113 Tenn.

Volume 113 — Tennessee Reports

60 opinions

113 Tenn. 1Gardner v. Swift & Co. (1904)
1. ATTACHMENT. Sufficiency of affidavit for. An affidavit, for an attachment reciting that the defendant was indebted to the plaintiff “in the sum of fifteen hundred dollars, debt and damages by open account,” is not defective as leaving the amount sued for indefinite by the use of the term “damages,” that word, from its connection, being construed to mean merely interest. 2. SAME. Levy and notice essential. Failure to record sufficient order does not vitiate. Case in judgment. In an attachment proceeding instituted in the circuit court against a nonresident, after the writ had been returned showing a levy upon the property of the' defendant, the clerk of the court made a sufficient order of publication, which, however, was not entered on the rule docket or marked, “filed” but, in its original form, delivered to the printer for publication and so published. It was contended hy the defendant that the statutes authorizing attachment and publication had not been complied with, and, therefore, that the proceedings were void. Held: 1. The clerk of the court.was authorized to issue the attachment. 2. That the levy of the attachment and the publication of a sufficient notice are the essential requirements of the statute, and this having been complied with, the failure of the clerk to file, or enter on the rule docket, the order of publication, did not vitiate the proceedings. Code cited and construed: Secs. 5221, 5234, 5278, 5279, 5281, 5282, 5283, 5284, 5937 (SO- Ca'ses cited: Lyle v. Longley, 6 Bax., 286, 289, 292; Howard v. Jenkins, 5 Lea, 176; Allen v. Gilliland, 6 Lea, 521, 532.
113 Tenn. 9State ex rel. Bergshicher v. Grace (1904)
FROM SHELBY. Appeal from tbe Circuit Court of Shelby County.— J. P. Young, Judge. . .
113 Tenn. 20Goodbar v. City of Memphis (1904)
1. STATUTES. Amendment becomes incorporated in the original act. An amendment becomes a part of the original act and becomes incorporated therein as though contained in the original enact: ment from the date the amendment is effective. (Post, p. 34.) 2. SAME. Same. Amendment by referring to the original act only. Where amendments to a statute are sought to be amended, it is not necessary to refer to them, but it is sufficient to recite'in the proposed amendatory act the title or substance of the original act, of which said amendments, have become a part. (Post, p. 34.) Constitution cited and construed: Art. 2, sec. 17. 3. SAME. Same. Same. Recital of amendments is surplusage, where original act is recited. Where in the proposed amendatory act the title or substance of the original act is cited, a recital of the amendments thereto, which are sought to be amended, is unnecessary surplusage. (Post, p. 35.) Constitution cited and construed: Art. 2, sec. 17. 4. SAME. Caption of amendatory act reciting title of the amended act need not indicate the particular character of amendment, when. The title or caption of an amendatory statute need not do more than recite the title or substance of the act amended, and need not indicate the particular character of the proposed amendment,, provided the amendment is germane to the subject of the original act, and is embraced within its title. (Post, pp. 35, 36.) Acts cited and construed: 1879, ch. 11; 1903, ch. 366. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Hyman v. State, 87 Tenn., 109; State v. Algood, ”87 Tenn., 163. 5. SAME. Sqme. Case in judgment. Where a statute designed' as a city charter and providing for an elaborate system of municipal government is amended by a subsequent statute providing, in substance, for charges on certain public utilities, for the succession of the office of mayor and vice mayor, for the abolishment of certain municipal offices, for certain boards to make contracts, for the prohibition of the levy of more than a specified tax, for the establishment of the office of tax assessor, ,and for the election of a city attorney instead of his appointment, such provisions of the amendatory act are germane to the original act, and the amendatory act reciting the title of the original act need not indicate in its title the particular character of the amendment. (Post, pp. 23-37.) Acts cited and construed: 1879, ch. 11; 1903, ch. 366. Constitution cited and construed: Art. 2, sec. 17. 6. SAME. Same. Amendatory act is not invalid where its caption recites title of amended act, and contains surplusage that is restrictive. Where an amendatory act is germane to the amended act, and recites in its caption the title of the act proposed to be amended, it is not unconstitutional and invalid, because its caption contains superfluous matter that is distinctly restrictive, and that fails to express the character of the amendment attempted to be expressed. {Post, pp. 37, 38.) Acts cited and construed: 1879, ch. 11; 1903, ch. 366. Constitution cited and construed: Art. 2, sec. 17. 7. SAME. Special and local laws are not repealed toy general legislation, when. The general rule is that special and local laws are never deemed to he repealed by general legislation, except upon the most unequivocal manifestations of an intent to that effect. (Post, 2).- 38.) 8. SAME. Same. Case in judgment. An act (Acts 1903, ch. 366) expressly applying to the assessment and collection of taxes for the city of Memphis, and to other matters pertaining to said city, is not repealed by implication by an act (Acts 1903, ch. 258) applying to state and county taxes and to taxes levied in certain municipal corporations, which are expressly described, and necessarily excluding the city of Memphis. (Post, pp. 38, 39.) Acts cited and construed: 1903, chs. 258 and 366.
113 Tenn. 40Clement v. Clement (1904)
1. BENEFIT ASSOCIATIONS. Suits by different beneficiaries on benefit certificate. Where suit is instituted by one as executrix of the insured and as next friend of her minor children against a benefit association on a benefit certificate, claiming that her said children are entitled to all the insurance money, and mating • others, named as beneficiaries and claiming part of the insurance, defendants, such other beneficiaries so sued m^y institute and maintain an original bill against the association on the certificate to recover the whole amount of the certificate for themselves and the other named and infant beneficiaries for whom the executrix sued, especially where after the death of the insured they have assigned all or part of the amount due them to a person who was not a party to the bill of the executrix, and a plea in abatement by the association to such bill is properly overruled by the court. (Post, pp. 42-47.) 2. . SAME. Same. Consolidation of such suits is proper, when. The two suits by different beneficiaries against a benefit association on the same certificate are properly consolidated, where this brings all the matters and parties against the association before the court in such shape that* the rights of the parties against the association, and as between themselves, may be adjusted in the one consolidated suit. (Post, pp. 45, 46, 47.) 3. SAME. By-law against suicide is valid, and applies to substituted certificate issued after it is made. A' by-law of a benefit association made after a benefit certificate is issued, but before a substituted certificate is issued, providing that only a proportionate part of the insurance shall be paid in case of suicide of the member, enters into the substituted certificate, and becomes a part of the contract between the parties. Such by-law is reasonable, valid, and enforceable. (Post, pp. 47, 48.) Cases cited and approved: Knights of Pythias v. LaMalta, 95 Tenn., 157. Case cited and distinguished: G-aut v. American Legion of Honor, 107 Tenn., 603. 4. SAME. Same. Evidence field sufficient to prove intentional suicide. In an action against a benefit association on a member’s benefit certificate, the evidence set out in the opinion is held sufficient to prove the member’s death by intentional suicide, or from criminal recklessness and carelessness in taking morphine which, the member must have known'or had reason to know, would end in his self-destruction. (Post, pp. 48-52.)
113 Tenn. 53Pepper v. Union Railway Co. (1904)
1. MUNICIPAL CORPORATIONS. Railroads on streets authorized by legislature. The legislature may authorize the building of a railroad across or lengthwise streets or alleys of an incorporated town or city. (Post, pp. 57, 58.) Cases cited and approved: Railroad v. Adams, 3 Head, 396; Railroad v. Bingham, 87 Tenn., 522. 2. SAME. Same, llight of occupancy of streets granted by special legislation, when. The right of occupancy of the streets of an incorporated town or city by a railroad may be granted by special legislation, especially where the railroad enters such town or city with the consent of the municipal authorities empowered to give such consent. (Post, p. 58.) Acts cited: 1875, ch. 142. 3. SAME. Same. Same. Occupancy of streets by railroads under grant of municipal authorities. A railroad company incorporated under our general incorporation statutes (Acts 1875, ch. 142, and amendments thereof) may construct its road on the streets and alleys of an incorporated town or city where so empowered by the proper municipal authorities. (Post, p. 58.) Acts cited and construed: 1875, ch. 142. 4. SAME. Same. Same. Same. But railroads cannot occupy streets exclusively or destroy them as public highways. But railroads can not so occupy the streets of a city by the consent of the municipal authorities or of the legislature as to destroy them as public highways, and thus divert them from the use for which they were primarily intended, or seriously interfere with public travel thereon. (Post, pp. 58-66.) Acts cited and construed: 1875, ch. 142. Cases cited and distinguished: Railroad v. Adams, 3 Head, 396; Railroad v. Bingham, 87 Tenn., 522; Harmon v. Railroad, 87 Tenn., 614; Montgomery Co. v. Railroad, MS., December term, 1903. Cases cited and approved: Dubach v. Railroad, 89 Mo., 483; Schopp v. St. Louis, 117 Mo., 131; Lockwood v. Railroad, 122 Mo., 86; Knapp v. Railroad, 126 Mo., 26; Ligare v. Chicago, 139 Ill., 59; Railroad v. Louisville, 8 Bush, 415; Commonwealth v. Railroad (Ky.), 68 S. W., 628; Commonwealth v. Railroad, 27 Pa., 339. 5. SAME. Abutting landowner is entitled to an injunction against construction of railroads on streets, when. The owner of land abutting on a street is entitled to an injunction to prevent the laying down of railroad tracks on the street, where the occupancy of the street by the railroad will seriously interfere with his right of travel thereon, in common with the public, and will interfere with his rights of ingress and egress, and will inflict upon him a special injury not common with, but distinct from, that of the general public, and for which he can not obtain compensation at law commensurate with the injury sustained. (Post, pp. 58-69.) Cases cited and approved: Riedinger v. Railroad, 62 Mich., 29; Railroad v. Strauss, 37 Mi, 237; Railroad v. Eisert, 127 Ind., 156; and the cases cited and approved under the preceding headnote. 6. INJUNCTION. To prevent construction of railroad on street at instance of abutting landowners; case in judgment. Where the owners of land abutting on a street forty-one and a half feet wide, with two railroad tracks on it, one of which is -constantly more or less occupied by cars, and over the other trains are passing every hour of the day, have large manufacturing establishments fronting on said street, through which the materials used and the products manufactured by them are hauled, the result of putting a third railroad track on such street, with the accumulation of car traffic resulting therefrom, would practically destroy it for public use, and seriously interfere with, if not destroy, the easement of access of such abutting landowners to their several pieces of property, and would subject them to such peculiar and irreparable damage that they are entitled to an injunction to prevent it.
113 Tenn. 70Bingham v. Weller (1904)
1. HEEDS OF CONVEYANCE, Conveyance of land to a married woman and her bodily heirs or “body” heirs vests absolute estate in her. A conveyance of land to a married woman and her bodily heirs or “body” heirs to be held by her to her own bodily heirs vests a fee simple estate in her, and vests no estate in her children. (Post, p. 77.) Cases cited and approved: Middleton v. Smith, 1 Cold., 144; Kirk v. Ferguson, 6 Cold., 483; Wynne v. Wynne, 9 Heis., 309; Owen v. Hancock, 1 Head, 563. 2. SAME. Same. Decree vesting title to land acquired by reinvestment as it was held in the land sold. Where land conveyed to a married woman and her bodily heirs is sold by order of court for reinvestment, and the title to the land in which the proceeds áre invested is by decree vested in her and her children, their heirs and assigns forever-, to be held by them in like manner as they owned the land sold for reinvestment, a fee simple title is vested in her by said decree exactly as it was under said conveyance, and no' estate is thereby vested in her children. 3. CURTESY. In. separate estate in wife’s land conveyed to her by a third person. A conveyance of land by a third person to a married woman to be held by her as her separate estate,'with full power of disposition, does not deprive the husband of his curtesy estate therein after her death. (Post, pp. 78, 79.) Cases cited and approved: Baker v. Heiskell, 1 Cold., 641; Frazer v. Hightower, 12 Heis., 94; Carter v. Dale, 3 Lea, 710. 4. SAME. None in land conveyed by husband to wife. A conveyance of land by husband to his wife creates a separate estate in her, and divests out of him all interest, present or contingent, in the land, and he will not be entitled to an estate by the curtesy therein. (Post, pp. 79-82.) Cases cited, distinguished, and approved: Frazer v. Hightower, 12 Heis., 94; Carter v. Dale, 3 Lea, 710; Barnum v. LeMaster, 2 Cates, 638.
113 Tenn. 83Memphis Consolidated Gas & Electric Co. v. Speers (1904)
1. ELECTRICITY. Furnisher to owner of wires on his premises is not liable for a horse killed by escaping electricity, when. The furnisher of electricity for the illumination of a sign in front of a building is not liable for the death of a horse caused by electricity escaping from the electric wires throjigh some defect in, their construction, or from lack of perfect insulation, where the furnisher of the electricity never had any interest in or control over the wires or appliances by which the electricity was conducted to the same, and where such wires were owned and exclusively controlled by the owner of the premises. Case cited and approved: Insurance Co. v. Gas & Electric Co. (Col.), 63 Pac., 949. Case cited and disapproved: Gas Co. v. Thomas (Ky.), 75 S. W., 1X29. 2. SAME. Same. Rejection of evidence that defendant had no con-' trol over electric wires is reversible error, when. Where, in an action against an electric company for the killing of plaintiff’s horse, the evidence tended to show that the plaintiff’s horse was killed through some defect in construction of electric wires, or from lack of perfect insulation thereof, the exclusion or rejection of testimony offered by the defendant electric company to sRow that -it never had anything to do with the wiring, but that the same was done by the owner of the premises and was under his exclusive control, that it simply furnished the electricity for the owner of the premises and received payment therefor, is reversible error. {Post, p. 85.) S. SAME. Same. Same. Cha r ge that furnislier of electricity-liable for horse killed thereby is reversible error, when. The court’s charge to the jury that if they find that the plaintiff’s horse was killed by electricity furnished to the owner of the premises by the defendant, then they should find for the plaintiff, is reversible error. (Post, p. 85.)
113 Tenn. 89Barron v. City of Memphis (1904)
1. EMINENT DOMAIN. What constitutes a taking of property. There is a taking of property within the constitutional provision requiring just compensation for private property taken for public use, where the property is either actually appropriated by the State or one of its agencies or the common and necessary use of said property is rendered impossible or seriously interrupted. Constitution cited and construed: Art. 1, see. 21. Cases cited and approved: Telegraph Co. v. Electric Light, etc., Co., 93 Tenn., 492; Hamilton County v. Rape, 101 Tenn., 222; Pumpelly v. Canal Co., 13 Wall., 166. 2. SAME. Same. Case in judgment. The defendant, a municipal corporation, enlarged a pier supporting one of its bridges in order that the pier might be sufficient to bear the additional weight of one of the city’s sewers and thereby diverted-the current of the stream, so that it overflowed plaintiff’s lot, destroyed a large part of it by erosion and undermined the pillars of the house standing on the lot. Plaintiff brought trespass. Held: There was a taking of the plaintiff’s property within the constitutional provision that no man’s property shall be taken or applied to public use without just compensation. Constitution cited and construed: Art. 1, sec. 21. 3. CONSTITUTIONAL LAW. Power of legislature over private property. The legislature can not authorize the taking of private property for a public use without just compensation, and any statute attempting so to do, is, to that extent, unconstitutional. Cases cited and distinguished: Williams v. Taxing District, 16 Lea. 531.
