Volume 118 — Tennessee Reports

<p>1. CONSTITUTIONAL LAW. Requirement as to noting on the journals the fact of the signing of bills by speakers is directory, and not mandatory.</p> <p>The constitutional provision requiring the fact of the signing of legislative bills by the respective speakers In open session to be noted on the journals is merely directory, and not man* datory. (Post, pip. 6-15.)</p> <p>Acts cited and construed: 1885, ch. 66.</p> <p>Const, cited and construed: Art. 2, sec. 18.</p> <p>Cases cited and approved: State v. McConnell, 71 Tenn., 341; Gaines v. Horrigan, 72 Tenn., 611; Williams v. State, 74 Tenn., 553; Brewer v. Huntingdon, 86 Tenn., 737; State, ex rel., v. Algood, 87 Tenn., 163; Nelson v. Haywood County, 91 Tenn., 596; Railroad y. Telegraph Co., 101 Tenn., 66; and numerous cases from other States cited in the opinion on pages 10-13.</p> <p>3. SAME. Same. Act signed by speakers and approved by governor is properly passed, unless contrary is shown by journals; case in judgment.</p> <p>An act signed by the'speakers of the senate and house, and approved by the governor, will be treated as properly passed, unless the contrary is shown by the journals, and the contrary is not so shown where the house journal fails to show that it was signed by the speaker m open session. (Post, pp. 6-15.)</p> <p>See citations under first headnote.</p> <p>3. TELEGRAPHS AND TELEPHONES. Telegraph corporation cannot do a telephone business under its telegraph charter.</p> <p>A telegraph corporation is not authorized to install a telephone plant or system and do a telephone business under a telegraph charter. (Post, pp. 15-23.)</p> <p>Code of 1858 cited: Sec. 1316.</p> <p>Acts cited and construed: 1849-50, ch. Ill; 1875, ch. 142, sec. 8; 1885, ch. 66; 1889, ch. 204.</p> <p>Cases cited and approved: Richmond v. Telephone Co., 174 TJ. S., 761; Toledo v. Telegraph Co., 46 C. C. A., 111.</p> <p>4. TELEPHONE CORPORATIONS. For transmission of messages were not authorized before Acts of 1907, ch. 134.</p> <p>Before the passage of the Talbert bill (Acts 1907, eh. 134), there was no statute in Tennessee authorizing the incorporation of telephone companies for the transmission of- messages. (Post, pp. 18, 19.)</p> <p>Acts cited and construed: 1875, ch. 142, sec. 8; 1883, ch. 232; 1885, ch. 66.</p>

<p>1. CHARITABLE INSTITUTIONS. Not liable for personal injuries resulting from the negligence of their officers, agents, trustees, or managers, when.</p> <p>A charitable institution incorporated for purely educational purposes and operated and conducted, from charitable bequests, as an eleemosynary corporation, whose foundations were laid in charitable donations to be held in trust as a public charity, according to the express will of the donors, and whose whole property has come from such charitable gifts, and constitutes a charitable use, is not liable for personal injuries resulting to one of its students from its negligence in failing to erect fire escapes as required by city ordinance and State statute. Such charitable institutions are exempt from liability for the negligence of their officers, agents, trustees, or managers. Such trust funds cannot be appropriated or applied to the payment of damages for injuries resulting from the negligence of the managers thereof.</p> <p>Acts cited and construed: 1899 ch., 178.</p> <p>Cases cited and approved: Franklin v. Armfield, 2 Sneed, 305; Hospital v. Ross (House of Lords Cases), 12 Clark & Finnelly, 507; Duncan v. Fjndlater, 6 Clark & Finnelly, 894; Downes v. Hospital, 101 Mich., 555; Insurance Co. v. Boyd, 120 Pa. St., 624; McDonald v. Hospital, 120 Mass., 432; Benton v. Hospital, 140 Mass., 13; Perry v. House of Refuge, 63 Md., 20; Parks v. University, 218 Ill., 381; Williamson v. School (Ky.), 23 L. R. A., 200, note.</p> <p>Cases cited and distinguished: Merse Dock Trustees v. Gibbs, 11 House of Lords, 686; Coe v. Wise, 5 Best & S. M., 440, 4 New Rep., 354; Glavin v. Hospital, 12 R. I., 411; Maia v. Hospital, 97 Va., 507; Trevett v. Association, 98 Va., 332; Sweeney v. Railroad, 10 Allen (Mass.), 368; Stewart v. Harvard College, 12 Allen (Mass.), 58; Davis v. Church., 129 Mass., 367.</p> <p>2. SAME. Same. Rule not qualified by requirement of pupils to pay tuition and board.</p> <p>Tbe doctrine stated in the foregoing headnote is not qualified by the fact that the corporation administering the trust required its pupils to pay tuition and board. (Post, p. 38.)</p> <p>Cases cited and approved: Andrews v. Andrews, 110 Ill., 223; Parks v. University, 218 Ill., 381.'</p> <p>3. SAME. Same. Rule not qualified by charter provision that it "may sue and be sued.”</p> <p>The doctrine and rule of exemption stated in the first headnote is not qualified by the fact that the charter of incorporation of the charitable institution provides that it “may sue and be sued.” There is abundant scope for the operation of this power and right without overturning the principle announced in the first headnote. (Pos#, p. 38.)</p> <p>Acts cited and construed: 1865-66 (private), ch. 115, sec. 2.</p> <p>4. SAME. Managers are liable in damages for personal injuries resulting from their negligent failure to erect fire escapes.</p> <p>For personal injuries resulting to a student of a charitable institution from the negligence of the managers of the institution in failing to erect fire escapes, an action will lie against them for the damages. (Post, p. 38.)</p>

<p>1. HUSBAND AND WIFE. Estate by entirety. Survivor tabes under grant, and not by inheritance from deceased.</p> <p>Where land is conveyed to husband and wife to hold as tenants by entireties, the survivor, upon the death of the other, becomes vested of the entire estate by virtue of the grant or deed conveying the property to them — the interest of the deceased being terminated by his or her death — and in such case the survivor does not inherit, acquire, or otherwise take, any interest or estate in the lands from or through the deceased husband or wife.</p> <p>Cases cited and approved: Johnson v. Lusk, 46 Tenn., 115; Cole Mfg. Co. v. Collier, 95 Tenn., 121; Stuckey v. Keefe’s Executors, 26 Pa., 397; Thornton v. Thornton, 3 Rand. (Va.), 179; Bertles v. Nunan, 92 N. Y., 156.</p> <p>2. SAME. Husband feloniously killing wife takes no interest in her property, and question of forfeiture provided against in constitution does not arise.</p> <p>Where the husband feloniously kills his wife, he acquires no estate in her property by virtue of his marital rights as surviving husband, and therefore has nothing in it to forfeit, and the question of forfeiture provided against by the constitutional provision that “no conviction shall work corruption of blood or forfeiture of estate” does not arise.</p> <p>Case cited and approved: Box v. Lanier, 112 Tenn., 393.</p> <p>S. SAME. Husband feloniously killing wife does not forfeit estate as tenant by entirety.</p> <p>The statute (Acts 1905, ch. 11) providing, in substance, that any person who shall feloniously kill, or procure to be killed, any one from whom such person so killing, etc., would inherit property of any kind belonging to such deceased person, shall forfeit all right, interest and estate in and to said property, etc., does not apply to an estate held by husband and wife as tenants by entireties, so as to forfeit the estate vested in the husband on the wife’s death, although he feloniously caused her death.</p> <p>Act cited and construed: 1905, ch. 11.</p> <p>4. ACTS 1905, CH. 11. Construction of. Affects only new rights acquired by slayer from death of one feloniously killed. Does not forfeit vested estates.</p> <p>Said act (1905, ch. 11) can only affect new rights or property interests which would be acquired by one guilty of a felonious killing from the person killed, and it cannot operate to forfeit estates vested in the perpetrator, or procurer, of such felonious killing irrespective of the death of the person killed; otherwise, the act would be void as in conflict with the provision of the constitution that “no conviction shall work corruption of blood or forfeiture of estate.”</p> <p>Constitution cited: Art. 1, sec. 12.</p>

<p>1. CHARGE OF COURT. As to railroad’s 'whistling' and ringing bell near and within city that is not confusing or conflicting.</p> <p>Where, in an action against a railroad company for injury to a traction engine by collision with the railroad engine, at a crossing, within the corporate limits of a city and about a quarter of a mile from the depot, the court’s charge that the whistle must be sounded or the bell rung one mile from the corporate limits and at short intervals thereafter until the train reached the depot, and, again, in a subsequent part, that it was the duty of the company to sound the whistle or ring the bell until the train reached the place of the accident, was not confusing, as containing statements in. conflict with each other. (Post, pp. 57-59.)</p> <p>Code cited and construed: Sec. 1574, subsec. 3 (S.); sec. 1298, subsec. 3 (M. & V.); sec. 1166, subsec. 4 (T. & S. and 1858).</p> <p>2. SAME. Same. Erroneous as confusing or as requiring plaintiff’s contributory negligence to exonerate a railroad after its full compliance with the statutory precautions.</p> <p>The court’s charge, in an action against a railroad company for injuries to a traction engine by a collision with the railroad engine, at a crossing, that if the company complied with the statute by sounding the whistle or ringing the bell at a mile from the corporate limits of the city in which the accident occurred, and by continuing to blow the whistle or ring the bell at intervals until it reached its station, and by keeping some one on the lookout ahead, who, seeing the traction engine approaching the railroad track, put on the brakes, blew the whistle and reversed the engine and did everything that could be done to stop the train, the plaintiff, if guilty of contributory negligence, directly or proximately causing or contributing to the injury, cannot recover, was erroneous, if construed to authorize the jury to inquire, after finding that the company had done everything required of it by the statute, whether the plaintiff was guilty of negligence, and find that he was so guilty before the company could be exonerated from liability; and if this be not the true construction, then the passage is without meaning, and was of a nature calculated to confuse the jury. (Post, pp. 59, 60.)</p> <p>3. PLEADINGS. First count in declaration alleging railroad’s failure to comply with statutory precautions and second count omitting such allegations may both be under the statute.</p> <p>In an action against a railroad company for an injury to a traction engine by collision with the railroad engine, at a crossing, the two counts in the declaration both alleged that the injury was inflicted on the traction engine while upon the railroad track. The first count specifically alleged that the statutory precautions contained in subsection 4 of section 1574 of Shannon’s Code were not complied with. The second count was the same in substance, merely omitting the allegations of noncompliance with such statutory precautions. Held: Both counts stated a cause of action under the statute, making it incumbent on the railroad company to show a compliance therewith' just as fully as if a failure to comply had been alleged in both counts. Alleging or failing to allege such statutory precautions, is not sufficient to distinguish the nature of the two counts, and to indicate that the one is under the statute and the other under the common law. (Post, pp. 60-62'.)</p> <p>Code cited and construed: Sec. 1574, subsec. 4 (S.); see. 1298, subsec. 4 (M. & V.); sec. 1166, subsec. 5 (T. &'S. and 1858).</p> <p>Cases cited and approved: Railroad v. Pratt, 85 Tenn., 9; Patton v. Railroad, 89 Tenn., 370; Railroad'v. Howard, 90 Tenn. 144; Rapid Transit Company v. Walton, 105 Tenn., 415, 427, et seq.; Railroad v. Satterwhite, 112 Tenn., 185.</p> <p>4. CHARGE OF COURT. Erroneous as to distinct common law liability in an action based upon defendant railroad’s statutory liability, when.</p> <p>In an action against a railroad company for injury to a traction engine by collision with tbe railroad engine, at a crossing, based, as shown in tbe declaration, on the company’s failure to comply with the statutory precautions contained in subsection 4 of section 1574 of Shannon’s Code, it was error to charge anything upon the common law liability, except in so far as the statute is concurrent with the common law, for such charge on the distinct common law liability in such case inevitably tends to confuse the jury. {Post, pp. 60-64.)</p> <p>Code cited and construed: Sec. 1574, suhsec. 4 (S.); sec. 1298, subsec. 4 (M. & V.); sec. 1166, suhsec. 5 (T. & S. and 1858).</p> <p>Cases cited and approved: Railroad v. Howard, 90 Tenn., 144, 147, 149, et seq.; Rapid Transit Co. v. Walton, 105 Tenn., 415, 427.</p> <p>5. SAME. Must be applicable to pleadings, and if not justified by pleadings, it is erroneous.</p> <p>In an action against a railroad company for injury to a traction engine by collision with the railroad engine, at a crossing, based, as shown in the declaration, on the company’s failure to comply with the statutory precautions contained in subsection 4 of section 1574 of Shannon’s Code, an instruction defining the duty of the company on seeing the traction engine approaching the railroad track under such circumstances as to indicate' that the driver thereof had not seen or heard the approach of the train, and that he would probably go forward and enter upon the track just as if the train were not coming, was erroneous, because not justified by the pleadings. {Post, pp. 64, 65.)</p> <p>Code cited and construed: Sec. 1574, suhsec. 4 (S.); sec. 1298, suhsec. 4 (M. & V.); sec. 1166, suhsec. 5 (T. & S. and 1858).</p> <p>Cases cited and approved: Railroad v. Anthony, 1 Lea, 516; Railroad v. Reidmond, 11 Lea, 205-210; Patton v. Railroad, 89 Tenn., 370; Railroad v. Howard, 90- Tenn., 147, 149, et sect.</p> <p>6. PLEADINGS. Manner of joining counts in the declaration.</p> <p>Counts in the declaration may he made as numerous as a full presentation of the plaintiff’s case may require, at the same time avoiding both duplicity and prolixity, and securing brevity, clearness, and force, by simply, in subsequent counts, referring to and adopting, without repeating in terms, such parts of the previous count or counts as the pleader may desire to carry forward into some subsequent count or counts, and writing down therein only the new matter which distinguishes the new or additional count. In this manner counts un'der the common law and under the statute may be neatly and quickly joined in the same declaration in cases where both are applicable and proper. (Post, pp. 65, 66.)</p> <p>' Code cited and construed: Secs. 4603, 4604, 4617 (S.); secs. 3594, 3595, 3606 (M. & V.); secs. 2882, 2883, 2896 (T. & S. and 1858).</p> <p>Case cited and approved: State v. Lea, 1 Cold., 175, 176, 179.</p> <p>7. SAME. Count under statute declaratory of common law, and going further under the common law treated as wholly under the common law.</p> <p>The statute contained in subsection 4 of section 1574 of Shannon’s Code and the common law are concurrent, and a count framed under the statute may go further and also include averments of additional common law negligence, and the count should then be treated as one wholly under the common law. (Post, p. 66.)</p> <p>Code cited and construed: Sec. 1574, subsec. 4 (S.); sec. 1298, subsec. 4 (M. & V.); sec. 1166, subsec. 5 (T. & S', and 1858).</p> <p>8. SAME. Evidence of common law negligence is inadmissible under a count based on a statute not concurrent with the common law.</p> <p>The provisions in the statute contained in subsections 2 and 3 of section 1574 of Shannon’s Code, prescribing certain precautions to be observed by railroads, are not concurrent with, or declaratory of, the common law obligation of railroads, but are wholly statutory; and, therefore, while under a count declaring under the statute, testimony of the noncompliance with the precautions is admissible, but under a count charging common law negligence, such evidence is inadmissible. {Post, pp. 66, 67.)</p> <p>Code cited and construed; Sec. 1574, subsecs. 2 and 3 (S.); sec. 1298, subsecs. 2 and 3 (M. & V.); sec. 1166, subsecs. 3 and 4 (T. & S. and 1858).</p> <p>9. RAILROADS. Liability for injury to traction engine is not escaped because it was run without watchman ahead, unless this contributed to the injury.</p> <p>The running of a traction engine on the public highway is not unlawful, and a person running the same, without keeping a watchman at least two hundred (200) yards in advance, as required by statute, is not thereby barred from a recovery for an injury to his engine caused by a collision with a railroad train, at a crossing, unless his failure to have a watchman contributed to the accident. The purpose of the statute in requiring such watchman is for the protection of the public traveling upon the highway. {Post, pp. 67-70.)</p> <p>Code cited and construed: Secs. 1609-1616 (S.); secs. 1318-1321 (M. & V.).</p> <p>10. CHARGE OF COURT. Refusal of special request upon the controverted fact as to the sudden appearance on railroad track is erroneous, when.</p> <p>Where, in an action against a railroad company for injuries to a traction engine caused by a collision with the railroad engine, at a crossing, and there was testimony tending to show that the traction engine appeared suddenly on the track too late for the railroad’s compliance with the statutory precautions, it was error for the court to refuse to give in charge the special request of the defendant to the effect that, if the traction engine did not appear on the railroad track until the instant the train struck it, the question of the nonobservance of the statutory precautions did not arise, and, if the company was without fault in other respects, it was not liable, though there was evidence introduced hy the plaintiff below tending to show that the traction engine did not suddenly appear upon the track, but was there while the train was yet some distance away. (Post, pp. 70-72.)</p> <p>Case cited and approved: Railroad v. Seaborn, 85 Tenn., 391, 397.</p>

