and hearsay evidence generally are admissible; and public registers are competent evidence in this class of cases. (Post, pp. 680-681.)</p> <p>Cases cited: Lewis v. Marshall, 5 Pet., 470; Hunt v. Order, 64 Mich., 671; Jackson, ex dem. Bogert, v. King, 5 Cow., 237; Hennessy v. Met. Life (Conn.), 52 Atl., 490; Murray v. Sup. Lodge (Conn.), 52 Atl., 722; Sup. Conclave v. Saylor, (Miss.), 29 South., ■790.</p> <p>3. SAME. Same. Same. Census reports, records of hoards of health, and applications for insurance, are admissible as to age. and pedigree.</p> <p>Copies of the British census report, and of answers made to the United States census enumerator, records of beards of health, and applications for life insurance are admissible and competent aS to age and pedigree. (Post, pp. 677, 678, 682.)</p> <p>4. BENEFIT ASSOCIATIONS. Member waives previous irregularities by requesting a rehearing as to expulsion, when.</p> <p>A member of a benefit association waives all previous irregularities in the matter of his expulsion therefrom, by requesting a rehearing, where the request is considered, and the former decree of expulsion allowed to' stand upon the evidence adduced and procured. (Post, p. 681.)</p> <p>5. SAME. What to be considered by the court in suit of expelled member to be reinstated.</p> <p>Benefit associations must of necessity determine as to the competency and weight of evidence in expulsion proceedings in pursuance of their own rules, laws, and regulations, and where the expelled member institutes suit to he reinstated, the only question to be considered by the court is whether the laws of the association were enforced fairly and without oppression. (Post, pp. 679-682.)</p> <p>Cases cited and approved: Vaughan v." Herndon, 91 Tenn., 64; Franta, etc., v. Union (Mo.), 63 S. W., 1100, 86 Am. St. Rep., 611; 54 L. R. A., 723;'Mazurkiewicz v. Society (Mich.), 86 N. W., 543; 54 L. R. A., 727; Pepin v. Societe (R. I.), 54 Atl., 47, 60 L. R. A., 626; Moore v. National Council (Kan.), 70 Pac., 353; Doljanin v. Society (Cal.), 69 Pac., 908; Johansen v. Blume, 63 App. Div., 526, 65 N. Y. Sup., 987; Haebler v. Exchange, 149 N. Y., 414; Baxter y. McDonnell, 155 N. Y., 83; Lewis y. Wilson, 121 N. Y„ 284.</p> <p>6. SAME. Evidence on -which, member was expelled is admissible in suit for reinstatement, when.</p> <p>Where the bill of an expelled member of a benefit association filed for the reinstatement charges that the association acted arbitrarily, unjustly, oppressively, and without any investigation or information upon the subject, such association can not be prevented in the courts from disproving this serious charge by marshaling the information upon which it acted, because of technical objections that could be raised to the mode of procedure prevailing in courts of law. (Post, p. 682.)</p> <p>7. SAME. Repayment of premiums to expelled member tendered before and in suit for reinstatement not required upon decree denying reinstatement.</p> <p>Where a member of a benefit association expelled for fraudulent representations declined a restoration of all premiums paid before suit for reinstatement, the decree denying reinstatement properly denies to order their repayment at the end of the litigation, though the bill tenders and offers to repay the same, if equity requires it. (Post, pp. 682-683.)</p>

<p>1. LIMITATIONS, STATUTE OF. Begins to run against nota payable on demand, when.</p> <p>Where a note is payable on demand, the right to make such demand accrues at its date, and therefore under the statute providing that where a right exists but a demand is necessary to entitle the party to his action, the limitation appropriate to the action commences from the time the right to make the demand is complete, that is, from the date of the note.</p> <p>Code cited and construed: Sec. 4477 (S.); see. 3477 (M. & V.); sec. 2780 (1858).</p> <p>Case cited and distinguished: Goodwin v. Ray, 108 Tenn., 614.</p> <p>2. CHANCERY PLEADING AND PRACTICE. Facts necessary to avoid bar of statute of limitations, how pleaded. Both allegations and proof essential.</p> <p>It is a well-settled rule of chancery practice in thi's State, since replications to answers were abolished that, where a statute of limitation which would ordinarily bar the action has run, any intervening fact relied upon to avoid the bar of the statute may be alleged in the original 'bill, or in an amendment, when made necessary by a defense set up in the answer, and without- such allegation evidence of such fact is irrelevant and inadmissible for any purpose.</p> <p>Cases cited and approved: Gross v. Disney, 95 Tenn., 598; Sully v. Childress, 106 Tenn., 118; Gernt v. Cusack, 106 Tenn., 150; Thompson v. Railroad Co., 109 Tenn., 270.</p>

