115 Tenn.

Volume 115 — Tennessee Reports

63 opinions

115 Tenn. 1Brown v. Taylor (1905)
1. OOVENANTS AGAINST INCUMBRANCES. Action for breach, notwithstanding covenantee’s actual knowledge thereof. The covenantee may maintain an action at law for the breach of a covenant against incumbrances contained in a deed of conveyance of land, where there was an unexpired lease upon the premises, although he had actual knowledge of such lease. (Post, pp. 4-8.) Case cited and approved: Perkins v. Williams, 5 Cold., 512. 3. SAME. Breach does not entitle covenantee to counsel fees as damages. The covenant against incumbrances contained in a deed of conveyance of land breached by the existence of an unexpired lease on the premises does not entitle the covenantee to recover as damages counsel fees incurred in the misdirected action to evict the lessee prior to the expiration of his term. (Post, p. 8.) Case cited and approved: Williams v. Burg, 9 Lea, 455. 3. SAME. Breach does not entitle covenantee to special damages, where it is not the essential or proximate cause of such damages. The fact that a purchaser of land disclosed to his vendor that Ms purpose in buying the same was to make subdivision thereof does not entitle him to special damages for a breach of the vendor’s covenant against incumbrances on the ground that such breach prevented the purchaser from obtaining possession of a portion of the land covered by an unexpired lease during the existence thereof, where the breach of the covenant was not the essential cause of preventing the opening of the land for subdivision, for the reason that streets upon which the subdivision was to front had not been formally opened to the public, and could not have been so opened until after the expiration of the lease. (Post, pp. 8-11.) 4. SAME. Damages for breach by existence of unexpired lease is ordinarily the rental value thereof. The covenant against incumbrances contained in a deed of conveyance of land breached by the existence of an unexpired lease on the premises, in the absence of circumstances authorizing the recovery, of special damages, entitles the covenantee to the rental value of the premises during the existence or currency of the lease as damages or compensation for such breach of the covenant against incumbrances. (Post, pp. 8-11.)
115 Tenn. 12Smith v. North Memphis Savings Bank (1905)
1. COMMON LAW. In its entirety and as a distinctive system ■was never in force in Tennessee, but only what was in force in North Carolina. Tiie common law in its entirety and as a distinctive system of laws was never in force in Tennessee, but only such part thereof was in force in Tennessee as had been adopted and was in force in North Carolina when the territory embraced in Tennessee was ceded by North Carolina to the federal government. (Post, pp. 17-19.) Acts cited and approved: 1789, ch. 3. Cases cited and approved: Porter v. State, M. & Y., 227; Nunnely v. Doherty, 1 Yer., 27; Tisdale v. Munroe, 3 Yer., 320; Egnew v. Cochrane, 2 Head, 320. S* STATUTES. Repealed by Code of’ 1858, except as therein provided. The Code of 1858 superseded all other statutory law in this State, including the English statutes previously in force, except as therein specially provided. (Post, pp. 18, 19.) Code cited and construed: Sec. 58 (S.); sec. 42 (M. & V.); sec. 41 (T. & S. and'1858). Case cited and approved: State v. Miller, 11 Lea, 626. 3. CODE OF TENNESSEE. Object to digest and compile existing statutes, not to enact new ones; statutes not presumed to be changed. The object of the legislature in the appointment of the compilers of the Code of 1858 was to have the then existing statutes digested and compiled, not to draft new1 laws; and it will not be presumed that in enacting the said Code it was intended to change the laws then In force, but to revise and compile them into a more tangible form. (Post, p. 30.) Cases cited and approved: Bates v. Sullivan, 3 Head, 633; Burg-ner v. Burgner, 11 Heis., 733; Hospital v. Fuqua, 1 Lea, 608; State v. McConnell, 3 Lea, 338. 4. STATUTES. Re-enacted alone, or in a compilation or Code, the judicial construction previously placed upon it forms part of the enactment. It is a universal rule of construction that where a statute has received a judicial interpretation, and is afterwards re-enacted, whether alone or in a compilation or a codification of the laws of the State, the judicial construction, which had theretofore been placed upon it, forms a part of the enactment. (Post, pp. 30, 31.) Cases cited and approved: Calhoun v. Little (Ga.), 32 S. E., 86, 43 L. R. A., 633, 71 Am. St. Rep., 254; Anderson v. Bell (Ind.), 39 N. E., 735, 29 L. R. A., 541; Cargill v. Kountze (Tex.), 22 S. W., 1015, 25 S. W., 13, 24 L. R. A., 183, 40 Am. St..Rep.,. 853, 5. MARRIAGE. Must be solemnized under statute; common law marriages are void. Statutes (Shannon’s Code, sections 4189-4200), requiring parties proposing to marry to procure a license and make their contract in the presence of certain officers or a minister of the gospel are mandatory, and abrogate the common law in relation to marriages, and provide a new and exclusive manner in which such contracts should be made, and render common law marriages illegal and void. (Post, pp. 15-17, 19-32.) Code cited and construed: Secs. 4189-4200 (S.); secs. 3294-3305 (M. & V.); secs. 2439-2447 (T. & S. and 1858); secs. 2447a-2447d (T. & S.) Acts cited and construed: 1715, ch. 1; 1715, ch. 38, sec. 15; 1741, ch. 1, secs. 1, 3, 4, and 6; 1766, ch. 9, secs. 3, 6, 7, and 8; 1778, ch. 7, secs. 3-5; 1815 ch. 47. Cases cited and approved: Bashaw v. State, 1 Ter., 177; Grisham v. State, 2 Yer., 589. Cases cited, distinguished, and approved: Johnson v. Johnson, 1 Cold., 630; Andrews v. Page, 3 Heis., 667. 6. SAME. Presumed or established by reputation, when. In all cases, except prosecutions for bigamy and actions for criminal conversation, a marriage may be presumed, or he established by reputation after a lapse of many years. (Post, p. 33.) Cases cited and approved: Ewell v. State, 6 Ter., 364; Rogers v. Park, 4 Hum., 480. 7, SAME. Same. Presumed from cohabitation as husband and wife for a long time, when; estoppel to deny marriage in civil suit; wife’s rights as widow. Where a man and woman lived together as husband and wife for twenty-five years and until the death of the husband, and during all that time had recognized'and treated each other as husband and wife, and were so recognized and accepted by the public at large, the deceased husband, if living, would be estop-ped from asserting that they had been legally married, and hence in a suit by her as complainant to enforce her marital rights as his widow against his estate, it will be presumed as against his personal representative that they were legally married and such representative is estopped ■ to controvert her rights as widow and distributee of such decedent. (Post, pp. 15-17, 32-36.)
115 Tenn. 37Carson v. Carson (1905)
1. WILLS. Devise of fee with, unlimited power of disposition defeats executory devise. A fee-simple estate given in the first portion of a devise, with absolute power of disposition, will not he limited or cut down by subsequent clauses and provisions of the will; but the unlimited power of disposition in the first taker which will defeat an executory devise must be a power given by the will .itself, and not one attaching as a legal incident to the estate given by the will. (Post, pp. 39, 40, 43, 45, 46-48.) Cases cited and approved: Booker v. Booker, 5 Hum., 505, 511; Sevier v. Brown, 2 Swan, 114; Brown v. Hunt, 12 Heis., 404; ' Ballentine v. Spear, 2 Bax., 269; Read v. Watkins, 11 Lea, 158; Bradley v. Carnes, 94 Tenn., 27, 30; Meacham v. Graham, 98 Tenn., 201; Clark v. Hill, 98 Tenn., 300. 2. SAME. Same. Devise to husband with remainder'to others subject to his funeral expenses and debts vests life estate only in him, with remainder over; case in judgment. A devise of certain land by testatrix to her husband, with direction that at his death, after the payment of his funeral expenses and just debts, the remainder of said land shall go to others, vests in the husband not an absolute or unlimited estate, such as will defeat a devise over, but only a life estate in' the land, coupled with a limited power of disposition, the power to consume the fee by debts, but not otherwise, nor in any other way to dispose of it, with remainder over to others. (Post, pp. 39, 40, 43, 45, 46-48.) 3. SAME. Devise or bequest is not invalidated by mere misnomer of the corporation. The mere misnomer of the corporation will not invalidate the devise or bequest, if it clearly appears who was intended thereby. (Post, p. 49.) Cases cited and approved: Trustees v. Reneau, 2 Swan, 94; Bank v. Burke, 1 Cold., 623; State v. Smith, 16 Lea, 606. 4. SAME. Devise to a charitable corporation whose charter declares its charitable purposes and trusts need not declare the trusts. A devise and. bequest made direct to a charitable corporation, with the charitable purposes and trusts set out in its charter and articles of foundation, is valid, without setting out the trusts so specifically and definitely as if made to individuals, because the trusts are thus made certain and will control, subject to the directions of the testator, if any are given. But no trusts in such case need be declared, as they are set out in the charter and articles of foundation. (Post, pp. 50, 51.) 5. SAME. Same as 3 and 4. Charitable bequest to the board of trustees of the Cumberland Presbyterian Church vests in the corporation of the General Assembly of the Cumberland Presbyterian Church; case in judgment. A devise of the remainder after the termination of the life estate in certain land, and a devise or bequest of the remainder interest in the proceeds of the sale of certain other lands after termination of the life estate therein, made to certain persons constituting the board of trustees of the Cumberland Presbyterian Church in the United States of America, and their successors, to be held and used by them as trustees only in such manner as to best promote the interest of Christianity in the fields occupied by that church which it appears is incorporated under the name of the General Assembly of the Cumberland Presbyterian Church, is a valid charitable bequest to the corporation which it may hold under its charter for the charitable purposes and trusts set out in its charter and articles of foundation, with due regard and deference to the directions of the testatrix, and beyond that under the general trusts under which that corporation holds all its property, it being the evident intent of the testatrix that said remainder estate or interest vest in that church or corporation as a charitable organization of a religious character. (Post, pp. 39-51, and especially pp. 39-41, 49-51.)
115 Tenn. 52Mosely v. State (1905)
TAXATION". Interest on United States bonds cannot be taxed as such by the State. The income derived as interest on United States bonds cannot be taxed as such by the State government, and a statute providing for such taxation is void and nonenforceable. The interest does not become taxable immediately upon being paid into the hands of the bondholder, and he is not bound to return, for taxation, the money so received immediately upon receipt thereof, or upon the mere appearance of the fact that he has received such sums from the government. Acts cited and construed: 1903, ch. 258, secs. 8 and 16. Cases cited and approved: McCulloch v. Maryland, 4 Wheat., 316; Weston v. Charleston, 2 Pet., 449; Dobbins v. Erie Co., 16 Pet., 435; Almy v. California, 24 How., 169; Railroad v. Jackson, 7 Wall., 262; Buffinton v. Day, 11 Wall., 115; United States v. Railroad, 17 Wall., 322, 332; Cook v. Pennsylvania, 97 U. S., 566; Van Brocklin v. Anderson, 117 U. S<? 161, 178; Bank v. New York, 121 U. S., 138, 162; Steamship Co. v. Pennsylvania, 122 U. S., 326; Leloup v. Mobile, 127 U. S., 640; Pollock v. Loan & Trust Co., 157 U. S., 429, 581, 582, 584-586, 591, 592.
115 Tenn. 64Farmers' & Merchants' Bank v. Bank of Rutherford (1905)
1. BANKS AND BANKING. Negligence in drawee bank to pay forged check, when. it is negligence in a drawee bank to pay a forged check drawn on it in the name of its customer, whose signature is well known to it, where the cashier does not examine the signature closely, hut relies on the previous indorsements. (Post, pp. 66, 70, 71.) 2. SAME. Check payable to a certain person or bearer need not be indorsed, nor need the holder be identified, and no negligence for failure to require identification. A check payable to a certain named person, or bearer need not be indorsed, nor need the holder thereof be identified, and a bank paying such check without identification of the holder is not negligent, though the bank, in compliance with its custom, required it to be indorsed. (Post, p. 69.) 3. BILLS AND NOTES. Indorsement does not warrant to drawee the genuineness of drawer’s signature, but only to subsequent holders. The indorser of negotiable paper does not, by his indorsement, warrant to the drawee the genuineness of the signature of the drawer, but his indorsement extends such warranty only to subsequent holders in due course of trade. (Post, p. 70.) 4. BANKS AND BANKING. Drawee bank paying forged check is estopped to deny genuineness of signature of drawer as against a prior indorser. Where the drawee bank received and paid a forged check, which had been previously honored and indorsed by other banks, and held it for thirty days or more, it thereby admitted the same to be correct, and it is precluded and estopped to deny the genuineness of the signature, or as against a prior indorser, to avoid the effect of its act in accepting the check and paying it. (Post, p. 67.) Case cited, distinguished, and disapproved: Bank v. Bank, 88 Tenn., 299. 5. BILLS AND NOTES. Holder of negotiable instrument defined. The holder of a negotiable instrument is the payee or indorsee who is in possession, or the bearer. (Post, p. 71.) Acts cited and construed: 1899, ch. 94, sec. 52. 6. BANKS AND BANKING. Drawee by accepting check becomes a guarantor thereof. The drawee of a check, by accepting the same, makes himself the guarantor thereof. (Post, p. 71.)
