114 Tenn.

Volume 114 — Tennessee Reports

61 opinions

114 Tenn. 1Keith v. Alger (1904)
FROM FRANKLIN. Appeal from tbe Chancery Court of Franklin County. —T. M. McConnell , Chancellor. STATEMENT OF FACTS MADE BT MB. JUSTICE NEIL. The bill in this case was filed by the complainant as executrix of John F. Anderson, and by certain other persons as his devisees and heirs at law, for the purpose of setting aside, for fraud, a judgment obtained against them in the circuit court of the United States, sitting at Nashville.
114 Tenn. 31Railroad Co. v. Brundige (1904)
1. CONTRACTS. Mental capacity to make, is question for court and jury to determine. The degree of mental capacity -which the party whose act is called in question must have, to enable him to make a valid contract, is a question of law for the court to decide and whether siich party has the required degree is a question of fact to he found by the jury from all the evidence; and the opinions of the witnesses are not competent evidence to determine either point. Cases cited and approved: Gibson v. Gibson, 9 Yerg., 329; Kirkpatrick v. Kirkpatrick, 1 Tenn. Cas., 258; Wisener v. Maupin, 2 Bax., 358; Brown v. Mitchell (Tex. Sup.), 36 L. R. A., 64; Runyon v. Price (Ohio), 86 Am. Dec., 462; Van Zandt v. Ins. Co., 14 Am. Rep., 223; Walker v. Walker’s Executor, 34 Ala., 469; White v. Bailey, 10 Mich., 159; May v. Bradlee, 127 Mass., '414. Case cited and distinguished: Poole v. Dean, 152 Mass., 589. 3. EVIDENCE. Opinions of physicians inadmissible to determine contractual capacity. Case in judgment. The mental capacity of the female plaintiff to execute a contract compromising the litigation, was practically the sole point in issue. There was proof showing that the compromise contract was executed by the wife at the request and in the presence of her husband. Evidence was offered by the defendant to show the existence of contractual capacity, to rebut which plaintiff offered the testimony of two physicians, which was admitted over apt objections of defendant, that in their opinion plaintiff was not in a condition to make a contract. Other facts shown made the case critically close upon the determining issue. Held-. That the admission of the opinions of the physicians as to the mental capacity of the plaintiff, which was a question to he determined by the court and jury, was prejudicial error and ground for reversal. See cases cited and approved under headnote 1.
114 Tenn. 40Cooper v. Flemming (1904)
1. MALICIOUS PROSECUTION. Advice of counsel tends to rebut malice. In an action for malicious prosecution, the fact that the defendant acted on the advice of counsel in the prosecution for which he is sued may properly he considered hy the jury as tending to rebut the existence of malice. (Post, p. 46.) Case cited: Brewer v. Jacobs (C. C.), 22 Fed. R., 217. 2. SAME. Advice of counsel furnishes immunity from damages for, when. That the defendant in an action for malicious prosecution commenced the prosecution for which he is sued in pursuance of the advice of counsel establishes the existence of probable cause and, as a matter of law, entitles the party sued to complete immunity from damages, provided: such advice was honestly sought, and all the material facts relating to the ease, ascertained or ascertainable by due diligence, were presented to the counsel. (Post, pp. 46-52.) Citations: Note to Ross v. Hixon, 26 Am. St. Rep., 144; Cooley on Torts, p. 183; Newell on Malicious Prosecution, p. 255, note. Case cited and distinguished: Graham v. Life Association, 98 Tenn., 61, 37 S. W., 995. Cases cited and disapproved: Hall v. Hawkins, 5 Humph., 359; Kendrick'v. Cypert, 10 Humph., 291. Cases cited and approved: Stewart v. Sonneborn, 98 U. S., 196, 25 L. Ed., 116; Snow v. Allen, 1 Stark., 502; Ravenga v. Mackintosh, 2 Barn. & C., 693; Walter v. Sample, 25 Pa., 275; Cooper v. Utterbach, 37 Md., 282; Olmstead v. Partridge, 16 Gray, 381; Ash v. Marlow, 20 Ohio, 119; Hill v. Palm, 38 Mo., 13; Eastman v. Keasor, 44 N. H., 519; Wicker v. Hotchkiss, 62 Ill., 107; Anderson v. Friend, 71 Ill., 475; Davis v. Wisher, 72 Ill., 262; Stone v. Swift (Mass.), 4 Pick., 389; Whitfield v. Westbrook, 40 Miss., 311; Leaird v. Davis, 17 Ala., 27; Levy v. Brannan, 39 Cal., 485; Blunt v. Little, 3 Mason, 102, Fed. Cas. No. 1578; Sappington v. Watson, 50 Mo., 83; Glascock v. Bridges, 15 La. Ann., 672; Bartlett v. Brown, 6 R. I., 37; Davenport v. Lynch, 51 N. C., 545; Paddock v. Watts, 116 Ind., 146; Adams v. Bicknell, 126 Ind., 210. Other cases cited: Maudlin v. Ball, 104 Tenn., 598, 58 S. W., 248; Morgan v. Duffy, 94 Tenn., 686, 30 S. W., 735; Vance v. Phoenix Ins. Co., 4 Lea, 385; Memphis Gayoso Gas Co. v. Williamson, 9 Heisk., 342. 3. CHARGE OF COURT. Error to charge that advice of counsel is not sufficient evidence of probable cause if unsound in law. An instruction to the jury in an action for damages for an alleged malicious prosecution on a charge of wilfully and wantonly breaking and throwing down the fence inclosing the land of another, that “the advice of the district attorney would be sufficient evidence of probable cause, provided such advice was warranted by the law governing the offense of wantonly and wilfully throwing down the fence of another” is reversible error. (Post, pp. 46, 47.) 4. SAME. Error to charge that jury are to determine whether advice of counsel was sound in law. It was also reversible error to instruct the jury in such case that “whether the opinion of the attorney-general was justified by the foregoing statute was a question to be determined by the jury.” (Post, p. 47.) 5. SAME. Refusal to charge. Error to decline to charge that advice of counsel, properly obtained, constitutes probable cause, although erroneous in law. It was also reversible error, in such case, for the trial judge to decline to charge, although requested so to do, that “the advice of the district attorney, based upon an honest and full presentation of all tlie material facts, would constitute probable cause, and a complete defense to the action, although, such advice was based upon an erroneous construction of the statute.” (Post, pp. 47,-52.) See cases cited under headnote 2. 6. PROBABLE CAUSE. A mixed question of law and fact. The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to 'show it are true and existed is a matter of fact, but whether, supposing them to be true, they amount to a probable cause, is a question of law. (Post, p. 52.) 7. SAME. Same. Proper practice. It is the duty of the court, when evidence has been given to prove or disprove probable cause, to submit to the jury its credibility and what facts-it proves, with instructions that the facts found amount to probable cause, or that they do not. (Post, pp. 52, 53.) Cases cited and approved: Stewart v. Sonneborn, 98 IT. S., 187; Memphis Gayoso Gas Co. v. J. M. Williamson et al., 9 Heislt., 342.
114 Tenn. 54Thompson v. Blanks (1904)
X. JUSTICE’S EXECUTION. Lien of levy How preserved. The levy of an execution from a justice of the peace bn land creates a lien from the date of its levy; hut, in order to continue the lien beyond ten days from the date of the levy, so as to affect third parties, the exeeutiton must be filed and docketed in the circuit court within the ten days, and the remaining papers in the case must be returned by the justice to the first term of the court thereafter. Act cited and construed: Acts 1899, ch. 39, p. 54. 2. SAME. Same. Not sufficient to merely deposit execution in clerk’s office. It is the filing and docketing that makes the lien effective as to third persons after the expiration of ten days from the date of the levy, and it is not sufficient to merely deposit the execution in the clerk’s office. Cases cited: Hickman v. Perrin, 6 Cold., 135; Turbeville v. Fowler, 101 Tenn., 94, 46 S. W., 577. 3. SAME. Same. Lien suspended until execution filed and docketed. ■ Unless the execution is filed and docketed in the circuit court within the ten days, the lien is suspended, and does not exist, ■as against third parties, until it is so filed and docketed.
114 Tenn. 58Payne v. Satterfield (1904)
1. APPEAL. Does not lie until final decision. It is a well-settled rule, save where changed by statute, that questions arising in the course of legal proceedings cannot be reviewed in an appellate court until a final decision in the cause has been rendered in the court below. Cases cited: Evans v. Shields, 3 Head, 71; Kendall v. Lassiter, 68 Ala., 181; Lester v. Be2'kowitz, 125 Ill., 307, 17 N. E., 706; Pistor v. Hatfield, 46 N. Y., 249; Luxton v. North River Bridge Co., 147 U. S., 337. 2. SAME By statute, allowed before final decision only in equity cases. The appeal allowed before final decree by statute (Code, see. 4889 (S.)) is confined to equity ea"es, tried either in the circuit or chancery court, and cannot be granted in a case involving no equitable principle. Code cited and construed: Secs. 4887, 4888, 4889 (S.); secs. 3872, 3873, 3874 (M. & V.); secs. 3155, 3156, 3157 (T. & S. and 1858). 3. SAME. Case where premature. An action to recover damages for deceit alleged to have been practiced in the sale and purchase of real estate does not fall within the provisions of the Code cited in headnote above, numbered 2, and in such case an appeal'in the nature of a writ of error will not lie from the action of the trial judge in sustaining one ground of demurrer d rected to only a part of plaintiff’s claim and not to the whole declaration, and overruling other grounds of the demurrer to the whole declaration.
114 Tenn. 62Bank of Winchester v. White (1904)
1. CHANCERY PLEADING AND PRACTICE. Defense of out standing title must be pleaded, when. A defendant in an action to recover an unpaid balance of purchase money for land bought by him, who also sues by cross bill to recover purchase money already paid, on the ground of a breach of the warranty of title, cannot produce in evidence a deed tending to show an outstanding title superior to that of his vendor, without pleading same. (Post, pp. 66-68.) 2. RES ADJUDICATA. Vendor not bound by judgment against vendee, when. The vendor of land suing for the purchase price' is not concluded by a judgment against his vendee in an action of ejectment in which the vendor was not a party and in the defense of which he was not allowed to participate. (Post, pp. 64, 65, 74.) 3. SUPREME COURT. Will not remand for amendment of pleadings where justice has been done. The supreme court will not remand a case in order that additional pleadings may be filed, unless it can see that justice V ¡ ■ not been done, and that it would in all' probability be done by making the remand. (Post, pp. 68-75, and especially 73.) Code cited and construed: Sec. 4905 (S.); sec.'3889 (M. & V.); sec. 3170 (1858). Cases cited: Henderson’s Admr. v. King, 4 Hayw., 94, 98; Cain v. Kersay, 4 Yerg., 443; Garner v. Hewett’s Heirs, 2 Yerg., 498; Wilson v. Smith, 5 Yerg., 379; Stovall v. Bowers, 10 Humph., 560; MeCandless v. Polk & Walker, 10 Humph.. 617. 6"1: Smith v. Carden, 1 Swan, 28; Cowan v. Dodd, 3 Cold., 283, 284; Grider v. Harbison, 6 Cold., 208, 214; Charles v. Taylor, 1 Heist., 528; Saylors v. Saylors, 3 Heis., 526; Stewart v. Glenn, 3 Heist., 581; Smith v. Hinson, 4 Heisk., 250, 256; Thurman v. Jenkins, 2 Baxt., 429; Fogg v. Union Bank, 4 Baxt., 539, 541; Wood v. Neely, 7 Baxt., 590; Evans v. Thompson, 12 Heisk., 538; McKinley v. Sherry, 2 Lea, 201; McEwen v. Gillespie, 3 Lea, 204; Puckett v. Richardson, 6 Lea, 64; Settle v. Marlow, 12 Lea, 472,' 474, 475; Smith v. Carter, 16 Lea, 527; Bank of Jamaica v. Jefferson, 92 Tenn., 537, 542; Bond v. Montague, 97 Tenn., 727; Anderson Co. v. Hays, 99 Tenn., 542, 567; Mfg. Co. v. Weatherly, 101 Tenn., 318, 322; Schilling v. Darmody, 102 Tenn., 439, 449, ¿50; Sully v. Childress, 106 Tenn., 109, 120; Sawyers v. Sawyers, 106 Tenn., 597, 605, 606; Caesar v. Harris, 108 Tenn., 653. 4. SAME. Same. Will not remand for additional pleadings if party asking is guilty of culpable negligence. The supreme court will not remand a case in order that additional pleadings may be filed, if the party seeking the remandment has been guilty of culpable negligence. (Post, pp. 70-75.) See Code, and cases cited un
114 Tenn. 76State v. Frankgos (1904)
X. SCIRE FACIAS. Immaterial omission in writ. A scire facias, requiring the sureties upon a forfeited recognizance in a felony case to,appear and show cause why judgment final should not be taken against them, will not be quashe'd because of the omission of the words “in the name of the State” from the commanding part of the writ addressed to the sheriff. Act cited and construed; 1897, eh. 47. 3. SAME. ■ May issue against sureties alone. A recognizance, with sureties, for the appearance of a defendant in a felony case is a joint and several obligation, and a scire facias thereon may issue against the sureties alone, without the principal. Code cited and construed: See. 4484 (S.); sec. 3484 (M. & V.);. sec. 2787 (1858). Cases cited and approved: Brewer v. State, 6 Lea, 199; Davis v. Davis, 5 Lea, 182. 3. EXONERATION OF BAIL. Not without surrender of principal, when. In order to entitle the sureties on a forfeited bail bond to relief under sec. 5180 of the Code (Shan., sec. 7144), it is imperatively required that the body of their principal be produced in court, and under that section no relief can be had without the surrender of the defendant. Code cited and construed: secs. 5180, 5181 (1858); secs. 6010, 6011 (M. & V.); secs. 7144, 7145 (S.). 4. SAME. Not granted by court except in extreme cases. The power vested in the court by secs. 5182, 5183 of the Code (Shan., secs. 7146, 7147), to relieve against a forfeited recog- nizance, is to "be exercised only in extreme cases, and was not intended to authorize courts to relieve sureties upon bonds and recognizances of parties charged with crime, who have made default and are still at large, merely because the sureties have, in good faith and at much expense, made unavailing efforts to recapture their principal. Code cited and construed: Secs. 5182, 5183 (1858); secs. 6012, 6013 (M. & V.); sees. 7146, 7147 (S.).
