Volume 120 — Tennessee Reports

<p>1. TAXATION. County’s special levy for maintenance of its circuit court is illegal.</p> <p>A county has no authority to levy a special tax for the payment of the expenses of the circuit court. The maintenance of the circuit court is a general county purpose, and the expenses thereof must he paid out of the tax authorized by law for general county purposes. Therefore the county’s assessment or levy of a special tax for the purpose of paying the expenses of its circuit court is illegal. (Post,'pp. 3-5.)</p> <p>Case cited and approved: Newman v. Southern Railway, at Knoxville, September term, 1905.</p> <p>2. SAME. Illegal taxes voluntarily paid under protest before they become delinquent, and without demand or duress, cannot be recovered back.</p> <p>A taxpayer’s payment of a special county tax illegally levied and assessed, made to the county trustee the day before it became delinquent, and without demand therefor by the county trustee, was voluntary and without duress, and cannot be recovered back by such taxpayer, though the tax was paid under protest in order to avoid the imposition of the penalty and interest, which would accrue unless the tax was paid prior to its delinquency, and in order to avoid the cost qnd expense incident to any attempt that the proper authorities might make under the law to collect said tax by levy and sale of the taxpayer’s property. The tax books in the hands of the county trustee prior to the tax becoming delinquent do not have the force and effect of a judgment and a distress warrant; but they may have such force and effect after the tax becomes delinquent.</p> <p>Code cited and construed: Sec. 1059 (S.); sec. 926 (M. & V.).</p> <p>Acts cited and construed: Acts 1873, ch. 44; Acts 1903, ch. 258, secs. 49 and 50.</p> <p>Cases cited and approved: Cauvin v. Nashville, 3 Bax., 454; Lea v. Memphis, 9 Bax., 108; Railroad v. Williams, 101 Tenn., 148; Bank v. Memphis, 107 Tenn., 73; Railroad v. Commissioners, 98 U. S., 541; Little v. Bowers, 134 XJ. S., 554; Bank v. Stone, 88 Fed. Rep., 390; Hood v. Atlanta, 107 Ga., 420; 102 Mich., 533.</p> <p>Cases cited, distinguished, and approved: Bright v. Halloman, 7 Lea, 310; Railroad v. Williams, 101 Tenn., 146; Alexander v. Henderson, 105 Tenn., 431; Bank v. Memphis, 116 Tenn., 646.</p>

<p>1, GRANTS. Of the State reciting that it includes within its exterior lines prior legal claims operates to exclude them.</p> <p>The State’s grant of land described by metes and bounds, and after reciting the quantity, concluding as follow?: “Including within the above calls of prior legal claims, 1,000 acres,” excludes by implication from the operation of the grant all lands within its exterior lines shown to have been granted by prior valid grants. (Post, pp. 18-20.)</p> <p>Cases cited and approved: Bleidorn v. Pilot Mountain C. & M. Co., 89 Tenn., 204.</p> <p>2. DEEDS OF CONVEYANCE. Description by reference to other prior deeds or grants; it must be specific, when.</p> <p>Where a deed of conveyance of land refers to a prior deed or grant for description, without more or without setting out the property by metes and bounds, it incorporates into itself the description contained in that deed or grant; but, if the later deed also sets out the metes and bounds of the land conveyed by it, the reference to the prior deed or grant must be definite and specific, in order to control the specific description which in itself is plain and unequivocal. (Post, pp. 20-23.)</p> <p>Cases cited and approved: Bleidorn v. Pilot Mountain C. & M. Co., 89 Tenn., 212; Melvin v. Proprietors, etc., 5 Mete. (Mass.), 15; Dana v. Bank, 10 Mete. (Mass.), 250; Whiting v. Dewey, 15 Pick. (Mass.), 428; Raymond v. Coffey, 5 Ore., 132; Herrick V. Hopkins, 23 Me., 217; Gano v. Aldrich, 27 Ind., 294; McEowen V. Lewis, 26 N. J. Law, 451; Jones v. Smith, 73 N. Y., 205.</p> <p>3. ADVERSE POSSESSION. Must be of some part of the land in dispute; grantee’s possession of the land owned by the grantor is not a constructive possession of the land not owned by him, though conveyed.</p> <p>The possession of land, in order to produce a bar, must be ah actual adverse possession of some part of the land in dispute. A possession not within the hounds of the disputed part is not sufficient, though it be within the hounds of the possessor’s deed. So, where a deed embraces land, some of which is not owned hy the maker, and the conveyee enters upon that part only to which the conveyor had title, his possession of such part does not give him constructive possession of the other part not owned by his conveyor, so as to operate as a disseizin' of the real owner thereof, and to make effective the bar of the statute of limitation. (Post, pp. 23-25.)</p> <p>Cases cited and approved: Napier v. Simpson, 1 Ov., 453; Talbot v. MeGavock, 1 Yerg., 262; Smith v. McCall, 2 Humph., 163; Stewart v. Harris, 9 Humph., 716.</p> <p>4. TAX DEED. Must be authorized by statute; made under Acts 1873, ch. 118, secs. 67 and 68, is void.</p> <p>The authority to issue a tax deed must he found in the statute, and a deed executed without such authority conveys no title. The Code provision authorizing the tax collector making the sale of lands for the nonpayment of taxes, or any of his successors, to make a deed or deeds to the purchasers of the several tracts sold, or to any persons whom they might severally designate, was repealed, by necessary implication, by Acts 1873, ch. 118, secs. 67 and 68, which act covered the whole field of the assessment and collection of taxes, and hy necessary implication repealed statutory provisions regulating these matters prior thereto. So, a tax deed made hy the collector to a purchaser of land sold under said act is void. (Post, pp. 25-29.)</p> <p>Acts cited and construed: Acts 1873, ch. 118, secs. 67 and 68.</p> <p>5. ADVERSE POSSESSION. Must be under registered deed duly probated and authenticated for registration since Acts 1895, ch. 38; possession before and since said act.</p> <p>The statute (Acts 1895, ch. 38) requiring the adverse possession of land for seven years to be under a registered instrument of conveyance in order to create the bar of the statutes of limitations refers to registered instruments duly probated and authenticated for registration. There can be no effective adverse possession under a deed registered without proper certificate of probate or acknowledgment. Adverse possession for three or four years before the enactment of said statute under a deed spread upon the register’s record, without authority because the certificates of acknowledgment were fatally defective, cannot be perfected by the continued adverse possession after the enactment of said statute. (Post, pp. 29, 30.)</p> <p>Acts cited and construed: Acts 1895, ch. 38.</p> <p>6. EVIDENCE. Admission of ancient documents found in a custody consistent with their genuineness.</p> <p>One of the grounds for the admission of an ancient document over thirty years old as evidence is that it must be found in the proper custody, that is, in a place consistent with its genuineness. (Post, p. 32.)</p> <p>7. SAME. Same. A certified copy of an ancient document is not prima facie evidence of its recitals, when.</p> <p>A certified copy of a deed purporting to be over thirty years old, registered only five or six years before the trial, accompanied with no explanation of the custody of the original during the interval between its assumed execution and its registration, is not admissible in evidence as an ancient document so as to make all its recitals prima facie evidence, even though it be- conceded that the original would be entitled to such probative effect. (Post, pp. 32, 33.)</p> <p>8, DEEDS OP CONVEYANCE. By personal representative to one not appearing to have a right to demand it is not authorized.</p> <p>A personal representative is not authorized to execute a deed under section 3692 of Shannon’s Code, where a deed was made to the decedent and another as individuals, and not in trust, in pursuance of 'a collateral agreement in writing between eleven persons, including among them the said grantees, whereby land purchased by them (the eleven partners) was to be conveyed to said grantees in trust for the use and benefit of all of said partners, although the partnership was subsequently merged into a chartered corporation, and the deed was made by the personal representative of the decedent to said corporation, especially where there was nothing to show that the members of the partnership ever transferred their rights in the land to the corporation or that they ever demanded the execution of the deed to it. (Post, pp. 30-36.)</p> <p>Code cited and construed: Sec. 3692 (S.); sec. 2832 (M. & V.); sec. 2025 (T. & S. and 1858).</p>

<p>1. TELEGRAMS. "Damages for delay in delivery of social telegram.</p> <p>The right to recover damages for mental anguish arising from delay in the delivery of a social telegram has been long settled in this State. (Post, pp. 42, 43.)</p> <p>Cases cited and approved: Wadsworth v. Telegraph Co., 8G Tenn., 695; Railroad v. Griffin, 92 Tenn., 694; Telegraph Co. v. Mellon, 96 Tenn., 66; Telegraph Co. v. Robinson, 97 Tenn., 638; Telephone Co. v. Brown, 104 Tenn., 56; Telegraph Co. v. Frith, 105 Tenn., 167; Gray v. Telegraph Co., 108 Tenn., 39.</p> <p>2. SAME. Same. Damages for delay in delivering telegrams are recoverable by sender or addressee; basis of addressee’s right.</p> <p>The right to sue for damages for delay in delivering a telegram may be in either the sender or addressee, and either on the contract or for breach of a statutory duty to promptly deliver. If on-the contract, the right of the addressee is based on the theory that the contract was made for his benefit; if under the statute, the sendee sues as the “aggrieved party.” (Post, p. 43.)</p> <p>See headnote 6.</p> <p>Cases cited and approved: Manier v. Telegraph Co., 94 Tenn., 442; Telegraph Co. v. Mellon, 96 Tenn., 66; Gray v. Telegraph Co., 108 Tenn., 39.</p> <p>3. SAME. Same. Same. Action for delay in delivering telegram under contract or statute is in effect for negligence.</p> <p>The ground1 of the action for delay in the delivery of a telegram, if on the contract, is for the breach thereof; if under the statute, it is for the failure to perform the duty imposed, and in, effect the action is equivalent to one for negligence. (Post, pp. 43.)</p> <p>Cases cited and approved: Wadsworth v. Telegraph Co., 86 Tenn., 695; Telegraph Co. v. Mellon, 96 Tenn., 66; Jones v. Telegraph Co., 101 Tenn., 442; Cray v. Telegraph Co., 108 Tenn., 39.</p> <p>4. SAME. Same. Same. Same. Measure of damages for wrongful delay in delivering a telegram as to death.</p> <p>The measure of damages for wrongful delay in delivering a death message, whether the suit he on the contract or in tort, is, first, at least nominal damages; second, such damages as may he fairly considered as arising naturally from the breach of the contract or the violation of public duty, or such damages as may he reasonably supposed to have been within the contemplation of both parties when the contract was made, as the probable result of a breach of it; and, third, in a proper case, punitive damages. (Post, pp. 43, 44.)</p> <p>Cases cited and approved: Wadsworth v. Telegraph Co., 86 Tenn., 695; Railroad v. Griffin, 92 Tenn., 694; Telegraph Co. v. Mellon, 96 Tenn., 66; Jones v. Telegraph Co., 101 Tenn., 442; Telegraph Co. v. Frith, 105 Tenn., 167; Gray v. Telegraph Co., 108 Tenn., 39; Telegraph Co. v. Reid, 120 Ky., 231; McPeek v. Telegraph Co., 107 Iowa, 356.</p> <p>5. SAME. Telegraph company may anticipate damages for delay in delivery, from what.</p> <p>A telegraph company may learn the grounds on which it may base an estimate of, or anticipate, the damages that may result or naturally flow, from a failure to properly deliver the message, either from facts communicated to its agents dehors the message or from the face of the message itself. (Post, pp. 44, 45.)</p> <p>Cases cited and approved: Pepper v. Telegraph Co., 87 Tenn.,' 554, 558; Telegraph Co. v. Frith, 105 Tenn., 167; Telegraph Co. v. Adams, 75 Tex., 531; Telegraph Co. v. Feegles, 75 Tex., 537; Telegraph Co. v. Edmondson, 91 Tex., 206; Telegraph Co. v. Swearingin, 97 Tex., 293; Telegraph Co. v. Lathrop, 131 Ill., 575; Reese v. Telegraph Co., 123 Ind., 294; Bright v. Telegraph Co., 132 N. C., 317; Davis v. Telegraph Co., 107 Ky., 527.</p> <p>6. SAME. Action for delay in delivery of telegram may be maintained by disclosed beneficiary, or by undisclosed principal of sender.</p> <p>An action for delay in delivering a telegram may be brought by one whose name appears in the message as the beneficiary thereof, though he is neither the sender nor addressee; or it may be brought by the undisclosed principal of the sender. (.Post, p. 45.)</p> <p>See headnote 2.</p> <p>Cases cited and approved: Foster v. Smith, 2 Cold., 474, 478; Telegraph Co. v. Mellon, 96 Tenn., 66; Whitehill v. Telegraph Co. (C. C.), 136 Fed., 499, 500; Milliken v. Telegraph Co., 110 N. Y., 403; Leonard v. Telegraph Co., 41 N. Y., 544; Harkness v. Telegraph Co., 73 Iowa, 190; Telegraph Co. v. Broesche, 72 Tex., 654; Telegraph Co. v. Kerr, 4 Tex. Civ. App., 280.</p> <p>7. SAME. Same. Undisclosed principal in a social telegram cannot recover for mental anguish, but only what the- apparent sender could recover, namely, price of message.</p> <p>The undisclosed principal of both the sender and the addressee of a social telegram, as a death message, may maintain an action for wrongful delay in the delivery thereof, though he cannot recover for his mental anguish, and can recover only such damages as the apparent sender could recover, namely, the cost of the telegram. The rule may be otherwise as to commercial telegrams. (Post, pp. 45-52.)</p> <p>Cases cited and approved: Foster v. Smith, 2 Cold., 474, 478; Telegraph Co/ v. Kerr, 4 Tex. Civ. App., 280; Express Co. v. Redman (Tex. Civ. App.), 60 S. W., 677; Helms v. Telegraph Co., 143 N. C., 386 (overruling Cashion v. Telegraph Co., 124 N. C., 459, and Landie v. Telegraph Co., 124 N. C., 528); Leonard v. Telegraph Co., 41 N. Y., 544 (a commercial telegram); Harkness v. Telegraph Co., 73 Iowa, 190 (a commercial telegram) ; Milliken v. Telegraph Co., 110 N. Y., 403.</p> <p>Cases cited and disapproved: Lee v. Telegraph Co., 51 Mo. App., 375; Telegraph Co. v. Schriver, 72 C. C. A., 596.</p>

<p>1. WILLS. Renunciation by devisee on the day the will is probated by a -written instrument prevents the vesting of the devise.</p> <p>The rule that it is optional with a devisee to accept the devise, however beneficial it may be to him, and'that when he elects to renounce before any act on his part indicating an acceptance, the renunication will relate back, and will be held to have been made at the time of the gift, and will displace any levy of creditors that may in the meantime have been made, applies where a devisee renounces by an instrument executed on the day the will was admitted to probate and a few days thereafter acknowledged before the county court clerk and registered. (Post, pp. 54-60.)</p> <p>Cases cited and approved: Goss v. Singleton, 2 Head, 77; Hughes v. Brown, 88 Tenn., 582; Defreese v. Lake, 109 Mich., 421; Perry v. Hale, 44 N. H., 365; Burritt v. Silliman, 13 N. Y., 96; Bryan v. Hyre, 1 Rob (Va.), 94; Townsend v. Tickell, 3 B. & Aid., 31.</p> <p>S. SAME. Same. Renunciation before acceptance is not a voluntary or fraudulent conveyance as against existing creditors.</p> <p>A renunciation by a devisee for life, made on the day of the probate of the will, is not a voluntary conveyance, and is not voia as against existing creditors, so long as there is no collusion with the remaindermen or residuary devisees by which he fraudulently receives a benefit for his renunciation, because the renunciation relates back to the date of the gift, and as he has never accepted the gift, he has had nothing that could be made the subject of a voluntary conveyance. {Post, pp. 54, 55, 60.)</p>