113 Tenn. 96Collier v. Union Railway Co. (1904)
1. CORPORATIONS. Railroad charter must name the termini. It is beyond doubt essential to name the termini of any proposed' railroad in its charter, in order to make that charter valid. (Post, pp. 104, 105.) Code cited and construed: Sec.. 2412 (S.); sec. 1891 (M. & V.) 3. SAME. Charter of commercial railroad must name the termini, hut need not describe route. The charter of a commercial railroad need not contain any description of the route, but only the termini; and its route may be. generally, and need not be definitely, stated in its charter. In this respect, it differs from the street railway. ' (Post, pp. ■ 105, 112.) Code cited and construed: Sec. 2412 (S.); sec. 1891 (M. & V.), Case cited and approved: Railway v. Africa, 100 Tenn., 44. ‘3. SAME. Railroads incorporated under statutes can condemn property under eminent domain laws. Only such railroad corporations as are chartered under our general incorporation statutes (Acts 1875, ch. 142, sec. 6, and amendments — Shannon’s Code, sec. 2414-2425) are authorized to condemn property for their purposes under the eminent domain laws. (Post, p. 107.) Code cited and construed: Sec. 2414-2425 (S.); sec. 1893-1902 (M. & V.). Acts cited and construed: 1875, ch. 142, sec. 6. 4. SAME. Words “at or near” in railroad charter designating railroad’s terminus must receive a reasonable construction. The words “at or near” used in a railroad charter to designate the railroad’s terminus are indefinite, and must receive a reasonable construction. (Post, p. 109.) Cases cited and approved: Iron Works v. Railroad, 5 Allen, 221; Railroad v. Railroad, 1 Gray; 340, 367; Purifoy v. Railroad, 108 N. C., 100. 5. SAME. Words “McGee’s station” used in railroad charter to designate terminus mean a locality, and not a point. • The words “McGee’s station,” used in a railroad charter to designate the railroad’s terminus, should be held to mean a locality, and not a fixed and definite point. (Post, p. 109.) 6. SAME. Charter must be authorized by law. No charter can be valid that is not authorized by law. (Post, 2). 111.) Cases cited and approved: Ex parte Burns, 1 Tenn. Chy., 83-93; Ex parte Chadwell, 1 Tenn. Chy., 95; Heck v. McEwen, 12 Lea, 104. 7. SAME. Statutory form of charter is essential and requisite. The statutory form of charter of incorporation must be followed, for. the matter of the form prescribed by the statute is made essential. (Post, p. 111.) 8. SAME. Statutory requirements must be complied with. What the statute requires to be done in order to complete the organization of a corporation as a body politic are mandatory and essential, and, unless they are all substantially done, the charter is void and the incorporation is incomplete. (Post, p. HD- Cases cited and approved: Brewer v. State, 7 Lea, 682; Mayor v. Ward, 16 Lea, 27; Shields-v. Land Co., 94 Tenn., 146. 91 SAME. Same. Courts cannot dispense with statutory re-> quirements, or supply statutory provisions. The courts have no power to dispense with the statutory requirements or to supply statutory provisions, whatever may be the benefit, convenience, or necessity. {Post, p. 112.) 10. SAME. Railroad may be circular or polygonal in shape, with initial and final termini at same place. Under our general incorporation statutes (Acts 1875, ch. 142, sec. 6, and amendments thereof — Shannon’s Code, sec. 2412), there may be incorporated a railroad of reasonable length, embracing within itself a reasonable area, such as the limits of a city, and the road may be circular or polygonal in shape, with its final terminus at the same place as its initial, where the several connecting routes, and the intermediate points or termini are named in the charter. {Post, pp. 110-116.) Code cited and construed: Sec. 2412 (S.); sec. 1891 (M. & V.). Acts cited and construed: 1875, ch. 242, see. 6. Case cited and approved: State v. Martin, 51 Kan.,'462. 11. SAME. Route of railroad through a city must be designated in its charter. The route of a commercial railroad through a city, as well as that of a street railway, must be designated in its charter, so as to obtain permission and concession from the city to occupy the streets over which it is intended to build the road. {Post, p. 116.) 12. SAME. Amendment to charter extending route of an incorporated railroad company. Under our general incorporation statutes (Acts 1875, ch. 142, sec. 19, and Acts 1897, ch. 116), an incorporated railroad company may obtain the right and power to extend its road over new and additional routes by procuring an amendment to its charter, describing the proposed additional routes with some degree of particularity and detail, and giving the termini of each. (Post, ,pp. 117, Í18.) Acts cited and construed: 1875, ch. 142, sec. 19 (Shannon’s Code, secs. 2028 and 2029); 1897, ch. 116. 13. SAME. Belt line, railroad that is a commercial railroad entitled to benefits oí eminent domain laws. A circular or polygonal railroad encircling a city, usually called a belt line, whose charier providés for the construction of a railroad similar to all other commercial railroads, and obligates it to do a general railroad business, both as to freight and passengers, but the chief purpose of which is to switch cars from one road to another, and from the various industrial enterprises to the several railroads, and back again, to receive freight on the line of its road, and to give bills of lading over its own and other roads to any part of the world, though passengers may rarely, if ever pass over its line, is a public use and a public necessity in the sense of the eminent domain laws, and, as such, it is entitled to exercise the power of eminent domain. (Post, pp. 117-122.) Cases cited and approved: State v. Martin, 51 Kan., 462; Reisner v. Strong, 24 Kan., 410. Case cited and distinguished: Freight Co. v. Memphis, 4 Cold., 419. 14. SAME.. Terms “public use” are flexible under eminent domain laws. The terms “public use” are flexible, and vary and expand with the growing needs of a more complex social order, and what would be a public use in the sense of the eminent domain laws is illustrated. (Post, pp. 122, 123.) Cases cited and approved: Ryan v. Terminal Co., 102 Tenn., Ill; Stewart v. Railroad (Minn.), 68 N. W., 208, 33 L. R. A., 427. 15. SAME. Deviation of railroad front charter route is permissible, when; condemnation, under eminent domain laws, for deviated route. Deviations in-the construction of a railroad from the route designated in its charter are allowed according to the necessities of the road, the physical surroundings, and other circumstances entering into railroad building, such as the prevention of the destruction of mill property, the making, of proper grade crossings, the minimization of impediment to travel, and the like, and condemnation proceedings under the eminent domain laws for the deviated route are not void, because of the deviation. (Post, pp. 123-126.) Case cited and approved: Railroad v. Campbell, 109 Tenn., 667. 16. SAME. Injunction against railroad improperly occupying a public road, but condemnation proceedings are not affected thereby. A railroad improperly occupying a public road, by running longi'tudinally on it, may be enjoined in a proper proceeding, but such occupation is immaterial in a condemnation proceeding to appropriate the land of a third person situated at a different place. (Post, p. 126.) Code cited: Sec. 1879 (S.). 17. EMINENT DOMAIN. Quantity of land to be taken is left to the jury, when. The amount of land to be taken in a condemnation proceeding is left to the determination of the jury, even if the court could itself determine the amount to be taken, where the order appointing the jury directs that in estimating and assessing the damages the jury will give the cash value of the ground, and set apart by metes and. bounds a sufficient quantity of land for the purposes intended, not exceeding the amount prayed for in the petition, and the jury in its' report set aside one hundred feet, which was the amount asked for in the petition. (Post, pp. 126, 127.) 18. SAME. Writ of possession may be awarded at a term subsequent to the confirmation of the jury’s report. Where in condemnation proceedings the court fails to award the writ of possession at. the term at which the report of the jury of view is confirmed, it can award such, writ at a subsequent term. (Post, p. 127.) 19. SAME. Same. Writ of possession awarded by supreme court, or cause remanded for that purpose. In such case, if the court below has lost the power to award the writ of possession.' the supreme court will either award the writ or remand the cause to the court below for that purpose, where the condemnation is proper. (Post, p. 128.) - SO. CORPORATIONS. Railroad does not forfeit charter by sus pension, where there is no abandonment. A railroad corporation -does not forfeit its charter rights by suspension of work and operations for a number of years, where the project is not abandoned, but the contemplated road is extended and built as soon as the funds are procured.' (Post, pp. 128, 129.).
113 Tenn. 142City of Memphis v. Hastings (1904)
1. EMINENT DOMAIN. May be exercised by city for parks, park ' purposes, and parkways beyond its limits, under statute so providing; case in judgment. Under the statute (Acts 1879, ch. 11) incorporating the city of Memphis as a taxing .district, and providing (in sec. 20) that private property within the limits thereof may he taken for public use, and under an amendatory statute (Acts 1899, ch. 142, secs. 2 and 5) empowering such city to purchase or acquire by condemnation- land for parks, park purposes, and parkways connecting said city and parks, or connecting parks with each other, either within or without the limits of such city, but not more than ten miles beyond such limits, the city of Memphis is authorized and empowered to condemn, in accordance with the law, private property without and beyond its limits and within ten miles thereof, for a way or boulevard running between and connecting its parks situate beyond its limits. (Post, pp. 145-154.) Acts cited and construed: 1879, ch. 11, sec. 20; 1899, ch. 142, secs. 2 and 5. Cases cited and approved: Newman v. Ashe, 9 Bax., 380; Thompson v. Moran, 44 Mich., 605; Warner v. Gunnison, 31 Pac., 238; Houghton v. Copper Co., 57 Mich., 547; Lester v. Jackson, 69 Miss., 887; Chambers v. St. Louis, 29 Mo., 543; Hagood v. Hutton, 33 Mo., 244. S. SAME. Parks, park purposes, and parkways beyond a city’s limits are for a public use, and not merely for public convenience. The condemnation of private property or land under eminent domain laws for parks, park purposes, or parkways by a city without and beyond its limits is for- a public use, within the sense of the constitution, and not merely a public convenience. (Post, pp. 154-157.) Cases cited and approved: Park Commissioners v. Telegraph Co., 103 Ill., 33; United States v. Cooper, 20 D.'C., 104; Shoemaker v. United States, 147 U. S., 282; United States v. Railroad, 160 U. S., 668; Rowan v. Portland,. 47 Ky. (8 B. Mon.), 232; St. Louis Co. v. Griswold, 58 Mo., 175;.In re Mayor, 99 N. Y.,’569; In re Central Park Com., 63 Barb., 282; People v. Solamon, 51 Ill., 37; Poster v. Commissioners, 133 Mass., 321; Commissioners v. Henry, 38 Minn., 266; Commissioners v. Armstrong, 45 N. Y., 234; In re Commissioners, 52 N. Y., 137; In re Commissioners, 50 N Y., 493; In re Commissioners, 69 Barb., 282; Root’s Case, 77 Pa. St., 276. 3. SAME. Statute must provide" compensation, and the manner of enforcing same. Legislation conferring the right of eminent domain to take private property for public use is not valid and constitutional, unless just compensation is provided for, and the mode and manner of ascertaining and enforcing the same is fixed and established. (Post, p. 157.) Constitution cited and construed: Art. 1, sec. 21. Case cited and approved: Water Co. v. Scott, 3 Cates, 321. 4. SAME. Same. Statute providing for condemnation in accordance with existing laws is valid, when; case in judgment. A statute (Acts 1879, ch. 11, sec. 20) providing that “private property . . . may he taken for public use in the manner now provided by law for the application of private property to public use,” amended by a statute (Acts 1899, eh. 142, sec. 2) conferring “the power of eminent domain” and providing that “the proceedings for the exercise of this power of condemnation shall be the same as that now provided by law for the taking of private property for public use,” incorporates into itself the general statutes of the State providing for the condemnation of private property for public uses as fully as though they had been specifically designated by proper reference, and is valid in making provision for just compensation, where the existing statutes for the condemnation of private property for public use afford the landowner an ample remedy to receive just compensation for the land taken. (Post, pp. 151, 157-162.) Code cited and construed: Secs. 1844, 1845, 1846, 1849, 1856, 1857, 1859, 1865, 1866 (S.); secs. 1549, 1550, 1551, 1554, 1561, 1562, 1564, 1570, 1571 (M. &' V.); secs. 1325, 1326, 1327, 1330, 1337, 1338, 1340, 1346, 1347 (T. & S. and 1858). Acts cited and construed:' 1879, ch. 11, sec. 20; 1899, ch. 142, sec. 2. . 5. STATUTES. Title authorizing parks covers body of act authorizing parks and parkways or boulevards connecting parks. A statute whose title authorizes and empowers cities to acquire, improve, and maintain parks, may in its body, authorize the acquisition or condemnation of land for parkways or boulevards extending through the country and connecting parks with each other, for such provision is germane to the title, and within the general purview thereof. Moreover, such parkways and boulevards connecting parks with each other constitute and become parts of the parks themselves. (Post, pp. 162-165.) Acts cited and construed: 1879, ch. 'll; 1899, ch. 142. Constitution construed, but not cited: Art. 2, sec. 17. Cases cited and approved: In re Mayor, 34 Hun, 444; People, ex rel., v. Seaver & Green, 52 How., 440; In re Mayor, 99 N. Y., 576. 6. SAME. Title authorizing public parks covers body of act authorizing a park commission, and election of park commissioners. A statute whose title authorizes the acquisition, improvement, and maintenance of public parks, may in its body, authorize the creation of a park commission and the election of park commissioners; for such provision is> clearly within the purview of such title, as a park commission is a useful and almost indispensable instrumentality for the maintenance and supervision of a system of public parks.' (Post, pp. 165-166,) Acts cited and construed: 1879, ch. 11; 1899, ch. 142. Constitution construed, but not cited: Art. 2, sec. 17. 7. SAME. Title of amendatory act reciting title of act to be amended need not enlarge its scope, when. An amendatory act, whose caption merely recites the title of the original act, without enlarging its scope, is constitutional and valid, provided its purview is germane to the title of the original act. (Post, p. 166.) Constitution construed, hut not cited: Art. 2, sec. 17. Case cited and approved: Hyman v. State, 87 Tenn., 109.
113 Tenn. 167Foppiano v. Speed (1904)
1. PRIVILEGE TAXES. Backed assessed or reassessed by clerk of the county court; term “assess’’and the manner of assessing; defined. The word “assess,” as used in statutes in connection with privilege taxes, means simply the listing of the names of the persons exercising privileges taxed, with the designation of the privilege exercised, with or without an extension of the amount fixed by statute for the exercise of such particular privilege; and in this sense, the clerk of the county court may “back assess or reassess” privilege, taxes that have escaped listing and collection. {Post, pp. 170-172.) Acts cited and construed: 1903, ch. 258, secs. 30, 31, and 46; 1901, ch. 174, sec. 31; 1899, ch. 435, sec. 32. 2. SAME. Same. But back assessment or reassessment is not prerequisite to collection by distress warrant or otherwise. But such hack assessment or reassessment of privilege taxes is not prerequisite to the collection thereof or the issuance of a distress warrant therefor, since the statute fixes the amount, and makes it the duty of all persons exercising privileges to come forward and' obtain a license from the clerk of the county court, and pay therefor the amount fixed by law. {Post, p. 172.) Acts cited and construed: 1903, ch. 258, sec. 28; 1903, ch. 257, sec. 14; 1901, ch. 128, sec-. 18; 1901, ch. 174, secs. 28 and 48; 1899, ch. 435, secs. 29 and 31; 1899, ch. 432, sec. 15. 3. SAME. For three years back may be collected by distress warrant or otherwise by clerk oí the county court. It is the duty of the clerk of the county' court to enforce collection of privilege taxes by distress warrant or otherwise against persons exercising taxed privileges without paying the amount as fixed and required by statute; but not for more than three years back. (Post,'pp, 172, 173.) Acts cited and construed; 1903, ch. 258, sec. 28; 1903, ch. 257, see. 14; 1901, ch. Í28, sec. 18; 1901, ch. 174, secs. 28 and 48; 1899, ch. 435, secs. 29 and 31; 1899, ch. 432, sec. 15. 4. SAME. Sale of intoxicating liquors on a steamboat east of the center of the Mississippi river within the jurisdictional limits of Tennessee subjects seller to privilege tax. The center of the Mississippi river is the line between the States of Tennessee and Arkansas, and for exercising the privilege of selling intoxicating liquors on a steamboat, while within the jurisdictional limits of Tennessee as thus defined, a liability is incurred for the privilege tax fixed by statute. (Post, p. 173.) Acts cited and construed; 1903, ch. 257, p. 615; 1901, eh. 128, p. 214; 1899, ch. 432, p. 1032. Cases cited and approved: Moss v. Gibbs, 10 Heis., 283; Stock-ley v. Cissna, 119 Fed., 821, 56 C. C. A., 324; Missouri v. Kentucky, 11 Wall., 395. 5. SAME. Same. "Retail of intoxicating liquors on a steamboat engaged in interstate commerce is not itself interstate commerce, and subjects seller to privilege tax. The retail of intoxicating liquors on a steamboat engaged in interstate commerce, while within the jurisdictional limits of Tennessee, is not itself interstate commerce, and subjects the seller to the privilege tax fixed by statute for such sales. (Post, p. 173.) Acts cited and .construed; 1903, ch. 257, p. 615; 1901, ch. 128, p. 214; 1899, eh. 432, p. 1032. Case cited and approved: Harrell v. Speed, 6 Cates, 224.
113 Tenn. 174Gotten v. Gowen (1904)
ELECTIONS. Power to hold, vested exclusively in commissioners of registration. The authority to appoint officers, judges and clerks to hold elections in this State is now by statute conferred exclusively upon the commissioners-of registration in the respective counties of the State, and an election for- the incorporation of a town after such statute went into effect was properly held by the commissioners of registration, instead of by the sheriff. Statute cited and construed: Acts of 1897,-ch. 16. Cases cited and distinguished: Woodbury v. Brown, 101 Tenn., 707; State v. Frost, 103 Tenn., 685.
113 Tenn. 177Connors v. Shelby County (1904)
1. CONSTABLES. Compensation, of, for attending upon grand jury. A constable appointed by the county court to wait upon the grand jury is entitled to a per diem of two dollars for each day on which he performs any bona fide services for that body, such as serving subpoenas,' whether the grand jury is actually in session or has temporarily adjourned. 2. SAME. Same. Per diem covers all services. Semble. The per diem allowance, stated in the first headnote, is intended to compensate the constable for all services which he may be required to perform while in attendance on the grand jury, including the service of subpoenas placed in his hands. Case cited: Brantley v. State, 4 Bax., 307.
113 Tenn. 182Ryther v. Blackwell (1904)
1. HOMESTEAD. Minors left here by parent going to another State are entitled to the homestead. Where a widower and father entitled to a homestead in his land leaves the State, taking with him two of his minor children, and leaving two minor children here, the minor children so left are entitled to the homestead as against a purchaser at an execution sale, or as against those claiming under such purchaser. 'Code cited and construed: Secs. 3797 and 4770 (S.); secs. 2934 and 3755 (M. & Y.); secs. 2112 and 3042 (T. & S. and 1858). Acts cited and construed: 1867-68, ch.- 85; 1870-71, ch. 71. Constitution cited: Art. 11, sec. 11. Cases cited, distinguished and approved: Hicks v. Pepper, 1 Bax., 42; Lankford v. Lewis, 9 Bax., 127; 'Carrigan v. Rowell, 96 Tenn., ■185; Parris v. Sipes, 99 Tenn., 298. 2. SAME. Same. Those entitled may recover, though others joined in suit are not entitled to recover. In a suit by four minor children to recover homestead, where two of them are not entitled to same, because they were taken with him by their father from the State, the other two left behind ma.y maintain the suit and recover the homestead to which they are entitled.