114 Tenn. 84Louisville & Nashville Railroad v. Sawyer (1904)
RAILROADS. Warning of approach of trains at overhead crossings when danger is to he reasonably apprehended. Where a public road is crossed by a railroad on an overhead bridge, no absolute duty rests upon the railroad company, either at common law or by statute, to give reasonable warning to travelers on the highway of the approach of a train by the usual signals; but, if the place is dangerous, the company must warn travelers on the highway of the approach of its trains; and whether the place, as a matter of fact, is dangerous, is a question for the determination of the jury; and in the event the jury should find that danger was to be reasonably apprehended at the conjunction of the underpass and overhead bridge, then, as a matter of law, it was the duty of the railroad company to give warning of the approach of its trains. Cases cited and approved: Railroad v. Barnett, 59 Pa., 259, 263; Rupard v. Railroad, 88 Ky., 280; Railroad v. Dillon, 123 Ill., 750; Pennsylvania Co. v. Kriek, 47 Ind., 386; Winstanley v. Railroad, 72 Wis., 375; Railroad v. Hamilton, 44 Ind., 76; People v. Railroad, 13 N. Y., 78. Cases cited, distinguished, and disapproved: Favor v. Railroad, 114 Mass., 350; Ryan v. Railroad, 132 Pa., 304; Ransom v. Railroad, 62 Wis., 178; Jenson v. Railroad, 57 N. W., 359, 22 L. R. A., 680; Farley v. Harris (Pa.), 40 Atl., 798.
114 Tenn. 100Green v. Snyder (1904)
1. NONRESIDENT. Process may be served upon agent of, when. Whenever a corporation, company or individual has an office or agency or resident director in any county other than that in which the chief officer or principal resides, the service of process may be made upon any agent or clerk in all actions brought against such corporation, company or individual in that county. Code cited and construed: Secs. 4516, 4542-4546 (S.); secs. 3516, 3539 (M. & V.); secs. 2811, 2834 (T. & S. and 1858). 2. SAME. Same. Not confined to suits arising in county. And such service is not confined to suits growing out of business carried on in that county by such nonresident corporation, company or individual, but extends to its business and transactions generally. Gases cited and approved: Toppins v. Railroad, 5 Lea, 604; Railroad v. Walker, 9 Lea, 481. 3. ATTACHMENT. Not to be resorted to when personal service can be had. Attachment of property is not the ordinary mode of obtaining jurisdiction, but it is extraordinary, and not to be resorted to when personal service can be had in order to obtain such jurisdiction. Code cited and construed: Sec. 5284 (S.); sec. 4265 (M. & V.); sec. 3524 (1858). Case cited and approved: Tureott v. Railroad, 101 Tenn., 105. 4. STATUTE OF LIMITATIONS. Bars action, when. Case in ' judgment.. An action for damages for personal injuries alleged to have been inflicted December 27, 1900, was brought May 12, 1902, by the Issuance and levy of an original attachment, in lieu of personal service of process, on the ground that defendant was a non-residént of Tennessee. Defendant pleaded in abatement to the attachment that, although he did not reside in Tennessee, he had, continuously and without interruption, between the date of the injury and the time suit was begun, carried on business and had an office and agents and representatives in the county where the suit was brought. A demurrer to this plea was sustained by the court below. Defendant then pleaded,' among other defenses, the statute of limitations. Held: 1. That the demurrer to the plea in abatement was improperly sustained; and, 2. That, if the averments of the plea in abatement are true, the plaintiff might at any time have brought his' suit and had personal service upon an agent of defendant, and failing to do so within one year after the injury, no recovery can be had over defendant’s plea of the statute.
114 Tenn. 105Heath v. Manire (1904)
1. TURNPIKE COMPANIES. Provisions of Code confined to companies organized thereunder. The provisions of the Code of 1858, chap. 2, entitled “Of Private Corporations,” art. 1, entitled “Corporations for the Construction of Macadamized, Graded, Turnpike, Rail and Plank Roads,” are confined in their operation to companies organized under that article, Code cited and construed: Sees. 1400-1446 (1858). S. SAME. Same. Created by special act, not subject to limitations of the Code as to toll. A turnpike company chartered by special act (1859-60, ch. 3) is not subject to the limitations upon the right to take toll contained in Code of 1858, sec. 1437, providing that “No toll shall be claimed or taken from any person passing from one part of his farm to another part thereof ... or to or from a gristmill with grain for family use.” Acts cited and construed: 1859-60 (Private), ch. 3; 1851-52, ch. 266, secs. 8-11; 1831, ch. 46; 1829 '(Private), ch. 255. Code cited and construed: secs. 1436, 1437 (1858). 3. SAME. Created by special act, not subject to provisions of subsequent general íaw. / Neither is such company governed by Acts 1875, chap. 142, sec. 7, providing that “No toll shall be demanded from persons passing from one to another part of his farm ... or from persons going to or returning from a gristmill, on horseback, with grain for family use.” Acts cited and construed: 1875, ch. 142, sec. 7. 4. SAME. Cannot take toll from one going to mill on horseback, when. A turnpike company, created by special act, that has complied with the requirements of sec. 2, ch. 369, Acts 1899, so as to obtain all the rights, powers and privileges conferred by the acts therein named, has thereby made the schedule of tolls provided for in Acts 1875, ch. 142, sec. 7, a part of its charter, and it cannot charge toll as against persons “going to, or returning from, a gristmill, on horseback, with grain for family use.” Acts cited and construed: 1899, ch. 369; 1875, ch. 142. 8. SAME. May take toll from one going to mill on two-horse wagon. A turnpike company that is forbidden to take toll from persons “going to, or returning from, a gristmill, on horseback, with grain for family use,” is not prohibited from charging toll as against one who is going to mill, on a two-horse wagon, with a load of grain to be ground for family use.
114 Tenn. 114Johnson v. Iss (1904)
1. CONTRACT OF MARRIAGE. Will not sustain suit for breach of promise, when. - - - An agreement to intermarry is illegal, and will not sustain an action for a breach 6f marriage contract, when it appears that the plaintiff was a married woman at the time of the promise by defendant, and such promise was made within five years after the disappearance of plaintiff’s husband who had deserted her and was not known to be living. Code cited and construed: Sec. 4188 (S.); sec. 3293 (M. & V.); sec. 2438 (1858). 2. SAME. Same. Not cured by agreement to postpone marriage until legal ob ec lr>ns removed. The illegality of the contract is not cured by the fact that the marriage was not to take place until after the five years prescribed by statute had expired, or until plaintiff should procure a divorce from her husband. Such contracts are immoral and against public policy, and cannot he recognized by the courts of this State. 3. SAME. Same. Differentiated from contract made by innocent party. Such contract is to be differentiated from one in which an innocent party makes a contract of marriage with another who is married, in ignorance of the fact that such other person is at the time a married man or woman.
114 Tenn. 117Lieberman v. Clark (1904)
1. FINDING OF FACTS. In a case tried by the circuit court judge without a jury is conclusive, if supported by some evidence. Where, in a replevin suit in the circuit court to recover logs, tried before the judge without the intervention of a jury, there 'is some evidence to support his finding that the plaintiff was. in possession of the land from which the logs were cut by the defendant at the time they were cut, that question, on appeal, must be determined in favor of the plaintiff. (Post, pp. 121", 122.) 2. REPLEVIN. Possession will support replevin against a trespasser. The special property conferred by possession is sufficient to support an action of replevin against a trespasser. (Post, pp. 122, 125-128.) Cases cited and approved: Crawford v. Bynum, 7 Yer., 381; Shaddon v. Knott, 2 Swan, 358, 363; Wilson v. McQueen, 1 Head, 17, 18; Criner v. Pike, 2 Head, 398; Carson v. Prater, 6 Cold., 565; Brammell v. Hart, 12 Heis., 366; Shields v. Dodge, 14 Lea, 356; Cartwright v. Smith, 104 Tenn., 689, 690, 691; Railroad v. Hall, 107 Tenn., 512. 3. SAME. In an action to recover logs, title papers may bo looked to for purpose of defining possession of land In an action of replevin to recover logs cut from land in possession of plaintiff, it is not improper in the court to look to the deeds showing title in plaintiff for the purpose of defining his possession. (Post, pp. 123, 132.) 4. CHAMPERTY. Heed for land in tlie adverse possession of another by actual possession and consequent constructive possession to extent of boundaries of title papers is champer-tous and void. Where the plaintiff in an action of replevin to recover timber was in the adverse possession of the land from which the timber was taken, by actual possession of part and the consequent constructive possession of the rest to the extent of the boundaries in his title papers, a deed made by a person out of possession, under which the defendant entered on the land and removed the timber from that part so adversely held by such constructive possession, cannot protect the defendant against a recovery, because such deed is champertous and void as to the whole tract so adversely held. {Post, p. 123.) Case cited and approved: Green v. Coal & Coke Co., 110 Tenn., 35. 5. ADVERSE POSSESSION. Actual possession of part of land under registered assurance of title extends adverse possession to the whole tract, enabling such adverse possessor to maintain a replevin suit for timber felled and, removed therefrom. Adverse possession of land under a registered assurance of title, or color of title, by actual possession of part of the land ox- . • tends not only to the actual possession, but also to the limits or boundaries contained in the title papers of such adverse possessor, and to the timber growing thereon, so as to enable such adverse possessor to pursue and recover the timber felled and ■v removed .therefrom, by an action of replevin, without deraigning his title, and regardless of the invalidity of his title or the superiority of the title of the person who felled and removed ' the timber therefrom, under a deed made to him after such possession was taken and during the continuance thereof. {Post, pp. 124-141.) Cases cited and approved: Hart v. Vinsant, 6 Heis., 616, 618, 619; Pullen v. Hopkins, 1 Lea, 741; Hicks v. Tredericks, 9 Lea, 491; Hunter v. Bills, 3 Tenn. Cas., 97, 101; Hebard v. Scott, 95 Tenn.', 467; Turnage v. Kenton, 102 Tenn., 328; Winters v. Hainer, 107 Tenn., 337; Elliott v. Coal & Coke Co., 1 Cates, 745; Green v. Coal & Coke Co., 2 Cates, 35; Mansfield v. Nortbcut, 4 Cates, 536; Cooper v. Watson, 73 Ala., 252, 255; Anderson v. Hapler, 34 Ill., 436, 439; Eaton v. Soutbby, Willes, 131; Snyder v. Vaux, 2 Rawle, 427; Vausse v. Russell, 2 McCord, 329; Matker y. Cburcli, Serg. & R., 509; Baker v. Howell, 6 Serg. & R.,-476; Brown y. Caldwell, 10 Serg. & R., 114; Powell v. Smith, 2 Watts, 126; DeMott y. Hagerman, 8 Cow., 220; Davis v. Easley, 13 Ill., 192; Stockwell y. Phelps, 34 N. Y.,363, 364; Rich y. Baker, 3 Denio, 79; Page v. Fowler, 28 Cal., 605; Halleck v. Mixer, 16 Cal., 579; Rees v. Higgins, 9 Kan. App., 832, 834;. Core v. Faupel, 24 W. Va., 245; Hodges v. Eddy, 38 Vt., 327; MeCol-man v. Wilkes, 3 Strob. (S. C.), 465, 471; Jeffrey v. Owen, 41 N. J. Law, 260; Newcome v. Crews, 98 Ky., 339; Brown v. Volkening, 64 Ñ. Y., 80; Foust v. Territory, 8 Okla., 541; Mitchell v. Bridges, 113 N. C., 63; Graham v. Houston, 15 N. C., 232; Sullivan v. Sullivan, 66 N. Y., 37. Case cited and disapproved in part: Hart v. Vinsant, 6 Pleis., 616. 6. DEEDS OF CONVEYANCE. Referring to State’s grant by its number is sufficient, where such grant describes the land. Deeds which refer to the State’s grant of land by its-number cannot be excluded on the ground that they do not describe any land, where the grant describes the land.'' (Post, p. 141.) 7. REPLEVIN. Plaintiff with right may join others with him without right. Where the whole-possessory right of property is in one of the plaintiffs in an action of replevin, it is immateiial to the defendants that he joins others with him in the suit, and shares his recovery with them. (Post, p. 141.) . ; . i 8. SAME. Same. Joinder of grantor of portion of land and grantee as plaintiffs obviates the question as to which part of the land the timber was cut on. Where a grantor of a portion of a tract of land and his grantee join in an action of replevin to recover timber felled and removed, it is immaterial to the defendant that the timber or part of it may have been cut and removed from the portion so sold and conveyed. (Post, pp. 141, 142.) 9. SAME. Immaterial whether timber was cut from land of plaintiff or a third person who transferred his right to plaintiff before suit. Where a third person transferred his right in timber, whatever it might be, to the plaintiff prior to the institution of the re-plevin suit, it is immaterial to the defendant that part of the timber was cut from the land of such third person, and it was impossible to distinguish it. (Post, p. 142.).
114 Tenn. 152Tennessee Chemical Co. v. Henry (1904)
1. LANDOWNERS. Not required to keep their premises safe for trespassing animals by incíósures or otherwise. Landowners are under no obligation to keep their premises safe for trespassing animals belonging to others, but the owners of animals must, at their peril, keep them off the land of others, and whether such lands are inclosed or not is immaterial. Cases cited and approved: Knight v. Abert, 6 Pa., 472; Rust v. Low, 6 Mass., 94; Hess v. Lupton, 7 Ohio, 216, pt. 1; Bush v. Brainard, 1 Cow., 79; Hughes v. Railroad, 66 Mo., 325; McGill v. Compton, 66 Ill., 327; Herold v. Meyers, 20 Iowa, 378; Walker v. Herron, 22 Tex., 65. S. SAME. Same. Not liable for unsafety of premises causing injuries to trespassing animals, if not an attractive nuisance; case in judgment. The owner of a shed inclosed except for a railroad track is not liable for the death of a cow straying therein caused by her eating sacks, which had contained nitrate of soda, stored in said shed, especially where the premises were not in any sense an attractive, nuisance, the maintenance of which would make the owner liable for injuries sustained by trespassing animals.