<p>1. PROCESS. Service of, waived by conduct of defendant.</p> <p>A defendant who appeared by appealing from the judgment of a justice of the peace against him, by signing the appeal bond, and by taking the benefit of several continuances by consent in the circuit court, and who moved to dismiss his appeal after the evidence was heard at the trial, cannot avail himself of the fact that he was not served with process.</p> <p>3. PRACTICE. Appeal to circuit court may be dismissed, when.</p> <p>A defendant, appealing to the circuit court from the judgment of a justice of the peace, is entitled to dismiss his appeal after the introduction of the evidence on the trial in the circuit court and while the judge is charging the jury.</p> <p>Case cited and distinguished: Greer v. Williford, Peck, 290.</p> <p>Case cited and approved: Railroad v. Sansom, 113 Tenn., 683.</p> <p>3. SAME. Judgment on dismissal of appeal in circuit court.</p> <p>Where an appeal from the judgment of a justice of the peace is</p> <p>dismissed in the circuit court on motion of the appellant, the circuit court, having jurisdiction, should affirm the judgment, with costs.</p> <p>Code cited: Sec. 4876 (S'.); sec. 3861 (M. & Y.); sec. 3145 (1858).</p> <p>Case cited and approved: Anderson v. Moore, 4 Baxt., 16.</p> <p>4. SUPREME COURT. Will correct error of circuit court refusing to dismiss appeal.</p> <p>Where the circuit court erroneously refused to dismiss an appeal from the judgment of a justice of the peace on motion by appellant, the supreme court will render such judgment as the circuit court should have rendered, that is, dismiss the appeal and affirm the judgment of the justice of the peace, with costs.</p> <p>Code cited: Sec. 4902 (S.); sec. 3886 (M. & V.); sec. 3167 (1858).</p>

<p>EMINENT DOMAIN. Exceptions to report of jury of view and appeal and trial anew before a traverse jury are concurrent remedies.</p> <p>In condemnation proceedings under eminent domain laws, a party excepting to the report of the jury of view may, upon the overruling of his exceptions and the confirmation of the report, appeal from the finding of the jury to the next term of the circuit court for a trial anew before a traverse jury in the usual way, on the question of damages; for the remedies by exception and appeal are concurrent, and exceptions to the report do not exclude the right of such appeal.</p> <p>Code cited and construed: Secs. 1858-1861 (S.); secs. 1563-1566 (M. & V.); secs. 1339-1342 (T. & S. and 1858).</p> <p>Case cited and approved: Railroad v. McDonald, 12 Heisk., 54.</p>

<p>FROM DAVIDSON.,</p> <p>Certiorari to tlie Circuit Court of Davidson County. -John W. Childress, Judge.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Criminal Court of Davidson County. —W. M. Hart, Judge.</p>

<p>1. SUPREME COURT PRACTICE. Assignment of errors must conform to Rule SO.</p> <p>An assignment of errors that the court erred, (1) in allowing a defendant to withdraw his answer and file a demurrer, (2) in allowing a demurrer to he filed hy two defendants before process was served on a third, and, (3) in sustaining defendant’s demurrer to the original and amended hills, are not a sufficient compliance, in form or substance, with the rule of the supreme court concurring assignments of error, and will be overruled.</p> <p>Rule cited: Rule Twenty, 89 Tenn., pp. 774, 775.</p> <p>2. SAME. Same. Defective, not cured by brief filed within ten days before case is called.</p> <p>Insufficient and defective assignments of error are not cured by a brief and argument in support thereof filed within ten days before the case is called for hearing.</p> <p>3. APPEAL. Dismissal of, by appellant. Consent of. appellee not required, but he is entitled to costs.</p> <p>It is the general rule that the appellant may have his own appeal dismissed at any time while the cause remains within the jurisdiction of the appellate court, and the appellee cannot object, nor is his consent required, but he is entitled to costs on such - dismissal.</p> <p>Cases cited and approved: Cloud v. "Wiley, 29 Ark., 81; Latham v. U. S., 9 Wall., 145; Bacon v. Lawrence, 26 Ill., 53.</p> <p>4. SAME. In nature of writ of error from law court merely suspends judgment and supersedes execution. From chancery court vacates decree.</p> <p>An appeal in the nature of a writ of error prosecuted from the judgment of a law court operates as a mere suspension of the judgment of the lower court and supersedes the issuance of an execution .therefrom during the pendency of the appeal; hut a simple direct appeal from the decree of a chancery court vacates the decree of the lower court, and the cause stands for trial de novo in the appellate court</p> <p>Cases cited and approved: Franklin v. Franklin, 2 Swan, 521; Thomasson v. Eercheval, 10 Humph., 324; Smith v. Holmes, 12 Heisk., 466; Morris v. Richardson, 11 Humph., 389; Maskall v. Maskall, 3 Sneed, 208.</p> <p>5.. SAME. Acts 1885, ch. SI, modifies rule in chancery cases only to extent of preserving lien pending appeal.</p> <p>The effect of ch. 21, Acts 1885, providing, in substance, that decrees of courts of equity, when appealed to the supreme court, shall be a lien upon the property of the defendant in like manner as judgments at law, was to so modify the rule stated in the last preceding headnote in respect of decrees of chancery courts as to continue them in force upon an appeal, where moneyed or other judgments were pronounced, to the extent of preserving the lien pending the appeal, but the operation of the act is limited to those cases only where the judgments pronounced constitute liens.</p> <p>Act cited and construed: 1885, ch. 21.</p> <p>6. SAME. Statute requires same bond and proceedings in appellate court on appeal in nature of writ of error as on appeal, but distinction in effect is maintained.</p> <p>Notwithstanding our statute requires the same bond of appellants, and the proceedings in the appellate court are the same, on an appeal in the nature of a writ of error from a judgment at law and a simple appeal from a decree in equity, the distinction in the effect of the appeal on the judgment of the court appealed from is maintained — in the one case merely suspending, and in the other vacating, the judgment appealed from.</p> <p>Code cited: Sec. 4910 (S.); sec. 3894 (M. & V.); sec. 3175 (1858.)</p> <p>7. SAME. May be dismissed by appellant, but case cannot be dismissed by him after judgment.</p> <p>Although the appellant has the right to dismiss the appeal at any time, upon payment of costs, and the consent of appellees thereto, is not required, this right is limited to the appeal, and the case cannot be dismissed by appellant after judgment is pronounced.</p> <p>8. SAME. Dismissal of, in nature of writ of error, affirms judgment. In chancery case, effect and terms of, in discretion oj court.</p> <p>The effect of the dismissal of an appeal in the nature of a writ of error is to affirm the judgment of the lower court; but the effect of the dismissal of a simple appeal from a decree in a chancery cause, and the terms upon which the dismissal may ■ be had, ar.e left to the sound discretion of the appellate court.</p> <p>9. SAME- Dismissal of, from money decree. Appellee should have benefit of security given by appellant on appeal.</p> <p>If the judgment or decree appealed from in an equity case is in favor of either party against the other.for money, and the appeal be prosecuted under the statute requiring security for the judgment as well as costs, the appellee should be awarded the benefit of the security given by appellant for the judgment obtained below, as a condition precedent to .the dismissal of the appeal by appellant.</p> <p>10. SAME. Dismissal of, where bill was dismissed on demurrer No terms imposed except payment of costs of appeal. Case in judgment.</p> <p>The chancery court sustained a demurrer and dismissed the bill, from which decree the complainants appealed. In the supreme court the appellant asked leave to dismiss the appeal; Held, that no terms will be imposed other than the .payment of the costs of the appeal, and the judgment of the lower court will stand as though no appeal had been prosecuted therefrom.</p>

<p>1. BILLS' AND NOTES. Negotiable only when payable to order, or to bearer.</p> <p>Under the negotiable instruments law (1899, ch. 94) and- under the common law, a note, in order to be negotiable, must be payable to order, or to bearer.</p> <p>Act cited and construed: 1899, cb. 94, sees. 1, 8, 9, and 184.</p> <p>2. SAME. Code provision that a note need not be payable to order to be negotiable, repealed by ch. 94, Acts 1899.</p> <p>The Code provision (Shannon’s Code, see. 3506), in.substance, that a note, to be negotiable, need not be payable to the order, is, by implication, repealed by the negotiable instruments law (Acts of 1899, ch. 94), because the latter act is directly in conflict therewith, and embraces the entire subject-matter thereof.</p> <p>Code cited and construed: Sec. 3506 (S.); sec. 2714 (M. & V.) ; sec. 1957 (1858).</p> <p>Act cited and construed: 1899, ch. 94.</p> <p>Case cited and approved: Poe v. State, 85 Tenn., 495.</p> <p>3. STATUTES. Negotiable instruments law of 1899 does not contain more than one subject, and the body of the. act is not broader than the caption.</p> <p>The negotiable instruments law of 1899 (ch. 94), entitled “A general act relating to negotiable instruments, being an act to establish a law uniform with the laws of other States upon that subject,” covers the entire field of the law of negotiable instruments, and section 123, which provides that, “A cancellation made unintentionally, or under a mistake, or without authority of the holder, is inoperative; hut where an instrument or any signature thereon appears to have been canceled, the burden of proof lies on the party who alleges that the cancellation was made unintentionally or under a mistake or without authority,” is not a distinct subject beyond the scope of the title as an effort to legislate upon the laws of evidence concerning the burden of proof, and said act is not in contravention of sec. 17, art. 2, of the constitution which provides that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.”</p> <p>Act cited and construed: 1899, ch. 94.</p> <p>Constitution cited: Art. 2, sec. 17.</p> <p>4. BILLS AND NOTES. Nonneg-otiable note subject to equities between original parties in action by purchaser for value, before maturity, and without notice.</p> <p>A nonnegotiable note is held subject to the equities existing between the original parties thereto, and the fact that it was without consideration and procured from the maker by fraud, when he was too much intoxicated to care for his property, constitutes, a good defense in an action on the note by a purchaser for value, before maturity, and without notice of existing equities.</p> <p>5. SAME. Dealer in. Cannot recover on note bought without having license.</p> <p>A dealer in notes, who has not paid the privilege tax and obtained a license as required by law, cannot maintain an action on a note purchased by him while thus dealing in violation of law.</p> <p>Case cited and aproved: Trentham v. Moore, 111 Tenn., 346.</p> <p>6. SUPREME COURT. Will not remand for further proof for complainant, when he could not recover on undisputed facts, nor when the issues were made in the pleadings and fought out in the lower court.</p> <p>The supreme court will not remand a ease to the chancery court for further proof to be offered on behalf of complainant where, (1) under the undisputed facts appearing in the record, as sworn to by the complainant himself, he would not be entitled to recover, and, (2) the issue upon which it is desired to offer further proof is one clearly made in the pleadings and which was fought out by the parties in the chancery court.</p> <p>7. SAME. Will not dismiss without prejudice in case stated in headnote 6.</p> <p>In a case such as that stated in the last preceding headnote, the supreme court will not dismiss the case without prejudice to the rights of complainant.</p>

<p>1. PRINCIPAL AND SURETY. Failure of obligee to inform sureties of principal obligor’s embezzlement relieves sureties.</p> <p>The failure of the general agent of an insurance company, who required a subagent to execute a bond for the prompt payment of all moneys collected by him in the business of bis agency, to inform the sureties at the time they executed the bond that the subagent was then largely indebted to bis principal on account of funds embezzled by bim, wbicb fact was known to the general agent, relieves the sureties from liability on the bond.</p> <p>Cases cited and approved: Phillips v. Foxhall, L. R., 7 Q. B., 666; Smith v. Bank, 1 Dow, 272-; State v. So'oy, 39 N. J. Law, 135; Dinsmore v. Tidball, 34 Ohio St., 411; C. C. A. R..R. v. Gaw, 59 Ga., 685; Saint v. Wheeler, etc., Mfg. Co., 95 Ala., 362; Roberts v. Donovan, 70 Cal., 108; Atlantic, etc., Tel. Co. v. Barnes, 64 N. Y., 385; Newark v. Stout, 52 N. J. Law, 35.</p> <p>3. SAME. Sureties not relieved by failure of obligee to inform sureties of default of their principal not involving moral turpitude.</p> <p>The mere failure of the obligee in a bond such as that described in the preceding headnote, to inform the sureties thereon, in the absence of investigation or inquiry on their part, that their principal had fallen behind in his accounts until at the time of the execution of the bond, he was considerably indebted to the obligee, does not relieve the sureties from liability, if such undisclosed acts of the principal obligor do not involve moral turpitude, but are such as are consistent with honesty, and only tend to show that he is negligent, dilatory or unskilled.</p> <p>Cases cited and approved: Screwmens, etc., Assn. v. Smith, 70 Tex., 168; Atlas Bank v. Brownell, 9 R. I., 169; Home Insurance Co. v. Holway, 55 Iowa, 571; Watertown Fire Ins. Co. v. Simmons, 131 Mass., 85; Domestic Sewing Machine Co. y. Jackson, 15 Lea, 418.</p> <p>3. SAME. Provision, of bond securing prior debts valid. But is avoided by withholding knowledge from sureties that debts are dishonest.</p> <p>A provision in the bond described in headnote 1, by which the sureties undertake to become liable, not only for the debts that may be ineured by their principal after the date of the bond, but also such debts as he may owe at that time to the obligee growing out of the affairs of his agency, is valid and enforceable, if such prior debts were honestly incurred; but if the obligee withholds from the sureties the knowledge that such debts were the result of dishonesty on the part of the principal obligor, the sureties can avail themselves of such unindisclosed knowledge in order to defeat a recovery against them on the bond, notwithstanding the provision in the bond obligating them for prior debts.</p> <p>Case cited and approved: Franklin Bank v. Stevens, 39 Mo., 532.</p>