<p>1. EVIDENCE. Procured by unreasonable searches and seizures is admissible, when; application of constitutional provision.</p> <p>The constitutional provision .against unreasonable searches and seizures contemplates only searches and seizures made through •governmental agencies, and under statutes attempting to authorize it, and has no bearing upon the unauthorized acts of private persons, or of petty officers of the law, and the evidence secured by the unlawful acts and trespasses of such persons is admissible against the accused.</p> <p>Cases cited and approved: Adams v. New York, 192 U. S., 585; State v. Edwards, 51 W. Va., 220; Williams v. State, 100 Ga., 511; Chastang v. State, 83 Ala., 29; Shields v. State, 104 Ala., 35; State v. Pomeroy, 130 Mo., 489; Gindrat v. People, 138 Ill., 103; State v. Atkinson, 40 S. C., 363; State v. Griswold, 67 Conn., 290; State v. Nordstrom, 7 Wash., 506; Trask v. People, 151 Ill., 523; Siebert v. People, 143 Ill., 571; Commonwealth v. Welsh, 110 Mass., 359; Commonwealth v. Dana, 2 Mete. (Mass.), 239; Commonwealth v. Tibbetts, 157 Mass., 519; Le-gatt v. Tollervey, 14 East, 302; Jordan v. Lewis, 14 East, 306, note; State v. Flynn, 36 N. H., 64.</p> <p>Case cited and distinguished: Boyd v. United States, 116 U. S„ 616.</p> <p>2. SAME. Same. Such evidence is not inadmissible as self-incriminating.</p> <p>Evidence obtained by private persons or petty officers through trespasses and unreasonable searches and seizures is not on that account inadmissible as being violation of tbe constitutional prohibition against compelling a person charged with a crime to incriminate himself.</p> <p>Cases cited and approved: Adams v. New York, 192 U. S., 585; Shields v. State, 104 Ala., 35; State v. Pomeroy, 130 Mo., 489; State v. Flynn, 36 N. H., 64.</p> <p>3. SAME. Same. Same. Case in. judgment.</p> <p>In a prosecution for the unlawful sale of liquor and cigarette paper on Sunday, deputy sheriffs testified that on a certain Sunday they ascended the stairway on the outside of the saloon of the principal defendant and made a peephole in the wall of the saloon, by removing some bricks and mortar, through which hole they could see into the barroom, and that, while they were watching through the hole, they saw defendants enter the barroom from the rear, followed by a' crowd, and saw defendants sell both liquor and cigarette papers, and receive and register the money paid therefor, such evidence was not inadmissible as being obtained in violation of the constitutional provision inhibiting unreasonable searches and seizures, nor as being violative of the constitutional prohibition against compelling a party accused of crime to incriminate himself.</p>

<p>1. PRIVATE CORPORATIONS. The fixed limit of existence of a turnpike company applies to an amendment of its charter as to a toll bridge, when.</p> <p>Where a turnpike company was incorporated by a legislative act, with power to construct a toll turnpike road from a desig-</p> <p>• nated place, across a certain river at a bridge then in process of construction by some other agency, to another designated place, with a fixed period of corporate existence, and after the destruction of said bridge, said company procured the passage of an act authorizing it to build a toll bridge at said point, but without fixing any time for the enjoyment of the right to collect toll from the bridge to be so erected, the latter act, though not expressly amendatory of the original act, was in effect an amendment thereof, and by operation of law it became a part thereof, and the limit prescribed by the original act as to the turnpike was equally effective as to the right to collect tolls over the bridge. (Post, pp. 78-81.)</p> <p>Acts cited and construed: Acts 1829 (private), ch. 204; Acts . 1865-66 (private), ch. 19.</p> <p>Cases cited and approved: Turnpike Co. v. Illinois, 96 U. S., 63; State v. Bridge Co., 22 Kan., 438; Bridge Corp. v. Lowell, 15 Gray (Mass.), 106; State v. Lake, 8 Nev., 276.</p> <p>2. TURNPIKE TOLL ROADS. Difference between them and common highways; same rule applies to toll bridges.</p> <p>The only difference between a turnpike and a common highway is that, instead of being made at public expense in the first instance, the turnpike is authorized and laid out by public authority and made at the expense of individuals, and the cost of construction and maintenance is reimbursed by a toll levied by public authority for the purpose. Every traveler has the same right to use the turnpike upon paying the toll established by law, as he would have to use any other highway, and the same rule applies to toll bridges. (Post, p. 81.)</p> <p>Case cited and approved: Commonwealth v. Wilkinson, 16 Pick. (Mass.), 175.</p> <p>3. SAME. Termination of corporate existence of a turnpike corporation ends the right to exact tolls and leaves the road and bridges free to the public.</p> <p>Under the turnpike charter and the amendment thereto as stated in the first headnote, the right to exact tolls upon the turnpike, including said bridge, ended with the corporate life and existence of the corporation, and thereafter the public had the right to use the turnpike, including the bridge, without payment of toll, and the company and its successors had no authority to remove the bridge or destroy the road. (Post, pp. 81-83.</p> <p>Cases cited and approved: State v. Bridge Co., 22 Kan., 438; Bridge Corp. v. Lowell, 15 Gray (Mass.), 106; State v. 'Lake, 8 Nev., 276.</p> <p>4. • SAME. County may maintain suit to restrain collection of tolls after the right to do so has ceased by expiration of charter of turnpike company.</p> <p>A county may maintain a suit to restrain the collection of tolls therein on a turnpike, including a bridge, after the right to exact tolls has expired by reason of the termination of the corporate existence of the company chartered and organized to construct the turnpike with the right to exact tolls. (Post, pp. 83-85.</p> <p>Code cited and construed: Sec. 5165, subsec. 5 (S.); sec. 4146, subsec. 5 (M. & Y.); sec. 3409, subsec. 5 (T. & S. and 1858).</p> <p>Case cited and approved: Ledbetter v. Turnpike Co., 110 Tenn., 92.</p>

<p>1. CONSPIRACY AND RESTRAINT OE TRADE. Bill to oust a foreign corporation sufficiently stating the terms and provisions of the agreement or combination in restraint of trade.</p> <p>Where a bill to oust a foreign corporation from the State and to restrain it from doing business within the State, on the ground of an alleged agreement in restraint of trade, charged that the defendant and its certain named agents made an agreement to procure the cancellation of orders previously obtained by a competing company, through promises to give to the respective purchasers of such oil, certain various named quantities of its oil gratis, which it did thereafter give, with a view to lessening competition in the sale of defendant’s oil then being sold and offered for sale in the county where the agreement, arrangement, or combination was made, and that such agreement tended to lessen competition, and was designed to advance and tended to advance the price of defendant’s oil to the consumer, and was made for the purpose of enabling defendant to retain its monopoly in the sale of oil, and to keep and use the power to advance the price, which it thereafter did, the bill was not defective for failure to state the terms of the agreement, arrangement or combination charged, but sufficiently stated a cause of action. (Post, pp. 103-115.)</p> <p>Cases cited and approved: State’v. Witherspoon, 115 Tenn., 140; Standard Oil Co. v. State, 117 Tenn., 618.</p> <p>2. DEMURRER. Presumption, in favor of a bill in chancery upon demurrer thereto.</p> <p>Every reasonable presumption will be made in favor of a bill in chancery, when assailed by a demurrer, and, if, upon a critical examination of the facts stated in the bill, there is a possibility that the suit may be sustained, though upon á different ground from that assumed, a demurrer to the whole bill will be overruled. The complainant should have an opportunity to be heard upon the merits of his case, when any equity whatever appears in his bill, although defectively stated. (Post, p. 108.)</p> <p>Code cited and construed: Sec. 4605 (S.); sec. 3596 (M. & V.); sec. 2884 (T. & S. and 1858).</p> <p>Cases cited and approved: Thompson v. Paul, 8 Humph., 117; Lincoln v. Purcell, 2 Head, 143; Hobbs v. Railroad, 9 Heisk., 879; Hobbs v. Railroad, 12 Heisk., 531; French v. Dickey, 3 Tenn. Chy., 302; Trafford v. Wilkerson, 3 Tenn. Chy., 449; Kerr v. Kerr, 3 Lea, 224; Anderson v. Mullenix, 5 Lea, 287.</p> <p>3. QUO WARRANTO. Writ was never in force in this State.</p> <p>Neither the writ of quo warranto nor the information in the nature thereof was ever in force in this State. (Post, pp. ISO-137.)</p> <p>Code cited and construed: Secs. 5165-5187 (S.); secs. 4146-4168 (M. & V.); sees. 3409-3431 (T. & S. and 1858).</p> <p>Cases cited and approved: State v. Turk, M. & Y., 287, 293; Bradley v. Commissioners, 2 Humph., 427; State v. Insurance & Trust Co., 8 Humph., 235; Attorney-General v. Leaf,, 9 Humph., 753; State'v. Scott, 2 Swan, 332; State v. Turnpike Co., 2 Sneed, 254; Johnson v. Churchwell, 1 Head, 146; State, ex rel., v. Wright, 10 Heisk., 237, 244; State v. Turnpike Co., 1 Tenn. Cas., 511; Hooper v. Rhea, 3 Tenn. Cas., 145, 151, 152; State v. McConnell, 3 Lea, 332, 335, 338; State v. Campbell, 8 Lea, 74, 76; State v. Agee, 105 Tenn., 588; State, ex rel., v. Turnpike Co., 112 Tenn., 615; State, ex rel., v. Telephone & Telegraph Co., 114 Tenn., 194; and numerous cases in other jurisdictions cited in the opinion, on page 135.</p> <p>4. FOREIGN CORPORATIONS. Bill to forfeit franchise of a foreign corporation to do business within the State is á civil suit, .and not a criminal one.</p> <p>Where a suit is brought by- the attorney-general, on behalf of the State, to forfeit the franchise of a foreign corporation to do business within the State on the ground of an alleged conspiracy in restraint of trade, by a bill in chancery setting forth, without technical forms, the ground on which the suit is instituted, to be conducted as other suits in equity, in which issues of fact may be made up and tried by a jury and a decree entered according to the practice of courts of chancery, such suit is a civil proceeding, to which the rules applicable to criminal law do not apply, (Post, pp. 115-143.)</p> <p>Code cited and construed: Sécs. 5165-5187 (S.); secs. 4146-4158 (M. & V.); secs. 3409-3431 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1845-46, ch. 55; Acts 1903, ch. 140.</p> <p>Constitution cited and construed: Art. 1, sec. 14.</p> <p>Cases cited and approved:- State, ex rel., v. Brewing Co., 104 Tenn., 715, 748, 751, and the same Tennessee cases-as under headnote 3, and numerous cases in other jurisdictions cited in the opinion, on pages 122-135.)</p> <p>5. CONSTITUTIONAL LAW. Classification in punishment of corporations and natural persons is valid, when.</p> <p>A statute declaring that the charters of domestic corporations and the license of foreign corporations to do business within this State shall be forfeited for the making of agreements with a view to restrain trade in certain articles, and declaring that any person becoming a party to such an agreement is punishable by fine or imprisonment or both, is not invalid for such discrimination in the punishment of corporations and natural persons. There is sufficient basis for the classification between corporations and natural persons in the fact, that corporations cannot be subjected to imprisonment, and natural persons cannot be deprived of business or charter rights or of the power to exercise business or charter rights within the State, through a judgment of ouster. (Post, pp. 139-143.)</p> <p>Acts cited and construed: Acts, 1903, ch. 140.</p> <p>6. FOREIGN CORPORATIONS. Have no absolute rights in the State, and may be expelled by law.</p> <p>Foreign corporations have no contract rights in the State in which they are permitted to do business. They are in such State and do business there on sufferance as guests of the State, and they cannot complain of the procedure which the State has adopted to determine whether such corporations have abused the courtesy shown them, and have thereby forfeited their rights to remain. (Post, pp. 143, 144.)</p> <p>Case cited and approved: Insurance Co. v. Craig, 106 Tenn., 621, 641 et seq,</p> <p>7. STATUTES OF LIMITATIONS. None is applicable to the State in civil actions, such as a suit to oust a foreign corporation.</p> <p>There is no statute of limitation applicable to the State in civil actions, such as a suit to oust a foreign corporation from the State and to restrain it from doing business within the State. (Post, pp. 144, 145.) See headnote 4.</p> <p>Code cited and construed: Secs. 4453, 6942-6945 (S.); Secs. 3456, 580S-5811 (M. & V.); secs. 2762, 4983-4986 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1903, ch. 140, sec. 3.</p> <p>Cases cited, approved, and distinguished: Turley v. State, 3 Heisk., 11; Rafferty v. State, 91 Tenn., 655, 657, 658.</p> <p>8. CONSTITUTIONAL LAW. Anti-trust statute not violating interstate commerce provision of the federal constitution.</p> <p>A statute prohibiting agreements between persons or corporations with a view to restrict “competition in the importation or sale of articles imported into this State, or in the manufacture or sale of articles of domestic 'growth or of domestic raw material, ... or which tend to advance, reduce, or control the price or cost to the producer or the consumer of any such product or article,” and declaring such agreements “to be against public policy, unlawful, and void,” and providing penalties for the making of such agreements, is properly construed as intended to apply to intrastate commerce, and not to interstate commerce, and is not in violation of the constitution of the United- States (art. 1, sec. 8) vesting in congress the power to regulate interstate and foreign commerce. (Post, pp.. 145-152.)</p> <p>Acts cited and construed: Acts 1903, ch. 140.</p> <p>U. S. constitution cited and construed: Art. 1, Sec. 8.</p> <p>Case cited and approved: Standard Oil Co. v. State; 117 Tenn.; 618, and citations.</p> <p>9. EVIDENCE. Secondary evidence of a lost paper prepared in triplicate is not admissible without accounting for nonproduction of all the copies, when.</p> <p>Where a report made by a servant to his superior was prepared in triplicate, .one of the copies being retained by the servant, one being sent to the superior, and one to another office of the employer corporation and principal, all these reports were originals, and secondary evidence of the contents of the report was inadmissible, upon proof of the loss of the two originals which were sent out, without accounting for the non-production of the one retained by the maker. (Post, pp. 152, 153.)</p> <p>10. SAME. Copy of the copy of a letter copied into a transcript of record is not admissible where there is a letter-press copy, and the original is not accounted for.</p> <p>Where a paper offered in evidence purports to be a copy of a copy of a letter copied into a transcript on file in the supreme court, is properly rejected and excluded as evidence of the contents of the letter, where there appears to be a letter-press copy of the same under the. control of the party offering the same, and where the absence of the original is not properly accounted for. (Post, pp. 153, 154.)</p> <p>XI. SAME. Letter-press copy is not admissible if not proved to be such, nor where the original is not accounted for.</p> <p>A letter-press copy of a letter written by an officer of a corporation to its special agent is not admissible where it is not sufficiently proved to be a letter-press copy, and where the original is not accounted for. (Post, pp. 154-156.)</p> <p>12. CONSPIRACY. A corporation and its officer or agent may both be counted as the necessary number to constitute a conspiracy.</p> <p>Under statute (Acts 1903, ch. 140) and independent of statute upon principle, and jin furtherance of sound public policy both a corporation and its officers and agents who engage in a conspiracy to restrain trade must be held to be parties to it, and be counted in computing the necessary number of two- or more to constitute an unlawful conspiracy. (Post, pp. 173, 174.)</p> <p>Case cited and approved: Standard Oil Co. v. State, 117 Tenn., 618, 663-670.</p> <p>13. FOREIGN CORPORATION'S. In ouster suit for combination in restraint of trade, acts of the agents and knowledge of officers are chargeable to the corporation, when; evidence considered sufficient.</p> <p>A suit to oust a foreign corporation from the State and to restrain it from doing business within the State on account of a combination or agreement made by it in restraint of trade may be successfully maintained, where the evidence warrants the finding that the combination or agreement was made for it by its agents acting within the scope of their authority and with the knowledge of the responsible officers of the corporation. Under such circumstances, the corporation is responsible for the acts of its agents. The evidence is stated and reviewed and held to be sufficient to warrant such finding. (Post, pp. 156-179.)</p> <p>Cases cited and approved: Bailey v. Master Plumbers, 103 Tenn., 118, 119; Standard Oil Co. v. State, 117 Tenn., 618; and numerous cases in other jurisdictions cited in the opinion, on pages</p>

