116 Tenn.

Volume 116 — Tennessee Reports

51 opinions

116 Tenn. 1Insurance Co. of Tennessee v. Waller (1905)
1. TRUSTS AND TRUSTEES. Valid express parol trust inland, may be created at time oí conveyance, and enforced, when. A valid express trust, involving real estate, enforceable in equity, can be created by parol, and such a trust is created by a parol agreement made by a conveyee at the time of the conveyance of the land, to hold the land in trust for the conveyor, to be conveyed as he may direct, for a contemporaneous parol agreement, made at the time of the execution and delivery of a conveyance of land, absolute upon its face, that the conveyee will hold the said land in trust for a certain person is not within the statute of frauds, and aside from the rights of creditors of the original conveyor and innocent purchasers from the conveyee, vests in the beneficiary of the trust a valid equitable title to the land, which a court of equity will enforce. (Post, p. 8.) Cases cited and approved: Woodfin v. Maries, 104 Tenn., 519-520; Mee v. Mee, 113 Tenn., 455; Thompson v. Thompson, 54 S. W., 145; Renshaw v. Bank, 63 S. W., 205. 2. DEEDS OF CONVEYANCE. Sufficient, though name of conveyor does not appear in body of operative parts of the deed, when. Where a deed of conveyance of land is substantially in the form prescribed by the statute, and it sufficiently appears from the whole instrument that it is the contract and deed of the signer, and clearly expresses his intention to convey the land described it is sufficient; although the name of the signer does not appear in the body or operative parts of the deed, and the pronoun “I” is, by clerical error, omitted in one place. (Post, p. 10.) Act cited and construed: Sec. 3680 (S.); sec. 2820 (M. & V.); sec. 2013 (1858). Case cited and approved: Kelton v. Brown, 39 S. W., 543. Case cited and distinguished: Berrigan v. Fleming, 2 Lea, 274. S. TRUSTS AND TRUSTEES. Married woman may accept, hold and execute a trust in land, and convey in execution of the trust, without joinder of her husband, and even convey to him. A married woman may accept, hold and execute a trust relating to real estate, and she has the power, in execution of a trust, to convey real estate so held in trust, without the concurrence of her husband or his joinder in the conveyance made by her; and this rule extends to trusts in which the husband of the trustee is the beneficiary, and to her conveyances made in its execution directly to him. (Post, pp. 10-18.) Cases cited and approved: Gridley v. Wynant, 23 How., 500; Springer v. Berry, 45 Me., 330-338; Sawyer’s App., 66 N. H., 559; Barneby v. Griffin, 3 Ves., 266; Moore v. Coddingham, 90 Ind., 242; Hardin v. Darwin, 66 Ala., 55; Land v. Waters, 25 Iowa, 43; Cairns v. Colburn, 104 Mass., 274; Whitten v. Whitten, 3 Cush., 191-197; Fox v. Doherty, 30 Iowa, 334. 4. DEEDS OF CONVEYANCE. Married woman cannot convey her general estate in lands without the joinder of her husband and p.rivy examination. A married’woman cannot convey lands held by her in her own right and as a general estate and not as a separate estate, except by the joinder of her husband in the execution of the deed, and her privy examination, properly taken and certified in strict pursuance of the statute. (Post, pp. 11, 12.) Code cited and construed: Sec. 3755 (S.); sec. 2891 (M. & V.); sec. 2076 (1858). Cases cited and approved: Cope v. Meeks, 3 Head, 387; Gillespie v. Worford, 2 Cold., 639; Moseby v. Partee, 5 Heisk., 26-36; Giffin v. Giffin, 37 S. W., 710; Ellis v. Pearson, 104 Tenn., 591; Vick v. Gower, 92 Tenn., 391; Dewey v. Goodman, 107 Tenn., 253; Barnum v. LeMaster, 110 Tenn., 640. 6. TRUSTS AND TRUSTEES. Taint of fraud in creation of patrol trust in land will not affect the beneficiary’s right after a conveyance to him in execution of the trust. Where a parol trust in land, tainted with fraud in its creation, has been executed by a conveyance of the land to the beneficiary, who thus acquired both the legal and equitable title to the land, the previous fraud will not bar him from a recovery upon a contract in relation to it or for trespass committed upon it. (Post, pp. 18, 19.) Cases cited and approved: Butlar v. Butlar (N. J. Eq.), 57 Atl., 722; Bolton v. Pittney, 46 N. J. Eq., 610.
116 Tenn. 20Fleming v. Wallace (1905)
1. SLANDER. Plea of justification sustained by preponderance of evidence. The general rule, in civil actions, is that a preponderance of evidence is all that is necessary to sustain a contention of fact; therefore, in an action for slander, for falsely charging plaintiff with a felony, a preponderance of the evidence is all that is required to sustain a plea of justification. Case cited, distinguished and limited to its particular facts: Coulter v. Stewart, 2 Yerg., 225. Cases cited: Chapman v. McAdams, 1 Lea, 505; Hill v. Goodyear, 4 Lea, 233; MeBee v. Bowman, 89 Tenn., 132; Brown v. Tourtelotte, 24 Col., 204; Grimes v. Hilliary, 150 Ill., 141-48; Nebraska Nat. Bank v. Johnson, 51 Nebr., 546; Campbell v. Burns, 94 Me., 127; Sparta v. Lewis, 91 Tenn., 370; Hearne v. DeYoung, 119 Cal., 670; Atlanta Journal v. Mayson, 92 Ga., 640; Ellis v. Bussell, 60 Me., 209-13; Finley v. Widner, 112 Mich., 230; Blackburn v. Ins. Co., 116 N. C., 821; First Nat. Bank v. Commercial Assurance Co., 33 Ore., 43; Bell v. State, 124 Ala., 94; Knowles v. Scribner, 57 Me., 495; People v. Christ-man, 66 Ill., 162. 2. SAME. Same. Reasonable doubt rule does not apply, 'Case in judgment. Action for slander in falsely charging plaintiff with a felony in cutting defendant’s line and corner tree. Plea of justification by defendant. Upon the issue thus made the court instructed the jury as follows: “Now, in a charge of this sort against the plaintiff, the presumption of innocence attaches to the party till that presumption is overturned by a preponderance of the evidence, and the evidence must be strong enough, not only , to overturn the presumption of innocence, but to show from the evidence that the charge set up in the plea of justification is true.” Thereupon plaintiff submitted the following reauest: “The burden of proof is on the defendant to show the truth of his plea of justification, and he must show the truth by such proof as will convince your minds of its truth beyond a reasonable doubt.” There was a verdict for the defendant. Be Id: Plaintiff was not prejudiced by the instructions given, and was not entitled to the charge ashed, applying the rule of reasonable doubt.
116 Tenn. 29Louisville & Nashville R. R. v. Timmons (1905)
PROM WILLIAMSON. Appeal in error from the Circuit Court of Williamson County. — J. A. Cartwright, Judge.
116 Tenn. 40State v. Hayes (1905)
FROM DAVIDSON. Appeal in error from the Criminal Court of Davidson County. — W. M. HART, Judge.
116 Tenn. 51State Board of Law Examiners v. Williams (1905)
This was a proceeding instituted in the supreme court upon petition of the state board of law examiners, seeking to revoke, for fraud in its procurement, the license to practice law previously issued to Martin L. Williams. The facts are stated in the opinion. The prayer of the petition was granted, and the license revoked.
116 Tenn. 57Rich v. Scales (1905)
1. SALE OF LAND. By acre. Relief granted for excess or de-ficiencjr. Deed not conclusive. Where land is sold by the acre, it is a matter of course to grant relief for an excess or deficiency; and, in determining whether the sale was by the acre, the deed will not control, but the parties may go behind it and prove the contract of which the deed was intended as an expression. (Post, p. 65.) For cases cited, see opinion (post, pp. 66, 67). 2. SAME. In gross. No relief except for fraud, or mistake equal to fraud. Where the sale is in gross, no compensation will be granted for either an excess or a deficiency, but if the deed recite the number of acres and it subsequently develops that there is an excess or a deficiency so great as to justify an inference of fraud, or of mistake equivalent in its effect to fraud, relief will be granted. (Post pp. 65, 66.) For cases cited, see opinion (post, pp. 66, 67). 3. SAME. If vendee inspects land, no recovery, unless deficiency shocks conscience of court. If the vendee has inspected the land, and obtained the very tract he intended to buy and all the vendor intended to sell, he can have no relief, although the deed purports to state the number of acres, unless the difference between the number stated and the actual number of acres contained be so great as to shock the conscience of the court, when relief will be granted on the ground of fraud. (Post, p, 66.) For cases cited, see opinion (post, pp. 66, 67). 4. SAME. If part held by superior title, vendee may recover on covenants, or, if loss material, may rescind. If the shortage arise from the fact that a portion of the land embraced in the boundaries of the deed is held by a better title, relief may be had as of course, upon the covenant of shisin, or, if there has been an eviction, upon the covenant of warranty of title; or, if the loss be material, the vendee may have a partial rescission, retaining that to which the title is good and receiving compensation for the rest on the basis of the proportion which the part lost bears to the whole purchase. (Post, p. 660 For cases cited, see opinion (post, pp. 66, 67). 5. SAME. Adverse possession of part. Knowledge of, by ven-dee, defeats recovery. If a part of the land which the deed purports to convey be held in adverse possession at the time of the conveyance, and the vendee have knowledge of such adverse possession, he can have no relief, either upon his covenants at law, or in any form in equity; otherwise, if he have no knowledge of such adverse possession at the time. (Post, p. 66.) For cases cited, see opinion (post, pp. 66, 67).. 6. SAME. Mere recital of acreage not a warranty. The mere recital in a deed of the number of acres which it purports to convey does not amount to a warranty that the tract contains so many acres. (Post, p. 67.) Cases cited and approved: Allison v. Allison, 1 Yerg., 16; With-erspoon v. Porter, 1 Tenn. Cas., 666. 7. SAME. Marked lines or natural boundaries control courses and distances. Rule applies to actions on covenants. Generally, a statement of the number of acres and a recital of the metes and bounds are treated merely as matters of description, and marked lines or natural boundaries will control either the courses or distances called for, or both; and this rule applies to actions upon the covenants in a deed as well as to actions for the recovery of the possession of land. (Post, pp. 67, 68.) Cases cited and approved: Meek v. Bearden, 5 Yerg., 467; Blount’s Lessee v. Medlin, 2 Overt., 199; Massengill v. Boyles, 4 Hum., 205; Moses v. Larens, 2 Tenn. Cas., 38; Lewis v. Oakley, 10 Heisk., 483; Disney v. Coal Creek Mining & Mfg. Co., 11 Lea, 607. 8. SAME. Express convention as to number of acres is warranty. "Where a deed contains the equivalent of an express convention that the tract conveyed contains a given number of acres, this will be treated as a warranty. (Post, p. 68.) Case cited and approved: Hall v. McCammon (Tenn. Ch. App.), 37 S. W., 1027. 9. SAME. In gross. Bounds control distances. Adverse possession known to vendee. Mo recovery. Case in judgment. A triangular tract of land was conveyed by a deed in which it was described as being bounded for a certain number of feet by two designated streets, and fronting on a railroad right of way in the form of an embankment along the entire length of its frontage, elevated above the lot to a height of one foot, and plainly noticeable. Before the deed was executed, the vendee went upon the premises and examined them, but made no actual measurements, and at the time he took the deed, he believed that it stated the lengths of the lines correctly. It appeared by a survey afterwards made that the lines were shorter than the distances given in the deed, and that there were 18,842 square feet less area in the lot than there would be in a lot of the dimensions described in the deed. The deed contained no statement or covenant as to quantity. The bill was filed to recover on the covenants in the deed. Held: (1) The sale was in gross, and there is no room for a claim of deficiency of quantity, either on the ground of express contract or on the ground of fraud; (2) The bounds recited in the deed as inclosing the land, viz.: the two streets and the railroad right of way, took precedence of and corrected the calls for distance; (3) Assuming that the strip held by the railroad company really fell within all the descriptive words of the deed, still the vendee could not recover, because that strip was in the adverse possession of the railroad company in a manner open and obvious to the vendee when he inspected the property before accepting the deed. Case cited and distinguished: Bigham v. Madison, 103 Tenn., 358.
116 Tenn. 71Erwin v. State (1905)
PROM MARION. Appeal from the Circuit Court of Marion County.— S. D. McReynolps, Judge.