<p>1. ADMINISTRATORS WITH WILL ANNEXED. Have same power to sell land as will gives executors named therein.</p> <p>Where a will directs that the land and personal property of the tes-’ tator he sold for the purpose of creating a fund to he distributed among certain named legatees, and the executors named in the will decline to qualify, the administrators with the will annexed have power, and it is their duty, to sell the land and personalty, and raise the fund designed by the will.</p> <p>Code cited and construed: Sec. 3976 (S.); sec. 3081 (M. &' V.); sec. 2240 (1868).</p> <p>Cases cited and approved: Harrison v. Henderson, 7 Heisk., 316; Caruthers v. Caruthers, 2 Lea, 264.</p> <p>2. SAME. Same. Will need not provide expressly that executor Shall sell, if sale is directed.</p> <p>If a will directs the estate to he sold, without naming a donee of the power of sale, such power is by implication devolved upon the executors nominated in the will, and, if the executors fail to qualify, may be rightfully exercised by administrators with the will annexed.</p> <p>Cases cited and approved: Bedford v.- Bedford, 110 Tenn., 204; Parker v. Sparkman, 2 Shan. Cas., 544.</p> <p>3.SAME. Have no power to sell land when executor named was also trustee, and authorized to sell as trustee.</p> <p>Administrators with the will annexed have power to sell land only when the executor, as such, simply by virtue of his office, and in that character alone, had power to sell; but they have no such .power when the will imposed upon the executor the .twofold character of executor and trustee, and the power to sell was confided ta hfan as a personal trust to be exercised by him as such trustee, and not- as executor.</p> <p>Code cited and construed: Sec. 3976 (S.); sec. 3081 (M. & V.); sec. 2240 (1858).</p> <p>Cases cited and approved: Andrews v. Andrews, 7 Heisk., 247; McElroy v. McElroy, 110 Tenn., 143; Armstrong v. Park’s Devi-sées, 9 Humph.,, 195.</p> <p>4. SAME. Liable for breach, of duty in failing' to sell property as directed by will. Case in judgment.</p> <p>Where a will directs that the land and personal property of the testator be sold for the purpose of creating a fund to be divided among certain named legatees, — the shares of some to be paid to them in person, and of others to a trustee named for their benefit, — and the administrators with the will annexed breach their duty by failing to sell the land under the powers devolved on them by law, they will be treated, upon suit by a remainder-man, as having the fund in hand, and as liable for it, with interest from the death of the life-tenant — it appearing that there was enough property to raise the fund devised.</p> <p>5. SAME. Question reserved.</p> <p>The question was expressly reserved and not decided, as to whether, under the facts stated in headnote 4, it became the duty of the administrators with the will annexed to apply to a court of equity to appoint a trustee in place of the trustee named in the will, who renounced the trust, to whom they might pay over the shares designed for the benefit of the daughters of the testator for life and at their death to their children; or whether they had imposed on them the duty of simply holding the fund to await the appointment of a trustee at the instance of the interested beneficiaries.</p> <p>6. LIMITATIONS, STATUTE OE. Begins to run against re-mainderman upon death of life tenant.</p> <p>The right of action of a remainderman to recover a fund accrues, and the statute of limitations begins to run against him, upon the death of the life tenant.</p> <p>Case cited and approved: Carver v. Maxwell, 110 Tenn., 75.</p> <p>7 EQUITABLE CONVERSION. Will directing sale of land for distribution in funds, works conversion into personalty.</p> <p>Where a testator directs that his lands he sold for the purpose of creating funds for distribution among certain legatees, the land will he treated as personalty, to the extent of its value, in the hands of administrators with the will annexed.</p> <p>Cases cited and approved: Bennett v. Gallaher, 115 Tenn., 568; Bedford v. Bedford, 110 Tenn., 204.</p>

<p>1. CARRYING WEAPONS. Must be with intent to go armed. Need not be concealed about the person.</p> <p>The act forbidden by Shan. Code, sec. 6641, is the carrying of any of the weapons named therein with the intent of going armed, and, with the exception of the razor, it is not necessary, in order to constitute the offense, that the weapon be carried concealed about the person.</p> <p>Code cited and construed: Sec. 6641 (S.); sec. 5533 (M. & V.).</p> <p>Cases cited and approved: Barton v. State, 7 Baxt., 105; Robinson v. State, 3 Shan. Cas., 60.</p> <p>S. SAME. Same. Same. Case In judgment.</p> <p>One who, with the intent of going armed, carries a pistol in a box or compartment beneath the driver’s seat of a hack, upon which he sits, and where the pistol is readily accessible and available for use, is guilty of unlawfully carrying weapons.</p>

<p>FROM ROBERTSON.</p> <p>Appeal in error from the Circuit Court of Robertson County. — B. D. Bell, Judge.</p>

<p>1. CONTRACT. Optional as to one party. Not void for want of mutuality. Question reserved.</p> <p>It lias been held in Tennessee that the fact that a contract is optional as to one of the parties, and obligatory as to the other, does not render it void for want of mutuality, if there be a sufficient consideration on both sides, and, until such option is exercised, the contract is binding upon both parties; but the decision of this question, as applicable to the contract involved in this case, is expressly reserved.</p> <p>Cases cited: Cherry v. Smith, 3 Humph., 19; Bradford v. Foster, 87 Tenn., 9.</p> <p>2. SAME. Pleading and practice. Where no issue made in pleadings as to validity of contract sued on, court precluded from considering.</p> <p>In a suit to recover an amount expended under a contract, which is made the foundation of the action, where no issue is made in the pleadings respecting the validity of the contract, but the contentions of the respective parties were waged alone upon a proper construction thereof, the supreme court, on appeal, is precluded from considering the question as to whether or not the contract was void for want of mutuality.</p> <p>Cases cited and approved: O’Bryan Bros. v. Glenn Bros., 91 Tenn., 110; Gernt v. Cusack, 106 Tenn., 150.</p> <p>3. ESTOPPEL. Inconsistent positions. One cannot claim benefit under an instrument and at same time seek to defeat it.</p> <p>One who claims the benefits of an instrument, whether it be a will or a contract, must abandon every right the assertion of which would defeat, even partially, the provisions of the instrument. A party cannot occupy inconsistent positions, but will be confined to his election.</p> <p>CONTRACTS. Intention of parties is governing consideration in construction of.</p> <p>The intention of the parties is the governing consideration in the construction and interpretation of all contracts.</p> <p>5. SAME. To “maintain” railroad obligates party to reconstruct bridge destroyed by extraordinary freshet. Case in judgment.</p> <p>A contract for the construction and operation of a branch railway from complainant’s railroad to defendant’s mines provided that defendant should build the substructure and complainant should build the superstructure and “maintain and operate” said branch railroad. The railroad was built accordingly, and was operated for a time, but a bridge erected by defendant, under 'its contract to build the substructure was washed away by an extraordinary freshet. Held, that complainant was obligated to reconstruct the bridge, under its contract to “maintain” said branch railway, though the bridge, when erected, would become defendant’s property — -the contract providing that the substructure shall remain defendant’s property.</p> <p>Case cited and approved: Commonwealth v. Deerfield, 6 Allen (Mass.), 456; People v. Board of Supervisors, 142 N. Y„ 271; Dyer Co. v. Railroad, 87 Tenn., 714; North Staffordshire R. R. v. Dale, 8 Ellis & Bl. (Q. B.), 836.</p> <p>Case cited and disapproved: Kadderly v. Multnomah County, 32 Or., 560.</p> <p>Case cited; L. & N. Rwy. v. Godman, 104 Ind., 490.</p>

FROM DAVIDSON. Appeal from the Chancery Court of Davidson County. — John Allison, Chancellor.

<p>1. ASSIGNMENTS OF ERROR. For failure of court of chancery-appeals to find certain facts cannot be considered by supreme court.</p> <p>An assignment of error that the court of chancery appeals erred in failing to find certain facts, which it had not even been requested to embrace in supplemental findings, cannot be considered by the supreme court. (Pos#, p. 244.)</p> <p>S. SABES. Purchaser cannot resist payment for defects not communicated to seller of a machine, when.</p> <p>Where, under a contract of sale of machinery, the seller could not be held liable for a breach of the warranty of soundness without notice of the defects and an opportunity to replace the defective parts, the purchaser cannot resist the payment of the purchase price because of defects not communicated to the seller until after the destruction of the machinery by fire. (Post, pp. 244, 245.)</p> <p>3. CONDITIONAL SALES. Loss by destruction of the property must fall on the purchaser, when. '</p> <p>Where, under a contract of conditional sale of machinery, complete and absolute by delivery of the machinery to the purchaser, the title was retained in the seller until the purchase price, unconditionally promised, should be paid in full, the loss resulting "from the destruction of the machinery by fire, without the negligence of either party, before the notes for the purchase price were in fact executed, must fall on the purchaser.</p> <p>Cases cited and approved: Houston v. Dyche, Meigs, 76; Gambling v. Read, Meigs, 281; Bank v. Vandyck, 4 Heisk., 617; Machine Co. v. Cole, 4 Lea, 439; Meagher v. Hollenberg, 9 Lea, 392; Burnley v. Tufts, 66 Miss., 48, 49; Tufts y. Wynne, 45 Mo. App., 42; Tufts y. Griffin, 107 N. C., 47; Humeston v. Cherry, 23 Hun, 141.</p> <p>Cases cited and disapproved: Grant v. United States, 7 Wall., 331; Jones y. Brewer, 79 Ala., 454, 547; Stone v. Wait, 88 Ala., 599; Randall v. Stone, 77 Ga., 501.</p>

<p>1. COMMON CARRIERS. Liability of, for injury to person riding on complimentary pass,</p> <p>A street railway company, carrying one to whom it has issued a complimentary pass which provides that the holder shall ride on the cars of the company at his own risk, occupies as to such person the position of a mandatary and not that of a common carrier, and is liable to such person only where injury to him is caused by its willful, reckless, wanton or gross negligence.</p> <p>Cases cited and approved: Kirtland v. Montgomery, 1 Swan, 452; Coward v. Railroad, 16 Lea, 225; Railway Co. v. Adam, 192 U. S., 440; Boering v. Railroad, 193 U. S., 442; Duncan v. Railroad, 113 Fed., 508; Muldoon v. Railroad, 7 Wash., 528.</p> <p>2. SAME. No consideration for pass, when.</p> <p>There is no consideration for a pass given by a carrier to one, in view only of the fact that he is a member of a city police force.</p>

<p>1. FIRE INSURANCE. No recovery for loss during default of payment of installment premiums, -when.</p> <p>A fire insurance policy is properly construed to he for a period of five years, and not for five consecutive terms of one year each, when the premiums are payable in cash and four installments at stated annual periods, the first installment being payable less than one year after the date of the policy, with a provision in the application, policy, and installment notes that the policy shall lapse and be suspended and inoperative, and the company not liable for any loss occurring during a default in payment of any of said installments, with a provision in the notes that in the event of the nonpayment of any of the installments, in a certain contingency, the whole amount may he declared due and collected. No recovery can he had under such policy for a loss occurring during a default in payment, though such loss occurs during the time paid for, if the policy were considered as One for five consecutive terms of one year each.</p> <p>3. SAME. Same. Suspension of liability for default in payment of premiums is valid, when.</p> <p>A stipulation for a suspension of liability under an insurance policy in case of default in payment of the premium is a reasonable, valid, and enforceable provision; and if a loss occurs while the insured is in default, within the terms of his policy, no recovery can be had. (Post, pp. 270-272.)</p> <p>Cases cited and approved: Dale v. Insurance Co., 95 Tenn., 38; Insurance Co. v. Harvey, 98 Tenn., 641; Klein v. Insurance Co., 104 U. S., 88; and cases from other States cited in the opinion, pages 270, 271.</p> <p>Case cited, approved, and distinguished: Kimbro v. Insurance Co., 101 Tenn., 245.</p>

<p>1. BILLS OF EXCEPTION'S. Filed after proper time are not a part of record, and cannot be considered on appeal.</p> <p>Assignments of error going to the merits of the case and based upon a bill of exceptions not properly a part of the record, for the reason that it was filed after the time allowed by the order of the trial judge when the final judgment was rendered, cannot be considered on appeal. (Post, p. 275.)</p> <p>Cases cited and approved: Bettis v. State, 103 Tenn., 339; Muse v. State, 106 Tenn., 181; Jones v. Moore, 106 Tenn., 188; Wright v. Redd, 106 Tenn., 719; Hinton v. Insurance Co., 110 Tenn., 118.</p> <p>2. SAME. Minute entries are a part of the record.</p> <p>.Minute entries are a part of the record without a bill of exceptions, and assignments of error based upon such entries may be considered on appeal. (Post, pp. 275, 276.)</p> <p>3. VERDICTS. Against joint defendants in actions of tort should be joint as to all found guilty, and not several.</p> <p>Where two or more parties are sued jointly for personal injuries, trespass, or other tort, and both or all are found guilty, the jury cannot assess several damages against ea.ch defendant, but the damages must be assessed jointly, against all found guilty jointly, although all may not be equally culpable. (Post, pp. 276-279.)</p> <p>Cases cited and approved: Railroad v. Jones, 100 Tenn., 512, and citations; Gaslight Co. v. Lansden, 172 TJ. S., 553; Chils v. Gron-land (C. C.), 41 Fed., 505; Jones v. Grimmet, 4 W. Va., 104; Crawford v. Morris, 5 Grat. (Va.), 90; Bohun v. Taylor, 6 Cow. (N. Y.), 313; Wakely v. Hart, 6 Bin. (Pa.), 316;. Bostwick v. Lewis, 1 Day (Conn.), 34.</p> <p>4. SAME. Same. Proper judgment on verdict improperly assessing several damages in tort, and proper method of correcting improper judgment.</p> <p>Where, in an action against two parties sued jointly for personal injuries, a verdict is found and returned in favor of plaintiff against both defendants, but improperly assessing several damages, and judgment is entered against each defendant for the separate sums so assessed, the court may, on motion of plaintiff, even after judgment is entered, dismiss the case, as to one defendant, after granting a new trial as against him, and render judgment against the other alone for the amount of the verdict .awarded against him. (Post, pp. 278-283.)</p> <p>Cases cited and approved: Davis v. Chance, 2 Yerg., 94; and other cases in the opinion, on page 281.</p> <p>Case cited and distinguished: Knott v. Cunningham, 2 Sneed, 205.</p> <p>5. SAME. Same. Same. Excessive and improper judgment on verdict corrected in supreme court by remittitur.</p> <p>Where the lower court improperly entered judgment on the verdict against one defendant for the sum of the several assessments of damages awarded against each defendant in tort, the supreme court may upon appeal permit the plaintiff to remit the excess and enter judgment foi; the sum awarded against the defendant against whom the plaintiff elected to take judgment. (Post, p. 283.)</p>

<p>1. PEREMPTORY INSTRUCTION. When motion for, may be made.</p> <p>The practice is well settled in this State that the defendant may move for a peremptory instruction either at the close of theN plaintiff’s evidence or of the entire case.</p> <p>2. SAME. Same. Waived by failure to renew motion at close of case.</p> <p>¡Where the defendant, at the close of the plaintiff’s case, moved for a peremptory instruction and the motion is overruled and exception taKen, after which he introduces evidence in his own behalf, he waives his exception to the overruling of his aforesaid motion, unless it is renewed at the close of the whole case.</p> <p>Cases cited and approved: Bogk v. Gassert, 149 U. S., 17, and numerous cases cited in the opinion.</p>

<p>1. CHANCERY PRACTICE. Finding of chancellor, sitting as a jury, on issue involving construction of written agreements is not conclusive, when. *</p> <p>The finding of the chancellor sitting as a jury by the consent of the parties in a chancery jury case is not conclusive on appeal, where the issue does not involve a matter of fact, pure and simple, but presents a question to he determined upon the construction of certain written agreements, because this raises a question of law to be decided by the court, and not a jury.</p> <p>Case cited and approved: Toomey v. Atyoe, 95 Tenn., 373.</p> <p>2. REAL ESTATE AGENTS. Without, license cannot recover compensation for services, when. Case in judgment.</p> <p>Real estate agents acting without license and without payment of the privilege tax imposed upon them at the time transactions occur cannot recover compensation for services rendered in making sales of lands; and complainants obtaining agreements from landowners to sell and convey certain lands at a certain specified price, in consideration of their finding purchasers and making sales, and with the understanding that whatever amounts might be realized from a sale of the lands over and above the specified price to be paid to the owners, should be divided equally between them, are real estate dealers and agents in the sense of the statute, and cannot recover from the purchasers the excess of the purchase price above the specified price to be paid and which was paid to the landowners.</p> <p>Acts cited and construed: 1901, ch. 128, secs. 4, 14 and 16.</p>