<p>FROM LEWIS.</p> <p>Appeal from the Chancery Court of Lewis County.— Walter S. Bearden, Chancellor.</p>

<p>1. MANDAMUS. Not to be granted when useless; not to compel .trial judge to sign bill of exceptions containing matter stricken out by him, when.</p> <p>Mandamus is a discretionary writ, and it will not be granted in any case where the court can see that it would be useless. Hence, where a trial judge refused to sign a bill of exceptions containing a certain statement, and struck the same out of the hill of exceptions signed by him, a mandamus will not lie. to compel him to do so, in view of the probability that he would make a return to the alternative writ that the alleged action did not occur; for in the face of such a return, a peremptory writ would not be granted.</p> <p>2. SAME. Same. Bill of exceptions must be corrected in court of civil appeals; record not changed in supreme court which reviews the case as it was in the court of civil appeals.</p> <p>After |a case passes the court of civil appeals, no change can he made in the hill of exceptions. The application for a mandamus to compel the trial judge to sign a hill of exceptions containing a certain statement in a case appealable and appealed to the court of civil appeals must he made to that court. Under the act establishing the said court of civil appeals, the supreme court must try the case taken up by certiorari on the record on which that court acted.</p>

<p>FROM JACKSON.</p> <p>Appeal from the Chancery Court of Jackson County. —D. L. Lansden,, Chancellor.</p>

<p>1. BANKS AND BANKING. Duties of' banks as collectors in successively handling the claim.</p> <p>Each successive bank handling an item for collection is agent of the owner, and liable to him for the discharge of the duties incumbent upon collecting agents, and the several banks in the course of the chain of transmission are held responsible only for the selection of proper agents, and for their own diligence and propriety of action in respect of the collection. (Post, p. 233.)</p> <p>Cases cited and approved: Bank v. Bank, 8 Bax., 101; Bank v, Cummings, 89 Tenn., 609.</p> <p>3. SAME. Same. Collecting bank is liable to owner for loss in sending check to drawee bank for collection, though it be the only bank at the place.</p> <p>The party who is to pay a check is not a suitable agent for its collection. A bank receiving a check for collection is negligent in sending the same directly to the drawee bank for collection, even though it is the only bank at the point of collection, and must respond to the owner for all loss occurring as the result of such a selection. (Post, pp. 234-246.)</p> <p>Cases cited and approved: Givan v. Bank (Tenn. Chy. App.), 52 S. W., 923, 47 L. R. A., 270, and numerous cases, in other jurisdictions reviewed, approved, disapproved, or distinguished will be found on pages 235-245. of the opinion.</p> <p>3. SAME. Same. Same. Drawer’s debt is discharged by drawee’s acceptance and payment of his check by its draft, and cancellation and surrender of His check charged to him, when.</p> <p>Where a check, given by a debtor on a certain bank in payment of his debt, was, by another bank acting as collector for the creditor and payee, forwarded, for collection or payment, to the drawee bank, in which there was more than enough money on deposit to the credit of the drawer at the time the check arrived there to pay the same, whereupon the drawee bank drew its draft upon another bank for the amount of the check, and forwarded the same to the collecting bank, and charged, canceled, and surrendered the check to the drawer, he was thereby discharged from liability on the debt, even though the drawee bank’s draft was not paid. (Post, pp. 246-248.)</p> <p>4. SAME. Same. Same, Rights of owner of check against collecting bank for receiving draft in its payment and for sending it to the drawee bank for collection.</p> <p>Where a bank, employed to collect a check on another bank, forwarded it directly to the drawee bank, and accepted in payment of the check from such bank its draft on a third bank, the owner of the check had the right to accept the draft so taken in payment of the check; or he could, if the collecting bank had no right to receive such draft, repudiate the transaction and sue for the negligence of the'collecting bank, both in surrendering the check and taking for it the draft, and also in failing to present the check to the drawee bank by some other agent than the latter bank itself. (Post, p. p. 248, 249.)</p> <p>Case cited and approved: Bank v. Johnson, 6 N. D., 180.</p> <p>5. SAME. Same. Same. Same. Ratification of the acts of the collecting bank estops ratifier to sue for its negligence therein when.</p> <p>Where a bank, employed to collect a check on another bank, forwarded the check directly to the drawee bank, and accepted in payment of the check a draft on a third bank, which draft was in turn accepted by the owner of the check for whom the collection was being made, the acceptance of the draft by the owner was a ratification of the act by the collecting bank in taking the draft, and hence precluded him from suing the collecting bank for its conduct in sending the check directly to the drawee bank, as the draft so ratified and accepted was the product of that act. (Post, pp. 249, 250.)</p> <p>6. SAME. Deposit of check as cash may be charged off, if worthless.</p> <p>The mere fact that a bank credits a check deposited for collection as cash does not render the bank liable to the depositor for the amount of the check, if the check is worthless or subsequently dishonored. It is almost the universal usage to credit such collections as cash, unless the customer making the deposit is in weak credit, and in case the check is unpaid to charge it off and return it to the (depositor. (Post, pp. 250, 251.)</p> <p>Case cited and approved: Hazlett v. Bank, 132 Pa., 118, 125.</p> <p>7. SAME. Bank cannot absolve itself from its, own negligence in making collections by its warning notice.</p> <p>A bank cannot absolve itself from its own negligence in making collections by a warning printed on its stationery stating that it will not be liable for loss in collections. (Post, pp. 232, 248.)</p> <p>Cases cited and approved: Sash & Door Co. v. Bank, 76 Minn., 136.</p> <p>8. JURISDICTION. Supreme court has none, where there was no decree in the court of civil appeals, when.</p> <p>Where, by some chance, no notice was taken by the court of civil appeals of the writ of error filed by the complainant against one of the defendants not before that court by appeal, the supreme court, upon certiorari, has no jurisdiction of that particular controversy, because there was no decree entered in respect of that party in the court of civil appeals. (Post, pp. 232, 250.)</p>

<p>WILLS. Proceeding' to revoke probate after ten years is barred by statute of limitation, when.</p> <p>A petition in the county court to revoke or set aside the judgment or order of probate of a will, so far as the same devises real estate, on the ground that the will was admitted to probate upon testimony incompetent because that of subscribing witnesses who were beneficiaries under the will as contingent remaindermen, is barred after ten years from such probate, under the general statute of limitation, as one of the cases not otherwise expressly provided for, where the judgment or order of probate is in proper form and is valid upon its face.</p> <p>Code cited and construed: Sec. 4473 (S.); sec. 3473 (M. & V.); sec. 2776 (T. & S. and 1858).</p> <p>Cases cited and approved: Wynne v. Spiers, 7 Hum., 394; Corn-well v. Cornwell, 11 Humph., 485; Keith v. Raglan, 1 Cold., 474; Brown v. Brown, 14 Lea, 259; Alvis v. Oglesby, 87 Tenn., 180; Crocker v. Balch, 104 Tenn., 6.</p> <p>Case cited, distinguished, and approved: Grier v. Canada, 119 Tenn., 17.</p>

<p>1. EMINENT DOMAIN. Can be exercised only for the use of the public whose rights are to be secured by law.</p> <p>The right of eminent domain cannot be exercised in taking property for private use, and can only be exercised in taking property to be appropriated for the use of the public, whose rights therein shall be secured by law and 'governmental regulation and control, independent of the permission of the owner. It is not sufficient that the public in general may be benefited as a result of the exercise of the right of eminent domain.</p> <p>Constitution cited and construed: Art. 1, sec. 21.</p> <p>Cases cited and approved: Harding v. Goodlett, 3 Yerg., 52; Clack v. White, 2 Swan, 540; Rice v. Alley, 1 Sneed, 51; Freight Co. v. Memphis, 4 Cold., 420; Carson v. Moore, 2 Shannon’s Cases, 500; Ryan v. Terminal Co., 102 Tenn., Ill; Milling Co. v. Blair, and numerous cases in other jurisdictions cited in the opinion, on pages 271-275.)</p> <p>3. SAME. Same. Phosphate mining and manufacturing corporation cannot condemn a right of way; statute authorizing it is unconstitutional.</p> <p>A phosphate mining and manufacturing corporation organized and existing under a statute (Acts 1875, ch. 142, sec. 11, compiled in Shannon’s Code, sec. 2333), authorizing such corporations, in pursuance of the general law providing for the condemnation of private property for works of internal improvements, to condemn a right of way necessary for conducting its business over the lands of any private person or corporation, which right of way is thereby declared a public road, is not entitled to condemn the right of way of a private railroad track owned by another phosphate company, so as to transport its products to a railroad junction, where the only traffic which would pass over the road, if condemned, would he the private shipments of the petitioner seeking the condemnation, for the reason that the condemnation was not for a public use, even though other phosphate companies might ship over the road. The provision of the statute declaring the condemned right of way to he a public road could not change the character of its use. Such provision of the statute is unconstitutional because it undertakes to authorize the condemnation of property for private purposes.</p> <p>Code cited and construed: See. 2333 (S.); sec. 1854 (M. & V.).</p> <p>Acts cited and construed: Acts 1875, eh. 142, sec. 11.</p> <p>See other citations under the first headnote.</p> <p>3. SAME, Right of condemnation for a public purpose may be conferred upon a private corporation.</p> <p>The right of condemnation of property for a public use can he conferred upon a private corporation, but if the condemnation is not for a public use, the right cannot be conferred either upon a private or public corporation. (Post, p. 276.)</p> <p>4. SAME. Right of way on railroad tracks cannot be condemned, nor a part of a railroad’s right of way when not wide enough.</p> <p>The right of way on the tracks of an existing private railroad cannot be condemned, and where the petitioner seeks such condemnation only, and shows ' that right of way is not of sufficient width to build another railroad parallel with the railroad already there, the condemnation will be refused. (Post, p. 276.)</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County. -John Allison, Chancellor.</p>

<p>1. CHOSES IN' ACTION. Notice to debtor is necessary to perfect the assignment thereof.</p> <p>The assignment of a chose in action is not complete, so as to vest title absolutely in the assignee, either as against the debtor or third persons acquiring rights until notice of the assignment has been given to the debtor. (Post, p. 308.)</p> <p>Case cited and approved: Clodfelter v. Cox, 1 Sneed, 330.</p> <p>3. ATTACHMENT. Of assigned debt before notice to debtor prevails over the assignment.</p> <p>The attachment of a debt, before notice to the debtor of an assignment thereof, will take precedence over the assignment. (Post, ¶. 309.)</p> <p>Case cite! and approved: Clodfelter v. Cox, 1 Sneed, 3'30.</p> <p>3. ASSIGNMENTS. Made in one State have no.extraterritorial force in another State.</p> <p>An Illinois insurance company’s assignment of all its property and assets of every kind to a receiver in that State, although in inmtum, had no extraterritorial effect and force over the debts due the insurance company in Tennessee, which could only be removed from the State by the act of the assignor, and could not be recovered by the receiver. (Post, pp. 309, 310.)</p> <p>Cases cited and' approved: Cagill v. Wooldridge, 8 Bax., 580; Bank v. Iron Co., 95 Tenn., 172.</p> <p>4. RECEIVERS. A foreign receiver cannot sue in this State, when.</p> <p>A foreign receiver cannot sue in this State to recover property never in his individual possession. (Post, p. 310.)</p> <p>Same citations as under headnote 3.</p> <p>5. ATTACHMENT. Of indebtedness here due to a nonresident and about to be removed from the State by him.</p> <p>The removal of indebtedness from a debtor in Tennessee to the creditor or his assignee in a foreign State is a removal of property within the meaning of our attachment laws. A debt due from a resident debtor to a nonresident creditor may he subjected, by attachment or garnishment proceedings, to the payment of claims against such creditor, though service upon such creditor is by publication only. An indebtedness due and payable in one State to a foreign corporation domiciled in another State may he impounded by attachment and process of garnishment and subjected to the payment of the claims of creditors. An attachment will lie where the foreign corporation is about to remove the indebtedness to its receiver in the foreign State of its domicile by directing its agent and debtor to remit the same to such receiver. (Post, pp. 310-315.)</p> <p>Code cited and construed: Secs. 5211, 5238 (S.); secs. 4192, 4219 (M. & V.); secs. 3455, 3478 (T. & S., and 1858).</p> <p>Cases cited and approved: Railroad v. Barnhill, 91 Tenn., 395; Brashear v. West, 7 Pet.- (U. S.), 620; Mattingly v. Boyd, 20 How. (U. S.), 128; Railroad v. Kennedy, 83 Ala., 4’62; Mooney V. Manufacturing Co., 72 Fed., 32, 18 C. C. A., 421; Connor v. Insurance Co. (C. C.), 28 Fed., 549; Mason v. Beebee (C. C.), 44 Fed., 556; Trust Co. v. Railroad (C. C.), 68 Fed., 685.</p> <p>Cases cited and distinguished: Railroad v. Morrow, 87 Tenn., 406.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals. — John W. Childress, Judge.</p>

<p>FROM DAVIDSON.</p> <p>Appeal in error from the Circuit Court of Davidson County. — John w. Childress, Judge.</p>