115 Tenn. 73Hobson v. Moorman (1905)
WILLS. . Admissibility of testator’s previous declarations to show incapacity and susceptibility to extraneous influences, but not to prove fact of undue influence. Where a will is sought to be impeached, or the probate thereof is resisted, on the ground of undue influence and testamentary-incapacity, the declarations of the testator made previous to the execution of the will, while admissible to show his mental incapacity and susceptibility to extraneous influences, are inadmissible as substantive evidence to prove the fact of undue influence. Cases cited, distinguished, and approved: Brown v. Mooore, 6 Yer., 272; Patton v.. Allison, 7 Hum., 320; Smiley v. Gambill, 2 Head, 164; Demonbreun v. Walker, 4' Bax., 199; Beadles v. Alexander, 9 Bax., 604; Linch v. Linch,. 1 Lea, 526; Maxwell v. Hill, 89 Tenn., 584; Peery v. Peery, 94 Tenn., 328; Kirkpatrick v. Jenkins, 96 Tenn., 85; Earp v. Edgington, 107 Tenn., 31; Throck-morton v. Holt, 180 IT. S., 552, 45 L. Ed., 663; Shailer v. Bum-stead, 99 Mass., 122; Rusling v. Rusling, 36 N. J. Eq., 603, 607; Calkins v. Calkins, 112 Cal., 296; Donovan’s Estate, In re., 140 Cal., 390; Jones v. Grogan, 98 Ga., 552; Bevelot v. Lestrade, 153 . Ill., 625; Yorty v. Webster, 205 Ill., 630; Grifiith v. Diffenderf-fer, 50 Md., 466; Middleditch v. Williams, 45 N. J. Eq., 726; Wiltsey’s Will, In re, 122 Iowa, 423; Waterman v. Whitney, 11N. Y., 157; Herster v. Herster, 122 Pa., 239; Townsend’s Estate, In re, 122 Iowa, 246; Power’s Ex’r v. Powers (Ky.), 78 S. W. 152; Marx v. McGlynn, 88 N. Y., 357, 374; Meeker v. Boylan, 28 N. J. Law, 274; Bush v. Bush, 87 Mo. 480; Pemberton’s Case, 40 N. J. Eq., 520; McConnell v. Wildes, 153 Mass., 487; Eástis v. Montgomery, 95 Ala., 486; Ormsby v. Webb, 134 U. S., 47, 33 L. Ed., 805.
115 Tenn. 99Western Union Telegraph Co. v. M'Caul (1905)
FROM GIBSON. Appeal from the Circuit Oourt of Gibson County.— John E. Bond, Judge.
115 Tenn. 108Kansas City, Memphis & Birmingham Railroad v. Williford (1905)
1. RAILROADS. The engine is the most perilous part of the train; what protection those riding on engine are entitled to. The railroad engine is at all-times the most exposed and perilous portion of the train, and persons not in the performance of any duty there, including by express adjudication passengers and baggage masters, riding on the engine, can claim nothing more than protection from injury by the willful, wanton, or intentional act of the carrier and its employees. (Post, p. 114.) Cases cited and approved: Railroad v. Wilson, 88 Tenn., 318; Railroad v. Bogle, 101 Tenn., 40. 2. CONTRIBUTORY NEGLIGENCE. To be determined by the jury, when; and by the court, when. While contributory negligence, where the facts are fairly debatable, is a question to be determined by the jury, under proper instruction, yet, where the facts are incontrovertible, the question then becomes one for the court. (Post, pp. 115-118.) Cases cited and approved: Light & Power Co. v. Hodges, 109 Tenn., 333; Warden v. Railroad (Ala.), 10 South., 276, 14 L. R.A., 553; Martin v. Railroad (C. C.), 41 Fed., 125; Judkins v. Railroad, 80 Me., 417; Hickey v. Railroad, 14 Allen, 429; Railroad v. Langdon, 92 Pa., 21; Railroad v. Thomas, 79 Ky., 160; Railroad v. Greiner, 113 Pa., 600; Railroad v. Ray, 70 Ga., 674; Martensen v. Railroad, 60 Iowa, 705; Railroad v. Jones, 95 II. S. 439; Wilcox V.- Railroad (Tex. Civ. App.), 33 S. W., 379. 3. SAME. Proximately causing one’s own injury prevents his recovery from another whose negligence also directly contributed to the injury. Want of ordinary care on his own part proximately contributing to his injury will prevent the injured party from maintaining an action against another who also directly contributed to the injury. (Post, pp. 118, 119.) Case cited and approved: Butterfield v. Forrester, 11 East, 60. 4. SAME. Remotely causing one’s injury will not prevent his recovery from another whose negligence directly caused the injury. Where the negligence of the plaintiff remotely contributes to his injury, and he is not altogether without fault, still he can maintain an action for his injury against the defendant whose negligence directly contributes to the plaintiff’s injury, or is the proximate cause thereof. (Post, pp. 119-124.) Cases cited and approved: Whirley v. Whiteman, 1 Head, 610; Davies v. Mann, 10 Mees. & Wei., 54’6; Inland & Coasting Co. v. Tolson, 139 U. S., 551; Railroad v. Ives, 144 U. S., 408; Trow v. Railroad, 24 Vt., 487; Railroad v. Hellenthal, 88 Fed., 116, 31 C. C. A., 414; Gilbert v. Erie Co., 97 Fed., 747, 38 C. C. A., 408; Railroad v. Lee, 9 South., 233. 5. SAME. Trespasser on railroad engine is guilty of such contributory negligence as prevents a recovery for his death from a collision at street crossing; case in judgment. Where a person, without invitation or necessity, stepped upon and occupied the footboard along and at the rear of a switch engine, presumably with the knowledge of the foreman, and without his objection, and was killed by a collision at a street crossing, which was unavoidable by the utmost energies of the engineer, he was guilty of such gross contributory negligence as precludes a recovery, though the engine was running at a speed greatly in excess of that allowed by a city ordinance. 6. VERDICTS. Eor defendant may be directed by trial judge, ■where there is no evidence to support the action. It is a proper case for the trial judge to instruct the jury to return a verdict in favor of the defendant, where there is no evidence to support the action. {Post, p. 124.)
115 Tenn. 125Wilson v. Alexander (1905)
FROM HAYWOOD. Appeal from the Circuit Court of Haywood County. —J. E. Bond, Judge.
115 Tenn. 138State v. Witherspoon (1905)
1. MONOPOLIES, CONSPIRACIES, AND TRUSTS. Statute (Acts 1903, ch. 140) against, is declared constitutional and valid. The anti-trust statute (Acts 1903, ch. 140), declaring all agreements, trusts, and combinations, made with a view to lessen, or which tend to lessen, full and free competition in the transportation or sale of articles imported into the State, or in the manufacture or sale of articles of domestic growth, etc., and all agreements tending to control the price or cost to the purchaser or consumer of any product or article to be void, and subjecting parties to such agreements to criminal prosecution, is constitutional and valid. (Post, pp. 140-143.) Acts cited and construed: 1903, ch. 140. Cases cited and approved: Bailey v. Plumbers’ Association, 103 Tenn., 99; State v. Brewing Co., 104 Tenn., 715; Connolly v. Pipe Co., 184 U. S., 654, 46 L. Ed., 679. 3. SAME. Indictment need not charge the means or the evidence of the conspiracy. An indictment for a violation of the anti-trust statute (Acts 1903, ch. 140) need not charge the means by which the unlawful agreement and conspiracy was intended to be effectuated, or the evidence tending to prove the unlawful agreement, for it is sufficient to charge in the indictment the existence and object of the conspiracy, without any statement of the means intended to be used in its accomplishment. (Post, pp. 143,144.) Cases cited and approved: Rex v. Eccles, 1 Leach, 274; Rex v. Gill & Henry, 2 B. & Aid., 204; People v. Richards, 1 Mich., 216; State v. Crowley, 41 Wis., 271. 3. SAME. Indictment must state terms of agreement, the particular articles, and which are imported or of domestic growth or manufacture, when. An indictment for the violation of the anti-trust statute (Acts 1903, ch. 140), charging that the defendant, as agent, of a certain corporation, did unlawfully, knowingly, and feloniously carry out the terms of the agreement, combination, and conspiracy entered into by such corporation with another corporation, made with a view to lessen, and which tended to, and did lessen full and free competition in the importation and sale of articles imported into this State, and in the manufacture and sale of articles of domestic growth and of domestic raw material and which tended to, and did advance and control the price and cost of product and article to the consumer and buyer, but failing to state the terms of the agreement, or arrangement entered into by the parties, and the particular articles imported or of domestic manufacture or growth, the price of which such agreement, arrangement, and conspiracy tended to control and lessen or advance, is fatally defective. Acts cited and construed: 1903, ch. 140. Constitution cited and construed: Art. 1, secs. 9 and 14. 4. INDICTMENTS. In words of statute are generally sufficient. An indictment for a statutory offense which substantially follows the statute is generally sufficient. (Post, p. 143.) Cases cited and approved: Griffin v. State, 109 Tenn., 17-21; State v. Morgan, 109 Tenn., 157-166. 5. SAME. Sufficient definiteness of. All indictments must be sufficiently definite and direct in their averments to give the defendant notice of the particular crime, with which he is charged, and the nature thereof, and must so describe and* identify the offense that the judgment in the case can be relied on, in another prosecution for the same thing, as a former acquittal or conviction. (Post, pp. 143-147.) Cases cited and approved: Pearce v. State, 1 Sneed, 67; Daniel v. State, 3 Heis., 257; Lewis v. State, 3 Heis., 333; Smartt v. State, 112 Tenn., 539. Constitution cited and construed: Art. 1, secs. 9 and 14.
115 Tenn. 150Hamilton v. Brownsville Gaslight Co. (1905)
1. TAX SALES. Assessment and list of sales must show items and amounts in dollars and cents; mere figures without more are insufficient, and render sale void. The absence of the dollar marls: or any thing to indicate what is meant by the figures in the assessment of property for taxation or in the trustee’s certified list of sales of lands for taxes furnished to the clerk of the circuit court renders such tax sales of land void. Such list should show in dollars and cents the amount of taxes, as well as each item of costs and penalties. . Mere figures entered between perpendicular lines without more are insufficient. Acts cited and construed: 1899, ch. 435, sec. 55. Cases cited and approved: Randolph v. Metcalf, 6 Cold., 400, 407; Dunn v. Dunn, 99 Tenn., 612; Barnes v. Brown, 1 Tenn., Chy. App., 740; Anderson v. Post, (Tenn. Chy. App.), 38 S. W., 283. 2. SALE. Purchaser under void sale is entitled to be reimbursed for taxes and interest, but not for costs and penalties; and must pay costs of suit. Where the sale of land for taxes is void, the purchaser is entitled to have refunded to him the taxes for which the land was sold, and all subsequent taxes paid by him, with interest on all, but no penalties or costs; and the owner seeking to have such sale declared void and removed as a cloud must pay such pur chaser such sum. Costs of suit adjudged against such purchaser, (Post, pp. 154, 155.)
115 Tenn. 156State ex rel. Hurt v. Alexander (1905)
1. JUDGMENTS. Against State and county for costs in tax suits are not invalidated by what. Judgment in a tax suit for costs against the State and- county is not invalid because of its failure to recite that it was pronounced in favor of the clerk and master, or because of its omission to specify in detail the items of costs and their apportionment between the State and county, or because it awarded an execution against the county. (Post, pp. 163, 164.) Case cited and approved: Gillet v. Roadman, 5 Hum., 44'. S. COSTS. Adjudged against county in tax suits are hot required to be certified by district attorney and presiding judge. Statutes requiring the certification of costs against a county by the district attorney and presiding judge as prerequisite to their payment apply to. the certification of costs in criminal cases, and not to costs adjudged against a county in a tax suit. (Post, pp. 164, 166.) Code cited and construed: Sec. 672 (S.). Acts cited and construed: 1897, ch. 29, sec. 1. Cases cited and approved: State v. Wilbur, 101 Tenn., 211; Henderson v. Walker, 101 Tenn., 229; Donaldson v. Walker, 101 Tenn., 242. 3. SAME. County’s previous appropriation for and payment of costs in tax suits is not available against subsequently adjudged and taxed costs, when. Where, certain costs were adjudged and taxed against a county more than a year after an appropriation had been made by the county court to the relator for costs in tax suits, such appropriation and payment is no defense by the county against a mandamus suit to compel the issuance of a warrant and payment for such adjudged a::d taxed costs. (Post, pp. 165, 166.) 4. SAME. Same. Plea of set-off that is too vague and uncertain to present an issue of fact. In a mandamus suit to compel the payment of- costs adjudged and taxed against a county in a tax suit, an averment that prior to said judgment a certain amount was appropriated hy the county court and paid to the relator for similar claims for costs in tax suits involving double assessments, for which the county was not liable, alleged as a claim of equitable set-off, is too vague and uncertain to present an issue of fact, because there is no specification showing wherein said costs where illegal, or on what tracts of land, or in what amount they were paid. (Post, pp. 165-167.) 5. MANDAMUS. Presumption in favor of petition, where the return fails to answer the important facts. Whenever it appears in a mandamus suit that the return fails to answer the important facts alleged in the petition, every in-tendment and presumption will he made against it. (Post, p. 167.) 6. SAME. Allegations neither denied nor confessed and avoided are taken as true. In a mandamus suit, allegations in the petition, which are neither denied nor confessed and avoided in the return, will he taken as true. (Post, p. 167.) 7. SAME. Motion for peremptory writ is equivalent to a demurrer to the return. In a mandamus suit, a motion for a peremptory writ on the pleadings is equivalent to a demurrer to the return for not stating facts sufficient to constitute a defense. (Post, p. 167.) Cases cited and approved: State, ex rel., v. Marks, 6 Lea, 12; Harris v. State, 96 Tenn., 496. 8. COSTS. Eee for taxing costs in tax suits when suit is dismissed as to one defendant for double assessment. Statute requiring not less than twenty-five defendants in tax suits, and providing for the apportionment of costs among all the defendants, applies only where final degrees might he rendered for the sale of the land for the taxes, and not to a case where a judgment was denied because of double assessment, and in the latter case the clerk is entitled to fifty cents for taxing the bill of costs. (Post, pp. 167, 168.) 9. SAME. Statute making tax assessor liable for costs on account of double assessment does not apply to assessments previous to its enactment. The statute (Acts 1891, ex. ses., ch. 26, sec. 18), providing that, when a bill to collect taxes shall he dismissed on account of double assessment, the tax assessor shall be liable for all the costs in the case, is not applicable to assessments made previous to its enactment. (Post, pp. 168, 169.) Acts cited and construed: 1891 (ex. ses.) ch. 26, sec. 18. 10. SAME, Same. Remedy against tax assessor for costs on account of double assessment is not exclusive; and county is liable, when. The statute giving a remedy against the tax assessor for costs, where the bill is dismissed on account of double assessment, does not provide an exclusive remedy in favor of the .officer for their costs, nor relieve the county from liability. (Post, pp. 168, 169, 170.) Acts cited and construed: 1891 (ex. ses.), ch. 26, sec. 18. 11. SAME. Statute exempting State, county, or city from costs in tax suits does not apply to dismissal for double assessment, when. Statute (Acts 1901, ch. 174, sec. 78), providing that for failure to prosecute tax suits to final determination, no costs shall be paid by State, county, or municipality, and that all costs shall be paid only from a sale or collection, does not apply to a case where the suit is dismissed on account of double assessment. (Post, pp. 170, 171.) Acts cited and construed: 1901, ch. 174, see. 78. IS. SAME. Same. Provision applies to delinquent taxes for 1894 and 1895 only. Moreover, the provision in the foregoing headnote is limited to back tax attorneys appointed under Acts 1895, and relates entirely “to the delinquent taxes in said back tax attorney’s office” and they had control of the delinquent taxes for the years 1894 and 1895 only. (Post, pp. 170, 171.) Acts cited and construed: 1895, ch. 120, sec. 80; 1901, ch. 174, secs. 75 and 78.