113 Tenn. 189Walt v. Walt (1904)
1. HUSBAND AND WIFE. Resulting trust arises in favor- of wife, where they sell her separate estate, and the husband bids in the land for unpaid purchase money, and takes deed to himself. Where the husband makes postnuptial settlement upon his wife, by which he relinquishes to her all of his interest in certain land of hers, and settles it upon her to her sole and separate use, and afterwards they sell and convey the land and take from the purchaser a deed of trust to secure the purchase money, and at a sale thereunder, the husband bids in the land for the balance of the unpaid purchase money, and takes a conveyance in his own name, the title thereby acquired is held by hita, not for himself, but as trustee for his wife, in whose favor a resulting trust at once arises. (Post, pp. 192-196.) Cases cited and approved: Sampley v. Watson, 43 Ala., 377; Garner v. Graves, 54 Ind., 188; Burks v. Loggins, 39 Miss., 462; Williams v. Green, 68 N. C., 183; Hall v. Wortman, 123 Mich., 304; Trimble v. Reis, 37 Pa., 448; Rousseau v. Flowers, 6 Ky. Law Rep., 298. S. SAME. Same. Land bought back for the purchase money again becomes subject to the deed of settlement under which held, when. Where the husband, by a postnuptial settlement upon his wife, relinquishes to her all of his interest in her land, and settles it upon her to her sole and separate use, with a provision for its exchange, or sale and reinvestment, and the property so acquired by exchange or sale and reinvestment to be held subject to all the limitations and trusts prescribed in the deed of settlement; and afterwards they sell and convey the land and take from the purchaser a deed of trust to secure the purchase money, and at a sale thereunder, the husband bids in the land for the balance of the unpaid purchase money, and takes the conveyance in his own name, a-resulting trust arises in favor of the wife, and the land comes back under the provisions of the deed of settlement. {Post, pp. 192-197.) 3. SAME. Husband treated as trustee for wife in his dealings with her separate estate, when. In dealing with the wife’s separate estate, the husband, in the absence of clear testimony to the contrary, must be treated as her trustee, and his conduct must be measured as that of a trustee. {Post, p. 195.) Cases cited and approved: Young v. Jones, 9 Hum., 551, 555; Bottoms v. Corley, 5 Heis., 5, 10; Lishey v. Lishey, 2 Tenn. Chy., 5, 6, and citations; Rich v. Cockrell, 9 Yes., 375; Gore v. Knight, 2 Vern., 535; Hughes v. Wells, 9 Hare, 765; Darkin v. Darkin, 17 Beav., 578'. 4. TRUSTS AND TRUSTEES. Trust ceases when purppse is completed; and trustee’s heirs are not then necessary parties to suit to recover the property. Where a trust created for a married woman by deed of settle-menthas served and completed its purpose in the protection of the wife’s estate during the life of her husband, it will become inoperative upon the husband’s death, and the surviving wife may enforce her rights in the land without making the heirs of the deceased trustee parties to the suit. {Post, p. 197.) 5. HUSBAND AND WIPE. 'Husband’s deed of settlement relinquishing his interest to her land, etc., is effective without her joinder.' The husband’s deed relinquishing all of his interest in his wife’s land, creating a separate therein, and a trust for her benefit, is effective without the joinder of "the wife in the operative words of the deed. {Post, pp. 197, 198.) Case cited and approved: Poindexter v. Rawlings, 106 Tenn., 97. 6. HOMESTEAD. Actual occupancy of land is not essential. It is not essential either to the acquisition or retention of a homestead that there should he actual occupancy of the land. (Post, pp, 198, 199.) Acts cited and construed: 1879, ch. 171. Cases cited and approved: Rhea v. Rhea, 15 Lea, 528; Howell y. Jones, 91 Tenn., 402; Cowan v. Carson, 101 Tenn., 523; Bris-coe v. Vaughn, 103 Tenn., 307; Moses v. Groner, 106 Tenn., 121. 7. SAME. Statutes are to he liberally construed in its favor. Homestead statutes are to he liberally construed in favor of the homestead right. (Post, p. 199.) Cases cited and approved: White v. Fulghum, 87 Tenn., 281; Loftis v. Loftis, 94 Tenn., 232. 8. SAME. Presumption against waiver or abandonment. There is a strong presumption against any waiver or abandonment of the homestead right. (Post, p. 199.) Case cited and approved: Galyon v. Gilmore, 93 Tenn., 671.
113 Tenn. 200Reed v. Estes (1904)
1.MECHANIC'S RIEN. Does not attach to property oí lessor for improvements made under contract with lessee alone. Where the lessor allowed the lessee to make certain improvements on the leased premises, and agreed to, and did, contribute a certain sum towards the cost thereof, the contractor making the improvements under -a contract with the lessee alone, has no lien upon the property of the lessor owner. Code cited and construed: Sec. 3531 (S.); secs. 2739, 2740 (M. & V.); sec. 1981a (T. & S.); sec. 1981 (1858). 3. LEASE. Construction of restriction in, against underletting. Case in judgment. The lease mentioned in the first headnote provided that the leased premises should be occupied and used as a saloon and residence, and the lessee agreed that he would not underlet said premises without the consent of the lessor, and that “in case of underletting, without authority, this lease may be declared forfeited by the lessor at her option.” The contractor claimed a lien upon the entire property. • Held: 1. A lessor may contract against .both voluntary or involuntary assignments of the leased premises, or any part thereof, and provide for forfeiture, in case the restriction is violated. 2. Contracts in restraint of the sale or transfer of property, and providing for forfeitures, are not favored by law. 3. A restriction in a lease will not be enforced by forfeiture of the leasehold interest unless the case is brought clearly within the specified restrictions provided in the lease. 4. The restriction in this lease merely applies to a voluntary un-derletting, and not to an involuntary sale or assignment of the leased premises. 5. The lien of the contractor attached only to the leasehold estate, and the purchaser under this proceeding brought to enforce said lien will acquire only such estate therein as was held by the lessee subject to the terms and provisions of the lease.
113 Tenn. 205Railroad Co. v. Baldwin (1904)
1. BAGGAGE. Husband’s suit for loss of wife’s baggage is not affected by bis traveling without paying fare, when. The husband’s right to sue for the loss of his wife’s baggage is not affected by the fact that he was traveling with her without a ticket and without paying fare, through the inadvertence of the conductor in failing to call for his fare, where the baggage was carried on a ticket purchased by him for his wife. (Post, p. 208.) 3. SAME.' Husband’s suit for loss of wife’s baggage is not'.affec- , ted by her joinder with him as plaintiff, when. The husband’s right to recover for the loss of his wife’s baggage, not her separate estate, is not affected by her joinder with him- ' as plaintiff in the suit. (Post, p. 208.) Case cited and approved: Coward v. Railroad, 16 Lea, 227. 3. SAME. Includes what; but cannot be defined. It is obviously impracticable and impossible to define with accuracy what the term “baggage” includes. It certainly includes articles of necessity and personal convenience, usually carried by passengers' for their personal use, and what these may be will very much depend upon the habits, taste, resources, condition, and station of the passenger, either with reference to the immediate necessities or the ultimate purpose of the journey. (Post, pp. 210-217.) Cases cited and approved: Bowmar .v. Maxwell,'9 Hum., 625; Johnson v. Stone, 11 Hum., 420; Coward v. Railroad, 16 Lea, 225; Railroad v. Fraloff,100 U. S., 24; Marcow v. Railroad, L. R., 6 Q. B., 612; Runyan v. Railroad, (N. J. Err. & App.), 41 Atl., 367, 43 L. R. A., 284-287, 68 Am. St. Rep., 711; Railroad v. Matthews (Ky.), 72 S. W., 302, 60 L. R. A., 846-848; Oakes v. Railroad, 26 Pac„ 230, 12 L. R. A., 318, 23 Am. St. Rep., 126; Heis-clisohn v. Packet Co., 34 N. Y. Super. Ct., 521; Connolly v. Warren, 106 Mass., 146; Railroad v.. Hard way, 17 Ill. App., 321; Mauritz v. Railroad (C. C.), 23 Fed., 765; Oumitt v. Hanshaw, 35 Vt, 605; Parmalee v. Fisher, 22 Ill., 212; Railroad v. Boyce, 73 Ill., 510; Bennett v. Dutton, 10 N. H., 481; Hawkins y. Hoffman, 6 Hill, 586; Peixotti y. McLaughlin, 1 Strob., 468; Logan v. Railroad, 11 Rob. (La.), 24; Cole y. Goodwin, 19 Wend., 251; Powell y. Myers, 26 Wend., 591; Transportation Co., y. Burk, 13 Wend., 611; Hollister y. Nowlen, 19 Wend., 234; Railroad v. Kennedy, 41 Miss., 679; Doyle v. Kiser, 6 Xnd., 242; Pardee v. Drew, 25 Wend., 459; Pettegrew v. Barnum, 11 Md., 449. 4. SAME. For “the purpose of the journey” includes what; but not household goods. Baggage for “the purpose of the journey” does not include household goods, where “the purpose of the journey” is to “moye” or change the place of abode, but the scope of the expression is indicated by the cases allowing the sportsman, journeying for sport, to take his gun case or fishing apparatus; an artist, his easel, when on a sketching tour; a surgeon, his surgical instruments, when traveling with troops, under such circumstances that he may use them at any time; a student, his books, when in pursuit of study. '(Post, pp. 217, 218.) Cases cited and approved: Hawkins v. Hoffman, 6 Hill, 586; Merrill v. Grinnell, 30 N. Y., 619; Railroad v. Swift, 12 Wall., 262; Hopkins v. Westcott, 6 Blatchf., 64. 5. SAME. Of a female passenger may include the clothes of herself, children, and husband, fancy work, ornaments, key, etc. The baggage of a female passenger, carried in her trunk, may include her own clothing and that of her children, fancy work and miscellaneous ornaments, sayings bank and contents, a zither key, and the underwear of her husband traveling with her; and for a loss of such baggage there may be a recovery against the common carrier. 6., SAME. Oí a married woman, does not include household goods though moving with her husband. The baggage of a married woman does not include household goods carried in her trunk, and there can be no recovery for their loss, though she and her husband were moving from one State to another, especially where the common carrier had no notice that such goods were in the trunk transported as baggage. 7. COSTS. Taxed to appellant, though judgment is modified by-reducing amount, where the proper amount was not tendered in court below. The appellant appealing from a judgment in' an action at law will be taxed with all the costs, where the judgment for the loss of baggage is modified on appeal by reducing the amount thereof, and where no tender was made in the court below of the amount of the appellant’s legal liability. (Post, p. 218.)
113 Tenn. 220Lowry v. State (1904)
1. LARCENY. No variance where indictment for larceny charging1 ownership of property in two partners and proof shows three. Where an indictment charged that the ownership of the property stolen was in a firm composed of two persons and the proof showed that it belonged to and was in the possession of another firm composed of the same persons and another, there is no material variance between the indictment and the proof. Code cited and construed: Sec. 7090 (S.); sec. 5956 (M. & V.); sec 5127 (1858). 2. SAME. Ownership of whiskey in bonded warehouse properly laid in owner. Whiskey in a bonded warehouse is in the joint custody of the storekeeper thereof and the owner, and there is no material variance between an indictment charging larceny of the whiskey averred to be the property of a firm and the proof showing it was stolen from a bonded warehouse. Case cited and approved: U. S. v. Witten, 148 XT. S., 76. 3. SAME. Ownership may be laid in agent of owner. Where an indictment charges the larceny of property from the owner, proof of the taking from the agent of the owner is sufficient to sustain the indictment. Cases cited and approved: Renfro v. State, 6 Bax., 517, 520; Morehead v. State, 9 Humph., 635; Hite v. State, 9 Yerg., 198.
113 Tenn. 224Harrell v. Speed (1904)
1. INTOXICATING LIQUORS. Their sale on boat engaged in interstate commerce while in jurisdiction of this state subjects seller to privilege tax. A barkeeper running a bar under a’ lease and selling intoxicating liquors on a ferryboat, while at its landing within the jurisdiction of this State, is subject to the privilege tax imposed by statute upon persons selling liquors on steamboats, vessels, or other water crafts, although such ferryboat belongs to a corporation duly created and existing under the laws of another State where its situs is. and is used in plying between a port in that State and one in this State. Acts cited and construed 1903, ch. 257, sec. 4, p. 615; act of congress of August 8th, 1890, 26 Stat., 313, ch. 728, known as the “Wilson Bill,” Cases cited and approved: License Cases, 5 How., 504; Barte-meyer v. Iowa, 18 Wall., 129; Boston Beer Co. v. Massachusetts, 97 U. S. 25; Poster v. Kansas, 112 U. S., 201; Mugler v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., 1; Eilenbecker v. Plymouth County, 134 U. S., 31; Bowman v. Railroad, 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100; Wilkerson v. Rah. rer, 140 U. S., 561; Rhodes v. Iowa, 170 U. S., 412; Vanee v. Vandercock Co., 170 U. S., 468. Case cited and disapproved: State v. Prappart, 31 La. Ann., 340. 2. SAME. Same. Imposition of privilege tax for its sale is within the police powers of the State. The imposition of privilege tax for selling intoxicating liquors on steamboats, which are engaged in interstate commerce, while at landings within the jurisdiction of this State, is distinctly within the police powers of the State. (/W,//. 229, 230.) Cases cited and approved: License Cases, 5 How., 504; Barte-meyer v. Iowa, 18 Wall., 129; Boston Beer Co. v. Massachusetts, 97 U. S., 25; Foster v. Kansas, 112 U. 201; Mugler v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., 1; Eilen-becker v. Plymouth County, 134 U. S., 31. 3. CORPORATION. Taxation in the State of its existence or where the property rests. Steamboats belonging to a corporation and used in transporting freight and passengers between States can be taxed in the State under the laws of which the corporation is created and exists, at the home port of the company, and at their situs when at rest. (Post, pp. 227, 228.) Case cited and approved: Transportation Co. v. Wheeling, 99 U. S., 273. 4. SAME. Of other States are not taxable here on interstate commerce business, when. This State can neither impose a tax upon the capital stock of a corporation of another State, nor upon its boats engaged in interstate commerce, and making only temporary landings in this State; nor a privilege tax for carrying on the business of such interstate commerce. (Post, p. 228.) Cases cited and approved: Ferry Co. v. Pennsylvania, 114 U. S., 196; St. Louis v. Ferry Co., 11 Wall., 423; Henderson v. New York, 92 U. S., 259. 5. INTOXICATING LIQUORS. Their importation or sale is subject to State legislation. The importation or sale of liquors, whether in the original package or after they are broken, is subject to the legislation of the State or Territory into which they are imported, or in which they are stored. (Post, pp. 228-235.) Acts cited and construed: Act of congress of August 8, 1890. 26 Stat., 313, ch. 728, known as the “Wilson Bill.” Cases cited: Bowman v. Railroad, 125 U. S., 465; Leisy v. Hardin, 135 U. S., 100; Wilkerson v. Ráhrer, 140 U. S., 561; Rhodes v. Iowa, 170 U. S., 412; Vance v. Vandercock Co., 170 U. S., 468.
113 Tenn. 237Wilkerson v. Dennison (1904)
1. ACKNOWLEDGMENT. Privy examination of a married •woman taken before deputy, with, certificate made hy him in name of principal clerk of the county court, is valid. The acknowledgment and privy examination of a married woman properly taken before a deputy clerk of the county court, in the absence of her principal, where the certificate is made, by the deputy, in the name of the principal clerk of the county court, whose name is signed thereto by the deputy, though the deputy’s name nowhere appears in the certificate and is not attached to it, is valid. Code cited and construed: Secs. 3679, 3713, 5865, subsec. 4 (S.); secs. 2S19, 2825, 4826, subsec. 4 (M. & Y.); secs. 2012, 2039, 4050, subsec. 4 (T. & S. and 1858). Cases cited and approved: Tallbott v. Hooser, 12 Bush, 414; Triplett, etc., v. Gill., etc., 7 J. J. Marsh, 438; Commonwealth v. Arnold, 3 Litt., 316. 2. SAME. Acknowledgment before deputy clerk of the county court, with certificate in his own name, is valid. Acknowledgment or probate taken before a deputy clerk of the county court, with the certificate made and signed by him in his own name; without the name of his principal' appearing therein, is valid. {Post, pip. 239-242.) Cases cited and approved: Martin v. Porter, 4 Heis., 413; Beaumont v. Yeatman, 8 Hum., 542; Tipton v. Jones, 10 Heis., 565. 3. DEPUTIES. Clerks of county courts may appoint deputies clothed with all the powers of themselves. Clerks of county courts are authorized to appoint' deputies who are vested with all the powers and authority of the principal clerks, and whose acts are the acts of the principal clerks by their lawfully appointed agents. (Post, p. 239.) Code cited and construed: Secs. 3679, 3713, 5865, subsec. 4 (S.); secs. 2819, 2825, 4826, subsec. 4 (M. & V.); secs. 2012, 2039, 4050, subsec. 4 (T. & S. and 1858).
113 Tenn. 246Fawcett v. Railway Co. (1904)
1. PAUPER OATH. Administrator, who is a nonresident, cannot prosecute a suit upon. A nonresident of this State, although qualified within the State as an administrator, can not prosecute a suit in the courts of this State in forma pauper/s. {Post, pp. 247, 248.) Code cited and construed: Sec. 4928 (S.); sec. 3192 (1858). Statutes cited and construed: Acts of 1897, ch. 133; Acts of 1901, ch. 126. S. SAME. Cannot he taken before foreign notary. There is no statute of this State conferring upon a foreign notary public power, to administer a pauper oath, and in the absence of a statute authorizing it, the administration of a pauper oath to one desiring to sue in forma pauperis, by a foreign notary, is of no validity, {Post, pp. 248-251.) Code cited and construed: Secs. 3197, 5561 (S.). Cases cited: Davis v. Dyer, 5 Sneed, 679; McPhatridge v. Gregg, 4 Cold., 324; Andrews v. Page, 2 Heisk., 534; Campbell v. Boul-ton, 3 Bax., 354; Iron Co. v. Smith, 86 Tenn., 45; Phipps v. Burnett, 96 Tenn., 175.
113 Tenn. 252Childress v. Fraternal Union of America (1904)
1. INSURANCE. Clause in contract of against suicide is valid. A clause in an insurance contract providing that only a propor-ciónate part of the insurance shall he paid in case of the suicide of the insured is valid and binding upon the beneficiary. Cases cited' and approved: Supreme Lodge v. La Malta, 85 Tenn., 157; Clement, Ex’r, v. Knights of Pythias, 113 Tenn., 40; Bigelow v. Ins.' Co., 93" U. S., 284. 2. SAME. Construction of policy containing independent "suicide” and “incontestable” clauses. The insurance policy sued on contained a clause making the same incontestable after the expiration of two years, except as to agreements, representations and warranties in relation to age, occupation and use of alcohol; and also a clause reducing the indemnity in case of suicide to one-third of the amount otherwise due. Suit was instituted upon the policy by the widow of the insured as the beneficiary named in the policy. The proof showed that the insured committed suicide more than two years after the policy was issued. It was contended by the beneficiary that the "incontestable” clause annulled the suicide elause after the expiration of two years. Held: ■ (1) The clauses mentioned are separate and independent, and in no wise affect each other. (2) The beneficiary can not recover more than one-third the policy in case of suicide, although death occurred after the expiration of two years and the policy had become incontestable.