<p>1. TAXES. Requisites of payment of illegal taxes under protest entitling taxpayer to recover same.</p> <p>To make a payment of taxes involuntary, it must appear that the officer authorized to collect the same, and to whom payment was made, had in his hands process authorizing • the seizure of the person or property of the taxpayer, that such seizure of one or the other was imminent, and that there was no legal means of protecting the person or property except by payment, and under such circumstances payment under protest will save the rights of the taxpayer to recover, if the tax should be illegal. Mere protest is not sufficient. Mere unwillingness to pay is not sufficient. (Post, p. 352.)</p> <p>S. SAME. Same. Payment before time for distraint is not under duress or protest, and illegal taxes so paid are not recoverable.</p> <p>The payment of taxes to the county trustee previous to the time when he is authorized by statute to distrain for the nonpayment thereof is not a payment under duress, and illegal taxes so paid cannot he recovered by the taxpayer merely because he paid the same under protest and took a receipt so showing. The question whether the payment was made under duress or protest is a question of law, arising upon proven facts, and its solution does not depend upon the county trustee’s receipt. (Post, pp. 349-355.)</p> <p>Acts cited and construed: Acts 1903, ch. 258, secs. 40, 49, and 50.</p> <p>Cases cited and approved: Bank v. Memphis, 107 Tenn., 66, 68, 74; Railroad v. Commissioners, 98 U. S., 541; Little v. Bowers, 134 U. S., 554, and numerous cases in other jurisdictions cited in the opinion, on page 355.</p> <p>Cases cited and distinguished: Lea v. Memphis, 9 Bax., 103; Bright v. Halloman, 7 Lea, 309, 312; Railroad v. Williams, 101 Tenn., 146, 148; Bank v. Memphis, 107 Tenn., 66, 68, 73, 74; Bank v. Memphis, 116 Tenn., 641, 646, 647.</p> <p>3. JUDGMENT. Not in conformity to pleadings is unauthorized and is no foundation for adjudication of division of costs, when.</p> <p>Where, in a chancery suit by a taxpayer to recover from a county illegal taxes for two years on the ground that the taxes were paid under protest, and the evidence showed that the payment for the first year’s taxes was voluntarily made, and not made under duress nor under protest in law, and that no payment whatever was made for the second year’s taxes, which had been illegally levied by the county court, but had never been carried forward into the assessment, a decree by the chancery court perpetually enjoining the county from asserting its right to the taxes for the second year is not justified by the allegations of the bill which sought not an injunction against the collection of the taxes, but a recovery of the taxes upon the false allegation of their payment under protest. The injunction decree was unauthorized, and was no foundation for the adjudication of any costs against the county. {Post, pp. 355, 356.)</p> <p>4. ATTORNEYS’ FEES. Remandment for assessment against county where application therefor was made in the court below, when.</p> <p>Where there was an application in the court below for the allowance of attorneys’ fees against the county, under the statute applicable to this subject, by the attorneys representing the county in a suit against the county to recover taxes paid under protest, the cause will be remanded for the assessment of these fees. {Post, p. 356.)</p> <p>Code construed, though not cited: Sec. 660, subsec. 1 (S.); sec. 577, subsec. 1 (M. & V.); see. 520, subsec. 1 (T. & S. and 1858.)</p>

<p>1. GENERAL CREDITOR’S SUIT. Claim may be presented any time before final distribution of fund.</p> <p>In a general creditor’s suit, any owner of a claim is entitled to present it, and share in the fund at any time before it has been finally distributed, and even at a subsequent term, after a final decree has been rendered settling all controverted questions, and while the case is still in court awaiting realization of assets and distribution of the fund. (Post, pp. 370, 371.)</p> <p>Cases cited and approved: Akers v. West, 1 Bax., 21; Hurley v. Murrell, 2 Tenn. Chy., 620; Latta v. Summerow, 4 Lea, 486; Hearn v. Roberts, 9 Lea, 368; Prewett v. Goodlett, 98 Tenn., 97; In re Howard, 9 Wall., 175; Johnson v. Waters, 111 U. S., 674; Olcott v. Headrick, 141 U. S., 548.</p> <p>2. SAME. Same. Adjudicated questions can not be opened at a subsequent term at instance of petitioning creditor.</p> <p>The rule allowing a creditor to present his claim and participate in the assets in a general creditor’s suit at any time before a final distribution of the assets does not authorize such a creditor to come in at a subsequent term, after a decree has been pronounced settling all the controverted questions, for the purpose of reopening the case, and having all of said questions reheard and reviewed. (Post, pp. 374, 375.)</p> <p>Cases cited and approved: Allen v. Shanks, 90 Tenn., 359; Forbes v. Railroad, Fed. Cas. No. 4926, 2 Woods, 334.</p> <p>3. BILLS OF EXCEPTIONS. Necessary to make disallowed petitions in chancery suits a part of the record.</p> <p>In order to make a petition, the filing of which has been disallowed in the lower court, a part of the record on appeal, it must be embodied in the transcript by a bill of exceptions duly signed and authenticated by the' chancellor. (Post, pp. 373, 374.)</p> <p>4. SAME. Requisites of a decree to make a disallowed petition in a pending chancery suit a part of the record; mere recital of the filing thereof is not sufficient.</p> <p>The matters in the petition in a pending chancery suit may be sufficiently embodied in a decree to be presented to the supreme court, but in such cases the decree must fully repite the nature and character of the petition with its material averments, together with the relief sought, and the action of the chancellor thereon, and the mere recital that the petition was filed is not sufficient. (Post, p. 374.)</p> <p>Case cited and approved: Nance v. Chesney, 101 Tenn., 466.</p> <p>5. SAME. Petition filed m pending chancery suit without order of chancellor is not a part of the record; recital of filing.</p> <p>The fact that a petition is filed in a creditor’s suit without an order of the chancellor does not make them a part of the. record, especially where the chancellor declines to permit them to he filed, and the mere recital in the decree that the petition was filed, without more, does not make it a part of the record. (Post, p. 374.)</p> <p>6. SUPREME COURT PRACTICE. Offering to suffer judgment for adversary’s claim, with interest and cost, ends litigation, without payment.</p> <p>A litigant may end the litigation in the supreme court by agreeing in open court to suffer judgment to be pronounced against-him for his adversary’s claim, with interest and costs, without the necessity of tendering or paying the money into court. (Post, pp. 376-378, 384, 385.)</p> <p>/. SAME. Same. Where the appellants were not shown to he sued as representing a class in the hill, nor as appealing as such.</p> <p>Where it is sought to prevent the dismissal of an appeal in a creditor’s suit upon the appellee’s agreeing to suffer judgment against him in favor of the appellants, on the ground that the appellants were sued as defendants of record as the representatives of a particular class of creditors, the bill must show that they were made parties defendant as the representatives of a particular class, especially where the decree granting the appeal shows that they prayed an appeal on their individual accounts. (Post, pp. 377-385.)</p> <p>Cases cited and approved: Brown v. Brown, 86 Tenn., 310; Lan-chester v. Thompson, 5 Madd. Chy. Rep", 15.</p> <p>Cases cited and distinguished: Bank v. Bank, 23 Pick. (Mass.), 492; Schumate v. Crockett, 43 W. Va., 91; Bilmyer v. Sherman, 23 W. Va., 662 (and citations).</p> <p>8. OFFICIAL BONDS. Not in conformity with statute and in excess of statute is enforceable to extent of statute and its own stipulations as a common law bond.</p> <p>Where an official bond is, voluntarily and for a valid consideration, executed by a public officer and his surety, hut is not conditioned according to statute, omitting one prescribed condition, and embracing other conditions not required by statute, but not against public policy, such bond is nevertheless a good common law bond and will be enforced to the full extent of the penalty imposed for the breach of the conditions prescribed by statute and those stipulated in the bond. (Post, pp. 385-399.)</p> <p>Code cited and construed: Secs. 402, 403, 1094 (S.); secs. 368, 369, 961 (M. & V.); secs. 326, 327, 773 (T. & S. and 1858).</p> <p>Cases cited and approved: Hibbitts v. Canada, 10 Yerg., 465; Goodrum v. Carroll, 2 Humph., 490; Polk v. Plummer, 2 Humph., 500; Jones v. Wiley, 4 Humph., 146; Boughton v. State,. 7 Humph., 193; Governor v. Allen, 8 Humph., 177; Davis v. Brat-ton, 10 Humph., 179; Banks v. McDowel, 1 Cold., 84, 85; McLean v. State, 8 Heisk., 270-275; Allison v. State, 8 Heisk., 312; Maddox v. Shacklett (Tenn. Chy. App.), 36 S. W., 731; United States v. Hodson, 10 Wall., 409; Minor v. Bank, 1 Pet., 46; Coons v. People, 76 Ill., 383; Bank v. Smith, 5 Allen (Mass.), 415; Fiala v. Aimsworth, 63 Neb., 4; Bank v. Adams, 12 Pick. (Mass.),, 303.</p> <p>9.SAME. Same. Condition to perform duties is a guarantee against defalcations in funds.</p> <p>A condition in the bonds of a public officer that he will truly and faithfully perform all the duties of his office is a guarantee of his personal honesty, furnishing indemnity against his defalcations in accounting for funds paid into his hands. (Post, p. 397.)</p> <p>Cases cited and approved: Minor v. Bank, 1 Pet., 46; Fiala v. Aimsworth, 63 Neb., 4; Bank v. Adams, 12 Pick. (Mass.), 303.</p> <p>10. STATE. Priority of the State as a creditor is a common law right received from North Carolina.</p> <p>The prerogative right of the sovereign to receive payment of fines, forfeitures, taxes, and revenue, and such demands as are due it in its sovereign capacity was a part of the common law transmitted to Tennessee from North Carolina. (Post, pp. 404, 405.)</p> <p>11. SAME. Same. Priority of State in collection of delinquent revenue on official bond of defaulter.</p> <p>The State is entitled to priority over the other creditors of a defaulting public officer in the collection of its delinquent revenue on his official bond. (Post, pp. 399-405.)</p> <p>Code cited and construed: Sec. 4090 (S.); sec. 3195 (M. & V.); sec. 2350 (T. & S. and 1858).</p> <p>Cases cited and approved: Field v. Wheatley, 1 Sneed, 351; Orem v. Waightson, 51 Md., 34; State v. Bank, 6 Gill & J., 205, 228; Board v. Bank, 30 N. J. Eq., 311; Glynn Co. v. Terminal Co., 101 Ga., 244, and citations; State v. Pemberton, Dud., 15; Hoke v. Henderson, 14 N. C., 23.</p> <p>Cases cited and disapproved: Klinck v. Keckley, 2 Hill, Eq., 250, 256; Baxter v. Baxter, 23 S. C., 114; State v. Harris, 2 Bailey, 598.</p> <p>12. COUNTIES. Have no priority over other creditors of a defaulting public officer.</p> <p>Counties are not entitled to priority over the other creditors of a defaulting public officer in the collection of claims on his official bond. (Post, pp. 402, 403, 405.)</p> <p>Cases cited and approved: State v. Bank, 5 Bax., 1; Leeper v. State, 103 Tenn., 528; Glynn Co. v. Terminal Co., 101 Ga„ 244.</p> <p>13. MUNICIPAL CORPORATIONS. Have no priority over other creditors of a defaulting public officer.</p> <p>The municipal corporations of the State are not entitled to .priority over the other creditors of a defaulting public officer m the collection of their claims on his official bond. {Post, p. 405.)</p> <p>14. OFFICIAL BONUS. Surety is not liability for interest on penalties until judgment is rendered therefor.</p> <p>Where a surety on a defaulting public officer’s bonds filed its bill, in the nature of a general creditor’s bill, against the officer and certain of his official creditors as representatives of all his official creditors to ascertain its liability on such bonds it was chargeable with interest on the penalties of the bonds from the date of the decree adjudging liability, and not from the date of the filing of the bill. {Post, pp. 377, 405, 406.)</p> <p>Cases cited and approved: State, ex rel., v. Blaltemore, 7 Heisk., 657; State v. Cole, 13 Lea, 366.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson County. —John Allison, Chancellor.</p>

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

<p>PROM GILES.</p> <p>Appeal from the Chancery Court of Giles County.— Walter S. Bearden, Chancellor.</p>

FROM WEAKLEY. Appeal in the nature of a writ of error from the Circuit Court of Weakley County to the Court of Civil Appeals, and by writ of certiorari from the Court of Civil Appeals. — Joseph E. Jones, Judge.