116 Tenn. 98McCampbell v. State (1905)
1. CRIMINAL LAW. Presentment not bad merely because signed by only twelve grand jurors. Where no objection is made to any member of a grand jury, a presentment returned by it is .not bad because signed by only twelve grand jurors. (Post, p. 101.) Code cited: Secs. 7055 (S); 5921 (M. & Y); 5093 (1858). Case cited and approved: Pybos v. State, 3 Humpb., 49. Cases cited and distinguished: State v. Baker, 4 Humph., 12; State v. Martin, 3 Tenn. Cas. (Shannon), 478. 2. PLEA IN ABATEMENT. Waived by trial on merits without action thereon. A plea in abatement, attacking the constitution of a grand jury returning a presentment, is waived where no action of the court is invoked thereon before trial and conviction on a plea of not guilty. (Post, p. 102.) 3. SAME. Must point out defect relied on and exclude every legal intendment in favor of presentment. Where it is conceded that there are twelve competent grand jurors, a plea in abatement challenging the constitution of the-grand jury returning a presentment for an ofEense within the inquisitorial power, which fails to aver that the presentment was found upon the information of one .of the grand jurors, is bad, for non constat that it was not found on testimony elicited in virtue of the inquisitorial power. (Post, p. 103.) * Cases cited and approved: State v. Young, 1 Tenn. (Shannon) Cas., 589. 4. GRAND JURY. Has inquisitorial power over offense of selling liquor without license. The offense of selling intoxicating liquors without a license is within the inquisitorial powers of the grand jury, and presentments may be found on the testimony of witnesses sent for by such jury. (Post, p. 103.) 5. STATUTES. Repeals by implication not favored., especially of a special statute by one general in character. It is well settled that repeals by implication are not favored-nothing short of an irreconcilable conflict between two statutes works such a. result-and especially is this true as to an act passed to deal with a special subject, while the later statute is general in character. (Post, pp. 105, 107.) Cases cited: Zickler v. Union Bank & Trust Co., 104 Tenn., 277; Bailey v. Drane, 9.6 Tenn., 16; People v. Burtleson, 14 Utah, 258; Commonwealth v. DeCamp, 177 Pa., 112. 6. INTOXICATING LIQUORS. Special statute prohibiting sale of, without license, making each sale a criminal offense, is not repealed by general revenue acts applicable to the business of selling. The statute (Acts 1899, ch. 161) making it unlawful to sell intoxicating liquors without a license, was passed under the police power of the State, and is not repealed by the subsequent general statutes (Acts of 1899, ch. 432; 1903, ch. 257), passed for the purpose of raising revenue and making it unlawful to carry on certain vocations declared to be privileges, including the business of selling liquor, without paying the privilege taxes therein prescribed; under the former act a single forbidden sale is a criminal offense, but such sale might be made under such circumstances that it could not be construed (Trentham v. Moore, 111 Tenn., 346) as being in the exercise of a privilege, and therefore not violative of the latter acts applicable to selling as a business. (Post, pp. 106-109.) Statutes cited and construed: Acts of 1899, ch. 161; 1899, ch. 432; 1903, ch. 257. Case cited: Blackwell v. State, 45 Ark., 90. 7. SAME. Unlawful selling, punishable by both fine and imprisonment. The statute (Acts of 1899, ch. 161) making it a criminal offense to sell intoxicating liquors without a license, fixes the punishment at both fine and imprisonment, and the court is without discretion to remit the imprisonment. (Post, p. 109.) 8. SUPREME COURT. Will correct erroneous judgment. Where the trial judge has failed to impose as part of the punishment, the imprisonment prescribed by a statute for its violation, this .court will correct the judgment of the lower court by entering the proper judgment here. (Post, p. 109.)
116 Tenn. 110State ex rel. Fentress County v. Reed (1905)
1. PUBLIC OFFICER. Lack of capacity is negligence, when. A public officer contracts not only for the exercise of diligence, caution and good faith, but also that he has capacity and ability to properly discharge the duties incumbent upon him; and it is negligence for one to undertake to discharge duties which he knows or ought to know he cannot perform for want of the necessary capacity, ability or experience. 2. COUNTY TRUSTEE AND SURETIES. Liability of, on bond for loss of county funds deposited in an insolvent bank and lost through its failure, when. Where.a county trustee deposited the county funds in a bank in which he is a director, without any personal effort to investigate the affairs of the bank and ascertain for himself its solvency or insolvency, and without giving its affairs any attention, and without knowing anything about them, though he was unable, for want of capacity, and familiarity with such matters, to ascertain the condition of the bank by a personal examination, but made the deposit upon the advice of his bondsmen and" business men of the county, such officer has wholly failed to exercise the diligence, caution and prudence required by law in selecting a safe and solvent bank of deposit, and is also guilty of culpable negligence in failing to avail himself of all the opportunities and facilities at his command for investigating and ascertaining the condition of the bank; and, on account of the insolvency and failure of the bank, the funds are lost, such officer and his sureties on his official bond are liable therefor. Case cited and distinguished: State v. Copeland, 96 Tenn., 296.
116 Tenn. 117Shepperson v. Burnette (1905)
FROM BEDFORD. Appeal from the Circuit Court of Bedford County.— John E. Richardson, Judge.
116 Tenn. 122Gallatin Turnpike Co. v. Puryear (1905)
1. ADMINISTRATOR DE BONIS NON. Limitation of time for appointment applies to. The statute prescribing the several periods of limitation within which administration may be granted upon the estates of decedents applies to administrators de honis non, as well as to original administrators. Code cited and construed: Sec. 3955 (S.); sec. 3061 (M. & V.); sec. 2220 (T. & S. and 1858). Cases cited and distinguished: Crossan v. McCrary, 37 Iowa, 684; Adams v. Richardson, 5 Tex. Civ. App., 439; Kempton v. Swift, 2 Mete. (Mass.), 70; Bancroft v. Andrews, 6 Cush. (Mass.), 493; Holmes, Petitioner, 33 Me., 577. 2. SAME. Appointment of, cannot be attacked collaterally. The county court having original and independent jurisdiction of the appointment of administrators and the revocation of their letters, a defendant sued by a person acting as administrator de honis non, under the apparent authority of the county court, cannot, in such suit, collaterally question the validity of the appointment of such administrator. Cases cited and approved: State v. Anderson, 16 Lea, 321; Wilson v. Frazier & McKinney, 2 Humph., 31; Wilson v. Hoss, 3 Humph., 142; Franklin v. Franklin, 91 Tenn., 119. 3. SAME. Same. Same. One sued by administrator may attack . appointment in county court, when. Where the county court has exceeded its authority and granted administration after the time limited by statute therefor, a person sued by one acting as administrator de honis non, under the apparent authority of said court, has such an interest in the question of the validity of the appointment of such administrator as entitles him to apply to the county court issuing the letters for a revocation of the administration upon the grounds above stated.
116 Tenn. 128Gardner v. Deeds (1905)
CONTRACT. Action for breach, of, maintainable, without manufacture of goods sold by vendor, when vendee refuses to accept performance. Measure of damages — profits. Case in judgment. Bill filed to recover damages for breach of written contract whereby defendants purchased from complainant, a manufacturer, five hundred buggies, of specified descriptions and at stipulated prices, which were not in esse but were to be manufactured by complainant and ordered as needed by defendants. Complainant procured all the materials and constituent parts necessary for the construction of the buggies, .but they were not manufactured for the reason that defendants refused to order them, and finally declined to accept performance. Held: 1. Defendants having breached the contract, complainant was not required to manufacture the buggies in order to maintain an action for damages. Cases cited and approved: Ault v. Dustin, 100 Tenn., 366; Hinck-ley v. Pittsburg Steel Co., 121 U. S/, 264. 2. The measure of damages for the breach of the contract was the profit complainant would have made if he had been permitted to complete the contract; that is, the contract price of the goods less the cost of manufacture. Cases cited and approved: Smith v. O’Donnell, 8 Lea, 468; Singleton v. Wilson, 85 Tenn., 344; Chisholm & Moore Mfg. Co. v. U. S. Canopy Co., Ill Tenn., 211; Hinckley v. Pittsburg Steel Co., 121 IT. S., 264; P. W. & B. R. R. Co. v. Howard, 13 How. (U. S.), 307; U. S. v. Behan, 110 U. S., 344; Hale v. Trout, 35 Cal., 229; Kimball Bros. v. Deere, Wells & Co., 108 Iowa, 376; Cameron v. White (Wis.), 43 N. W., 155, 5 L. R. A., 493; Black River Lumber Co. v. Warner, 93 Mo., 374; Tufts v. Weinfeld, 88 Wis., 647; Muskegon, etc., Co. v. Keystone Mfg. Co., 133 Pa., 132; Kingman & Co. v. Western Mfg. Co., 92 Fed., 489; Kingman & Co. v. Hanna Wagon Co., 176 Ill., 553. Case cited and distinguished: Hardwick v. Can Co., 113 Tenn., 657.
116 Tenn. 141Inman v. Elk Cotton Mills (1905)
1. CONTRACT OS' SALE. Seller may disregard notice of cancellation by purchaser. If the purchaser of goods sold for future delivery, notify the seller, before deliverry, that he will refuse to accept the goods, the seller may, at his option, treat the notice and intention to cancel on the part of the buyer as inoperative, and await the time when the contract is to be executed, and then, upon making a tender of the goods, hold the buyer responsible for all the consequences of nonperformance. Cases cited and approved: Gentry v. Margolius, 110 Tenn., 674; Ault v. Dustin, 100 Tenn., 366; Barker v. Reagan, 4 Heisk., 590; Roehm v. Horst, 178 TT. S., 1; Smith v. Georgia Loan, etc., Co., 113 Ga., 975; Kadish v. Young, 108 Ill., 170; Howard v. Daily, 61 N. Y„ 362. 3. SAME. Same. Preserves contract for benefit of both parties, when. But in the ease stated in the first headnote the seller refusing to acquiesce in the attempted cancellation by the purchaser keeps the contract alive for the benefit of both parties and therefore the seller remains subject to all his obligations and liabilities under said contract, thereby enabling the purchaser not only to complete the contract if he so desires, notwithstanding his former repudiation of it, but also to take advantage of any supervening circumstances which would justify him in declining to complete it. See cases cited under first headnote. 3. SAME. Same. Same. Case in judgment. Complainants agreed to sell and deliver to defendant fifty bales of cotton at a specified price and defendant before delivery notified complainants that it would refuse to accept the cotton, hut complainants declined to recognize the cancellation of the order and thereafter tendered to defendant only forty-nine hales of cotton of the kind specified in the contract. Upon defendant’s refusal to accept the forty-nine hales tendered, the cotton was re-sold hy complainants who filed the hill in this cause to recover the loss occasioned hy the re-sale. Eeld: The agreement hy' complainants to sell and deliver fifty bales was an entire contract and the defendant’s notice of cancellation did not obviate the necessity of a tender of the full number of hales hy complainants in order to authorize a recovery for defendant’s cancellation and breach of contract. 4. Question reserved and not decided. Whether a person trading in a particular market will he taken to have dealt according to a known general custom and usage of that market, whether he in fact knows of the custom and usage or not. Oases cited: Railroad v. Naive, 112 Tenn., 239; Star Glass Co. V. Morey, 108 Mass., 570; Samuels v. Oliver, 130 Ill., 73.
116 Tenn. 150Heard v. Elliott (1905)
PROM SEQUATCHIE. Appeal from the Chancery Court of Sequatchie County. — T. M. McConnell, Chancellor. STATEMENT OF CASE BY MR. JUSTICE NEIL. By an act passed in July, 1870 (Acts 1870, p. 115, c. 68), the office of entry taker in the State was consolidated with the office of county surveyor. By chapter 55, p. 51, of the Acts of 3875, the office of county entry taker for the various counties in the State was abolished.
116 Tenn. 161Key v. Harris (1905)
PROM OVERTON. Appeal from the County Court of Overton County.— J. N.- Cannon, County Judge.
116 Tenn. 173Cason v. Cason (1905)
1. CONTRACTS AND DEEDS. Grantee or beneficiary of deed of conveyance of land is not affected by the fraud or duress of a third person, when. A party to a contract, as the grantee or beneficiary of a deed of conveyance of land, is not affected or prejudiced by the fraud or duress of a third person, not his. agent, nor acting in collusion with him, in procuring the execution Of the contract or deed, nor by the acceptance of such contract or deed and its benefits without knowledge of such fraud or duress, although such third person is the notary public who took the privy examination of a married woman as the maker of such-deed. (Post, pp. 188-193, 195, 196.) Code cited and construed: Secs. 3194, 3199, 3714 (S); secs. 2461, 2466, 2852 (M..& V.); secs. 1792, 1795 (T. & S. and 1858); sec. 2039b (T. & S.). Cases cited and approved: Lee v. Vaughn, 1 Bibb (Ky.), 235; Copeland v. Curry, 1 Bibb (Ky.), 176-178; Appleton v. Horton, 26 Me., 23; Pulsford v. Richards, 17 Beav., 95; Duranty’s Case, 26 Beav., 270; Worth’s Case, 4 Drew, 529; Whitmore v. Mackinson, 16 Beav., 128; Ellis v. Coleman, 25 Beav., 673; Ful-gate’s Case, 2 De Gex, Jones & Smith; Nash v. Title Co., 28 L. R. A., 757, 47 Am. St. Rep. 489; Root v. Bancroft, 8 Gray, 619; White v. Graves, 107 Mass., 325; Martin v. Campbell, 120 Mass., 126; Compton v. Bank, 96 Ill.,-301; Smedes v. Bank, 20 Johns. (N. Y.), 384; Bank v. Howell, 63 Am. Dec., 717. Case cited and distinguished: Coffman v. Bank, 5 Lea, 232. 8. PRIVY EXAMINATION. Officer’s failure to explain fully the •transaction will not vitiate married woman’s deed, when. The failure of the officer, who takes the acknowledgement. and privy examination of a married woman to her deed of convey* anee of land, to explain fully the transaction, and the consequences of her act, in the absence of fraud practiced by the grantee or his agent, will not vitiate her deed or render it void. CPost, pp. 193-195.) Cases cited and approved: Shields v. Netherland, 6 Lea, 196; Curry v. Kerr, 11 Lea, 142; Grotenkemper v. Carver, 9 Lea, 77; Edwards v. Boyd, 9 Lea, 204; Renner v. Welcker, 99 Tenn., 626; Burem v. Winstead, 103 Tenn., 285, 288. 8. DEEDS OE CONVEYANCE. Mere acceptance by grantees does not ratify fraud or duress of notary public in procuring execution and acknowledgment and privy examination, when. The mere acceptance of a deed by the grantees or beneficiaries does not operate as an adoption or ratification of the fraud or duress of the notary public in procuring the execution of the deed and the maker’s acknowledgment and privy examination, where it is not shown that the grantees or beneficiaries had any knowledge of the fraud or duress. (Post, pp. 196-198.) 4. SAME. Mental incapacity that renders deed void. A deed of conveyance of land executed and delivered at a time when the maker is mentally unbalanced, and has no intelligent comprehension of the act being performed, and is incapable of transacting any business understandingly, no matter what produced such mental incapacity, is absolutely void. (Post, pp. 198, 199.)