113 Tenn. 257Edwards v. Stacey (1904)
1. MARRIED WOMEN. Disaffirming contract to purchase land cannot recover part" of price paid. It is settled law in this State that a married woman electing to rely upon her disability to evade the performance of her contract to purchase land which has been conveyed to her, can not recover partial payments which she has made on the price agreed to be paid for the land. Casé cited and approved: Jackson v. Rutledge, 3 Lea, 626. 2. SAME. Same. Rule stated applies to executory contracts. The rule stated in the first headnote applies to executory contracts where a valid contract to make a conveyance is executed by the vendor, as well as to cases where a conveyance of the title has been made.
113 Tenn. 261Claiborne v. State (1904)
BURGLARY. What constitutes a burglarious breaking. A burglarious breaking may consist of any such material alteration, the result of force applied with a felonious intent, in the status of the premises entered as is necessary to effect an entrance therein; so where a window of a dwelling house left partly open does not afford an aperture sufficient to admit the body of a person, but the opening is enlarged by further raising the window to an extent necessary to permit ah entrance into the house, such act constitutes a breaking sufficient to sustain a conviction of burgiary. Cases cited: Bass v. State, 1 Lea, 444; Webb v. Com., 35 S. W., 1038; Knotts v. State (Tex. Cr. App.), 32 S. W., 532; Marshall v. State, 94 Ga., 589; Miller v. State, 77 Ala., 41; Donahue v. State, 36 Ala., 281; State v. Willis, 52 N. C., 190; State v. Powell, 61 Kan., 81; People v. Dupree, 98 Mich., 96; Rex v. Russell, 2 Eng. Cr. Cas., 377; King v.' Hymens, 7 C. & P., 441; King v. Hall, Russ. & Ry., 461.
113 Tenn. 266Louisville & Nashville Railroad v. Martin (1904)
1. CONTRIBUTORY NEGLIGENCE. Mitigates damages as a matter of law, and not merely in discretion of jury. Contributory negligence as a matter of law must go in mitigation of damages, and the jury is not' to be left to the exercise of any discretion in determining whether it may or may not be so considered, and the charge of the court that “the negligence of the deceased may be considered by the jury in mitigation of damages” contains affirmative and prejudicial error. (Post, pp. 275-279.) Cases cited and approved: Railroad v. Nowlin, 1 Lea, 523; Patton v. Railroad, 89 Tenn., 370; Postal Telegraph-Cable Co. v. Zopii, 9.3 Tenn., 373; Railroad v. Satterwhite, 4 Cates, 185; Byrne v. Railroad, 9 C. C. A., 679. Cases cited, distinguished and disapproved: Railroad v. Burlce, 6 Cold.; 52; Railroad v. Smith, 6 Heis., 178, 179; Railroad v. R.obertson, 9 Heis., 282; Hill v. Railroad, 9 Heis., 826; Railroad v. Walker, 11 Heis., 386; Railroad v. Connor, 2 Bax., 388; Railroad v. Fain, 12 Lea, 38; Dush v. Fitzhugh, 2 Lea, 308, 309; Railroad v. Humphreys, 12 Lea, 208; Railroad v. Flemming, 14 Lea, 126; Railroad v. Foster, 88 Tenn., 678; Railroad v. Wallace, 90’Tenn., 62; Turnpike v.'-Yates; 108 Tenn., 437. 3. SAME. Same. Extenuated by circumstances; erroneous charge becomes harmless by remittitur. Contributory negligence is extenuated in a large degree where a railroad flagman in the discharge of his duties walks on the railroad track where it is safest and customary to walk, the other places being more dangerous and inaccessible; and the. court’s failure to charge correctly on the duty of the jury to mitigate the damages on account of the contributory negligence of the deceased is not reversible error, where the defendant receives the full benefit of such correct charge by a remittitur entered upon the verdict. (Post; pp, 273, 274, 279, 280.) See headnote 8. 3. CITY ORDINANCES. Violation is negligence per se giving right of action for injuries received as a proximate cause. The violation of a city ordinance prohibiting a greater rate of speed than six miles an hour for steam railroad engines and cars within the city limits is negligence per se, and if it be the proximate cause of an action or injury, it gives a right of action for the injuries. (Post, pp. 272, 280-282.) Case cited, distinguished, and approved: Queen v. Coal Co., 95 Tenn., 458. 4. SAME. Same. Railroad flagman at crossing is entitled to benefit of ordinance limiting speed of engines and cars. A railroad flagman stationed at a crossing in obedience to a city ordinance, charged with the duty of observing the approach of trains and in the performance of duties for the benefit of the general public is entitled to the benefit of a city ordinance forbidding the operation of railroad engines and cars within the corporate limits at a speed exceeding six miles an hour. (Post, pp. 280-282.) Case cited and approved: Williford v. Memphis Street Railway Co., MS. 5. FELLOW SERVANTS. Privity of contract with principal is necessary to make fellow servant doctrine applicable. A flagman employed by a railroad where it and two other roads cross the same street, whose duty under instructions from his employer was to flag for the other two railroads in pursuance of an agreement between such employer and the other roads, which agreement was unknown to the flagman, is not a servant of the other two railroads, .and the fellow servant doctrine is not applicable as to such roads for want of privity of contract. (Post, pp. 282-285.) Cases cited and approved: Zeigler.v. Railroad, 52 Conn., -; Railroad v. Hardy, 34 Atl., 987; Railroad v. Ferch, 44 S. W., 317; Swanson v. Railroad, 3 Exchequer Die., 341. 6. SAME. Railroad flagman at crossing is not fellow servant of crew on a passing train. A railroad flagman employed and stationed at a crossing to warn the public of approaching trains is not a fellow servant of the crew on a passing train, for the reason that he is in a different department of the railroad service. (Post, pp. 285, 286.) 7. RAILROADS. Liability is absolute, where statutory precautions are applicable and are not complied with. A railroad’s liability for killing a person upon its track by a backing engine and tender not engaged in switching within its yards is absolute. The statutory precautions apply in such a case and the manner of running the engine and tender precludes the possibility of observance, but does not excuse it. (Post, pp. 286-287.) Cases cited and approved: Railroad v. "Wilson, 90 Tenn., 271; Railroad v. Dies, 98 Tenn., 655. Case cited, distinguished, and approved: Clarkson Case, 28 Eng. & Am. Railroad Cases, 457. 8. CHARGE OF COURT. Erroneous, if not prejudicial, is not reversible error. Court’s failure to charge the. statutory precautions where they are applicable is error, but not reversible error where not prejudicial to the appellant. (Post, p. 287.) See headnote 2-
113 Tenn. 288Taylor v. Skiles (1904)
1. TRUST DEED. Effect will be given to intention of maker to provide personal indemnity to his surety, not to secure debt. A trust deed, executed by a bankrupt after-composition with his creditors, conveying property to a trustee, directing a sale of the same, and that the proceeds be paid to designated persons in satisfaction of the amount that they were bound for on certain notes executed by the maker of the trust deed prior to his bankruptcy, will be construed to give protection only to the. parties named, and not to secure the debt evidenced ■ by said notes, where it is clear from the instrument itself and the surrounding circumstances that it was the intention of the maker to furnish personal indemnity to his sureties and ' not to secure the debt. (Post, pp. 292, 293.) 2. BANKRUPT. Effect of confirmation of composition with creditors. An order of a bankrupt court confirming a composition made by a bankrupt with his creditors operates in itself, not only as a discharge of the bankrupt, but as an extinguishment of the claims of all creditors agreeing to the composition. ’ (Post, pp. 293, 294.) Cases cited and approved: Evans v. Bell, 15 Lea, 569; Warren v. Whitney, 24 Me., 561; Stafford v. Bacon, 1 Hill (N. Y.), 532. 3. SAME. Subsequent promise by, to pay debt included in composition, is without consideration. While a subsequent promise will révive a debt discharged under insolvent or bankrupt laws, such promise made after composition and settlement between the bankrupt and his creditors is, as to a debt included in said composition, without consideration, and affords no cause of action. (Post, pp. 293, 294.) 4. TRUST DEED. Intended as personal indemnity to surety oí maker, not available to creditor, when. Where, after having made a composition and' settlement with his creditors, a bankrupt debtor gave personal indemnity to certain sureties on a debt, to one of his creditors who was a party to such composition, such creditor can not avail himself Of the indemnity. (Post, pp. 295-297.) Cases cited and approved: Hampton v. Phipps, 108 XT. S., 260; Taylor v. Bank, 87 Ky., 398; Leggett v. McClellan, 39 Ohio St., 624; Macklin v. Northern Bank of Ky., 83 Ky., 314. 5. SAME. Same. Cosurety not included in indemnity, no equity therein. A cosurety who was not included in the indemnity referred to in the first and fourth headnotes above, occupies the relation of a stranger to the maker of the trust deed, and has no right "to' participate in said indemnity or equity or equity therein. (Post, pp. 295-297.)
113 Tenn. 298State v. Unknown Heirs of Goldberg (1904)
1. CHANCERY PLEADING AND PRACTICE. Amendment by minute'entry treated as properly made. An amendment permitted to be made by a minute entry, correcting a date in an amended bill pointed out by the answer thereto, and treated as properly made in the future progress of the case, will b.e so treated by the supreme court upon appeal. (Post, pp. 301, 302.) 2. PRINCIPAL AND AGENT. Agent cannot buy deceased principal’s land at a tax sale and set up title in himself, when. The agent of a deceased landowner at the time of his death, and when the taxes were assessed, with the means of his • principal in his hands sufficient to pay the taxes when they accrued, and when the land in his charge was sold for the taxes, can not stand by and allow the property to be sold and buy it-in and set up a title in himself thus acquired. (Post, p. 302.) 3. ESCHEAT. Sale for taxes after escheat to State is unnecessary and invalid. ■ A sale of land for taxes after the same has escheated to the State is unnecessary and invalid. (Post, p. 302.) 4. SAME. Not defeated by will disposing of property as the law directs, which is equivalent to no will. A will directing testator’s property “to he disposed of as the law of the land directs” is not effective as a will; and the maker of such a will dies intestate, and if he leaves ño issue, nor relatives entitled to his estate, it shall escheat to the State for school purposes. (Post, pp. 302, 303.) Code cited and construed: Sec. 3825 (S'.); sec. 2961 (M. & V.); sec. 2138 (T. & S. and 1858). Cases cited and approved: Hoover v. Gregory, 10 Yer., 451; Alexander v. Wallace, 8 Lea, 569. 5. SAME. Evidence required to show escheat. In a suit to have property declared escheated to the State, the evidence must show that the deceased left no issue, widow, or other relatives entitled to his property; hut this is not required to he shown heyond peradventure. (Post, pp. 303, 304.) Case cited and approved: Catham v. State, 2 Head, 553. 6. SAME. Erom death of owner, and not merely from decree; and rents and income belong to State. .The State’s right to escheated property dates from the death of the owner, and not merely from the time the escheat is established and declared by the decree. Hence, the State is entitled to the rents and income of- the escheated property from the death of the owner. (Post, p. 304.) Case cited and approved: Puckett v. State, 1 Sneed, 356.
113 Tenn. 305Stuber v. Louisville & Nashville Railroad (1904)
1. PERSONAL INJURIES. Husband’s suit becomes that of widow without revivor upon his death. The suit of a husband for personal injuries wrongfully inflicted, upon his death, becomes the suit of his widow to all intents and purposes, without revivor; and upon dismissal of such suit, upon a ground not concluding the right of action, .a new suit may be commenced by her within one year thereafter. (Post, pp. 310-316.) Code cited and construed: Secs. 4025-4029, 4446 (S.); secs. 3130-3134, 3449 (M. & Y.); secs. 2291-2293, 2755 (T. & S. and 1858). Cases cited and approved: Norment v. Smith, 1 Hum., 46; Bream v Brown, 5 Cold., 170; Chambers v. Porter, 5 Cold., 276; Flatley v. Railroad, 9 Heis., 234; Fowlkes v. Railroad, 9 Heis., 831, 846; Trafford v. Express Co., 8 Lea, 97-108; Railroad v. Lilly, 90 Tenn., 564; Railroad v. Pitt, 91 Tenn., 86-92; Loague v. Railroad, 91 Tenn., 459-4.62; Railroad v. Bean, 90 Tenn., 393, 394; Hooper v. Railroad, 107 Tenn., 712; Bentz v. Railroad, 108 Tenn., 670; Davidson-Benedict Co. v. Severson, 109 Tenn., 573, 616, 639. 3. SAME. Same. Right of decedent preserved for widow, children, or next of kin, but no new cause of action is created. The right of action of the deceased for personal injuries wrongfully inflicted causing his death is kept alive and preserved by statute, for the benefit of his widow, children or next of kin, and a suit commenced by decedent while in life may be prosecuted to judgment for the same purpose; but no -new or independent cause of action is created in favor of such parties. (Post, pp. 312-315.) Code cited and construed: Secs. 4025-4029 (S.); secs. 3130-3134 (M. & V.); secs. 2291-2293 (T. & S. and 1858). Cases cited and approved: Bream v. Brown, 5 Cold., 170; Chambers v. Porter, 5 Cold., 276; Flatley v. Railroad, 9 Heis., 234; Fowlkes v. Railroad, 9 Heis., 831, 846; Trafford v. Express Co., 8 Lea, 97-108; Railroad v. Lilly, 90 Tenn., 564; Railroad v. Pitt, 91 Tenn., 86-92; Loague v. Railroad, 91 Tenn., 459-462; Railroad v. Bean, 94 Tenn., 393, 394; Whaley v. Catlett, 103 Tenn., 351; Davidson-Benedict Co. v. Severson, 109 Tenn., 573, 616, 639. 3. STATUTES OÉ LIMITATION'S. New action within a year after abatement, nonsuit, or dismissal, when. Judgments abating suits because of death of plaintiffs, upon voluntary nonsuits or dismissals, do not conclude the right of action or merits, and new suits in such cases may be brought within one year thereafter. (Post, p. 316.) Code cited and construed: Sec. 4446 (S.); sec. 3449 (M. & V.); sec. 2755 (T. & S. and 1858). Cases cited and approved: Norment v. Smith, 1 Hum., 46; Hooper v. Railroad, 107 Tenn., 712; Bentz v. Railroad, 108 Tenn., 670. 4. RAILROADS. Employees in different departments are not fellow servants; foreman of water supply is not fellow servant of engineer. Railroad employees engaged in different departments of the company’s service are not fellow servants, and do not assume the risks incident to the negligence of each other; and the foreman of the water supply of a railroad is not a fellow servant with the engineer of a detached engine, upon which he was authorized to ride and was riding for the purpose of inspecting a water tank. (Post, pp. 316-329.) Cases cited and approved: Railroad v. Carroll, 6 Heis., 347, 361; Railroad v. DeArmond, 86 Tenn., 73; Mining Co. v. Davis, 90 Tenn., 719; Taylor v. Railroad, 93 Tenn., 306, 307; Railroad v. Jackson, 106 Tenn., 445; Freeman v. Railroad,. 107. Tenn., 346. 5. SAME. Same. Instances of employees that are not fellow servants with each other. A section boss is not a fellow servant with the conductor and crew of a passenger train (Railroad v. Carroll, 6 Heis., 347, 361); the conductor of a freight train and a telegraph operator are not fellow servants (Railroad v. DeArmond, 86 Tenn., 73); a car inspector is not a fellow servant of an engineer operating a switch engine (Taylor v. Railroad, 93 Tenn., 306); a conductor and station agent are not fellow servants (Railroad v. Jackson, 106 Tenn., 445); a member of a bridge crew is not a fellow servant with the conductor and engineer operating a train (Freeman v. Railroad, 107 Tenn., 346). (Post, pp. 318-320.) 6. SUPREME COURT PRACTICE. Such judgment upon reversal as lower court should have rendered will be rendered by supreme court, when. Such judgment as should have been rendered by the circuit judge. will be rendered by the supreme court upon the facts found by the circuit judge in a written opinion made by him in pursuance .of a request of the parties, where the case in an action for personal injuries wrongfully inflicted is reversed. (Post, pp. 309, 321.)
113 Tenn. 322Creeping Bear v. State (1904)
1. WITNESSES. Hostility or partiality shown by cross-examination or by independent testimony. The friendliness or unfriendliness of a witness, his partiality for one party or his hostility to the other, may be proved by cross-examination of the witness, or independently by witnesses called- for that purpose,- in order that the jury may judge of his credibility and the trustworthiness of his testimony. Cases cited and approved: Attorney-General v. Hitchcock, 1 Exchequer, 90; State v. McKendry, 100 Iowa, 83; State v. Trom-bly, 60 N. H., 491; Commonwealth v. Byron, 14 Gray, 31; Brewer v. Cassby, 11 Gray, 529; People v. Casey, 72 N. Y., 393; Martin v. Panteau, 29 N. H., 195; Colmes v. Winchester, 39 N. H., 13; Summer v. Crawford, 45 N. Y., 416; Collins v. Stevenson, 8 Gray, 438; Day v. Stickney, 140 Allen, 255; Louisiana v. Mc-Parlan, 41 La. Ann., 686; United States v. Schindler, 18 Blatch-ford, 227. 2. SAME. Same. Answer to cross-examination as to hostility or partiality is not conclusive. The answer of a witness on cross-examination as to his hostility or partiality to the parties to the suit is not conclusive, because the evidence of his feelings towards the parties is relevant and material. (Post, pp. 327, 329.) 3. SAME. Same. Same. Hostility or partiality shown by conduct and expressions; case in judgment. The hostility or partiality of a witness may be shown by proving his conduct and expressions in relation to the parties, as, that he followed a party who was circulating a petition asking a pardon for the defendant and requested those to whom it was presented not to sign it, stating that the deceased was a friend of his, and that the defendant was guilty of a coldblooded murder and he wanted him hung; and the refusal to admit such testimony is reversible error.