<p>1. RAILROAD STOCK SUBSCRIPTION BY CITIES. Statements and provisions that are not conditions precedent.</p> <p>Statements and provisions in a city’s contract of subscription for stock in a railroad are not conditions precedent to either the subscription by the city or the payment of its subscription, where the railroad company in its application to the city for subscription to its stock, stated that the company was “to be authorized to issue stock at the rate of $25,000 per mile of completed and acquired road and five per cent first mortgage bonds at the rate of not exceeding $25,000 per mile of completed and acquired road,” and followed this statement with a request for a subscription to its stock to be made by the city “upon the following terms and conditions,” but the terms and conditions there set out no where embrace a condition that places a limitation upon the stock subscription or bond issue. The terms and conditions set out in the city ordinance authorizing the subscription to the stock to be made are not conditions precedent, where such limitation was not made a condition of subscription or payment. Nor are the provisions in the ordinance that the company should deposit a certain sum of its bonds to guarantee a certain extension of the road and to prevent a foreclosure of the road, and that the principal shops of the company should be located in the city, and for the deposit, on consolidation with other railroad companies, of a majority of the stock of the consolidated company or constituent companies with a trust company, are not conditions precedent to either the subscription or its payment. (Post, pp. 299-317.)</p> <p>Cases cited and approved: Railroad v. Parks, 86 Tenn., 560; Morrow v. Iron & Steel Co., 87 Tenn., 262.</p> <p>2. SAME. Same. Bill is demurrable for failure to allege nonperformance of conditions or stipulations.</p> <p>A bill seeking to have a subscription by a city to tbe 'stock of a railroad declared void and to enjoin its payment, and alleging, among other grounds and reasons therefor, a failure of the railroad company to locate its shops in the city and deposit certain stock certificates in fulfillment of stipulations of the subscription, is demurrable as to these allegations for failure to allege that the company has located its shops elsewhere, or that it has no purpose of locating them in the city and that it has refused to deposit the certificates or that the city was about to pay its subscription without requiring such deposit. {Post, p. 317.)</p> <p>3. SAME.- City’s subscription is special, and all the stock need not be subscribed to make it valid.</p> <p>A city’s subscription to the stock of a railroad made under the' statute (Acts 1887, ch. 3) authorizing the same and prescribing the manner of making, is without an implied condition that the subscription shall be void unless all the stock of the company is subscribed, because it is an independent special subscription by the terms of which the conditions of payment and the times thereof are expressly fixed. (Post, pp. 318-322.)</p> <p>Acts cited and construed: 1887, ch. 3.</p> <p>Cases cited and distinguished: Read v. Gaslight Co., 9 Heisk., 545; Anderson v Railroad, 91 Tenn., 48.</p> <p>4. SAME. Same. Construction company’s contract to build the road for the unsubscribed authorized stock is a subscription for all its stock.</p> <p>" A construction company’s agreement with a railroad company to construct its road and receive in part consideration therefor all of its authorized stock, except what had been otherwise subscribed for, is in spirit and legal effect a subscription for all of its stock, and a prior subscription by a city cannot be avoided because of failure to obtain subscriptions to its entire stock. (Post, pp. 322-324.)</p>

<p>1. WILLS. - Income on bank stock consists of dividends declared, and not of surplus and undivided profits.</p> <p>A widow entitled, under ber husband's will, to the income of bank stock for life or widowhood, is entitled only to the dividends declared on the stock, and is not entitled to reach or appropriate the proportional part of the surplus and undivided profits on the stock as “income” on said stock by a sale of the stock or otherwise except as dividends are declared. (Post, pp. 327-338, and especially 332-338.)</p> <p>Cases cited and approved: Bank Tax Cases, 70 U. S., 573; Gibbons v. Mahon, 136 U. S., 549; Phelps v. Bank, 26 Conn., 269; Lock-hart v. Van Alstyne, 31 Mich., 78; In re London, etc., Co., L. R., 5 Eg. Cas., 525.</p> <p>Case cited and distinguished: Pritchett v. Trust Co., 96 Tenn. 472. ■</p> <p>.2. SAME. Remainder legatees named will take vested remainder interest upon testator’s death, when.</p> <p>Where a will gives the testator’s widow the income from his estate for her life or widowhood, and directs upon her death that the property be converted into money and that the proceeds be distributed among certain named persons, such legatees took a vested remainder interest in testator’s estate from his death. (Post, pp. 327-329, 338.)</p> <p>3. SAME. Assignment of error by executor for beneficiaries who raise no question is more or less academic.</p> <p>A decree of the court of chancery appeals pronounced in a suit ■ brought by the executor and testamentary trustee for a construetion of tbe will affords bim tbe same protection as tbe decree of tbe supreme court where tbe parties beneficially interested are content and raise no question on tbe point presented'by bis assignment of error wbicb thus becomes a question more or less academic. (Post, p. 338.)</p> <p>4. SAME. Interest accruing before testator’s death is not income for life tenant, when.</p> <p>A widow entitled to tbe interest and income of ber husband’s estate under bis will for life or widowhood is not entitled to interest accrued before bis death upon securities held by bim and collected by tbe executor. (Post, pp. 338, 339.)</p>

<p>CORPORATIONS. Not liable for breach of contract of service terminated by its insolvency, when.</p> <p>A stockholder and director in a corporation, elected and employed under contract as its president and treasurer to direct and manage its affairs and to act as its chief executive and managing officer, is charged in law with a knowledge of its condition, and cannot recover damages, as for the corporation’s breach of the contract of employment resulting from insolvency proceedings winding it up under receivership as an insolvent corporation, for the unexpired term at the date of the receivership, especially where such officer assented to the receivership, and accepted employment under the receiver for part of the unexpired term of his employment.</p> <p>Numerous American and English cases cited and reviewed in the opinion.</p>

<p>1.ASSIGNMENTS OF ERROR. For improper admission of evi* dence too general to he considered, when.</p> <p>Assignment of error for improper admission of evidence must in-the specifications quote the full substance of the evidence admitted, with citation of record, where the evidence and ruling may he found, or the assignment will not he considered. {Post, p. 351.)</p> <p>2. WRITTEN FINDING OF FACTS AND DAW. No error for meagerness or omissions without request for additional findings, when.</p> <p>Where the trial judge makes a finding of facts and law in writing under a request therefor, there can he no complaint on appeal that there were items of evidence not included in the findings and which should have been included, where there was no request for additional findings in the court below. [{Post, pp. 351, 352.)</p> <p>Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 113.</p> <p>3. READ ESTATE AGENTS. Not producing purchaser, nor making the sale, is not entitled to commissions, when.</p> <p>A real estate broker having the agency, but not the exclusive agency, to sell land, for the owner is not entitled to commissions as compensation, where he was not the producing cause of the sale and did not produce the purchaser or bring the purchaser and vendor together, nor inform the owner of the name of the prospective purchaser, who learned that the land Was for sale, and the name of the owner thereof, independent of the agent, and at the same time that the agent learned these facts, and subsequently purchased directlyfrom the owner after an unsuccessful attempt to make a trade through the agent. (Post, pp. 352-357.)</p> <p>Cases cited and approved: Arrington v. Cary, 5 Bax., 609; Royster v. Mageveney, 9 Lea, 148; (head note criticized as too meager and inaccurate); Cheatham v. Yarbrough, 90 Tenn., 77; Glascock v. Vanfieet, 100 Tenn., 605; Boswell v. Carpenter, Jacks on, MS., April Term, 1906.</p> <p>4. SUPREME COURT PRACTICE. Erroneous judgment upon written finding of facts and law made under request corrected, and proper judgment rendered.</p> <p>Where the judgment of the court below based upon the trial judge’s finding of facts and law under a request therefor is reversed, because not warranted by the findings of fact that were supported by any evidence, the supreme court will render such júdgment as should have been rendered below, and dismiss plaintiff’s suit. (Post, p. 357.)</p>

<p>1. EJECTMENT. Deraignment oí title to the common source is sufficient, when.</p> <p>In ejectment, it is not necessary for complainant to deraign his title into a grant from the State, where complainant and defendant both claim to derive title from a common source subsequent to the grant. (Post, p. 361.)</p> <p>2. DEEDS OE TRUST TO SECURE DEBTS. Recitals of trustee’s deed are prima facie evidence against makers, when.</p> <p>The recitals in a deed of conveyance of land from the trustee to the purchaser, showing full compliance with the power, terms, and directions of sale contained in a deed of trust executed by a husband and wife to secure a debt, and authorizing a foreclosure sale by the trustee in case of default in payment, are prima facie evidence as against both the husband and wife that the directions of the deed of trust were followed, and, in the absence of any evidence to the contrary, are sufficient evidence of full compliance with the requirements of their deed, although the wife is claiming under a tax deed under a tax sale subsequently made. (Post, pp. 360-366.)</p> <p>Cases cited and approved: Naugher v. Sparks, 110 Ala., 572; Wil-Uiamson v. Mayer, 117 Ala., 261.</p> <p>Cases cited and distinguished: Henderson v. Calloway, 8 Hum., 692; Wilcox v. Blackwell, 99 Tenn., 353; Swainson v. Scott, 111 Tenn., 140.</p> <p>3. TAXATION. Time of payment confined to taxes assessed under the act fixing such time, when.</p> <p>The provision in Acts 1899, ch. 435, sec. 43, that all taxes to be collected under the act shall be payable on the first Monday in November, 1899, etc., must be construed to refer to the taxes assessed under that act, and not to taxes assessed under prior statutes. (Post, pp. 366-370.)</p> <p>Acts cited and construed: 1897, eh. 1, sec. 6; 1899, ch. 435, sec. 43.</p> <p>4. SAKE. Proper time of sale of land for delinquent taxes assessed for year 1898.</p> <p>A tax sale of land for delinquent taxes assessed for the year 1898, made on the first Monday in September, 1899, is void, because such sale was required to be made on the first Monday in July, 1899. (Post, pp. 368-370.)</p> <p>Acts cited and construed:, 1899, ch. 435, secs. 52, 53, and 82.</p>

<p>SUPREME COURT PRACTICE. Ruling of trial judge on disputed facts not reviewed unless record shows affirmatively that it contains all the evidence heard by trial judge.</p> <p>The rule of practice is well settled in this State that the ruling of a trial judge upon a question involving disputed or controverted facts will not be reviewed by the supreme court where the record fails to show affirmatively that it contains all the evidence heard by the trial judge on such question; and this rule of practice obtains in respect of and applies to every part of the record pertinent to a disputed question, whether the same arises upon a motion for a new trial, plea or otherwise, equally with the facts pertaining to the general issues.</p> <p>Case cited and approved: .Ransom v. State, 116 Tenn., 365.</p>

<p>JUROR. Objection to, for disqualification propter defectum, too late after verdict.</p> <p>An objection that a juror, though, a resident of the county and otherwise qualified, lived outside the territorial jurisdiction of the court and within that of a special court created for a limited portion of the same county, is propter defectum, and must be made in limine, and comes too late after verdict.</p>

<p>1. CRIMINAL LAW. PERJURY. Indictment for, must state substance of controversy about which, it was committed.</p> <p>An indictment for perjury, in addition to the other requisites, must set forth the substance of the controversy in respect of which it is alleged that the offense was committed, in order that the court may determine whether the matter alleged to have been sworn to was material.</p> <p>Code cited and construed: (Secs. 7092-7093 (S.); secs. 5958-5959 (M. & V.); 5129-5130 (T. & S. and 1858).</p> <p>Cases cited and approved: State v. Bowlus, 3 Heist., 29; Ross v. State, 1 Tenn. Cas. (Shannon), 406; State v. Owens, 2 Tenn. Cas. (Shannon), 534; State v. Wise, 3 Lea, 38; Lawson v. State, 3 Lea, 309; Woods v. State, 14 Lea, 460.</p> <p>2. SAME. Indictment for perjury failing to state substance of controversy, bad upon motion to quash. Case in judgment.</p> <p>Where an indictment for perjury alleged that it became,material in the investigation of certain contempt proceedings against defendant to know whether he telephoned to a saloon advising the persons in charge of a contemplated visit of certain officers and directing them not to permit the officers to examine behind the bar, but the indictment did not state the substance of the controversy in such contempt proceedings to enable the court to determine that the matter so stated was material, upon motion to quash it was held that the indictment was fatally defective.</p>

<p>1. FOREIGN STATUTES.' Presumption as to, in absence of proof.</p> <p>In the absence of evidence to the contrary, it will be presumed that the law of another State is the same as our own.</p> <p>2. CONDITIONAL SALES. Characteristics of.</p> <p>A conditional sale of personal ■ property, as understood in this State, means one in which the title is retained by the vendor with no right in the vendee, to sell the property, and in which the property is not subject to the debts of the vendee.</p> <p>Cases cited and approved: Houston v. Dyche, Meigs, 76; Gambling v. Read, Meigs, 281; Price v. Jones, 3 Head, 84; Holmark v. Mo-lin, 5 Cold., 482; Bradshaw v. Thomas, 7 Yerg., 487.</p> <p>8. SAME. Retention of title to merchandise, to be resold, by vendee, invalid.</p> <p>A sale on credit of merchandise to a retail merchant for sale in the ordinary course of business passes title to the buyer, notwithstanding an agreement in writing that title shall not pass until payment is made; the provision for the retention of title is nugatory because contrary to public policy.</p> <p>Cases cited and approved: McCombs v. Guild Church & Co., 9 Lea, 81-86; Wilder & Co. v. Wilson, 16 Lea, 548-553-655; and cases cited under second headnote.</p> <p>4. SAME. Purpose of act of 1899, chapter 15.</p> <p>The purpose of the act of 1899, chapter 15, providing that all conditional sales of personal property, where the title to the property is retained, shall be invalid unless evidenced by written contract, was merely to forbid the making of such contracts by parol, as had been previously permitted, without altering the essential nature of such contracts.</p>