114 Tenn. 156Hadley v. Hadley (1904)
• 1. TAXATION. Lien against whole estate, including remainder estate, though land is assessed to life tenant only. Our statutes (Acts 1897, ch. 1, secs. 4 (1), 27; 1899, ch. 435, sees. 5 (1), 33; 1901, ch. 174, secs. 5 (1), 32; 1903, ch. 258, secs. 5 (1), 32) create a lien for taxes against the whole estate, including the remainder estate, although the land is assessed to the life tenant only, and thus change the previously existing law. (Post, pp. 158-163.) Acts cited and construed: 1897, ch. 1, secs. 4 (1), 27; 1899-, ch. 435, secs. 5 (1), 33; 1901, ch. 174, secs. 5 (1), 32; 1903, eh. 258, secs. 5 (1), 32. Cases cited and approved as to previously existing law: Ferguson v. Quinn, 97 Tenn., 48. 3. SAME. Same. Statutes providing for assessment of mineral, timber, and other interests in land do not require a remainder estate to be assessed separately to the remainderman. Our statutes (Acts 1895, ch. 120, sec. 6 (7); 1897, ch. 1, sec. 4 (6); 1899, ch. 435, sec. 5 (5); 1901, ch. 174, sec. 5 (5); 1903, ch. 258, sec. 5 (5), providing for the assessment of all mineral, timber, and other interests in real estate to the owner thereof, to be assessed as real estate, have no application to lands other than those containing mineral, timber, and other like interests owned separately from the general freehold, and do not require that the remainder estate in land shall be assessed to the remainderman. _ (Post, pp. 163, 164.) Acts cited and construed: 1895, eh. 120, sec. 6 (7); 1897, ch. 1, sec. 4 (6); 1899, ch. 435, sec. 5 (5); 1901, ch. 174, see; 5 (5); 1903, ch. 258, sec. 5 (5). 3. SAME. Statutes making taxes assessed to a life tenant a lien on remainder estate are constitutional. Our statutes (Acts 1897, eh. 1, secs. 4 (1), 27; 1899, ch. 485, sees. 5 (1), 33; 1901, ch. 174, secs. 5 (1), 32; 1903, ch. 258, secs. 5 (1), 32, creating a lien against the remainder estate, where the land is assessed to the life tenant, are not repugnant to the provisions of our State and federal constitutions (State const., art. 2, sec. 28; art. 1, sec. 8; TJ. S. const., 14th am.) requiring all property to he taxed according to its value, and forbidding the deprivation of property without due process of law. (Post, • pp. 159-175.) Acts cited and construed: 1897, ch. 1, secs. 4 (1), 27; 1899, ch. 435, secs. 5 (1), 33; 1901, ch. 174, secs. 5 (1), 32; 1903, eh. 258, secs. 5 (1), 32. Constitution cited and construed: Art. 1, sec. 8; art. 2, sec. 28; U. S. const., 14th am. Cases cited and approved: Whyte v. Nashville, 2 Swan, 364; Anderson v. Hensley, 8 Heis., 834; Nashville v. Cowan, 10 Lea, 209; Stovall v. Austin, 16 Lea, 700; Ferguson v. Quinn, 97 Tenn., 46; Thorington v. Montgomery, 88 Ala., 548, 553; Yeredry v. Dotterer, 69 Ga., 194, 198; Dunlap v. Gallatin Co., 15 Ill,, 7, 9; Sinclair v. Learned, 51 Mich., 335, 344; Lacey v. Davis, 4 ' Mich., 140; Watkins v. Green, 101 Mich., 493, 498; Chaplin v. United States, 29 Ct. Cl., 231, 233; Jones v. Randle, 68 Ala., 260; Insurance Co. v. Lott, 54 Ala., 499; Mayor v. Baldwin, 57 Ala., 61; Land Co. v. Ayres, 62 Ala., 413; Bank v. Mobile, 62 Ala., 284; Underhill v. Calhoun, 63 Ala., 216; State v. Mining Co., 14 Nev., 221; O’Grady v. Barnhisel,. 23 Cal., 294; State v. Sar-geant, 76 Mo., 557; Hayden v. Foster, 13 Pickering, 494; Thompson v. Carroll, 24 How., 422; In re Page, 60 Kan., 842; Stevens v. Railroad,113 Blatchf., 104; Nichol v. Ames, 173 U. S., 509; Hinchman v. Morris, 29 W. Va., 673; Short v. State, 80 Md., 392; Appleton v. Hopkins, 5 Gray, 530; Cummings v. Cummings. (C. C.), 91 Fed., 602; Moore v. Byrd (N. C.), 23 S. E., 968; Oster-berg v. Trust Co., 93 U. S., 424; Atkins v. Hinman, 7 Ill., 437-439, 449. 4. SAME. ■ Penalty on taxes against life tenant do not attack to remainder estate for nonpayment by life tenant. Tbe remainder estate is not liable for the penalty preserved by statute for the nonpayment of taxes, where assessed to life, tenant and not paid by him, although such remainder estate is liable for the taxes. {Post, pp. 175, 176.) Acts cited and construed: 1897, ch. 1, secs. 59, 66; 1839, ch. 435, sec. 50; 1901, ch. 174, sec. 49; 1903, ch. 258, sec. 49.
114 Tenn. 177Worthington v. Nashville, Chattanooga & St. Louis Railway (1904)
PROM WARREN. Appeal from the Chancery Court of Warren County. —Thos. M. McConnell, Chancellor.
114 Tenn. 187Greenlaw v. Louisville & Nashville Railroad (1904)
1. VERDICT. Not to be directed upon, undisputed facts testified to by one witness, where other facts are testified to by other witnesses, when. Where, in an action for wrongful death, the undisputed facts testified to by one of the plaintiff’s witnesses showed that the deceased was guilty of contributory negligence which was the direct and proximate cause of the accident causing the death, it was improper for the judge to direct a verdict for the defendant upon consideration of the evidence of the one witness only, but such direction if proper, should he based upon a consideration of the entire evidence, and not upon detached portions thereof, and if not so based, and other facts were testified to by other witnesses, he should instruct the jury to find for the defendant, if they believe the testimony in the case shows such contributory negligence. 2. SAME. Same. No reversal for direction of verdict, where merits have been reached, when. But where, upon a consideration of the entire evidence, the supreme court is of the opinion that the trial judge was right in his conclusions in directing a verdict for defendant, and that the merits of the case have been reached, there is no reversible error in the action of the court in so directing a verdict, and the judgment will be affirmed. Cases cited and approved: Graham v. Bradley, 5 Hum., 476; Farauhar v. Toney, 5 Hum., 502; Robinson v. Railroad, 2 Lea, 594; Gregory v. Underhill, 6 Lea, 211; Jones v. Iron Co., 14 Lea, 157.
114 Tenn. 194State v. Cumberland Telephone & Telegraph Co. (1904)
FROM DAVIDSON. ■ Appeal from the Chancery Court of Davidson County. — John ALlison, Chancellor.
114 Tenn. 213Louisville Property Co. v. Mayor of Nashville (1904)
X. AMENDATORY STATUTE. Act amending prior act “so. as to read as follows,” takes effect from date of amendment. The effect of an amendatory statute which provides that an existing act, or certain specified portions thereof, shall be amended “so as to read as follows,” is to substitute the language of the new act, in the sections indicated, for that used in the old act, and such new provisions take effect at and from the time of the amendatory enactment, and nqt before. (Post, p. 218.) Cases cited and approved: Cent. Pac. R. Co. v. Shackelford, 63 Cal., 265; Ely v. Holton, 15 N.. Y., 598. 3. FOREIGN CORPORATION. Mere purchase of property by, without registration of its charter, is not unlawful, hut valid as against every one save the State. The act of 1895, chapter 81, amending the statutes then in force ■ prescribing the terms upon which a foreign corporation may be admitted into this State, provides (see. 1) that such corporation desiring to own property or carry on business in this State shall first file with the secretary of state a copy of its charter, and, by section 2, makes it unlawful for any such corporation “to do business, or attempt to do business, in this State” without registering its charter in the office of the secretary of state, as provided in the first section. The plaintiff in error, a foreign corporation, purchased the lots, for injury to' which its action for damages is predicated, on April 16, 1898, but did not file its charter in the office of the secretary of state until June 11, 1898. Held: That the mere acquisition or purchase of property by a foreign corporation,- without complying with the requirements of said act, is not unlawful, hut is valid as against every one save the State. {Post, pp. 218-225.) Acts-cited and construed: 1895, ch. 81; 1877, ch. 31. Cases cited and approved: Williams v. Wilson, Mart. & Y., 248; Baker v. Shy, 9 Heisk., 85; Barrow v. Nashville, etc., Turnpike Co.,.9 Humph., 304; Fritts v. Palmer, 132 IT. S., 282; Seymour v. Slide & Spur Gold Mines, 153 U. S., 523; Doe, etc., v. Robertson, 11 Wheat., 333; Fairfax v. Hunter, 7 Cranch, 603; Cross v. DeValle, 1 Wall., 5; People v. Conklin, 2 Hill (N. Y.), 67; Wadsworth v. Wadsworth, 12 N. Y., 376; Jones v. McMas-ters, 20 How., 8; Davis v. R. R. Co., 131 Mass., 273; Raecouillat v. Sansevain, 32 Cal., 376; Gray v. Kauffman, 82 Tex., 65; Norris v. Hoyt, 18 Cal., 217; Chattanooga, etc., R. Co., v. Evans, 66 Fed., 809. Cases cited and distinguished: Cary-Lombard Lumber Co. v. Thomas, 92 Tenn., 585;' N. Y., etc., Bldg. & Loan Assn. ’v. Can- ■ non, 99 Tenn., 345; Gilmer v. Savings & Loan Co., 103 Tenn., 272; Harris v. Water & Light Co., 108 Tenn,, 245. 3. SAME. Same. Purchase oí real estate not carrying on business. There is a plain distinction, .under our statutes with regard to the admission of foreign corporations, between the acquisition of property and the carrying on of business, and it would be a strained and unnatural construction to hold that a mere purchase of real estate by such corporation was, in effect, carrying on business in the State. (Post, p. 226.) 4. SAME. Same. May maintain action for injury" to property. A foreign corporation may, without registration of its charter, maintain an action for damages against a municipal corporation for injury to its real estate resulting from a change of grade of the street upon which such property abuts. (Post, pp.- 215, 225.) See cases cited under headnote 2. 5. SUPREME COURT. Will not go behind finding of facts by circuit judge. 'Where there is a statutory finding of facts by the circuit judge, the supreme court will not go into the record to determine other facts not included in the findings of the circuit court.' ' (Post, pp. 215, 216, .225, 226.)
114 Tenn. 227Traders' Insurance v. Dobbins (1904)
1. CHARGE OF COURT. Evidence sufficient to justify submission of question as to custom. In an action on a policy of fire insurance, testimony that it was the usage of the retail hardware business to handle dynamite justifies a submission to the jury of the question whether it was customary in the retail hardware business to keep dynamite in stock. (Post, pp. 231, 232.) 2. CUSTOM. Need not extend to the whole State, but only to the region where sought to be applied. It is not necessary that a custom or usage should extend to the whole State. It is sufficient that it is generally recognized and observed by those engaged in the kind of transactions to which it applies within the region where it is claimed to exist. (Post, p. 232.) Cases cited and approved: Rastetter v. Reynolds, 160 Ind., 133; Gleason v. Walsh, 43 Me., 397; Harper v. Pound, 10 Ind., 32, 36; Grant v. Insurance Co., 5 Ind., 23; Spears v. Ward, 48 Ind., 541; Cox v. O’Riley, 4 Ind., 368, 373; Morningstar v. Cunningham, 110 Ind., 328, 334; Insurance Co. v. Milner, 23 Ala., 420, 427, 428. 3. FIRE INSURANCE. Dynamite may be kept under permission to keep “such other merchandise as is usually kept,” when usage is shown. Under a policy of fire insurance prohibiting in its general provisions the keeping of dynamite, with a rider or slip attached thereto insuring enumerated articles and “such other merchandise as is usually képt for sale in a retail hardware store,” with expressed permission to keep kerosene oil, gunpowder and a gasoline stove the insured has a- right to carry in stock dynamite not exceeding the quantity shown to be usual or cus- , tomary among retail hardware merchants in his region. (.Post, pp. 232-2S9.) Cases cited and approved: Insurance Co. v. Hughes, 10 Lea, 461; Insurance Co. v. Ayers, 88 Tenn., 728; Hoffman v. Insurance Co., 88 Tenn., 735; Insurance Co. v. Insurance Co., 102 Tenn., 264; Vette v. Insurance Co., 30 Fed., 668; Kratzenstein v. Assurance Co. (N. Y.), 22 N. E., 221, 5 L. R. A., 799, 801; Allen v. Insurance Co., 85 N. Y., 473; Hermann v. Insurance Co., 81 N. Y., 184; Dilleber v. Insurance Co., 69 N. Y., 256, 263; Hoffman v. Insurance Co., 32 N. Y., 405; Badenfeld v. Association, 12 L. R. A., 263; Insurance Co. v. Mund, 102 Pa., 89; Burkhard v. Insurance Co., 102 Pa., 262; Yoch v. Insurance Co. (Cal.), 44 Pac., 189, 34 L. R. A., 857; Insurance Co. v. Degraff, 12 Mich., 124; Liverpool & London v. Orr (Miss.), 56 Am. Rep., 810, 811; Collins v. Insurance Co. (N. C.), 28 Am. Rep., 322; Insurance Co. v. Fleming (Ark.), 44 S. W., 464, 39 L. R. A., 789, 67 Am, St. Rep., 900; Maril v. Insurance Co. (Ga.), 23 N. E., 463, 30 L. R. A., 835, 51 Am. St. Rep., 102; Faust v. Insurance Co., 91 Wis., 158; Stout v. Assurance Co., 12 Fed., 554; Plinsky v. Insurance Co., 32 Fed., 47; Pindar v. Insurance Co. (N. Y.), 93 Am. Dec., 544; Barnum v. Insurance Co., 97 N. Y., 188; Insurance Co. v. Taylor, 5 Minn., 492; Mascott v. Insurance Co., 68 Vt., 253. Case cited, distinguished, and approved: Insurance Co. v. Kuhn, 12 Heis., 515.
114 Tenn. 240Louisville & Nashville Railroad v. Dillard (1904)
FROM SUMNER. Appeal from the Circuit Court of Sumner County. — B. D. Bell, Judge.