<p>1. LIS PENDENS. One acquiring rights prior to a suit is not affected thereby, if not a party thereto, "when.</p> <p>The general rule is that one who acquires rights in property* prior to the bringing of a suit in respect thereof is not affected by the proceedings in such suit, or the Us pendens thereof, unless he be made a party thereto. But this rule is materially narrowed in its application by the registration laws. {Post, p. 696.)</p> <p>Cases cited and approved: Thomasson v. White, 6 Bax., 148; Fitzgerald v. Cummings, 1 Lea, 282, 239-240; Rodgers v. Dibrell, 6 Lea, 69, 76-77.</p> <p>2. REGISTRATION. Instruments have effect between the parties without; but as to others only from noting for registration.</p> <p>Instruments that are required to be registered have effect between the parties to the same, and their'heirs and representatives, without registration; but as to other persons not having actual notice thereof, they have effect only from the noting thereof for registration on the books of the register. {Post, pp. 696, 702-705.)</p> <p>Code cited and construed: Secs. 3749 and 3750 (S.); secs. 2887 and 2888 (M. & V.); secs. 2072 and 2073 (T. & S.- and 1858).</p> <p>Acts cited: 1819, ch. 47, sec. 2; 1827, ch. 59; 1831, ch. 90.</p> <p>Cases cited and approved: Self v. Haun, 2 Tenn. Cases, 125-127, citing Vinson v. Huddleston, Cooke, 254; Hays v. McGuire, 8 Yer., 92.</p> <p>Cases cited, approved and distinguished: Hays v.- McGuire, 8 Yer., 92; Shields v. Mitchell, 10 Yer., 1; High v. Batte, 10 Yer., 337; Montgomery v. Hobson, Meigs, 454; Baldwin v. Baldwin, 2 Hum., 486; Hale v. Darter, 10 Hum., 96; Ward. v. Daniel, 10 Hum., 607; Rogers v. Cawood, 1 Swan, 146; Wilkins v. May, 3 Head, 174; Green v. Goodall, 1 Cold., 413.</p> <p>3.SAME. Instruments first registered or noted for registration have preference, unless claimant has notice of a prior instrument.</p> <p>The instrument first registered or noted for registration shall have preference over one of earlier date, hut noted for registration afterwards, unless it is proved in a court of equity, according to the rules of said court, that the party claiming under the subsequent instrument had full notice of the previous instrument. (Post, p. 697.)</p> <p>Code cited and construed: Sec. 3751 (S.); sec. 2889 (M. & V.); see. 2074 (T. & S-. and 1858).</p> <p>4. SAME. All persons except creditors are affected by actual notice of unregistered instruments, when.</p> <p>Instruments, without regard to registration, take effect and. are equally good as to all persons who have actual notice of them from the date of such notice, except the conveyor’s creditors, as to whom they are inoperative, ineffective, and practically nonexistent until they are noted for registration on the hooks of the register. (Post, p. 697.)</p> <p>5. SAME. Purchasers' are affected with actual notice; “bona fide purchasers” are purchasers without notice.</p> <p>In the statutory provision unregistered instruments shall be null and void as to “'bona fide purchasers from the makers without notice,”- the terms “bona fide purchasers” mean purchasers without notice, and no technical meaning is to be given to the terms. (Post, p. 698.)</p> <p>Code cited and construed: Sec. 3752 (S.); sec. 2890 (M. & V.); sec. 2075 (T. & S. and 1858).</p> <p>Cases cited and approved: Martin v. Lincoln, 4 Lea, 334, 349; Simpkinson v. McGee, 4 Lea, 432, 435-436.</p> <p>Cases cited, approved and distinguished: Hale t. Darter; 10 . Hum., 96; Ward v. Daniel, Í0 Hum., 607.</p> <p>6. SAME. Claimant under unregistered deed must show subsequent claimant took with notice.</p> <p>The burden of proof rests upon one claiming under an unregistered conveyance io show that a subsequent claimant took with notice of the prior conveyance. (Post, p. 706.)</p> <p>Cases cited and approved: Gratz v. Land, etc., Imp. Co., 82 Fed., 381; Walter v. Brown, 115 Iowa, 360;- Hooper v. DeVries,.115 Mich., 231; Hull v. Diehl, 21 Mont., 71; Paul v. Kerswell, 60 N. J. Law, 273; Association v. Knowles, 54 N. X Eq., 519; Be-man v. Douglas, 1 App. Div., 169, 37 N. Y. Sup., 859; Varwig v. Cleveland, etc., Co., 54 Ohio St., 455; Thresher Co. v. Esteb, 41 Or., 469.