116 Tenn. 201Bunch v. Smith (1905)
1. DEMURRER. Not acted on in lower court cannot be assigned as error in supreme court. An assignment of error in the supreme court that the lower court improperly overruled a demurrer to the bill cannot be sustained, when it does not appear from the record that the demurrer was ever acted upon in the court below. (Post, p. 209.) Case cited an approved: M. & O. R. R. Co. v. Ridley, 114 Tenn., 727. 2. BANKRUPTCY. Trustee entitled to property of bankrupt fraudulently conveyed, notwithstanding discharge. Pour months’ limitation does not apply. The granting of a discharge in bankruptcy under the federal bankrupt act of 1898 is in no way dependent upon a settlement of the bankrupt’s estate; and all property transferred by the bankrupt in fraud of his creditors vests in the trustee, although such transfer was made more than four months before the petition in bankruptcy was filed. (Post, pp. 212-216.) Act of congress cited and construed: ' Bankrupt Act July 1, 1898, see. 1, subsee. 12, and sec. 67e. Cases cited and distinguished:. Morris v. Creed, 11 Heisk., 155; Hudson v. Bigham, 12 Heisk., 59. 3. SAME. Trustee proper party to sue for property fraudulently conveyed by bankrupt. May intervene in suit in State court. The trustee in bankruptcy is the proper party to bring suit to recover property fraudulently transferred by the bankrupt, and such suit may be brought in the State court, and to that end he may intervene in a pending suit brought by a judgment creditor to set aside a fraudulent conveyance of property made by the bankrupt. (Post, pp. 216-218.) Act of congress cited and construed: Bankrupt Act July 1, 1898, sec. 70e. Cases cited and approved: Glenny v. Langdon, 98 U. S., 20; Trimble v. Woodhead, 102 U. S., 647; Claflin v. Houseman, 93 U. S., 131; Barton v. Geiler, 3 Lea, 297. 4. SAME. Trustee may be reinstated by referee when improperly discharged. A referee in bankruptcy has the right to reinstate or reappoint a trustee who has been inadvertently or improperly discharged. (Post, pp. 218, 219.) Act of congress cited and construed: Bankrupt Act of July 1, 1898, sec. 2, subsec. 8. 5. SAME. Suit brought by creditors of bankrupt may be revived in name of trustee, when. Where a petition in bankruptcy is filed and the bankrupt receives a final discharge pending a suit brought in the State court by creditors of the bankrupt to set aside a fraudulent conveyance made by him, it is proper for the State court to revive the suit in the name of the trustee upon a petition filed by him for that purpose. (Post, pp. 218, 219.) 6. SAME. Trustee entitled to entire proceeds of sale. In the case stated in the next preceding headnote, it is not error to decree that the entire proceeds of the sale of the property be turned over to the trustee, for the benefit of all the creditors of the bankrupt’s estate, instead of only a sufficient amounts to satisfy the claims of the original complaints. (Post, pp. 219, 220.) 7. COSTS. May be taxed to defendant and sureties on appeal bond in suit to set aside fraudulent conveyance. In a successful action to set aside a fraudulent conveyance of property made by a debtor, it is not error to adjudge that the defendant and the sureties on his appeal bond are personally liable for the costs of the cause, instead of ordering them paid out of the proceeds of the sale of the property. (Post, p. 220.)
116 Tenn. 221Robertson v. Mt. Olivet Cemetery Co. (1905)
PROM DAVIDSON. Appeal from the Chancery Court of Davidson County. —John Allison, Chancellor.
116 Tenn. 230Pope v. Dykes (1905)
FROM MARION. Appeal from the Chancery Court of Marion County.— T. M. McConnell, Chancellor.
116 Tenn. 245Kiernan v. Casey (1905)
FROM DAVIDSON. Appeal from the Chancery Court of Davidson County. — John Allison, Chancellor.
116 Tenn. 252Goodloe v. Goodloe (1905)
1. FRAUDS, STATUTE OF. Parol contract to devise lands. A parol contract to devise lands is within the statute of frauds and unenforceable. 3. SAME. Parol contract not taken out of, by partial performance. It is well settled that partial performance of a parol contract, within the operation of the statute of frauds, will not prevent the application of the statute to such contract. Case cited and approved: Patton v. McClure, Mart. & Yerg., 333. 3. CONTRACT, PAROL. Quantum meruit for services rendered under, though, no specific performance of. Where complainant was not entitled to enforce specific performance of a parol contract to devise certain lands to him, in consideration of services rendered deceased, because of the statute of frauds, he was entitled to recover the reasonable value of his services upon a quantum .meruit against the deceased’s personal representatives. 4. STATUTE OF LIMITATIONS. Begins to run from breach of contract to devise lands. Case in judgment. The intestate and ancestor of deceased, in her lifetime entered into a parol contract with complainant to devise to him certain lands in consideration of his entering her service. She died without discharging her obligation under said contract, by will or otherwise, and her. administrator and heirs refused to recognize it and set up statute of frauds. Held: The statute of limitations against an action to recover on quantum meruit for services rendered the deceased did not begin to run until breach of the contract by her death without performance. Cases cited and approved; Green v. Orgain (Tenn. Ch. App.), 46 S. W., 477; Collins v. Thayer, 74 Ill., 138; Railroad Co. v. Parks, 32 Ark., 131. Cases cited and overruled on this point: Byrn v. Fleming, 3 Head, 658; Taylor v. Wood, 4 Lea, 504.
116 Tenn. 259Vanderbilt University v. Cheney (1905)
FROM DAVIDSON. Appeal from the Chancery Co-nrt of Davidson County. —John Allison, Chancellor.
116 Tenn. 271L. & N. R. R. v. Bohan (1905)
1. EVIDENCE. As to defective air brake examined. In an action for personal injuries to a railroad conductor, caused by the escape of a train do-wn a steep grade, the evidence was examined and held sufficient to sustain the finding by the jury that the accident was caused by a defective air brake. (Post, pp. 277-286.) 12. CONTRIBUTORY NEGLIGENCE. A question for jury when facts are controverted. Where there is a controversy in respect of the facts upon which the defense of contributory negligence is predicated, the question should be submitted to the jury. In this ease the evidence was examined and held to present a question for the jury, whether the plaintiff was guilty of proximate contributory negligence. (Post, pp. 285-287.) 3. CHARGE OE COURT. Reversible error to invade province of jury on pivotal point. In an action for personal injuries to a railroad conductor, where he insisted that the accident was caused by a defect in the engine, in that the brake valve did not lap, which allowed the train to .escape down a steep grade, and there was evidence on the part of the defendant that the alleged defect would not have caused the train to run away as it did, but would have stopped the train, because the engineer would have gotten a greater pressure than he sought to apply, an instruction that this defense is entirely paradoxical and is not a valid defense to the action is erroneous as an invasion of the province of the jury upon the pivotal point in the case. (Post, pp. 287-289.) 4. EVIDENCE. Of declaration, of agent when doing act within scope of his employment is admissible. Whenever it is admissible to prove what an agent did, it is competent to prove what he said about the act done within the scope of his employment while he was doing it; therefore, in an-action for personal injuries, where it was material to determine whether the air brake on an engine was defective in that it did not lap, which resulted in the escape of the train down a steep grade, evidence of a statement by the engineer in charge of the train before it reached the grade in question that the brake valve did not lap was inadmissible. (Post, pp. 278,289-293.) Cases cited and approved: Railroad v. Messino, 1 Sn., 220; Railroad v. Elliott, 1 Cold., 611; Willcox v. Hines, 100 Tenn., 524.
116 Tenn. 294State v. True (1905)
FROM ROBERTSON. Appeal from the Chancery Court of Robertson County. — J. W. Stout, Chancellor.
116 Tenn. 317Louisville & Nashville Railroad v. Vincent (1905)
1. REMOVAL OF CAUSES. Not by a nonresident defendant joined with resident defendants in a joint and concurrent action shown by the declaration; such action defined. Where in a resident’s suit against residents and a nonresident in a State court, it appears from the declaration that the cause of action is joint and concurrent against all the defendants and that there is no separable controversy with the nonresident defendant, independent of the other defendants, the nonresident defendant is not entitled to a removal of the cause to the federal court. What constitutes such joint and concurrent actions for torts as well as separable controversies is defined and illustrated. (Post, pp. 321, 322, 330-332, 337-339.) Cases cited and approved: Railroad v. Kenley, 92 Tenn., 207; Beopple v. Railroad, 104 Tenn., 428; Coleman v. Bennett, 111 Tenn., 712. 3. SAME. Same. Purpose of joinder to prevent the removal is immaterial where the cause of action is joint. It is immaterial in such case, where the cause of action appears to he joint and concurrent against all the defendants, that the plaintiff joined the resident defendants for the purpose of avoiding the jurisdiction of the federal court and for the purpose of preventing a removal of the cause to that court. (Post, pp. 322-339.) Cases cited and approved: Macey v. Childress, 2 Tenn. Chy., 442; Railroád v. Hendricks, 88 Tenn., 710; Terminal Co. v. Railroad, 119 Fed., 210; Railroad v. Dixon, 179 U. S., 135, 140, 47 S. W., 615; Mining Co. v. Canal Co., 118 U. S., 264, 270; Con-nell v. Railroad (C. C.), 13 Fed., 241; Schumpert v. Railroad' (S. C.), 43 S. E., 813; Phelps v. Nowlen, 72 N. Y., 39; Kiff v. Youmans, 86 N. Y., 329; Goff v. Railroad (C. C.), 36 Fed., 301; Warax v. Railroad (C. 0.), 72 Fed., 638; Hukill v. Railroad (C.. C.), 72 Fed., 745; Railroad v. Wangelin, 132 XJ. S., 599; Char-man v. Railroad (C. C.), 105 Fed., 449; Diday v. Railroad (C. C.), 107 Fed., 565; Little v. Giles, 118 XJ. S., 596; Simpson y. Dali, 70 XJ. S., 460; Railroad v. Thompson, 200 XJ. S., 206. 3. VERDICTS. No evidence to support verdict ior wrongful death where no negligence is proved against railroad conductor and engineer, when. There is no evidence to sustain the verdict of the jury in favor of the plaintiff in an action for the wrongful death of plaintiff’s intestate while employed and engaged in learning the business of a railroad brakeman, where there is no evidence to charge the conductor and engineer with negligence in starting the train without first ascertaining that the deceased was not between the cars, where he had been expressly warned and directed not to go. (Post, pp. 339-351.) 4. RAILROADS. Brakeman and a learner of the business of a. brakeman are fellow servants. A railroad brakeman and one engaged in learning the business of a railroad brakeman are fellow servants, and the railroad is not liable in damages for the death of the learner through the negligence of the brakeman in signaling the engineer to proceed while the learner was between the cars coupling the air hose. (Post, p. 345.) Case cited and approved: Citizens’ Rapid Transit Co. v. Dozier, 110 Tenn., 98. 5. SAME. Conductor in charge of a freight train is a vice principal as to the other trainmen. A conductor in charge of a freight train stands in the relation of a vice principal to the other members of the crew, and the railroad company is liable for any act of negligence on his part, whereby an injury is inflicted upon any of the trainmen. (Post, pi 345.)'" Cases cited and approved: Railroad v. Spence, 93 Tenn., 173; Railroad v. Dillard, 114 Tenn., 240. 0. Same. Rules for government of employees required, but not special rules for beginners. V?hile a railroad company is in duty bound to adopt and promulgate a code of rules for the government of its employees and to enforce their obedience, but it is not absolutely required to adopt and promulgate a code of rules for inducting beginners or learners into its service. {Post, pp. 351-354.) Case cited and approved: Railroad v. Reagan, 96 Tenn., 139. 7. SAME. MASTER AND SERVANT. Instruction and advice for youthful and inexperienced employees. It is the master’s duty to give such -warning, advice, and instruction to a youthful and inexperienced employee as will enable him by the exercise of reasonable care to perform the duties of his employment with safety to himself. • (Post, p. 352.) Case cited and approved: Whitelaw v. Railroad, 16 Lea, 397,
116 Tenn. 355Ransom v. State (1905)
1. GRAND JURY. Objection to formation of, must be seasonably made, and, after indictment, can only be made by plea in abatement, and not by mere motion to quash. An objection to an indictment by a negro defendant in a criminal case on the ground that negroes -were excluded from the grand jury on account of their race and color cannot be made by a mere motion to quash the indictment, but the question must be seasonably made by plea in abatement, duly verified and sustained by competent evidence, and the question is not seasonably made where the defendant was arrested during vacation, bound over to await the action of the grand jury at the next ensuing term, and did not interpose his objection until the trial day, six weeks after the finding of the indictment and after a special panel had been called for by defendant and granted. (Post, pp. 359-364.) United States constitution cited and construed: Fourteenth amendment. Cases cited and approved: United States v. Gale, 109 U. S., 65; Agnew v. United States, 165 U. S., 42; United States v. Richardson, 28 Fed.'Rep., 65. 2. TRAVERSE JURY. Objection that negroes are excluded from trial panel is not sustained, when. The contention by a negro defendant in a criminal case that he is denied the equal protection of the laws for the reason that the names of the panel, array or venire for the trial jury were drawn from a jury box from which the names of negroes had been excluded on account of their race and color, is not sustained by affidavits to the effect that the affiants had not seen or heard a colored man called to serve on a jury for a period of years. (Post, pp. 364-366.) 3. SUPREME COURT PRACTICE. Ruling of trial judge on facts not reviewed, when. Where a bill of exceptions fails to state, as required by the well-settled rules of this court, that it contains all of the evidence heard by the trial judge on any plea or motion presenting disputed or controverted facts, the correctness of the judge’s ruling will not be reviewed. (Post, pp. 366, 367.) 4. MURDER. Verdict for, supported by the facts. A verdict of guilty of murder in the second degree, and fixing the punishment of defendant at twenty years’ confinement in the penitentiary, is abundantly sustained by the facts set out in the opinion. (Post, pp. 357-359.)