113 Tenn. 331Madison v. Ducktown Sulphur, Copper & Iron Co. (1904)
1. INJUNCTION AGAINST NUISANCE. Injunction bill by ' several persons whose separate lands are affected by the same nuisance. Two or more persons may unite in a bill to enjoin a nuisance, although their lands are separate and distinct from each other, where it appears that the lands of all are affected in substantially the same way by the nuisance complained of. (Post, pp, 347, 348.) Cases cited and approved: Rowbotham v. Jones, 47 Sr. J. Eq., 337; Jung v. Neraz, 71 Tex., 396; Palmer v. Waddell, 22 Kan., 352. 3. SAME. Injunction bill against several defendants whose independent acts combine to produce a nuisance. And so, where several persons, acting independently, combine to produce a nuisance, such persons may be.joined as defendants in a suit for injunctive relief. (Post, p. 348.) Cases cited and approved: Thorpe v. Brumfitt, L. R., 8 Chy., 650; Woodyear v. Schaefer, 57 Md., 1; People v. Ditch Co., 66 Cal., 138; Kingsbury v. Flowers, 65 Ala., 479. 3. SAME. No joinder of complainants nor of defendants to recover damages for nuisance, when. There can be joinder neither of complainants nor of defendants for the purpose of recovering damages for the. injuries caused by such nuisance. (Post, p. 348.) ■ Cases cited and approved on the first point: Demarest v. Hard-ham, 34 N. J. Eq., 469; Railroad v. Prudden, 20 N. J. Eq., 530; Rowbotham v. Jones, 47 N, J. Eq., 337; Fogg v. Railroad, 20 Nev., 429. Cases cited and approved on the second point: Swain v. Copper Co., 3 Cates, 430; Sadler v. Railroad, 2 Q. B., 688. 4. SAME. Same. Bill against several defendants to enjoin nuisance, and to recover damages therefor, is demurrable as to damages, but demurrer must be confinded to this defect. An injunction bill against several defendants to enjoin a nuis- . anee created by their independent and separate acts; and to recover the damages resulting therefrom, is demurrable as to the claim for damages; but the demurrer must be so framed as to raise objection to that defect alone, and a demurrer not so framed, but directed against the whole bill, is not good, and must be overruled. (Post, pp. 348, 349.) 5. PLEA OF FORMER SUIT PENDING. Should not be sustained where former suit contains less matter of litigation, when. A plea of former suit pending, filed by one defendant to a bill against two defendants to restrain a nuisance and to recover the damages resulting therefrom, should not be sustained, where the former suit was by only part of the complainants, and without any claim for damages. (Post, pp. 349, 350.) Cases cited and approved: Moore v. Holt, 3 Tenn. Chy., 141; Parmelee v. Railroad, 13 Lea, 600, 602; Croft v. Worthley, 1 Chy. Cas., 241; Rigby v. Stringways, 2 Phill., 175; Schuehle v. Reiman, 86 N. Y., 273. 6. CHANCERY PLEADING AND PRACTICE. One complainant dismissing bill as to himself against one of two defendants may proceed against the other. Where one of several complainants causes a bill to be dismissed as-to himself, on his own motion, as against one of two defendants, who were sued jointly, to restrain a nuisance and recover damages therefor, may thereafter proceed against the other defendant, and it is error to dismiss the bill as to him on the ground that he cannot thereafter proceed against the other defendant, and on appeal the cause will be remanded as to him for the purpose of separating his cause of action from that of the other proceeding against the two defendants. (Post, pp. 347, 350.) 7. INJUNCTION AGAINST NUISANCE. Proper case, clear right and injury, no adequate remedy at law, and no laches must be shown. The injunctive remedy in equity is not a matter of course; a proper case must be stated, and the right must be clear; the injury must be clearly established; if the injury can be ade- • quately compensated at law by a judgment for damages, equity will not interfere by injunction; and the equitable remedy by injunction must be applied for with reasonable promptness, for there must be no laches. (Post, pp. 350-355.) Cases cited and approved: Caldwell v. Knott, 10 Yer., 210, 212; Clack v. White, 2 Swan, 540; Brew v. VanDeman, 6 Heis., 433, 440; Weakley v. Page, 102 Tenn., 178; W. J. Stamps et al. v. W. H. Hartford et al., MS., Nashville, December term, 1898; and many cases in other States and countries cited in the opinion on pages 350-355. 8. SAME. Same. No injunction after delay of ten years, when; case in judgment. An injunction will not he issued against the operation of a copper plant for the purpose of restraining or abating a nuisance caused by the pollution of the air with poisonous smoke and gas emitted from the roast piles and furnaces of such plant, where the complainants had been suffering the injuries complained of for ten years when the bill was filed, without making any complaint of them in any forum, and where in the meantime several hundred thousand dollars had been expended in making improvements on such plant, and the nature and source of the injury were such, that the complainants could not have been mistaken as to the cause or extent of it. {Post, pp. 355, 356.) 9. SAME. Injunction against a lawful business in a convenient place, where there is another nuisance at same place, when. Equitable relief by injunction will not be denied because the persons proceeded against are.engaged- in a lawful business; nor because the works complained of are located in a convenient place, if that place be one wherein an actionable injury is done to another; nor will the existence of another nuisance of a similar character at the same place furnish a ground for denying relief, if it appears that the defendant has sensibly contributed to the injury complained of; nor is it a question of care and skill, but purely one of results. {Post, pp. 357, 358.) Numerous cases in other States and countries cited in the opinion on pages 357, 358. 10. SAME. Same. Injunction- must' be determined upon a consideration of all tbe special circumstances of each case. The foregoing principle must be weighed and applied in the light of the controlling influence of the principle that the granting of an injunction against a nuisance is not a matter of absolute right, but rests in the sound discretion of the court, to be determined on a consideration of all of the special circumstances of each case, and the situation and surroundings of the parties, with a view to effect the ends of justice. (Post, pp. 358-363.) Cases cited and approved: Clack v. White, 2 Swan, 545; and many cases in other States and countries cited in the opinion on pages 358-363.- 11. SAME. Same. Injunction destroying- property worth two million dollars will not be issued to protect property worthless than one thousand dollars, when. Where a bill is filed to restrain or abate a nuisance caused by the pollution of the air with poisonous smoke and gas emitted from the roast piles and furnaces of a copper reduction plant; and to recover the damages resulting therefrom, the injunctive relief will be withheld, where the injunction against the operation of the plant would injuriously affect a great number of persons, and practically wreck two great mining and manufacturing enterprises, and .destroy property worth two million dollars, in order to protect several small tracts of land aggregating ,in value less than one thousand dollars, but will compensate complainants by awarding damages for the injury to their property. (Post, pp. 333, 338, 358-367 and especially 366 and 367.) Cases cited and approved: Richi v. Brewing Co., 105 Tenn., 651, 653; and many cases in other States and countries cited in the opinion on pages 359-365. 12. SAME. Same. Statutory discretion in circuit court as to abatement of nuisances applies to chancery court. The statute giving the circuit court, in actions for damages for nuisances, a sound discretion as to whether injunctive relief ■ shall be given for the abatement of the nuisance, expresses the legislative policy and will in respect to the use of the injunctive power in nuisance cases, and applies to the chancery court as well as to the circuit court. (Post, pp. 363-366.) Code cited and construed: Sec. 5158 (S.); sec. 4139 (M. & V.); sec. 3403 (T. & S. and 1858). Acts' cited and construed: 1901, ch. 139. 13. Same. Refused on condition of payment of damages and bond to secure same, when. In the exercise of its discretion to refuse an injunction against a nuisance, the chancery court has power to impose upon the defendants, as a condition annexed to su,ch refusal that they shall pay the accrued damages, and may he required to execute a bond to secure the same, in default of which an injunction will be issued to continue during such default. (Post, p. 368.) Id. SAME. Damages upon refusal of; claim of each complainant made a distinct case against each defendant complained of; reference for damages. In a suit by several complainants against two distinct defendants to enjoin and abate a nuisance to their respective property caused by defendants and to recover damages therefor, upon the court’s refusal to allow the injunction, damages may be awarded, and for this purpose an order may be entered separating the demand of each complainant, and making it a distinct ease against each defendant complained of in the bill, to the end that the damages may be assessed against the two defendants separately. (Post, pp. 368, 369.) Case cited and approved: Swain v. Copper -Co., 3 Cates, 430.
113 Tenn. 370Ross-Meehan Foundry Co. v. Royer Wheel Co. (1904)
CONTRACT. To make and deliver castings as required may be terminated as an entirety for failure to make payment for one installment as stipulated. A contract whereby complainant agrees to make and deliver to defendant for a stipulated period all the castings required, as set out therein, and the defendant agrees to order from the complainant all such castings as may be required during said period, and to pay for each delivery within a stipulated period thereafter, is an entirety, and complainant may terminate such contract on defendant’s failure to make payment as therein provided. See authorities cited in opinion.
113 Tenn. 382Hercules Powder Co. v. Knoxville, La Follette & Jellico Railroad (1904)
X. LIENS ON RAILROADS. Eor explosives as materials used in blasting. Explosives furnished to be used in blasting rock in railroad tunnels and in the grading of a railroad, and so used, are materials for which the furnisher is entitled to a lien under statutes giving liens to furnishers of materials for the construction of a railroad. {Post, pp. 384-400.) Acts cited and construed: 1883, ch. 220; 1891, ch. 98. Cases cited and approved: Chemical Co. v. Railroad, 59 Mo. App., 6; Chemical Co. v. Byrnes, 21 How., Prac., 189; Wood v. Donaldson, 17 Wend., 550; McDermott v. Palmer, 8 N. Y., 383; Mining Co. v. Gallagher, 5 Colo., 23. Cases cited and distinguished: Knapp v. Railroad, 6 Mo. App., 210; Powder Co. v. Railroad, 42 Fed., 474, 8 L. R. A., 700; Bass-hor v. Railroad, 65 Md., 99. 2. SAME. Statutes liberally construed in favor of laborer or materialman. The statutes giving liens on railroads for their construction will be liberally construed in favor of the laborer or materialman. {Post, p. 399.) Case cited and approved: Bladen v. Railroad, 97 Tenn., 393. 3. SAME. Notice within, ninety days after last delivery under contract to furnish materials for railroad- construction secures lien on all deliveries, when. Where a materialman agrees with a railroad subcontractor to furnish him all the materials required for the construction of a railroad, which are furnished and delivered pursuant to the contract as and when needed and required by the purchaser, the contract is an entirety, and a notice of the claim of a lien made within ninety days from the date of the last delivery, secures the lien on all the deliveries, though some were made more than ninety days before such notice. (Post, pp. 385, 386, 388, 400-404.) Acts cited and construed: 1883, ch. 220; 1891, ch. 98. Code cited and construed: Sec. 3540 (S.). Cases cited and approved: Daniel v. Weaver, 5 Dea, 393; Green v. Williams, 92 Tenn., 220; Manufacturing Co., v. Palls, 92 Tenn., 607; Basham v. Toors, 51 Ark., 309. 4. SAME. Same. Notice within ten days after the breach of a contract by insolvency and abandonment of work by a subcontractor secures lien on previous deliveries. The fact that the last shipment of materials to a railroad subcontractor was not delivered but stopped in transitu, because of the purchaser’s insolvency and abandonment of the railroad construction contract, does not affect the seller’s right of lien against the railroad for the materials previously furnished to such subcontractor, though furnished more than ninety days prior to the notice of the claim of a lien, where such notice is given within ten days after the failure of the subcontractor, and his consequent breach of the contract. (Post, pp. 389, 400, 401.) 5. SAME. Bien exists for materials furnished to a subcontractor unless definitely shown not to have been used. Where materials for the construction of a railroad ,are in good faith furnished and delivered to the subcontractor, and there is no definite proof that they were not so used, a lien will be declared in favor of the materialman. (Post, pp. 404-408.) 6. SAME. Whether lien exists ior materials furnished hut not actually used, not decided hut indicated to exist. The question is not decided hut expressly reserved, yet it is indicated to he the opinion of the court that a lien exists in favor of a materialman for materials furnished a subcontractor for the construction of a railroad, although they are not actually used for that purpose. (Post, pp. 404-408.) Cases cited and approved: Daniel v. Weaver, 5 Lea, 392; Lumber Co. v. Railroad (Neb.), 44 N. W., 48.
113 Tenn. 409Alabama Great Southern Railroad v. Baldwin (1904)
1. MASTER AND SERVANT. Railroad conductor is a vice principal, and the company is liable for bis negligence. The conductor of a railroad train is a vice principal of the railroad company, and the company is liable for his negligence while acting in his official capacity, and where resulting in injury to a brakeman. (Post, pp. 413, 418.) Cases cited and approved: Railroad v. Spence, 93 Tenn., 181, 182; Railroad v. Ross, 112 U. S., 377, 28 L. Ed., 787; Prather v. Railroad, 80 Ga., 436; Mills v. Railroad, 87 Ga., 106; Spencer v. Brooks, 97 Ga., 681. 2. SAME. Same. Case in judgment. Where the conductor of a freight train prematurely, carelessly, negligently, and wrongfully signaled to the engineer to back the train for the purpose of making a coupling, at a time when the brakeman was between the cars preparing them for coupling, but before he had made the preparation or before he was ready, the conductor was acting in his official capacity as vice principal of the railroad company and not merely as a fellow servant of the brakeman, and the railroad company is liable for an injury thus inflicted upon the brakeman. 3. SAME. Vice principal may become a fellow servant with those under his control, when. • A vice principal may lay aside his official character ’and engage in the common service of the other servants under his control, and his acts and negligence, while thus engaged, are those of a fellow servant, for which the employer is not ordinarily responsible; but he cannot act in both capacities at the same time, and, in order to exonerate the employer, the service or act done by him must he strictly that of a fellow servant, and not one which it is his duty to do, or which he may do, as a superior or vice principal. (Post, pp. 413-415.) Cases cited and approved: Allen v. Goodwin, 92 Tenn., 386; Railroad v. Bolton, 99 Tenn., 274; Gann v. Railroad, 101 Tenn., 380. 4. SAME. Orders presumed to be given in capacity of vice principal. The giving of orders and signals (for a signal is as much an order as if spoken) is essentially the province of the master or his representative, and when given by them to a servant, or one under their control, it will be presumed to be made in the capacity of master, and must be obeyed. (Post, pp. 415-420.) _ Cases cited and approved; Hoke v. Railroad, 88 Mo., 360 Prather v. Railroad, 80 Ga., 436; Mills v. Railroad, 87 Ga., 105; Spencer v. Brooks, 97 Ga., 681; Devine v. Railroad, 159 Mass., 351; Walker v. Gillett, 59 Kan., 214; Purcell v. Railroad, 119 N. C., 728-738; Railroad v. Williams, 86 Va., 165; Cole v. Wood, 11 Ind. App., 34; Clark v. Hughs, 51 Neb., 780.
113 Tenn. 421Slover v. Coal Creek Coal Co. (1904)
1. CREDITORS’ BILL. Actions for torts form no basis for. Claims against a corporation, based on unliquidated damages for torts alleged to have been committed by it, cannot, standing alone, form any basis for a creditors’ bill in equity against such corporation. (Post, p. 431.) 3. SAME. Same. Bill quia timet does not lie to impound assets of corporation to secure expected judgment inaction of tort. The mere alleged fear of the loss to the complainants, as holders of an unliquidated claim for damages for an alleged tort committed by defendant, a mining corporation, and sued for in an action at law, in this, that in earlier suits for claims growing out of the same occurrence, judgments and executions will be obtained prior to the obtention of judgment and execution in behalf of complainants, and that by levy of such prior executions, the leases under which the defendant conducts its mining business will be forfeited, or, at all events, the assets of defendant will be consumed thereby, and nothing will be left for the complainants, is no ground for impounding the property of the defendant, and is insufficient to support a bill quia timet for such purpose. (Post, pp. 423-434.) 3. SAME. Same. Same. Bill quia timet will not lie to impound profits of a corporation to secure expected judgment in action of tort. A ground for fear of loss alleged in such case that the defendant is using its best energies towards working out its leases and is distributing the avails as profits among its stockholders, and that the mines will be exhausted by this process, and in the pockets of the stockholders, in the form of dividends, before complainants can obtain a judgment, is insufficient to support a bill for the purpose of impounding defendant’s profits or to support a bill quia timet for such purpose. (Post, pp. 432, 433.) 4. RECEIVER. No appointment upon bill in chancery court to secure expected judgment in action of tort. An allegation that the purpose of the defendant corporation is to exhaust its mines and property by earning and paying out the profits and dividends in order to defeat the complainant’s and other persons in their damage suits for torts, is no ground for application to a court of equity for the appointment of receiver to tahe charge of the assets of the defendant — whatever might be the relief obtainable by attachment at law. (Post, p. 433.) 5. SAME. Same. No appointment at instance of complainant to secure expected judgment in action of tort against corporation, when. The chancery court is not authorized to appoint a receiver, either under our statutes or under the ordinary powers of courts of chancery, at the instance of complainants in a suit for the appointment of a receiver as its real object or chief purpose, to the end that the property of a corporation may be held and managed by the receiver in a court of chancery to await the decision of such action at law, to prevent waste of the corporate property in the meantime, with the view of having it, with the accumulated profits, ready to turn over in satisfaction of such judgment as may be obtained in such action at law; especially, where it is not alleged that the corporation owes any debts whatever, or that there is any ground for supposing its insolvency except the fact that a large number of damage suits have been brought against it, and that the amounts claimed in the various writs and declarations in the aggregate exceed the total assets of the corporation. (Post, pp, 434-445.) Code cited and construed: Sécs. 4730, 4765, 5165, 5173, 5181, 5182, 5549 (S.); secs. 3716, 3750, 4154, 4162, 4163, 4518 (M. & V.); secs. 3000, 3037, 3417, 3425, 3426, 3768 (T. & S. and 1858). Numerous cases in other States cited in the opinion, pp. 436-444. 6. SAME. Appointment until administration can be granted. The chancery court has power to appoint a receiver until administration can be granted, where the right of administration is in litigation, or other impediment exists. {Post, p. 443.) Case cited and approved: Smiley v. Bell, M. & Y., 378, 380.