</p> <p>7. DECREES. Divesting and vesting title to land are equivalent to deeds of conveyance.</p> <p>A decree rendered for complainants under a bill filed for rescission of a deed of conveyance of land on the ground of fraud, setting aside the deed, and 'divesting the title out of the grantees and vesting it in the complainants, is in all respects equivalent to a deed of conveyance executed by the defendants to the complainants. (Post, pp. 705-706.) .</p> <p>Code cited and construed: Sec. 6301 (S.); sec. 5234 (M. & V.); see. 4484 (T. & S. and 1858).</p> <p>Cases cited and approved: Bleidorn v. Pilot Mountain Co., 89 Tenn., 166, 196; Behrn v. White, 108 Tenn., 392.</p> <p>8. SAME. Same. Entered on the minute or record books need not be registered.</p> <p>A decree divesting and vesting title to land entered upon the record books of the court of which it is rendered is sufficient and operative as a deed of conveyance without registration. (Post, p. 706.)</p> <p>9. SAME. Grantee is bound by decree of rescission against bis grantor rendered before tbe registration of bis deed.</p> <p>Where tbe grantee of a deed of conveyance fails to register it until after tbe rendition of a decree rescinding tbe deed to bis grantor for the same land, be is privy to tbe litigation and tbe decree, of rescission and is bound by tbe result of tbe litigation, though be was not made a party to tbe suit; and bis attack on the decree is that of a collateral attack. (Post, pp. 706-707.)</p> <p>10. SAME. Same. Claimants under a grantee bound by decree of rescission against bis grantor before registration are likewise bound by sueb decree.</p> <p>Persons claiming under a grantee not registering bis deed until after a decree rescinding the deed to bis grantor for the same land stand upon no higher ground than such grantee under whom they claim in respect to a collateral attack upon tbe decree of rescission. (Post, p. 707.)</p> <p>11. SAME. Collateral attack by parties or privies is confined to want of jurisdiction appearing in record.</p> <p>Upon a collateral attack upon a judgment or decree of a court of general jurisdiction by parties or privies thereto, tbe rule is that such judgment or decree can not be questioned, except for want of authority over the matter adjudicated upon; and this want of authority must be found in record itself. (Post, pp. 707-708.)</p> <p>IS. SAME. Same. Conclusive presumption of jurisdiction on collateral attack, unless record discloses want of jurisdiction.</p> <p>In'the absence of anything in tbe record, where tbe decree collaterally attacked, to impeach the right of tbe court rendering such decree to determine the questions involved, there is a conclusive presumption that it bad such right. (Post, p. 708.)</p> <p>Case cited and approved: Reinhardt v. Nealis, 101 Tenn., 169, 172, 173.</p> <p>13. SAME. Jurisdiction of person determined from record upon collateral attack.</p> <p>Whether the court acquired jurisdiction of the persons appear-in to he parties to a suit, where the decree rendered therein is collaterally attacked, must be determined from the face of the record. (Post, p. 708.)</p> <p>14. SAME. Same. Presumption in favor of jurisdiction of the person upon collateral attack.</p> <p>In the examination of the record of a suit, where the decree is collaterally attacked, to determine whether the court rendering th<? decree had jurisdiction of the persons appearing to be parties thereto, every reasonable presumption will be indulged in favor of the jurisdiction. (Post, p. 708.)</p> <p>Cases cited and approved: Robertson v. Winchester, 85 Tenn., 171, 183-186; Hopper v. Fisher, 2 Head, 253, 254.</p> <p>15. SAME. Same. Same. Evidence upon which decree was rendered cannot be examined on collateral attack, when.</p> <p>Where a decree is collaterally attacked, the evidence on which the court acted in rendering the decree, can not be examined in determining whether the court had jurisdiction of persons appearing to be parties thereto. (Post, p. 708.)</p> <p>16. SAME. Same. Same. Same. Case made in pleadings is sufficient upon collateral attack.</p> <p>Where a case is made in the bill or other pleading, and the court in its judgment or decree assumes the case to have been established, that is sufficient upon a collateral attack. (Post, p. 708.)</p> <p>Cases cited and approved: Kindell v. Titus, 9 H’eis., 727; Pope v. Harrison, 16 Lea, 82.