115 Tenn. 172Mobile & Ohio Railroad v. Matthews (1905)
PROM OBION. Appeal in error from the Circuit Court of Obion County. — R. E. Maiden, Judge.
115 Tenn. 175State v. Mayor of Knoxville (1905)
1. PUBLIC SCHOOLS. Recovery by State and county from city for excess of fund received by it upon false reports of scholastic population. The State pnd county may, for the use of their respective school funds, recover from a municipal corporation the excess above the proper amount of school funds received by it, through fraud or mistake, upon false and padded reports of its scholastic population, although the fund has been expended for governmental purposes in the maintenance of its schools. Constitution cited: Art. 11, sec. 12. Cases cited and approved: Land Co. v. Jellico, 103 Tenn., 320; Ernest v. West Covington, 76 S. W., 1089, 63 L. R. A., 652; Hitchcock v. Galveston, 96 U. S., 341; Louisiana City v. Wood, 102 U. S., 294; Chapman v. Douglass Co., 107 U. S., 348; Moses v. McFarlan, 2 Burr., 1005; Morville v. Society, 123 Mass., 129; Argenti v. San Francisco, 16 Cal., 282. 3.SAME. City board of education, enumerators of scholastic population are the agents of the city. The city board of education, put in charge of the city schools under the city charter and ordinances passed pursuant thereto, and the enumerators appointed by such board to take the census of the scholastic population are the agents of the city, and not of the State. (Post, pp. 179-182, 185-192.) Acts cited and construed: 1873, ch. 25, secs. 2 and 51; 1885 (ex. ses.), ch. 8, secs. 63, 64, and 66. Cases cited and approved: University v. Knoxville, 6 Bax., 166; Edmondson v. Board, 108 Tenn., 562. 3. MUNICH?AI. CORPORATIONS. Defined. A municipal corporation is a body corporate established by law to share in the civil government of the country, but chiefly to regulate the local or internal affairs of the city, town, or district incorporated. (Post, p. 191.) Case cited and approved: University v. Knoxville, 6 Bax., 166. 4. SAME. Decree for State and county school funds wrongfully received and expended by city to be satisfied out of general funds. A decree in favor of the State and county and against a city for the excess of the proper amount of school funds received and expended by it would, like any other judgment or decree, be satisfied out of the general revenues or such as may be derived from a tax imposed to meet the decree, and not from the current school revenues. (Post, pp. 192-194.) 5. INTEREST. Allowed from date of the filing of the bill, when. Interest will be allowed on the recovery as shown in the first and fourth headnotes from the date of the filing of the bill. (Post, p. 194.)
115 Tenn. 195Arnold v. Mayor of Knoxville (1905)
1. TAXATION. Injunction by taxpayers against special assessments for local improvements under unconstitutional statute. Injunction is the proper remedy for taxpayers and owners of real estate affected by an unconstitutional statute and city ordinances passed thereunder establishing improvement districts to enjoin proceedings to make special assessments for local improvements therein. (Post, pp. 198, 201.) Case cited and approved: Norwood v. Baker, 172 U. S., 292. 2. SAME. CONSTITUTIONAL LAW. Statute authorizing improvement districts in a city, and special assessments to pay for the local improvements, is constitutional. A statute (Acts 1905, ch. 278) providing for the creation of improvement districts by a municipal corporation within the corporate limits, and providing for special assessments on the property lying therein, abutting thereon, or adjacent thereto, to pay for the improvements, is valid and constitutional, because the special assessments for local purposes- so authorized are not taxes within the sense of the constitution (art. 2, sec. 28) requiring all property to be taxed according to value, equally and uniformly throughout the State, and (art. 2, see. 29) empowering the legislature to authorize the several counties and incorporated towns to impose taxes, for their respective purposes,-and according to value, upon the principles established in regard to State taxation; and such an improvement district within the corporate limits, and less than the whole city and embracing only a part of one street, may he validly created by proper city ordinances enacted pursuant to the provisions of such statute. Acts cited and construed: 1905, ch. 278. Constitution cited and construed: Art. 2, secs. 28 and 29. Cases cited and overruled: Taylor v. Chandler, 9 Heis., 352; Reel-foot Lake District v. Dawson, 97 Tenn., 151. Cases cited and approved: Franklin v. Maberry, 6 Hum., 368; Washington v. Nashville, 1 Swan, 177, 180; Whyte v. Nashville, 2 Swan, 364; Nashville v. Berry, 2 Tenn. Cases, 561, 5,63; Louisiana v. Pilsbury, 105 IT. S., 295; Institution v. Jersey City, 113 U. S. 506; Spencer v. Merchant, 125 U. S., 355; Railroad v. Decatur, 147 U. S., 198, '199; French v. Barber Asphalt Co., 181 U. S., 324; Norwood v. Baker, 172 U. S., 269; Tonawanda v. Lyon, 181 U. S., 389; Webster v. Fargo, 181 U. S., 394', 395; Farm Co. v. Detroit, 181 U. S., 396; Schaefer v. Werling, -188 TJ. S., 516; Wright v. Boston, 9 Cush., 233, 241; McGonigle v. Allegheny City, 44 Pa., 118, 121; Litchfield v. Vernon, 41 N. Y., 123, 133; Macon v. Patty, 57 Miss., 378; Madera Irrigation District Bond Case, 28 Pac., 272, 14 L. R. A., 767, 27 Am. St. Rep., 106; Cain v. Davie Co., 86 N. C., 8; Shuford v. Lincoln Co., 86 N. C., 552; Busbee v. Walker Co., 93 N. C., 143; Raleigh v. Peace, 110 N. C., 32; Wilmington v. Yopp, 71 N. C., 76; Sears v. Board (Mass.), 53 N. E., 138, 43 L. R. A., 836; Weed v. Boston, 172 Mass., 28; Huston v. Tribbetts, 171 Ill., 547; King v. Portland, .38 Or., 402; Sheley v. Detroit, 45 Mich., 431. 3. SAME. SAME. Same. Such statute is not unconstitutional as deprivation of property without due process of law. A statute (Acts 1905, ch. 278) providing for city improvement districts and special assessments for improvements therein is not unconstitutional as the taking of property of the landowners so taxed for piiblie purposes without just compensation and without due process of law. (Post, pp. 200, 201, 204, 222, 223.) Cases cited and approved: French v. Asphalt Co., 181 U. S., 324; Cain v. Davie Co., 86 N. C., 8; Shuford v. Lincoln Co., 86 N. C., 552; Busbee v. Walker Co., 93 N. C., 143; Raleigh v. Peace, 110 N. C., 32. 4. CONSTITUTIONAL LAW. Contemporary construction long acquiesced in is of much weight, still plain and palpable' error will be corrected. While the contemporary construction of a constitutional provision, which has been long acquiesced in, is entitled to great weight in determining the meaning of the same; still if such construction is plainly and palpably erroneous the court will correct it (Post, pp. 201, 202.) Case cited and approved: Coleman v. Campbell, 3 Tenn Cases, • 355, 364', 365.
115 Tenn. 234Miller v. Wolfe (1905)
1. INHERITANCE TAX. Six years statute of limitation does not apply to. Chapter 24, Acts of 1885, which hars the collection, and extinguishes the lien, of property, privileges and poll taxes after six years from the first of January of the year for which such taxes accrued, has no application to collateral inheritance taxes. Acts cited and construed: 1885, ch. 24; 1893, ch. 174. Case cited and approved: Zickler v. Union Bank & Trust Co., 104 Tenn. 277. Case cited and distinguished: State v. Alston, 94 Tenn., 674. 2 SAME. Suit for, barred after five years. Collateral inheritance taxes are barred, and presumed to have been paid, unless sued for within five years after they are due and demandable. Act cited and construed: 1893, ch. 174. 3. SAME. Same. Applies to all actions for inheritance taxes. The limitation of five years is not confined in its application to purchasers of real estate from persons liable for the tax, but constitutes a general limitation in all actions for inheritance taxes.
115 Tenn. 238State v. U. S. Grant University (1905)
1. CORPORATIONS. Educational corporation is dissolved by-conveyance of its property and franchises to another educational corporation, for the payment of its debts, and cannot sue, when. Where an educational corporation conveys and transfers its franchises, powers, and privileges to another educational merger corporation, and conveys all its property to an educational aid or auxiliary corporation in consideration of the payment of its debts, with the provision and agreement that the property is to be conveyed by the said auxiliary corporation to the said educational merger corporation, when it is financially able to operate and carry on the school, and upon its refunding to the auxiliary corporation the money expended in payment of said debts, and delivers the possession of the property to the said merger corporation, the conveying corporation, both under the common law and under our statutes, by its such conveyance, worked a dissolution and terminated its existence, and cannot afterwards maintain a suit, especially more than five years af-terwards under our statutes. (Post. pp. 240-255.) Code cited and construed: Secs. 2070, 2071, 2525 (S.); secs 1719, 1720, 1984 (M. & V.); secs. 1492, 1493 (T. & S. and 1858). Acts cited: 1875, ch. 142. Cases cited and approved: State v. Bank, 5 Bax., 108, 116,' 117, 118; Railroad v. Kyle, 9 Lea, 691; Pennsylvania College Cases, 13 Wall., 190. Cases cited, approved, and distinguished: College v. Bartlett, 8 Bax., 231; Railroad v. Kyle, 9 Lea, 691; Bache v. Society, 10 Lea, 437; Parker v. Hotel Co., 96 Tenn., 273. 2. SAME. Trustee cannot sue when tire corporation cannot. A mere trustee of a defunct corporation cannot maintain a bill in behalf of the corporation where it has no power or right to sue. (Post, pp. 255.) 3. SAME. Trustee cannot sue, unless lie requests the corporation to sue, and it refuses. A trustee of a corporation cannot sue in its behalf, unless he shows that he has requested it to sue, and that it has refused. (Post, pp. 255, 256.) Oases cited and approved: Gas Co. v. Williamson, 9 Heis., 338, 339; Boyd v. Sims, 87 Tenn., 777, 778. 4. SAME. Same. Facts that excuse request of corporation to sue, and not mere conclusions, must be alleged. A trustee of a corporation cannot maintain a bill in its behalf upon the allegation that an application to it to sue would be useless formality, which is only a conclusion of law, but the facts which excuse such a demand or request must be stated with particularity and definiteness. (Post, pp. 256, 257.) Cases cited and approved: Steiner v. Parsons, 103 Ala., 215; Brewer v. Theater, 104 Mass., 378. 5. PARTIES TO SUITS, intermediate grantee is an indispensable party to conveyor’s suit to recover the property and to cancel contract, when. The educational aid or auxiliary corporation, to which the conveyance of property was made as for the purpose stated in the first headnote is an indispensable party to a suit by the conveyor to recover the property, and to have the contract canceled. (Post, p. 257.) 6. CORPORATIONS. Amendment to charter of educational corporation that is not fundamental does not require unanimous consent of trustees, but majority only. An amendment to a charter of an educational corporation for the maintenance of schools of law, medicine, theology, and technology, and an academic department, so -as to authorize a college of liberal arts, literature, and general culture, is merely auxiliary, and not fundamental, because it does not seek to change the character of the corporate business, and, therefore, the unanimous consent of the trustees of the corporation is not required, but a mere majority is sufficient. (Post, pp. 245, 246, 257-259.) Cases cited and approved: Deaderick v. Wilson, 8 Bax., 108; Mul- . ler v. Insurance Co., 92 Tenn., 167.
115 Tenn. 260Brogan v. Barnard (1905)
1. HOLOGRAPHIC WILLS. Statutory provisions relating1 to, must be complied with.. The several requirements of the statute relating to holographic wills are equally important and must he fully complied with in order to establish such a will. Code cited and construed: 3896 (S.); 3004 (M. & Y.); 2163 (1858). 2. SAME. Same. Meaning of the term “valuable papers” in statute relating to holographic wills. Case in judgment. The words, “valuable papers,” in the statute providing that a writing appearing to be the will of a decedent, written by him and found after his death “among his valuable, papers,” mean ’ documentary papers deemed valuable and worthy of preservation by the owner; and a paper writing of a decedent found in a box where he kept stamps and stationery for sale and use as postmaster, was not found among such “valuable papers” as are essential to sustain such writing as a holographic will. Code cited and construed: 3896 (S.); 3004 (M. & V.); 2163 (1858). Case cited and approved: Marr v. Marr, 2 Head, 306.
115 Tenn. 266State v. Chilhowee Woolen Mills Co. (1905)
1. CORPORATIONS. Surrender of charter and dissolution of corporation by a majority of the stockholders, when. A majority of the stockholders in a private business corporation may voluntarily surrender the charter, and abandon, discontinue, and dissolve the corporation upon terms of equality to all stockholders over the protest of the minority stockholders before the corporation had purchased any property, incurred any debts, or accomplished anything more than a temporary organization, and where it appears that the stockholders .would not be materially prejudiced or financially injured by the dissolution an.d discontinuance, except as to prospective and speculative profits; and the dissolution will be decreed by the court in a proper suit for that purpose in order to avoid future complications and possible liabilities. Code cited and construed: Secs. 5165, 5181 (S.); secs. 4146, 4162 (M. & V.); secs. 3409, 3425 (T. & S. and 1858). Cases cited and approved: Parker v. Hotel Co., 96 Tenn., 252; Treadwell v. Manufacturing Co., 7 Gray, 393; Hancock v. Hol-brook (C. C.), 9 Fed., 353; Trisconi v. Winship, 43 La. Ann., 45; Slee v. Bloom, 19 Johns., 456; Hitch v. Hawley, 132 N. Y., 221. 2. SAME, Same. Surrender of charter and dissolution is not rendered void as a combination because induced by á competing corporation, when. The action of a majority of the stockholders in surrendering the corporation’s charter as appears in the first headnote is not prohibited and rendered void by the statute (Acts 1903, ch. 140) declaring unlawful and void all arrangements, agreements, trusts, or combinations to lessen full and free competition in the manufacture or sale of articles of domestic raw material, where there was no arrangement between the two corporations, but the old corporation proposed to increase its capital stock, enlarge its plant, and allow all the stockholders in the new corporation to take the new stock upon certain terms of equality, all of which was done for the purpose of preventing the new corporation from going into active business. (Post, p. 277.) Acts cited and construed: 1903, ch.,140. 3. SAME. Same. Voting stock by proxy is questionable, but action is ratified by stockholders joining in suit asking for the same action by the court, The practice and custom of voting shares of stock by proxy is almost universal, unless it is in some way expressly prohibited, ' but whether the law authorizes such proxy voting or not, where a majority of the stockholders have ratified the action so taken with the aid of proxy votes by joining in the suit and making the request for a dissolution of the corporation as voted for by the stockholders and their proxies representing a majority of •the stock, the point raised is a merely technical one, and will not be available. (Post, pp. 277, 278.)