116 Tenn. 368Memphis Street Railway Co. v. Giardino (1906)
PROM SHELBY. Appeal in error from Circuit Court of Sbelby County. —A. B. Pittman, Judge.
116 Tenn. 383Rutherford v. Rutherford (1906)
1. WILLS, Owners of contingent remainder determined upon happening of contingency, when. Where testator devised certain property to two nieces, one-halt' to each, for their sole and separate use, during their natural lives, with remainder over to their respective heirs and expressly stipulated that if either should die without children, “the share of one so dying shall go to the survivor, or the children surviving,” it was held that the owners of the contingent remainder so created could not be determined until the death of both life tenants. 2. PARTITION. Contingent remaindermen not entitled to. There can be no partition, or sale for partition, among contingent remaindermen. Case cited and approved: Land Company v. Hill, 87 Tenn., 589. 3. SAME. Statutes relating to, are in pari materia. The statutes of this State relating to and providing for partition in hind and sale for partition are in pari materia and should be construed together. 4. SAME. Sale for, at suit of life tenants, when for benefit of whole estate, notwithstanding existence of contingent remainder. Where it is shown to be for the manifest interest of the parties owning the entire estate, a sale of the whole estate for partition at the suit of life tenants is authorized by statute, notwithstanding the existence of a contingent remainder. Code cited and construed: Sections 5010, 5020, 5040, 5042, 5070 (S.); 3998, 4003, 4022, 4024, 4052 (M. & V.); 3262, 3272, 3291, 3293, 3321 (1858). Cases cited and approved: Freeman v. Freeman, 9 Heisli., 301; Parker v. Peters, 2 Tenn. Cas., 639; Reeves v. Reeves, 11 Heisk., 674; Wilson v. Bogle, 95 Tenn., 290; Ridley V. Halli-day, 106 Tenn., 607. 5. SAME. Same. Distribution of proceeds. In such case the life estate should he valued and paid to the life tenants and the residue, belonging to the contingent estate, should be invested under the order of the court for the benefit of the persons ultimately entitled to the possession of that estate. Code cited and construed: Sections 5056 (S.); 4038 (M. & V.); 3307 (1858). 6. SAME. Same. Expense for benefit of -whole estate paid out of gross fund, when. Where in order to make an advantageous sale of lands in partition proceedings it was necessary for the life tenants petitioning therefor to expend considerable sums to obtain the surrender of possession by certain lessees, the life tenants were . entitled to an allowance for their outlay out of the aggregate fund. 7. SAME. Same. Real estate agent’s commissions. But in such case, commissions due to a real estate agent should not be paid out of the fund arising from the sale, but by those who employed such agent.
116 Tenn. 394Robinson v. Blankenship (1906)
1. HEEDS. Limitation over, after life estate, to heirs of grantor does not create remainder, but leaves reversion in grantor, disposable by him. Where one gives an estate to another-for life, with remainder limited to his heirs, while such limitation may be designated as a remainder, nevertheless, by the common law, it is not a remainder vesting in the heirs by purchase but an estate continuing in the grantor as the reversion in fee, which he may convey by subsequent deed. 2. SAME. Same. The term heirs is not a word of purchase in a limitation over to the heirs of the grantor. Case in judgment. Where a husband conveyed to his wife an estate for life, with remainder to himself or his own heirs and then made to her a second deed conveying the same property in fee, reserving to himself a right of occupation during her life, and after his death she mortgaged the property, it was, upon bill filed to construe said deeds and foreclose the mortgage, held that the limitation over to the heirs of the grantor did not vest in them an estate by purchase but left in the grantor the reversion which was transferable by him. Case cited and approved: Hoover’s Lessee v. Gregory, 10 Yerg., 451.
116 Tenn. 400Memphis State Line Railroad v. Forest Hill Cemetery Co. (1906)
FROM SHELBY. Certiorari to tlie Circuit Court of Shelby County.— J. P. Young, Judge. Mr. Justice Neil made a statement of tlie case as follows. The purpose of the present proceeding was to condemn a right of way for the plaintiff: railway company through Forest Hill Cemetery. Forest Hill Cemetery is located something oyer two miles from the city of Memphis. It comprises 180 acres.
116 Tenn. 424I. M. Darnell & Son Co. v. City of Memphis (1906)
.1. TAXATION. Property imported from other States into this State is subject to the tax laws of this State, and is not ex- , empt as interstate commerce, when Lumber logs imported from another State, and lying in the importer’s millyard in this State awaiting manufacture into lumber or already manufactured into lumber and awaiting sale, have become commingled with and merged into the mass ol general property of this State, and have become subject to the tax laws of this State, and are not protected from State taxation by the interstate commerce clause of the constitution of the United States. (Post, pp. 426-430.) Constitution of the United States cited and construed: Art. 1, sec. 8. Cases cited and approved: Steel & Wire Co. v. Speed, 110 Tenn., 524-546; Woodruff v. Parham, 8 Wall., 123; Brown v. Houston, 114 U. S., 622; Emert 'v. Missouri, 156 U. S., 296; May v. New Orleans, 178 U. S., 496; Steel & Wire Co. v. Speed, 192 U. S., 500; Kehrer v. Stewart, 197 U. S., 60-65. 3. SAME. Same. State taxation, of' such property is not a denial of the equal protection of the laws. Under our constitutional and statutory exemption from taxation of the direct product of the soil in the hands of the producer and his immediate vendee and of articles manufactured of the produce of this State, a tax on lumber logs imported from another State into this State by a domestic corporation, and lying in the importer’s millyard awaiting manufacture into lumber, or already manufactured into lumber and awaiting sale, is not violative of the fourteenth amendment to the constitution of the United States, as a denial of the equal protection of the laws. f^Post, pp. 426, 430-444.) Acts cited and construed: 1903, eh. 258/ secs. 1 and 2. Constitution cited and construed: Art. 2, secs. 28, 29, and 30. Constitution of the United States cited and construed: Art. 1, see. 8; 14th am. Cases cited and approved: State v. Crawford, 2 Head, 461; Naff v. Russell, 2 Cold., 36; Kurth v. State, 86 Tenn., 136; Benedict v. Davidson Co., 110. Tenn., 191; McCulloch v. Maryland, 4 Wheat., 316-428; Bond Case, 15 Wall., 300-319; Tiernan v. Rinker, 102 U. S., 123; Barhier v. Connolly, 113 U. S., 27-31; Walling v. Michigan, 116 U. J3., 446; Railroad v. Pennsylvania, 134 U. S., 232; Express Co. v. Seibert, 143 U. S., 339; People ex rel., v. Roberts, 17 U. S., 658; Dewey v. Des Moines, 173 U. S., 193-198; Bridge Co. v. Illinois, 175 U. S., 626-633; Refining - Co. v. Louisiana, 179 U. S., 89-94; Insurance Co. v. Connecticut, 185 U. S„ 364; Kidd v. Alabama, 188 U. S., 730; Railroad v. Powers, 201 U. S. 543; Cox v. Texas, 202 U. S. 446.
116 Tenn. 445Chicago, St. L. & N. O. R. R. v. Moggridge (1906)
EMINENT DOMAIN. Damages for property taken under power of, should be awarded as of date of actual appropriation, when. Where a railroad company, having given bond to abide final judgment, takes possession of a right of way during the pen-dency of condemnation proceedings instituted by it, but before trial and judgment fixing the amount of damages, the amount; of damages recoverable should be awarded as of the date when possession of the property was actually taken. Constitution cited and construed; Art. 1, sec. 21. Code cited and construed: 1865, 1859, 1862 (S.); 1570, 1564, 1567 (M. & V.); 1346, 1340, 1343 (1858). Cases cited and approved: White v. Railroad, 7 Heisk. 518, 541; Alloway v. Nashville, 88 Tenn., 510; Railroad v. Campbell, 109 Tenn., 561.
116 Tenn. 450Kinney v. Y. & M. V. R. R. (1906)
1. SUPREME COURT PRACTICE. Assignment of error. An assignment that the trial judge erred in giving the jury peremptory instructions to find for the defendant and in declining to submit the evidence to the jury is good in form. 2. VERDICT. Trial judge without power to direct, where there is dispute as to any material determinative question. Where there is a conflict in the testimony as to any material determinative question, the court, having no power to pass' upon the credibility of the witnesses, must submit the case to the jury. Cases cited and approved: Tyrus v. Railroad, 114 Tenn., 579, 594; Traction Co. v. Brown, 115 Tenn., 323. 3. COMMON CARRIER. Liable for wrongful deliverry of passenger, when. A passenger may maintain an action against a common carrier where it refuses to deliver her at its usual station platform, but puts her off three hundred yards from it in the mud and rain, she being old, crippled and going on crutches.
116 Tenn. 454Lewis v. Shelby County (1906)
1. ANIMALS, DISEASED. Dower of inspector to destroy. The authority of the State live stock inspector to destroy diseased animals, when the public safety demands their destruction, is absolute and cannot be questioned in any subsequent proceeding. Act cited and construed: Acts 1901, ch. 156. 3. SAME. Award of commissioners for, reviewable by certiorari. The award of com¡missioners for the value of diseased animals destroyed in the interest of the public safety, may be reviewed by certiorari to the circuit court. Case cited and approved: Staples v. Brown, 113 Tenn., 639. 3. SAME. Award of commissioners for, is final, when. Such award is final, unless reviewed by certiorari, and the county court has no power to fix for itself the value of the animal. Act cited and construed: Acts 1901, ch. 156.
116 Tenn. 458Rowlett v. Rowlett (1906)
WILLS. Widow is entitled to exempt property without dissenting' from will purporting to dispose of all the property. The widow is entitled to her deceased husband’s property exempt by law from execution, although his will purports to dispose of all his property, including such exemptions, and notwithstanding her failure to dissent from the will, as provided by statute, for the reason that such exemptions do not belong to the estate of the deceased husband, as such, and cannot pass under his will, as against the rights of the widow. Code cited and construed: Secs. 4020, 4023, 4030, 4231 (S.); secs. 3125, 3128, 3135, 3335 (M. & V.); secs. 2285, 2288, 2289, 2294, 2478 (T. & S. and 1858). Acts cited: 1879, ch. 89. Cases cited and approved: Curd v. Curd, 9 Hum., 171; Turner v. Fisher, 4' Sneed, 212; Blanchard v. Thompson, at Jackson, April term, 1871; Puryear v. Reese, MS., at Nashville, December term, 1871; Pride v. Watson, 7 Heis.,'232; Morris v. Morris, 9 Heis., 814, 821, 822; Kimbrough v. Kimbrough, 1 Tenn. Cas., 305. Cases cited and distinguished: Bayless v. Bayless, 4 Cold., 359; Williams v. Corson, 2 Tenn. Chy., 269; Williams v. Carson, 9 Bax., 516; Rhea v. Creer, 86 Tenn., 59, 68; Wilson v. Morris, 94 Tenn., 547, 560, 561; McCrea v. McCrea, 103 Tenn., 719; Cooper v. Wright, 110 Tenn., 214; Walker v. Bobbitt, 114 Tenn., 700. Cases cited: Reid v. Campbell, Meigs, 378, 385; Malone v. Majors, 8 Hum., 579; Paine v. Gupton, 3 Head, 488; Waddle v. Terry, 4 Cold., 51, 55; Waterbury v. Netherland, 6 Heis., 513; Morrow v. Morrow, 3 Tenn. Chy., 532; Williams v. Gray, 1 ' Cold., 104.