</p> <p>17. SAME. Variation in corporate name of defendant is insufficient to show want of jurisdiction of person of defendant upon collateral attack, when; case in judgment.</p> <p>Where the defendant is named in the bill by the corporate name of the “President, Directors, and Company of the Newcastle & Danville Railroad;” in the nonresident publication notice as “The Newcastle and Danville Railroad Company;” in the order pro eonfesso as “The President and Directors of the Newcastle and Danville Railroad Company;” and in decree as thei “Newcastle and Danville Railroad Company;” and title is divested out of it in that name, which name it commonly used, and in which name the conveyance of the land in question was made to it, while the charter name was “The President and Directors of the Newcastle and Danville Railroad Company,” its usage of the shorter name of the “Newcastle and Danville Railroad Company,” justified a suit against it in either name, and upon collateral attack on the decree, the variation between the corporate name as stated in the bill and decrees was insufficient to show that the court had no jurisdiction of the person of the defendant. (Post, pp. 708-710.)</p> <p>18. SAME. Absence of oath, to bill is insufficient to show want of jurisdiction of person of nonresident defendant upon collateral attack.</p> <p>The affidavit of nonresidence of a defendant required to be made before the nonresidence notice is published may be made on a separate piece of paper, and need not be attached to the bill, and on collateral attack, it must be presumed that the proper affidavit was filed, although there appears to be no oath to the .bill. (Post, p. 710.)</p>

<p>1. CHARGE OE COURT. Erroneous definition of negligence prejudicial to plaintiff only is not reversible error at instance of defendant.</p> <p>Tbe court’s instruction to tbe jury defining negligence as tbe neglect of tbe use of ordinary care or skill towards a person to whom tbe defendant owes tbe duty of observing ordinary care . and skill by wbicb neglect tbe plaintiff, usithout negligence on Ms part proasimiateVg contributing to prochice the accident, bas suffered injury to bis person, while erroneous, because of tbe ■italicized clause, yet it was not prejudicial to defendant on that ground, but ratber to tbe plaintiff, and is not reversible error at tbe instance of tbe defendant. {Post, pp. 716-717.)</p> <p>Cases cited and approved: Burke v. Citizens’ Street Railway Co., 102 Tenn., 409.</p> <p>2. SAME. That, though plaintiff may be negligent, defendant’s negligence renders it liable, contains no error, when.</p> <p>Tbe court’s instruction to tbe jury that “though tbe act of a person in crossing or driving alongside tbe track in front of a street railway car wbicb is moving towards him, near enough to be struck, may be negligence, yet, if the mótorman in charge of tbe car observed tbe negligence, or could have observed tbe negligence, by the use of ordinary care, when tbe peril of a collision became imminent, and might have avoided its effect, by due care, in time to prevent an accident, and failed to do so, tbe company would in that event be liable” contains no error. {Post, p. 7Í7.)</p> <p>3. SAME. That failure to comply with city ordinances is negligence per se, if proximate cause of injury, is correct, when.</p> <p>The court’s instruction to the jury that a failure of a street railway company to comply with city ordinances limiting the speed of cars to fifteen miles per hour and requiring drivers of. cars to keep a rigid lookout for all teams, persons, etc., on or moving toward the track, and on the first appearance of danger, to stop the cars in the shortest time and space possible, is negligence per se, and will render the company liable, if its negligence was the proximate cause of the accident and injury. (Post, pp. 718-722.)</p> <p>Cases cited and approved: Queen v. Dayton Coal & Iron Co., 95 Tenn., 458; Schmalzried v. White, 97 Tenn., 36; Riden v. Grimm, 97 Tenn., 220; Weeks v. McNulty, 101 Tenn., 495; Memphis Street Railway Co. v. John Williford, Oral Opinion at Jackson, April term, 1903; Bott v. Pratt, 33 Minn., 323; Osborne v. McMasters, 40 Minn., 103; Hayes v. Railroad, 111 U. S., 228; Salisbury v. Herchenroder, 106 Mass., 458.</p> <p>Cases cited and disapproved. Railroad v. Ervin, 89 Pa., 71; Flynn v. Canton Co., 40 Md., 312; Heeney v. Sprague, 11 R. I., 456; Vandyke v. Cincinnati, 1 Disn. (Ohio) ,'532.