<p>1. MUNICIPAL CORPORATIONS. Violations of ordinances are offenses against, called misdemeanors; same offense punishable by city and State, when; ordinances must be reasonable.</p> <p>The word “misdemeanor,” as used in statutes conferring power upon municipal corporations, is not wholly' synonymous with the same term as used at common law or in general statutes defining offenses against the State of a grade less than that of a felony, but has a more restricted meaning, and is limited to offenses against the smaller local government; and, while an offense against a city may also be an offense against the State, punishable by both jurisdictions, there are many offenses against municipalities which are not offenses against the State, and which the legislative bodies of municipal corporations are authorized to define and declare by ordinance, subject to the condition that such ordinance is not in violation of the constitution or general laws of the State or the charter of the corporation, and is not unreasonable. (.Post, p. 456.)</p> <p>•Casr". cited and approved: Trigally v. Mayor, 6 Cold., 388; Greenwood v. State, 6 Bax., 567, 573, 574; State v. Mason, 3 Lea, 649; Ogden v. Madison, 111 Wis., 413.</p> <p>2. SAME. Power to create offenses must be vested by legislature, when.</p> <p>The power of municipal corporations to define and declare by ordinance what shall be offenses against them must be vested in them by the legislature, either by direct grant or by implication necessarily attendant on the mere existence of the corporations as creations of law, and when the grant of power is direct, it may be by either special provisions, or general, or both. (Post, pp. 456, 457.)</p> <p>Cases cited and approved: Smith v. Knoxville, 3 Head, 245, 248; Long v. Taxing District, 7 Lea, 134, 136; Nashville v. Linck, 12 Lea, 499, 508, et seq.</p> <p>3. SAME. Power to imprison for violation of ordinances or for failure to pay fine must be conferred by legislature; other prerequisites.</p> <p>The power of a municipal corporation to imprison for the violation of a city ordinance or for failure to pay a fine assessed for such violation must'be expressly and clearly conferred by the legislature; and there must be a judicial ascertainment of the offense and assessment of the fine and penalty before the imprisonment can be inflicted. (Post, p. 457.)</p> <p>4. SAME. Same. Instance in judgment where such power was conferred by legislation.</p> <p>The charter of the city of Memphis, by its provisions (contained in Acts 1879, ch. 11, sec. 3; Id., ch. 84, sec. 1, and amendments) that the city shall have the power to establish workhouses, and houses of correction, to declare by local laws what acts shall be misdemeanors, and to punish offenders by fines and forfeitures and by imprisonment and labor, in default of payment of fines, expressly conferred upon said city the right to declare and define by ordinance what are violations of its laws, and to assess fines for such violations, and to imprison the offender until the fine is secured or paid in money or work. (Post, pp. 458, 459.)</p> <p>Acts cited and construed: Acts 1879, ch. 11, sec. 3; Id., ch. 84, sec. 1; and amendments thereto.</p> <p>Cases cited and approved: Hogan v. Chattanooga, 2 Shannon’s Tenn. Cas., 339, 341; Mosley v. Gallatin, 10 Lea, 494; State v. Taxing District, 16 Lea, 240, 250, 251.</p> <p>5. SAME. Prosecution for violation of city ordinance is in the nature of both a civil and criminal proceeding; appeals.</p> <p>A prosecution for the violation of a municipal ordinance partakes of both a civil and criminal character. The accused is arrested on a warrant as in criminal cases, and, if found guilty, a judgment is entered against him as for a fine, and, on failure to pay the fine, he may he held in custody until he pays or secures it, or be put at labor to pay it. If dissatisfied with the judgment, he may appeal as in civil cases, upon complying with the law or statute applicable, and may have a retrial in the circuit court, where the matter will be heard de novo, under the rules of practice applicable to civil cases. (Post, pp. 469, 460.)</p> <p>Cases cited and approved: Meaher v. Chattanooga, 1 Head, 75; Wood v. Grand Junction, 5 Heisk., 440; Memphis v. Schade, 12 Heisk., 579; Bristol v. Burrow, 5 Lea, 128; State v. Haynes, 104 Tenn., 406, 409; Memphis v. Smythe, 104 Tenn., 702.</p> <p>6. SAME. Same. Power to make effective punishment for offenses; same power exercised in appellate court of the State.</p> <p>A municipality is a government within itself, and must have the power to punish for offenses against its laws, and must be able to bring that punishmjent to bear and to make it effective by its own agencies; and where the right of appeal is given and is exercised by the alleged offender, the municipality appears as a suitor in the appellate court to recover the penalty assessed against the alleged offender, but the appellate court, while trying the controversy as a civil suit, will see to it that the municipality, if successful, shall have there the same sanctions for the enforcement of its laws as if the trial had terminated in the municipal court. (Post, pp. 460, 461.)</p> <p>7. SAME. Power to require sidewalks to 'foe constructed by abutting lot owners must be construed strictly but not narrowly.</p> <p>While the power of a municipality to compel abutting lot owners to construct sidewalks along the streets in front of their lots is required to be expressly conferred by statute, and should be strictly construed in favor of the personal liberty of the individual citizen and his rights of property, the courts should ever be mindful of the needs of large masses of people grouped together in the cities, and the necessity of efficient government, to the end that not only the health and the good order of the citizens shall he maintained, hut that reasonable conveniences may he from time to time added for the attainment of public comfort and general well being. Therefore, the denizens of cities must, for the common good, occasionally submit to exac-tions that would not he considered reasonable in communities where the population is sparse; and hence, while the construction of such statutes should be strict, it should not be narrow. (Post, pp. 461-464.)</p> <p>Cases cited and approved: ' Franklin v. MaDry, 6 Humph., 368; Washington v. Mayor, 1 Swan, 180; White v. Mayor, 2 Swan, 364; Smith v. Insurance Co., 3 Tenn. Chy., 631; Nashville v. Berry, 2 Shannon’s Tenn. Cas., 561; Nashville v. Linck, 12 Lea, 499, 505, et seq.; Gridly v. Bloomington, 88 Ill., 557; Chicago v. Crosby, 111 Ill., 538; Woodward v. Boscobel, 84 Wis., 226.</p> <p>8. SAME. Statute conferring upon a city power to require by ordinance the construction of sidewalks by abutters.</p> <p>The charter of the city of Memphis, by its provision (contained in Acts 1879, ch. 11, sec. 3; Id., ch. 84, see. 1, as amended by Acts 1887, ch. 233) that the city shall have power “to compel lot owners to make safe and proper sidewalks of brick, plank, stone, or granolith,” conferred upon the city the power to provide by ordinance for the building of granolith sidewalks by abutting lot owners. (Post, p. 464.)</p> <p>Acts cited and construed; Acts 1879, ch. 11, sec. 3; Id., ch. 84, sec. 1; Acts 1887, ch. 233.</p> <p>9. SAME. Same. Power of city to require and enforce construction of sidewalks by fine and imprisonment; case in judgment.</p> <p>Under the charter of the city of Memphis providing (in Acts 1879, ch. 11, sec. 3; Id., ch. 84, sec. 1; Acts 1887, ch. 233; and amendments thereto) that the city shall have the power to establish workhouses, and houses of correction, and to declare what acts shall be misdemeanors, and to punish the offenders by fine, and by imprisonment at labor in default of payment of the fine; and declaring that the city shall have power to compel lot owners to make safe and proper sidewalks of brick, plank, stone, or granolith, the city may by ordinance require abutting lotowners to construct sidewalks as the legislative council shall declare by resolution, and may provide that a failure to conform to the ordinance shall be a misdemeanor and subject the offender, upon conviction, to a fine, and that an offender failing to pay the fine imposed may be committed to the workhouse until the fine shall be paid or worked out. This is not imprisonment for debt. The violation of the requirement of the ordinance does not create a debt, but a misdemeanor for which a fine or penalty is inflicted to enforce the ordinance. (Post, pp. 464-468.)</p> <p>10. SAME. City ordinance authorized by legislature imposing fine for its violation, and imprisonment for its nonpayment, is not unreasonable, when.</p> <p>A city ordinance which merely exercises the power conferred by the legislature, within the express case contemplated by the legislature, is not unreasonable. An ordinance imposing a fine or penalty for its violation, and enforcing the payment of the same by imprisonment and labor is not, on that account, unreasonable. (Post, p. 467.)</p> <p>11. SAME. Habeas corpus to test right to fine for violation of a city ordinance, and to imprison for its nonpayment</p> <p>One convicted of violating a municipal ordinance and committed to the workhouse until the fine imposed shall be paid or worked out may test his right to relief by habeas. corpus. (Post, p. 468.)</p> <p>Cases cited: State v. Galloway, 6 Cold., 326; State v. Taxing District, 16 Lea, 240, 249, 250, 251; McLendon v. State, 92 Tenn., 520; and numerous cases in other States cited in the opinion on page 468.</p>

<p>1. TAXATION. Prohibited business may be taxed.</p> <p>A business which is prohibited may be taxed. The fact that a business is made unlawful as a misdemeanor, and a license cannot be issued or obtained authorizing it, does not prevent the collection of the privilege tax imposed upon such business from a person engaged therein.</p> <p>Cases cited and approved: Palmer v. State, 88 Tenn., 553; Blau-field v. State, 103 Tenn., 593; License Tax Cases, 5 Wall. (U. S.), 462; Bank v. Fenno, 8 Wall. (U. S.), 533; Youngblood v. Sexton, 32 Mich., 406; Welsh v. State, 126 Ind., 71; State v. Funk, 27 Minn., 318; State v. Doon,- R. M. Charlt. (Ga.), 1; State v. Hipp, 38 Ohio St., 199; Butzman v. Whitbeek, 42 Ohio St., 223; State v. Tucker, 45 Ark., 55; State v. Brown, 41 La. Ann., 771.</p> <p>2. SAME. Same. Privilege tax for sale of liquor in prohibited territory is collectible; case in judgment.</p> <p>A statute (Acts 1903, ch. 257), making the retailing of liquor a privilege and imposing a tax thfereon, applies to sales made ih places where the business is prohibited and made a misdemeanor; and one making sales of liquor by retail within four miles of a schoolhouse in the country in violation of what is commonly known as the four mile law, is liable for the privilege tax imposed thereon. The two statutes, when applied to . the territory in which the sales are prohibited, are consistent, and tend to effect the same purpose, namely, the prevention of the sale of liquor therein.</p> <p>Acts cited and construed: Acts 1903, ch. 257; and the four-mile law.</p>

<p>X. COSTS. Retaxation must be in court determining the suit.</p> <p>The taxation of costs is an incident to the suit, and the jurisdiction of adjusting and correcting the taxation belongs to the court which determines the suit; and where the taxation is erroneous, the costs may be retaxed by such court at the instance and upon the motion of the party aggrieved. (Post, pp. 488-491.)</p> <p>Cases cited and approved: Whitesides v. Rayle, 3 Humph., 265; Ross v. McCarty, 3 Hum., 169; Clark v. Stull, 1 Shannon’s Cases, o60; State v. Goodbar, 8 Lea, 451; Arnold v. State, 96 Tenn., 84; Troutt v. Railroad, 97 Tenn., 364.</p> <p>2. SAME. Retaxation of criminal costs cannot be made in chancery.</p> <p>Under our statutes (Shannon’s Code, secs. 673, 4954, 7593, 7594-, 7598), committing the examination and certification of bills of criminal costs in the criminal or circuit court to the district attorney and judge of that court in the first instance, with a statutory power lodged in the comptroller of the State and judge of the county court to review and correct such bills of cost so certified before payment, with ample statutory remedy for the correction and retaxation of costs that have been improperly certified, it would seem clear that no such jurisdiction should be exercised by the chancery court to correct and retax such bills of costs. (Post, pp. 491, 492.)</p> <p>Code cited and construed: Secs. 673, 4954, 7593, 7594, 7598 (S.); secs. 586, 3937, 6442, 6443, 6447 (M. & V.); secs. 528, 3212, 5569, 5570, 5571 (T. & S. and 1858).</p> <p>3. SAME. Retaxation of costs after payment and at a subsequent term.</p> <p>Costs improperly taxed and paid may be retaxed and corrected and caused to be refunded, even at a subsequent term of the court. (Post, p. 492.)</p> <p>Case cited and approved: Williams v. Henderson, 1 Ov., 424.</p> <p>4. SAME. Statute authorizing revenue agents to sue for fees ■ illegally collected does not confer jurisdiction on chancery court.</p> <p>The statute (Acts 1903, ch. 258, see. 80) authorizing the State revenue agents appointed by the comptroller to sue, “by motion or otherwise,” delinquent revenue collectors or officers and to sue for costs and fees wrongfully certified, received, disbursed or retained by officers, does not confer any new jurisdiction on the chancery court, but only confers on said revenue agents the power to sue, by motion or otherwise, to recover delinquent revenue, and to recover costs illegally collected. (Post, pp. 492-493.)</p> <p>Acts cited and construed: Acts 1903, ch. 258, sec. 80.</p> <p>5. SAME. Mo chancery jurisdiction as to costs illegally taxed and collected in criminal court, for mistake or fraud, or to prevent multiplicity of suits.</p> <p>Since the criminal court is clothed with exclusive jurisdiction to retax costs in cases tried by it, and to pronounce judgment against the clerk and others for costs improperly or illegally taxed and collected, the chancery court will not assume jurisdiction of a suit by the State for the recovery of costs illegally collected by the clerk of the criminal court on the ground of mistake or fraud, or to prevent a multiplicity of suits. (Post, p. 493, 494.)</p> <p>6. SAME. Mo chancery jurisdiction to prevent multiplicity of suits where test cases may be made for retaxation of costs in criminal court.</p> <p>Where the question of the illegality of costs taxed and collected in the criminal court may be settled by a motion to correct and retax the taxation of costs in a few cases in such court, chancery will not take jurisdiction to prevent a multiplicity of suits. (Post, p. 494.)</p> <p>7. SAME. Proper practice is to file petition in criminal court for recovery of costs illegally collected from the State, when,</p> <p>■Where the State seeks to recover of the clerk of the criminal court and his sureties costs illegally collected hy the clerk, the proper practice would he to file a petition in the criminal court under the statute (Acts 1903, ch. 258, sec. 80), for an account or retaxation of all costs alleged to have been illegally collected. (Post, p. 494.)</p> <p>.Acts cited and construed: Acts 1903,. eh. 258, sec. 80.</p> <p>8. SAME. Same. Such petition may embrace question as to clerk’s payment of fines and fees to county trustee instead of State comptroller.</p> <p>The question of the liability of the clerk of the criminal court for fines, costs, and the district attorney’s fees collected and paid to the county trustee instead of the comptroller of the State should be submitted to the criminal court in which they accrued and might be embraced in any petition which the State might see proper to file in the criminal court for the retaxation of the costs involved therein. (Post, pp. 494, 495.)</p>

<p>1. PARTITION1. Owner of life estate is not entitled to partition as against remaindermen, when.</p> <p>An individual owner of a life estate in land is not entitled, under our statutes, to maintain a bill against the owners in remainder or reversion for partition in kind, nor for a sale for partition. (Post, pp. 499-521.)</p> <p>Acts cited historically: Acts 1787, och. 17; Acts 1789, ch. 24; Acts 1799, ch. 11; Acts 1815, ch. 123; Acts 1817, ch. 41; Acts 1823, ch. 37; Acts 1827, ch. 54; Acts 1829, ch. 35; Acts 1853-54, ch. 48.</p> <p>Code cited and construed: Secs. 5010-5012, 5040, 5041,' 5042, 5054-5057 (S.); secs. 3993-3995, 4022-4024, 4036-4039 (M. & V.); secs. 3262-3264, 3291, 3292, 3293, 3305-3308 (T. & S. and 1858).</p> <p>Cases cited and approved: Freeman v. Freeman, 9 Heislc., 301; Rutherford V. Rutherford, 116 Tenn., 383-386.</p> <p>2. SAME. Same. Life tenant cannot force sale of remainder for partition, though he may consent to it, when.</p> <p>Our statutes do not contemplate a suit by the life tenant of the whole premises against the owners in remainder or reversion for the purpose of effecting a sale, in order that the life tenant may have his life estate valued and paid to him in money. The right of one of the owners in remainder or reversion to maintain a bill, under our statutes, against his cotenants in remainder or reversion for a partition in kind or for a sale for partition of the remainder or reversion, or for a sale of the. whole estate, both life and remainder or reversion, where the life tenant is made a party, and consents thereto, or the court adjudges it to his interest, where it is incapable of consenting, or where he is unknown, does not give such life tenant an absolute right to force a sale against the wishes of the owners in remainder or reversion. (Post, pp. 514-518, 520-522.)</p> <p>Acts cited: Acts 1907, ch. 403.</p> <p>Code cited and construed: Sees. 5040, 5041, 5054-5057 (S.); secs. 4022, 4023, 4036-4039 (M. & V.); secs. 3291, 3292, 3305-3308 (T. & S. and 1858).</p> <p>Cases cited and distinguished: Bierce v. James, 87 Tenn., 538; Rutherford V. Rutherford, 116 Tenn., 383.</p> <p>3. LIRE ESTATES. Use of annuity and life tables and the condition and circumstances in ascertaining their value.</p> <p>While annuity tables or life tables are admissible on an issue as to the present value of a life estate, they are not conclusive as to the probable duration of the life tenant’s existence. The age, habits, and constitution of the life tenant must be considered. The value of the life estate must be determined by considering, in addition to the expectancy, the present worth of the money in connection with the risks attending the lending thereof, the payment of taxes, etc. (Post, pp. 518-520.)</p> <p>Case cited and approved: Carnes v. Polk, 5 Heisk., 244.</p> <p>4. CHANCERY JURISDICTION. Inherent power to convert estates of persons under disability for their manifest interest, when.</p> <p>Chancery has inherent power and jurisdiction to convert the estates of persons under disability when to their manifest interest, and may decree a sale of their land for reinvestment of the proceeds, where it appears that by reason of the unproductive and depreciative character of the land, it is to their manifest interest to do so. (Post, pp. 522, 523.)</p> <p>Cases cited and approved: Brown’s Case, 8 Humph., 200; Martin v. Keeton, 10 Humph., 539; Winchester v. Winchester, 1 Head, 460, 491, 492; Thompson v. Mebane, 4 Heisk., 373, 377; Talbot v. Provine, 7 Bax., 509; Gray v. Barnard, 1 Tenn. Chy., 298, 301; Hurt v. Long, 90 Tenn., 445; Lenow v. Arrington, 111 Tenn., 720.</p> <p>5. CHANCERY PLEADING. Demurrer as to part of relief is not good, when.</p> <p>A demurrer which does not go to the whole bill, or to any specific severable part thereof, hut only to a part of the relief asked, is not sustainable. (Post, p. 522.)</p> <p>6. CHANCERY PLEADING AND PRACTICE. Statute requiring married woman to be made defendant to suit for sale of land for reinvestment is merely directory, when. •</p> <p>A married woman owning a life- estate in certain land in which her infant child owns the remainder estate may as testamentary guardian of her said child maintain a bill, in which her husband joins, against her said ward and child for the sale of the land for reinvestment for the manifest interest of herself and ward, where there is no antagonism between her interests and those of her husband in respect to. the propriety of a sale of her interest. It is no objection to the bill that she was not made a defendant. The requirement of the statute that she be made a party defendant to such bill is merely directory, and not mandatory. The statute also requires the guardian to be complainant in such a suit against the ward. (Post, pp. 522-524.)</p> <p>Cases cited and construed: Sec. 5073 (S.); sec. 4055 (M. & V.); sec. 3324 (T. & S. and'1858).</p>