114 Tenn. 255Union Bank & Trust Co. v. Fred W. Wolf Co. (1904)
PROM DAVIDSON. Appeal from tbe Chancery Court of Davidson County. —John Allison, Chancellor. STATEMENT OP PACTS MADE BY MR. JUSTICE NEIL. Contest for priority between the seller of machinery, under a conditional sale, for an ice plant, and subsequent mortgagees of the same property, without notice, after it was attached to the plant.
114 Tenn. 271Thach v. Continental Travelers' Mutual Accident Ass'n (1904)
1. DOUBT OP CHANCERY APPEALS. Finding of facts is conclusive on supreme court, when. The finding of facts by the court of chancery appeals, where there is evidence to sustain it, is not subject to review in the supreme court. (Post, p. 276.) 2. FOREIGN CORPORATIONS. Process cannot he served on resident attorney acting in that capacity alone. Jurisdiction of a nonresident corporation cannot be obtained by service of process on a resident attorney who has been retained simply in that capacity; especially where it had never established any agency or place of business in this State, nor had any agents here. (Post, pp. 278-285.) Code cited and construed: Secs. 4543-4546 (S.). Acts cited and construed: 1887, ch. 226. Cases cited, approved, and distinguished: Insurance Co. v. Sprat-ley, 99 Tenn., 332, 172 U. S., 603; State v. Insurance Co., 106 Tenn., 287; Pope v. Manufacturing Co., 87 N. Y., 137; Harshey v. Blackmarr, 89 Am. Dec., 520. 3. PLEA IN ABATEMENT. To jurisdiction is not waived by answer to the merits, when. An answer to the merits, after a plea in abatement to the jurisdiction has been overruled, will not confer jurisdiction, and will not deprive the defendant of his right to rely, in the supreme court, upon the overruled plea in abatement. (Post, pp... 285-287.) Acts cited and construed: 1897, ch. 121. 4. SAME. Pleas in abatement and in bar may be filed simultaneously, or plea in abatement may be filed independently, and if overruled, then a plea in bar may be filed. Pleas in abatement and pleas in bar are not required to be filed simultaneously, but may be so filed; or a plea in abatement may be filed independently, and if it is overruled, a plea in bar may then be filed. {Post, pp. 287, 288.) Acts cited and construed: 1897, ch. 121. Cases cited and approved: Railroad v. McCollum, 105 Tenn., 624; Sewell v. Tuthiil, 4 Cates, 271.
114 Tenn. 289In re Wooten's Estate (1904)
1. ADMINISTRATORS. Jurisdiction of circuit court is appellate' and revisory only as to their appointment. The jurisdiction of the circuit court over matters pertaining to the appointment of administrators is appellate and revisory only, and it is without authority to grant letters of adminstration, but the proper practice is for that court, upon determination of the appeal, to remand the cause for the issuance of letters, and not to hear new applications for the appointment of an administrator after declaring that none of the applicants in the county court was entitled to the administration. (Post, pp. 297-300.) Code cited and construed: Secs. 3934, 3940 (S.); secs. 3042, 3048 (M. & V.); secs. 2202,.2207 (T. & S. and 1858). Case cited and approved: Wilson v. Frazier, 2 Hum., 31. ■ 3. SAME. Jurisdiction to revoke or cancel letters of administration is in the county court. The county court is the proper and only tribunal having original jurisdiction to revoke or cancel letters of administration im-■providently or improperly granted by it. (Post, p. 299.) • 3. SAME. Right of next of kin to nominate an administrator. The next of kin with the prior right to administer, not desiring to do so personally, has the right to nominate another in his stead who should be appointed, if he is a fit and suitable person tested by the same rules as if the next of kin were applying in person. (Post, pp. 306-311.) Cases cited and approved: Feltz v. Clark, 4 Hum., 79-83; Phillips v. Green, 4 Heis., 350; Varnell v.- Loague, 9 Lea, 161. 4. SAME. Same. Right of next of kin to nominate another after court’s refusal to appoint first nominee. The county court, on denying the application by the -next of kin for the appointment of his nominee as administrator, has no right of its own motion to appoint another as administrator, without giving the next of kin, and after him the creditors, an opportunity to present one of their number, or to nominate another person for the appointment. (Post, pp. 311, 312.) 5. SAME. Attorney representing bulk of estate, but obligated to carry into effect certain agreements requiring the sanction of the chancery court is ineligible. The attorney representing the bulk of the estate, but at the sametime obligated as such attorney to carry into effect certain agreements which divert large amounts of the funds of the estate into channels different from the ordinary channels of distribution, is not eligible for appointment as administrator, especially where the sanction of the chancery court for carrying such an agreement into effect is required. (Post, ‡‡. 301-306, 312.) 6. SAME. Same. Right of next of kin to make second nomination is not waived by his appeal and decision against first nominee. The next of kin, by appealing from an order of the county court refusing to appoint his nominee for administrator and appoint- ' ing another of its own motion, does not waive- his right to make a second nomination, if the first nominee was held to" be ineligible by the revising court. (Post, pp. 314, 315.) 7. SAME. Court to decide between next of kin of same degree applying for administration. The statute providing that where there is more than one next of kin, the court may decide which of them shall be entitled to administration, applies only where there is more than one next of kin of the same degree applying for administration. (Post, pp. '315, 316.) Code cited and construed: Sec. 3339 (S.); sec. 3047 (M. & V.); sec. 2206» (T. & S.).
114 Tenn. 317McGavock v. Virginia-Carolina Chemical Co. (1904)
1. MINING LEASES. Lessee cannot terminate, because min-able quantity is found in pockets and not in stratified layers, when. A lease of right to mine and take phosphate rock from the lessor’s land, with the right in the lessee to terminate the lease upon exhaustion of the minable quantity of said rock, cannot be abandoned by the lessee mereljl because the rock is found in pockets and not in stratified layers, if the rock is sufficient in quantity in either form, especially where the lessee had made repeated examinations and tests of the property before the lease contract was made, and was familiar with, and better able to judge of, the rock than the lessor. 3. SAME, duality of ore must be referred to experts as provided in contract as condition precedent to termination of lease by lessee. Under a lease of the right to mine and take phosphate rock from the lessor’s land, with a provision that, on exhaustion of the rock of a certain quality, the lessee may terminate the lease, and if the quality of rock should, at any time, be called to ques- . tion by the lessee, the matter should be referred to and settled by certain referees; the lessee has no right to terminate the lease contract on the ground of inferiority of the rock until the inferiority has been tested by the experts named in the contracts, as a condition precedent to the termination of the lease contract by the lessee. Cases cited and approved; Wadsworth v. Smith, L. R., 6 Q. B., 332; Hanley v. Walker, 79 Mich., 607. Cases cited and distinguished; Manufacturing Co. v. Collier, 91 Tenn., 525; Hamilton v. Ins, -nee Co., 136 U. S., 242.
114 Tenn. 328Harris & Cole Bros. v. Columbia Water & Light Co. (1904)
1. RES AD JUDICATA. Identity of parties in same capacity or character is essential; case in judgment. It is essential to the successful defense of former adjudication that the parties must he identical and in the same capacity or character in both suits; and, therefore, where a partnership firm sues in the firm name as a foreign corporation, and the suit is dismissed for failure to comply with the requirements of the statute prerequisite to foreign corporations doing business here, such dismissal is not a bar to a subsequent suit on the same cause of action by the individual members of the partnership, where it is shown that the designation of the partnership firm as a corporation was by mistake of fact. (Post, pp. 334 340.) Cases cited and approved: Railroad v. Atkins, 2 Lea, 248; Melton v. Pace, 103 Tenn., 484; Harris v. Water & Light Co., 108 Tenn., 245; Bank v. Smith, 110 Tenn.; 339; Rathbone v. Hooney, 58, N. Y., 463; McBurnie v. Seaton, 111 Ind., 56; Caruth v. Grigsby, 57 Tex., 259; Landon v. Townshend, 112 N. Y., 93; Mc-Nutt v. Trogden, 29 W. Va., 469; Morrison v. Clark, 89 Me., 103; Bank v. Shuler, 153 N. Y., 163; Beals v. Cone, 27 Colo., 473; Loftis v. Marshall, 134 Cal., 394; McCall v. Jones, 72 Ala., 368; Tierney v. Abbott, 46 Wis., 320; Tiffany v. Stewart, 60 Iowa, 207; Smith v. Auld, 31 Kan., 262; Richards on v. Richards, 36 Minn., 111. 2. SAME. Decision on the merits is essential; case in judgment. It is essential to the successful defense of former adjudication that the former judgment must have been upon the .merits; and, therefore, the dismissal of a suit, because it incorrectly appeared of record that one of the necessary parties plaintiff was a foreign corporation which had not complied with the requirements of the statute prerequisite for the maintenance of suits by foreign corporations, is not on the merits and is not res adjudicata. (Post, pp. 334, 339, 340.) Cases cited and approved: Hoggatt v. White, 2 Swan, 265; Hurst v. Means, 2 Sneed, 546; Hughes v. United States, 4 Wall., 232. 3. ADMISSIONS. In unsworn pleadings by innocent mistake do not conclude the parties, when. Admissions by mistake innocently made in unsworn pleadings which have worked no detriment to the adverse party will not estop such admitter to show the truth in a subsequent suit; as where a partnership firm erroneously admitted that it was a foreign corporation, and the suit is dismissed for failure to comply with the requirements of the statute prerequisite to maintenance of suits by foreign corporations, the members of such partnership firm are not estopped to bring a subsequent suit on the same cause of action. (Post,pp. 340, 341.) Cases cited, and approved: Hamilton v. Zimmerman, 5 Sneed, 39; McLemore v. Railroad, 111 Tenn., 639. 4. PROXIMATE CAUSE. Failure to furnish water sufficient to extinguish fires within the terms of the contract. Where a water company agreed to supply, at all times an amount of water sufficient to extinguish fires, its failure to do so, which resulted in the destruction, by fire, of property within the contemplation of the contract, was the proximate cause of the loss. (Post, p. 341.) 6. DAMAGES. For loss of property by fires for failure to furnish water as contracted¡are not too vague and indeterminate to authorize a recovery. Where a water company contracts to supply, at all times an amount of water sufficient to extinguish fires, and a loss results from destruction, by fire, of property within the contemplation of the contract, by its failure to furnish the water, the claim of damages for the breach of the contract is not too vague and indeterminate to authorize a recovery. (Post, pp. 341, 343.) 6. SAME. For breach of contract to furnish water for extin-guishment of fires is the value of the property destroyed, and not merely the value of the water that should have been furnished. Where a water company contracts to supply, at all times an amount of water sufficient to extinguish fires, and a loss results from destruction, by fire, of property within the contemplation of the contract, by its failure to furnish the water, the measure of damages is full indemnity for the loss resulting from the breach, and not merely the value of the water which should nave been furnished under the contract. (Post, pp. 342, 343.) Cases cited and approved: State v. Ward, 9 Heis., 132; Foster v. Water Co., 3 Lea, 46; Chisholm v. Canopy Co., Ill Tenn., 202.
114 Tenn. 344Whitlow v. Nashville, Chattanooga & St. Louis Railway Co. (1904)
FROM MARION. Appeal from the Circuit Court of Marion County.— S. D. McReynolds, Judge.
114 Tenn. 361State ex rel. Harris v. Hamby (1904)
1. CONSTITUTIONAL LAW. Statute redistricting Cumberland county contains but one subject, and is constitutional. Tbe statute (Acts 1903, cb. 599) redistricting and reorganizing Cumberland county embraces but one subject and is constitutional and valid. Act cited and construed: 1903, cb. 599. Constitution cited and construed: Art. 2, sec. 17. 2. SAME. Provision against two subjects of legislation in a bill applies to tbe body of the statute, and not to its caption, when. Tbe constitutional provision that “no bill shall become a law wbicb embraces more than one subject, that subject to be expressed in tbe title,” does not apply, as to tbe one subject, to tbe title, but to tbe body of tbe bill, tbe effective and operative part of tbe statute — tbe law that is made; for it is no objection to tbe bill that tbe caption is broader than tbe enacting part, or covers or can be construed to cover other subjects, so that' tbe real subject of legislation is therein expressed, and not ob-secured by tbe foreign matters. (.Post, pp. 364, 365.) Cases cited and approved: Powers v. McKenzie, 90 Tenn., 167; State v. Brewing Co., 104, Tenn., 723. Constitution cited and construed: Art. 2, sec. 17. 3. SAME. Statute abolishing civil districts operates to abolish offices dependent upon the districts for their existence and ends official life of incumbents. A statute abolishing tbe civil districts of a county operates as an inevitable legal consequence to destroy all offices of justices of tbe peace, constables, and tax assessors therein, which are absolutely dependent upon the district for their existence, and the official life of the incumbents is immediately ended, in the absence of a saying clause. (Post, pp. 365-367.) Cases cited and approved: State v. Gaines, 2 Lea, 316; Judges’ Cases, 102 Tenn., 509; State v. Lindsay, 103 Tenn., 625; Grain-ger Co. v. State, 111 Tenn., 234; State v. Akin, 112 Tenn., 603.