116 Tenn. 470Samuelson v. State (1906)
1. STATUTES. Act prohibiting traffic in nontransferable signature passenger tickets, and requiring redemption of all unused tickets, is not unconstitutional as containing more than one subject. A statute (Acts 1905, eh. 410) entitled “An act to prohibit traffic in nontransferable signature tickets issued by common carriers, and to require common carriers to redeem unused or partly used tickets, and to provide punishment for the violation of this act,” and whose body prohibits the traffic in such nontransferable signature tickets, and requires common carriers to redeem, upon certain terms, all partly or wholly unused tickets sold by them, does not embrace more than one subject, nor does it, either in the title or body, embrace incongruous legislation, but it contains only one subject, with two branches naturally and intimately allied, and is not, therefore, violative of the constitutional provision that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title. (Post, pp. 475-483.) Act cited and construed: 1905, eh. 410. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Cannon v. Mathes, 8 Heis., 405; Luehrman v. Taxing District, 2 Lea, 426; Morrell v. Fickle, 3 Lea, 79; Frazier v. Railroad, 88 Tenn., 138; Ex parte Griffin, 88 Tenn., 550; Manufacturing Co. v. Falls, 90 Tenn., 469; State v. Yardley, 95 Tenn., 554'; Ryan v. Terminal Co., 102 Tenn., 111. Cases cited and distinguished: State v. McCann, 4 Lea, 1; Murphy v. State, 9 Lea, 373; Ragio v. State, 86 Tenn., 272; Bank v. Devine, 97 Tenn., 603; Saunders v. Savage, 108 Tenn., 340; State v. Hayes, 116 Tenn., 40. 2. SAME. Same. Act prohibiting traffic in nontransferable signature passenger tickets and making such traffic a misdemeanor is not unconstitutional as a delegation of legislative authority to the common carrier. A statute (Acts 1905, ch. 410) prohibiting traffic in nontransferable signature tickets issued and sold below the standard schedule rate hy common carriers, and making such traffic a misdemeanor, is not unconstitutional as a delegation to the common carrier of legislative authority to create a penal offense or not hy the issuance or nonissuance or nontransferable signature tickets to the original purchaser below the standard schedule rate. (Post, pp. 475-477, 484-488.) Acts cited and construed: 1905, ch. 410. Constitution referred to: Art. 2, sec. 3. Cases cited and approved: Debardelaben v. State, 99 Tenn., 649; Railroad v. Clinton Co., 1 Ohio St., 88; Locke’s Appeal, 72 Pa., 4'91;. State v. Thompson, 160 Mo., 333; State v. Barringer, 110 N. C., 525; Commonwealth v. Abrahams, 156 Mass., 57; Commonwealth v. Davis, 140 Mass., 485; In re Nightingale, 11 Pick. (Mass.), 168; Commissioners v. Covey, 74 Md., 262; In re Fla-herty, 105 Cal., 558. Cases cited and disapproved: Jannin v. State, 42 Tex. Crim. Rep., 631; Allardt v. People, 197 Ill., 501. 3. SAME. Same. Same. Act prohibiting traffic in nontransferable signature passenger tickets is proper legislation under police powers. A statute (Acts 1905, ch. 410) prohibiting traffic in nontransferable signature passenger tickets issued and sold below the standard schedule rate by common carriers is legislation in the proper exercise of the police powers by the State to prevent fraud and the corruption of public morals. (Post, pp. 475-477, 488-490.) Acts cited and construed: 1905, ch. 410. Cases cited and approved: Note by Mr. Freeman to Jannin v. State, 42 Tex. Crim. Rep., 631, 96 Am. St. Rep., 821, 51 S. W., 1126, 62 S. W., 419; Burdick v. People, 149 Ill., 600; Fry v. State, 63 Ind,, 552; State v. Corbett, 57 Minn.,. 34'5; State v. Bernhein, 19 Mont., 512; Commonwealth, v. Wilson, 14 Phila. (Pa.), 384; Commonwealth v. Keary, 198 Pa., 500; Ex parte Tuttle, 91 Cal., 589. 4. SAME. Same. Same. Same. Such statute is not unconstitutional as class legislation. Such statute is not unconstitutional as class legislation suspending a general law for the benefit of particular individuals, namely, common carriers of passengers, because it is in the proper exercise of the police powers. (Post, pp. 475-477, 488-490.) Acts cited and construed: 1905, ch. 410. Constitution cited and construed: Art. 11, sec. 8. Cases cited and approved: See citations under headnote 3. 6. SAME. Same. Same. Samó. Same. Such statute is not unconstitutional as deprivation of property without due process of law. A statute (Acts 1905, ch. 410) prohibiting traffic in nontransferable signature passenger tickets issued and sold below the standard schedule rate by common carriers, and requiring the redemption of all partly or wholly unused tickets, is not unconstitutional as depriving the original purchaser of a property right without due process of law, because such a passenger ticket is a mere token of the purchaser’s right to be transported according to its terms, and is not property, nor is it to be treated as property in its general sense. (Post, pp. 475-477, 490, 491.) Acts cited and construed: 1905, ch. 410. Constitution referred to: Art. 1, sec. 8. Cases cited and approved: O’Rourke’s Case, 103 Tenn., 124; Ex parte Lorenzen, 128 Cal., 431; dissenting opinion in Tyroler’s Case, 157 N. Y., 116; and citations under headnote 3. 6. SALE. Act prohibiting traffic in nontransferable signature passenger tickets is not invalid in its application to interstate passenger travel. A statute (Acts 1905, ch. 410) prohibiting traffic in nontransferable signature passenger tickets issued and sold below the standard schedule rate by common carriers, in its application to such tickets issued and sold for passage from Tennessee into another State, is not invalid as an unwarranted interference with interstate commerce or interstate passenger travel. {Post, pp. 475-477, 491, 492.) Acts cited and construed: 1905, ch. 410. Constitution of the United States referred to: Art. 1, secs. 8 (3), 9, and 10. Cases cited and approved: Fry v. State, 63 Ind., 552; State v. Cor-bett, 57 Minn., 345. 7. SAME. Indeterminate statutes will not be enforced, when. When a statute is so indeterminate as to leave juries with their varying opinions to settle the standard, the statute will not be enforced. {Post, pp. 492, 493.) Cases cited and approved: Railroad v. Commonwealth (Ky. Sup. Ct., April, 1896), 35 S. W. 129; Cook v. State (Ind. App., Feb., 1901), 59 N. E., 489; Matthews v. Murphy (Ky.), 63 S. W„ 785, 54 L. R. A., 415; Ex parte McNulty, 77 Cal., 164; Ex parte Jackson, 45 Ark., 158. 8. SAME. Same. Statute not defining “standard schedule rates,” but enacted with reference to such rates established under existing laws is not invalid for vagueness, when. A statute (Acts 1905, ch. 410) prohibiting traffic in • nontransferable signature passenger tickets issued and sold “below the standard schedule rate” is not invalid for vagueness, uncertainty, and indeterminateness in failing to define the “standard schedule rate,” because the enactment is made, as to interstate commerce travel, with reference to the standard schedule rates established under the sixth section of the interstate commerce act of congress, and as to interstate railroad travel, with reference to the “standard schedule rates” established under our Acts, 1897, ch. 10, sec. 22. {Post, pp. 475-477, 492-495.) Acts cited and construed: 1897, ch. 10, sec. 22; 1905, ch. 410. 9. SAME. Act prohibiting traffic in nontransferable signature passenger tickets by all except the agents of the common carriers issuing same, who sell and redeem same only, is not objectionable, when. A statute (Acts 1905, ch. 410), making it unlawful for any person, other than the authorized agent of the common carrier issuing the same, to sell or otherwise deal in nontransferable signature passenger tickets issued and sold below the standard schedule rate, is not objectionable as prohibiting the business of dealing in such tickets by all persons except such agents, and as permitting such agents to deal in such tickets because the extent of the traffic in such tickets by such agents is confined to the selling of such tickets to the original purchasers and the repurchasing thereof by redemption for the common carriers. {Post, pp. 475-477, 495-499.) Acts cited and construed: 1905, ch. 410. 10. SAME. Grammatical construction usually adopted, but will be disregarded, when. In the construction of statutes, the grammatical sense of the words used is generally to be adopted, but if there is any ambiguity, or if there is room for more than one interpretation, the rules of grammar will be disregarded where a too strict adherence to them would raise a repugnance or absurdity, or would defeat the purpose of the statute. {Post, pp. 496-498.) Cases cited and approved: Manufacturing Co. v. Palls, 90 Tenn., 469; State, ex rel., v. Brewing Co., 104 Tenn., 715; Garby v. Harris, 7 Exch., 591; Met. Bo. Wks. v. Steed, L. R., 82, B. Div., 445; George v. B. of E., 33 Ga., 344; State v. Hernán, 70 Mo., 441; Railroad v. Herrick, 13 Bush. (Ky.), 122; Rutherford v. Green, 2 Wheat., 196; Babcock v. Goodrich, 47 Cal., 488.
116 Tenn. 500Memphis & State Line Railroad v. Union Railway Co. (1905)
1. STATUTES. Title or substance of a law amended by implication need not be recited in the amending statute. A statute amending an existing law by implication, and not expressly purporting to do so, need not recite in its caption, or otherwise, the title or substance of the law so amended, for the constitutional requirement of such recitation applies only where the amending statute expressly purports to amend an existing statute. (Post, pp. 512-514.) Acts cited and construed: 1875, ch. 142; 1887, ch. 39. Constitution cited-and construed: Art. 2, sec. 17. Cases cited and approved: Insurance Co. v. Taxing District, 4 Lea, 644; Maney v. State, 6 Lea, 218; Knoxville v. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; Poe v. State, 85 Tenn., 495; Railroads v. Crider, 91 Tenn., 506; Hunter v. Memphis, 93 Tenn., 571; State v. Yardley, 95 Tenn., 546, 559; Shelton v. State, 96 Tenn., 521; Henley v. State, 98 Tenn., 665; Railroad v. State, 110 Tenn., 598. 2. SAME. Repeals by implication apply to aU classes of legislation. Repeals by implication apply not only to police regulations, but to all classes of legislation. (Post, p. 514.) Cases cited and approved: Insurance Co. v. Taxing District, 4 Lea, 644; Ballentine v. Pulaski, 15 Lea, 633; Railroad v. Sadler, 91 Tenn., 508; Memphis v. Express Co., 102 Tenn., 336; Tyler v. King, 104 Tenn., 163. 3. SAME. No repeal by implication where there is no repugnance; case in judgment. There is no such repugnance between the statute (Acts 1887, ch. 39), authorizing railroads to change their termini before final location of lines, and tlie statute (Acts 1889, ch. 158), applying to the building of branch roads, as to work a repeal, by implication, of the former by the latter. (Post, p. 514.) Acts cited and construed: 1887, ch. S9; 1889, ch. 158. 4. SAME. Repugnancy must be wholly irreconcilable to work a repeal by implication. Repeals by implication are not favored, and the repugnancy between the latter and the former act must be wholly irreconcilable in order to work a repeal of the former. (Post, pp. 515-518.) Cases cited and approved: Buchanan v. Robinson, 3"Bax., 152; Insurance Co. v. Taxing District, 4 Lea, 344; State v. Wilson, 12 Lea, 251; State v. Bank, 16 Lea, 122; Frazier v. Railroad, 88 Tenn., 138, 163; Fisher v. Baldridge, 91 Tenn., 418; Burnett v-Maloney, 97 Tenn., 705; Blaufield v. State, 103 Tenn., 600. 5. SAME. Same. Insufficient repugnancy to effect a repeal by implication; case in judgment. There is no such repugnancy or inconsistency between the statute (Acts 1887, ch. 39), authorizing railroads to change their termini before final location of lines, and the statute (Acts 1897, ch. 116), granting to all corporations the right to obtain amendments to their charters in a certain way, as to work a repeal, by implication, of the former by the latter. (Post, pp. 514-518.) Acts cited and construed: 1887, ch. 39; 1897, ch. 116. 6. SAME. Special laws as to corporations prohibited by the constitution are such as designate particular corporations by name. The constitutional prohibition against the creation of corporations or the enlargement or diminution of their powers by special laws applies to laws for the benefit of particular corporations designated by name, and does not apply to a statute (Acts 1887, ch. 39) authorizing railroads to change their termini before final location of their lines. (Post, p. 518.) Acts cited and construed: 1887, ch. 39. Constitution cited and construed: Art. 11, sec. 8. 7. RAILROADS. Line not finally located so as to preclude change of terminus under statute, when; .case in judgment. The line of railroad has not been finally located, where it has been located, and the road constructed, from one terminus a considerable portion of the way towards, and within about three miles of, the other terminus, hut where the remainder of the line has not been located in any way, so as to preclude the fixing of the other terminus at a point beyond the point of construction, and beyond the terminus originally fixed in the charter, under a statute (Acts 1887, ch. 39), authorizing railroads to change their termini before final location of their lines. (Post, pp. 509-512, 518-524.) Acts cited and construed: 1887, ch. 39. 8. SAME. Building of parallel lines is not prohibited. There is no legislation which prohibits a railroad from building, or causing to he built, a railroad parallel to its own. (Post, p. 525.) 9. SAME. Same. Question of illegal construction of railroad cannot be collaterally raised in condemnation proceedings under eminent domain laws to obtain a right of way. In a condemnation proceeding under eminent domain laws to obtain a railroad right of way, the question cannot be collaterally raised whether such proposed road is controlled by another existing railroad, so as to render the construction of the proposed road illegal, because the two roads will be parallel and compet- . ing. (Post, pp. 524, 525.) Case cited and approved: Rogers v. Railroad, 91 Fed., 299, 33 C. C. A., 517. 10.SAME. City cannot defeat the exercise of eminent domain within its limits by withholding its consent for the occupation of its streets by the railroad. A municipal corporation cannot, by withholding its consent for a railroad company to operate its road within the city, or to cross its streets and alleys, defeat the exercise of eminent domain possessed by the railroad company in locating its line through the city, hut at most the city possesses only the power to regulate the location and construction of the road. (Post, p. 526.) 11. SAME. Same. Absence of city franchise cannot be interposed by landowner against condemnation proceedings to obtain right of way in city. In eminent domain proceedings by a railroad company to condemn land for a right of way within the limit of a city, the landowner cannot interpose the objection that the railroad company has not secured a franchise from the city to operate its road within the city limits or to cross its streets and alleys. (.Post, pp. 526, 527.) Cases cited and approved: Collier v. Railroad, 113 Tenn., 126; Railroad v. Kimball, 61 Cal., 90; Railroad v. Railroad, 87 Ill., 317; Railroad v. Dunbar, 100 Ill., 110; In re Railroad, 70 N. Y., 361; Stoughton v. Paul, 173 Mass., 14'8. IS. SAME. One railroad may condemn the land of another railroad for a right of way, when. One railroad is entitled to condemn a right of way over the land of another railroad, not in actual use by it, nor essential to the exercise of its franchises, and wholly unsuitable for the purpose for which it claimed the land to be valuable, especially where it does not appear that there is a more practicable and feasible route for the proposed new road. (Post, pp. 527-533.) Acts cited and construed: 1885, eh. 135. Cases cited and approved: Railroad v. Cemetery Co., 116 Tenn. 400; Railroad v. Railroad (C. C.), 41 Fed., 293; Railroad v. Railroad, 25 Am. & Eng. Railroad Cases, 164. 13. SAME, ^piscretion in locating route not controlled by courts, nor exercised by landowner in condemnation proceedings for right of way. ' The question of the most practicable and feasible route for a railroad is a matter left largely to the discretion of the railroad company, which discretion the courts cannot control, and in condemnation proceedings to obtain a right of way the landowner cannot defeat the condemnation by merely showing that some other route would be more practicable and feasible. (Post, p. 533.) Case cited and approved: Railroad v. Campbell, 109 Tenn., 655.