<p>EVIDENCE. Of what party condemning land under eminent domain laws paid for other land is incompetent, when.</p> <p>In a proceeding instituted by a public service corporation to condemn land for its use, evidence of what it paid for other land in the neighborhood of that sought to be condemned was properly excluded by the trial judge. Evidence of what the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise.</p> <p>Numerous cases in other jurisdictions are cited and approved in the opinion on pages 529, 530.</p>

<p>1. INHERITANCE TAX. May he constitutionally imposed by statute.</p> <p>A privilege tax may be constitutionally imposed upon the right of succession by will, inheritance, or otherwise, to the estates of deceased persons, not as a tax upon property or upon the right of alienation, but upon the right privilege, or condition of receiving such property. (Post, pp. 536, 537.)</p> <p>Acts cited and construed: Acts 1893, ch. 174; Id., ch. 89, sec. 7.</p> <p>Case cited and approved: State v. Alston, 94 Tenn., 681.</p> <p>2. TAXATION. Exemptions must appear in statute; but statutes will not be extended to subjects not included.</p> <p>It is axiomatic and fundamental that exemptions from taxation must positively appear, and that no implication will arise that any species of property or subject of taxation was intended to be excluded if it comes within the fair purview of the act; but statutes imposing taxes will not be extended by construction or intendment to subjects lying outside of the domain of the statutes. (Post, pp. 537, 538.)</p> <p>Cases cited and approved: Memphis v. Bing, 94 Tenn., 644; Eidman v. Martinez, 184 IT. S., 583.</p> <p>3. INHERITANCE TAX. Laws to be strictly construed against the government and favorable to the taxpayer.</p> <p>The inheritance and succession tax is a special tax, and the rule is that special tax laws are to be construed strictly against the government and favorable to the taxpayer, so that the citizen cannot be subjected to special burdens without clear warrant of law. (Post, pp. 538, 539.)</p> <p>Case cited and approved: Kerr’s Estate, 159 Pa., 512.</p> <p>4. SAME. Property received in compromise of will contest is not subject to inheritance tax, where it was not so subject under the will.</p> <p>Where a testator, by his will, left all his property to his widow, to the exclusion of all his heirs at law, who contested the .will, which was set aside in the circuit court, but upon appeal the case was reversed and remanded for a new trial, and thereupon the controversy was compromised and the contest withdrawn in consideration of the widow’s conveyance of one-half of the decedent’s property to the contestants, the testator’s collateral heirs, it is held that such collateral heirs did not derive title from the deceased testator, but from the deeds of the widow, and no collateral inheritance tax inheres or attaches to the property or is due under the statute (Acts 1893, ch. 174; Id., ch.- 89, sec. 7) imposing a tax upon all estates passing by will, inheritance, or deed made in contemplation of death or to take effect in possession or enjoyment after the death of the grantor, to such collateral heirs and others, with the exception of certain relatives.</p> <p>Acts cited and construed: Acts 1893, ch. 174; Id., eh. 89, sec. 7.</p> <p>Cases cited and approved: Pepper’s Estate, 159 Pa., 508; Kerr’s Estate, 159 Pa., 512; Hawley’s Estate, 214 Pa., 525; Kerr’s Estate, 2 Pa. Hist. R., 535; Page v. Rives, 1 Hughes (U. S.), 297; 'Fed. Cas., No. 10666; Bruñe v. Smith, 13 Tnt. Rev. Rec. (U. S.), 54, Fed. Cas., No. 2053.</p>

<p>1. EXTORTION. What constitutes.</p> <p>Extortion at common law is the taking, by the color of an office, of money or other thing of value that is not due, before it is due, or more than is due. Extortion in its general sense signifies any oppression by'color of right, but technically it may be defined to be the taking of money by an officer by reason of his office, either where none is due or where none is yet due. (Post, pp. 551, 552.)</p> <p>Cases cited and approved: Williams v. State, 2 Sneed, 162; Le-var v. State, 103 Ga. 42.</p> <p>2. SAME. For officer to demand and receive a fee before it is due.</p> <p>A justice of the peace is guilty of extortion, both under our statutes and at common law, in demanding and receiving a fee allowed by statute before the same is due. (Post, pp. 552, 553.)</p> <p>Code cited and construed: Secs. 6352, 6353, 6387, 6714 (S.); secs. 2269, 5270 (M. & V.); secs. 4517, 4518, 4810 (T. & S. and 1858).</p> <p>3. SAME. Statute referring1 to time due as well as to amount of fee.</p> <p>Our statute providing that no officer shall demand Or receive fees or other compensation for any service further than is expressly provided by law refers not only to the amount of the fee, but to the time when it is due by law. (Post, pp. 552, 553, 554.)</p> <p>Code cited and construed: Sec. 6352 (S.); sec. 5269 (-M. & V.); sec. 4517 (T. & S. and 1858).</p> <p>4. STATUTES. Not construed to alter the common law, when.</p> <p>A statute will not be construed to alter the common law further than the act expressly declares or than is necessarily implied from the fact that it covers the whole subject-matter. (Post, p. 553.)</p> <p>Cases cited - and approved: McCrea v. Galey, 1 Tenn., 251; Moyers v. Brown, 10 Humph., 77; Eaton v. Dickinson, 3 Sneed, 404; Horne v. Railroad, 1 Cold., 77; State v. Miller, 11 Lea, 621; Shaw v. Bank, 101 U. S., 557.</p> <p>5. JUSTICES OE THE PEACE. Taking bail bond is a clerical act.</p> <p>The faking of a bail bond by a justice of the peace, acting both as judge and clerk of his court, is a clerical act. {Post, p. 554.)</p> <p>6. CLERKS OE COURTS. Hot entitled to collect fees before termination of suit.</p> <p>A clerk of a court has no right to collect his fees from a litigant before the termination of the case in which the services are rendered. {Post, p. 554.)</p> <p>Cases cited and approved: Garren v. Breed, 2 Cold., 467.</p> <p>7. COSTS. Defendant acquitted or discharged is not liable for costs, when.</p> <p>If the defendant in a criminal case pleads not 'guilty and is discharged, or if he is bound over and the indictment is ignored, or if he is indicted and acquitted, he is not liable for costs. {Post, p. 554.)</p> <p>Code cited and construed: Sec. 7619 (S.); sec. 6465 (M. & V.); sec. 5585 (T.‘& S. and 1858).</p> <p>8. JUSTICES.OE THE PEACE. Hot entitled to collect fee for bail bond until final disposition of case.</p> <p>A justice of the peace has no right to collect his fee of fifty cents for taking a bail bond until it has been adjudged upon some disposition of the case by final judgment that the accused is liable for it. {Post, p. 554.)</p>

<p>1. MUNICIPAL CORPORATIONS. City ordinance is not invalid as creating a new office under a statute authorizing an assistant to another officer, when.</p> <p>Under a statute (Acts 1905, ch. 54, secs. 55-60) creating the office of a city register- for a certain municipal corporation (Memphis); requiring the register to keep all' the city’s papers, documents, hooks, and accounts of its transactions, and to publish financial statements; providing that the register shall have such clerical help and assistance as the city council shall deem necessary; and requiring him to give bond to account for moneys passing through his hands, a city ordinance creating the office of city paymaster whose incumbent is to be elected by the city council, and prescribing certain duties to be performed by the paymaster in connection with office and. duties of such register so as to make the paymaster in effect an assistant to the register, is not invalid as creating a new office. The misnaming of the office or officer is immaterial and unimportant. {Post, pp. 556-566.)</p> <p>Acts cited and construed: Acts 1905, ch. 54, secs. 55-60.</p> <p>Case cited and approved: University v. Knoxville, 6 Bax., 171.</p> <p>2. SAME. City ordinance as to disbursement of funds does not infringe charter as to expenditure upon commissioners’ warrants, when.</p> <p>The charter of the city of Memphis (Acts, 1879, ch. 11, sec. 9), requiring the city’s funds to be ,expended upon the warrants of two of the fire and police commissioners is not infringed or violated by a city ordinance merely providing for the disbursement of the funds by the register, instead of by the heads of departments as before, since the ordinance does not prevent the commissioners from drawing the funds by warrants payable to the city register instead of the heads of departments as before. {Post, pp. 566, 567.)</p> <p>Acts cited and construed: Acts 1879, ch. 11, sec. 9.</p> <p>3. SAME. City council does not control expenditures by providing and electing an assistant to verify accounts and to countersign checks, when.</p> <p>A statute prohibiting the city council from controlling the expenditure of its appropriations is not violated by a city ordinance providing, an assistant to the city register, to be elected by the city council, and misnamed city paymaster, who has nothing to do with directing the expenditure, but only examines accounts against the city to see whether they are made out in accordance with the city’s contracts, and countersigns checks which the register has signed. (Post, pp. 567, 568.)</p> <p>Acts cited and construed: Acts 1905, ch. 54, sec. 26.</p>

<p>1. WILLS. Words "dying without issue” mean devisee’s death without issue during testator’s life, when.</p> <p>In a devise and bequest of the residue of testator’s estate to his children and legal heirs absolutely and in fee simple, and in equal shares, with a concluding provision in the same elaube that should any of his children “die without issue, his or their share shall . . . revert” to the testator’s “children then living, their heirs, and assigns forever,” it is not only a settled rule of construction, but a rule of property, that the words “die without issue” contemplate and mean death of the devisee or legatee without issue surviving during the life of the testator. This rule is not abrogated by our statute (Shannon’s Code, section 3675) providing that a contingent limitation made to depend upon the dying of any person without issue shall be a limitation"to take effect when such person dies without issue living at the time of his death, unless otherwise expressly and plainly declared. This statute was enacted to change the common-law rule that the words “dying without issue,” and other equivalent terms, imported an indefinite failure of issue, a total extinction of descendants of the first taker, and that a limitation over dependent upon such indefinite failure, or extinction, was void for remoteness, and as tending to create perpetuities, and that the first taker took an absolute estate. This is the only effect of said statute, which does not in any sense trench upon, or come in conflict with, the rule announced in the first paragraph of this headnote. (Post, pp. 573-578.)</p> <p>Code cited and construed: Sec. 3675 (S.),‘ sec. 2815 (M. & V.); sec. 2009 (T. & S. and 1858).</p> <p>Acts cited and construed: Acts 1851-52, ch. 91, sec. 3.</p> <p>Cases cited and approved: ' Bramlett v. Bates, 1 Sneed, 554; Vaughn v. Cator, 85 Tenn., 302; Meacham v. Graham, 98 Tenn., 190; Katzenberger v. Weaver, 110 Tenn., 621.</p> <p>Cases cited and distinguished: Hottell v. Browder, 13 Lea, 676; ■ Stoval v. Austin, 16 Lea, 700.</p> <p>¡2. SAME. A clear grant will not be modified by a later obscure provision, when.</p> <p>■A clear grant of a fee by an earlier provision in a will will not be modified or qualified by a later obscure or ambiguous provision. (Post, pp. 578, 579.)</p> <p>3. SAME. Construction of one clause will not aid in construction of another clause in same item, when.</p> <p>Where the language of each clause in a will is clear, the construction in the one can give no aid in arriving at the testator’s intention in the other, though both clauses are found in the same item. (Post, p. 579.)</p> <p>Case cited and approved: Simpson v. Smith, 1 Sneed, 396.</p> <p>4. SAME. Fee simple estate can not be enlarged' by statement that it is to be possessed absolutely.</p> <p>Where the estate given in the opening sentence of an item of a will is one in fee simple, the further statement that it is to be “possessed absolutely” neither qualifies nor. enlarges the estate, since an estate in fee simple is the largest estate and most extensive interest that can be enjoyed in land. (Post, p. 579.)</p> <p>Cases cited and approved: Haynes v. Bourn, 42 Vt., 686; Friedman v. Steiner, 107 Ill., 125.</p> <p>5. SAME. Intention of testator to be ascertained and given effect.</p> <p>In the construction of wills, the courts assiduously seek to ascertain the intention of the testator, and when ascertained, it will be given effect, unless it contravenes some rule of law, or of public policy. (Post, pp. 579, 580.)</p> <p>Cases cited and approved: Thompson v. McKisick, 3 Humph., 631; Lynch v. Burts, 1 Heisk., 600.</p> <p>6. SAME. Grammatical construction departed from, and words transposed, rejected, or supplied, to ascertain intention, when.</p> <p>Where a strict adherence to grammatical construction would frustrate the intention of the testator, or where the words used are so unintelligible, obscure, or absurd, that they have no place in and give no effect to the testator’s manifest legal intention, and there cannot be a rational construction of the words as they stand, the court may, in order to effectuate the testator’s intention, transpose, reject, or supply words. (Post, p. 580.)</p> <p>Cases cited and approved: Williams v. Williams, 10 Yerg., 20; Reid v. Hancock, 10 Humph., 368; Seay v. Young, 2 Head, 418; Massie v. Jordan, 1 Lea, 646; Jobe v. Dillard, 104 Tenn., 656.</p> <p>7. SAME. Effect given to later of repugnant clauses, when.</p> <p>Where the clauses in a will are so repugnant to each other that it is impossible to reconcile them, under settled rules of construction, then effect must be given to the later provision. (Post, p. 580.)</p> <p>8. SAME. Estate in fee given in one clause may be cut down to a life estate in a subsequent clause.</p> <p>Where one clause of a will devised land absolutely and in fee simple to certain children of the testator, and a later clause provided that the property should be held by them “for and during their natural lives, with remainder in fee to their children, and in default of children surviving either of them, then to” the testator’s “children who shall then be living,” the later clause controlled, and such children of the testator took only an estate for life. (Post, pp. 570, 571, 579-584.)</p> <p>9. SAME. Remainder in children of devisee for life is vested or contingent, when.</p> <p>Where the testator devised a life estate to his daughters, with remainder in fee to their children, and in default of children, then to the testator’s children who should then be living, the remainder was vested in suck of tke testator’s grandchildren (children of said daughters) as were in existence when the will took effect, and contingent in the case of any daughter at that time without children. (Post, p. 584.)</p> <p>10. SAME. Passing of estate to testator’s children in default of children of life devisee is an executory devise limited upon or fee.</p> <p>Where a testator devised a life estate to his daughters, with remainder in fee to their children, and in default of children, then to the testator’s children who should then be living, the provision for the passing of the estate to the testator’s children then living was in the nature of an executory devise, which - can be limited upon a fee. (Post, pp. 584, 585.)</p> <p>11. SAME. Term “children” does not include testator’s grandchildren under devise of remainder to his children, when.</p> <p>Where the testator devise’d a life estate to his daughters, with remainder in fee to their children, and in default of children then to the testator’s children who should then be living, the term “children” cannot be enlarged to include the testator’s grandchildren, or the children of a deceased child of the testator, where there was nothing in the context to authorize such enlargement, but rather restricting the provision to testator’s children. (Post, p. 585.)</p> <p>Cases cited and approved: Booker v. Booker, 5 Humph., 500; Turner v. Ivie, 5 Heisk., 220.</p>