</p> <p>4. CITY ORDINANCES. Requiring street cars to he stopped in shortest time and space possible on first appearance of danger are reasonable and just.</p> <p>The reasonable and proper construction of a city ordinance requiring street car drivers to keep a rigid lookout for teams, persons, etc., on or moving towards the track, and on the first appearance of danger, to stop the cars in the shortest time and space possible, is that it means when the danger of collision becomes imminent the car shall be stopped; and so construed such ordinance is a reasonable and just one. (Post, pp. 718, 722-724.)</p> <p>Cases cited and approved: Street Railway Co. v. Dan, 102 Tenn., 320-325; Citizens’ Street Railway Co. v. Shepherd, 107 Tenn., 444.</p> <p>5. CHARGE OF COURT. That failure of street car motorman to apply the-brakes was negligence is error.</p> <p>The court’s instruction' to the jury that if the motorman on a street car failed, when danger became imminent, to apply the brakes and sound the gong or bell, or give other signal, and use every means in his power to stop the car and prevent the accident, he is guilty of negligence, and if such- negligence is the proximate cause of the accident and injury there should-be a verdict for plaintiff, is erroneous where the motorman had not applied the brakes, because such instruction was an invasion of • the province of the jury, since whether the motorman, in the exercise of ordinary care was required to use any particular appliances to stop the car was for the jury. (Past, pp. 724-729.)</p> <p>6. CONTRIBUTOR'S NEGLIGENCE. Is a fact for the jury, but court may instruct jury that particular conduct is negligence per se, when.</p> <p>The question of contributory negligence is always one of fact for the jury, but the trial judge may, tn a proper case, instruct the jury that such and such conduct on the part of either the plaintiff or defendant would amount to negligence per se, or negligence in law. (Post, pp. 730-734.)</p> <p>Cases cited and approved: Iron Co. v. Smith, 86 Tenn., 45, 48, 49; Telegraph Co. v. Zopfi, 93 Tenn., 369, 372, 373; Stewart v. Nashville, 96 Tenn., 50; Railroad v. Lawson, 101 Tenn., 406; Knoxville v. Cox, 103 Tenn., 368; Wilson v. Railroad, 105 Tenn., 74; Payne v. Railroad, 106 Tenn., 167; Oliver v. Nashville, 106 Tenn., 273, 278-280; Railroad v. Norman, 108 Tenn., 324; Railroad v. Riddick, 110 Tenn., 227.</p> <p>7. SAME. Determined by supreme court; reversal for its existence.</p> <p>The supreme court will - determine whether the facts proved clearly show contributory negligence upon the part of the plaintiff below that acted as a proximate cause -to produce the injury, and upon ascertaining the existence of such proximate contributory negligence will reverse the judgment. (Post, pp. 733-734.)</p> <p>Cases cited and approved: Light &• Power Co. v. Hodges, 1 Cates, 331; Heald v. Wallace, 1 Cates, 346.</p> <p>8. SAME. Of plaintiff remotely contributing to the accident makes it the jury’s duty to reduce damages.</p> <p>Where both the plaintiff and defendant are guilty of negligence but the defendant’s negligence was the proximate or contributing cause of the accident, it is the duty of the jury to reduce the damages because of the plaintiff’s negligence remotely contributing to the accident, and an instruction to the jury that they may do so is erroneous, because it leaves the matter optional with the jury. (Post, pp. 734-736.)</p> <p>Case cited arid approved: Railroad v. Nowlin, (oral).</p> <p>9. SAME. Plaintiff’s negligence bars his action, where the negligence of both plaintiff and defendant combined was the proxi- . mate cause of the accident.</p> <p>Where the plaintiff was guilty of negligence which combined with the negligence of the defendant to produce the accident, so that the acts of both together constituted the proximate cause of the injury, then the negligence of the plaintiff, however slight, would bar a recovery; and a refusal to so instruct the jury upon special request is reversible. (Post, pp. 736-737.)</p> <p>Cases cited and approved: Saunders v. Railroad, 99 Tenn., 135; Barr v. Railroad, 105 Tenn., 547; Railroad v. Wilson, 108 Tenn., 618; Railroad v. Norman, 108 Tenn., 331.</p> <p>10. CHARGE TO COURT. Special requests embraced in general charge are properly refused.</p> <p>Where the matter embraced in the requested instructions is sufficiently covered by the general charge, such requests are properly refused. (Post, p. 737.)</p>