116 Tenn. 534Morrison v. State (1905)
1. POLICE POWER. Inherent and vested in the States beforé the federal union was not granted to the federal government, and remains in the States to be exercised for what. The police power inherent in the States was vested in them before the formation of the union or the federal compact, and not being among the enumerated powers granted to the federal government, it was reserved by the States to be exercised and administered, within their respective jurisdictions, for the preservation and promotion of the public order, the public welfare, and the public safety, and for the establishment of such rules and regulations, for the conduct of all persons, as may be conducive to the public interest. (Post, pp. 542-550.) Cases cited and approved: Theilan v. Porter, 14 Lea, 626; Webster v. State, 110 Tenn., 504; Martin v. Hunter, 1 Wheat., 304; Gibbons v. Ogden, 9 Wheat., 1; License Cases, 5 How., 504; Prigg v. Pennsylvania, 16 Pet., 539; Barbier v. Connolly, 113 TJ. S., 27; Mugler v. Kansas, 123 U. S., 623. 8. CONSTITUTIONAL LAW. Statute requiring separation of white and colored passengers on street cars is not unconstitutional for that reason. The statute (Acts 1905, ch. 150) requiring the separation of the white and colored passengers on street cars is a proper police regulation, and is not violative of the State constitution (art. 1, secs. 7 and 8; art. 11, sec. 8), nor of the federal constitution (am. 4th, 5th, and 14th), as abridging the privileges and immunities of the citizen and depriving him of the equal protection of the laws. (Post, pp. 542-550.) Acts cited and construed: 1905, ch. 150. Constitution cited and construed: Art. 1, secs. 7 and 8; art. 11, sec. 8 (State); am., 4th, 5th, and 14th (U. S.). Cases cited and approved: See first headnote (supra) and opinion (post, pp. 549, 550.) 3. SAME. Statute requiring separation of -white and colored passengers on street cars is not unconstitutional because it excepts nurses. • The statute (Acts 1905, ch. 150) requiring the separation of the white and colored passengers on street cars, hut providing that it shall not apply to nurses attending children or helpless persons of the other race, is not unconstitutional as arbitrary class legislation, for the reason that the classification is natural and reasonable. (Post, pp. 550-552.) Acts cited and construed: 1905, eh. 150, sec. 1. Constitution cited and construed: Art. 11. sec. 8. Cases cited and approved: Smith v. State, 100 Tenn., 494; .Plessy v. Ferguson, 163 U. S., 537, 541; Magoun v. Bank, 170 U. S., 283; Railroad v. Kentucky, 179 XJ. S. 388; Croom v. Schad (Fla.), 40 South., 495; Dell v. Marvin, 41 Fla., 221; State, ex rel., v. Terminal Co. (Fla.), 27 South., 221; Anderson v. Railroad, (C. C.), 62 Fed., 46. 4. SAME. Statute requiring separation of white and colored races on street cars is not unconstitutional because it authorizes conductors to change line of division and assignment of seats. The statute (Acts 1905, ch. 150) requiring the separation of the white and colored races on street cars is not unconstitutional, because it authorizes the conductors in charge of the cars to change the line of division in cars, and to assign seats to passengers in accordance with such change, for this is not an unlawful delegation of the police power to the agents of street car companies, in violation of the constitutional provision (art. 7, secs. 4 and 5; art. 11, sec. 17) as to the manner in which officers shall be elected, but is a requirement of the exercise of a power already existing by the common law in street car companies. (Post, pp. 552-554.) Acts cited and construed: 1905, ch. 150; sec. 2. Constitution referred to: Art. 7, secs. 4 and 5; art. 11, sec. 17. , Case cited and approved: Patterson v. Taylor (Fla.), 40 South., 495. 5. SAME. Statute for separation of white and colored passengers on street cars is not invalidated by exception of nurses, and delegation of authority to car conductors to change line of division and to change seats, even if these provisions were void. The provision in the statute (Acts 1905, ch. 150) for the separation of the white and colored races on street cars that nurses attending children and hei/»ness persons of the other race shall he excepted from its operation, and the provision that conductors in charge of cars shall have authority to change the line of division in the cars and to assign seats in accordance with the change, are both mere incidents to the real object of the statute, severable from it, and the law would have been enacted without them, and if they were void, the rest of the statute is not vitiated thereby. (Post, pp. 550, 551, 552.) Acts cited and construed: 1905, ch. 150; secs. 1 and 2. Case cited and approved: Lindsay v. Allen, 112 Tenn., 638. 6. SAME. Statute for separation of white and colored passengers on street cars is not unconstitutional as a deprivation of property rights and privileges without due process of law in requiring change of seats or to leave car, and misdemeanor for failure. The statute (Acts 1905, ch. 150) for the separation of white and colored passengers on a street car is not unconstitutional as depriving citizens of their property, rights, and privileges without due process of law, because it requires passengers of the two races to take the seats or places assigned them respectively in the first instance, or by direction of the conductor, upon a change of the line of division made by him, and upon refusal to do so, to leave the car, or be guilty of a misdemeanor. (Post, ■ pp. 554-556.) Acts cited' and construed: 1905, ch. 150, sec. 3. Constitution cited and construed: Art. 1, sec. 8 (State); am., •4th, 5th and 14th (U. S.). Cases cited and approved: Plessy v. Ferguson, 163 U. S., 537; Patterson v. Taylor (Fla.), 40 South., 495.
116 Tenn. 557Thompson v. Fidelity Mutual Life Ins. (1906)
1. LIFE INSURANCE. Mere indulgence in payment of premium does not waive forfeiture for nonpayment. Where a policy of insurance contains a stipulation that nonpayment of premiums, when due, shall work a forfeiture of the policy, mere voluntary indulgence in the payment of particular premiums, without agreement for like indulgence in respect of future premiums or a course of dealing implying such an agreement, does not constitute a waiver of forfeiture for failure to pay premiums when due. (Post, pp. 564, 565.) Cases cited and approved: Thompson v. Ins. Co., 104 U. S., 252; Easley v. Assn., 91 Va., 169; Crossman v. Assn., 14'3 Mass., 435. 2. SAME. Same. Case in judgment. The policy sued on provided that it should become null and void unless premiums thereon should be paid when due. Between the date of its issuance and the insured’s death, thirty-six premiums had matured on the policy. Seven of these were accepted after they were due, and two of the seven were accepted after the insured had executed a certificate of good health. Of the remaining five, two were forwarded by mail on the day they became due, leaving only three that were unconditionally accepted after maturity. The revival contracts recited that the policy had become forfeited for nonpayment of premiums, and contained an express agreement that the insured should pay his future premiums promptly. The insured died on January 14th, being in default of the. payment of the premium due on December 20th preceding. ° . Held,: That such facts were insufficient to establish an habitual course of dealing, justifying insured in believing that the insurer would not insist on a forfeiture of the policy for failure to pay premiums at maturity. (Post, pp. 562-566.) Cases cited and approved: Ins. Co. v. Hyde, 101 Tenn., 396; Ins. Co. v. Eggleston, 96 U. S., 572; Equitable Ass. Soc. v. McElroy, 83 Fed., 631. 3. SAME. Payment oí premiums after death. A course of dealing between insurer and insured whereby the insurer has accepted overdue premiums when the insured.was in good health, does not bind it to accept premiums for the purpose of avoiding a forfeiture where they are not tendered until after the insured’s death. {Post, pp. 566-570.) Cases cited and approved:' Crossman v. Assn., 143 Mass., 436; Ins. Co. v. Unsell, 144 U. S., 439; Assn. v. Miller, 85 Ky., 88; Thompson v. Ins. Co., 104 U. S., 257, 258; Klein v. Ins. Co., 104 U. S., 88; Carpenter v. Association, 68 Iowa, 453; Carlson v. Supreme Council, 115 Cal., 466, 474; Miller v. Union Central Ins. Co., 110 Ill., 104; Want v. Blunt, 12 East. Rep., 183; Pritchard v. Association, 3 C. B., 622. 4. SAME. ■ Premiums payable in installments — condition subsequent. Where an insurance policy provides that it shall become null and void for nonpayment of premiums at maturity, a failure to pay any installment when due works a forfeiture of the policy, even though the stipulation be construed as a condition subsequent. {Post, pp. 570, 571.) Cases cited and approved: Ressler v. Ins. Co., 110 Tenn., 411; Ins. Co. v. Lewis, 187 U. S., 335; Cline v. Ins. Co., 104 U. S., 88; Ins. Co. v. Statham, 93 U. S., 24. 5. SAME. Incontestable for causes other than nonpayment of premiums. Where a policy provided that it should be incontestable after three years if the premiums should be paid when due, such clause should be construed to mean that the policy should be incontestable for causes other than the nonpayment of premiums. {Post, p. 571.) 6. SAME. Policy forfeitable for nonpayment of quarterly premium is not extended by provision for deduction from amount of policy of balance due for current year. Where an insurance policy provides for the payment of premiums in quarterly installments upon certain designated dates, and' that it shall be forfeited for failure of the insured to pay the premiums when due, the insured will be held strictly to the performance of such condition, and the policy becomes void upon nonpayment as stipulated; nor is such result changed by a prior provision that, if the premiums are paid when due; the insurer will pay to the representative of the insured the face value of the policy “less the balance of the dues for the current year of the death of the insured.” (Post, pp.' 571-579.) ■Cases cited and approved; McConnell v. Assur. Soc., 92 Fed., 769; Howard v. Continental Ins. Co., 48 Cal., 229; Werner v. Ins. Co., 11 Daly (N. Y.), 176; Ins. Co. v. Sheridan, 8 H. L. Cas., 745. 7. SAME. No penalty where there is no liability. A party not entitled to recover upon a policy of life insurance cannot recover the penalty prescribed by the statute for the insur-aneé company’s withholding the amount alleged to be due thereon. {Post, p. 579.)
116 Tenn. 580St. Louis, Iron Mountain & Southern Railway Co. v. Hatch (1906)
1. VERDICT. Eor plaintiff for indignities inflicted upon her while a passenger in a railroad sleeping car is supported by the evidence stated. The evidence stated in the opinion is sufficient to support a verdict for four thousand and five hundred dollars in favor of the plaintiff in a.n action against a railroad company and a sleeping car company for indignities and outrages inflicted upon her by men while she was a passenger in the sleeper. (Post, pp. 582-590.) ¡3, SLEEPING CAR COMPANIES. Degree of care to be exercised toward passengers. A sleeping car company is required to exercise only ordinary and reasonable care and diligence in watching over its passengers to protect them from assault and injury. (Post, p. 590.) 3. COMMON CARRIERS. Degree of vigilance to be exercised toward passengers. Carriers of passengers are required to exercise a high, if not the highest, degree of vigilance to protect their passengers, not only from their own employees, but from fellow passengers and from strangers. (Post, p. 590.) 4. SAME. No complaint can be made of error in the charge by the party in whose favor the error was made. In an action against a railroad company and a sleeping car com.pany, based upon their negligence in failing to protect a passenger, the railroad company cannot complain that the trial judge imposed a lower burden upon it, as to the care required toward its passengers, than the law would exact. (Post, pp. 590, 691.) 5. SLEEPING CAR COMPANIES. Cannot complain of error in the charge made in favor of the railroad company jointly sued ■with it, when not injurious to it. In an action against a railroad company and a sleeping car company, based upon their negligence in failing to protect a passenger, the sleeping car company cannot complain of a charge imposing a lower burden upon the railroad company, as to the care required for the protection of its passengers, than the law would exact, where such error in favor of the railroad company did not result in injury to the sleeping car company, and where the charge as to the sleeping ear company was correct. (Post, pp. 590, 591.) 6. COMMON CARRIERS. Care required of railroads and sleeping car companies; liability for negligence is not escaped because injury to passengers was not anticipated. A railroad company and a sleeping car company cannot escape liability for indignities inflicted upon a passenger in the sleeper, upon the ground that there was no reason for supposing that any such wrong would be committed, where their employees were absent from the sleeper for two hours, and failed to-answer any of the numerous bell calls, for this is not the exercise of the vigilant care exacted of the railroad company, nor of the reasonable care required of the sleeping car company. (Post, pp. 591-593.) Cases cited and distinguished: Ferry Cos. v. White, 99 Tenn., 263; Connells v. Railroad, 93 Va., 44; Batton v. Railroad, 77 Ala., 591. 7. CHARGE OF COURT. Refusal of requests stating theory of one party is not error, where the charge is proper without stating the theory of either party, when. Where the trial judge properly charges the law so that it is an intelligent guide to the jury in' reaching a correct solution of the case, as they might adopt the theory of facts of the plaintiff or of the defendant, his refusal to charge requests embracing the theory of one party is not error, where he did not undertake to state the theory of either party, even though the propositions of law embodied in the requests are sound. (Post, p. 593.) 8. SUPREME COURT PRACTICE. Objection to charge not made in motion for new trial will not be considered by the supreme court, when. Assignments of error as to the charge of the trial judge not called to his attention in the motion for a new trial, as was required by a rule of the court, cannot be considered by the supreme court. (Post, p. 593.)
116 Tenn. 594Union Railway Co. v. Chickasaw Cooperage Co. (1906)
1. STARE DECISIS. Rule of property established as to part of a public promenade and public landing is applicable to the whole thereof. An adjudication and decision involving a part of a tract of land dedicated to a city for a public promenade and public landing and establishing a rule of property with respect thereto becomes-a rule of property as to the whole public promenade and public landing, which must be adhered to by the courts, regardless of the merits of the original legal controversy. {Post, pp, 611-615.) Cases cited and approved: Memphis v. Wright, 6 Yer., 498¡Wil-kins v. Railroad, 110 Tenn., 442. 2. SAME. Same. Decisions that city may make any disposition of a public promenade and public landing constitute a, rule of property giving it the right to divert it for a private use. Decisions adjudicating that a municipal corporation was the owner of land within its corporate limits dedicated for a public promenade and public landing, and had the right 'to make any disposition of it authorized by its- charter, though made in suits not involving a diversion of the land to a private purpose, constitute a rule of property which gives the city a right to divert " it to private uses. (Post, pp. 611-615.) Cases cited and approved: Memphis v. Wright, 6 Yer., 498; Wilkins v. Railroad, 110 Tenn., 4'42. 3. SAME. Same. Same. Adjudication of city’s power to lease out portions of public landing for private purposes is conclusive as to subsequent leases, when. A decision adjudicating that such portions of a tract of land dedicated for a public landing as are not needed for the use of the public for sucb purpose may be validly leased by the city to individuals for private purposes, that such leases are not ultra vires, and cannot be rescinded at the suit of the city, unless the land is needed for the immediate use of the public for a public landing, is conclusive of the validity and enforceability of subsequent leases executed by the city to individuals for private purposes. (Post, pp. 615-624.) Case cited and approved: Memphis v. Grace, MS., at Jackson, April term, 1874. 4. EMINENT DOMAIN. City’s grant for railroad and terminal facilities on its public landing does not terminate its previous leases, and the railroad must compensate the lessees. Where a city leases a part of the land, dedicated to it for a public landing, to individuals for private purposes, and thereafter grants, to a railroad corporation the right to construct railroad tracks and terminal- facilities on such parts so leased, the railroad’s occupation thereof with its tracks and terminal facilities is exclusive and inconsistent with the rights of the indefinite public and necessarily excludes the public from that part of the landing, but having the consent of the city, it may so occupy and use the public landing, provided it exercises its right of eminent domain, and makes compensation to the lessees. (Post, pp. 620-622.) Case cited and distinguished: Hardy v. Memphis, 10 Heis., 129.