114 Tenn. 368Louisville & Nashville Terminal Co. v. Lellyett (1904)
1. VARIANCE. None between allegations and proof where writ shows plaintiff sues as trustee and next friend for beneficiaries though declaration is in his own name, and proof shows title in him for the beneficiaries. The holder of the legal title to land as trustee for the beneficial owners may, as their trustees and next friend, sue to recover damages to the use of their land, health and comfort caused by defendant’s improper use and maintenance of railroad and terminal yards, roundhouses, and other accessories in and near the same; and where the writ or summons shows that the suit is by him as trustee and next friend for the named beneficial owners, and the averments in the declaration are in his own name without more, and the proof shows the title to the land to he in him for their use and benefit, there is no fatal variance between the allegation and proof, for it sufficiently appears from the writ and declaration that the plaintiff was trustee for the named beneficial owners, and that the suit was brought for damages to the use of their property, health and comfort. (Post, pp. 372, 373, 384.) 2. MISJOINDER. OF ACTIONS. Obviated by abandonment of the claim constituting the misjoinder. Misjoinder of cause of action may be obviated by abandonment or withdrawal of the claim that constitutes the misjoinder, with proper instructions to the jury, and its omission as one of the elements of recovery or damages in the charge of the trial judge. (Post, p. 385.) 3. SAME. None in action for injury to use of land by allegation of impairment to health of plaintiff’s family as a specification of damages done to land as a home. Where, in an action for injuries to the use of certain real estate caused by defendant’s improper maintenance and use of railroad and terminal yards, there Is no claim for damages foi* sickness, doctor’s bills, etc., and an allegation in the declaration of impairment of the health of plaintiff’s family is merely a specification of damages done to the land as a home or place of residence, just as in the destruction of the grass, trees, shrubbery, etc., and the presence of smoke, cinders, etc., the declaration is not objectionable for misjoinder of causes of action, for there is no separate cause of action in favor of the plaintiff’s wife and children for injuries to their health. (Post, pp. 385, 386.) 4. PLEADING AND PRACTICE. Count for injuries to fee as distinguished from recurrent injuries eliminated by charge of court. Where, in an action by an adjacent landowner for injuries to his land resulting from the defendant’s improper operation of railroad and terminal yards, the court, at plaintiff’s request or on its own motion, charged that plaintiff could not recover for injuries to the fee and that the proof of the value of the premises must be considered only in determining the question whether the comfortable enjoyment of the premises had been impaired or destroyed, such instruction eliminated counts or causes of action alleged for the recovery of permanent as. distinguished from recurrent damages. (Post, pp. 386, 387.) 5. RAILROAD AND TERMINAL CORPORATIONS. Location and operation cannot be authorized with immunity from damages for injuries to adjacent property. Railroad and terminal corporations cannot be authorized, under their charters nor by law, seriously to impair or destroy adjacent property by the location and operation of terminal yards, roundhouses, coal chutes, etc., with immunity from damages for injury to adjacent property resulting from such location and operation of their terminal yards. (Post, pp. 388-400, and especially 391.) Cases cited and approved: Telegraph and Telephone Co. v. Jacobs, 109 Tenn., 727, 741, 743; Madison v. Copper Co.,-5 Cates, 33Í, 342, 343; and numerous cases in otlier States and countries cited in the opinion on pages 392-399. 6. SAME. No damages for injuries from increased railroad traffic, but damages from operation of railroad terminal yards and accessories, when. In an action to recover damages for injury to adjacent property by the operation of railroad'and terminal yards, the plaintiff is not entitled to recover damages incident to the increase of traffic into and through the station, over tracks laid fifty years ago, when his property was vacant, or over other tracks subsequently laid as the traffic increased and required them, but may recover damages for injuries resulting to his property from the operation of terminal yards, roundhouses, coal chutes, etc., and the switch yards and tracks necessary to operate them, where the ailroad terminal corporation was organized and the terminal yards and facilities were constructed after the erection of plaintiff’s house. (Post, pp. 400, 401.) 7. DAMAGES. Eor injury to property from operation of public or quasi public enterprises, when and when not. The law does not allow damages for annoyances and discomforts resulting from the operation of public or quasi 'public enterprises, unless they go to such an extent as to injure the usable and rental or permanent value of the property, for they must amount, to some extent, to the taking of the value of the property, either temporary or permanent, and depriving the owner thereof. (Post, pp. 401-403.) Cases cited and approved': Railroad v. Bingham, 87 Tenn., 522; Demarest v. Hardham, 34 N. J. Eq., 469. 8. SAME. Measure of damages for injury to real estate is its diminished rental value, when. Where railroad terminal yards are operated so carelessly and negligently as to create a nuisance to plaintiff’s adjacent property, which might be avoided and obviated by adopting other means and being more careful in the manner of operating the yards, the measure of damages is the injury to the value of the use and enjoyment of the property, measured largely by the diminished value of the property. (Post, pp. 403, 404.) 9. SAME. Measure of damages for injury to real estate from operation of railroad terminal yards is the injury to the permanent value, when. In an action for injury to adjacent property, caused by the operation of railroad terminal yards, where such yards are carefully and properly operated, plaintiff’s measure of damages is the injury to the fee and permanent value of the property by the permanent operation of such terminal yards. (Post, pp. 404, 405.) 10. VERDICTS. Set aside for excessiveness of damages; case in judgment. Where in an action for damages for injury to the use and enjoyment of plaintiff’s property, by the operation of railroad terminal yards, a verdict awarding plaintiff four thousand dollars damages for such injury for a period of thirty-two months, where the property is worth only seven thousand dollars, is so grossly excessive as to indicate either misapprehension by the jury, or passion, prejudice, or caprice on their part, and will, therefore, be set aside. (Post, pp. 405-407.)
114 Tenn. 410Plano Mfg. Co. v. Schell (1904)
1. MARRIED WOMAN. Lands held as general estate subject to execution. An execution from a justice’s judgment against a married woman may be levied on lands held by her as a general estate. Cases cited and approved: Howell v. Hale, 5 Lea, 506; Yeatman v. Bellmain, 6 Lea, 491. Cited and distinguished: Woodfolk v. Lyon, 98 Tenn., 274. 2. SAME. Lands of, subject to deed of trust can be reached only by bill in chancery. Where such lands have been conveyed in trust to secure debts, the judgment creditor, with return of nulla dona, may maintain a bill in chancery to have the trust deed foreclosed, the debts secured thereby paid off, and the surplus applied to the satis- . faction of his judgment, and such surplus can be reached in no other way. 3. SAME. Plea of coverture cannot be interposed as defense to such bill. The chancery proceeding is not a new suit against which she has a right to interpose the defense of coverture, but is merely in aid of the execution at law, and its object and purpose is to execute the judgment of the justice. 4. QUESTION RESERVED. Right to new judgment in chancery court. The question is reserved and not decided, because not raised by the demurrer in the court below, as to whether, in such proceeding in chancery court, the judgment creditor is entitled to a new judgment, based upon the justice’s judgment, against the married woman, over her protest, although she submitted to the judgment before the justice.
114 Tenn. 414Blue v. Gunn (1904)
FIXTURES. Commercial finishing' materials deposited in a ouilding to he used in finishing it, but not physically attached thereto, do not pass in conveyance of land, when not mentioned. Commercial finishing materials for a building, such as doors, mantels, casings, columns, etc., riot especially made for the building, and available for use in any building, purchased by the maker of a deed of trust, and deposited in the building embraced in such deed of trust for the purpose of annexation thereto, but in no manner physically attached thereto, and not mentioned in the conveyance of the property, does not constitute such fixtures as would pass to the purchaser of the property on foreclosure of such deed of trust. Code cited and construed: Secs. 3531, 3539 (S.); secs. 2739, 2740, 2745' (M. & y.); secs. 1981, 1981a, 1985 (T. & S. and 1858). Cases cited and approved: Bank v. Wolf - Co., 6 Cates, 255; Thweat v. Stamps, 67 Ala., 96; Robertson v. Phillips, 3 G. Greene (Iowa), 220; Harris v. Scovel, 85 Mich., 32; Carkin v. Babbett, 58 ,N. H., 579; Peck v. Batchelder, 40 Vt., 233; Woodman v. Pease, 17 N. H., 282; Miller v. Wiason, 71 Iowa, 610;Burn-side v. Twitchell, 43 N. H., 390¡Williamson v. Railroad, 29 N. J. Eq., 311; Hoyle v. Railroad, 54 N. Y., 315. Cases cited and distinguished: Daniel v. Weaver, 5 Lea, 393; Halley v. Alloway, 10 Lea, 523; Grewar v. Alloway, 3 Tenn. Chy., 584; Steger v. Arctic Refrigerating Co., 89 Tenn., 453; Grosvenor v. Bethell, 93 Tenn., 579.
114 Tenn. 426Louisville & Nashville Railroad v. Haynes (1904)
AFFIRMANCE. Of justice’s judgment for Ms failure to file papers, on production thereof by appellee. Where, in an appeal from a judgment of a justice of the peace, the justice fails to file the papers in the circuit court within the time required by statute, the appellee, upon production of the papers by him with a motion for affirmance, because of such failure of the justice, is entitled, as a matter of right, to his judgment of affirmance, and this motion for affirmance cannot be intercepted by counter motion upon the part of the appellant to be allowed to file the papers and prosecute his appeal. Code cited and construed: Secs. 4873-4875 (S.); secs. 3858-3860 (M. & V.); secs. 3142-3144 (T. & S. and 1858). Cases cited and approved: Hayes v. Kelley, 111 Tenn., 294. Case cited and distinguished: Humphrey v. Huxhphrey, 1 Swan, 154.
114 Tenn. 432Mayor of Nashville v. Webb (1904)
1. MUNICIPAL CORPORATIONS. Actions against are inherently local, and must be brought in the county of their location. Actions against municipal corporations for personal injuries are inherently local, and must be brought in the county in which such corporations have their existence and location. {Post, pp.434-436.) Cases cited and approved: Carlisle v. Cowan, 85 Tenn., 165; Board v. Bodkin, 108 Tenn., 700; Lehigh Co. v. Kleekner, 5 Watts & S., 181, 186, 188; Oil City v. McAboy, 74 Pa., 249-252; Pack v. Creenbush Township, 62 Mich., 122. 2. LOCAL ACTIONS. Statutes providing for counterpart process and prosecution of suits brought in wrong county unless abated by plea are not applicable. The statutes providing for the counterpart process and prosecution of actions brought in the wrong county to a termination, unless abated by plea of defendant, have no application to local actions brought in the wrong county. {Post, pp. 436, 437.) Code cited and construed: Secs. 4526, 4517 (S.);,secs. 3526, 3517 (M. & V.); secs. 2821, 2812 (T. & S. and 1858). Cáse cited and approved: Board v. Bodkin, 108 Tenn., 700. 3. MUNICIPAL- CORPORATIONS. Judgments against, in a suit in a county other than that of its location is void, and will be enjoined; case in judgment. A judgment rendered against a municipal corporation in a suit brought against it for personal injuries in a county other than that of its location is void, and its execution will be perpetually enjoined in chancery.
114 Tenn. 438Bowers v. M'Gavock (1904)
1. CHANCERY PLEADING AND PRACTICE. Facts in answer taken to be true, where cause is set down for hearing upon bill and answer. Where, on motion of complainant, a cause is set down for hearing upon bill and answer and is heard thereon, the statements of the answer as to all matters of fact must be taken as true. (Post, pp. 440, 452.) Case cited and approved: Rodgers v. Rodgers, 6 Heis., 495. 2. WILLS. Validity can be contested by none except such as would be entitled to an interest in testator’s property in case of invalidity. No one can question the validity of a will or any provision of it, unless he stands in such relation to the testator that, in the event the provision is invalid, he will he entitled, under the law to an interest in the property involved in the controverted provision. (Post, pp. 450, 451.) Cases cited and approved: Wynne v. Spiers, 7 Hum., 407; Corn-well v. Cornwell, 11 Hum., 485; Bank v. Nelson, 3 Head, 634; Gore v. Howard, 94 Tenn., 581; Ligón v. Hawkes, 110 Tenn., 514, 516, 523. 3. SAME. Widow’s election to take under husband’s will is binding on her heirs, distributees, and representatives. Where the widow of testator fails to dissent from his will, hut affirmatively elects to take thereunder, and seeks its execution, her heirs at law and distributees, who are not heirs at law and distributees of the testator, have no such interest as entitles them to contest the validity of the testator’.s will; for the election by the widow to take under the will of her deceased husband is binding on her representatives. (Post, pp. 451- 456.) Cases cited and disapproved; Mong v. Roush, 29 W. Va., 119; State v. Holmes, 115 Mich., 456. 4. SAME. Same. Widow’s right of election is personal and does not pass to her representatives or heirs. The right of election to take under the will of her husband or under the statute is personal to the widow and does not pass to her representatives or heirs; and especially is this so, where the widow has made her election to take under the will, and declined and refused to take under the statute. (Post, pp. 456, 457.) Cases cited and approved; Cannon v. Apperson, 14 Lea, 572; Storrs v. Hospital (Ill.), 54 N. E., 185, 72 Am. St. Rep., 211; Deslondes v. New Orleans, 14 La. Ann., 552.
114 Tenn. 458Nashville Spoke & Handle Co. v. Thomas (1904)
1. MASTER AND SERVANT. Evidence of such, contributory negligence as shows no evidence to sustain a verdict in fav- or of plaintiff. Where a servant of mature age knows the danger of a machine, and used his hand instead of an instrument furnished him for use, whereby he is injured, he is guilty of such contributory negligence as will defeat his action against the master, for personal injuries; and in such case there is no evidence to support a verdict in favor of the servant. (Post, pp. 459, 460.) S. NEW TRIALS. Rule to govern action of trial judge on motion for, on the ground that the verdict is against the weight of testimony. On a motion for a new trial on the ground that the verdict is against the weight of the testimony, the trial judge should carefully consider the credibility of the witnesses, and weigh the testimony to determine whether the jury was warranted in its verdict by a preponderance of evidence, and should not overrule the motion simply because there is some evidence to support the verdict. (Post, pp. 460-462.) Case cited and approved: Telephone & Telegraph Co. v. Smith-wick, 4 Cates, 463.
114 Tenn. 463Hite v. Rayburn (1904)
FROM DAVIDSON. Appeal in error from Circuit Court of Davidson County. — Lytton Taylor, Special Judge.
114 Tenn. 467Ford v. H. C. Brown & Co. (1904)
1. BILLS AND NOTES. Purchaser oí time certificates of deposit in name of one as trustee acquires no title against the beneficiary, where such trustee had no power to dispose of them, when. Interest bearing certificates of deposit, with a definite time of maturity, not subject to check, issued by a bank to one as trustee simply, or to one as trustee for a certain named person, and so indorsed by him sometime before maturity, operate as actual notice or knowledge to the indorsee and the subsequent pur- ■ chaser from such indorsee in due course of trade that such certificates represent and constitute trust funds, and they must inquire into the power of disposition of the trustee; and where such certificates were so indorsed by the trustee in payment of his gambling debt, without authority from the beneficiary to dispose of them in this manner or otherwise, the purchaser thereof from such indorsee without personal knowledge is nevertheless chargeable with actual knowledge, and acquires no title as against the beneficiary. Acts cited and construed; Negotiable Instruments Law (Acts 1899, ch. 94), sec. 56. Cases cited and approved: Alexander v. Alderson, 7 Bax., 403; Covington v. Anderson, 16 Lea, 310; Caulkins v. Gaslight Co., 85 Tenn., 684; Bank v. Looney, 99 Tenn., 278; Bank v. Butler, 5 • Cates, 574; Fox v. Bank (Tenn. Chy. App.), 35 L. R. A., 678; Duncan v. Jordan, 15 Wall., 175; Swift v. Smith, 102 TJ. S., 442; Bank v. Lange, 51 Md. 138; Shaw v. Spencer, 100 Mass., 382; Cohnfeld v. Tannenbaum, 176 N. Y.,-; Hazeltine v. Keenan, 2. SAME, Same. Facts overlooked by purchaser will not relieve him of consequences. The fact that the purchaser of the time certificates of deposit overlooked the fact that they were such, and paid cash for them will not relieve him of responsibility as to any notice they themselves give. (Bos#, pp. 471,472, 481, 482.)