113 Tenn. 446Johnson v. Donohue (1904)
1. ASSIGNMENT OE CHOSES IN ACTION. Assignment of funds accrued and to accrue subsequently under an existing contract may be validly made. The assignment of funds already accrued and all the contingent funds that may hereafter accrue under an existing contract, perfected by notice, may be validly made, and will entitle the assignee to the funds; for while the subsequently accruing funds are contingent, still they have a potential existence when the assignment is executed. Cases cited and approved: Winslow v. Insurance Co., 4 Mete. (Mass.), 306; Jones v. Richardson, 10 Mete. (Mass.), 481; In Re Howe, 1 Paige, 125; White v. Carpenter, 2 Paige, 217r Field v. New York, 6 N. Y., 179; Mitchell v. Winslow, 2 Story, 630; Willink v. Canal & Banking Co., 4 N. J. Eq., 377; Butt v. Ellett, 19 Wall., 544; Pennock v.' Coe, 23 How., 117. 2. SAME. Same. Right of assignee is not affected by assignors’ bankruptcy so far as subsequent creditors are concerned. Where an insolvent debtor, within four months prior to his being adjudged a bankrupt, made an assignment of a contingent fund having a potential existence, but to accrue thereafter under an existing contract, the assignment is not invalidated by such adjudication of bankruptcy in favor of creditors whose debts were created after the bankrupt’s final discharge.
113 Tenn. 453Mee v. Mee (1904)
1. DEEDS OE CONVEYANCE. Parol evidence is admissible to show trust under absolute deed, when. Where a deed conveys an absolute title, without more, parol evidence is admissible to show an unexpressed agreement made at the time the deed was executed that the property should be held and impressed with a beneficial trust in favor of a third person not mentioned in the face of the deed. (Post, pp. 455,456.) Cases cited and approved: Woodfin v. Marks, 104 Tenn., 512; Thompson v. Thompson, 54 S. W., 145; Hall v. Livingston, 3 Del. Chy., 373; Brison v. Brison, 75 Cal., 533; Shelton v. Shelton, 58 N. C., 295; Patton v. Beecher, 62 Ala., 585. 3. SAME. Same. Parol evidence is inadmissible to show a mandatory trust in contradiction of an expressed discretion. Where a deed of conveyance, by its terms, confers on the grantee a discretion to dispose of the land as she pleases, which is totally inconsistent with a mandatory trust, parol evidence is inadmissible to establish a mandatory trust, because this would contradict the terms of the deed. (Post, pp. 455-463.) Case cited and overruled as a dictum: McLellan v. McLean, 2 Head, 684. 8. SAME. Same. Same. Parol evidence is inadmissible to show a trust by verbal agreement under absolute deed with discretion. Where a deed of conveyance absolute on its face, by its- terms, confers upon the grantee the discretion to dispose of the land free from any trust, parol evidence is inadmissible to establish the trust by showing a verbal agreement to hold the property in trust. (Post, pp. 457, 458, 463.)
113 Tenn. 464Southern Railway Co. v. Maxwell (1904)
1. PAUPER OATH. Nonresident qualified Rere as personal representative may sue upon. A nonresident qualified in this State as the personal representa^ tive of a person dying in or leaving assets or property in this State may prosecute a suit in this State as such personal representative, on the pauper oath prescribed for personal representatives. (Post, pp. 468-473.) Code cited and construed: Sec. 4928 (S.); sec. 3912 (M. & V.); sec. 3192 (T. & S. and 1858). Acts cited and construed: 1897, ch. 133; 1901, ch. 126; 1903, ch. 501. Case cited and approved: Lisenhee v. Holt, 1 Sneed, 42. Cases cited, distinguished and approved: Smith v. Railroad, 89 Tenn., 664; Railroad v. Thompson, 109 Tenn., 343; Fawcett v. Railroad, 5 Cates, 246. 3. STATUTES. Repealed or amended by implication. A statute not reciting the title or 'substance of the act to he amended or repealed cannot be held good as a technical amend-atory act, nor valid, as a direct repealing act; .but it may be treated as an independent act, and so it may, by implication, operate as a repeal of former acts with which it may be inconsistent, so far as inconsistent therewith. (Post, fi. 471.) Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Insurance Co. v. Taxing District, 4 Lea, 644; Zickler v. Bank & Trust Co., 104, Tenn., 227. 3. PERSONAL INJURIES. Declaration for wrongful death, not alleging a widow, next of kin, or beneficiaries, states no cause of action. A declaration in an action by a personal representative to recover damages for the wrongful death of the decedent, which fails to allege that there is a widow, next of kin, or beneficiaries, to take the recovery, states no cause of action. (Post, p. 473.) Cases cited and approved: Railroad v. Pitt, 91 Tenn., 86; Love v. Railroad, 108 Tenn., 104. 4. ARREST OP JUDGMENT. After verdict for failure to state any cause of action. Where the declaration, in an action by a personal representative to recover damages for the wrongful death of the decedent, states no cause of action, because of its failure to show that there is a widow, next of kin, or beneficiaries to take the recov- • ery, the defect is not cured by the verdict, and may be taken advantage of by motion in arrest of judgment after verdict, though there was no demurrer for such defect. (Post, pp. 473-478.) Cases cited and approved: Greer v. Bumpass, M. & Y., 94; State v. Atkin, 7 Yer., 268; Shelton v. Bruce, 9 Yer., 24; Knott v. Hicks, 2 Hum., 162; Sheppard v. Kindle, 3 Hum., 80; Baxter v. Erwin, 1 Tenn. Cas., 113, 115, Turnpike Co. v. Yates, 108 Tenn., 428-430. 5. PLEADING AND PRACTICE. Declaration defectively stating á good cause of action is aided by verdict. A declaration which states a good cause of action, although defectively, will be aided by the verdict; for, where the omissions are not so serious or vital as to leave the declaration emasculated of the power to convey a cause of action, the court will presume, after verdict, that the missing matter was supplied by the evidence. (Post, p. 476.) Cases cited and approved: Anderson v. Read, 2 Ov. 205-208; Goodloe v. Potts, Cooke, 399; Stanley v. Brit, M. & Y., 222; Anderson v. Donelson, 1 Yer., 197-199; Shelby v. Hearne, 6 Yer., 512-514;' Rogers v. Love, 2 Hum., 417-420; Woodson v. Moody, 4 Hum., 303-307; Brown v. Parks, 8 Hum., 294-297; Cannon v. Phillips, 2 Sneed, 191; Gas Co. v. Williamson, 9 Heis., 314; Mor-riss v. Bowers, 58 S. W., 328. 6. SAME. Same. Defective statement of a good cause of action is cured by verdict, but statement of no cause of action is not cured by verdict. The rule that “if a pleading contains a defect, either in substance or form, which would have been fatal on demurrer, yet if, on trial, the issue requires proof of the fact so defectively stated or omitted, the defect is cured by the verdict,” is perfectly sound and intelligible, when applied to the defective statement of a good cause of action; but when applied to statements which set forth no cause of action, is both unsound and unintelligible. (Post, pp. 476, 477.) 7. SAME. Same. Same. Omitted averments in declaration showing good cause of action defectively stated, supplied from the other pleadings. Where the declaration shows a good cause of action defectively stated, if the omitted averments or facts are found in the pleas of the defendant, or are necessarily inferable from the pleadings taken in their entirety, they will be supplied to the declaration, and the judgment will not be arrested after verdict, but if there is no cause of action appearing in the pleadings, there is no lawful issue, and, therefore, no Valid verdict. (Post, pp. 477, 478.) Cases cited and approved: Mosley v. Matthews, Meigs, 578; May-field v. Beech, 2 Sneed, 443; Trabue v. Higden, 4 Cold., 620; Cherry v. Smith, 10 Heis., 389-392. 8. STATUTES. Title or substance of law sought to be amended is not recited by reference to it in Shannon’s Code or that of Milliken and Vertrees. A statute purporting to amend a certain section of Shannon’s Compilation of the Statutes of Tennessee, or in Milliken and Vertrees’ Compilation, is unconstitutional, because it does not recite the caption or substance of the act to be amended. (Post, pp. 479, 480.) Code cited: Secs. 3074-3076, 4025 (SO; sec. 3130 (M. & V.); sec. 2291 (T. & S. and 1858). Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Burnett v. Turner, 87 Tenn., 129; Railroad v. State, 110 Tenn., 598, 618. Acts cited and held-unconstitutional: 1899, ch. 213; 1903, ch. 43. 9. ARREST OE JUDGMENT. Suit dismissed where motion in, is sustained by supreme court. Where the motion in arr.est of judgment is sustained by the supreme court, the suit will be dismissed with costs. (Post, p. 480.) Case cited and approved: McMinnville v. Stroud, 109 Tenn., 569, 571.
113 Tenn. 482Western Union Telegraph Co. v. Texana Courtney (1904)
1. TELEGRAPH COMPANY. Stipulation respecting notice of claim for damages; sender’s assent thereto presumed. A stipulation in a contract for the transmission of a telegram that the telegraph company will not he liable for damages, unless the claim is presented within sixty days after the message is sent, is reasonable and valid, and the sender of a telegram, using a blank upon which is written or printed such stipulation, is presumed to assent thereto. Case cited and approved: Manier & Co. v. Telegraph Co., 94 Tenn., 442. 2. SAME. Essentials of notice of claim for damages. Where the contract for the transmission of a telegram provides that the company will not be liable for damages, unless claim therefor is presented in writing within sixty days after the message is filed, the notice or presentation of the claim must be in writing, identifying the message, stating the negligence complained of, and the nature and extent of the damages suffered. Cases cited and approved: Manier & Co. v. Telegraph Co., 94 Tenn., 442; Telegraph Co. v. Brown, 84 Texas, 54. 3. SAME, Same. Summons not containing essentials of notice insufficient. Case in judgment. Where the contract for the transmission of a telegram contains the stipulation set out in the first and second headnotes, the institution of suit and service of process may operate as a presentation of a claim for damages when the process is served within the specified time and contains the essentials of a formal notice or claim for damages as set out in the second headnote, or. when the declaration giving such information is filed within the stipulated time; but a summons merely stating that the defendant company was called on to answer plaintiff “in an action to her damage two thousand dollars” is wholly insufficient to meet the requirements of the contract. Cases cited and approved: Manier & Co.- v. Telegraph Co., 94 Tenn., 442; Telegraph Co. v. Mellon, 96 Tenn., 75.
113 Tenn. 488Alabama Great Southern Railroad v. Roberts (1904)
1.- REMITTITUR. As condition of affirmance of judgment erroneous alone for excessiveness, when. The requirement of a remittitur by the supreme court as a condition of affirmance of the judgment in an action for personal injuries, where it is so excessive as to evince passion, prejudice or caprice, is good law, sound policy, and no invasion of the right of the parties or province of the jury, and no exercise of original jurisdiction, and the practice may be adopted where the only error is the excessiveness of the damages awarded in such cases. (Post, pp. 491-499.) Cases cited and approved: Branch v. Bass, 5 Sneed, 369; Young v. Cowden, 98 Tenn., 589; Land Co. v. Mann, 130 U. S., 69; Bur- . diet v. Railroad, 123 Mo., 221; Hutchins v. St. Paul, M. & M. Co., 44 Minn., 5. 3. SAME. Same. Extent of practice heretofore stated. Judgments have heretofore been affirmed upon the entry of remit-titurs as to the objectionable part of a special verdict (Memphis ' v. Kimbrough, 12 Heis., 133); where there is apparent an error of calculation (McKinley v. Beasley, 5 Sneed, 170); where the •judgment is for an amount greater than that laid in the suit and declaration (Crabh v. Bank, 6 Yer., 332); where a verdict is based upon several items and is divisible (Railroad v. Wallace, 91 Tenn., 35). (Post, pp. 492, 493.) 3. SAME. Required by trial judge as a condition of refusing new trial. The trial judge may as a condition, of denying the motion for a new trial, made by the defendant, require a remittitur of part of the verdict which he deems excessive, but it is optional for the plaintiff to comply with such condition or suffer a new trial. {Post, pp. 493, 494.) Cases cited and approved: Branch v. Bass, 5 Sneed, 366; Massa-dillo v. Railroad, 89 Tenn., 661; Railroad v. Jones, 9 Heis., 27; Railroad v. Wallace, 91 Tenn., 35; Railroad v. Garrett, 8 Lea, 450; Railroad v. Foster, 10 Lea, 366; Young v. Cowden, 98 Tenn., 588, 590; Telegraph Co. v. Frith, 105 Tenn., 174. 4. SAME. Defendant cannot be required to waive or abandon appeal. The defendant, in case of remittitur, cannot be required to abandon or waive his right of appeal upon condition of plaintiff’s acceptance of the remittitur. {Post, pp. 494, 495.) Cases cited and approved: Railroad v. Foster, 10 Lea, 351, 366; Coal Co. v. Roddy, 85 Tenn., 400.
113 Tenn. 500Plyley v. Allison (1904)
1. COSTS. Clerk’s fee for redemption receipt for the redemption of several pieces of land. Under a statute providing for the redemption of land sold for taxes, and providing a fee of fifty cents to the clerk for issuing the redemption receipt, which receipt, it is provided, shall include all property redeemed hy any person at one time, only one receipt should be issued, and only one fee can be charged for such receipt, for the redemption of a number of pieces of property by the then owner, in one single transaction, though the various pieces of property redeemed were assessed in the names of different parties, and were situated in different wards of the city. (Post, pp. 502-506.) Acts cited and construed: 1901, ch. 174, sec. 57. 2. EXTORTION. Officer’s good faith, and honesty of purpose in demanding and collecting illegal fees is no defense against a civil suit for penalty. In a civil suit against an officer to recover the penalty for extortion in demanding and receiving any other or higher fees than those prescribed by law, good faith and honesty of purpose in demanding and receiving fees not allowed by law is no defense. (Post, pp. 503, 504, 506.) Code cited and construed: Secs. 6353, 6714 (S.); secs. 5270, 5604 (M. & V.); secs. 4518, 4810 (T. & S. and 1858). Cases cited and approved: 'Williams v. State, 2 Sneed, 162; State v. Merritt, 5 Sneed, 67; State v. Critchett, 1 Lea, 271. 3. SAME. Question whether good faith in collecting illegal fees excuses in criminal prosecution, reserved. Question whether in criminal prosecution for the offense of extortion, good faith might serve as an excuse for the officer in demanding and receiving fees not allowed by law is reserved. (Post, pp. 506, 507.) Code cited: Sec. 6714 (S.); sec. 5604 (M. & V.); see. 4810 (T. & S. and 1858). Cases cited: State v. Merritt, 5 Sneed, 67; State v. Critchett, 1 Lea, 271. 4. REPEAL OE STATUTES BY IMPLICATION. Statute providing’ penalty recoverable in civil action not repealed by statute imposing fine for misdemeanor. Tbe statute providing a penalty for extortion in demanding and receiving illegal fees is not repealed or suspended, by implication, by a statute imposing a fine upon conviction for tbe misdemeanor for the violation of tbe assessment statute by all parties intrusted with tbe collection and disbursement of public funds or revenues, for this latter statute does not provide an exclusive remedy, so as to prevent tbe maintenance of a civil action for tbe penalty prescribed in tbe former statute. (Post, pp. 507, 508.) • Code cited and construed: Sec. 6353 (S.); sec. 5270 (M. & V.); sec. 4518 (T. & S. and 1858). Act cited and construed: 1901, cb. 174, sec. 72.
113 Tenn. 509Carter v. Carter (1904)
DIVORCE. Two years’ residence required only where the grounds for, arose out of the State. The statute (Shannon’s Code, sec. 4203) providing that a divorce may be granted for any of the causes previously specified (secs. 4201-4202), though the acts complained of were committed out of the State, or the petitioner resided out of the State at the time, no matter where the other party resides, if the petitioner has resided in the State two years next preceding the filing of the petition, applies only to cases wherein the grounds for divorce arose out of the State. Code cited and construed: Sec. 4203 (S.); sec. 3308 (M. & V.); 2450 (1858).
113 Tenn. 514Traction Co. v. Carroll (1904)
FROM KNOX. Appeal in error from the Circuit Court of Knox County. — Joseph W. Sneed, Judge.
113 Tenn. 517Lindsay v. Allen (1904)
1. WITNESSES. Statute for the purity of elections and compelling offenders to testify,"with immunity from prosecution, applies to criminal cases only; no contempt, when. A statute whose purpose is to preserve the purity of elections and to define and punish offenses against the elective franchise, and which defines various offenses against the elective franchise as felonies, and makes one offender a competent witness against another person so offending and compels hifia to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as any other person, and protects such witness so testifying against prosecution for the offense testified about, applies only to criminal cases, and a per,son cannot he compelled to testify, nor punished for contempt for failure to testify as to any incriminating matter in a civil proceeding growing out of fraudulent election. {Post, pp. 518-522.) Acts cited and construed: 1897, eh. 14. Case cited and approved: Muller v. State, 11 Lea, 18. 2. CONTEMPT OP COURT. Sheriff is not in, for declining to execute void mittimus, when. A sheriff is not in contempt of court for declining to honor and execute a mittimus, void because ordering the commitment of a witness who properly declined to answer questions asked before an examining commissioner who had no authority to compel an answer. {Post, pp. 519, 521.)