<p>1. TAXATION. Privilege tax for selling liquors at places where the sale thereof is prohibited.</p> <p>The business of retailing liquors in any part of the State, whether it be where they can be lawfully sold or where the sale is prohibited by the four-mile law, is made a privilege by statute and taxed, and any one engaged in this business, although in violation of the four mile law, is liable for this tax.</p> <p>Acts cited and construed: Acts 1899, chs. 161, 221.</p> <p>Case cited and approved: Poster v. Speed, 120 Tenn., 470.</p> <p>3. INTOXICATING LIQUORS. Sale in prohibited territory without a license is a misdemeanor.</p> <p>The seller of intoxicating liquor in a town where the four mile law applies and prohibits the sale thereof may nevertheless be convicted of the misdemeanor for selling the same in violation of the statute prohibiting the sale of liquor without' a license.</p> <p>Acts cited and construed: Acts 1899, chs. 161, 221.</p> <p>3. SAME. Same. Offense under a general law is not suspended by a special law, when.</p> <p>Special laws applicable to particular subdivisions of the State, prohibiting the sale of intoxicants therein, do not suspend the operation of general laws requiring a license for their sale, and making .the sale thereof without a license a misdemeanor.</p> <p>Case cited and approved: Commonwealth v. Barbour, 121 Ky„ 689.</p>

<p>1. WILLS. At common law a married woman could will personalty with assent of husband.</p> <p>Under the common law a married woman could make a will of her personal property not yet reduced to the husband’s possession, with the husband’s assent to the particular will. (Post, pp. 594, 595.)</p> <p>Case cited and approved: Perry v. Gill, 2 Humph., 218.</p> <p>2. SAME. At common law a married woman could will her separate personalty without husband’s assent.</p> <p>Independently of the assent of her husband, a married woman could, under the common law, dispose of her separate personal property. '(Post, p. 595.)</p> <p>Case cited and approved: Perry v: Gill, 2 Humph., 218. '</p> <p>3. SAME. Power of married woman to make wills is not enlarged by statute as to personalty, but as to realty.</p> <p>The statute (Acts 1869-70, ch. 99, compiled in Shannon’s Code, secs. 4242-4247), regulating and enlarging the power of married women to dispose of their property by will, deed, etc., applies exclusively to their power to dispose of their real estate, and does not enlarge their power to dispose of their personal property by will. (Post, pp. 595, 596.)</p> <p>Code cited and construed: Secs. 4242-4247 (S.); secs. 3346-3351 (M. & V.); secs. 2486a-2486f (T. & S.).</p> <p>Acts cited and construed: Acts 1869-70, ch. 99.</p> <p>4. SAME. Marriage at common law gave wife’s personal goods to husband.</p> <p>Marriage at common law amounted to an absolute gift to the husband of all personal goods of which the wife was actually or beneficially possessed at the time, or which comes to her during coverture. {Post, p. 596.)</p> <p>Cases cited and approved: Wade v. Cantrell, 1 Head, 345; Allen V. Walt, 9 iHeisk., 242; Joiner v. Franklin, 12 Lea, 422; Hand-werker v.- Diermeyer, 96 Tenn., 619; Prewitt v. Bunch, 101 Tenn., 735.</p> <p>5. HUSBAND AND WIFE. Husband’s right to reduce to possession the wife’s personalty, and choses in action.</p> <p>The common law rule that the husband is entitled to receive and reduce to possession during coverture all choses in action, whether in the form of notes, debts, or legacies, belonging to the wife at the time of their marriage or accruing afterwards, prevails in Tennessee. {Post, p. 596.)</p> <p>Cases cited and approved; Rice v. McReynolds, 8 Lea, 36; Prewitt V. Bunch, 101 Tenn., 735.</p> <p>6. SAME. Wife’s possession of personalty is that of the husband, and such property is his, when.</p> <p>The wife’s possession of personalty is the husband’s possession, and such property is in law the property of the husband, nothing appearing to show it to be the separate property of the wife. {Post, p. 596.)</p> <p>Cases cited and approved: Hollingsworth v. Miller, 5 Sneed, 472; Wade v. Cantrell, 1 Head, 345; Cox v. Scott, 9 Bax., 305; Prewitt v. Bunch, 101 Tenn., 735.</p> <p>7. SAME. Wife’s right to separate estate.</p> <p>The wife may hold a separate estate free from the debts, con- ' tracts, and control of her husband, with the power of disposition by will or otherwise. {Post, p. 597.)</p> <p>8. SAME. Creation of a separate estate by gift from strangers or from the husband.</p> <p>A separate estate in personal property may be created, not only by writing, but by parol gift. When the gift is from a stranger, the intention to create the separate estate must usually appear from the express language of the donor; but, where a gift of personal property is made by the husband directly to the wife during coverture, the intention to exclude his own rights is inferred from the relation of the parties without the use of the express words that would be required where a third person is the donor. (Post, p. 597.)</p> <p>9.SAME. Husband’s turning over salary to wife for custody does not create a separate estate in her, when.</p> <p>Where the husband gave his salary to his wife as the same was paid to him which she deposited in a bank in her own name, on the ground of his belief that she would outlive him, and that she would take care of it for him, there was no such absolute gift of the money to the wife as would create a separate estate in her that she might dispose of by will. (Post, pp. 596-601.)</p> <p>Case cited and approved: Wood v. Polk, 12 Heisk., 222.</p> <p>10. SAME. Husband’s release to wife of all interest in her land creates a separate estate in rents and damages arising therefrom.</p> <p>Where a husband by deed released and quitclaimed to his wife all his right, title, and interest then existing in her real estate held by her as a general estate, and all interest he might thereafter acquire as tenant by the curtesy, he surrendered all claim to the rents and damages arising therefrom and collected by her which thus became her separate estate. (Post, pp. 599-602.)</p> <p>11. SAME. Probate of wife’s will is not conclusive in a collateral proceeding as to her right to dispose of her choses in action.</p> <p>Where a husband, with knowledge of an existing will of his deceased wife, qualified as administrator of her estate, and reduced to possession and collected her choses in action, a deposit in bank in her name, he was not concluded by the subsequent probate of the will to challenge her right, in a proceeding by her administrator with the will annexed against him to recover the sum so appropriated, to dispose of such personal property on the theory that it belonged to him by the marital right, or to defeat his right to administer on her estate and to reduce to possession her choses in action. (Post, pp. 602-605.)</p> <p>Case cited and distinguished: Williams, Ex parte, 1 Lea, 530.</p> <p>12. SAME. Same. Husband may ignore wife’s will as to personalty, and administer on her estate.</p> <p>Where a wife attempted by will to dispose of her choses in action which were not distinctly impressed with the character of a separate estate, her husband is entitled to ignore the will and to qualify as her administrator, and to reduce to possession any such choses in action of which she died possessed. (Post, pp. 604, 605.)</p>

<p>1. JUDGMENTS. Taken in violation of agreement will be set aside by chancery as for fraud.</p> <p>Where the clerk of the county, after instituting suit against a decedent’s estate to collect an inheritance tax, to which suit a demurrer was filed, agreed with the counsel for the estate and the surety of the administrator that no further proceedings would be taken without notice to the parties, and, in disregard of this agreement, the case was afterwards called, the demurrer overruled, and judgment taken without such notice, chancery will set aside such judgment as for fraud. (Post, pp. 609-611.)</p> <p>Cases cited and approved: Rice v. Bank, 7 Humph., 42; Burem v. Foster, 6 Heisk., 333; Taylor v. Railroad, 86 Tenn., 233; Williams v. Pile, 104 Tenn., 273, 275;^,Keith v. Alger, 114 Tenn., 1, 22, 26; Bigham-v. Kistler, 114 Ga., 453; Merriman v. Walton, 105 Cal.,.403; Brooks v. Twitchell, 182 Mass., 443.</p> <p>2. DESCENT AND DISTRIBUTION. Distribution of personalty according to laws of domicile of deceased.</p> <p>It is well settled in this State that if one dies domiciled in a foreign State, leaving personal property in this State, the laws of the domicile of the deceased will determine who are entitled to the surplus after the payment of debts. (Post, p. 614.)</p> <p>Cases cited and approved: Jones v. Marable, 6 Humph., 116; Carr v. Lowe, 7 Heis., 84, 88; Ellis v. Insurance Co., 100 Tenn., 177.</p> <p>3. SAME. Payment of funds to foreign distributees or removal thereof to foreign State, when.</p> <p>The personal assets situated or left here by a decedent dying domiciled in a foreign State, after the payment of debts, may be paid, by the personal representative appointed here, to the distributees who are designated as such by the laws of the foreign State, entitling the personal representative to an acquittance for settlement here, or the funds may be removed to the foreign State, upon a bill filed in chancery, and upon a proper showing made. (Post, p. 614.)'</p> <p>Cases cited and approved: Keaton v. Campbell, 2 Humph., 22.4; Carr v. Lowe, 7 Heisk., 84, 88; Yandell v. Elam, 1 Tenn. Chy., 108.</p> <p>4. SAME. Legislature may impress any character upon property here.</p> <p>The legislature can change the rules stated in headnotes 2 and 3, if it sees proper, and may impress upon the property any character it may choose, but it has not changed them. (Post, p. 614.)</p> <p>Cases cited and approved; McCollum v. Smith, Meigs, 342; Kneeland v. Ensley, Meigs, 628; Jones v. Marable, 6 Humph., 118; Layne v. Pardee, 2 Swan, 232, 234.</p> <p>5. TAXATION. No inheritance tax on personalty passing.to distributee of a foreign domiciled decedent not subject to inheritance tax under our law, when.</p> <p>■Where, under the laws of the foreign domicile of a decedent, his personalty situated here passed to his mother, the inheritance tax does not attach to the same, under our inheritance tax law, which does not tax such property passing to a mother, though it would have been taxable under such inheritance tax law, if the property had passed to distributees according to our laws of distribution. (Post, pp. 611-617.)</p> <p>Acts cited and construed: Acts 1893, ch. 174, secs. 1 and 5.</p> <p>Cases cited and approved: Trust Co. v. Speed, 114 Tenn., 677.</p> <p>Cases cited and distinguished: In re Romaine, 127 N. Y., 80; In re Houdayer, 150 N. Y., 37; Maryland v. Dalrymple, 70 Md., 294.</p> <p>6. SAME. Primary jurisdiction! of' suit for collection of the inheritance tax is in county court; chancery jurisdiction, if no demurrer.</p> <p>While the primary jurisdiction of a case involving the collection of an inheritance tax is in the county court, yet the chancery court may entertain the controversy, if there is no demurrer. (Post, p. 617.)</p> <p>Case cited and approved: Shelton v. Campbell, 109 Tenn., 690.</p>

<p>1. MORTGAGES. Foreclosure at suit oí judgment creditor of mortgageor, with, nulla bona return, after maturity of mortgage.</p> <p>The rule is well settled in this State that a judgment creditor upon a return of nulla bona has the right by a hill in chancery to have a matured mortgage of another upon the judgment debtor’s land foreclosed without the mortgagee’s consent, and to have the proceeds applied first to the payment of the mortgage debt, and the surplus to his judgment. {Post, p. 631.)</p> <p>Cases cited and approved: Fulghum v. Cotton, 6 Lea, 590; Craigmiles v. Hays, 7 Lea, 724; Schultz v. Blackford, 9 Lea, 434; Wessel v. Brown, 10 Lea, 705; Bridges v. Cooper, 98 Tenn., 394; McClurg v. McSpadden, 101 Tenn., 436.</p> <p>3. SAME. Same. Leave to file amended and supplemental bill to make other lien claimants parties is properly refused after too great delay, when.</p> <p>In a suit to foreclose a mortgage of another, and to subject the surplus proceeds to complainants judgment, an application for leave to file an amended and supplemental bill to make other lien claimants parties, contesting some of the claims and seeking to have their amounts and priorities determined, made more than two years after the original bill was filed, móre than four months after remandment by the supreme court, after an order of reference and the master’s report of the liens existing when the original bill was filed, and after a decree of sale was made, was properly refused, because of the great delay in presenting it, and because such bill was calculated to stir up fresh litigation as to the contested claims resulting in delay and embarrassment in the collection of their debts by prior mortgages. . {Post, pp. 630-634.)</p> <p>Cases cited and approved: Cloud v. Hamilton, 3 Yerg., 81; Fulg-hum v. Cotton, 6 Lea, 590.</p> <p>3. SAME. No deduction from mortgagee’s debt for prior mortgages assumed by him, when.</p> <p>Where, in a suit to foreclose a mortgage of another, and to subject the surplus proceeds to complainant’s judgment, it appeared that the owner’s grantor, the mortgagee, was to pay prior mortgages out of the purchase money which was secuted to him by note and deed of trust, and that none of the purchase money note had ever been paid, it was not proper in fixing the priorities, to deduct from the claim of such grantor and mortgagee the amount of such prior mortgages. (Post, p. 634.)</p> <p>4. SAME. Judgment creditor of mortgageor with' nulla bona return is not entitled to priority in subjecting impounded rents.</p> <p>Where, in a suit by a judgment creditor, with a milla "bona return, to foreclose a mortgage of another and to subject the surplus proceeds to complainant’s judgment, the appointment of a receiver and the impoundment of rents at complainant’s instance does not give him priority in subjecting the rents to his debt, for the reason that he had no lien on the property. (Post, pp. 634-636.)</p> <p>Case cited and approved: Moore v. Knight, 6 Lea, 438.</p> <p>5. SAME. Same. Impounded rents apportioned among lien creditors according to priorities, when.</p> <p>Where, in a suit to foreclose a mortgage of another, and to subject the surplus proceeds to complainant’s judgment, the rents impounded are apportionable among the several lien creditors according to their priorities, and a subsequent mortgagee is not entitled to them where his trustee did not take possession of the land, and the deed of trust did not permit the trustee to collect the rents. (Post, pp. 637-639.)</p> <p>Cases cited and approved: Cowan v. Gill, 11 Lea, 688; Bank v. Ewing, 12 Lea, 598; Reeves v. John, 95 Tenn., 434; Fertilizer Co. v. Thomas, 97 Tenn., 481.</p> <p>6. SAME. Notice to mortgage trustee of prior unregistered mortgage is notice to principal postponing his lien.</p> <p>Notice to the trustee in a deed of trust to secure a debt that there exists a prior unrecorded mortgage or deed of trust is notice to his principal, and though the deed of trust securing his debt is registered first, the debt secured by the prior unrecorded mortgage is entitled to priority. (Post, pp. 639-641.)</p> <p>Cases cited and approved: Myers v. Ross, 3 Head, 59; Robinson v. Owens, 103 Tenn., 91.</p>