114 Tenn. 483Phelan v. State (1904)
1. CHARGE OF COURT. Request for further instructions containing an untrue statement as to the testimony is properly rejected. Request for further instructions containing a statement that a certain witness gave in testimony a certain fact or statement when, as a matter of fact, such witness did not so testify, is vicious and shoud not be charged, and its rejection is proper. (Post, pp. 496, 497.) 2. EVIDENCE. Accusations and statements denied are inadmissible. When an accusation or statement, made in the presence and hearing of the party, is denied, it is not admissible at all as an evidential fact, and has no probative effect whatever. (Post, pp. 497-507, and especially p. 505.) Cases cited and approved: Kendrick v. State, 9 Hum., 723; Death-ridge v. State, 1 Sneed, 80; Low v. State, 108 Tenn., 127, 128; Commonwealth v. Kenney, 12 Mete. (Mass.), —. 3. SAME. Accusations and statements not denied are admissible, when. When an accusation or statement is made in the presence or hearing of the party, and he stands mute in the face of the charge, that fact is interpreted as a circumstance tending to show guilt, provided he heard and understood the charge, and the situation of the parties demanded a denial, all of which must be left to the determination of the jury. (Post, pp., 497-507, and especially, p. 605.) Cases cited and approved: Kendrick v. State, 9 Hum., 723; Daugherty v. Marcum, 3 Head, 323; Queener v. Morrow, 1 Cold., 123, 129, 130; Green v. State, 97 Tenn., 50, 62-66. 4. SAME. Of silent acquiescence is of a dangerous character and must be received with great caution. The evidence of silent acquiescence in accusations and statements, made in the presence and hearing of a party, is of a dangerous character, and must he received with great caution. (Post, pp. 497-507, and especially, p. 505.) Cases cited and approved: Queener v. Morrow, 1 Cold., 123, 129, 130; Green v. State, 97 Tenn., 50, 62-66. 5. CHARGE OE COURT. Refusal of request for instructions as to weight of evidence of undenied accusations and statements is reversible error, when. The refusal to charge a request for further instructions, properly applicable to the facts, to the effect that an accusation or statement made in the presence and hearing of the defendant, if allowed to pass unchallenged, can only he looked to as a circumstance tending to show the guilt of defendant, and, as such is entitled only to such weight as the jury might give it, in view of all the proof in the case, is prejudicial to the defendant and is reversible error. (Post, pp. 497-507, and especially, p. 506.) Cases cited and approved: Kendrick v. State, 9 Hum., 723; Daugh- • erty v. Marcum, 3 Head, 323; Queener v. Morrow, 1 Cold., 123, 129, 130; Green v. State, 97 Tenn., 50, 62-66. 6. SAME. Same. Refusal of request that jury should consider whether, under all the circumstances, a denial of accusations or statements was demanded, is reversible error, when. Refusal to charge the request for further instructions, properly applicable to the facts, to the effect that if the statement was made in the presence of the defendant, and he failed to make, any response thereto, then the jury should consider whether, under all the surrounding circumstances, considering the grief and distress of his daughter, who was the wife of the deceased, the denial of her statement was demanded, is reversible error. (Post, pp. 497-507, and especially, p. 507.) Cases cited and approved: Queener v. Morrow, 1 Cold., 123, 129, 130; Green v. State, 97 Tenn., 50, 62-66. 7. SAME. Refusal of request not applicable to the facts is proper. A request for further instructions not applicable to any facts in evidence is properly refused. (Post, p. 506.) 8. SAME. That proof of good character would strengthen the the presumption of defendant’s innocence should be given, when. Where a defendant on trial for an offense proves a good character, the court should instruct the jury that proof of good character would strengthen the presumption of defendant’s innocence; but a failure to give such instructions, in the absence of a special request therefor, is not reversible error. (Post, p. 507.)
114 Tenn. 508State v. Ridley (1904)
1. COUNTY TRUSTEE. Not insurer of public funds. Liable for lack of diligence, prudence and caution. A county trustee is not an insurer of the safety of public funds, but if, in selecting a depository, he. acts without proper diligence, caution, prudence and good faith, and the fund is lost in consequence, .he, and the surety on his official bond are liable therefor. Case cited and approved: State, for use, etc., v. Copeland, 96 Tenn., 296. S. SAME. Same. Same. Case in judgment. A county trustee deposited public funds in a new bank with an authorized capital stock of $25,000, 'of which only $1,100 was paid in, and not more than $5,000 subscribed. It was a matter of common information that the bank selected was of questionable standing, and the trustee was warned by his friends that it was unsafe, and that the public funds should not be put into it. In making the deposit the trustee secured to himself a personal benefit in that the bank paid the premium to the_ Guaranty Co. for making his bond, and paid one-half the salary of his deputy. The trustee could, and doubtless did, know the facts, but relied upon what he deemed the honesty of the management. There were other banks of ample solvency and reputable standing in the community in which he could have safely kept • the money. Held, that the estate of the trustee, and the surety on his bond, are liable for the public funds thus deposited by him that were lost by the failure of the bank. 3. SAME. Mot released by adoption of report of successor showing sum due from failed bank. A report made to the county court by the successor of a deceased trustee, the object of which was to show what funds came to his hands as such successor, and which was spread on the minutes of the court by a decree reciting that it was “read, approved and adopted,” does not operate as a settlement with, and a release of, the estate of the deceased trustee for sums shown by said report to be due from an insolvent bank in which ■ the deceased trustee had deposited public funds. 4. STATE REVENUE AGENT. May maintain suit in name of State for use of county against trustee and his surety for county funds. -A state revenue agent may properly bring suit in the name of the State, for the use of the county, to recover of the county trustee, and the surety on his bond, county funds improperly deposited by such trustee in an insolvent bank. Case cited and approved: State, for use. etc., v. Kelly, 111 Tenn., 583. 5. SAME. Eees should be fixed by court at reasonable amount. The statute authorizing state revenue agents to prosecute suits to recover revenue due the State and counties does not arbitrarily fix the amount of the fees of the revenue agent and his' attorneys, and such fees should be determined by the court at a reasonable amount. 6. TRUSTEE’S COMMISSIONS. May be applied to reduce liability of deceased trustee for county funds. Where, a trustee is held liable for county funds deposited by him in an insolvent bank, it is proper to apply commissions earned by the trustee between the time of the failure of the bank and his death to reduce the amount of the liability of his estate and his surety.
114 Tenn. 516State, ex rel. Latture v. Board of Inspectors (1904)
1. MANDAMUS. Rendered unnecessary by induction of relator into office, when. Further proceedings on a petition for mandamus against the governor, secretary of state, and attorney-general, constituting the hoard of inspectors of elections, to require them to compare the vote and declare the result of an election for joint representative, are rendered unnecessary and improper, so far as the merits of the controversy are concerned, by the induction into office of the relator, pending the trial of the case in the supreme court. 2. SAME. Will not lie against governor in any case. The governor of the State constitutes one of the co-ordinate departments of the government, and he cannot he compelled by mandamus to perform any act which devolves upon him as governor. He may be appointed by the legislature to act upon any board created by it, whether the act to be performed is ministerial, executive or political, but in acting upon such hoard he does not denude himself of his independent position as chief executive of the State, and it is optional with him whether he will serve or not. He can not be coerced in the performance' of any duty imposed upon him by the mandate of any court. Cases cited and approved: Turnpike Co. v. Brown, 8 Baxt., 490; Bates v. Taylor, 87 Tenn., 319; and cases from other States cited on pages 519 and 520. 3. STATUTORY BOARDS. Majority of, cannot act unless so provided by statute. In the absence of a provision in the law creating the board of in-inspectors of elections, that a majority may act, the secretary of state and attorney-general cannot perform the duties of the hoard except in conjunction with the governor. Case cited and approved: Carroll v. Alsup, 107 Tenn., 257. 4. SAME. Question reserved. The question is reversed and not decided as to whether the secretary of the state and attorney-general may he compelled hy mandamus to do any official act imposed hy the legislature as members of a hoard.
114 Tenn. 521McGregor v. Gill (1904)
1. COMMON CARRIER. Who is. A common carrier of passengers is one who undertakes for hire to carry all passengers indifferently who may apply for passage, and to constitute one, a common carrier, it is necessary that he should hold himself out to the community as such. •Case cited and approved: N. & C. R. R. Co. v. Messino, 1 Sneed, 220. -2. SAME. Livery-stable keeper is not. A livery-stable keeper who lets his conveyances for hire, either with or without drivers, as occasional demands are made upon him by his customers, is not a common carrier, but a private carrier for hire, and the extent of his obligation is to exercise that degree of care and skill in the selection of the vehicle and team which he lets, and of the driver which he sends in charge, that a prudent man, having due regard for his social relations, would bestow on such a matter. Case cited and distinguished: Lawrence v. Hudson, 12 Heisk., 671.
114 Tenn. 526Garrison v. Trotter (1904)
COSTS. Equitably adjusted when neither is “successful party.” Case in judgment. Plaintiff recovered a judgment before a justice of the peace against defendant, for one hundred dollars and all costs, and defendant appealed to the circuit court, where there was a trial de novo in which plaintiff recovered a judgment for $12.75 and costs against defendant. On motion of defendant to retax the costs, the circuit court adjudged the costs accrued before the justice of the pea.ce against the defendant, and the costs accrued on the appeal and in the circuit court against the plaintiffs, from which judgment as to costs plaintiffs appealed; Held, (1) That neither party was successful within the meaning of the Code provision that the successful party shall be entitled to full costs, and, (2) That the circuit court exercised a sound discretion in making an equitable adjustment of the costs, and in conformity with the requirements of the Code that the law of costs shall be construed remedially,-and not as a penal law. Code cited and construed: secs!. 4938, 4961, 4962 (S); secs. 8921, 3944, 3945 (M. & V.); secs. 3197, 3219, 3220 (1858). Cases cited and approved: Parham v. Gibbs, 16 Lea, 296; Williams v. Cosby, 2 Heisk., 644; Schoonoven v. Stillman, 3 Shan. Tenn. Cas., 574.
114 Tenn. 531Murphy v. State (1904)
1. STOCK LAW. Hot unconstitutional because applicable to counties of certain population only. The Act of 1903 (ch. 499) to prohibit the running at large of hogs, sheep and goats in counties having a population of not less than 25,000 and not more than 25,100, according to the federal census of 1900, or any subsequent federal census, is not arbitrary and vicious class legislation, within the prohibition of article 11, section 8, of the/constitution, but is constitutional and valid. Act cited and construed: 1903, ch. 499. Cases cited and approved: Peterson v. State, 104 Tenn., 128; Turner v. State, 111 Tenn., 593; Cools v. State, 90 Tenn., 407; Condon v. Maloney, 108 Tenn., 82; Archibald v. Clark, 112 Tenn., 532. S. SAME, Violation of, not indictable where civil remedy only is provided. Said Act (1903, ch. 499) provides a civil remedy in the nature of an action for damages, enforceable by means of a lien on the offending stock, and does not declare a violation of the act to be a misdemeanor or indictable; hence the remedy provided by the act is exclusive, and a criminal prosecution cannot be predicated thereon. Cases cited and approved: State v. Maze, 6 Humph., 17; State v. Lorry, 7 Baxt., 95; State v. Manz, 6 Cold., 557.
114 Tenn. 534Pressly v. State (1904)
1. INTOXICATING LIQUORS. Gift to minor. Standing permission from parent no defense. It is no defense to a prosecution for giving intoxicating liquors to a minor that the giver held a written permit from the mother of the minor to give any of her children drinks of whiskey or brandy at any time he might desire to do so; and it is not error to refuse to permit the defendant to introduce such writing in evidence. Code cited and construed: Sec. 6786 (S); sec. 5673 (M. & V.); sec. 4863 (1858). S. MISDEMEANOR. When statute provides punishment, any other excluded. When a statute creates a misdemeanor, but is silent as to the punishment, the law provides fine and imprisonment, or either, al the discretion of the court; but where the statute creating an offense prescribes a special form of punishment therefor, any other or additional punishment is excluded. Cases cited and approved: Atchison v. State, 13 Lea, 275; Wick-ham v. State, 7 Cold., 525; Durham v. State, 89 Tenn., 723; Kit-trell v. State, 104 Tenn., 522; Thompson v. State, 105 Tenn., 177; Robinson & Walker v. State, 2 Cold., 181; State v. Keeton, 9 Baxt., 559; State v. Maze, 6 Humph., 17; State v. Lorry, 7 Baxt., 95; State v. Manz, 6 Cold., 557. Code cited: Secs. 6437, 7202, 7212 (S); secs. 5347, 6068,6078 (M. & V.); secs. 4596, 5229, 5237 (1858). 3. JUDGMENT OE COURT. Erroneous judgment as to imprisonment corrected in supreme court. Where the trial court, after properly imposing a fine, erroneously added imprisonment, the supreme court will modify the judgment by striking out the imprisonment, and affirm the judgment as modified. Case cited and approved: Griffin v. State, 109 Tenn., 17.