113 Tenn. 523Railway Co. v. Seymour (1904)
LOST RECORD. Best secondary evidence of, is full transcript from court where final judgment is entered. Case in judgment. The plaintiff brought this suit more than one year after the right of action accrued and, in order to avoid the bar of the statute, averred in her 'declaration that she had instituted suit within the time limited in which, on removal to the federal court, was dismissed, and that this action was within one year of. such dismissal. The original papers in the first suit in the State court were lost and plaintiff was permitted, over specific objections of defendant, to supply them by oral testimony and a transcript of the federal court judgment of dismissal. Held: The objections should have been sustained because: 1. The record of the federal court, where the final judgment was entered, was the primary evidence of the contents of the whole record, and a transcript thereof the best secondary evidence. Cases cited: Rhea v. McCorkle, 11 Heislr., 416; Lane v. Jones, 2 Coldwell, 322; Pharis v. Lambert, 1 Sn., 228; Bates v. Russell, 6 Sn., 222. 2. The transcript of the federal jiidgment of dismissal was only á part of the record to he proved. Cases cited: Willis v. Louderback, 5 Lea, 662; Bradley v. White, 4 Baxter, 382
113 Tenn. 528Wyler, Ackerland & Co. v. Blevins (1904)
1. GARNISHMENT. Proper practice where Inconclusive answer of garnishee is indeterminate. Where the amount in controversy is less than one thousand dollars and the answer of the garnishee is indeterminate, the proper practice is, not to strike the answer, which is not conclusive, from the files, hut to summon the garnishee before the court for further examination; and additional evidence may he heard if necessary to a full determination of the matter. Code cited and construed: Sec. 4831 (S.); sec. 3816 (M. & V.); sec. 3103 (1858). Cases cited: • Jones v. Pearce, 12 Heisk., 281-287; Moore v. Green, 4 Humph., 301; Pickier v. Rainey, 4 Heisk., 340; Poster v. Saf-fell, 1 Swan, 90. 3. SUPREME COURT. May conduct examination of garnishee in aid of its final process. It is well settled that the supreme court has jurisdiction to conduct an examination of a garnishee in aid of its final process and the examination will he had before the clerk of the court in the presence of counsel for the parties, and also of the defendant debtor, if he desires to intervene. Code cited and construed: Sec. 6336 (S.); sec. 5253 (M. & V.); sec. 4503 (1858). Cases cited and approved: Newman v. Justices, 1 Heisk., 787; McIntosh v. Paul, 6 Lea, 45; Dodds v. Duncan, 12 Lea, 733; Smith v. Leonard, 1 Tenn.-Cas., 604.
113 Tenn. 531Electric Railway Co. v. Moore (1904)
NEGLIGENCE. Street railroad company not liable for injury caused by telephone poles in public highway. The law imposes no duty upon a street railroad company to abate a nuisance on land not belonging to it, and over which it has no control, and, therefore, it is not chargeable with negligence in permitting or not objecting to, the erection of a telephone pole in a public highway so near its track as to be dangerous to its employees operating its cars. Cases cited and approved: Lucas v. St. Louis R. R. Co. (Mo.), 73 S.* W„ 589, 61 L. R. A., 452.
113 Tenn. 536State v. Shaw (1904)
INDICTMENT. . Time of offense should foe averred within statutory limitation. The indictment, charging defendant with trespass committed in March, 1904, was found in January, 1904. A motion to quash was sustained and the State appealed. Bold: The indictment was had because, although the date foe disregarded as an impossible one, it would not appear that the offense was committed within the statutory limitation of one year barring the offense.
113 Tenn. 539Cronan v. State (1904)
1. BILL OF EXCEPTION'S. A nullity unless filed. It is a well-settled rule in this State that unless the record affirmatively shows that the hill of exceptions was filed in the court helow, it will he treated as a nullity and no error can he assigned thereon. Case cited and approved: Bundren v. State, 109 Tenn., 225. 3. CRIMINAL LAW. Only one judgment can he pronounced under indictment, charging burglary with intent to steal and larceny. Where, under an indictment charging a burglarious breaking and entry into a eamphouse with intent to steal and petit larceny, the verdict is that defendant is guilty of both crimes, only one judgment can he entered because the larceny is to be considered as embraced in the burglary and one punishment is imposed on one combined offense. Cases cited: Pardue v. State; 4 Baxter, 10; Allen v. State, 1 Tenn. Cas., 4,73; Commonwealth v. Hope, 22 Pick. (Mass.), 1. 3. CRIMINAL PRACTICE. Indictment charging burglary will sustain conviction for other cognate offenses. An indictment charging burglary in its technical sense will sustain a conviction for a felonious breaking and entry into any house of another, other than a mansion house. Code cited and construed: Sec. 6540 (S.); sec. 5440 (M. & V.); sec. 4675 (1858). 4. SAME. Construction of term “burglary.” Under our statutes tbe word “burglary” is to be treated as a generic term, covering several cognate offenses, including a felonious breaking and entry charged in tbe first count of tbe indictment referred to in tbe second bead above, and there was no error in its use by tbe jury in framing their verdict. Code cited and construed: Secs. 6535-6538 (S.). 5. SUPREME COURÍ. Will correct erroneous judgment. It is well settled that this court will correct an erroneous judgment, and will enter such judgment as should have been entered in tbe court below. Cases cited: Griffin v. State, 1 Cates, 17-35; Sword v. State, 5 Hum., 101.
113 Tenn. 544Wray v. Knoxville, LaFollette & Jellico Railroad (1904)
1. EMINENT DOMAIN, Compensation provided by constitution, and incidental damages lessened by incidental benefits provided by statute. Just compensation, for property taken for public use is provided for by the constitution, and incidental damages lessened by the incidental benefits are creatures of statute, and are in addition to the compensation provided by the constitution, and separate from it. {Post, pp. -549-551.) Code cited and construed: Sec. 1857 (S.); sec. 1562 (M. & V.); sec. 1338 (T. & S. and 1858). Constitution cited and construed: Art. 1, sec. 21. Cases cited and approved: Woodfolk v. Railroad, 2 Swan, 437; Railroad v. Love, 3 Head, 67; Memphis v. Bolton, 9 Heisk., 508, 509; Railroad v. Stovall, 12 Heis., 5; Alloway v. Nashville, 88 Tenn., 513. 2. SAME. Rule for ascertaining compensation. The measure of compensation for land taken for public use is a fair cash value of the land, considering that the owner is willing to sell and the other party desires to buy that particular quantity, at that place and in that form, but in estimating its value, all the capabilities of the property, and the uses to which it may be applied or for which it is adapted are to be considered. {Post, pp. 548-555.) Cases cited and approved: Woodfolk v. Railroad, 2 Swan, 422; Railroad v. Love, 3 Head, 67; Memphis v. Bolton, 9 Heis., 509; Railroad v. Stovall, 12 Heis., 5; Alloway v. Nashville, 88 Tenn., 513; McKinney y. Nashville, 102 Tenn., 132. 3. SAME. Same. The specific identical land taken must he valued. The only way to arrive at the cash market value of property taken for public use is to estimate the specific identical land taken, by placing a value on it, which can only be done by a statement of facts and by opinions and estimates of parties acquainted with the land, and upon such facts, opinions and estimates of the land must the valuation be based. (Post, pp. 553, 554.) 4. EVIDENCE. Opinions or estimates as to value of land are competent. The opinions or estimates of witnesses as to the value of real estate are admissible, but they should 'state the facts upon which the opinions or estimates are based. (Post, pp. 555, 556.) Cases cited and approved: Woodfolk v. Railroad, 2 Swan, 437; Tompkins v. Wisener, 1 Sneed, 458; Norton v. Moore, 3 Head, 481; Wisener v. Maupin, 2 Bax., 359; Kirkpatrick v. Kirkpatrick, 1 Tenn. Cas., 258. Case cited and disapproved or overruled: Railroad v. Stovall, 12 Hels., 1. 5. EMINENT DOMAIN. Incidental damages to remaining property must be allowed. The incidental damages to the remaining property resulting from the taking of land for public use that do not attach to other property by the construction of the improvement, as the building of a railroad, must be allowed. (Post, pp. 556, 557.) 6. SAME. Same. Destruction of railroad frontage to remaining property is basis for incidental damages, when. The incidental damages to the remaining land resulting from the taking for public use by cutting it off from an existing railroad frontage, and destroying or impairing its usefulness for manufacturing sites, must be allowed. (Post, pp. 555, 558.) 7. SAME. What jury should consider in determining value of land taken for public use. In determining the value of land taken for public use, the jury should consider the opinions or estimates of witnesses, as well as the facts which they state, and give their verdict upon a fair consideration of the opinions or estimates, as well as the facts on which they are based. (Post, pp. 553, 554, 558.) 8. EVIDENCE. Tax assessment blank is inadmissible to prove value, where part only is taken from public use. A paper purporting to be an assessment blank or schedule for the purpose of taxation in the tax assessor’s office, proved to have been handed in by the husband of the complainant, containing the valuation of a number of lots, including the lot, a part of which was condemned and taken for public use, hut not showing the separate value of the particular part of said lot so condemned 'and taken, and purporting to he signed by the complainant, but without proof of her signature, is not admissible or competent to prove the value of the land so condemned and taken. (Post, pp. 559, 560.) 9. JUDICIAL NOTICE. That land is not assessed at its actual value for taxation. The courts know judicially and as a part of the financial history of the State that land is never assessed for purposes of taxation at its real cash market value, though that may he the law, hut only in comparison with other lands around it. (Post, p. 560.)
113 Tenn. 561State ex rel. Cummings v. Trewhitt (1904)
FROM HAMILTON. Appeal from tbe Chancery Court of Hamilton County. —T. M. McConnell, Chancellor. STATEMENT BY MB. JUSTICE NEIL. On the 21st day of April, 1899, the following statute was enacted by the-legislature of this State: ■ “An act to create the office of connty attorney of Hamilton county, and to prescribe the duties thereof. “Section 1.
113 Tenn. 574Unaka National Bank v. Butler ex rel. Davis (1904)
FROM WASHINGTON. Appeal from the Circuit Court of Washington County. — A. J. Tyler, Judge.
113 Tenn. 588Posey v. Posey (1904)
1. ABATEMENT AND REVIVOR. Actions alíate and cannot be revived upon defendant’s death, if cause of action- does not survive or continue. All actions, appeals, or writs of error, abate upon the death of the defendant, and cannot be revived for any purpose whatever, if the cause of action does not survive or continue. Code cited and construed: Secs. 4568, 4569, 4575 (S.); secs. 3559, 3560, 3566 (M. & V.); secs. 2845, 2846, 2854 (T. & S. and 1868). 3. SAME. Same. Inquisition of lunacy does not survive defendant’s death, not even as to cost; case in judgment. In a proceeding instituted to have a defendant declared a lunatic and to have a guardian appointed for him and his property, the cause of action does not survive or continue after the death of the defendant, not even for a determination as to whether the costs shall be adjudged against the defendant’s estate.
113 Tenn. 592Finley v. United States Casualty Co. (1904)
1. ACCIDENT INSURANCE. Policy insuring’ directly against employer’s liability and one insuring against loss or damage by reason of liability distinguished; availability of proceeds. Under an employer’s liability policy insuring directly against liability, the amount of the policy up to the extent of the liability incurred by an employer on account of an accident to an employee, become, immediately upon, the happening of the event upon which the liability depends, and the giving of such notice as the policy provides for, an asset of the assured, which in the absence of any provisions to the contrary in the policy, may be assigned by him, or taken for his debts, subject to the making of such proofs as the policy may provide- for; but under such policy insuring against loss or damage by reason of liability, the amount of the insurance does not become available until the assured has paid the loss, and is not even then available unless proper notice has been given as provided in the policy. (Post, pp. 598-601.) Cases cited and approved: Lumber Co. v. Fidelity & Casualty Co. (Minn.), 65 N. W., 353, 30 L. R. A., 692; Fenton v. F. & C. Co. (Or.), 56 Pac., .1096, 48 L. R. A., 770; Bain v. Atkins (Mass.), 63 N. E., 414, 57 L. R. A., 792, 92 Am. St. Rep., 411; Frye v. Gas Co. (Me.), 54 Atl., 395, 59 L. R. A., 444, 94 Am. St. Rep., 500; Guarantee Co. v. Siwy (Ind. App.)', 66 N. E., 481; Insurance Co. v. Myers (Ohio), 57 N. E., 458, 49 L. R. A., 760; Smith v. Insurance Co. (Mass.), 50 N. E., 516; Weller v. Eames, 15 Minn. 461; Jones v. Childs, 8 Nev., 121; Smith v. Railroad, 18 Wis., 21; Thompson v. Taylor, 30 Wis., 73; Locke v. Homer, 131 Mass., 93; Church v. Higgins, 48 N. Y., 532. 2. SAME. Same. Employee is not in privity with, the parties. Neither under an employer’s liability policy insuring directly against liability, nor under one insuring against loss or damage by reason of liability, is the employee treated as in privity with the parties to the contract, for in either case the contract is one between the insurance company and the employer, and is for the benefit of the latter. (Post, p. 599.) 3. SAME. Same. Same. Policy construed to be one of indemnity and not one insuring directly against liability; case in judgment. An employer’s liability policy containing an express purpose “to indemnify the assured against loss from liability for damages,” and containing an agreement “that no action shall lie against the insurer as respects any loss under the policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment,” etc., is not a policy insuring directly against liability, but one insuring against loss or damages by reason of liability, and this is true, notwithstanding agreements in the policy that, if suit is brought against the assured, he shall immediately forward every process to the insurer, who will defend against or settle the claim, and that the Insured shall not interfere. (Post¡ pp. 602-604.) 4. SAME. Same. Same. Same. Under policy of indemnity, insurance cannot be impounded by an employee. Under an employer’s liability policy not insuring directly against liability, hut insuring only against loss or damage by reason of liability, the amount of insurance does not become available until the payment of the loss by the assured, and cannot be impounded by an employee on recovery of a judgment against his employer, the assured under such policy.
113 Tenn. 605Kimbrough v. Hornsby (1904)
1. BILLS AND NOTES. Bona fide purchaser of negotiable instruments is not affected by attachment bill as a lis pendens. Statutes permitting attachment of debts and choses in action, whether due or not due, and declaring void any transfer of property mentioned in the bill or the attachment made after the filing of an attachment bill in the chancery court, cannot affect, as Us pendens the tona fide purchaser of a negotiable instrument for value, and before maturity in due course of trade. (Post, pp. 611-613.) Code cited and construed: Secs. 6260, 5267 (S.); secs. 4241, 4248 (M. & V.); secs. 3500, 3507 (T. & S. and 1858). 2. SAME.- Same. Garnishment of negotiable note, not actually • seized and levied on under attachment, will not warrant judgment against garnishee, when. Where it was sought to attach a negotiable note which was not actually seized and levied upon as tangible property, it can only be reached by garnishment of the payer, and the suit becomes a garnishment proceeding for this purpose; but if the garnishee answered that the note was not in his possession and that he did not know who held the note which had not yet matured, judgment cannot be rendered against him, where such note is not delivered up and he is not completely exonerated or indemnified from all liability thereon. (Post, pp. 613-615.) Code cited and construed: Secs. 5255, 5260 (S.); secs. 4236, 4241 (M. & V.); secs. 3495, 3500 (T. & S. and 1858). Cases cited and approved: Huff v. Mills, 7 Yer., 42; Turner v. Armstrong, 9 Yer., 412; Moore v. Green, 4 Hum., 299; Daniel v. Rawlings, 6 Hum., 403; Matheny v. Hughes, 10 Heis., 403. 3. SAME. Same. Same. Statutes authorizing attachment, and declaring void transfers, have no extraterritorial effect to defeat bona fide purchaser. Statutes authorizing attachment of choses in action, whether due or not due, and declaring inoperative and void any transfer, sale or assignment made after the suing out of an attachment describing the property, can have no extraterritorial effect, so as to defeat the right of a 'bona fide purchaser of a note in another State. (Post, p. 611, 615.) Code cited and construed: Secs. 5260, 5267 (S.); secs. 4241, 4248 M. & V.); secs. 3500, 3507 (T. & S. and 1858).
113 Tenn. 616State ex rel. Cardin v. McClellan (1904)
1. COUNTY REGISTER. Liabilty on bond for errors in reg- * a istration. A county register and tbe sureties on bis official bond are liable for damages resulting from bis failure to register correctly a deed of conveyance of land, altbougb bis negligence is not willful, nor so gross as to imply willfulness, for innocent mistalte or inadvertence affords no excuse. (Post, pp. 617-623.) Code cited and construed: Secs. 558, 559, 560, 562, 566, 567, 570, 3748-3752, 4494 (S.); secs. 520, 521, 522, 524, 528, 529, 532, 2886-2890, 3494 (M. & Y.); secs. 446, 447, 448, 450, 453, 454, 456, 2071-2075, 2797 (T. & S. and 1858). Cases cited and distinguished: McTeer v. Lebow, 85 Tenn., 121; Maxwell v. Stuart, 99 Tenn., 409. Cases cited and approved: Bell v. Josselyn, 3 Gray, 309; Olmsted v. Dennis, 77 N. Y„ 378; Clark v. Miller, 54 N. Y.. 528; Keitb v. Howard, 24 Pickering, 292; Amy v. Supervisors, 11 Wall., 136. 2. SAME. Same. Cause of action accrues and statutes of limitations begin to run. wben tbe damages are sustained in consequence of failure or mistake in registration. A cause of action against a county register and tbe sureties on bis official bond, for bis failure to register correctly a conveyance of land, accrues not wben tbe mistake is made, but wben tbe damages are sustained in consequence of sucb failure or ■ mistake and tbe statutes of limitations begin to r.un at tbe time tbe damages are sustained. ' (Post, pp. 619, 623-638.) Code cited and construed: Sec. 570 (S.); sec. 532 (M. & V.); sec. 456 (T. & S. and 1858). Cases cited and approved: Yerger v. Young, 9 Yer., 42; Tate y. Lawrence, 11 Heis., 511; Maxwell y. Stuart, 99 Tenn., 419; Wabash Co. y. Pearson, 120 Ind., 426; Hotart v. Railroad, 36 La. Ann., 450; Ludlow y. Railroad (N. Y.), 6 Lans., 128; Sterrett v. Ncrthport, etc., Co., 30 Wash., 164, 176; Allen v. Stephens, 102 Ga., 596; Hempsted y. Cargill, 46 Minn., 118; Hartford v. Waterman, 26 Conn., 324; Butterfield y. Forrester, 11 East, 60; People, for use of Tritch, y. Cramer, 15 Colo., 155; Steele & Johnson y. Bryant, 49 Iowa, 116. Case cited and disapproved: Daniel v. Grizzard, 117 N. C., 105.