116 Tenn. 624Illinois Central Railroad v. Johnson (1906)
I. DAMAGES. Eor ‘breach, of contract according to the usual course, or in the contemplation of the parties, when. Suer for the breach of a contract is entitled to recover damages which result from the breach according to the usual course ot things, or such as may be reasonably supposed to have been in the contemplation of both parties at the time the contract was made as the result of the probable breach of it. (Post, p. 632.) Case cited and approved: Hadley v. Baxendale, 9 Ex., 341. 3. SAME. Same. Special damages must be shown to have been in the contemplation of the parties, when. One who seeks to recover special damages for tlie breach of a contract, such as result from the cancellation of another time contract because of the delay of a common carrier in delivering freight within a reasonable time, must show that such damages were within the contemplation of both parties to the contract; otherwise, he can only recover such damage as, in the usual course of things, flow from the breach of the contract. (Post, pp. 632-634.) Cases cited and approved: Railroad v. Cabinet Co., 104 Tenn., 568; Machine Co. v. Compress Co., 105 Tenn., 187; Chisholm v. Canopy Co., Ill Tenn., 204; Hadley v. Baxendale, 9 Ex., 341. 3. SAME. Same. Same. Statement of shipper insufficient to affect common carrier with notice of time contract that might be canceled for delay in delivering goods. Statement of shippers of certain pipe and outfit for boring wells made to the railroad agent at the time of the shipment that the same was needed very badly, and that they were putting in another well at some place in Arkansas, does not give the railroad notice that the shippers had a time contract which would he forfeited in the event of a failure to deliver the pipe and outfit promptly, or that they were boring the well for others, and not for themselves, and was insufficient to charge the railroad with the loss of profits occasioned by the cancellation of the time contract for delay, and with the loss sustained in the purchase of other appliances for work. (Post, pp. 634-636.) 4. SAME. Same. Same. Same. Notice to common carrier, after shipment, of circumstances rendering special damages probable from delay, does not affect the original contract. Notice to the common carrier, after the goods have been shipped, of circumstances which render special damages a probable consequence of delay, does not affect the original contract so as to render the carrier liable for such dUmages, although the subsequent delay is unreasonable. (Post, pp. 636, 637.)' Cases cited and approved: Bradley v. Railroad, 94 i^is., 44; Railroad v. Belcher (Tex. Sup.), 35 S. W., 6; Smelting Co. v. Compress Co., 72 Ark., 275; Crutcher v. Railroad (Ala.), 85 S. W., 770, Am. & Eng. R. R. Cases (N. S., 39), 661. 6. PRACTICE. Question of notice of special circumstances as grounds for special damages for breach of contract is for jury, unless testimony is incontrovertible, and it is then for court. Whether or not the common carrier had notice of the special circumstances which are relied on as ground for the special damages claimed is usually a question of fact for the Jury to determine, but this is not so, where the testimony with regard to such notice is incontrovertible, clear, and distinct, for it is then a question of law for the court. (Pos.t, pp. 637, 638.) 6. DAMAGES. Nature of goods shipped is insufficient to affect common carrier with notice of special circumstances rendering special damages probable from delay, when. The mere delivery of iron pipe and other appliances for the boring of wells to a common carrier for transportation is insufficient of itself and by its nature to give notice to the carrier of the existence of a time contract held hy the shipper, who is the consignee, for the boring of a well for another, which might he affected by delay in the delivery of such freight. (Post, p. 638.) Oases cited and distinguished: Railroad v. Cobh, 64' Ill., 143; Railroad y. Ragsdale, 46 Miss., 458. 7. COMMON CARRIERS. Iiiable for usable rental value of that part of an equipment negligently delayed in delivery, but not for the whole equipment not included in the shipment. A common carrier guilty of negligent delay in the transportation and delivery of iron pipes and other appliances intended for use in the performance of a contract for boring a well for another is liable for the usable rental value of the iron pipes and other appliances so shipped, hut not for the rental value of the whole well boring equipment, where a part of the equipment was not included in the shipment. (Post, p. 639.) 8. VERDICTS. Not supported by the evidence of the usable rental value of an equipment, where only part of the equipment is involved, when. A verdict based upon testimony that the net rental value of a well boring outfit is so much per day where a common carrier' negligently delayed for a certain number of days the delivery of those parts of the equipment intrusted to it for transportation, where the other parts were not included in the shipment, is not supported by the evidence. (Post, p. 639.) 9. COMMON CARRIERS. Not converted into a tortfeasor, nor made liable in trover by consignee’s refusal to receive a delayed shipment. A consignee cannot, hy declining to receive from the common carrier a delayed shipment, convert the carrier into a tortfeasor and hold him liable in trover for the value of the property. (Post, p. 640.) 10.SAME. Same. Consignee compelled to buy new materials. because of delay of shipment cannot recover difference in value ' between shipment and cost of new materials after refusing tendered delivery of shipment. The shipper and consignee of iron pipes and appliances for boring -wells, compelled to purchase new pipes and appliances because of the common carrier’s delay in delivering the shipment, cannot after refusing to receive the delayed shipment when delivery is tendered, recover from the carrier the difference between the value of the refused shipment and the amount paid for the new materials. (Post, p. 640.)
116 Tenn. 641State National Bank v. City of Memphis (1906)
1. TAXATION. Payment of city taxes as under protest is not voluntary so as to prevent their recovery, when. Payment of city taxes by a bank is not voluntary, so as to preclude their recovery by the bank, where, by an agreement between the city and the bank, the bank was permitted to pay- the taxes as under protest, with recitals in the agreement that a distress warrant was about to be issued, and that the taxes were paid in view of that fact, and that the city agreed that it would not insist that such payment was voluntary. {Post, pp. 646, 647.) Acts cited and construed, 1873, ch. 44; 1903, ch. 268, sec. 25. Code cited and construed: Sec. 1069 (S.); sec. 926 (M. & V.). Cases cited and approved: Lea v. Memphis, 9 Bax., 103; Bright v. Holloman, 7 Lea, 309, 312; Railroad v. Williams, 101 Tenn., 146, 148; Bank v. Memphis, 107 Tenn., 66, 68, 73, 74. 2. SAME. Same. Bank paying taxes on its stock for its stockholders under protest may recover same, if illegally collected. A bank may properly pay the taxes assessed against its stock in the hands of its stockholders and if the payment is made under protest, it can sue for and recover such taxes if illegally collected, and may maintain the suit in its own name without joining the stockholders therein. {Post, pp. 647, 648.)» Acts cited and construed: 1903, ch. 258, sec. 25. 3. SAME. State bonds are not exempt from taxation by implication. There is no implied exemption of State bonds from taxation. {Post, pp. 648-653.) Cases cited, distinguished, and approved: Nashville v. Bank, 1 Swan, 269; Nashville v. Smith, 86 Tenn., 213; Smith v. Nashville, 88 Tenn., 464; and cases from other States on pages 648-653 of the opinion. 4. SAME. Statute exempting Tennessee State bonds from taxation against certain corporations is unconstitutional and void. Statute (Acts 1903, ch. 258, sec. 25) providing that, in computing the assessable value of the shares of stock in certain corporations, the a'ssessed value of the registered Tennessee State bonds shall be deducted from the value of the shares of stock, is an attempt to create an express exemption of such bonds from taxation, and is therefore unconstitutional and void. {Post, pp. 64'6, 653-656.) Acts cited and construed: 1903, ch. 258, sec. 25. Constitution cited and construed: Art. 2, sec. 28. Cases of other States and of the United States cited, approved, and reviewed on pages 654-656 of the opinion. 5. STATUTES. Unconstitutionality of part of a taxation statute does not prevent taxation, where the rest of the statute contains ample provisions therefor. An unconstitutional provision in a statute (Acts 1903, ch. 258, sec. 25) that the value of registered Tennessee State bonds shall be deducted from the value of shares of stock in certain corporations in assessing the shares of stock does not prevent an assessment for taxation, where the rest of the statute contains ample provisions for the assessment of the shares of stock in such corporations. {Post, p. 656.) 6. SAME. Amendment of a statute by amending the statute which it amended and became a part of. An amending statute (Acts 1879, ch, 84) becomes incorporated into the amended statute (Acts 1879, ch. 11, sec. 9), and a subsequent amendment of the subject-matter contained in the amending statute may be made by a statute (Acts 1903, ch. 366, sec. 3) purporting to amend the original statute without reference to the said amending statute. {Post, p. 656.) Acts cited and construed: 1879, ch. 11, sec. 9; 1879, ch. 84; 1903, ch. 366, sec. 3. 7. TAXATION. "Validity of acts of board of equalization of taxes cannot be questioned collaterally because one member •was not a freeholder. The contention that the act of the board of equalization of assessment of taxes was void, because one of its members was not a freeholder, as required by statute, is a question that cannot be made collaterally in an action to recover taxes paid under protest. (Post, pp. 656, 657.) 8. SAME. Assessment may be raised by board of equalization, though no appeal is prosecuted to the board by the person assessed. The board of equalization of the assessment of taxes has the power and jurisdiction to raise an assessment for taxes, though the person assessed and affected by such action has prosecuted no appeal to the board. (Post, p. 657.)
116 Tenn. 658Sugg v. Equitable Life Assurance Society (1906)
1. LIFE INSURANCE. Nonpayment oí premium after payment ol so many premiums and death of assured entitles beneficiary to proceeds of paid up policy, and not of term policy, when. Where a life insurance policy provides that it shall be forfeited on the nonpayment of any premium, except that, when premiums have been paid for periods shown by certain tables in the policy, there will be granted, without any action on the part of the assured, paid up life assurance for the amount fixed in said table, or in lieu thereof, at the option of the assured, (1) the cash value fixed in said table, upon the due surrender of the policy, or (2) provided this policy is surrendered within the thirty days of grace, or with satisfactory evidence of good health within one year thereafter, a paid up term policy for the full amount thereof for the time stated in said table, the failure to pay a premium and failure to exercise any option and the subsequent death of the assured entitles the beneficiary to the proceeds of a paid up policy only, and not to the proceeds of the term insurance. (Post, pp. 660-667.) Cases cited and approved: Anderson v. Insurance Co. (oral opinion); Knapp v. Insurance Co., 117 U. S., 414; Insurance Co. v. Meinert, 199 U. S., 171; Cravens v. Insurance Co., 148 Mo., 611; Schneider v. Insurance Co., 123 N. Y., 114. 2. SAME. Demurrer to bill for collection of policy should be overruled, where the bill shows forfeiture obviated by statements of a duly authorized agent of the insurance company. Where a bill in chancery to collect a life insurance policy alleges that complainant, the assignee of the policy, called at the office of the insurer on the day that the premium was due for the purpose of paying the same, and so informed the duly authorized agent of the insurer, and that he was informed by said agent that the insurance company had granted an extended term insurance to the insured, and promised to notify the assignee, if such insurance had not been extended, but that said agent and said company failed to do so, a demurrer to said bill should have been overruled, answer permitted, and proofs allowed. (Post, pp. 667-671.) 3. SAME. Same. Estoppel to insist on forfeiture obviated by statements of the company’s duly authorized agent. A life insurance company is estopped to insist on a forfeiture of the policy, where the insured, or his assignee, is misled by the statements of the duly authorized agent of the company, and is thereby caused to pursue a course that creates ground for forfeiture, although the policy provides that it and the application constitute the contract, which cannot be varied, except in writing by certain executive officers, and the said duly authorized agent is not one of them. (Post, pp. 669-671.) Cases cited and approved: Insurance Co. v. Booker, 9 Heis., 606; Murphy v. Insurance Co., 3 Bax., 440; Insurance Co. v. Fallow, 110 Tenn., 720; Leslie v. Insurance Co., 63 N. Y., 27.