<p>1. CONSTITUTIONAL LAW. Statute changing boundaries of a city is not unconstitutional.</p> <p>A statute (Acts 1907, ch. 184, art. 1, see. 2), extending the boundaries of the city of Memphis and annexing new territory thereto, is not unconstitutional for that reason. (Post, pp. 406, 411, 412.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 1, see. 2.</p> <p>S. SAME. Statute authorizing exercise of police power without due process of law is unconstitutional, when.</p> <p>A statute (Acts 1907, ch. 184, art. 3, sec. 3), empowering the of-fieeirs of the city of M'emphis, within that city, and for ten miles beyond the city' limits, to enter into and examine all buildings to ascertain their condition for 'health and safety, to remove buildings that are dangerous, to direct and regulate the building of Are walls, partitions, fences, ovens, smokestacks, etc., and authorizing the president of the commission having control of the city, whenever in his opinion a nuisance shall exist or shall have been declared by city ordinance, to abate the same in a summary manner at the cost of the owner of the premises where the nuisance exists, is unconstitutional as violative of that provision of the constitution (art. 1, sec. 8) declaring that no man shall be deprived of his life, liberty, or property without due process of law. (Post, pp. 406, 412-419.)</p> <p>Acts cited and construed: Acts 1907, ch. 184', art. 3, sec. 3.</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>3. SAME. Statute prohibiting pigpens, cow stables, and dairies within two miles of a city is unconstitutional.</p> <p>A statute (Acts 1907, ch. 184, art 3, sec. 1, subsec. 17), empowering the municipal council of the city of Memphis by ordinance to prohibit pigpens, cow stables, and dairies within two miles of the city limits, is unconstitutional. (Post, pp. 419, 420.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 3, sec. 1, sub-sec. 17.</p> <p>Constitution cited and construed: Art 1, sec. 8.</p> <p>4. SAME. Statute extending all governmental and police powers two miles beyond city limits is unconstitutional.</p> <p>A statute (Acts 1907, ch. 184, art 1, sec. 3), providing that the city of Memphis may have and exercise, within its limits and for two miles outside thereof, all governmental and police powers, is unconstitutional as violative of that provision of the constitution (art. 1, sec. 8) declaring that no man 'shall be deprived of life, liberty, or property, without due process of law. (Post, pp. 406, 412-422.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 1, sec. 3.</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>5. SAME. Same. Statute giving1 such, powers to a certain city is unconstitutional as class legislation.</p> <p>A statute (Acts 1907, ch. 184, art. 1, sec. 3), providing that the city of Memphis may have and exercise, within its limits and for two miles outside thereof, all governmental and police powers, is unconstitutional as violative of that provision of the constitution (art. 11, sec. 8) prohibiting class legislation. (Post, pp. 406, 412-422.)</p> <p>Acts cited and construed: Acts 1907, eh. 184, art. 1, sec. 3.</p> <p>Constitution cited and construed: Art. 11, sec. 8.</p> <p>6. SAME. Statute authorizing a city to establish and maintain public schools is not unconstitutional.</p> <p>A statute (Acts 1907, ch. 184, art. 1, sec. 3), empowering the city of Memphis to establish and maintain public schools, is not unconstitutional by reason of such provision. (Post, pp. 408, 409, 422.)</p> <p>- Acts cited and construed: Acts 1907, ch. 184, art. 1, sec. 3.</p> <p>Case cited and approved: Ballentine v. Pulaski, 16 Lea, 633.</p> <p>7. SAME. Taxation must be equal and uniform; adding expense of survey to city taxes is unconstitutional.</p> <p>A statute (Acts 1907, ch. 184, art. 5, sec. 11), requiring the owners of property in the city of Memphis not laid off into lots or blocks, to furnish a description thereof to the tax assessor, and in case of his failure to-do so, providing that the assessor may require a survey to be made and: returned to him at the owner’s expense, to be added to the tax levied and to be collected as part thereof, violates the constitutional provision (art. 2, see. 28) for the equality and uniformity of taxation, and the other provision (art. 2, sec. 29) for the imposition of municipal taxes upon the principles established in regard to State taxation. (Post, pp. 422-424.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 5, sec. 11.</p> <p>Constitution cited and construed: Art. 2, secs. 28 and 29.</p> <p>8. SAME. Statute authorizing Memphis alone to distrain for taxes not delinquent is void as class legislation.</p> <p>A statute (Acts 1907, eh. 184, art. 5, sec. 23) providing that if anyone in the city of Memphis, against whom a personal tax is assessed, which remains unpaid, whether the same shall be delinquent or not, shall move or he about to move out of the city, or shall remove or he about to remove his personal property from the city, the city treasurer or tax receiver may collect such personal tax by distress sale of any personal property of such person, found in the city, is unconstitutional as class legislation in creating an unconstitutional discrimination in favor of Memphis, because nowhere else in the State are tax-collecting officers permitted to distrain for taxes not delinquent. (Post pp. 424,425.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 5, sec. 23.</p> <p>Constitution cited and construed: Art. 11, sec. 8.</p> <p>Case cited and approved: Memphis v. Fisher, 9 Bax., 239.</p> <p>9. SAME. Statute authorizing Memphis alone to distrain for taxes not delinquent is void as not due process of law.</p> <p>The statute whose provisions are stated in the foregoing headnote is also unconstitutional, because in violation of the constitutional provision (art. 1, sec. 8) declaring that no man shall be deprived of life, liberty, or property without due process of law. (Post, pp. 424, 425.)</p> <p>10. SAME- Statute making taxes delinquent on one class of property at a time different from that on all other property is unconstitutional as class legislation.</p> <p>A statute (Acts 1907, ch. 184, art. 5, sec. 24), making taxes on shares of stock in corporations delinquent on the first day of September, while the taxes on all other property are made delinquent (by sec. 21 thereof) on the first day of July, creates an unreasonable discrimination in favor of the holders of shares of stock in corporations, and is unconstitutional as class legislation. (Post, p. 426.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 5, secs. 21 and 24.</p> <p>Constitution cited and construed. Art. 11, sec. 8.</p> <p>Case cited and approved: Stratton v. Morris, 89 Tenn., 497.</p> <p>11. SAME. Statute making1 owner of property in Memphis absolutely liable to purchaser at tax sale for amount paid, etc., is void as class legislation.</p> <p>A statute (Acts 1907, ch. 184, art. 5, sec. 46), providing that, if any person claiming title to real property in the city of Memphis under a tax deed shall he defeated in any suit by or against him for the recovery of the real property conveyed or purporting to be conveyed by the tax deed, the successful claimant shall be adjudged to pay such person the amount paid by the purchaser at the tax sale, and taxes thereafter paid, with twelve and one-half per cent, interest thereon, together with all costs, costs of improvements made, and costs of suit, with a lien on the property, is unconstitutional and void as creating an unreasonable discrimination in favor of the city of Memphis, as a means of collecting its taxes, and also in favor of purchasers at tax .sales, under the authority of said city. {Post, pp. 426-430.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 5, sec. 46.</p> <p>Constitution cited and construed: Art. 11, sec. 8.</p> <p>IS. SAME. Statute making owner of property in Memphis absolutely liable to purchaser at tax sale for amount paid, etc., is void as not due process of law.</p> <p>A statute whose provisions are stated in the foregoing headnote is also unconstitutional, because in violation of the constitutional provision (art. 1, sec. 8) declaring that no man shall be deprived of life, liberty or property without due process of law. {Post, pp. 426-430.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 5, sec. 46.</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>Case cited and approved: Stratton v. Morris, 89 Tenn., 497, 535.</p> <p>13. SAME. Statute providing that no error ■whatever shall affect tax sales is void as not due process of law.</p> <p>A statute (Acts 1907, ch. 184, art. 5, see. 51), providing that no error in any assessment, tax book, notice, advertisement, book of sale, certificate of purchase, deed, paper, or document, relating to the assessment, levy, or collection of the taxes of the city of Memphis, shall in any manner affect or impair the validity of any sale or other proceeding for their collection, is ■ unconstitutional as violating that constitutional provision (art. 1, sec. 8) declaring that no man shall be deprived of life, lib-_ erty or property without due process of law. (Post, pp. 430, 431.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 5, sec. 51.</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>14. SAME. Statute releasing Memphis from giving security on prosecution bonds is void as class legislation.</p> <p>A statute (Acts 1907, ch. 184, art. 8, sec. 7), providing that the city of Memphis, in taking appeals or prosecuting writs of error, shall give bond, but shall be released from the obligation of law to furnish security, is unconstitutional as class legislation. (Post, pp. 431, 432.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 8, sec. 7.</p> <p>Constitution cited and construed: Art. 11, sec. 8.</p> <p>Case cited and approved: Memphis v. Fisher, 9 Bax., 239.</p> <p>15. SAME. Statute delegating power to Memphis to regulate and license ferries instead of county court is unconstitutional.</p> <p>A statute (Acts 1907, eh. 184', art 3, sec. 1, subsec. 6), providing that the city of Memphis shall have exclusive power to license ferries and to regulate the same and the landing thereof within the limits of the city, is unconstitutional as an attempted delegation of such powers to the city of Memphis instead of the county court. (Post, pp. 432, 433.) .</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 3, sec. 1, sub-sec. 6.</p> <p>Constitution cited and construed: Art. 11, sec. 9.</p> <p>Cases cited and approved: Memphis v. Overton, 3 Yerg., 387; Guinn v. Eaves, 117 Tenn., 524.</p> <p>16. SAME. Statute placing control of aU elections in Memphis in the city council is void as not due process of law.</p> <p>Where a statute (Acts 1907, ch. 184, art. 3, sec. 1, subsec. 37). declares that the municipal council of the city of Memphis shall have power to locate and establish as many voting precincts in each ward as may be necessary to conform to any rule or regulation fixed by the county court for holding State and county elections, and (by art. 8, sec. 14) declares that all special elections, not otherwise provided for, shall be held under such regulations as may be prescribed by ordinance, and (by art. 8, sec. 15) declares that provision may be made by ordinance for the holding of any election for any lawful purpose, and for conducting the same, and ascertaining and declaring the result thereof, and making a proper record to evidence the result, and (by art. 8, sec. 22) declares the qualifications of a legal voter in said city elections, it is held that the purpose of these provisions undoubtedly was to place the whole matter of elections within the city of Memphis, both general and special, and of every nature, and for all purposes, in the municipal council, and such attempt to deprive the city of Memphis of the benefit of the general election laws (Acts 1897, ch. 16) applicable to the entire State, and including the city of Memphis, is viola-tive of the constitution (art. 1, sec. 8) as not due process of law. {Post, pp. 433-437.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 3, sec. 1, sub-sec. 37, art. 8, secs. 14, 15, and 22.</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>Case cited and approved: Gotten v. Gowan, 113 Tenn., 175.</p> <p>17. SAME. Statute placing control of all elections in Memphis in the city council is void as class legislation.</p> <p>A statute placing the control of all elections in the city of Memphis, as stated in the foregoing headnote, is in violation of the constitution. (art. 11, sec. 8) prohibiting • class legislation. {Post, pp. 433-437.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 3, sec. 1, subsec. 37, art. 8, secs. 14', 15, and 22.</p> <p>Constitution cited and construed: . Art. 11, sec. 8.</p> <p>18. SAME. Legislative history of an act is not determinative as to whether it is an independent or amendatory act, when.</p> <p>While the legislative history of an act may be looked to as throwing light upon its meaning and purpose, no controlling importance can be attached to the fact that the bill in question (Acts 1907, ch. 184) was first introduced as an independent act, and then withdrawn and introduced as an amendatory act, for the purpose of avoiding the Pendleton law, and escaping the prohibition of the sale of intoxicating liquors in the city of Memphis. The purpose of such change cannot greatly aid in determining whether such act is an amendatory one, or an independent repealing act. {Post, p. 441.)</p> <p>Acts cited and construed: Acts 1907, ch. 184.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>19. SAME. Statute whose caption shows amendment and whose, body shows express repeal is void.</p> <p>If the caption of an act shows that it was intended by the legislature as an amendatory act, while the body shows it, in direct terms, or express terms, to be a repealing act, such act must be held to be void. {Post, pp. 441, 442.)</p> <p>Case cited and approved: Murphy v. State, 9 Lea, 373.</p> <p>20. SAME. Declaration of legislative intent in caption of act is not conclusive as to whether it is amendatory or repealing.</p> <p>The opinion of the legislature expressed in the caption of an act that it is an amendatory act is not conclusive; for the question whether the act is amendatory or is a repealing.act, is a judicial one, to he determined from the body of the act. (Post, pp. 443, 444.)</p> <p>Cases cited and distinguished: Poe v. State, 85 Tenn., 495; Shelton v. State, 96 Tenn., 521.</p> <p>21. SAME. Statute operates as repeal of previous statutes on the same subject, when.</p> <p>A subsequent act containing a full scheme of legislation upon the subject which it covers operates as a repeal of prior acts on the same subject. (Post, p. 445.)</p> <p>Case cited and approved: Erwin v. State, 116 Tenn. 71, 89, 90, et seq.</p> <p>22. SAME. Same. Case in judgment.</p> <p>A statute (Acts 1907, ch. 184) whose caption purports to be an amendment of the charter of the city of .Memphis, and whose body, as shown by the provisions quoted in the opinion of the court, embraces a complete new charter for that city, and therefore operates as a repeal, by implication, of the existing charter, and is unconstitutional as violative of that provision of the constitution (art. 2, sec. 17) requiring the subject of an act to be expressed in its caption. (Post, pp. 441-465.)</p> <p>Acts cited and construed: Acts 1907, ch. 184.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>Cases cited and approved: Murphy v. State, 9 Lea, 373; Brinkley v. State, 108 Tenn., 475; Erwin v. State, 116 Tenn., 71, 89, 90, et seq.; United States v. Tynen, 11 Wall., 88; Murphy v. Utter, 186 U. S., 104. •</p> <p>Cases cited and distinguished: Hyman v. State, 87 Tenn., 109-111; Goodbar v. Memphis, 113 Tenn., 20; Wright v. Cunningham, 115 Tenn., 445.</p> <p>S3. SAME. TJnconstitutionality of parts of a statute renders the ■whole of it void, when.</p> <p>The provisions of the statute (Acts 1907, ch. 184) stated in head-notes 2-5 and 7-17, and therein held and shown to- be unconstitutional, are not so merely incidental and subordinate that they can be stricken out without in any sense impairing the efficiency of the statute, and they are so numerous that it cannot be said that the legislature would have passed the act with such provisions omitted, and therefore the entire act must fall upon this ground. {Post, pp. 438, 439, 465, 466.)</p> <p>See citations under headnotes 2-5 and 7-17.</p> <p>Case cited and approved: State, ex rel., v. Trewhitt, 113 Tenn., 561, 571, 572, and numerous cases cited in the opinion, on page 439.</p> <p>24. SAME. Subject of an act must be expressed in its title. Case in judgment where it is not so expressed-</p> <p>Under a statute (Acts 1907, ch. 184) entitled “An act to modify and change in certain respects the ’form of government of the city of Memphis . . . and to amend its existing charter or charters ... so as to continue its existence, with a more efficient form of government, . . .” provisions in the body thereof (art. 5, secs. 37, 41, 4'4) relative to State and county taxes; the provision (art. 3, sec. 1, -subsea 6), giving said city the exclusive power to license ferries; and the provision (art. 3, sec. 3) authorizing the president (the mayor), when he deems a nuisance to exist within the city or within ten miles of its limits-, to- abate the same, are not embraced in the title, and are therefore in violation of the constitution (art. 2, sec. 17) declaring that the subject of an act must be expressed in its title. (Post, pp. 466, 467.)</p> <p>Acts cited and construed: Acts 1907, ch. 184, art. 3, sec. 1, sub-see. 6; art. 3, sec. 3; art. 5, secs. 37, 41, 44.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>Case cited and approved: Knoxville v. Lewis, 12 Lea, 180.</p> <p>25. OFFICE. Defined; remedy for injury to it.</p> <p>An office is an incorporeal right, and consists in the right to ex-, ecute a public trust and to take the emolumente belonging to it, and an injury to this right is an injury to a private right for which there ought to he a remedy. (Post, pp. 467, 468.)</p> <p>Cases cited and approved: Dodd v. Weaver, 2 Sneed, 670; Memphis v. Woodward, 12 Heisk., 499; Moore v. Sharp, 98 Tenn., 68; Nelson V. Sneed, 112 Tenn., 48; Maloney v. Collier, 112 Tenn., 100; Wammack v. Hollaway, 2 Ala., 33; Hoke v. Henderson, 16 N. C., 1.</p> <p>26. SAME. An officer cannot be legislated.out of office without an absolute and bona fide abolishment of the office.</p> <p>A statute (Acts 1907, ch. 184, art. 8, sec. 8) abolishing and vacating the offices existing under the charter of the city of Memphis, and reenacting or recreating the same offices under different names duties somewhat enlarged, hut substantially the same as the respective and corresponding abolished offices, is void. While an office may he abolished, yet the officer cannot be legislated out of office without an abolishment thereof. (Post, pp. 467-480.) '</p> <p>Acts cited and construed; Acts 1907, ch. 184,- art. 8, sec. 8.</p> <p>Cases cited and approved: Haynes v. State, 3 Humph, 480; Halsey v. G-aines, 2 Lea, 316, 324, 326; State v. Leonard, 86 Tenn., 485; Judges Cases, 102 Tenn., 510, 538-540; State v. Lindsay, 103 Tenn., 625; Redistricting Cases, 111 Tenn., 234; State, ex rel., v. Hamby, 114 Tenn., 36; and numerous cases from other States cited in the opinion, on pages! 471-478.</p>

<p>1. EVIDENCE. Sufficient to sustain inference of fraud in the purchase of goods.</p> <p>In an action of replevin by the seller of goods to recover the same, the evidence stated is considered sufficient to warrant the jury in inferring that the goods were purchased through fraud on the part of the purchaser.</p> <p>2 WAREHOUSE RECEIPTS. Negotiable; but holder must show that he was a bona fide purchaser where goods were procured by fraud.</p> <p>While warehouse receipts are negotiable by indorsement and delivery, in the same manner as bills of exchange and promissory notes, yet where it is shown that the goods represented by a warehouse receipt were purchased through fraud by an insolvent purchaser, the burden rests on the holder of the receipt to show that he was a tona fide purchaser and holder. (Post, pp. 485-494.)</p> <p>Code cited and construed: Sec. 3605 (S.). sec. 2796 (M. & V.).</p> <p>Acts cited and construed:’ Acts 1879, ch. 236, sec. 5.</p> <p>Cases cited and approved: Stewart v. Insurance Co., 9 Lea, 104, 109; Bank v. Haselton, 15 Lea, 216, 239; Marks v. Bridges, 106 Tenn., 540; Bank v. Green, 43 N. Y., 300; Anderson v. Bank, 47 N. Y. St. Rep., 448; Vallett v. Parker, 6 Wend. (N. Y.), 615; Nickerson v. Ruger, 76 N. Y., 282; Bank v. Diefendorf, 123 N. Y., 191; McCammon v. Shantz, 49 App. Div., 462; Bank v. Weston, 162 N. Y., 118; Bank v. Weston, 172 N. Y., 254; Bank v. Richter, 55 Minn., 365; Hallock v. Young, 72 N. Hi, 420; Bank v. Burgwyn, 108 N. C., 62; Bank v. Burgwyn, 110 Ñ. C., 267; Pugh v. Grant, 86 N. C., 39.</p> <p>3. CHARGE OF COURT. Refusal of request substantially charged in the general charge is not error.</p> <p>There is no error in refusing a requested charge, where the substance of the instruction requested is contained in the general charge. (Post, pp. 494.)</p> <p>4. EVIDENCES OF TITLE. Burden on purchaser to show bona fides, where goods were obtained by fraud.</p> <p>The claimant of goods as the indorsee of the evidences thereof, where the party under whom he claims title obtained the goods through fraud, must aflirmatively show that he was a dona fide purchaser of said evidences - of the goods, whether the same be a bill of lading or a warehouse receipt. (Post, pp. 494, 495.)</p> <p>Cases cited and approved: Arendale v. Morgan, 5 Sneed, 703; Neilson v. Weber,. 107 Tenn., 161, 164; Galatian v. Erwin, Hopk. Chy. (N. Y.), 48.</p>