115 Tenn. 279Hamblen County v. Cain (1905)
PROM HAMBLEN. Appeal from Chancery Court of Hamblen County. — ■ Hugh G. Kyle/ Chancellor.
115 Tenn. 283State v. Click (1905)
1. MALICIOtrS MISCHIEF. Election ballots are valuable papers. Election ballots are valuable papers within the meaning of the statute making it a misdemeanor to maliciously destroy any valuable papers of another. Code cited and construed: Sec. 6496, ss. 14 (S.); sec. 4552, ss. 14 (Code of 1858). 2. SAME. Same. Sufficiency of indictment. An indictment for malicious mischief in the destruction of election ballots is fatally defective where it fails to aver that said ballots were valuable papers, the property of the election commissioners, and that the conduct of the defendant was malicious.
115 Tenn. 285Condon v. Callahan (1905)
FROM KNOX. Appeal from tlie Chancery Court of Knox County.— Joseph W. Sneed, Chancellor.
115 Tenn. 303Murray v. State ex rel. Luallen (1905)
1. . RESIGNATION ‘OF PUBLIC OFFICER. Irrevocable, when accepted. The resignation of á public officer, when accepted by the proper authority, is irrevocable, and cannot be withdrawn, although an attempt to withdraw it is made before the arrival of the date at which the resignation, by its terms, is to take effect. Case cited and approved: .State, ex rel., v. Grace, 113 Tenn., 9. 2. COUNTY JUDGE. Jurisdiction of. The county judge, or chairman of the county court, has all the jurisdiction belonging to the county court, except such as is 'expressly, or’ by reasonable implication, devolved upon the Quarterly court. Act cited and construed: 1889, ch. 153. Case cited and approved: Johnson v. Brice, 112 Tenn., 59. 3. SAME. Proper officer to act,upon resignation of justice of the peace. The county judge, or chairman of the county court, is the proper officer to receive and act upon the resignation of a justice of the peace. Code cited .and construed: Sec. 442 (S.); sec. 408 (M. &V.); sec. 353 (1858).
115 Tenn. 309Norman & Co. v. Edington (1905)
RAILROADS. Laborer’s lien. Notice must be given by claimant himself, and not by assignee of claim. Acts of 1891, ch. 98 (Shan. Code, secs. 3580-3586) provides, among other things, that every contractor, laborer, materialman, or other person or persons, who performs any part of the work in grading any railroad company’s roadway, or who constructs or aids in the construction or repair of its culverts and bridges, or furnishes eross-tie.s, or masonry or bridge timbers used in the building of such railroad, or aids in the laying of its track, -or who performs any valuable services of which any such railroad company receives the benefit, shall have a lien on such railroad for the value of such work and labor done, or material furnished, or services rendered; but to secure this lien such subcontractor, laborer, or materialman shall within ninety days after such work and labor is done, or such materials are furnished, or such services are rendered, notify in writing any such railroad company that such lien is claimed. Held: (1) That written notice to the railroad company within ninety days is an essential prerequisite to the enforcement of the lien given by the statute. (2) The notice must be given by the subcontractor, laborers, or materialmen themselves, and the assignees of claims for work and labor done in the construction of a rail- ■ road cannot obtain the benefit of the lien provided by the statute, where their assignors had failed to give the required notice to the railroad company, although, subsequent to the assignment, and within the statutory period, the assignees themselves gave the notice to the railroad company of their intention to claim the lien as such assignees. Act cited and construed: 1891, ch. 98. Case cited and approved: Duncan v. Hawn, 104 Cal., 10, 37 Pac., 626. Cases cited and distinguished: Couper v. Gaboury, 69 Fed. R., 7, 16 C. C. A., 112; Perry v. Duluth Transfer Co., 56 Minn., 30i6, 57 N. W., 792; Union Trust Co. v. Walker, 107 U. S., 596, 27 L. Ed., 490; Burnham v. Bowen, 111 U. S., 776, 28 L. Ed., 696.
115 Tenn. 316Martin v. McCrary (1905)
FROM MONROE. Statement by Mr. Justice Neid. Action by the owner of a wheat crop against the owner of a steam thresher for negligently setting fire to the wheat in the stack by means of sparks emitted from the engine, whereby the crop was destroyed. The case was tried before the circuit judge without the intervention of a jury, with the result that he dismissed the plaintiffs’ case and rendered judgment against them for the costs of suit.
115 Tenn. 323Knoxville Traction Co. v. Brown (1905)
1. CONTRIBUTORY NEGLIGENCE. Question for jury where there may he a difference of opinion, and peremptory instructions to return a particular verdict should not be given, when. Where, in an action against a street railway company for injuries received by the plaintiff in a collision with a street car, there may be a difference of opinion under the evidence as to whether the plaintiff’s negligence directly contributed to cause the accident, the court should not peremptorily instruct the jury to return a verdict in favor of the defendant, but should, under proper instructions, submit to the jury the question of the plaintiff’s contributory negligence. (Post, pp. 328-333.) , Cases cited and approved: Traction Co. v. Carroll, 113 Tenn., 614; Tyrus v. Railroad, 114 Tenn., 579; Railroad v. Ives, 144' U. S., 417; District of Columbia v. Moulton, 182 U. S., 577; Warner v. Railroad, 168 U. S., 339; Creamer v. Railroad, 156 Mass., 320; Doty v. Railroad, 129 Mich., 464; Greengard v. Railroad, 72 Minn., 181; McCarth v. Railroad, 120 Mich., 400; Railroad v. Bloch, 55 N. J. Law, 605; Blaney v. Traction Co., 184 Pa., 524; Bethel v. Railroad, 8 O. C. D., 310; Traction Co. v. Helms, 84 Md., 515. S. NEGLIGENCE. Of defendant to be submitted to the jury where there may be a difference of opinion, and peremptory instructions to return a particular verdict not to be given, when. Wher.e, in an action against a street railway company for injuries received by the plaintiff in a collision with a street car, there may be a difference of opinion under the evidence as to whether the defendant’s negligence caused the accident, the court should not peremptorily instruct the jury to return a verdict in favor of the defendant, but should, under proper instructions, submit to the jury the question of the defendant’s negligence. (Post, pp. 328-333.) See cases cited under the first headnote. 3. PRACTICE. Controverted and determinative- questions to be submitted to the jury. Where there are controverted and determinative questions of fact, the issues must be submitted to the jury. {Post, pp. 329-331, 333.) Cases cited and approved: Traction Co. v. Carroll, 113 Tenn., 514; Tyrus v. Railroad, 114' Tenn., 579. 4. EVIDENCE. Material evidence defined. By material evidence is meant evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with other' evidence, be determinative of the case. {Post, pp. 329, 331, 332.) 5. SAME. Amended city ordinance is receivable in evidence with out the original, if no objection is made, when. In an action against a street railway company for injuries received by plaintiff in a collision with a street car, there is no reversible error in receiving in evidence and considering an amended city ordinance fixing the maximum speed' of street cars, where it is introduced and read without objection, though it would have been more formal to have introduced the original ordinance. {Post, pp. 333, 334.) 6. STREET RAILWAYS. 'Duty to look before attempting to cross; and failure to do so defeats recovery for injuries. Where the plaintiff attempting to cross the street, started diagonally across the street, but before reaching the first street car track, he was intercepted by a wagon, and as he- passed behind it and was about to enter on the second track, a car struck him before he could cross the track, it is error for the court to refuse to charge, in an action for such injury, that it was the plaintiff’s duty not only to look before attempting to cross the track, but also after he had been intercepted by the wagon, and if his failure so to look after he passed the wagon was the direct and proximate cause of his injury, the verdict should be in favor of the defendant. {Post, pp. 324-328, 334, 335.) 7. CONTRIBUTORY NEGLIGENCE. Directly and proximately . concurring with defendant’s negligence in causing injury defeats recovery. "Where the plaintiff’s negligence concurred directly and proximately with the negligence of the defendant in causing the injury, there can he no recovery against the defendant (Post, pp. 328, 334, 335.) 8. STREET RAILWAYS. Care and caution to he used in crossing under perilous conditions. A person attempting to cross street car tracks under perilous conditions, in which he had voluntarily placed himself, must use such reasonable care, caution, and diligence as would be necessary to prevent an accident; and the care and caution to be used upon an ordinary occasion in crossing would not meet the requirements of such perilous conditions. (Post, pp. 334, 335.)
115 Tenn. 336State ex rel. Little v. Slagle (1905)
1. OFFICER. A deputy sheriff is an officer. A general deputy of a sheriff, as distinguished from a special deputy assigned to a particular case or transaction, is an officer within the meaning of the constitution and statutes of this State. Constitution cited and construed: Art. 2, sec. 26. Code cited and construed: Secs. 445, 448, 1073, 1079, 1080, 1081 (S.). Cases cited and approved: Reves v. State, 11 Lea, 124; State, ex rel., v. Bus (Mo.), 36 S. W„ 639, 33 L. R. A., 616. 2. SAME. The office of deputy sheriff is a lucrative one. The office of deputy sheriff, whether entitled to compensation fixed hy contract between the sheriff and the deputy, or entitled to the fees allowed by law, is a lucrative office, within the constitutional provision declaring that no person shall hold more than one lucrative office at the same time. Constitution cited and construed: Art. 2, sec. 26. 3. SAME. Acceptance by, of another office, vacates one then held. Case in judgment. It is well settled that an officer’s acceptance of another office incompatible with one then held by him, is, ipso facto, a vacation of the office first held, without judicial proceedings of any kind; therefore, where a constable accepts an appointment to the office of deputy sheriff, the office of constable becomes, ipso facto, vacant, and the county court may summarily declare the office of constable vacant, and make an appointment to fill the vacancy. Constitution cited and construed: Art. 2, sec. 26. Cases cited and approved: State, ex rel., v. Grace, H3 Tenn., 9; Calloway v. Sturm, 1 Heisk., 764.
115 Tenn. 343Preston v. State (1905)
1. OATH OP TALESMEN. Objection, to, cannot be made for the first time in supreme court. Objection to the manner in which the talesmen were sworn cannot be made for the first time in the supreme court, where none was made at the time the oath was administered and there was no motion to require the jurors to be reswom and re-examined. 3. SAME. Not invalid for mere informalities. While it is the duty of an officer administering an oath to follow the forms prescribed by law, yet mere formalities are not essential to the validity of the oath administered to talesmen, and if there is substantial compliance with the statute, it is-sufficient. Case cited and approved: Sharp v. Wilhite, 2 Humph., 434'.
115 Tenn. 347Slover v. Union Bank (1905)
1. USURY. When statute of limitations begins to run. "When there is a series of usurious transactions between parties, the statute of limitations does not begin to run against a claim for usury until the transactions are closed. 2. STATUTES. May change, but cannot destroy, remedy. • A statute may be lawfully enacted that will alter an existing remedy, but the legislature has no power to cut off all remedy ■ upon an existing cause of action, or bar the suit without giving a reasonable time to prosecute. g. SAME. Act limiting suit for usury to two years construed. Chapter 439, Acts 1903, provides that “no action shall be brought on any claim for usury after two years from the date of the payment of the debt upon which such claim for usury shall be based; provided, this act shall not affect any litigation now pending.” Held: (1) The provision in the act that it shall not affect any litigation now pending, is entirely nugatory, since the legislature could not interfere with the rights of the claimant after suit commenced. (2) The act will he given a prospective, and not a retrospective, effect, and rights of action which had accrued before the passage of the act are not cut off or affected by its operation. Act cited and construed: 1903, ch. 439.
115 Tenn. 352Alfsen v. Crouch (1905)
1. MUTUAL BENEFIT SOCIETIES. Effect of surrender of certificate. Where a certificate in a mutual benefit society was surrendered hy the insured in his lifetime and another certificate issued in favor of a different beneficiary, the original certificate became functus officio. 2. SAME. Waiver of by-laws. A provision in the constitution or by-laws of a mutual benefit society, limiting the persons who may he made beneficiaries in certificates issued hy it, may be waived by the society. Cases cited and approved: Manley v. Manley, 107 Tenn., 189; Johnson v. Knights of Honor, 53 Ark., 256; Knights of Honor v. Watson, 64 N. H., 518. 3. SAME. Beneficiary in policy has no vested interest therein. The beneficiary in policy of insurance issued hy a mutual benefit society has no vested interest therein as against the insured, and has no right to assail a change of beneficiaries on any alleged ground of fraud or because the second beneficiary was not of a class named in the code of the order, and, a for-tiori, cannot recover from the second beneficiary the proceeds of a policy voluntarily paid hy the society. Cases cited and approved: Hoeft v. Knights of Honor, 113 Cal., 91; Brown v. Grand Lodge, 80 Iowa, 287; Smith v. Pinch, 80 Mich., 335.
115 Tenn. 357Fuerst v. State (1905)
FROM KNOX. Appeal in error from the Circuit Conrt of Knox County. — Joseph W. Sneed, Judge.
115 Tenn. 362Dixon v. Louisville & Nashville Railroad (1905)
1. CIRCUI! COURT. Power of, to construe contracts affecting land sought to be condemned for railroad right of way. Where proceedings to condemn a right of way for a railroad have been instituted in the circuit court, such court has complete jurisdiction to construe a contract, between the owner of the land and the railroad company, for the establishment of crossings, and to determine the rights of the landowner, not only under said contract, but also under the statute and under common law. i2, CHANCERY COURT. Will not enjoin condemnation proceedings, when. A court of chancery will not entertain a suit by a landowner to enjoin condemnation proceedings pending in the circuit court, involving matters stated in the first headnote, on the ground that the parties have not been able to agree as to number and location of railroad crossings, and that the number and location thereof would materially affect the damages sustained by said landowner.