<p>1. FRAUDULENT CONVEYANCES. Evidence insufficient to. show.</p> <p>Evidence stated and held insufficient to show that a conveyance of land by a husband to his wife was fraudulently made with the intent to hinder the collection of a claim against the husband. (Post, pp. 644-647, 651.)</p> <p>S. SAME. Voluntary conveyance is not fraudulent where there are no existing creditors.</p> <p>A voluntary conveyance free from fraud in fact, is. void only where there are existing creditors of the grantor. (Post, pp. 647, 651.)</p> <p>Cases cited and approved: Vance v. Smith, 2 Heisk., 351; Sanders, v. Logue, 88 Tenn., 355; Nelson v. Vanden, 99 Tenn., 224.</p> <p>3. MALICIOUS PROSECUTION. Must be finally determined in favor of defendant before action accrues therefor.</p> <p>It is well settled that a right of action for malicious prosecution does not accrue until there has been a final determination, favorable to the defendant therein, of the suit claimed to have been malicious. (Post, pp. 647, 648, 650.)</p> <p>Cases cited and approved: Morgan v. Duffy, 94 Tenn., 686; Swep- • son v. Davis, 109 Tenn., 99.</p> <p>4. FRAUDULENT CONVEYANCES. Plaintiff in an action of" tort is an existing creditor as to whom fraudulent or voluntary’ conveyances are void, when.</p> <p>A plaintiff in a pending action of tort brought to recover damages for wrongs committed is an existing creditor of the defendant,, and a conveyance of property fraudulent in fact or in law, or voluntarily made without the retention of sufficient property to. pay debts is void and will be set aside at the instance of creditors. (Post, pp. 648-650.)</p> <p>Cases cited and approved: Farnsworth v. Bell, 5 Sneed, 531; Patrick v. Ford, 5 Sneed, 532; Vance v. Smith, 2 Heisk., 343; Sanders v. Logue, 88 Tenn., 360.</p> <p>6. SAME. Voluntary conveyance pending a malicious prosecution by grantor is not fraudulent as against the accused, though he is acquitted, and recovers judgment for the malicious prosecution.</p> <p>Where a warrant charging the complainant with robbery had been issued, and he had been bound over to answer the grand jury, but no action had been taken by that body, before the defendant made a voluntary conveyance of his land to his wife, the complainant could not attack the validity of the conveyance on the ground it was fraudulent against him as a creditor, for the reason that he had no right of action against the defendant for malicious prosecution for instituting the robbery charge, since an action for malicious prosecution would accrue only upon a final determination of the robbery charge favorable to complainant. (Post, pp. 650, 651.)</p>

<p>1. BILLS AND NOTES. Indorsers on a ..note given to raise money are liable as joint makers without notice oí dishonor.</p> <p>Where the stockholders of a corporation indorse a note made by one of their number to the order of himself, given to raise money for it and for their own benefit, with the understanding that the note bound all the indorsing stockholders equally, they are all liable as joint makers, and they are not entitled to notice of dishonor. (Post, pp. 653-659.)</p> <p>Cases cited and approved: Bank v. Jefferson, 92 Tenn., 537; Assurance Society v. Edmonds, 95 Tenn., 53; Bank v. Lumber Co., 100 Tenn., 479; Logan v. Ogden, 101 Tenn., 392.</p> <p>2. SAME. Beal contract can be shown under a blank indorsement before delivery, when.</p> <p>Under our negotiable instruments law (Acts 1899, ch. 94, secs. 63 and 64), an indorser of a note in blank before delivery is prima facie, but not absolutely, liable as indorser, for the real contract can be shown, and, as between the immediate parties, it is not necessary that the indorsement should be accompanied by appropriate words in writing showing an intention to be bound in some other capacity. (Post, pp. 659-666.)</p> <p>Acts cited and construed: Acts 1899, ch. 94, secs. 63 and 64.</p> <p>Numerous cases in other jurisdictions cited in the opinion, on pages 661-664.</p> <p>3. SAME. Indorsers when joint makers are liable without notice of dishonor.</p> <p>Where the indorsers on a note in blank before delivery are joint makers as shown in the first headnote, they are not entitled to notice of dishonor under our negotiable instruments law (Acts 1899, ch. 94, sec. 115), and they are liable as makers without any notice of dishonor, because the note was made and accepted for their accommodation. (Post, pp. 666, 667.)</p> <p>Act cited and construed: Act 1899, ch. 94, sec. 115.</p>

<p>1. CLOUD UPON TITLE. In suit to remove cloud upon title, complainant must show the true title to he in himself; same rule in ejectment.</p> <p>In a suit to remove a cloud from title, as well as in an action of ejectment, it is essential that the complainant allege and prove the true title to the land to be in himself; for the establishment of his own title is an essential preliminary step to the impeachment of the validity o£ the defendant’s title, as in neither suit can the weakness of the defendant’s title be relied upon for redress. (Post, pp. 671, 675.)</p> <p>2. SAME. Same. Dismissal of complainant’s bill to remove cloud upon title for failure to establish title in himself is not res adjudícala of the validity of defendant’s title, when.</p> <p>Where, in a suit to remove a cloud from title, it is decreed that complainant has failed to establish the title to be in himself, and that his bill is, therefore, dismissed, the validity of the defendant’s title is not determined and adjudicated; and in a subsequent ejectment suit by such defendant to recover the land from one in possession thereof as privy in estate to such complainant, such plaintiff in ejectment cannot invoke the rule of res adjudieata, in aid of his invalid tax deed, which was in the former suit, sought to be removed as a cloud upon the title, because it did not clearly appear that the validity of such tax title was determined and adjudicated in the former suit, and because the decree, by proper construction, showed that the validity of such tax title was not determined and adjudicated. (Post, pp. 671-694.)</p> <p>Cases cited and approved: Estell v. Taul, 2 Yerg., 467; Bugg v. Norris, 4 Yerg., 325; Nicholson v. Patterson, 6 Humph., 394; Warwick v. Underwood, 3 Head, 238; Thompson v. Blanchard, 2 Lea, 528; Brewster v. Galloway, 4 Lea, 558; Fowlkes v. State, 14 Lea, 14; Boyd v. Robinson, 93 Tenn., 1; State v. Ban,k, 96 Tenn., 591; Donaldson v. Nealis, 108 Tenn., 638; Borches v. Ar-huckle, 111 Tenn., 500; Packet Co. v. Sickle, 24 How., 333; Packet Co. v. Sickle, 5 Wall., 580; Russell v. Place, 94 U. S., 606; De Sollar v. Hanscome, 158 U. S., 216; Gaslight Co. v. District of Columbia, 161 U. S., 316; Railroad v. United States, 168 U. S., 1; Chrisman v. Harman, 29 Gratt., 500; Solby v. Clayton, 12 Colo., 38; Sawyer v. Nelson, 160 Ill., 631; Lewis v. Navigation Co., 125 N. Y., 341; Littleton v. Richardson, 34 N. Y., 179; Foye v. Patch, 132 Mass., 105; Stone v. St. Louis Stamping Co., 155 Mass., 267; Pencoth v. Abraham, 43 La. An., 214; Kidd v. Laird, 15 Cal., 161; Bell v. Merrifield, 109 N. Y., 202; Cook v. Burnley, 45 Tex., 97; Nesbit v. Improvement Co., 144 U. S., 610; Fahey v. Esterly Machine Co., 3 N. D., 220, and 44 Am. St. Rep., 562, and note; McDowell v. Langdon, 3 Gray, 513; Berlin v. Shannon, 3 o Gray, 387; Berlin v. Shannon, 99 Mass., 200; Hooker v. Hubbard, 102 Mass., 245; Aiken v. Peck, 22 Vt., 262.</p> <p>'Cases cited and distinguished: Parkes v. Clift, 9 Lea, 524; Knight v. Atkisson, 2 Tenn. Chy., 384; Werlein v. New Orleans, 177 U. S., 390; Parish v. Ferris, 2 Black, 606; Chiles v. Champenois, 69 Miss., 603.</p> <p>3. TAX TITLES. Failure of county trustee to file certified list of sales in office of circuit court clerk prevents title vesting in the State treasurer and is fatal to tax deed.</p> <p>Where the county trustee in tax sales made by him failed to file in the office of the clerk of the circuit court a certified list of the lands struck off to the State treasurer as required by statute (Acts 1897, ch. 1, sec. 63) under which the sale was made, no title vested in the State treasurer, and a deed made by the circuit court clerk to a purchaser after the expiration of the two years allowed for redemption was a nullity. (Post, pp. 694-697.)</p> <p>Acts cited and construed: Acts 1897, ch. 1, sec. 63.</p> <p>Cases cited and approved: Tax Title Cases, 106 Tenn., 245.</p> <p>4. SAME. Same. Failure to file the certified list of tax sales at-the proper time cannot he cured by a subsequent filing thereof.</p> <p>The failure of the county trustee to file in the office of the circuit court clerk a certified list of the lands struck off to the State-treasurer as required by statute at the time of the sale cannot be cured by a subsequent filing of such list after the deed is made by the clerk, for such filing of such list cannot operate by relation to validate a sale that was an absolute nullity, giving the purchaser no equitable title whatever. {Post, pp. 695, 697, 698.)</p> <p>Acts cited and construed: Acts 1897, ch. 1, see. 63.</p> <p>Case cited and approved: Condon v. Galbraith, 106 Tenn., 14.</p> <p>5. SAME. Same. Same. Failure to file such certified list is not-cured by the prescription or curative limitation statute of three-years, when.</p> <p>The purchaser of land, with the deed of the clerk of the circuit court, sold for taxes and struck off to the State treasurer, when the county trustee failed to file in the office of the clerk of the circuit court, at the time the sale was made, as required by statute, a certified list of the lands so struck off to the State-treasurer, can not avail himself of. the prescriptive or curative-limitation of three years prescribed in the statute so as to cut off all impeachment of the tax title after the lapse of the statutory period; for ample scope is given for the operation of this provision in preventing the impeachment of the title for mere-irregularities in a tax sale. A contrary construction of this provision would clearly contravene the policy of this State as clearly announced in former cases. (Post, pp. 697, 698.)</p> <p>Acts cited and construed: Acts 1897, ch. 1, sec. 71.</p> <p>Cases cited and approved: Tax Title Case's, 105 Tenn., 245; Con-don v. Galbraith, 106 Tenn., 14.</p>

<p>1. ELECTIONS. Chancery jurisdiction of contest of election to determine whether a county shall take stock in a railroad.</p> <p>In the absence of any statutory provision for the contest of an election to determine whether a county shall subscribe to the stock of a railroad company, a suit to invalidate the declared result of such election should be brought in the chancery court, which has jurisdiction of controversies of this kind. {Post, p. 707.)</p> <p>Cases cited and approved: Winston v. Railroad, 1 Bax., 60; Bouldin v. Lockhart, 1 Lea, 195; Braden v. Stumph, 16 Lea, 581; Lindsay v. Allen, 112 Tenn., 637, 660.</p> <p>33. SAME. Same. Circuit court has jurisdiction of a suit to invalidate an election held to determine whether a county shaii subscribe to stock in a railroad.</p> <p>Under our statute (Shannon’s Code, section 6074) authorizing the circuit court to determine suits of an equitable nature, where no objection to its jurisdiction is made by demurrer, the circuit court has jurisdiction of a suit to invalidate the declared result of an election held to determine whether a county should subscribe to the capital stock of a railroad company, where no objection was made by demurrer. (Post, pp. 707, 708.)</p> <p>Code cited and construed: Secs.'4887, 6063, 6074 (S.); secs. 3872, 4997, 6008 (M. & V.); secs. 3155, 4225, 4236 (T. & S. and 1858).</p> <p>Case cited and approved: Bouldin v. Lockhart, 3 Bax., 262.</p> <p>3. SAME. Supreme court will review judgment of circuit judge based upon examination of ballots, and will not consider the power of the commissioners of elections and of the quarterly-county court to do so, when.</p> <p>Where, in a suit in the circuit court to invalidate the declared result of an election held to determine whether a county should subscribe to the capital stock of a railroad company, the circuit judge determined that he had the right to make an independent investigation and examine the ballots, and accordingly made such investigation and rendered judgment, the supreme court is required only to re-examine the judgment of the circuit judge, and the question whether the commissioners of elections and the quarterly county court had the right to go behind the poll lists and returns, made by the election officers, and examine the ballots therewith returned in pursuance of the requirement of statute, will not be considered by the supreme court. (Post, pp. 708, 709.)</p> <p>Acts ctied and construed: Acts 1907, ch. 436, sec. 15.</p> <p>4. SAME. Ballots not of plain white paper are void.</p> <p>Ballots not of plain white paper cast in an election held to determine whether a county should subscribe to the capital stock of a railroad company are void on that ground. (Post, pp. 710, 711.)</p> <p>Code construed, though not cited: Sec. 1259 (S.).</p> <p>Acts construed, though not cited: Acts 1891 (ex. ses.), ch. 21, sec. 1; Acts 1893, ch. 101.</p> <p>5. SAME. Striking out “For’’ in the phrase “For subscription,” and writing “Against” before, above, or below renders ballot void, when.</p> <p>Ballots cast in an election held to determine whether a county should subscribe to the capital stock of a railroad company are void, where they contained marks by pen or pencil striking out the word “For” in the phrase“For subscription” printed thereon, with the word “Against” written before, above, or below the said word “For” so stricken out. (Post, pp. 709, 711.)</p> <p>Acts cited and construed: Acts 1891 (ex. ses.), ch. 21; Acts 1893, ch. 101.</p> <p>Case cited and approved: Cross v. Keathley, 119 Tenn., 567.</p> <p>■8. SAME. Word “votes” means legal votes; for illegal votes or ballots constitute no votes at all.</p> <p>Under the statute (Acts 1887, ch. 3, sec. 9) authorizing an election to determine whether a county shall subscribe to the capital stock of a railroad company, and providing that if three-fourths of the votes east at such election are in favor of the subscription, the quarterly county court shall take such action as may be required to make such subscription effective, the word “votes” means legal votes; for illegal votes or ballots do not Teally constitute votes at all, and are not to be counted in determining whether or not three-fourths of the votes are in favor of the subscription. (Post, p. 712.)</p> <p>Acts cited and construed: Acts 1887, ch. 3, sec. 9.</p> <p>■Cases cited and approved: State, ex rel., v. Roper, 47 Neb., 417; Hopkins v. Duluth, 81 Minn., 189.</p>