<p>ESTOPPEL. By acquiescence and laches and partition of other parts of tract to assert title to an undivided interest in land, when.</p> <p>Complainant acquired title to an undivided one-third interest in certain lands after the owner of the other undivided two-thirds thereof had sold and conveyed part thereof by metes and bounds by warranty deed purporting to convey the fee in the whole of such part, to which conveyance complainant made no objections for forty years, though it was registered; and he permitted the grantee, his heirs and assigns to pay taxes on said land and transfer it, and exercise acts of dominion over it, without asserting any title to it himself. More than thirty years afterwards, complainant made a written stipulation with the heirs and other assigns of the seller to' partition said land, but it was agreed that the above previously sold land should be deducted, and not included in the partition, which partition was made, and the report thereof wasi confirmed by a decree of the county court in accordance with the stipulation. Ten years thereafter, and after the lands so allotted to complainant and others were sold and conveyed to innocent purchasers, complainant filed a bill to recover the undivided one-third interest therein and to obtain partition thereof. Upon the foregoing facts, the court holds that. complainant, by his acquiescence and laches was estopped to sue to recover his undivided one-third interest in said land and to obtain partition thereof.</p> <p>Cases cited and approved: Owens v. Dunn, 85 Tenn., 131; Robertson v. Winchester, 85 Tenn., 188; Ore Co. v. Miller, 41 Conn., 112; Goodwin v. Keney, 49 Conn., 563; Johnson v. Stevens, 7 Cush. (Mass.), 431; Holcomb v. Coryell, 11 N. J. Eq., 548; Arnold v. Cauble, 49 Tex., 529; Camron v. Thurmonds, 56 Tex., 22; Furrh v. Winston, 66 Tex., 521; Worthington v. Staunton, 16 W. Va., 208.</p>

<p>1. CORPORATIONS. Proof of signatures of corporators to amendment by any competent witness.</p> <p>The signatures of the corporators on their application for amendment of the charter may he proved before the clerk of the county court by any witness who is competent to testify in court as to the matter involved, and interest in the charter applied for does not disqualify the witness. (Post, pp. 515, 516.)</p> <p>Code cited and construed: Secs. 2542, 3712 (S); secs. 1989, 2850 (M. & V.); sec. 2038 (T & &. and 1858).</p> <p>Acts cited and construed: Acts 1879, ch. 200.</p> <p>Case cited and distinguished: Bank v. O’Brien, 94 Tenn., 38.</p> <p>2. SAME. Same. Validity of amendment to charter cannot be attacked as defense to action on contract.</p> <p>The subscriber for stock in a corporation when sued on his notes for stock issued under his contract of subscription shall not be permitted to set up as a defense the want of a legal organization based on the ground that the witness to the signatures of the corporators on their application for an amendment to the charter was incompetent. (Post, pp. 516, 5Í7.)</p> <p>Code cited and construed: Secs. 2031, 2064 (S.); sec. 1713 (M. & V.); sec. 1455 (T. & S. and 1858).</p> <p>Case cited and distinguished: Railroad v. Sneed, 99 Tenn., 1.</p> <p>3. SAME. Subscription to increase of capital stock is valid, though the whole amount is not taken.</p> <p>The general principle or rule that a subscription .to the original stock of a corporation is made upon the condition that the ■whole amount of the capital stock is taken by tona fide subscribers, and that the subscribers will not he compelled to pay until this is done, does not apply to increased issues of stock. (Post, pp. 517-530.)</p> <p>Acts cited and construed: Acts 1883, ch. 163.</p> <p>Cases cited and distinguished: Read v. Gas: Co., 9 Heisfc., 546; Anderson v. Railroad, 91 Tenn., 44; Railroad v. Sneed, 99 Tenn., 7; Nutter v. Railroad, 6 Gray (Mass.), 87; Winters v. Armstrong (C. C.), 37 Fed., 508.</p> <p>4. SAME. Inability of subscribers for increased issue of stock is not dependent on debts against the corporation in liquidation.</p> <p>The liability of a subscriber for h'is subscription in the increased capitalization of a corporation is not dependent upon the existence of debts against the corporation which has gone into liquidation, for the payment of his subscription is necessary for the equalization of all the stockholders in the distribution of the assets. (Post, pp. 530, 531.)</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby County.— F. H. Heiskell, Chancellor.</p>

<p>1. MECHANIC’S LIEN. Enforcement by subcontractors as by contractors, excepting judgment and execution.</p> <p>The provisions of our statutes for the enforcement of the liens of mechanics and furnishers apply alike to principal contractors and subcontractors, except that subcontractors, not being creditors of the owners of the property upon which the improvements are made, cannot enforce their liens by judgment and execution. (Post, p. 552.)</p> <p>Code cited and construed: Secs. 354'0, 3543, 5306, 5310 (S.); secs. 2746, 2747, 4286, 4290 (M. & V.); secs. 1986, 1987, 3543, 3547 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1881, ch. 67; Acts 1889, ch. 103.</p> <p>Case cited and approved: Lumber Co. v. Loeb, 110 Tenn., 251.</p> <p>2. SAME. Attachment for its enforcement is not original or leading process, but is collateral or auxiliary.</p> <p>The attachment authorized by statute for the enforcement of the liens of mechanics and furnishers is not original or ancillary process. It iis extraordinary process not to be issued except upon the order of a judge or chancellor in suits brought in the circuit and chancery courts. It cannot be used as the leading process to bring the defendants before the court. It is auxiliary in its nature and collateral to the original or leading process by which a suit is commenced and may be incorporated with the leading process, though not constituting leading process. (Post, pp. 552, 553.)</p> <p>Code cited and construed: Secs. 3543, 5306, 5310 (S.); secs. 2747, 4286, 4290 (M. & V.); secs. 1987, 3543, 3547 (T. & S. and 1858).</p> <p>Cases cited and approved: Brown v. Brown, 2 Sneed, 432; Mur-ry v. Conner, 4' Bax., 220; Hillman v. Anthony, 4 Bax., 444; Lane V. Wood, 1 Tenn. Cas., 648; Lumber Co. v. Loeb, 110 Tenn, 251.</p> <p>3. SAME. Procedure before justices of the peace for its enforcement by suit and attachment.</p> <p>No form of procedure for enforcing the liens of mechanics and furnishers before justice of the peace is prescribed by statute, and the proceedings must be according to the course of the common law as near as possible. There must he a suit brought by the party seeking to enforce the lien, and an attachment sued out against the property upon which the lien is claimed, simultaneously with the issuance of the warrant. (Post, pp. 653, 654.)</p> <p>4. SAME. Necessary parties defendant to suit of subcontractor for its enforcement.</p> <p>Where the suit is brought by a subcontractor or to enforce the mechanic’s and furnisher’s lien, the principal contractor and the owner of the property upon which the lien is claimed must both he made parties defendant, because the former is the debtor sued and because it sought to reach the property of the latter, and both must have their day in court to constitute due process of law. (Post, p. 554.)</p> <p>6. SAME. What justice’s warrant in suit for its enforcement should contain.</p> <p>In a suit before a justice by a subcontractor to enforce a met-chanic’s and furnisher’s lien, the warrant should contain a brief statement of the facts constituting his right to recover against the principal contractor and to a lien against the property of the owner, and show upon its face that an attachment had been sued out to enforce the lien claimed. (Post, p. 554.)</p> <p>6. SAME. Of subcontractor is barred, when suit is delayed ninety days after notice of lien.</p> <p>A subcontractor’s suit before a justice to enforce the mechanic’s and furnisher’s lien is not commenced by the issuance of an attachment, and where the warrant is not issued within ninety days after the service of the notice of the lien, the suit is barred by the statute of limitation. (Post, p. 555.)</p>

<p>1. STATUTES. Journal entries as to enactment 'need not be specially pleaded or proved; judicial notice thereof.</p> <p>The journals of the general assembly showing the various steps taken in the enactment of statutes are not required to be specially pleaded or proved, when a statute is attacked for the want of formalities in its enactment required by the constitution; for the courts will take judicial notice of all entries relating to legislation. (Post, pp. 558, 559.)</p> <p>Constitution cited and construed: Art. 2, sec. 21.</p> <p>3. SAME. Title or caption need not be stated in journal entries; identifying description is sufficient.</p> <p>The constitution does not require the caption or title of a legislative bill to be stated in the several journal entries showing the various steps taken in its enactment, nor that it be described in the same words in these entries; for all that is necessary is lhat it be so described as to identify it. (Po&'t, pp. 560, 561.)</p> <p>Acts cited and construed: Acts 1903, ch. 249.</p> <p>3. SAME. Same. Discrepancies in journal entries treated as abbreviations or omissions supplied by presumption.</p> <p>Discrepancies between the several journal entries showing the passage of a bill, and between those entriets and the title of the act, aire treated as mere abbreviations or omissions, which will be disregarded as immaterial or supplied by presumption of regularity in the proceedings of the general assembly. (Post, pp. 661, 562.)</p> <p>Acts cited and construed: Acts 1903, ch. 249.</p> <p>Constitution cited and construed: Art. 2, sec. 18.</p> <p>Case cited and approved: Nelson v. Haywood Co., 91 Tenn., 595.</p> <p>4. SAME. Presumptions in favor of regularity and validity of legislative proceedings.</p> <p>Every reasonable presumption will be made in favor of the regularity and validity of the proceedings of the general assembly as a co-ordinate branch of the government. (Post, pp. 562-564.)</p> <p>Cases cited and approved: State v. McConnell, 3 Lea, 333; Williams v. State, 6 Lea, 553; Brewer v. Huntingdon, 86 Tenn., 737; State, ex rel., v. Algood, 87 Tenn., 164; Nelson v. Haywood Co., 91 Tenn., 595.</p>

<p>1. VERDICTS. Excessive against sleeping car company for ■wrongfully refusing accommodations, when.</p> <p>A verdict for five hundred dollars is excessive in a suit against a sleeping car company for refusing plaintiff accommodations in one of its cars', because of a mistake made by defendant’s agent in selling plaintiff a ticket and bis inability to pay again for a berth, which resulted in his being compelled to sit up all night in a crowded and uncomfortable day coach, it not being shown that he was treated with rudeness or discourtesy, or subjected to unnecessary humiliation. (Post, pp. 566, 567.)</p> <p>2. ARGUMENT OE COUNSEL. Statement of facts not in evidence, and reading decisions, to influence jury are grounds for a new trial, when.</p> <p>Counsel cannot in argument make statements of facts not in evidence for the purpose of influencing the jury, and opinions of courts in other cases stating the amounts of recoveries there had and sustained cannot be read for a like purpose; and where these things are done over the objection of counsel for the opposite party, they will- vitiate a verdict thus in part procured, and it will be set aside and a new trial granted. (Post, pp. 567-569.)</p> <p>Cases cited and approved: Manufacturing Co. v. Woodall, 115 Tenn., 605; English v. Ricks, 117 Tenn., 73.</p> <p>3. SAME. Same. Reprimanding and fining counsel for improper argument does not remove impression made on jury.</p> <p>It is immaterial that the objection to the improper matter was sustained, and that counsel was reprimanded and fined for the improper argument made as shown in the foregoing headnote. The purpose of counsel had been accomplished. The jury had been inoculated 'With the poison of the foreign matter improperly injected in the case, and it was impossible to remove the impression made upon the jury. (Post, pp. 569, 570.)</p>

<p>1. JUDGMENT BY DEFAULT. Sufficient without formally calling out defendant, when.</p> <p>Before rendering a judgment by default, good practice requires that the defendant in default should he called out, and that an entry of the fact should he made; though a failure to do so will not mate the judgment void. (Post, pp. 573, 574, 577.)</p> <p>Cases cited and approved: State v. Grigsby, 3 Yerg., 280; White y. State, 5 Yerg., 183, 184.</p> <p>2. SAME. Judgment may be entered without a jury; when; but a jury is required, when.</p> <p>Where a judgment by default is taken upon an instrument showing a present indebtedness, as a bond, bill, or note, or liquidated account signed by the defendant, so that the amount may be ascertained from the papers by a simple calculation, judgment may be entered at once upon default taken without the intervention of a jury; but in all other cases a jury is required to fix the amount. (Post, pp. 577, 578.)</p> <p>Cases cited and approved: Association v. Cook, 3 Head, 313; Williams v. Bank, 1 Cold., 44, 45, 46; Beeler v. Huddleston, 3 Cold., 201, 204; Railroad v. Green, 9 Heisk., 588, 593.</p> <p>3. SAME. Same. Instrument sued on must be filed to authorize judgment without a jury, when.</p> <p>Where the instrument sued on is not filed in the cause, there are no “papers” from which the calculation can be made as stated in the foregoing headnote; and in such case a jury is necessary before a judgment can be entered for anything more than nominal damages. (Post, p. 578.)</p> <p>4. PROFERT. Of instrument sued on means what.</p> <p>Proferí of the instrument sued on made in the declaration means that the plaintiff has it, and holds himself in readiness to produce it upon demand, hut does not mean that the paper is in court. (Post, p. 578.)</p> <p>Case cited and approved: Insurance Co. v. Thornton, 97 Tenn., 1.</p> <p>5. JUDGMENT UPON DEFAULT. Mandamus to compel issuance of execution refused, when invalid.</p> <p>Where a judgment upon default is improperly entered without! the intervention of a jury to fix the amount thereof, in a case requiring a jury, a writ of mandamus to compel the issuance • of an execution on the judgment will not he awarded. (Post, p. 578.)</p> <p>6. SAME. Necessary parties to mandamus suit to compel issuance of execution.</p> <p>All persons interested should he made parties to a proceeding for a writ of mandamws, and a mmdamm to compel the issuance of an execution on judgment upon default will he refused, where the party in default, against whom the judgment stands, is not made a party. (Post, p. 578.)</p> <p>Cases cited and approved: State, ex rel., v. Willett, 117 Tenn., 334, 350 351; Powell v. People, 214 Ill., 475; Austin v. Cahill (Tex. Civ. App.), 88 S. W., 536.</p> <p>7. SAME. Mandamus will not lie to compel clerk to issue execution on vacated judgment, when.</p> <p>Mandamus will not lie against the clerk of a court to compel him to issue an execution on a judgment upon default set aside hy the court at a subsequent term hy consent of the parties. The clerk is only a ministerial officer and it is not for him to pass judgment on the act of the circuit judge in setting aside the judgment. (Post, pp. 578, 579.)</p> <p>Cases cited and approved: State v. Miller, 1 Lea, 596, 606, 607; State v. Wilhur, 101 Tenn., 211, 220.</p> <p>Cases cited and distinguished: Anderson v. Thompson, 7 Lea, 262; State v. Dalton, 109 Tenn., 649; Johnson v. Russell, M'S., at Jackson, April term, 1895; Bronson v. Schulten, 104 U. S., 410, 26 L. Eld., 797.</p> <p>8. SAME. Certiorari to review entry vacating judgment; appeal or writ of error may also lie.</p> <p>The proper remedy to review the entry setting aside a judgment upon default is the writ of certiorari, or possibly by appeal or writ of error. (Post, p. 579.)</p> <p>9. MANDAMUS. Extraordinary remedy to be resorted to, when. Mandamus, is an extraordinary writ, and can be resorted to only</p> <p>when other ¡remedies fail. (Post, pp. 579, 580.)</p> <p>Case cited and approved: Ex parte Insurance Co., IT. S. Sup. Ct. Dec., not officially reported, but reported in 26 L. Ed., 561.</p>