116 Tenn. 672Mobile, Jackson & Kansas City Railroad v. Hayden (1906)
1. VERDICTS. Evidence of facts sufficent to support verdict in favor of plaintiff for breach, of contract of employment. Evidence of facts stated sufficient to support a verdict in favor of the plaintiff in a suit against a railroad company for the breach of its contract of employment of plaintiff, unconditionally for one year after defendant had investigated his qualifications, as chief engineer in charge of its construction wort. (Post, pp. 674-678.) 2. MASTER AND SERVANT. In suit for breach of contract oi employment by wrongful discharge, burden of proof of defense of incompetency rests upon defendant, when. In a suit by the employee against the employer for a discharge in breach of a contract of employment alleged by the employer to be dependent upon the contingency that the employee should prove to be capable, efficient, and satisfactory, the burden of proof rests on the employer to show the employee’s incompetency and inefficiency alleged as the cause of the discharge. (Post, pp. 678-681.) Cases cited and approved: Jones v. Transportation Co. (Mich.), 16 N. W., 893; Daggett v. Johnson, 49 Vt., 345. Cases cited and distinguished: Allen v. Compress Co. (Ala.), 14 South., 362; Cline v. Libby (Wis.), 49 N. W., 832, 32 Am. Rep., 700; Gibson v. Cranage (Mich.), 33 Am. Rep., 351; McCarren v. McNulty, 7 Gray (Mass.), 139; Tyler v. Ames, 6 Lans. (N. Y.), 280; Daniels v. Decatur Co., 99 Iowa, 440; Sax v. Railroad, 125 Mich., 252; Koehler v. Buhl, 94 Mich., 496; Prary v. Rubber Co., 52 Minn., 264; Rossiter v. Cooper, 23 Vt., 522; Evans v. Bennett, 7 Wis., 404. 3. STATUTE OF FRAUDS. Contract of employment to be performed in one year from acceptance and beginning of ■work need not be in writing. Where in an action for the breach of a contract of employment by a wrongful discharge, it appeared that the defendant proposed to employ the plaintiff on the tenth day of August for a period of twelve months, beginning on the thirteenth day of August, which proposition the plaintiff took under advisement and thereafter, on the said thirteenth day of August, accepted the proposition and immediately on that day entered upon the discharge of his duties, the contract was not within the statute of frauds requiring contracts to be performed within the space of one year from the making thereof to be in writing. (Post, pp. 681-683.) Code cited and construed: Sec. 3142 (S.). Cases cited and approved: Leinau v. Smart, 11 Hum., 308; Dea-son v. Railroad, 12 Heis., 654; Railroad v. Staub, 7 Lea, 400. 4. PLEADING AND PRACTICE. No error in allowing amended declaration not prejudicial to defendant’s rights. The action of the trial judge in allowing an amended declaration not resulting in prejudice to the defendant’s rights will not be disturbed by the supreme court, as it is a matter that addresses itself to the discretion of the trial judge, under our liberal statutes of amendment. (Post, p. 684.) 5. VERDICTS. For breach of contract of employment by a wrongful discharge allowing salary for unexpired term less amount earned at other employment is not excessive. A 'verdict for more than forty dollars less than the sum stipulated as'salary for the balance of the unexpired term of employment after a breach of the contract by a wrongful discharge, where the discharged employee made an honest effort to get other employment, but was unable to earn more than forty dollars, is not excessive. (Post, p. 684.)
116 Tenn. 685Madison County v. Alexander (1906)
MEMBER OF COUNTY COURT. Cannot recover for supplies . furnished to county •workhouse. It is unlawful for a .member of the county court to sell supplies to the superintendent of the county workhouse for use and consumption therein; and a suit to recover for the value of' articles thus sold and delivered cannot be maintained, although they were proper articles of food, needed by the workhouse department, and worth the price charged for them. Code cited and construed: Secs. 1133, 1134 (S.); secs. 1000, 1001 (M. & V.); secs. 811a, 811b (T. & S.). Cases cited and approved: Hope v. Hamilton County, 101 Tenn. 331; Tool Co. v. Norris, 2 Wall. 4'5; Lodge v. Crary (Ind.), 49 Am. R., 749; City of Ft. Wayne v. Rosenthal (Ind.), 39 Am. R., 12.7.
116 Tenn. 690McCaslin v. McCord (1906)
1. WARRANT OF ARREST. Issued in any county. Executed by any lawful officer in any county. A warrant for the arrest of any person charged with a violation of the criminal laws of this State may be issued in any county where the accused may he found; and may he executed by any lawful officer of the State into whose hands such warrant may come, in any county of the State. Case cited and approved; Johnston v. State, 2 Yerg. 58. Code cited and construed: Sees. 6988, 6989 (S.); secs. 5854, 5855 (M. & V.); sec. 5029 (1858). 2. ARREST. Of escaped prisoner. By private person, or by officer without warrant, when pursuit is immediate. Under the Code provisions, a private person may immediately pursue and recapture one charged with crime who had been lawfully arrested by him; and a fortiori, an officer may make such immediate pursuit and recapture, without a warrant, where a person charged with crime has escaped, whether from jail or from the personal custody of the officer. Code cited and construed: Sec'S. 7002-7007 (S.); secs. 5868-5872 (M. & V.); secs. 5042-5047 (1858). 3. SAME. Same. Cannot be made by private person, or by officer without warrant, except on fresh pursuit. Neither -a private person, nor an officer without a warrant, may lawfully arrest a person who has escaped from jail or from custody, when the pursuit is not immediate or fresh. Code cited and construed: Same sections cited under headnote 2. 4. SAME. Same. By private person. Mot authorized hy Shannon’s Code, 7002-7005, except when escape is a felony. The provisions of Shannon’s Code, sections 7002-7005, do not authorize any private person to make an arrest for an escape, except in those instances in which the escape itself is by law a felony. Code cited and construed: Secs. 6684, 7002-7005, 7552, 7566 (S.); secs. 5574, 5868-5871, 6405, 6416 (M. & V.); secs. 4779, 5042-5045, . 5533, 5544 (1858). 5. SAME. Same. With exceptions stated, no authority to make without warrant. With the exceptions stated in the foregoing headnotes, and the further exception of immediate pursuit for recapture under sections 7006, 7007, Shannon’s Code, there is no authority conferred by our statutes upon a private person, or an officer without a warrant, to make an arrest for an escape. Code cited: Secs. 7006, 7007 (S.); secs. 5872, 5873 (M. & V.); secs. 5046, 5047 (1858). Cases cited and distinguished: Eanes v. State, 6 Humph. 53; Lewis v. State, 3 Head, 128. i 6. SAME. By private person without-warrant. Code provisions cover whole subject. The sections of the Code cited below were intended, by the legislature, to cover the whole subject of arrest, without a warrant, by a private person; and the common law on that subject is not in force in this State. Code cited and construed: Secs. 6992-6996, 7002-7007 (S.); secs. 5858-5862, 5868-5873 (M. & V.); secs. 5032-5036, 5042-5047 (1858). 7. SAME. Same. In original arrest for felony, may break into dwelling of the felon, but not of a stranger. A private person seeking to make an arrest for felony may, after, notice of his intention and refusal of admittance, break open an outer or inner door, or window, of the dwelling house of the person sought to be arrested, but not of a stranger. Code cited and construed: Sec. 7004 (S.); sec. 5870 (M. & V.); sec. 5044 (1858). 8. SAME. Same. Where felon escapes from his custody, he may, if pursuit is fresh, break into any dwelling where felon is. But having arrested a person for a felony, a private person may, upon an attempted escape from his custody and upon immediate . and fresh pursuit, after notice of his intention and refusal of admittance, break open the outer or inner door, or window, of any dwelling house in which the fleeing criminal has sought refuge. {Post pp. 706-708.) Code cited and construed: Sec. 7007 (S.); sec. 5873 (M. & V.); sec. 5047 (1858). ' Cases cited: Brooks v. Com., 61 Pa. St., 352; Com. v. McGahey, 11 Gray (Mass.), 194; Com. v. Reynolds, 120 Mass., 190; Com. v. Irwin, 1 Allen, 587; State v. Hunter (N. C.), L. R. A., 533, note; State v. Brown, 5 Har. (Del.), 505; Barnard v. Bartlett, 10 Cush. (Mass.), 501; Davis v. Russell, 5 Bing., 354; Ryan v. Donnelly, 71 Ill., 100. 9. SAME. Same. To justify arrest, must show that felony has been committed, and reasonable cause to believe person arrested committed it. A private, person making an arrest for an offense not committed in his presence must, in order to justify his act, show that a felony had been committed, and that he had reasonable cause to believe that the person arrested committed it. Code cited and construed: Sec. 7002 (S.); sec. 5868 (M. & V.); sec. 5042 (1858). 10. SAME. By officer. May justify by stowing charge of felony, and reasonable cause to believe felony committed and person arrested committed it. An officer may justify an arrest made by Mm for a felony not committed in Ms presence by showing that a charge had been made of the commission of a felony, and that he had reasonable cause to believe that such felony had been committed and that the person arrested had committed it. Code cited and construed: Sec. 6997, subsec. 4 (SO; sec. 5863, subsec. 4 (M. & V.); see. 5037, subsec. 4' (1858). 11. SAME. With exceptions named, not intended that private citizens should pursue criminals into other counties. It is not within the contemplation of our statutes that private citizens of one county should take it upon themselves to go into other counties, without a warrant, in search of criminals, .except in cases of fresh pursuit of a fleeing felon endeavoring to avoid immediate capture, in an original arrest or on immediate pursuit after arrest and escape. IS. SAME. (Private citizen has no right to break open doors in making arrest, when. Case in judgment. A criminal confined in the jail of H county, pending his appeal from a conviction of a felony in that county escaped from jail and went to B county. The sheriff of H county notified the sheriff of B county of the escape, and asked him to arrest the criminal. The sheriff of B county attempted to make the arrest, but the criminal escaped into G county. About a week later, the sheriff of B county, accompanied by others, went into G county for the purpose of arresting the criminal. They had no warrant for his arrest. 'Held, that the sheriff and his assistants acted as private citizens in attempting to arrest the criminal in G county, and as the criminal had not escaped from them, and they were not in fresh pursuit, they had no right to break open the outer or inner door of the dwelling house of a stranger, wherein they believed the criminal was seeking refuge.
116 Tenn. 711State v. Bradley (1906)
FORGERY. May be committed by type-writing. The crime of forgery may be committed by typewriting the body of and signature to an instrument which may be the subject of forgery.
116 Tenn. 713Heard v. State (1906)
1. ARSON. Proof of ownership must correspond with allegations. Upon the trial of one indicted for arson, the proof of ownership must correspond with the allegations of the indictment, and a variance in this particular is fatal. Case cited and approved: Walker v. State, 2 Tenn. Cas., 420. 3. SAME. Same. Proof of occupancy sufficient proof of ownership. Arson is an offense against the security of the habitation rather than the property, and proof of actual occupancy by one in whom ownership is laid in the indictment is not a variance, but is sufficient proof of ownership. Cases cited and approved: People v. Van Blarcom, 2 Johns. (N. Y.), 105; Davis v. State, 52 Ala., 357; Adams v. State, 62 Ala., 177; Wiley v. State (Texas), 31 S. W., 393; Rex v. Wallace, 1 Mo. C. C., 344; Burger v. State, 34 Neb., 397; State v. Gailor,-71 N. C., 88.
116 Tenn. 718Turner v. Abbott (1906)
FROM OBION. Appeal from the Chancery Court of Obion County.— John S. Cooper, Chancellor.
116 Tenn. 736Galloway v. City of Memphis (1906)
1. AMENDATORY ACT. Becomes part of original act. To amend, sufficient to recite title or substance of original act. An amendment becomes a part of the original act, and where amendments .to a statute are sought to. be amended, it is not necessary to refer to them, but it is sufficient to recite in the proposed amendatory act the title or substance of the original act, of which said amendments have become part. Case cited and approved: Goodbar v. Memphis, 113 Tenn., 23. 3. SAME. Title need not recite character of amendment, if germane to original act. The title of an amendatory statute need not indicate the particular character of the amendment proposed, provided the purview of the statute is germane to, and embraced within, the title of the original act, and that title is recited. Cases cited and approved: Hyman v. State, 87 Tenn., 109; State v. Algood, 87 Tenn., 163; State ex rel. Butler v. Patterson et al., MS., Nashville, December term, 1903. 3. SAME. Same. Same. Case in judgment. ' A provision for a uniform rate of taxation on real and personal property is germane to, and embraced within, the title of an act to establish taxing districts, and to provide the means for local self-government for the same. Acts cited and construed: 1906, ch. 345; 1879, ch. 11. 4. STATUTES. Act extending limits of city, and exempting annexed territory from prior debts, not a contract. An act of the legislature extending the' corporate limits of a city, and providing that the annexed territory shall not be liable for any of the debts of the city outstanding at the time of such annexation, does not create a contract whose obligation cannot be impaired by subsequent legislation, but merely grants privileges which may be revoked at any time by the general assembly. Acts cited and construed: 1899, ch. 134; 1869-70, ch. 26 (Private Acts); 1867-8, ch. 36 (Private Acts). Cases cited and approved: McCallie v. Chattanooga, 3 Head, 317; Memphis v. Memphis Water Co., 6 Heisk., 527; McKinney v. Hotel Co., 12 Heisk., 119; Carriger v. Morristown, 1 Lea, 118; Luehrman v. Taxing District, 2 Lea, 433. 5. SAME. In construing, doubts will be resolved against exemptions claimed under. The rule is that in construing statutes under which exemptions from taxation are claimed, all doubts must be resolved in favor of the State and against the exemption. 6. SAME. Hot presumed that legislature .intended to pass a nugatory act. It will not be presumed that the legislature intended to pass an act that could have no force; and such construction will not be adopted, when the act is susceptible of one which renders it operative. 7. SAME. “Boyle Act” valid and operative. Casein judgment. By acts of the general assembly, in 1869 and 1899, respectively, certain territory was annexed to the city of Memphis, and in each case it was provided that the annexed territory should not be liable for the existing debts of the city, whereby there were three different tax rates in the city at the time of the passage of ch. 345, Acts 1905, known as the “Boyle Act,” which provided that there should be a uniform tax rate upon all property within the limits of the city without discrimination on account of the location or character of such property, but that property exempt from taxation under existing laws should not be affected. Held, 1. The “Boyle Act” (1905, ch. 345) is constitutional; 2. The legislature had power, and the act was effective, to destroy the partial exemptions theretofore existing in the annexed territory; 3. It was the object of the act to mate taxation uniform throughout the city; and that, under a proper construction, its effect is to remove and destroy the exemptions provided by said acts of 1869 and 1899, and to make the property of the localities theretofore partially exempt subject to the same rate of taxation as like property in all other localities in the city. Act cited and construed: 1905, ch. 345.