115 Tenn. 368Western Union Telegraph Co. v. Greer (1905)
1. TELEGRAPH COMPANIES. Stipulation respecting notice of claim for damages — doctrine re-affirmed. The holding of this court that a stipulation in a contract for the transmission of a telegram, exempting a telegraph company from liability for damages unless the claim is presented within sixty days after the message is sent, is reasonable and valid, is re-aflirmed. Cases cited and approved: Telegraph Co. v. Courtney, 113 Tenn., 482; Manier & Co. v. Telegraph Co., 94 Tenn., 442, and cases cited in the opinion. 2. SAME. Same. Not applicable, when. But such stipulation is not applicable where the suit is commenced within the specified time under a writ or pleading which sets out the facts with sufficient fullness to call the attention of the company to the particular message and conduct ■ complained of. Cases cited and approved: Telegraph Co. v. Courtney, 113 Tenn., 482; Telegraph Co. v. Mellon, 96 Tenn., 66, and cases cited in opinion. 3. SAME. Same. Applicable to actions for penalties. The stipulation in a contract for the transmission of a telegram, exempting a telegraph company from liability for damages or statutory penalties unless the claim is presented within sixty days after the message is filed for transmission, applies to actions for statutory penalties as well as for damages. Case cited and approved: Telegraph Co. v. Mellon, 96 Tenn., 66. 4. SAME. Same. Binding upon infants. Such stipulations, being reasonable regulations of the business of telegraph companies, are binding upon infants, as well as adults, contracting therewith.
115 Tenn. 376Gossett v. Southern Railway Co. (1905)
1. EMINENT DOMAIN. Railroad and its construction contractors are liable for injuries to adjacent landowner, though, done without negligence. ■Railroad corporations, though quasi-public corporations, authorized by statute to condemn, take, and use land for railroad purposes and works of public improvement, are not exempt ■ from liability for damages and injuries to private rights or property, even if done without negligence, and, therefore, a railroad and its construction contractors are liable in damages for injuries done to an adjacent landowner by their blasting, and by their construction of the railroad in front of and near his property, though the blasting is necessary, and is done without negligence. (Post, pp. 378-385.) Cases cited and approved: Telephone Co. v. Railroad, 93 Tenn., 492; Terminal Co. v. Jacobs, 109 Tenn., 727, 741; Swain v. Copper Co., Ill Tenn., 437; Madison v. Copper Co., 113 Tenn., 331; Terminal Co. v. Lellyett,. 114 Tenn., 368; Cogswell v. Railroad, 1031 N. Y„ 10; Garvey v. Railroad, 159 N. Y., 334; Railroad v. Church, 108 U. S., 317. 2. SAME. Same. Railroad and its construction contractors are liable for physical injuries and impairment of health resulting from blasting, but not for mere discomfort. A railroad corporation and its construction contractors are liable in damages for injuries done to an adjacent iandowner by necessary and skillful blasting, done -without negligence, in the construction of the road, where such blasting creates loud noises and unusual and unpleasant concussions in the air, resulting in physicial injuries or the impairment of health, but are not liable in damages for mere loss of sleep, discomfort, and inconvenience, not resulting in physical injuries or impairment of health. {Post, pp. 385-390.) Cases cited and approved: Railroad v. Bingham, 87 Tenn., 522; Copper Co. v. Barnes (Tenn. Ch. App. and Sup.), 60 S. W., 593,. 600, 607; Knoxville v. Klasing, 111 Tenn., 134; Kolb v. Knoxville, 111 Tenn., 311; Swain v. Copper Co., Ill Tenn., 432; Madison v. Copper Co., 113 Tenn., 331; Terminal Co. v. Lellyet, 114 Tenn., 368; Fitzsimmons v. Braun, 199 111., 390; Longtin v. Per-sell (Mont.), 76 Pac., 699, 65 L. R. A., 655; Colton v. Onderdonk, 69 Cal., 155; Tiffin v. McCormack, 34 Ohio St., 638; Scott v. Bay, 3 Md., 431. S. SAME. Same. Same. Whether railroad blasting operations created a nuisance and drove plaintiff from his home, and lessened the usable and. rental value thereof, should be submitted to the jury. Where an adjacent landowner sues a railroad corporation and its • construction contractors for blasting and other operations caried on by the defendants, which, it is averred and proved, constituted a nuisance that drove the plaintiff and his family from his home, and so interfered with his comfort as to lessen the desirability and usable value of his home during the time the said blasting work was being prosecuted, the plaintiff is entitled to recover, and the question should have been submitted to the jury on this theory. ’(Posi, pp. 390, 391.) 4. ACCORD AND SATISFACTION. Must be specially pleaded to be available as a defense. The defense of accord and satisfaction of plaintiff’s claim for damages must be specially pleaded, and cannot be made under the general issue or plea of not guilty. (Post, p 391.) 5. RAILROADS. Joint liability of railroad and its construction contractors for injuries resulting from blasting; no primary and secondary liability. In an action by an adjacent landowner against a railroad corporation and its construction contractors for injuries sustained by blasting operations incident to tbe construction of the railroad, the liability of the defendants, if any, is joint, and there is no primary or secondary liability. (Post, p. 391.)
115 Tenn. 393Hardwick v. American Can Co. (1905)
1. CHANCERY PLEADING AND PRACTICE. Supplemental bill in nature of bill of review by defendant pending a decree of reference to present newly discovered evidence, when. A supplemental bill in tbe nature of a bill of review may be filed by tbe defendant, by leave of tbe court, for tbe purpose of putting in issue material and determinative new matter discovered after tbe filing of tbe answer, and after tbe passing of tbe decree of reference, and while tbe said decree is in process of execution before tbe master, where such bill shows due diligence, and that tbe new matter could not reasonably have been ascertained prior to its discovery. (Post, pp. 394-399.) Cases cited and approved: Long v. Granberry, 2 Tenn. Chy., 85; Laidley v. Merrifield, 7 Leigh (Va.), 346, 353, 354; Baker v. Whiting, 1 Story, 218, Fed. Cases, No. 786; Jenkins v. Eld-redge, 3 Story, 299, 307, Fed. Cases, No. 7,267; Deitcb v. Staub, 115 Fed., 310-316, 53 C. C. A., 137. 2. SAME. Same. Defendant’s supplemental bill in tbe nature of a bill of review presenting an inconsistent defense should not be allowed to be filed, when. Where, in a suit for the breach of a contract to purchase stoves, tbe defendant pleaded in bis answer as a defense that tbe stoves were so defective that be could not handle them, and that they were totally unsuited for tbe purposes for which they were contracted and intended to be resold, a supplemental bill in tbe nature of a bill of review, alleging that tbe complainant therein, who was tbe defendant in tbe original suit, bad sustained a loss of five thousand dollars by reason of tbe fact that ■ the'complainant in the original suit pending tbe running of tbe contract, and in breach thereof, bad sold between one thousand and fifteen hundred stoves to another dealer in his (original defendant’s) trade territory, presents a defense inconsistent, incongruous, and conflicting with that originally made in the answer and should not therefore he permitted to he filed, (Post, pp. 399-401.)
115 Tenn. 402Cincinnati, New Orleans, & Texas Pacific Railway Co. v. Saulsbury (1905)
1. NEGLIGENCE. Inferred by jury as a matter of fact where-there is a collision of railroad trains, without explanation of the-cause, when. Where there is a collision of railroad trains, the jury will be-•warranted in drawing an inference of negligence on the part, of the railroad company as a matter of fact, but not as a. presumption of law, where it appears that the company used the block system of signals, and that a red block signal was" displayed which could have been seen by the engineer for the-distance of a half mile, and the company failed to introduce any testimony explaining the cause of the collision. {Post, pp.. . 405, 406.) Case cited and approved: Young v. Bransford, 12 Lea, 234. 2. RAILROAD. May contract against liability for destruction of stave mill and contents on its right of way, by fire or any cause-whatever. A railroad company in granting a license for the erection of a. stave mill on its right of way is not acting in its capacity or character of a common carrier, and it may, as other corporations or persons, contract against liability for destruction of or-injury to said stave mill and contents by fire or by any cause-whatever, and such contract is in no way violative of the doctrine of, public policy. {Post, pp.- 409-413.) Cases cited and approved: Griswold v. Railroad, 90 Iowa, 265; Insurance Co. v. Railroad, 17-5 U. S., 91; Railroad v. Carter-. (Tex. Sup.), 68 S. W., 159; Stevens v. Railroad, 109 Cal., 86- 3. SAME. Same. Mill and contents include staves piled on railroad right of way under terms of a lease contract, when. Under a contract of a railroad permitting the erection of a stave mill on its right of way to be used as a “place of manufacture, storage, and shipment” of staves, with a provision against liability for destruction or injury of said “stave mill and contents” by fire or by any cause whatever, the terms “stave mill and contents” include and embrace all staves, whether finished or not, piled on the railroad right of way in close proximity to the mill, and the railroad is not liable for the destruction of such staves by fire. (Post, pp. 404, 413-415.) 4. SAME. Same. Same. Liability for goods loaded for shipment and destroyed by fire. But the railroad is liable as common carrier, where staves loaded in a freight car on its track ready for shipment are destroyed by fire through its negligence inferred as stated in the first headnote, notwithstanding the contract as stated in the second and third headnotes. (Post, pp. 404, 415.)
115 Tenn. 416Frazier v. East Tennessee Telephone Co. (1905)
FROM HAMILTON. Appeal from the Chancery Court of Hamilton County. — D. L. Lansden, Chancellor.
115 Tenn. 427O'Neil v. State (1905)
1. STATUTE. Words to be taken, in their natural and ordinary-sense, -when. As a general rule, the words of a statute, if of common use, are to he taken in their natural and ordinary sense, and without any forced or subtle construction to. extend their meaning. (Post, p. 436.) Case cited and approved: State, ex rel., v. Turnpike Co., 2 Sneed, 90. 2. PHYSICIANS. One diagnosing diseases by microscopic examination of blood, and treating patients with electric arc lights, is not an optician, when. One who makes microscopic examinations of the blood taken from his patients in his diagnoses of their disease, and treats them by placing them under the rays of electric arc lights of a certain kind, and also writes prescriptions and prescribes remedies, though no charge is made for prescriptions, is not an optician, within the sense of the statute (Acts 1901, ch. 78) excepting opticians from its provisions requiring license to practice medicine. (Post, pp. 429-437.) Acts cited and construed: 1901, ch. 78, secs. 1, 18, and 19. S. SAME. Same. One is engaged in the practice of medicine in the sense of the statute prohibiting the same without a license, when. One who makes microscopic examinations of the blood taken from his patients in his diagnoses of their diseases, and treats them by placing them under the rays of electric arc lights of a certain kind, and.also writes prescriptions and prescribes Temedies, though no charge is made for prescriptions, is en.gaged in the practice of medicine, within the sense of the statute (Acts 1901, ch. 78), prohibiting the practice of medicine without a prescribed license, and providing that any person shall be regarded as practicing medicine who shall treat,, or profess to treat, operate on, or prescribe for any physical ailment of another. (Post, pp. 432, 437-441.) Acts cited and construed: 1901, ch. 78, secs. 1, 18, and 19. Cases cited and approved: Payne v. State, 112 Tenn., 588; Bib-ber v. Simpson, 59 Me., 181; People v. Phippin, 70 Mich., 6,-Parks v. State, 159 Ind., 211; State v. Van Doran, 109 N. C.,. 867. 4. SAMS. Same. Same. Statute requiring a prescribed license; for the practice of medicine is constitutional and valid. The statute prohibiting the practice of medicine without a prescribed license, and defining what is the practice of medicine within the meaning of the statute, is constitutional and valid-(Post, pp. 429, 441-443.) •Acts cited and construed: 1901, ch. 78. Cases cited and approved: State v. Heath, 125 Iowa, 585; Slaughter House Cases, 16 Wall., 36; Virginia, Ex parte, 100 IT. S., 339; Holden v. Hardie, 169 U. S., 366; State v. Edmunds (Iowa),. 101 N. W.. 431.
115 Tenn. 445Weight v. Cunningham (1905)
FROM RHEA. Appeal from the Circuit Court of Rhea County. — Joseph C. Higgins, Judge. MR. Justice Neil made a statement of the case as follows: This action was brought to recover only a small sum of money, $2.50, the amount of damages claimed by the defendant for the keep of certain hogs which trespassed upon the land of the defendant; but it involves the constitutionality of an amendment to an act of the legislature, presently to be mentioned, of a very important character.
115 Tenn. 471Pacific Mutual Life Insurance v. Galbraith (1905)
1. LIFE INSURANCE POLICY. Forfeiture of, for nonpayment of premium. Where a life insurance policy provides that it 'shall lapse and be void if the premiums thereon are not paid when due, it is well settled that such policy will be forfeited, if the premiums are not paid as stipulated. (Post, pp. 477,- 478.) Cases cited and approved: Ressler v. Life Ins. Co., 110 Tenn., 411; Thompson v. Life Ins. Co., 104 U. S., 252; Lantz v. Ins. Co., 139 Pa., 546. 2. SAME. Reinstatement of, after forfeiture, operates as a new contract. Where there is a forfeiture of a life insurance policy on account of the failure to pay premiums as therein stipulated, a reinstatement thereof operates as a new contract, as if the policy was then for the first time issued. (Post, pp. 478-483.) ■Cases cited: Bottomley v. Ins. Co., 170 Mass., 274; Ash v. Fidelity Mutual, etc. Asso., 63 S. W., 944; Teeter v. United Life Asso., 159 N. Y., 411. Case distinguished: Mass. Benefit Life, etc., v. Robinson, 104 Ga., 256. Case disapproved: Goodwin v. Providence Savings Assn., 97 la., 226. 3. SAME. Same. Same. Case in judgment. The policy sued on provided that it should be void for failure of the insured to pay any premium when due and also provided that it should be incontestable after two years from the date pf issue. The insured failed to pay a premium when due, but he was subsequently reinstated upon fraudulent representations made by him. Held: The reinstatement operated as a new contract and the insurer was entitled to take advantage of such fraudulent representations at any time, within two years thereafter. 4. SAME. Construction of. A life insurance policy is to be liberally construed in favor of the assured and, if it is susceptible of two interpretations, that which .will sustain the claim and cover the loss should be adopted. (Post, pp. 482, 483.) Cases cited and approved: Thompson v. Phoenix, etc., Co., 136 U. S., 287; National Bank v. Ins. Co., 95 TJ. S., 673.