<p>1. VARIANCE. None between allegations and proof in action against street railway for wrongful collision causing death, when.</p> <p>There is no variance between the allegations and the proof, where the declaration in an action against a street railway company for causing the death of plaintiff’s husband alleged that while the decedent, with due care and diligence, was driving a heavily loaded wagon along its track, defendant carelessly, negligently, and recklessly ran one of its cars with great force and violence upon and against the wagon in which decedent was driving, throwing him from the seat, painfully and permanently injuring, wounding, and disabling him, and where the evidence was that the decedent was thrown from the wiagon and injured during the flight of the horse, caused by his becoming frightened by the impact of the car produced by the negligence of the servants of the defendant; for the gravamen of the declaration is that decedent was thrown to the ground by the wrongful act of the defendant in running its car negligently against decedent’s wagon. {Post, pp. 583-596.)</p> <p>Cases cited and approved: Corn v. Brazelton, 2 Swan, 273; and numerous other cases from other States, cited in the opinion, on pages 593-595.</p> <p>Cases cited and distinguished: Coal Co. v. Daniel, 100 Tenn., 65; and numerous other cases from other States, cited in the opinion, on pages 586-592.</p> <p>3. EVIDENCE. Mortality tables showing expectancy of life, when the evidence of disease is conflicting, when.</p> <p>In an action for wrongful death, the admission of mortality tables as evidence of the decedent’s expectancy of life is not erroneous, though there was evidence that decedent was in a very advanced stage of dropsy, when there was also evidence to the contrary, and where the court fully instructed the jury on the application of the tables, on the theory of the defendant as to the state of health of the decedent. {Post, pp. 596, 597.)</p> <p>3. VERDICTS. For wrongful death is excessive for shortness of expectancy of life, etc., when; remittitur cures excessiveness, when.</p> <p>A verdict for four thousand dollars is excessive, and there must be a remittitur of one-half of it, or a new trial will be granted, in an action against a street railway company for a wrongful death, where the evidence showed that the decedent was afflicted with dropsy, that his life could have lasted but a very few years, with earning power constantly decreasing, and probably soon ceasing altogether, with the progress of the disease; that he never recovered his senses after the accident, and hence did not suffer consciously; and that there was an entire absence of wantonness on the part of the defendant or its servants. {Post, pp. 598-600.)</p>

<p>1. CONTRIBUTORY NEGLIGENCE. Precludes recovery for personal injuries notwithstanding negligence of street car motorman, when.</p> <p>In an action against a street railway company for personal injuries sustained by plaintiff in a collision of one of defendant’s cars with his wagon, the plaintiff is precluded by his contributory negligence, from recovering, notwithstanding the negligence of the motorman of the car, in the absence of recklessness or wantonness on the part of the motorman, where the accident occurred while the plaintiff was driving along the street car track when one could not see more than 30 or 40 feet ahead because of the darkness and dust, and when he could have driven on the side of the street, and remained out of danger. (Post, pp. 603-615.)</p> <p>Cases cited and approved: Whirley v. Whiteman, 1 Head, 619; Railroad v. Hull, 88 Tenn., 35; Railroad v. Pugh, 97 Tenn., 627; Railroad v. Norman, 108 Tenn., 324'; Railroad v. Williford, 115 Tenn., 108; Railroad v. Hayes, 117 Tenn., 680, 693-696; and numerous cases from other States cited in the opinion, on pages 609-614.</p> <p>8. ATTORNEY AND CLIENT. Client’s ratification of his attorney’s unauthorized settlement, by procuring indictment, estops him to sue again, when.</p> <p>The plaintiff in an action for personal injuries is precluded from recovering, by his ratification of an unauthorized settlement effected by his attorneys in a previous action for the same cause by means of a forged power of attorney operating to deceive and mislead the defendant, where the plaintiff caused his said attorneys to be indicted for embezzlement and fraudulent breach, of trust for the purpose of compelling them to pay oyer to him the money obtained from the defendant by them, or suffer the penalty for the crime, the indictment charging that the accused attorneys had obtained the money in full satisfaction of the suit, and that it was the property of the prosecutor, the said plaintiff and client. (Post, pp. 615-625.)</p> <p>Oases cited and approved: Knuckolls v. Lea, 10 Humph., 577; Williams v. Storm, 6 Cold., 203; Fort v. Coker, 11 Heisk., 579; Gilbert v. Hunnewell, 12 Heisk., 289; Gracy v. Potts, 4 Bax., 4'95; Walker v. Walker, 7 Bax., 260; Hart v. Dickson, 5 Lea., 336; Hook v. Donaldson, 9 Lea, 56; Winham v. Crutcher, 10 Lea, 626; Woodfolk v. Marley, 98 Tenn., 467.</p> <p>Cases cited and distinguished: Cherry v. Newsome, 3 Yerg., 369; Scott y. Johnson, 5 Heisk., 632.</p> <p>3. VERDICTS. Reversal and dismissal for erroneous refusal to give peremptory instructions.</p> <p>On both grounds stated in the first and second headnotes, the defendant was entitled to peremptory instructions in its favor, and for failure to give such instructions asked for, the judgment is reversed, and the action is dismissed. (Post, pp. 603-627, but especially, 603, 615, 626, 627.)</p>

<p>1. VERDICTS. Controverted questions of fact are settled by verdict and judgment, -when reviewed on appeal.</p> <p>In the examination of the evidence on appeal, the supreme court ■will accept that view of the ease most favorable to the party in whose favor all controverted questions of fact were settled by the verdict of the jury and the judgment thereon. (Post, p. 631.)</p> <p>2. REPLEVIN. Judgment is not a bar for excessive levy an conversion, when.</p> <p>A judgment in an action of replevin is not a bar to a subsequent action by the defendant against the plaintiff for an excessive levy made by the officer at the instance of the plaintiff and for a conversion by the plaintiff, because in the replevin suit, the question of the plaintiff’s trespass in taking and converting other property is not involved, and cannot be adjudicated. {Post, pp. 634-637.)</p> <p>Code cited: Sec. 6144 (S.); sec. 4126 (M. & V.); sec. 3390 (T. & S. and 1858).</p> <p>Cases cited and approved: Kramer v. Matthews, 68 Ind., 172; Hall v. Durham, 113 Ind., 327.</p> <p>Cases cited: Arnold v. Kyle, 8 Bax., 319; Cromwell v. Co. of Sac, 94 U. S., 351.</p> <p>S. SAME. Same. Nor is judgment for defendant for value of quantity above what plaintiff recovers a bar for excessive levy and conversion thereunder.</p> <p>Where in an action of replevin for a specific quantity of lumber, it is adjudged that plaintiff is entitled to a less quantity than that sued for and levied on under the writ, and a judgment is rendered in favor of the defendant far the value of the excess so sued for and levied on, sucb judgment is not a bar to a subsequent suit by tbe defendant against tbe plaintiff for an excessive levy made by tbe officer at tbe instance of tbe plaintiff and for a conversion by tbe plaintiff because the question as to excessive levy and conversion thereunder is not involved in tbe re-replevin suit. (Post, p. 637.)</p> <p>See citations under the second headnote:</p> <p>4. SAME. Same. Same. Unsuccessful suit against officer for excessive levy is no bar to suit against the plaintiff for conversion.</p> <p>An unsuccessful suit against an officer and his sureties, on their bond, for an excessive levy and wrongfully taking possession of property in excess of the quantity called for in the writ of replevin is not a bar to a subsequent suit against the plaintiff in tbe replevin suit for the conversion of property procured by him to be levied on under a writ of replevin, but not specified or called for in the writ. (Post, pp. 637-643.)</p> <p>Cases cited and approved: Lovejoy v. Murray, 3 Wall, 1; Litch-ifield v. Goodnow, 133 U. S., 551; Ayer v. Ashmeed, 31 Conn., 4'47.</p> <p>Cases cited and distinguished: Hennessee v. Ford, 8 Humph., 500; Phillips v. Hollister, 2 Cold., 271; Butler v. Kinzie, 90 Tenn., 81; Dunscomb v. Wallace, 105 Tenn., 386'</p> <p>5. EVIDENCE. Statements by agent as explanatory of his possession are admissible against his principal, when.</p> <p>Where property is wrongfully levied on under a writ of replevin, because not embraced in the writ, and the same is placed in the charge of a third party by the plaintiff in the replevin suit as his representative, all that such third party said explanatory of his possession and why the property could not be taken away is admissible in evidence in an action by the defendant in the replevin suit against the plaintiff therein for the conversion of such property so wrongfully levied on to show that the defendant who was the plaintiff in the replevin suit was claiming tbe exclusive custody of all tbe property, though the statements were made sometime after the levy. (Post pp. 643-645.)</p> <p>Cases cited and approved: Mining Co. v. McMahon, 1 Head, 582: Insurance Co. v. Booker, 9 Heisk., 607; Gavin v. Walker, 14' Lea, 646; Packet Co. v. Clough, 20 Wall., 540; Railroad v. O’Brien, 119 U. S.„ 99.</p> <p>6. SAME. Stated and held sufficient to sustain finding of conversion.</p> <p>In an action for the conversion of property wrongfully levied on under a writ of replevin, the evidence is stated and held sufficient to sustain the finding of the verdict that the defendant, who was the plaintiff in the replevin suit, took charge of the propeirty so wrongfully levied on, and put it in the charge and custody of his agent and thus converted it to his own use. (Post., pp. 645-649.)</p> <p>Cases cited and approved: Bell v. Cummings, 3 Sneed, 275; Scruggs v. Davis, 5 Sneed, 261; Childress v. Ford, 1 Heisk, 463; Elmore v. Brooks, 6 Heisk., 45.</p> <p>7. CHARGE OF COURT. Refusal of special request is not error, where there is no evidence to which it is applicable.</p> <p>In an action for conversion by a wrongful levy and taking possession of a whole barge of lumber under a writ of replevin, but in excess of the amount called for in the writ, there is no error in the refusal of the court to charge- a special request that, if the inclemency of the weather prevented the separation of the lumber, defendant was not liable, where there was no evidence that the weather was so inclement when the barge of lumber was levied on that the lumber could not be separated, especially where the weather was not inclement when the levy was made, and no such condition prevailed for several days thereafter. (Post, pp. 649, 650.)</p>

<p>1. ACTIONS. Two causes of action presented in a declaration are properly triable separately.</p> <p>Where a declaration presents two causes of action, one, in the nature of an action for the taking of property, demanding damages resulting from the impairment of the value of property abutting on a street by lowering the grade of the street, and the other, for the use and occupation of the house on the premises, a striking out of the last cause of action by the court and a direction that it be tried in a separate action, or before a separate jury is proper. (Post, pp. 654-661.)</p> <p>2. DECLARATION. Allegation of combination and confederation ignored as surplusage, when out of harmony with the whole declaration.</p> <p>An allegation of combination and confederation of the defendants made in a declaration, when out of harmony with the whole substance of the declaration, may be ignored as mere surplus-age. (Post, pp. 659-661.)</p> <p>3. MUNICIPAL CORPORATIONS. Liability for damages for impairment of ingress and egress to and from lots abutting on streets.</p> <p>A municipal corporation, together with railroad corporations, in changing the grade of a street becomes liable in damages for compensation for the impairment of the easement or right of ingress and egress to and from a lot abutting thereon, in an action for such compensation, a,nd not for the tort or trespass; ■and peremptory instructions for defendants in such case under the facts of the case is erroneous. (Post, pp. 661-677.)</p> <p>Code cited and construed: Secs. 1985-1988 (S); Secs. 1665-1661 (M. & V.); secs. 1392-1394 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1891, ch. 31.</p> <p>Cases cited and approved: Railroad v. Adams, 3 Head, 596, 600; Anderson v. Turbeville, 6 Cold., 150; Nashville v. Niehol,3Bax., 340; Gray v. Knoxville, 85 Tenn., 99; Telegraph and Telephone Co. v. Railroad, 93 Tenn., 522; Hamilton Co. v. Rape, 101 Tenn., 222; Barron v. Memphis, 113 Tenn., 89.</p> <p>Oases cited and distinguished: Humes v. Knoxville, 1 Humph., 408; Railroad v. Bingham, 87 Tenn., 530; Smith v. Railroad, 87 Tenn., 630; Chattanooga v. Neely, 97 Tenn., 529; State v. Taylor, 107 Tenn., 463.</p> <p>4. CONSTITUTIONAL LAW. Statute excepting a city from liability for change in grade of street resulting in impairment of ingress and egress is unconstitutional.</p> <p>A statute (Acts 1901, ch. 153) providing that certain cities, meaning the city of Memphis, shall be excepted from a statute (Acts 1891, ch. 31) authorizing a recovery of damages by property owners, caused by changing the grade of streets, is unconstitutional, because it denies compensation for private property taken for public use, and does not protect a city from liability for the impairment of an easement or right of ingress and egress to and from a lot abutting on a street, caused by a change in the grade of the street. (Post, pp. 673-675.)</p> <p>Code cited and construed: Secs. 1985-1988 (S.); secs. 1665-1667 (M. & V.); secs. 1392-1394 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1879, ch. 11; Acts 1881, ch. 96, sec. 5; Acts 1891, ch. 31; Acts 1893, ch. 41; Acts 1897, chs. 156, 195, 215, 222, 277; Acts 1901, ch. 153.</p> <p>Constitution cited and construed: Art. 1, sec. 21; art. 11, sec. 8.</p> <p>Cases cited and approved: Chattanooga v. Neely, 97 Tenn., 529; Hamilton Co. v. Rape, 101 Tenn., 222; Goodbar v. Memphis, 113 Tenn., 33; Barron v. Memphis, 113 Tenn., 89.</p> <p>Case cited and distinguished: Humes v. Knoxville, 1 Humph., 408.</p> <p>5. MUNICIPAL CORPORATIONS. Right of access of abutter owning to margin of street is same as that of owner to center of street.</p> <p>An abutting owner, whose line extends only to the margin of the street, has the same right of ingress and egress in respect of of his abutting property to and from the street, as one, whose line extends to the middle of the street, has. (Post, pp. 665, 670, 675, 676.)</p> <p>Cases cited and approved: Railroad v. Bingham, 87 Tenn., 530; Smith v. Railroad, 87 Tenn., 630; Hamilton Co. v. Rape, 101 Tenn., 222; Brumit v. Railroad, 106 Tenn., 124.</p> <p>6. SAME. Same. Compensation is not denied because change of grade of street is made in exercise of the police power.</p> <p>An abutting owner is entitled to compensation for the impairment of his easement of access to and from his abutting premises, resulting from the change of the grade of the street, 'though the change be made in the exercise of the police power by lowering the street for the passage of ordinary traffic and for the construction of an elevated railroad resting on supports, but at the level of the street before the change was made. (Post, p. 676.)</p> <p>Acts cited and construed: Acts 1881, ch. 96, sec. 5.</p> <p>Case cited and overruled: Williams v. Taxing District, 16 Lea, 531.</p>

FROM SHELBY. Appeal from the Chancery Court of Shelby County.— F. H. Heiskell, Chancellor. Mu.