113 Tenn. 639Staples v. Brown (1904)
FROM ROANE. Appeal from the Circuit Court of Roane County.— George L. Burke, Judge.
113 Tenn. 657Hardwick v. American Can Co. (1904)
1. CONTRACTS. To furnish, stoves obligates the other party to take them. A contract between a manufacturer and dealer whereby the manufacturer contracts and agrees to ship to the order of the dealer five thousand or more stoves within one year from its date, at a price fixed or ascertainable, obligates the dealer to take at least five thousand stoves, within the time limited. {Post, pp. 660-662 2. SAME. Same. Construed with reference to previous contracts and dealings between the parties. Such contract is not too indefinite for enforcement where the specifications, sizes, assortments, grades, and quantity of each required are ascertainable from previous contracts and dealings between the same parties, or the manufacturer and the predecessor of the dealer, the last contract with the predecessor being assumed and carried out by the contracting dealer. {Post, pp. 661, 662-672, Cases cited and approved: Lumber Co. v. Coal Co., 160 Ill., 85; Wells v. Alexander, 130 N. Y., 642, 646; Parker v. Pettit, 43 ■N. Y., 512; Daily v. Clark, 128 Mich., 591; Hicky v. O’Brien, 123 Mich., 611; Carriage Co. v. Steel Co., 10"4 Fed., 200; Oil Co. v. Lumber Co., 113 Fed., 923. Cases cited and distinguished: Hixon v. Hixon, 7 Hum., 33; Miller v. McKinney, 5 Lea, 93; Railroad v. Green, 9 Heis., 588, 593; Kimball v. Dure Wells & Co., 108 Iowa, 676. 3. SAME. Same. Same. Construed from the standpoint, situation, and surroundings of the parties. It is the duty of the court to ascertain, if it can, the meaning which a contract bears in the minds of the parties, and to enforce that meaning or intention; and for the purpose of discovering the intention the court must view the situation of the parties and their surroundings, so as to place itself in the position which they occupied, and thus he able to see the things spoken of in the contract as they saw them. (Post, p. 670.) 4. SAME. Resale and recovery of difference between contract price and amount realized on resale by seller for purchaser’s breach of contract, when. In executory contracts of sale of personalty where the title and possession remain in the seller, as well as in executed contracts of sale Where the title has passed to the purchaser, in case of purchaser’s breach of the contract before delivery to him, the seller may resell the property, after proper notice to the purchaser, and then maintain a suit against the purchaser for the difference between the contract price and the price realized upon such resale with interest and expenses. (Post, pp. 672-674, 677, 681.) Cases cited and approved: McClure v. Williams, 6 Sneed, 717; Williams v. Godwin, 4 Sneed, 557; Barker v. Reagan 4 Heis., 590; Cole v. Zucarello,, 104 Tenn., 64; Slaughter v. Marlow (Ariz.), 31 Pac., 547; Hide & Leather Co. v- Chalkly (Va., 1903), 44 S. E., 705; Pratt v. Manufacturing Co. (Wis., 1902), 92 N. W., 368; Nelson v. Iron & Rail Co. (Mo.), 77 S. W., 590, 595; Roebling Sons Co. v. Pence Co. (Ill.), 22 N. E., 518; Lumber Co. v. Manufacturing Co., 91 Wis., 667; Gehl v. Produce Co., 105 Wis., 573; Ore Co. v. Guano Co., .109 Ga., 607; Van Brock-len v. Smeallie, 140 N. Y., 70, 75. Case cited and disapproved: Ironworks v. Iron River Co., 64 Fed., 669. 5. SAME. Same. Damages liquidated by resale after suit brought for damages, generally, are not recoverable. But if the seller seeks to recover the damages liquidated by a resale, he must sue ’herefor. He cannot sue for damages generally, and by virtue of a resale, made after the filing of the bill, recover such liquidated damages, together with' the expenses incurred in effecting such sale. (Post,#. 681.) See citations under headnote 4. 6. SAME. Executed contracts passing title and executory contracts not passing title. Executed contracts of sale of personalty are bargains and sales in which the title to the goods has passed, while executory contracts of sale contemplate that something is to be done to complete the sale, such as weighing, selecting, delivering, or other act, and the title does not pass until there is an appropriation, in the mode agreed upon, of specific goods to the contract. (Post, pp. 674-677.) Cases cited and approved: Potter v. Coward, Meigs, 22; Pulse v. State, 5 Hum., 108, 109; Williams v. Allen, 10 Hum., 338; Shaddon v. Knott, 2 Swan, 362; Broyles v. Lowry, 2 Sneed, 25; Bush v. Barfield, 1 Cold., 93; Bond v. Greenwald, 4 Heis., 463; Barker v. Reagan, 4 Heis., 593; Railroad v. Ford, 11 Heis., 390; Rawls v. Patterson, 1 Bax., 372; Harding v. Metz, 1 Tenn. Chy., 610, Q11-, 612; Barker v. Freeland, 91 Tenn., 112. 7. REMAUDMENT FOR RETRIAL. Upon reversal of chancery decree based upon wrong principles of law under reference to the master. Where the seller of personalty sues to recover damages from the purchaser for his breach of the contract, and the chancellor decrees that complainant is entitled to recover the difference between the contract price and that realized under a resale made after the institution of that suit, and refers the cause to the master on this basis, and renders a decree based upon a report made by the master pursuant to the terms of the decree of reference, the supreme court will reverse the decree for this error, and will remand the cause for a retrial, with leave to the complainant to take a reference under the bill, to ascertain the damages to be measured by the difference between the contract price and the price at the time and place of delivery. (Post, pp. 673,682.)
113 Tenn. 683Nashville, Chattanooga & St. Louis Ry. v. Sansom (1904)
1. NONSUIT.' When allowed in jury cases. In cases triable by a jury, the plaintiff may take a nonsuit “at any time before the jury retires,” that is, before the jury has begun “to consider of their verdict.” Code cited and construed: Secs. 4689, 4690 (S.); secs. 3678, 3679 (M. & V.); secs. 2964, 2965 (1858). S. SAME. When allowed, where trial is by court. Where the trial is by the court instead of the jury, a nonsuit can only be taken before the case is finally submitted to the court. Code cited and construed: Sec. 4691 (S.); sec. 3680 (M. & Y.); sec. 2966 (1858). 3. DEMURRER, TO EVIDENCE. Effect of, is to withdraw case from jury. When a demurrer to the evidence is filed and issue joined thereon the ease is withdrawn from the consideration of the jury and becomes a matter to be tried by the court. {Post, pp. 687-691.) Cases cited and approved: Hopkins v. Railroad, 96 Tenn., 409-423; Mfg. Co. v. Morris, 105 Tenn., 654; Railroad v. Dowd, 9 Heisk., 179, 184, 187; Suydam v. Williamson, 20 How., 427; Van Stone v. Mfg. Co., 142 U. S., 134. 4. SAME. Same. Motion for nonsuit too late, when. Case in judgment. The plaintiff instituted her action to recover damages for the wrongful killing of her husband. A jury was impaneled to try the issue, and plaintiff introduced her evidence, to which the defendant railway company demurred, and issue was joined thereon. After argument, by the respective counsel on the merits of the demurrer, had been closed, the plaintiff moved for leave to take a nonsuit, which was granted and her suit dismissed. Defendant duly excepted, prayed and was granted an appeal. Held, the effect of the demurrer to the evidence was to withdraw the case from the jury and after. argument on the demurrer had been closed the case was “finally submitted to the court,” and plaintiff was no longer entitled to take a nonsuit. 5. QUESTION RESERVED. Discretion, of court over question of nonsuit. Whether the trial judge is vested with discretion to grant leave to take a nonsuit, when the time for taking same had passed when the motion was made, was reserved.
113 Tenn. 692Brannon v. Wright (1904)
1. GUARDIAN’S BOND. ' Suit on, in name of ward. A suit on a guardian’s bond may be maintained in a court of equity by a ward, after reaching his majority, in his own name; although the State is a proper party, and the correct practice is to bring the suit in the name of the State, for the use of the ward. Code cited : Sec. 4494 (S.). Cases cited: Johnson v. Molsbee, 5 Lea, 444; Brandon v. Mason, 1 Lea, 628. 2. SAME. Sureties may be sued without principal. The sureties on a guardian's bond may be sued in an action on the bond, without joining the guardian. ■ Code cited: Secs. 4484, 4486 (S.); secs. 3484, 3486 (M. & V.); secs. 2787, 2789 (1858). 3. SAME. Same. Proper practice. It is ordinarily the better practice to make the guardian a party along with the sureties, so that the amount of the liability may be properly fixed; but there is no reason for doing so where there is no dispute as to the amount, or as to the liability of the guardian who is dead and has no administrator, and whose estate is insolvent. 4. SAME. Sureties may be sued without administration on estate of guardian. An action may be maintained against the sureties on the bond of a deceased guardian, without having an administrator appointed upon the estate of the guardian. 5. SAME. Principal need not be exhausted before going on sureties. It is not necessary that the estate of the guardian should be exhausted before going on the sureties on his bond.
113 Tenn. 697Red River Furnace Co. v. Tennessee Central Railroad (1903)
1. ELECTIONS. Commissioners of registration styling themselves “commissioners of election,” in notice of election, does not invalidate the election. The fact that commissioners of registration styled themselves “commissioners of election,” in the statutory notice calling and advertising a special election for the purpose of determining whether or not the city should subscribe for so much stock in a certain railroad, was a mere clerical error, not misleading, and insufficient to invalidate the .election. (Post, pp. 706-708.) 2. SAME. Irregularities cured by validating statutes The irregularities of opening of poils at only two of the three polling places in a city at an election to determine whether or-not the city should subscribe for so much stock in a certain railroad, of calling an election by resolution of the city council instead of by ordinance; of the rejection of certain ballots cast without any reason being given by the officers of the election; and of ballots not of proper form, were cured by a statute (Acts 1903, ch. 276) validating such election. (Post, pp. 707-709.) Acts cited and construed: 1903, ch. 276. 3. SAME. Carried by bribery and disqualified voters cannot be validated by legislature. The legislature has no power to pass an act validating an election carried by bribery, by corrupt use of money, and by the votes of persons rendered infamous by judgments of courts of competent jurisdiction. (Post, pp. 708, 709, 710.) Constitution cited and construed: Art. 4, sec. 1, last clause. 4. SAME. Bill charging eighty-eight votes rejected by judges of election, without more, is insufficient to show illegality. A bill attacking an election, charging that eighty-eight of the ballots cast were rejected by the judges of the election, is insufficient to show illegality, in the absence of a further allegation that these were ballots of qualified voters, or that the judges violated some legal duty in rejecting them. (Past, ‡. 712.) 5. SAME. Requisites of bill attacking election for bribery, corruption, and votes cast by persons disqualified by infamous crimes. A bill alleging that in a city election, held to determine whether or not the city should subscribe for so much stock in a certain railroad, six hundred and eighty-one votes were cast for, and two hundred and twenty-three against the subscription, and that eighty-eight of the votes cast were thrown out by the judges as illegal, that complainants are informed, and therefore charge, that the representatives and agents of the railroad company gave money to seven named persons, and paid their poll taxes, in consideration of their votes, and that nine other persons who voted for the subscription, prior to the election had been convicted of infamous crimes and rendered infamous, is insufficient without more and specific allegation as to the conviction of such infamous pérsons, and without an allegation showing that such illegal votes were not a part of the eighty-eight votes that were rejected, and that they formed an essential part to the constitutional total east in favor of the subscription. (Post, pp. 713-715.) Cases cited and approved: Fort v. Orndoff, 7 Heis., 167; Winham v. Crutcher, 2 Tenn. Chy., 535; Raht v. Mining Co., 5 L,ea, 1; Crockett v. McLanahan, 109 Tenn., 517; Marquez v. Frisbie, 101 U. S., 473. 6.MUNICIPAL CORPORATIONS. Subscription for stock in a railroad, authorized by resolution directing mayor to make same, is not complete until made by the mayor. A city’s subscription for stock in a railroad is not binding by an ordinance or resolution making effective the vote cast at a popular election held to determine whether or not the city should subscribe for stock in a railroad, and directing the mayor to subscribe, in its name and for its benefit, for the stock in the railroad, but such subscription is only complete when- made by the mayor and the time within which the railroad was bound to complete its line to the city from the date of the subscription began to run from the date of the mayor’s subscription, and not from the date of the passage of said ordinance or resolution. {Post, pp. 715-719.) Cases cited and approved: Nugent v. Supervisors, 19 Wall., 241; Moultrie v. Bank, 92 U. S., 631; Bates v. Winters, 97 U. S., 83. Case cited, distinguished, and approved: Nelson v. Haywood Co., 87 -Tenn., 781. 7. SAME. Submission of indivisible proposition for subscription and mode and terms of payment for stock in railroad. Where the notice of the commissioners of registration of a city election to determine whether or not the city should subscribe for stock in a railroad had attached thereto as a part of it a copy of the proposition, for the information of the voters, which contained both the question of the subscription and the mode and terms of payment thereof, the submission was that of an indivisible proposition including both the question of subscription and the mode and terms of payment. (Post, pp. 719-720.) Act cited and construed: 1887, ch. 3. 8. SAME. Payment- of subscription for stock in railroad does not constitute a lending of the city’s credit. The payment of a city’s subscription to the stock of a railroad, does not constitute a lending of the city’s credit within the sense of the constitution; and, therefore, there is no constitutional necessity for submitting to popular election tbe question of tbe mode or manner of tbe payment of tbe city’s subscription constitutionally and validly made for tbe stock of tbe railroad. {Post, p. 720.) Case cited'and approved: Johnson City v. Railroad, 100 Tenn., 138. Constitution construed, but not cited: Art. 2, sec. 29. 9. SAME. Special legislation affecting, not prohibited, by constitution. Special legislation as to municipal corporations is not prohibited by tbe constitution. {Post, pp. 722, 623.) Acts cited and construed: 1887, cb. 3; 1890 (ex. ses.), cb. 24; 1903, cb. 276. Constitution cited and construed: Art. 11, sec. 8. Cases cited and approved: State v. Wilson, 12 Lea, 246; Ballen-tine v. Pulaski, 15 Lea, 636; Williams v. Nashville, 89 Tenn., 487; Reelfoot Lake Levee District v. Dawson, 97 Tenn., 151; Burnett v. Maloney, 97 Tenn., 697; Davis v. Rogersville, 107 Tenn., 588; Redistricting Cases, 111 Tenn., 234. 10. SAME. Statute ratifying and curing defects in subscription to-stock in railroad is constitutional, when. A statute (Acts 1903, ch. 276) ratifying and curing defects in a subscription made by the city of Clarksville for stock in a certain railroad is not unconstitutional as partial law, suspending for tbe benefit of said city tbe general law for subscription for stock in railroads by cities. {Post, pp. 723-725.) Acts cited and construed: 1851-52, cb. 117; 1866-67 (private), cb. 48, sec. 6; 1867-68 (private), cb. 6; 1887, cb. 3; 1903, cb. 276. Case cited and approved: Lauderdale Co. v. Fargason, 7 Lea, 153. 11. SAME. Statute validating subscription for stock in railroad and authorizing bonds for the payment thereof embraces but one subject, and is constitutional. A statute (Acts 1903, ch. 276) -validating and approving the subscription for stock in a certain railroad made by the city of Clarksville, and authorizing the issuance of bonds by the city . to be used to pay such subscription, and providing for the payment of such bonds, is not invalid as embracing more than one subject, and is not contrary to the constitution. (Post, pp. 725-730.) Acts cited and construed: 1887, ch. 3, see. 12; 1903, ch. 276. Constitution cited and construed: Art. 2, sec. 17. Case cited and approved: Ryan v. Terminal Co., 102 Tenn., 111. IS. SAME. Special statute authorizing issuance of bonds to pay . subscription for stock in a railroad without limiting maturity of bonds is in pari materia with Acts 1887, eh. 3, limiting maturity at twenty years. A statute validating the election and approving of a city’s subscription for stock in a railroad, and providing for the issuance of bonds to be used in payment of the subscription, does not confer a new power on the city in that it authorizes the issuance of bonds for a longer term than twenty years by a mere resolution of the municipal board, when one of the terms of the proposition voted on was that the payment should be made in twenty year bonds, because this curative statute was in pari materia with the statute under which the election was held, limiting the date of the maturity of such bonds at twenty years. (Post, pp. 726, 730.) Acts cited and construed: 1887, ch. 3; 1903, ch. 276, sec. 2. 13. SAME. Statute authorizing bonds, not to exceed six per cent, interest, is not a departure from the proposition to accept bonds bearing not less than four per cent, interest. • Where a railroad’s proposition to take the city’s bonds in payment of its subscription for stock in the railroad, was that the bonds bear interest at not less than four per cent. — a statute validating the subscription and providing that the interest on the bonds should not exceed six per cent., did not constitute a departure from the terms of the proposition submitted and accepted by the city. (Post, pp. 730, 731.) Act cited and construed: 1903, ch. 276, sec. 2. 14. SAME. Statute validating subscription for railroad stock operative as original statute, when. A statute validating a city’s subscription for stock in a railroad operates retrospectively to legalize the subscription to the same extent as though authority had been previously given. (Post, p. 731.) Act cited and construed: 1903, ch. 276. Cases cited and approved: Shields v. Land Co., 94 Tenn., 123; Muse v. Lexington, 110 Tenn., 655; Supervisors v. Brown, 112 U. S., 261. 15. CHANCERY PLEADING AND PRACTICE. Pacts constituting fraud, and not mere general averments of fraud, must be alleged. Wherever fraud is claimed as a basis of relief, it is essential that the facts which constitute it shall be set out clearly, concisely, and with sufficient particularity to apprise the defendant or the adversary party of what he is called upon to answer, and mere general allegations of fraud are not sufficient. (Post,pp. 710-712.) Cases cited and approved: Fort v. Orndoff, 7 Heis., 167; Winham v. Crutcher, 2 Tenn. Chy., 535; Raht v. Mining Co., 5 Lea, 1; Crockett v. McLanahan, 109 Tenn., 517'; Marquez v. Frisbrie, 161 U. S., 473.