114 Tenn. 540McDonald v. City of Nashville (1904)
1. ABATEMENT. Death of plaintiff abates personal injury suit after two terms without revivor by administrator. An action for damages for personal injuries brought by the injured party will abate when two terms of court have elapsed since the death of the plaintiff and there has been no revivor in the name of the administrator, in the absence of a showing that no one will administer, or that plaintiff died of the injuries for which he sued. Code cited and construed: Secs. 4569-4571 (S); secs. 3560-3562 (M. & V.);' secs. 2846, 2847, 2849 (1858). 2. REVIVOR. None by heirs or next of kin unless no one will administer. And such suit cannot be revived in the name of the heirs at law or next of kin, unless it is shown that no person will administer on the estate of the deceased. Case cited and approved: Preston v. Gold©, 12 Lea, 267. 3. SAME. Cannot proceed in name of deceased unless he died of injuries sued for. And such suit cannot be revived, or proceed, in the name of the deceased plaintiff himself, unless it appear affirmatively that he died of the injuries alleged to have been inflicted upon him. Case cited and approved: Daniel v. Coal Company, 105 Tenn., 470.
114 Tenn. 544Mays v. Beech (1904)
1. WILL. Power of appointment.. Under general power to appoint fee, donee may appoint lesser estate. Under a general power to appoint an estate in fee, the donee of the power may appoint a lesser or qualified estate in the property, and it is not necessary to execute the power in its entirety, but a partial execution is valid. Cases cited and approved: Steifel v. Claris:, 9 Baxt., 471; Williams v. Whitmore, 1 Shann. Tenn. Cas., 250; Butler v. Huestis et al., 68 Ill., 597; In re Lawrence’s Estate, 136 Pa., 354; Beardsley et al. v. Hotchkiss et al., 96 N. Y., 202; Friend v. Oliver, 27 Ala. (New Series), 534; Wilson v. Wilson, 21 Beavan’s Reports, 28; Bray v. Bree, 2 Clark & Finley’s House of Lords Repts., 453; Phipson v. Turner, 9 Simons’ English Chancery Reports, 287; Moses v. Martin, 34 Beavan’s. Reports, 500. 2. SAME. • Devise of income for life is devise of property for life A devise of the rents, profits and income of real property to one for life is, in effect, a devise of the property itself for life. Case cited and approved: Johnson v. Johnson, 92 Tenn., 563. 3. SAME. Construction of. Case in judgment. The father of testatrix had devised his entire estate to her for life, with remainder in fee to her children, if any, and empowered her, in the absence of children, to dispose of all the property by will, to be effective to pass the title as absolutely as he l could by will, and testatrix, who died without issue, devised the annual income and profits, and the income and profits of the increase and accumulations, of said property to her husband for life, and empowered the husband “to dispose of all of said property and its increase of every kind and description by last will and testament duly executed,” and provided further as follows, viz: “And said last will and testament so made by my said husband shall pass the absolute title to all said property of every kind and description, and its increase as completely as if so willed by me in pursuance of the power conferred upon, me by my father’s will.” Held, that the power conferred upon the husband to dispose of the property by will duly executed is not a delegation of the power vested in the testatrix by her father’s will, but the creation of a distinct and original power appurtenant to the life estate given the devisee for life, to appoint the property in question, and the qualified estate thus given the husband' is a less estate than that she was authorized to create by the will of her father, and is within the power therein vested in her.
114 Tenn. 552Morrow v. Baird (1904)
1. COVENANTS. General warranty of title. Runs with land. Doctrine reaffirmed. The doctrine is well settled in this State that a covenant of general warranty of title runs with the land, and consequently any subsequent vendee who is evicted may sue for the breach. Cases cited and approved: Hopkins v. Lane, 9 Yerg., 79; Lawrence v. Senter, 4 Sneed, 53; Kenney v. Norton, 10 Heisk., 384; Mette v. Dow, 9 Lea, 96. 3. SAME. Same. Intermediate vendor may maintain action against his vendor, if forced to discharge liability to his vendee. An intermediate vendor, who has been forced to discharge his liability to his vendee, evicted by paramount title, may maintain an action for reimbursement against his vendor, whose deed to him also contains a general warranty of title. Cases cited and approved: Allen v. Little, 36 Me., 170; Van Court v. Moore, 26 Mo., 98; Booth v. Starr, 1 Conn., 244; Withy v. Mumford, 5 Cow. (N. Y.), 137; Thompson v. Shattuck, 2 Mete., (Mass.), 618; Suydam v. Jones, 10 Wend., 184; Thompson v. Sanders, 5 T. B. Mon., 357; Redwine v. Brown, 10 Ga., 311.’ 3. SAME. Same. Eviction necessary to maintain action, but may be implied and not actual. The covenant of warranty is not broken without eviction by paramount title, but eviction by judgment at law is not necessary. The warrantee may voluntarily yield possession to him who has a better title and sue his warrantor for a breach of the covenant; but in such case he does so at his peril, and the burden of proof is upon him to show the paramount title. Case cited and approved: Callis v. Cogbill, 9 Lea, 139.
114 Tenn. 563Battier v. State (1904)
FROM DAVIDSON. Appeal in error from the Criminal Court of Davidson County. — W. M. Habt, Judge.
114 Tenn. 569Union Railway Co. v. Raine (1905)
1. EMINENT DOMAIN. Amounts for value of land taken and for incidental damages to the remainder should be reported separately. In proceedings under eminent domain laws to condemn land, the amounts awarded'for the value of the land taken and for the incidental damages to the remainder of the land should he reported separately by the jury, though a joint judgment for both may he rendered. (Post, pp. 571, 572.) 3. SAME. Incidental damages estimated as though the land taken was occupied by as many railroad tracks as is practicable. In proceedings under eminent domain laws to condemn land for railroad purposes, the incidental damages to the land not taken should be assessed as if the land taken was occupied with as many railroad tracks as practicable; and the fact that the railroad company does not contemplate such immediate occupation and use thereof cannot alter the measure of damages. (Post, pp. 572, 573.) Cases cited and approved: Alloway v. Nashville, 88 Tenn., 510; Railroad v. Telford, 89 Tenn., 293; Railroad v. French, 100 Tenn., 209. 3. SAME. Incidental damages lessened by incidental benefits by access of existing railroads, by crossing tracks of proposed railroad, to remaining land valuable for manufacturing sites. Where, in proceedings under eminent domain laws to condemn land for railroad purposes, it appeared that the land not taken was valuable for manufacturing sites, and that the several existing railroads running in front of it had the right to build spur tracks across each other and over the proposed road in order to reach any manufacturing plant thereon, the jury should be instructed that in estimating the incidental damages they must consider that none of the existing roads were cut off from access to the property by the construction of the proposed road, and the failure to incorporate such instruction in the original charge, or to give such instruction upon a special request therefor, is reversible error. (Post, pp. 573-577.) Code cited and construed: Secs. 1489,1504, 1857 (S.); secs. 1249a, 1562 (M. & V.); secs. 1119, 1338 (T. & S. and 1858). 4. SAME. Quantity taken should be valued at its worth at that place and in that form. In proceedings under eminent domain laws to condemn land for railroad purposes, an instruction to the jury that in assessing damages for the land taken, it would not be reasonable to fix the price of the quantity taken at the general rate of the whole tract, as “this would be selling by retail, and ought to he at a higher price for the quantity taken,” is erroneous because it does not follow that the sale of a small quantity would in all cases be at a higher price than the average price of the land as an entire tract, for when a small strip or portion of the land is taken, it ought to be valued at such’’price, for the quantity taken, as the jury deems it would be worth at that place and in that form, whether that he more or less than the value proved per acre for the whole tract. {Post, pp. 577, 578.) Case cited and overruled: Woodfolk v. Railroad, 2 Swan, 438.
114 Tenn. 579Tyrus v. Kansas City, Ft. Scott & Memphis Railroad (1905)
1. VERDICTS. May be directed by the trial judge where the facts are uncontroverted and there is no doubt as to conclusions to be drawn therefrom. Where there is no controversy as to any material facts, the trial judge may instruct the jury to return a verdict in accordance with Ms view of the law applicable to such ascertained or un-controverted facts; but there can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried. (Post, pp. 583-595, and especially pp. 593, 594.) Constitution cited and construed: Art. 6, sec. 9. Cases cited and approved: Bacon v. Parker, 2 Ov., 57; Lannum v. Brooks, 4 Hay., 121, 123; Claxton v. State, 2 Hum., 181, 183; Johnson v. State, 2 Hum., 283; Ivey v. Hodges, 4- Hum., 154, 155; Graham v. Bradley, 5 Hum., 476, 479; Farquhar v. Toney, 5 Hum., 502, 503; Patton v. Allison, 7 Hum., 335, 336; Hughes v. State, 8 Hum., 75, 78, 79; Kirtland v. Montgomery, 1 Swan, 452, 458; McGavock v. Wood, 1 Sneed, 185; Marr v. Marr, 5 Sneed, 388, 389; Whirley v. Whiteman, 1 Head, 616, 617; Ayres v. Moulton, 5 Cold., 154; Ellis v. Spurgin, 1 Heis., 76; Lyon v. Guild, 5 Heis., 177; James v. Brooks, .6 Heis., 158; Railroad v. Campbell 7 Heis., 260; Insurance Co. v. Sturges, 12 Heis., 339, 343; Harington v. Neely, 7 Bax., 442; Crabtree v: State, 1 Lea, 267-270; Robinson v. Railroad, 2 Lea, 594; Gregory v. Underhill, 6 Lea, 207, 211; Jones v. Iron Co., 14 Lea, 157, 158, 159; Cantrell v. Railroad, 90 Tenn., 638; Hopkins v. Railroad, 96 Tenn., 409, 443, 447, 456; Greenlaw v. Railroad, 6 Cates, 187. 3. SURFACE WATER. Facts to show it was gathered and thrown in greater force on plaintiff’s land. In an action for injuries to land caused by gathering surface water in a body and sending it through a culvert upon the land, the facts stated in the opinion were held to show that the defendant railroad company gathered the surface water that came upon its property into a body in its culvert and sent it in greater volume and with greater force than it was accustomed to flow upon the land of the plaintiff, and thereby injured it. (Post, pp. 581, 582, 595.) 3. SAME. Same. Liability in damages for gathering and throwing water upon land of another. Where the defendant gathers the surface water that comes upon his land into a body in a culvert and sends it in greater volume and with greater force than it was accustomed to flow upon the land of the plaintiff, he is liable for the damages so caused. (Post, p. 595.) 4. SAME. Same. Same. Damages upon the basis of permanent injury for overflowing land, when. In an action against a railroad for injury to land by the unlawful diversion of surface water upon the land by gathering it together in a culvert by the means of the lay of the land and the elevation of the roadbed, and throwing it in greater volume and with greater force than it was accustomed to flow upon plaintiff’s land, the plaintiff is entitled to prove the extent of the impairment of the value of the property for the purpose of assessing damages upon the basis of permanent injury. (Post, p. 595.) Case cited and approved: Coleman v. Bennett, 111 Tenn., 705, 714, 715, et sect.
114 Tenn. 596Mengal Box Co. v. Moore (1905)
1. TIMBER,. Contract oí permission to cut and remove timber for five years, but no longer, confers no right thereafter to remove logs previously cut. Contract of permission to enter upon certain described lands and to cut and remove therefrom all the cottonwood trees standing or lying thereon for a period of five years, with right of ingress and egress for said period, but after which there shall be no right nor timber cut on said lands,, confers right and title to such trees, timber, or logs only as have been cut and actually removed from the land before or by the expiration of the five-year limit, and confers no title to, or right thereafter to remove, any trees or logs previously felled and cut. {Post, pp. 598-608.) Cases cited and approved: Hodges v. Buell (Mich.), 95 N. W., 1078; Utley v. Lumber Co., 59 Mich., 263; Richards v. Tozer, 27 Mich., 451; Wait v. Baldwin, 60 Mich., 626; Burch v. Lumber Co. (N. C.), 46 S..E., 24; Hoit v. Mills, 54 N. H., 109, 121; Strasson v. Montgomery, 32 Wis., 52; Golden v. Glocfe, 57 Wis., 118; Salt-onstall v. Little, 90 Pa., 422. Case cited and distinguished: Carson v. Lumber Co., 108 Tenn., 681. Cases cited and disapproved: Kingsley v. Holbrook, 45 N. H., 313; Macomber Case, 108 Mich., 491. S. SAME. Same. Conveyance of land subject to timber contract subsitutes grantee to rights of grantor, including timber cut, but not removed within time limit, when. A deed of conveyance of lands, subject to an existing contract of permission to cut and remove trees thereon at any time within a certain period of five years, passes to the grantee not only the lands and the growing trees thereon, but substitutes him to all the rights which the grantor had in the lands, subject to such timber contract, including the right to the timber felled and cut thereunder previous to the execution of such deed, but not removed from the land within the five-year limit. (Post, p. 608.) 3. SAME. Same. Same. Purchaser of land subject to timber contract may recover logs removed after time limit, though cut before his purchase, if confused with logs cut thereafter. Where a party, under a contract of permission to cut and remove trees from land within a period of five years, cuts trees both before and after a conveyance of the land subject to his contract, and fails to remove them within the limited period of five years, but removes them afterwards, and mingles and confuses them, the grantee in the deed of conveyance may recover all of them under the doctrine of mixing and confusion. (Post, p. 608.)
114 Tenn. 609Union Railway Co. v. Hunton (1905)
PROM SHELBY. Appeal from the Circuit Court of Shelby County. —J. P. Young, Judge.