<p>1. WHIT OE ERROR. 'Application for, made without notice within a year.</p> <p>Application for writ of error and soire facias to revive the cause against the heirs of a party dying after the final decree and the close of the term, made within one year to the clerk of the supreme court, may he acted upon and granted without notice to the adverse party; for the notice required in such ease applies only to the hearing, to he given after such application and five days before the hearing. (Post, pp. 695-697.)</p> <p>Code cited and construed: Secs. 4919, 6350 (S.); secsi. 3903, 5267 (M. & V.); secs. 3183, 4515 (T. & S. and 1858).</p> <p>Cases cited and approved: Spurgin v. Spurgin, 3 Head, 24; White v. Bettis, 5 Heisk., 376.</p> <p>2. SAME. Same. Rule 27 of supreme court as to notice does not apply within one year, unless supersedeas is sought, when.</p> <p>Rule 27 of the supreme court (found in 5 Pickle, 777) requiring notice of petition for writs of error or writs of error and super-sedeas has no application where the writ is applied for within one year, unless a supersedeas is applied for in connection with the writ of error. (Post, p. 697.)</p> <p>3. SAME. Notice of application for, is waived by demurrer or motion to dismiss, when.</p> <p>Notice of the application for a writ of “error and scire facias to revive a cause against the heirs oí a deceased party is waived by appearance and demurrer to the scire faeias, or by motion to dismiss the writ of error for want of notice. (Post, pp. 697, 698.)</p> <p>Cases cited and approved: Spurgin v. Spurgin, 3 Head, 25; McBee v. McBee, 1 Heisk., 560.</p> <p>4., SAME. After death of adverse party, with scire facias to revive.</p> <p>The defendant is entitled to a writ of error and scire facias to revive the cause against the heirs of the deceased complainant who died after final decree in his favor and after the adjournment of the court. (Post, pp. 698-701.)</p> <p>Code cited and construed: Secs. 4569, 4575 (S.); secs. 3560, 3566 (M. & V.); secs. 2846, 2854 (T. & S. and 1858).</p> <p>Cases cited and approved: Huff v. Miller, 2 Swan, 85; Spurgin V. Spurgin, 3 Head, 24; Fitzsimmons v. Johnson, 90 Tenn., 426.</p> <p>5. SCIRE FACIAS. To revive against heirs of a deceased party need not he in the nature of a declaration.</p> <p>A scire facias to revive a cause against the heirs of a deceased party need not he in the nature of a declaration informing the parties of the nature of the liability sought to he established against them, hut it is sufiicient if the requisites prescribed by statute are stated. (Post, pp. 701, 702.)</p> <p>Code cited and construed: Sec. 6240 (S.); sec. 5173 (M. &• V.); see. 4428 (T. & S. and 1858).</p> <p>6. CHANCERY PRACTICE. Pro confesso and final decree on the second day of the term, when court is about to adjourn.</p> <p>A pro confesso may be entered on the second day of the appearance term and a decree may be pronounced thereon, where the business of the couirt has been finished, and the court is about to adjourn, and such conditions are made to appear affirmatively by the decree. (Post, pp. 702-705.)</p> <p>Code cited and construed: Sec. 6160 (SO; sec. 5093 (M. & Y.); sec. 4350 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1871, ch. 97, sec. 1, rule 11, sec. 1; Acts 1905, ch. 472.</p> <p>7. SAME. Final decree upon pro confesso, and bill setting aside complainant’s deed to defendant is warranted, when.</p> <p>A final decree, upon a pro confesso and the bill, in favor of the complainant, may be rested upon the ground, (1) that the conveyance was procured by undue influence; and, (2) for failure and want of consideration and for fraud, where the bill to set aside complainant’s conveyance of her land to defendant alleges that complainant was eighty-four years old and feeble; that defendant was her grandson, reared in heir family, and occupying' a confidential relation; that he represented to her that it would be better fotr her for him to live with her, and induced her by his acts of kindness and representations to convey her land to him, in consideration that he should come and live with her and furnish her companionship and maintenance; that he soon failed to furnish her companionship and permitted his family to be rude to her; and that he shortly afterwards moved away, making no provision for her, and sought to sell the land. (Post, pp. 705-708.)</p>

<p>INTOXICATING LIQUORS. Ignorance that liquors are intoxicating does not excuse unlawful sale thereof.</p> <p>Under an indictment for selling intoxicating liquors without a license or for selling the same within four miles of a schoolhouse, the defendant’s ignorance of the intoxicating properties of the liquors sold is no defense; for if he sells liquors, he must know at his peril whether they are intoxicating or not, and his belief that they were not intoxicating resulting from a guarantee under which he bought them, is no excuse, where the statute does not require guilty knowledge as an ingredient of the offense. (Post, pp. 711-716.)</p> <p>Code cited and construed: Sees. 991, 6795 (S.); secs. 857, 5679 (M. & Y); sec. 689 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1899, ch. 161, sec. 1.</p> <p>Constitution cited: Áirt. 2, sec. 28.</p> <p>Cases cited and approved: Atkins v. State, 95 Tenn., 474; Moore v. State, 96 Tenn., 544. State v. Hartfiel, 24 Wis., 60; Barbes v State, 19 Conn., 398; Commonwealth v. Mash, 7 Mete. (Mass.), 472; Commonwealth v. Boynton, 2 Allen (Mass.), 160; Merrick v. Plumley, 99 Mass., 567; Ullrich v. Commonwealth, 6 Bush (Ky.), 400.</p> <p>Case cited and disapproved: Fairrel v. State, 32 Ohio St., 456.</p>

<p>INTERSTATE COMMERCE. Mercantile corporation of another State is engaged in commerce here, and not in interstate commerce, and is subject to privilege tax as a merchant, when.</p> <p>A mercantile corporation of another State is not engaged in interstate commerce, but in commeirce within this State, and in the business of a retail merchant in the county and town in which the transactions are made, rendering it liable for the privilege tax imposed upon retail merchants, where a soliciting salesman representing such corporation procures orders for merchandise, to be paid for upon delivery, if found as represented; and after the canvass of the community is completed, the salesman classifies, the merchandise contracted for in the several individual orders obtained, ascertains the aggregate number or quantity of each article, and sends to the said corporator, his employer, one general order covering the aggregate number or quantity of articles of each class; and the goods thus ordered are packed and shipped in bulk, in unidentified packages consisting of large boxes and barrels, not segregated from others of like kind, nor appropriated to any particular purchaser, and remaining the porperty of the seller until the original packages are broken, and the articles are selected and delivered, and the sale consummated in this State by said salesman, by delivery to the purchasers upon the payment of the purchase price, for the purpose of completing the transactions, the goods are shipped by a common carrier to the corporation at a 'point designated by the salesman, to whom the bill of lading is . sent, and upon receipt of the goods, the barrels and boxes are opened, and the goods classified and arranged foir delivery to the purchasers; and the money received on the delivery of the goods is remitted to the corporation.</p> <p>Cases cited and approved: Austin v. State, 101 Tenn, 563; Kim-mell v. State, 104 Tenn., 184; Croy v. Obion Co, 104 Tenn., 525; May v. New Orleans, 178 XJ. S'., 496; Austin v. Tennessee, 179 TJ. S., 343; Cook v. Marshall Co., 196 U. S„ 261.</p> <p>Case cited and distinguished: Rearick v. Pennsylvania, 203 XJ. •S., 507, 61 L. Ed., 295.</p>

<p>1. EMINENT DOMAIN. Interest from date of order oí condemnation and appointment of jury of view.</p> <p>Where land is condemned under eminent domain laws for the erection of a courthouse, and, upon, appeal from the findings of the jury of view, a verdict and judgment for the same amount is rendered, the owner is entitled to interest from the date of the order of condemnation and appointment of the jury of view, and not from the date of his answer admitting the right to take the property, and not merely from the date of the finding of the jury of view or of the date of the judgment on the trial.</p> <p>Code cited and construed: Sec. 3494 (S.); sec. 2702 (M. & Y.); sec. 1945 (T. & S. and 1858).</p> <p>Case cited and approved: Alloway v. Nashville, 88 Tenn., 510, 528.</p> <p>Case cited a,nd distinguished: Railroad v. M'oggridge, 116 Tenn., 445.</p> <p>S. SAME. SAME. Proper judgment entered in supreme court without remandment upon reversal for erroneous refusal to allow interest.</p> <p>Upon reversal for the error of the circuit judge in refusing to allow interest according to the rule stated in the foregoing headnote, the supreme court will give the proper judgment to be entered there without remandment. (Post, p. 730.)</p>

<p>DEEDS OF CONVEYANCE. Call for street or alley not owned, by grantor is not implied warranty of existence thereof.</p> <p>A grantor who does not own the street or alley which his1 deed describes as bounding the property conveyed, or who does not own the land so described as the street or alley is not ¡bound as impliedly warranting the existence of the street or alley by his general warranty deed with covenants of seizin of the property described, especially where he made no misrepresentations as to the existence of the street or alley, but believed it existed, as unopened, from references to it in the deeds under which he claimed.</p> <p>Cases cited and approved: Scott v. Cheatham, 12 I-Ieisk., 720. Howe v. Alger, 4' Allen, 206.</p> <p>Cases cited and distinguished: O’Linda v. Lothrop, 21 Pick. (Mass.), 292; Parker v. Smith, 17 Mass., 416.</p>

<p>1. WILLS. Widow must elect as between the will and dower within a year.</p> <p>Where a husband bequeaths to his wife all his personal property absolutely, and devises to her his real estate during her lifetime or widowhood, she is required to make an election within a year as between the provisions of the will and dower.</p> <p>Code cited and construed: Sec. 4146 (S.); sec. 3261 (M. & V.); ■sec. 2404 (T. & S. and 1858).</p> <p>Cases cited and construed: Reid v. Campbell, Meigs, 378; Malone v. Majors, 8 Hum., 577; M'cClung v. Sneed, 3 Head, 224; Waddle v. Terry, 4 Cold., 65.</p> <p>3. SAME. Widow is not required to elect as between the will and her homestead rights, when.</p> <p>The husband cannot by will deprive his widow of her homestead right guaranteed by the constitution; and where he devises to heir all his real estate during her lifetime or widowhood, 'she will not be put to her election as between the provisions of the will and her homestead right, unless it plainly appears from the will that such was the testator’s intention; for this intention will not be implied from such mere devise of the land to her.</p> <p>Code cited and construed: Secs. 3798, 4023, 4146 (S.); secs. 2935, 3128, 3261 (M. & V.); secs. 2110a, 2114a, 2288, 2404 (T. & S. and 1858).</p> <p>Constitution cited and construed: Art. 11, sec. 11.</p> <p>Cases cited and approved: Jarman v. Jarman, 4 Lea, 676; Wilson v. Monris, 94 Tenn., 560, 561; McCrae v. McCrae, 103 Tenn_ 719; Rowlett v. Rowlett, 116 Tenn., 459.</p>

<p>1. DEEDS OE CONVEYANCE. To wife and the heirs of her body begotten by her husband creates in her a fee simple estate.</p> <p>A husband’s conveyance of land to his wife and the heirs of her body begotten by him creates in her a fee simple estate. The words are words of limitation, and not purchase, and created in the wife at common law an estate in special tail, which under our statute (Shannon’s Code, section 3673) is held and deemed to be a fee simple estate.</p> <p>Code cited and construed: Sec. 3673 (S.); sec. 2813 (M. & V.); sec. 2007 (T. & S. and 1858).</p> <p>Cases cited and approved: Middleton v. Smith, 1 Cold., 144; Kirk v. Fuirgerson, 6 Cold., 483; Skillin v. Loyd, 6 Cold., 564; Wynne v. Wynne, 9 Heisk., 309: Boyd v. Robinson, 93 Tenn., 34; Bingham v. Weller, 113 Tenn., 77.</p> <p>Cases cited and distinguished: Read v. Fite, 8 Humph., 328; Grimes v. Orrand, 2 Heisk., 298; Turner v. Ivie, 5 Heisk., 229; Ragsdale v. Mabry, 8 Bax., 300; Beecher v. Hicks, 7 Lea, 207.</p> <p>3. CONSTRUCTION OP INSTRUMENTS. Cardinal rule is to ascertain the intention of the parties regardless of formalities.</p> <p>The cardinal rule of construction of all instruments is to ascertain from all their parts the intention of the parties, without regard to the formal parts, and, where the rules of law will allow, to the particular language used.</p> <p>Cases cited and approved: Beecher v. Hicks, 7 Lea, 212; Fo-garty v. Stack, 86 -Tenn., 610.</p>

<p>INJUNCTION. CANCELLATION. Chancery will not enjoin law action on benefit certificate, nor cancel it because obtained by fraud.</p> <p>Chancery will not enjoin, a pending suit at law prosecuted by the beneficiary of a benefit certificate, matured by the death of the insured, upon a bill filed by the insurer for a cancellation of the certificate on the ground that it was obtained through fraud, because the defense of the fraud may be made in the action at law. Such benefit certificate is not a negotiable instrument, noir a cloud upon title. There is no suggestion of any special circumstances to call into activity the chancery jurisdiction for injunction and cancellation.</p> <p>Cases cited and approved: McLin v. Marshall, 1 Heisk., 678; Hamilton v. Cummings, 1 Johns. Chy. (N. Y.), 617; Venice v. Woodruff, 62 N. Y., 462; Crane v. Bunnell, 10 Paige (N. Y.), 334; Shain v. Belvin, 79 Cal., 262; Grand Chute v. Winegar, 15 Wall. (U. S.), 373.</p> <p>Cases cited and distinguished: Andeirson v. Talbot, 1 Heisk., 4'07; Lyon v. Alley, 130 U. S., 177; Bissell v. Kellogg, 65 N. Y., 432; Kay v. Scales, 37 Pa., 31; Haialson v. Carson, 111 Ga., 57; Metier v. Metier, 19 N. J. Eg., 457; Htodson v. Eugene Glass Co., 156 Ill., 397.</p>

<p>POOL PLAYINGr. Written permission for minor to play confined to the one occasion.</p> <p>A written permit from a parent cannot justify a resort by a minor to play games of pool on more than one occasion, and all the games sanctioned by the parent’s permit must be played on that one occasion, and continuously. Part cannot he played one day, and part on another day.</p> <p>Code cited and construed: Sec. 6826 (S.); sec. 5710 (M. & V.).</p> <p>Case cited and approved: Fressly v. State, 114 Tenn., 534.</p>

<p>1. NEW TRIALS. Weight of findings of fact hy trial judge upon motion for new trial.</p> <p>It is well settled in criminal as well as in civil cases that upon a motion for a new trial involving questions of fact, the findings of the trial judge will not he disturbed upon appeal if there is any material evidence to support them. (Post, p. 773.)</p> <p>Cases cited and approved:. Ryan v. State, 97 Tenn., 211; Thomas v. State, 109 Tenn., 684.</p> <p>2. CRIMINAL LAW, Presence of accused required during entire trial on charge of a felony.</p> <p>It is a fundamental and constitutional right guaranteed the accused on trial for his life or liberty to he present during the whole trial; and it is well settled that it is essential to a Valid trial and conviction on a charge of felony that the accused shall he present, not only when he is arraigned, hut at every subsequent stage of the trial, unless he may and does waive his right to he present, as in proceedings which are no part of the trial, hut merely preliminary or subsequent thereto. (Post, pp. 774, 775.)</p> <p>Cases cited and approved: State v. Prance, 1 Ov., 434; State v.' Jones, 2 Yerg., 22; Clark v. State, 4 Humph., 254; Andrews v. State, 2 Sneed, 550; Hutchinson v. State, 3 Cold., 95; Witt v. State, 5 Cold., 15; Stewart v. State, 7 Cold., 389, and cases from other States, cited in the opinion, on pages 774, 775.</p> <p>3. SAME. Same. Case in judgment.</p> <p>The accused is deprived of Ms fundamental and constitutional right to be present in court during his trial, where, when the verdict of guilty in a murder trial was announced, he was in a room adjoining the courtroom handcuffed to another prisoner, not in sight of the judge and all the jurors, and the view through the doorway was obstructed by the sheriff standing therein and holding the door open. (Post, pp. 767-775.)</p> <p>4. SAME. Same. Minutes shown to be erroneous by facts in bill of exceptions; appeal is not a collateral attack upon record.</p> <p>Where, in a prosecution for murder, it affirmatively appears from the bill of exceptions that the accused was not in the courtroom, but in the prisoner’s room, when the verdict of guilty was announced, a recital in the minutes of the trial court embodied in the record showing affirmatively that the accused was present when the verdict was returned is erroneous, and will not preclude him from showing the truth. An appeal for the purpose of correcting errors is not a collateral attack upon the record and proceedings. (Post, pp. 775, 776.)</p> <p>Case cited and distinguished: Griffin v. State, 109 Tenn., 34'.</p> <p>5. SAME. Same. Presence of accused is not waived by his counsel’s failure to object to his absence when verdict is returned in a felony case.</p> <p>The right of the accused to be present iff the courtroom when the verdict of guilty is announced in a felony case is so fundamental that • it cannot be waived by the failure of his counsel to make objection to the’ rendition of the verdict until the accused can be present. (Post, p. 776.)</p> <p>6. SAME. Death before indictment for murder must be affirmatively proved.</p> <p>In a prosecution for murder, the proof must affirmatively show that the offense was committed, and that the death of the decedent occurred as the result of the wound before the finding of the indictment. (Post, pp. 776, 777.)</p> <p>7. SAME. Death ■within a year and a day from injury must be affirmatively proved.</p> <p>In a prosecution for murder, the proof must affirmatively show that the death of the decedent occurred within a year and a day from the date of the injury received. (.Post, p. 777.)</p>