115 Tenn. 484Ricardi v. Gaboury (1905)
PROM KNOX. Appeal from-Chancery Court, Knox County. — Joseph W. Sneed, Chancellor.
115 Tenn. 494Farrell v. W. B. Lockett & Co. (1905)
1. VOLUNTARY BANKRUPTCY. Liens obtained by legal proceedings within four months before, void. Sec. 67/ of the federal bankruptcy act of 1898, providing that all levies, judgments, attachments, or other liens obtained through legal proceedings against an insolvent, within four months prior to the filing of a petition in bankruptcy , against him, shall be null and void in case he is adjudged a bankrupt, applies to voluntary as well as involuntary petitions in bankruptcy. Act of congress cited and construed: July 1, 1898, ch. 541, sec. 67f; (30 Stat., 5g5) (U. S. Comp. St., 1901, p. 3450). Case cited and approved: In re Darwin, 117 Fed., 407, 54 C. C. A., 581. 2. SAME. Same. Trustee entitled to proceeds of attached property if still in hands of officer making sale. The trustee of a bankrupt is entitled to the proceeds of a sale of property of the bankrupt, had under attachment proceedings brought by a creditor of the bankrupt within four months next before the petition in bankruptcy is filed, less reasonable and necessary attorney’s fees expended in its collection, if the proceeds of such sale are still in the hands of the sheriff, receiver, or other officer making the sale, at the time the petition is filed. Cases cited and approved: In re Kennedy, 95 Fed., 427; In re Frank, 95 Fed., 635; Clarke v. Larremore, 188 U. S., 488. 3. SAME. Attaching creditor can hold, if proceeds received by him before petition filed. But if such attaching creditor, in good faith and without collusion, succeeds in subjecting the property to the payment of his debt, and receives the proceeds, of it before the petition is filed, and lie is not asking to share in the assets of the debtor in the hands of the trustee, he cannot he compelled to surrender the advantage he has obtained. Case cited and approved: Botts v. Hammond, 99 Fed., 916.
115 Tenn. 501C. N. O. & T. P. Railway Co. v. Harris (1905)
1. COMMON CARRIER. Contract of carriage — Effect of ticket. It is well settled that the actual contract between the carrier and passenger must govern, and not the recitals of a ticket issued by the carrier to a passenger. The ticket is a mere evidence of the contract, issued by the carrier and cannot be controlled by the passenger. (Post, pp. 511, 512.) Case cited and approved: O’Rourke v. St. Ry. Co., 103 Tenn., 124. Case distinguished: Railroad v. Fleming, 14 Lea, 128. 2. SAME. Same. Case in judgment. Plaintiff purchased from an initial carrier transportation over its and the defendant’s lines and received an order on the agent of defendant for a ticket on that line. She was unable to procure a ticket over the line of defendant, a connecting carrier, because of the negligence of its agent. Held: defendant was bound to transport plaintiff safely and was liable for indignities offered her by its conductors. (Post, pp. 502-512,) 3. SAME. Liability for insults to passengers. A common carrier is liable in damages to a passenger not only for injuries to his person by the violence of its employees, but likewise for injuries to his feelings by the indecent and insulting language of its employees, upon the ground that its contract obligates the carrier, not only to transport the passenger, but to guarantee him respectful and courteous treatment from both passengers and its own employees. (Post, p. 512.) Case cited and approved: Knoxville Traction Co. v. Lane, 103 ■ Tenn., 376. 4. SAME. Damages for indignities to passengers. The evidence in this case, being an action against a carrier for personal indignity offered a passenger by the conductors of the carrier, was examined and it was held that a verdict for the amount shown in the opinion would not he set aside as excessive.
115 Tenn. 513Hall v. National Fire Insurance (1905)
1. INSURANCE. Liability for explosion caused by fire in the property insured, though liability is excluded by the policy, •when. ■ The weight of authority is to the effect that where a fire occurs in the property insured, and an explosion takes place therein during the progress of the fire, the effects of which are covered by the policy, and such explosion is a mere incident of the preceding fire, such fire is treated as the efficient cause, and the whole loss is within the risk insured, although the policy in terms excludes liability for the loss' by explosion. (Post, pp. 517-521.) Cases cited and approved: Mitchell v. Insurance Co., 57 Fed., Rep., 294; Washburn v. Insurance Co., 2 Fed. Rep., 304; Wash-burn v. Insurance Co., 2 Fed. Rep., 633; Washburn v. Insurance Co., 17216 Fed. Cases; Washburn v. Insurance Co., 17212 Fed. Cases; Renshaw v. Insurance Co., 33 Mo. App., 394; Dorsey v. Insurance Co., 56 Md., 70; Insurance Co. v. Foote, 22 Ohio St., 340, 348; Scripture v. Insurance Co., 10 Cush. (Mass.), 357; LaForce v. Insurance Co., 43 Mo. App., 518; G-as & Electric Co. v. Insurance Co. (Mass.), 20 L. R. A., 297. Cases cited and distinguished: Hustace v. Insurance Co., 175 NÍ Y,, 292; Insurance Co. v. Foote, 22 Ohio St., 348; Heuer v. Insurance Co., 144 Ill., 393; Cohn v. Insurance Co., 70 S. W., 259; Heffron v. Insurance Co., 132 Pa. St., 580. 2. SAME. No liability for an explosion caused by fire in a nearby building, where such liability is excluded in the policy, when; case in judgment. Where a policy of fire insurance provides against liability for explosion of any kind, except where a fire ensues, and in that event for the damages by fire only, there is no liability for an explosion caused by a fire in a nearby building, where no fire ensues in the property insured as a result of such explosion. (Post, pp. 514-525.) Cases cited and approved: Cabalero & Basualdo v. Insurance Co., 15 La. Ann., 217; Insurance Co. v. Roost, 45 N. E., 1097, 36 L. L. R. A., 236; Everett v. Assurance Society, 115 E. C. (19 C. B. N. S.), 126. 3. LOGIC. Legal conclusions cannot always be reached by. A deduction may seem to be sound in an abstract sense, but legal conclusions cannot always be safely reached by pressing the processes of logical illation to their ultimate results. (Post, p. 521.)
115 Tenn. 526Southern Railroad v. Hamblen County (1905)
1. TAXATION. Special tax levied by a county must show its purpose, or it is void, and a distress warrant to collect it will be superseded and quashed. The order of the county court levying a special tax should state the purpose for which the levy is made, and a levy of a special tax without showing the purpose thereof is void, and a distress warrant issued to collect such tax will be superseded and quashed. Code cited and construed: Secs. 493, 503, 1394, 5992, 6041, 6050, 6053 (S.); secs. 459, 469, 1166, 4954, 4990 (M. & Y.); secs. 402, 411, 970, 4179, 4180, 4186 (T. & S. and 1858). Constitution cited and construed: Art. 3, sec. 29. Cases cited and approved: McLean v. State, 8 Heis., 269; Grant v. Lindsay, 11 Heis., 665, 666; Winston v. Railroad, 1 Bax., 60, 76; Railroad v. Franklin Co., 5 Lea, 707; Railroad v. Wilson, 90 Tenn., 271; Wallace v. Crook, 91 Tenn., 388; Colburn v. Railroad, 94 Tenn., 43; Shelby Co. v. Exposition Co., 96 Tenn., 653; Burnett v. Maloney, 97 Tenn., 697; Kennedy v. Montgomery Co., 98 Tenn., 179; Judges’ Salary Cases, 110 Tenn., 388; Akin v. State, 112. Tenn., 605. 2. SAME. Same. Levy of special tax to pay general debts, without legislative authority, is void; confusion of levy of special with general tax renders whole void. A special tax levied by a county to defray the expenses incurred in suppressing an epidemic of smallpox, jail improvements, and • to repay a loan made to the county by the sinking fund commissioners, is void, because these are general county purposes, and a special tax for these purposes has not been authorized by the legislature, except for repairs made upon the county jail, which is so confused with the other matters that it cannot be separated from them. (.Post, p. 535.) Code, cited and construed: Sec. 503 (S.); sec. 469 (M. & V.); sec. 411 (T. & S. and 1868).
115 Tenn. 536Russell v. Houston (1905)
JUDGMENTS AND DECREES. Res adjudicata shown by production of decree and entries on rule docket, where the papers are lost. The final decree in an ejectment suit in .chancery and the entries on the rule docket are admissible in evidence and may he relied upon to show a former adjudication in a subsequent suit involving the same controversy, without the production of the whole record, where it is shown that the file of papers, including the pleadings, in the case have disappeared from the clerk and master’s office, and cannot be found after diligent search. The reason of this rule rests on the presumption in favor of chancery decrees where the court appears to have jurisdiction, and the loss of the pleadings and other unenrolled or unrecorded papers. Cases cited and approved: Hopper v. Fisher, 2 Head, 254; Pope v. Harrison, 16 Lea, 82; Robertson v. Winchester, 85 Tenn., 171; Crocker v. Balch, 104 Tenn., 6; Galpin V. Page, 13 Wall., 350; Coit v. Haven, 30 Conn., 190; Sims v. Gay, 109 Ind., 501; Tail-man v. Ely, 6 Wis., 244; Evans v. Young, 10 Col., 316; Swear-engen v. Gulick, 67 Ill., 208; Bradley v. Drone, 187 Ill., 175; Gu-lickson v. Bodkin, 78 Minn., 33; Wilkerson v. Schoonmaker, 77 Tex., 615; Reynolds v. Stansbury, 20 Ohio, 34'4; Herd v. Cist (Ky.), 12 S. W., 466; Sharp v. Brunnings, 35 Cal., 528, 533. Cases cited, distinguished, and approved: Duncan v. Gibbs, 1 Yer., 261; Lowry v. McDurmott, 5 Yer., 225; Lewis v. Bullard,-3 Hum., 207; Whitmore v. Johnson, 10 Hum., 610; Carrick v. Armstrong, 2 Cold., 265; Willis v. Louderback, 5 Lea, 561; Ver-hiñe v. Ragsdale, 96 Tenn., 532; Givens v. State, 103 Tenn., 649; Smith v. Hutchison, 104 Tenn., 395; Castleman v. Land Co., 1 Tenn. Chy. App., 9.
115 Tenn. 543Smith v. Dayton Coal & Iron Co. (1905)
1. STATUTES. Adopted from other States carry with them the judicial construction thereof, when and when not. As a general rule, when a statute of another State is adopted, the judicial construction and interpretation of that statute in the State of its origin is also imported and written in the statute by the adopting State; but this general rule is subject to the important qualification that the judicial construction of said statute by the State of its origin does not contravene the well established policy prevailing on said subject in the adopting State. (Post, pp. 552, 553.) Cases cited and approved: Jamison v. Burton, 43 Iowa, 285; Cole v. People, 84 Ill., 218; McCutcheon v. People, 69 Ill., 601. 2. MASTER AND SERVANT. Master’s obligation to furnish safe working places in mines cannot be delegated so as to escape liability. A master engaged in mining is bound to use reasonable care to make the place of work reasonably safe, and he must use reasonable care to ventilate the mine in order to prevent the accumulation of poisonous and explosive gases, and he must shore up and timber the shafts and galleries, and take such other precautions as may be reasonably necessary to prevent the fall of rock, earth, etc., and these duties cannot be delegated, so as to exonerate him from liability for a breach thereof. (Post, pp. 553-559.) 'Acts cited and construed: 1881, eh. 170, sec. 8. Cases cited and approved: Taylor v. Railroad, 93 Tenn., 305; Iron Co. v. Pace, 101 Tenn., 484; Railroad v. Jarvi, 3 C. C. A., 433; Gowen v. Bush, 22 C. C. A., 196; Coal Co. v. Persons, 11 Ind. App., 264. Cases cited and distinguished; Heald v. Wallace, 109 Tenn., 346; Finlayson v. Mining Co., 14 C. C. A., 492. Case cited and disapproved: Railroad v. Hughes, 119 Pa„ 314. 3. SAME. SAME. Same. Same. Employment of competent mining boss does not exonerate mining operator from liability for the negligence of such boss. Our statute (Acts 1881, ch. 170, sec. 8), requiring the operator of a coal mine to employ a competent and practical inside overseer or mining boss to protect the miners working therein, must be construed to impose upon such operator the duties imposed at common law on the employer to provide a safe place to work, which duty cannot be delegated; and such operator who employs a competent mining boss is nevertheless chargeable with his negligence, resulting in injury to a miner; although such statute is adopted from the State of Pennsylvania after the courts of that State had construed the act to .exempt such operator from the negligence of the mining boss, if he was competent to perform the duties, since such construction is contrary to the policy of our laws. Acts cited and construed: 1881, ch. 170, sec. 8. But see Acts ■ 1901, ch. 37. Cases cited and disapproved: Coal Co. v. Jones, 86 Pa., 441; Canal Co. v. Carroll, 89 Pa., 374; Reese v. Biddle, 112 Pa.. 79, 80; Waddell v. Simoson, 112 Pa., 573, 574; Railroad v. Hughes, 119 Pa.,' 314; Haley v. Keim, 151 Pa., 117; Lineoski v. Coal Co., 157 Pa., 153; Williams v. Coal & Coke Co., 44 W. Va., 599; Coal Co. v. Lamb, 6 Colo. App., 255.
115 Tenn. 560Hearst v. Proffit (1905)
1. APPEAL IN EQUITY CASE. Vacates decree, and opens whole case. An appeal in an equity cause vacates the decree of the lower court, and the case is opened for a re-examination in the appellate court on all questions legitimately arising upon the record. Case cited and distinguished: Denton v. Woods, 86 Tenn., 40. 2. SAME. Same. Affirmance not rested cn recitals in decree. The supreme court will not predictae an affirmance of a decree in an equity cause merely upon recitals in the decree where the record contains no evidence to sustain such recitals. Cases cited and approved: Nichols v. Cecil, 106 Tenn., 455;' Mullins v. Aiken, 2 Heisk., 548. 3. SUPREME COURT. Will remand for proof and rehearing, when. Case in judgment. Where a suit brought by hill in chancery to foreclose a trust deed made by defendant is about to he defeated because of the inadvertence of counsel in not filing a certified copy of the deed of trust, and it appears from recitals in the decree that the deed of trust was read from the register’s hook by consent, and complainant’s counsel was not required at the time to produce a certified copy thereof, the supreme court will remand the case to the chancery court for a rehearing, with leave to both parties to introduce such testimony as they may desire.