114 Tenn. 632Memphis Street Railway Co. v. Johnson (1905)
1. APPEALS. Errors reviewable and. correctable in supreme court. The supreme court can only pass upon matters which the record shows have been considered and adjudged by the trial court, and can review and correct only the errors which appear upon the face of the record proper, and those committed in allowing or overruling motions for new trials upon grounds brought into the record by bills of exceptions. (Post, pp. 636-638.) S. NEW TRIALS. Motion for, made and overruled, is necessary to obtain relief on account of errors in the trial. A motion for a new trial, made and overruled, is necessary in order to give the appellant relief on account of errors occurring in the trial of the case, which a bill of exceptions is required to bring into the record. (Post, pp. 638-640.) 3. SAME. Motion for, must be in writing and entered upon the minutes of the court, with the action of the court thereon. The motion for a new trial must be reduced to writing and spread court thereon; and it is not sufficient that the motion, or the action of the court thereon, appears in the bill of exceptions. (Post, p. 640.) Case cited and. approved: Railroad v. Egerton, 98 Tenn., 541. 4. SAME. Rules of practice for presenting and disposing of motions for, may be prescribed by the circuit court. The circuit and law courts have authority, by reasonable rules of practice, not inconsistent with the law, and applicable to such courts, to control the form and time in which motions for new trials shall be made and disposed of. (Post, pp. 640-641.) Code cited and construed: Sec. 6075 (S.); sec. 5009 (M. & V.); sec. 4237 (T. & S. and 1858). Cases cited and approved: Mallon v. Manufacturing Co., 7 Lea, 62; Alexander v. State, 14 Lea, 91; Railroad v. Hendricks, 88 Tenn., 719; Patterson v. Patterson, 89 Tenn., 154. 5. SUPREME COURT PRACTICE, tfeule limiting errors assignable to the grounds for new trials set out in the motion, when. The supreme court, by a rule of practice, may provide that the errors assignable upon the action of the trial judge in refusing a new trial in the circuit or law courts, shall be limited to such grounds for a new trial as were set out in the motion for that purpose in the trial court, regardless) of the rules of that court. (Post, pp. 640, 641, 645.) Code cited and construed: See. 6337 (S.); see 5254 (M. & V.); sec. 4504 (T. & S. and 1858). Cases cited and approved: Poster v. Burem, 1 Heis., 784; Riggs v. White, 4 Heis., 604; Denton v. Woods, 86 Tenn., 37; Wood v. Frazier, 86 Tenn., 500. 6. SAME. Same. Assignment of errors in supreme court limited to those assigned on motion for new trial under rule of lower court, when. Under a rule of practice of the circuit court requiring all grounds for new trials to be stated separately in writing and entered upon the minutes of the court, and providing that all errors not so set out shall he considered as waived, all errors of the trial court not so assigned as grounds for a new trial in the motion made for that purpose are thereby waived, and assignments of error in the supreme court upon the refusal of the trial judge to grant a new trial cannot be predicated upon grounds not so assigned in the lower court. (Post, p. 641.) Cases cited and approved: Wise v. Morgan, 101 Tenn., 273; Railroad v. Blairj 104 Tenn., 212. 7. HEW TRIALS. Statement of grounds for, should be as specific and certain as the nature of the error complained of will permit. The statement of grounds in the motion for a new trial must he sufficient to direct the attention of the court and opposing counsel to the error or irregularity relied upon to vitiate the verdict, and should he as specific and certain as the nature of the error complained of will permit. (Post, pp. 641-644.) 8 SAME. Objection in the lower court to the form of the motion for, is not necessary, when. Objection to the form of the motion for a new trial need not be made in the lower court by the successful party, because the rules of practice of the character of that shown in headnote six are made in the interest of the public, and for the purpose of enabling the courts speedily and correctly to dispose of the cases pending in them, and such rules cannot be waived by litigants. (Post, pp. 641, 644.) 9. SAME. Insufficient statement in motion for; case in judgment. The grounds for a new trial stated in the motion in these words: “(1) For error in the admission and exclusion of evidence; (2) The court erred in refusing the special instructions asked for by the defendant,” are insufficient, for failing to set out the evidence or instructions, where there is a rule of the circuit court requiring all grounds for a new trial to he stated and set out separately in the written motion, and entered on the minutes' of the court, and providing that all errors not so set out are presumed to be waived. (Post, pp. 636-645.) Code cited and construed: Sec. 6075 (S.); sec. 5009 (M. & V.); sec. 4237 (T. & S. and 1858).
114 Tenn. 646Fite v. State, ex rel. Snider (1905)
1. CONSTITUTIONAL LAW. Statute specifically defining credits for good conduct of convicts, in existence at date of conviction, is not an invasion of the pardoning power. Legislation, authorizing the commutation of penal sentences for good conduct of convicts confined in prison, where the credits are specifically defined by sitatute, and where the provisions of the statute operate alone upon sentences of convicts who have been imprisoned subsequent to the passage of the statute, is not an invasion of the constitutional prerogative of the governor in granting pardons, because such statute, in existence at the date of the judgment against the convict, becomes a part of the sentence and inheres into the punishment assessed. (Post, pp. 655-658.) .Code cited and construed: Sec. 7423 (S). Acts cited and construed: 1869-70, ch. 59, sec. 7; 1885 (ex. ses.), ch. 15; 1891, ch. 123, sec. 18. Constitution cited and construed: Art. 3, sec. 6. Cases cited and approved: State, ex rel., v. McClellan, 87 Tenn., 52-55; Rogers v. State, 101 Tenn., 425; State v. Dalton, 109 Tenn., 544; Opinion of Justices, 13 Gray (Mass.), 618; State v. Austin, 113 Mo., 538; Woodward v. Murdock, 124 Ind., 439; In re Fuller, 34 Neb., 581; Ex parte Nokes, 6 Utah, 106; State v. Patterson (N. J. Sup.), 22 Atl., 802; United States v. Wilson, 7 Pet., 150; Osborn v. United States, 91 U. S., 474, 478; Ex parte Garland, 4 Wall., 380; Ex parte Wadleigh, 82 Cal., 518; In re Canfield, 98 Mich., 644. 3. SAME. Statute authorizing commutation of sentences in discretion of a board, without prescribing the schedule of specific credits for good conduct, is an unconstitutional delegation of legislative authority. A statute authorizing the board of commissioners of the county workhouse to deduct for good conduct, and on recommendation of the superintendent, a portion of the time for which any person has been sentenced, or a portion of the fine which he is working out, but failing to prescribe any schedule of specific credits to be allowed for good conduct, and leaving the, whole matter to the arbitrary discretion of the board of workhouse commissioners, is plainly a delegation of legislative authority, and is unconstitutional. {Post, pp. 648-655, 658-660.) Code cited and construed: See. 7423 (S.). Acts cited and construed: 1891, ch. 123, see. 18. Constitution cited and construed: Art. 1, sec. 6. Cases cited and approved: State, ex rel., v. McClellan, 87 Tenn., 52-55; State v. Dalton, 109 Tenn., 544; People v. Cummings, 88 Mich., 249; Commonwealth v. Halloway, 44 Pa., 210; State, ex rel., v. Board, 16 Utah, 478-488. Case cited and disapproved: State, ex rel., v. Peters, 43 Ohio St., 629. 3 SAME. Statute' unconstitutional and void in part may be valid in other parts, when. An unconstitutional and void provision of a legislative act may be so independent of the other provisions of the act as not to affect their constitutionality. {Post, p. 659.) Code cited and construed: Sec. 7423 (S.). Acts cited and construed: 1891, ch. 123, sec. 18. Case cited and approved: State, ex rel., v. Cummins, 99 Tenn., 682.
114 Tenn. 661M'Caul v. Western Union Telegraph Co. (1905)
TELEGRAPH COMPANIES. Not required to deliver messages at residence of addressees beyond place of destination, and in the country, when. Telegraph companies are under no legal obligations', to deliver a telegram to addressees at their residence beyond the place -of destination of the message, and three and one-half miles in the country therefrom, where the message is taken by the receiving operator without notice that the addressees so resided, three and one-half miles in the country from such destination, and where charges were neither paid nor guaranteed for delivering the message at such residence of the addressees.
114 Tenn. 666Sparks v. Sparks (1905)
DIVORCE. Residence required for maintaining a bill for divorce is lost by residence at Washington City, with, intention of returning only upon loss of governmental position of indefinite tenure. Where a petitioner for divorce was born in Tennessee and resided here until he was appointed to a position in a governmental department at Washington, D. C., when he carried his family to that city, where he kept house for twenty-two years, only returning to this State on three occasions during all that time, when he voted here, for which purpose a paid his poll tax, with the intention of returning in the event that he should lose his position (which was under the civil service law, but the tenure of it was such that he might be discharged at any time), without any fixed purpose of returning in any event, he has lost his citizenship, residence) and domicile in Tennessee, and he is not entitled to maintain a bill for divorce. Code cited and construed: Sec. 4203 (S.); sec. 3308 (M. & V.); sec. 2450 (T. & S. and 1858). Cases cited and approved: Fickle v. Fickle, 5 Yer., 203; Foster v. Hall, 4 Hum., 348; Allen v. Thomason, 11 Hum., 536; Layne v. Pardee, 2 Swan, 235; Pearce v. State, 1 Sneed, 66; Straton v. Brigham, 2 Sneed, 423; White v. White, 3 Head, 410; Williams v. Saunders, 5 Cold., 79; Kellar v. Baird, 5 Heis., 46-49.
114 Tenn. 671Nashville, Chattanooga & St. Louis Railway Co. v. Flake (1905)
1. COMMON CARRIERS. Vigilance required in protection of passengers from injury by other passengers, and liability for failure to perform such duty. Common carriers of passengers are bound to exercise the utmost • vigilance and care in maintaining order and guarding the passengers against violence, from whatever source arising, which might me reasonably anticipated or naturally be expected to occur, in view of all the circumstances, and of the number and character of persons on board; and whenever a carrier, through its agents or servants, knows or has opportunity to know, of threatened injury or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions', or to use proper means, to prevent or mitigate such injury, the carrier is liable. (Post, pp. 675, 676.) Case cited and approved: Perry Cos. v. White, 99 Tenn., 256. 2. SAME. Same. Case in judgment. Where a number of drunken and boisterous passengers on a railroad train exploded dynamite sticks in the cars and on the platforms, and fired pistols, and the carrier’s servants, though knowing or having -an opportunity to know of such acts, neglected to take the proper precautions to prevent injury to others, and the plaintiff, another passenger, was shot by the dis.-eharge of a pistol in the hands of one of this drunken party, alleged to be accidental, the railroad is liable for the injury so sustained.
114 Tenn. 677Memphis Trust Co. v. Speed (1905)
X. COLLATERAL INHERITANCE AND SUCCESSION TAX. Property taken in kind by a widow in payment of a bequest of one-balf of the residue of the estate is not subject to, when. Where a nonresident devised and bequeathed one half of the residue of his estate to his wife, and died the owner of personal property in this State, which was a part of the residue of his estate, a portion of which she elected to take at a fair valuation as compared with the balance of the residuary estate wherever situated, and the executor transferred it to her in kind, in payment and satisfaction of her one-half interest in the residuary estate, such property so taken by the widow isi not subject to the collateral inheritance and succession tax. Code cited and construed: Secs. 724, 735. Acts cited and construed: 1893, eh. 174, secs. 1, 10; 1893, ch. 89, see. 7. Code cited and construed: Secs. 724, 735 (S.). 3. SAME. Clear or net value of share of estate after deduction of debts, etc., subject to. Debts owed by the decedent must be deducted from the aggregate value of the estate before it can be ascertained what amount is subject to the collateral inheritance- and succession tax; for the tax shall be levied on the clear value of the estate so passing, and' it is the net value of the share of the estate inherited by or willed to the collateral kindred that is subject to the tax. (Post, p. 691.) Acts cited and construed: 1893, ch. 89, sec. 7; 1893, ch. 174, sec. 1. Cases cited and approved: Callahan v. Woodbridge, 171 Mass., 595; In re King, 172 N. Y., 616. 3. SAME. Same. But Tennessee debts of a nonresident testator will not be deducted from Tennessee assets subject to, when. .But Tennessee debts paid by tbe executor before tibe institution of tax proceedings and not shown to have been paid out of tbe Tennessee assets cannot be deducted from tbe Tennessee assets passing to collateral kindred under tbe will of a nonresident and subject to tbe collateral inheritance and succession tax. [Post, pp. 691, 692.)
114 Tenn. 693Dwyer v. State National Bank (1905)
1. BANK CHECK. Payment may be stopped by drawer before acceptance. The drawer of a check in the usual form upon his general account with a bank, firm, or other person, before it is accepted, expressly or by implication, may revoke it, and forbid its payment, and any subsequent! payment by the bank is made at its peril. (Post, pp. 694-698.) Acts cited and construed: Negotiable Instruments Law, Acts 1899, ch. 94, sec. 189. Cases cited and approved: Imboden v. Perrie, 13 Lea, 605; Pickle v. Muse, 88 Tenn., 385; Akin v. Jones, 93 Tenn., 356; Attorney-General v. Insurance Co., 71 N. Y., 325; Lunt v. Bank, 49 Barb., 221; Bank v. Bank, 118 Pa., 313; Kahn v. Walton, 46 Ohio St, 205; Mining Co. v. Brown, 124 U. S., 391; Railroad v. Johnston, 133 U. S., 574; Bank v. Yardley, 165 U. S., 634; Schneider v. Bank, 1 Daly (N. Y.), 501; O’Connor v. Bank, 124 N. Y., 332; Randolph v. Allen, 19 C. C. A., 353; State v.-Bank, 49 La. Ann., 1078; House v. Kountze, 17 Tex. Civ. App., 406; Sunderlin v. Bank, 116 Mich., 284. 2. SAME. Drawer is precluded from stopping payment where it was the intention to assign the specific fund, when. There are cases in which this general rule, stated in the foregoing headnote, does hot apply, but it must be clearly shown in such cases that it was the intention of the parties! to assign all, or part, of the specific fund on deposit. (Post, p. 698.) Case cited and approved: Bank v. Yardley, 165 TJ. S., 634. 3. SAME. Payment by drawee bank after stoppage of payment is not ratified by drawer’s suit against payee, when. Tbe mere institution of suit by tbe drawer of a bank ©heck against tbe payee to recover tbe amount thereof is not a ratification of tbe act of tbe drawee bank in paying tbe check after instructions to refuse payment, especially where tbe facts stated in connection therewith are not sufficient to show a ratification of tbe payment of tbe revoked check. {Post, pp. 698-699.)
114 Tenn. 700Walker v. Bobbitt (1905)
FROM HENRY. Appeal from the Chancery Court of Henry County.— A. G. Hawkins, Chancellor.
114 Tenn. 711Ehrlich v. Weber (1905)
PROM SHELBY. Appeal from tbe Chancery Court of Shelby County.— F. H. Heiskell, Chancellor. STATEMENT OF FACTS MADE BY MR. JUSTICE NEIL. This case involves a contest over the ownership and diyision of the estate of Adolph Weber, Jr., deceased. The complainant was born in Leipsic, in the kingdom of Saxony, on the 9th day of September, 1860.
114 Tenn. 727Mobile & Ohio Railroad v. Ridley (1905)
PROM OBION. Appeal from the Circuit Court of Ohion County.— R. E. Maiden, Judge.