115 Tenn. 568Bennett v. Gallaher (1905)
1. WILLS. .Equitable conversion of realty into personalty, bow-effected. It is well settled that, in order to work an equitable conversion of realty into personalty, the intention of the testator to make such conversion must be clear and certain, and the direction to sell the land for that purpose must be imperative and unconditional. Cases cited and approved: Bedford v. Bedford, 110 Tenn., 20.4; McElroy v. McElroy, 110 Tenn., 137; Wayne v. Fouts, 108 Tenn., 145; Wheless v. Wheless, 92 Tenn., 295; Green v. Davidson, 4 Baxt., 491. 2. SAME. Equitable conversion, not effected, when. If, by the terms of a will, the direction to sell realty is made to depend upon contingencies or discretion is conferred upon the executor or trustee to sell for distribution or divide the property in kind, the intent of the testator to make conversion is not evident and positive, and none is effected. Cases cited and approved: See first headnote. 3. SAME. Same. Case in judgment. By his will the testator devised his property, real and personal, to his widow during her life, for the joint use of herself and their children, and empowered her to dispose of the personalty at her discretion, and upon the marriage of any child, to give to such child whatever property she might desire, preserving equality among the children, and authorized her to sell any real estate as she might think best, and provided that at her death any remaining property should be sold and divided equally among the children. During the lifetime of the widow, one of the daughters died, and her husband as administrator filed this bill, after the death of the widow, to recover as personalty the share of his wife upon the ground that the will worked an equitable conversion of realty into personalty. Held: The provision authorizing the widow to give to her children upon their marriage, “whatever property she might desire,” empowered her to divide in kind the entire estate among the children, at her discretion, and therefore the doctrine of equitable conversion does not apply.
115 Tenn. 578Williams v. Coal Creek Mining & Manufacturing Co. (1905)
FROM MORGAN. Appeal from the Chancery Court of Morgan County. —T>. L. Lansden, Chancellor.
115 Tenn. 584La Follette Coal, Iron & Railroad v. Smith (1905)
1. SUPREME COURT. Suggestion of diminution of record must he made before case is finally disposed of. The rule of this court is that suggestions of diminution of the record shall he made before a case is called for trial, in order that the record may be perfected before the hearing; and it has been uniformly held that such suggestions and leave to perfect the record must be applied for before the case is finally disposed of. 2. SAME. Same. Case in judgment. The record filed in this court failed to show a motion for a new trial and the grounds thereof, and such defect was pointed out by defendant in error in his reply brief and relied upon as one of the reasons why the judgment should be affirmed, but no effort was made to remedy it until after affirmance of the judgment. Held,: That it was too late, on petition for rehearing, to suggest a diminution of the record and have the same perfected. • Cases 'cited and distinguished: Hinton v. Ins. Co., 110 Tenn., 114; G-aut v. Wimberly, 99 Tenn., 497.
115 Tenn. 588Mayor of Chattanooga v. Keith (1905)
FROM HAMILTON. Appeal from the Circuit Court of Hamilton County. —M. M. Allison, Judge.
115 Tenn. 596Bashaw v. Temple (1905)
1. PRO CONFESSO. Not to be set aside except for good cause and upon answer showing merits. It is erroneous for the chancellor to set aside an order pro con-fesso without good cause shown and without requiring the filing of an answer showing merits. (Post, pp. 598, 599.) Code cited and construed: Sec. 6185 (SO; sec. 5118 (M. & V.); sec. 4375 (T. & S. and 1858). 2. SAME. Admits bill as against defendants- served with process; and puts in issue bill as against nonresidents, when. An order pro confesso against defendants served with process amounts to an admission of the allegations of the hill; but such order against defendants proceeded against by publication as nonresidents without attachment of property only puts the bill in issue. (Post, p. 599.) " Code cited and construed: Sec. 6181 (S.); sec. 5114 (M. & V.); sec. 4371 (T. & S. and 1858). 3. JURISDICTION. For sale of lands to pay debts of decedent in chancery and circuit courts, and concurrent in county court. Jurisdiction of the chancery and circuit court conferred, by sections 4000 to 4003, inclusive, of Shannon’s Code, for the sale of the lands of a decedent for the payment of the debts after the exhaustion of the personalty, is possessed by the county court as concurrent with said courts under sections 6071 and 6112 of said Code. (Post, p. 600.) Code cited and construed: Secs. 4000-4003, 6071, 6112 (S.); secs. 3105-3108, 5005, 5045 (M. & V.); secs. 2267-2270, 4233, 4302 (T. & S. and 1858.) Cases cited and approved: Kindell v. Titus, 9 Heis., 727; Burgner v. Burgner, 11 Heis., 731; Linnville v. Darby, 1 Bax., 307; Nor-ville v. Coble, 1 Lea., 467. 4. ADMINISTRATION. Suggestion of insolvency is not effective or operative, unless publication is made. The suggestion of insolvency of the estate of a decedent must be followed by the publication thereof prescribed by statute to give the insolvency proceeding the status of a Us pendens in the county court, and to operate as an injunction against suits against the personal representative. (Post, pp. 602, 603.) Code cited and construed: Secs. 4068-4070, 4072 (S.); secs. 3173-3175, 3177 (M. & V.); secs. 2328, 2330-2332 (T. & S. and 1858). Cases cited and approved: Rhea v. Meredith, 6 Lea, 605, 607, 608; Bates v. Elrod, 13 Lea, 156, 159. 5. SAME. Same. Jurisdiction in chancery to sell lands to pay debts, though estate is worth less than one thousand dollars, where there has been no suggestion of insolvency and publication thereof. The chancery court has jurisdiction of a suit to subject the lands of á decedent to the payment of his debts, though the estate is of less value than one thousand dollars, where there has been no suggestion of insolvency and publication thereof, or where there has been such suggestion, but no publication thereof. (Post, pp. 599, 603.) Code cited and construed: Secs. 4000-4003, 4070, 4072 (S.); secs. 3105-3108, 3175, 3177 (M. & V.); secs. 2267-2270, 2330, 2332 (T. & S. and 1858.) 6. SAME. Realty and personalty specifically willed must con tribute equally to payment of debts. Where the realty and personalty are specifically devised and bequeathed, both must contribute equally to the payment of the debts. (Post, p. 604.)
115 Tenn. 605Prewitt-Spurr Manufacturing Co. v. Woodall (1905)
1. PERSONAL INJURIES. Not permissible to show that defendant has indemnity insurance against loss by accidents caused by his negligence. In the employee’s action for personal injuries caused by the alleged negligence of-the employer, it is not permissible to show that the defendant is insured in an accident and indemnity company against loss in case of a recovery against him on account of his negligence. (Post, %>. 608.) 2. NEW TRIAL. For misconduct and improper argument of counsel in attempting to get incompetent and prejudicial evidence before the jury which is not cured by court’s admonition, nor counsel’s withdrawal. Where, in such action as stated in the foregoing headnote, the plaintiffs counsel thrice attempted to show such indemnity insurance, notwithstanding the court’s rejection of such evidence as incompetent; and in' his concluding argument, said counsel made remarks sufficient to cause the jury to believe that defendant was so insured, which was prejudicial to the defendant, and the harm thus 'done could be neutralized neither by the admonition of the court to the jury not to consider that part of the argument, nor by the counsel’s withdrawal of the same, and a new trial sought by defendant for such misconduct and argument, and erroneously refused by the trial judge, will be granted ■ by the supreme court. Gases cited and approved: Manigold v. Traction Co. (Sup.), 80 N. Y. Supp., 861; Iverson v. McDonnell, 36 Wash., 75. 8. SAME. Same. Granted by supreme court for misconduct of counsel, though refused by the trial judge, when. While ordinarily the supreme court will not interfere with the exercise of legal discretion by the circuit judge in refusing a new trial for the misconduct of counsel, yet, where there is persistent abuse of well-established and universally recognized rules of correct practice to the prejudice of the losing party, the supreme court will interpose, and grant a new trial. (Post, p. 609.)
115 Tenn. 610Bradford & Carson v. Montgomery Furniture Co. (1905)
1. CONTRACTS. Of sale of good will and to remain out of business creates an assignable right which is not annulled or forfeited by an assignment thereof, when. A contract for the sale of the good will of a business and the agreement to remain out of that business in the city of its location for three years, based upon a stipulated and valuable consideration, creates property rights, valuable and assignable, and such contract is not annulled or forfeited by an assignment thereof by the purchasers to a corporation organized by them, i and a sale and transfer of their business to such corporation, in which they become large stockholders, and the chief officers, nor by their repurchase of the corporation business and their resumption thereof as a partnership. (Post, pp. 615-626.) Cases cited and approved: Kramer v. Old, 119 N. C., 1; Dun-lop v. Gregory, 10 N. Y., 241; Beard v. Sinex, 6 Ind., 200; Pem-berton v. Vaughn, 10 Adol. & EL, 87, 59 Eng. Com. Law, 87; Hitchcock v. Koker, 6 Adol. & EL, 98, 33 Eng. Com. Law, 438,-Francisco v. Smith, 143 N. Y„ 488; Match Co. v. Roeber, 106 N. Y.,. 473; Ice Co. v. Denier, 114 Mich., 297; Jacoby v. Whit-more, 49 Law T. (N. S.), 335. Case cited and disapproved: Bagby & Rivers Co. v. Rivers, 87 Md., 400. 2. SAME. Same. Sale of good will and agreement to remain out of the business for three years for a sum to be paid in one year is a severable contract, and not dependent upon performance as a condition precedent, when. A contract of the sale of the good will of business and an agreement to remain out of that business for three years in the city of its location for a stipulated sum to be paid in one year is not an entire, but a severable contract, and tbe performance thereof by tbe sellers is not a condition precedent to tbe payment of tbe stipulated consideration, and tbe breach thereof by tbe sellers in resuming business before tbe expiration of tbe three years will not defeat tbe collection of tbe consideration or purchase price, especially where tbe good will was delivered and enjoyed for a considerable period before tbe violation of tbe contract by re-engagement in tbe business. (Post, pp. 626-631.) Cases cited and approved: Coleman v. Hudson, 2 Sneed, 465; Jackson v. Byrnes, 103 Tenn., 700: Howard v. Taylor, 90 Ala., 243. 3. SAME. Of sale of good will and tbe agreement to remain out of business are valid and enforceable, when. An agreement to remain out of a certain business in tbe city of its location for three years, based upon a stipulated and valuable consideration, in connection with a sale of tbe good will of that business, is reasonable and only affords a fair protection to tbe good will sold, does not interfere with tbe general interests of the public, and is not in restraint of trade, but is valid and enforceable. (Post, p. 632.) Cases cited and approved: Jackson v. Byrnes, 103 Tenn., 699; Muse v. Swayne, 70 Tenn., 251; Electric Co. v. Hanks, 171 Mich., 70; Mell v. Mooney, 30 Ga., 413; Lufborough v. Henderson, 30 Ga., 482; Herbert v. Ford, 29 Me., 546; Warfield v. Boone, 33 Md., 63. 4. SAME. Cross bill to recover damages for breach of agreement to remain out of business, and measure of damages. Where tbe note given for tbe good will of a business and for tbe agreement of tbe payees to remain out of that business for three years in tbe city of its location for a stipulated sum to be paid in one year is sued on,- after tbe payees have breached their contract by re-entering into business contrary to its provisions, tbe defendants are entitled to maintain their cross bill to recover such damages as they sustained by such breach of the contract, which are the natural and proximate results of such breach, to be set off against the decree upon the note, in whole or in part, and if'the same exceeds such decree, to have a judgment for the excess; and if no such resulting natural and proximate damages can be shown, and, if the contract, as in this case, does not contain any criterion by which the damages may be ascertained, only nominal damages can be recovered, because uncertain, remote, and speculative damages are not recoverable. (Post, pp. 631-638.) Cases cited 'and approved: Jackson v. Byrnes, 103 Tenn., 699; Howard v. Taylor, 90 Ala., 242; Taylor v. Howard, 110 Ala., 470; Terry v. Eslava, 1 Port., 273; Burkhardt v. Burkhardt, 47 Ohio St, 474; Mitchell v. Bead, 84 N. Y., 556; Mellesch v. Keen, 28 Beav., 453; Rawson v. Pratt, 91 Ind., 9. 5. INJUNCTION. Most efficient remedy against violation of contract to remain out of a certain business. The most efficient remedy against the violation of an agreement to remain out of a certain business and not to resume the same is an injunction inhibiting the defendant from continuing the business so resumed; and the jurisdiction of chancery to grant this relief is well established. (Post, p. 632.) Case cited and approved: Jackson v. Byrnes, 103 Tenn., 699.
115 Tenn. 639W. T. Hardison & Co. v. Yeaman (1905)
1. PUBLIC WORKS. Contractor’s bond to furnish, materials and labor is not equivalent to statutory bond to pay for materials and labor used in the contract. The bond of a contractor employed to build a courthouse for a county conditioned to provide and furnish the labor and materials of every description necessary to complete such courthouse is not equivalent to the statutory bond whose condition is required to be to the effect that the contractor will pay for all the materials and labor used in the contract for the construction of the public work. (Post. pp. 645, 648.) Acts cited and construed: 1899, ch. 182, 2. SAME. Bond of contractor of public works expressly providing for no liability except to the owner cannot be sued on by materialmen and laborers. An action for materials furnished and labor done will not lie on the bond of a contractor to construct public works, as a courthouse for a county, where the bond expressly provides that the surety shall not be liable thereunder to any one except the owner; for such a bond is not the statutory bond upon which such actions will lie. (Post, pp. 647, 649.) Acts cited and construed: 1899, ch. 182. 3. SAME. Same. Same. Surety on statutory bond of contractor for public works cannot be relieved from liability to furnish-ers of materials and labor by acts of the owner; otherwise, when. Under a statutory bond of a contractor to construct public works, no act of the owner oan relieve the surety from liability to the furnisher of materials and labor, while under the bond as shown in the first and second headnotes, any breach by the owener absolves the surety from all liability. (Post, p. 649.) 4. SAME, Same. Same. Same. No mechanic’s lien on public buildings, and bond of contractor providing against liens will not give action to materialmen and laborers. An action for materials furnished and labor done will not lie on the bond of a contractor to construct public works, as a courthouse for a county, where the bond expressly provides that the surety shall not be liable thereunder to any one except the owner, although it further provides that the owner, in estimating his damages, may include the claim of mechanics and ma-terialmen arising out of the performance of said contract, and paid by him, only when the same are valid liens against his property, since there is no mechanic’s lien on public buildings. (Post, pp. 647, 649, 661-654.) Cases cited and approved: Electric Co. v. U. S. F. & G. Co., 110 Wis., 434; Sterling v. Wolf, 163 Ill., 467; Bank v. Masons, 98 U. S., 123; Parker v. Jeffery, 26 Or., 186; Merrill v. Green, 55 N. Y., 270; Say ward v. Dexter, 19 C. C. A., 176; Price v. Doyle, 34 Minn., 400. 5. SAME. Liability of officers for failure to take bond of contractor is not escaped by failure to give notice of claims to be protected by such bond. Where public officers let a contract for the construction of public works, as a courthouse for a county, without requiring a bond of the contractor to pay for all materials and labor used therein, they are individually liable to the laborers and ma-terialmen for the labor done and the materials furnished and used in the contract; and such liability is not escaped by the failure of the claimants to give notice of their claims within thirty days after the completion of the work, because the statutory provision as to notice is applicable only where the prescribed bond is given, and not where liability is incurred by failure to require such bond. (Post, pp. 646, 647, 654, 655, 657.) Acts cited and construed; 1899, ch. 182. Cases cited, and approved: Rhea. Co. v. Sneed, 105 Tenn., 581; Templeton v. Nipper, 107 Tenn., 548. 6. SAME. Building committee let the contract, though made subject to ratification by county court, and ratified. by such court, and are liable for failure to take contractor’s bond for protection of materialmen and laborers. The members of a building committee appointed by a county court to contract for the erection of a courthouse are the parties who let the contract within the sense of the statute (Acts 1899, ch. 182), where they enter into a contract for such building subject to ratification by the county court, and the ratification is made, with directions to such committee to have the same carried out, so that they are individually liable for failure to take the contractor’s bond to pay for materials furnished and labor done, as required by statute. (Post, pp, 655-657.) Acts cited and construed: 1899, ch. 182. 7. SAME. Members of a building committee appointed for erection of a courthouse are public officers, and are liable as. such for failure to take contractor’s bond, when. The members of a building committee appointed by a county court to contract for the erection of a courthouse are public officers, and incur the liability for the failure to exact and take the statutory bond of the contractor to pay for the ina-terials and labor used in the contract. (Post, p. 657.) Acts cited and construed: 1899, ch. 182. Cases cited and approved: Rhea Co. v. Sneed, 105 Tenn., 581; Templeton v. Nipper, 107 Tenn., 548. 8. SAME. Reserve payments applied to completion oí building:, for default of contractor regardless of prior creditors for materials and labor, when. Where the contract for the erection of a courthouse for a county provided that certain deferred payments or reserve fund arising under the contract should be applied to the completion of the building in case of the default of the contractor, and the contractor’s bond to the county made the same provision on behalf of the surety, the furnishers of labor and materials, who in no way impounded such deferred payments or reserve fund,, are not entitled to recover of the surety on the bond or the building committee, because by agreement between the contractor, the county through said committee, and the said surety, the deferred payments or reserve fund was applied to the completion of the building, and not to the payment of their claims. (Post, pp. 657-661.) 9. SAME. No implied contract by county to pay materialmen and laborers of its contractor to build courthouse, when. There is no implied contract on the part of a county to pay for the materials and labor used by its contractor in the erection of a courthouse for a stipulated sum, where the materials are purchased and the laborers are employed by such contractor, without paying for the same. (Post, pp. 652, 653, 660, 661.) Cases cited and approved: Rhea Co. v. Sneed, 105 Tenn., 581 Templeton v. Nipper, 107 Tenn., 548. 10. SAME< Materialmen and laborers can assert no claim against a fund due the contractor previously subjected by garnishment by other creditors, when. Where, after the completion of a courthouse, there remains a fund due to the contractor, which is subjected by garnishment by a creditor of the contractor to the payment of his debt, materialmen and laborers, without having impounded the fund, are not entitled to subsequently assert any interest therein. (Post, pp. 661, 662.) 11. SURETIES. Not bound beyond tbe limits of their engagements. It is axiomatic and fundamental that- the obligation of a surety is strictissimi juris, and cannot be extended beyond the limits of his engagement. (Post, pp. 649-651, 653, 654.) Code cited and construed: Sec. 4894 (S.); sec. 3879 (M. & V.); sec. 3162 (T. & S. and 1858). Cases cited and approved: Nichol v. McCombs, 2 Yer., 83; Triplet v. Gray, 7 Yer., 16; Kincannon v. Carroll, 9 Yer., 14; Maxwell v. Salts, 4 Cold., 233; Cross v. Scarboro, 6 Bax., 136; Mason v. Harris, 11 Lea, 69; State v. Polk, 14 Lea, 6; Brunswick v. Harvey, 114 Ga., 733; Kingsbury v. 'Westfall, 61 N. Y., 356; Lang v. Pike, 27 Ohio St., 498; Sterling v. Wolf, 163 Ill. 467.
115 Tenn. 663American Publishing Co. v. Gamble (1905)
FROM DAVIDSON. Appeal from the Circuit Court of Davidson County.— Jno. W. Childress, Judge. Mr. Justice Neil made a statement of the case as follows: This was an action of libel brought in the circut court of Davidson county by the defendant in error against the plaintiff in error to recover damages for the publication’ ■of an article in the Nashville American.
115 Tenn. 688Foster-Herbert Cut Stone Co. v. Pugh (1905)
1. PERSONAL INJURIES. Owner of wagon in charge of a skillful driver is not liable for injuries to a child thereon at driver’s invitation, when. The owner of a wagon in charge of a skillful driver is not liable for the death of a child fatally injured in attempting to alight from the wagon after having climbed thereon at the invitation of the driver who was neither expressly nor by implication authorized to invite children to get upon a wagon, and whose act in so doing was in no sense within the scope of his employment or in the furtherance of his employer’s business. Cases cited and approved: Puryear v. Thompson, 5 Hum., 397; Cantrell v. Colwell, 3 Head, 472; Diehl v. Ottenville, 14 Lea, 191; Powers v. Railroad, 153 Mass., 188; Bowler v. O’Connell, 162 Mass., 319; Driscoll v. Scanlon, 165 Mass., 348; Morris v. Brown, 111 N. Y., 318; Cook v. Navigation Co., 76 Tex., 353. S. SAME. Same. Stone wagon with bed below axles, in charge of a skillful driver, is not so dangerously attractive to children as to require extraordinary care by the owner, when. A wagon constructed with the bed below the axles, for the purpose of hauling stone, is not an appliance so dangerous and attractive to children as to require the owner to exercise greater care with reference to the use thereof than putting it in charge of a skillful, careful, and prudent driver. (Post, pp. 690, 698-700.) Cases cited and approved: Walsh v. Railroad, 145 N. Y., 301; Daniels v. Railroad, 154 Mass., 349; Frost v. Railroad, 64 N. H., 220.) Cases cited and distinguished: Whirley v. Whiteman, 1 Head, 619; Railroad v. Starnes, 9 Heis., 52; Bates v. Railroad, 90, Tenn., 36; Cooper v. Overton, 102 Tenn., 235; Burke v. Ellis, 105 Tenn., 702; Railroad v. Stout, 84 U. S., 657; Lynch v. Nurding, 1 Q. B., 29.
115 Tenn. 701Harris v. Bogle (1905)
1. JUEY (TRIALS IN CHANCERY. Rule for application to be made at trial term means the term at which the trial shall actually occur. A chancery rule requiring that application for a jury must he made by petition in open court upon the first day of the trial term must be construed as meaning that the jury shall he demanded on the first day of the term at which the cause shall be tried, and not at the first term at which it is triable, as otherwise, the rule would be in conflict with the provision of the statute (Shannon’s Code, sec. 6284). Code cited and construed: Secs. 5739, 5740, 6138, 6159, 6160, 6164, 6205, 6210; 6211, 6220-6245, 6274, 6282-6287 (S.); secs. 3935, 3936, 4328, 4349, 4350, 4354, 4395, 4400, 4401, 4410-4433, 4457, 4465-4470 (1858). Cases cited, distinguished and approved: Stadler v. Hertz, 13 Lea, 318, 319; Cheatham v. Pearce, 89 Tenn., 670-697. S. SAME. Jury not demanded in pleadings can be demanded only after expiration of time for the other party to take his proof. Where a jury in chancery is not demanded in the pleadings, then a jury cannot be demanded by either party until the rights of the other party has been fully enjoyed as to the time for taking proof. (Post, pp. 714, 715.) Code cited and construed: Secs. 6274, 6282, 6283, 6284 (S.); secs. 4465-4467 (1858). 3. SAME. Waived by obtaining reference to the master and report by him. . Where a party applies for and obtains a,- reference of the cause to the master, he thereby waives his right to a jury trial in the chancery court, for such trial cannot be had upon the report of the master. (Post, pp. 710, 711.) Cases cited and approved: Martin v. Martin, 24 S. C., 446; Rivas v. Summers, 33 Fla., 539; Baird v. City of New York, 74 N. Y., 382. 4. SAME. Same. Waived by reference not actively sought, but accepted and acted on. Order of reference made in form upon the chancellor’s own motion, but in fact suggested by him, and granted in order to enable the party to get in bis proof, which be accepted and acted upon, operates as a waiver of a jury trial in chancery, as stated in the third headnote. {Post, p. 716.) Cases cited and approved: Kelly v. Smith, 1 Blatchf., 290; Atkinson v. Whitehead, 77 N. C., 418; Grant v. Hughes, 96 N. C., 177.
115 Tenn. 717Osborne v. State (1903)
LARCENY. A pistol may be the subject of. Although a pistol may have no market value, its sale within the State being prohibited by statute, it is valuable to the owner and is, therefore, property which may be the subject of larceny. Code cited: Sec. 6650 (S.). Cases cited: Rex v. Clark, 2 Leach, C. C., 1036; Com. v. Riggs, 14 Gray (Mass.), 376; Com. v. Lawless, 103 Mass., 425; Wolver-ton v. Com., 75 -Va„ 909; State v. May, 20 Iowa, 305; Com. v. Coffee, 9 Gray (Mass.), 139; Kreiter v. Nichols, 28 Mich., 496; Bales v. State, 3 W. Va., 685.
115 Tenn. 720Tennessee Central Railway Co. v. Doak (1905)
ACTION. By parent for injury to minor child, not maintainable. An action to recover damages for personal injuries to an infant must be brought in his own name and cannot be maintained by his parent. Code cited and construed: Secs. 4503, 4504 (S.); secs. 3503, 3504 (M. & V.); secs. 2803, 2804 (1858).
115 Tenn. 722Ayres v. State (1905)
1. ARSON. Indictment. Sufficient description of property. An indictment for arson which alleges tliat the building burned was situated in a designated city sufficiently describes the • building. Oases cited and approved: Com. v. Lamb, 1 Gray, 493; State v. Price, 11 N. J. L., 203; State v. Meyers, 9 Wash., 8; Baker V.' State, 25 Tex, App., 1. 2. SAME. Same. Not necessary to allege value of building, when. - An indictment for arson need not allege the value of the property burned; such an allegation is only necessary where value enters into the degree of crime, or affects the punishment.
115 Tenn. 725State v. Wilson (1905)
1. PERJURY. Presentment for, joining two defendants, is bad for duplicity. A presentment charging two defendants jointly, and in the same count, with the crime of perjury, is had for duplicity. Case cited and approved; State v. Roulstone, 3 Sneed, 108. S. GRAND JURY. Statutes granting inquisitorial powers to, strictly construed. The inquisitorial power of the grand jury was unknown to the common law, and it exists in this State with respect to any given offense only when expressly conferred by statute, and such statutes, being in derogation of the common law, are construed strictly. Cases cited and approved: State v. Smith, Meigs, 99; Harrison V. State, 4 Cold., 195; State v. Lee, 87 Tenn., 116. Case cited and distinguished: Glenn v. State, 1 Swan, 19. 3. SAME. Same. No inquisitorial power in respect of violation of liquor dealer’s oath. The crime of perjury committed by violating the oath required as a prerequisite to the issuance of a license to retail spirituous or vinous liquors is not within the meaning of that section of the Code which authorizes the grand jury to send for witnesses whenever they, or any of them, suspect a violation of the laws against “gaming” or “tippling.” Code cited and construed: Secs. 993, 6781, 7046 (S.); secs. 860, 5668, 5912 (M. & Y.); secs. 691, 4858, 5087 (T. & S. and 1858). Act cited and construed: 1865, ch. 29. Cases cited and approved: Harney v. State, 8 Lea, 113; Dunna-way v. State, 9 Yerg., 350; Sanderlin v. State, 2 Humph., 315. 4. CODS! OF 1858. In construction of, may look to original statute in doubtful cases. Omitted provision inoperative, -when. A general rule in relation to tbe construction of the Code of 1858 is that, in doubtful cases, it will be presumed that it was not intended to change, but only .to revise or compile, the old statutes, and a statute in existence prior to the Code may be looked to in such cases; but where an important provision of the statute has been entirely omitted, it is wholly inoperative. Case cited and approved: Tennessee Hospital v. Fuqua, 1 Lea, 611. 5. SAME. Same. Same. Case in judgment. Section 4858 of the Code of 1858 (sec. 5668, M. & V. and sec. 6781, Shan.), providing that any person who violates the liquor dealer’s oath shall be guilty of perjury, was taken from sec. 4, ch. 90, Acts 1845-46, entitled, “An Act to tax and regulate tippling and tippling houses,” wherein inquisitorial power over all violations of the act was expressly granted to the grand jury; but the Code of 1858' omits the grant of inquisitorial power in respect of statutory perjury as conferred by said Act of 1845-46. Held: That such omission from the Code of 1858 was the work of the legislature, and not merely an inadvertence of the compilers, and such omitted provisions is wholly inoperative. Code cited and construed: See. 6781 (S.); sec. 5668 (M. & V.); sec. 4858 (T. & S. and 1858). Act cited and construed: 1845-46, ch. 90.