126 Tenn.

Volume 126 — Tennessee Reports

44 opinions

126 Tenn. 1Hines v. State (1911)
FROM LINCOLN.. Appeal from the Circuit Court of Lincoln County.— Ewin L. Davis, Judge.
126 Tenn. 7Kirk v. State (1911)
1. STATUTES. Amendment must be confined to subject expressed in caption of former act, when later act is merely amendatory. Where a later act merely purports to amend a former act, the amendment must be confined to the subject expressed in the caption of such former act. (Post, pip. 11, 12.) Acts cited and construed: Acts 1901, ch. 78; Acts 1907. ch.' 543, see. 4. Constitution cited and construed: Art. 2, sec. 17. 2.' SAME. Same. Scope must be confined to one subject which must be expressed in its title. The scope of an act, whether original or amendatory, must be confined to one subject, which must be expressed in its title. (Post, p. 12.) Constitution- cited and construed: Art. 2, sec. 17. 3. CONSTITUTIONAL LAW. Disjunctive “or” should be read as conjunctive “and” in statute for regulating practice of medicine, etc., and forbidding itinerants from selling “or” applying drugs, etc. Legislation (Acts 1901, ch. 78, and Acts 1907, ch. 543, sec. 4), whose object was to regulate the practice of medicine anl surgery, and whose provisions made it “unlawful for any itinerant physician, or vendor of any drug, nostrum, ointment, or application ... to sell or apply the same,” was not intended to prohibit the sales of drugs, etc., as property, but to forbid the sale and application of them; and it is, therefore, held that the disjunctive “or,” used between the words “sell” and “apply,” must be construed and read as the conjunctive “and.” Such construction shows the legislation to be for the regulation of medicine and surgery, and to embrace but one subject within the provision of the constitution (art. 2, sec. 17), and not open to the objection that it prohibits the sale of property, and works a depreviation of the same contrary to the State constitution (art. 1, see. 8, and art. 11, sec. 8), or to the constitution of the United States (14th am.). (Post, 'pp. 11-13.) Acts cited and construed: Acts 1901, ch. 78; Acts 1907, eh. 543, sec. 4. Constitution cited and construed: Art. 1, sec. 8; art. 2, sec. 17: art. 11, sec. 8 (State); 14th am. (U. S.). 4. STATUTES. To be construed to carry out intent; words modified, altered, or supplied, when. It is the duty of the courts always to construe statutes so as to carry out the legislative intent; and when that intent is clear, upon reading the statute, words may be modified, altered, or supplied, so as to give effect to it. (Post p. 13.) Cases cited and approved: Nichols & Shepherd Co. v. Loyd, 111 Tenn., 145-148; Payne v. State, 112 Tenn., 587; Wright v. Cunningham, 115 Tenn., 452; Wynne v. Lee, 106 La., 400. 5. SAME. One susceptible of two constructions must be given that which will save it from unconstitutionality. It is always to he presumed that the legislature did not intend to pass an unconstitutional act, and when an act is susceptible of two constructions or interpretations, one constitutional and the other unconstitutional, it should be construed so as to be constitutional. (Post, pp. 13, 14.) Cases cited and approved: Dugger v. Insurance Co., 95 Tenn., 250; Henley v. State, 98 Tenn., 682. 6. SAME. Discrimination against itinerant physicians and vendors in favor of residents is valid and constitutional. The legislation (Acts 1901, ch. 78, as amended by Acts 1907, ch. 543, sec. 4), making it “unlawful for any itinerant physician, or vendor of any drug,, nostrum, ointment, or application . . . to sell or apply the same,” is not unconstitutional as arbitrary and vicious class legislation, nor as creating an unlawful discrimination; for the distinction made between resident and itinerant physicians, surgeons, and vendors is supported by a natural and reasonable basis, and has reasonable relation to the subject-matter. (Posf, pp. 14, 15.) Acts cited and construed; Acts 1901, ch. 78; Acts 1907, ch. 543, sec. 4. Cases cited and approved: Payne v. State, 112 Tenn., 587; O’Neil v. State, 115 Tenn., 432; Dent v. W. Virginia, 129 U. S., 114; Hawker v. New York, 170 U. S., 189; Reetz v. Michigan, 188 U. S., 505; Meffert v. Packer, 195 IT. S., 625; Breese v. State, 137 Iowa, 673; Witty v. Indiana, 173 Ind., 404; State v. Smith, 233 Mo., 242. 7. PHYSICIANS AND SURGEONS. Statute prohibiting advertisements by itinerants is not invalid, because it tends to prevent fraud. The legislation (Acts 1901, ch. 78, as amended by Acts 1907, ch. 543, see. 4) prohibiting itinerant physicians and vendors from selling and applying drugs or nostrums, or from advertising their remedies, medicines, or services, is valid; for it is well settled that the legislature may enact laws tending to prevent the perpetration of fraud, although the act prohibited is otherwise harmless in itself. (Post, p. 16.) Acts cited and construed: Acts 1901, ch. 78; Acts 1907, ch. 543, sec. 4. Cases cited and approved: State v. Mill Co., 123 Tenn., 399; State v. Bair, 92 Iowa, 28; People v. Blue Mountain Joe, 129 Ill., 370; State v. Ragland, 31 W. Va., 453; Thompson v. Van Lear, 77 Ark., 506; Board v. McCrary, 95 Ark., 511.
126 Tenn. 18Charleston, South Carolina, Mining & Manufacturing Co. v. American Agricultural Chemical Co. (1911)
1. MINING LEASES. Not forfeited for nonpayment of royalties in the absence' of demand and stipulated notice, when. Where a mining lease provides for the payment of a minimum royalty by the lessee to the lessor, and for notice of intention to forfeit the lease for nonpayment of the royalties accrued, there can he no forfeiture of the lease for mere nonpayment of such royalties or rents for a term of years, in the absence of such notice, and in the absence of a demand for the same when due, and on the premises where no other place is agreed upon. (.Post, pp. 21-26, and especially 25 and 26.) Case cited and approved: Parks v. Hays, 92 Tenn., 161. 2. SAME. Lessor’s possession for reserved purposes is not adverse to lessee’s mining interest, when. Where a mining lease reserved to the lessor the right to use the premises for farming purposes and reserved the right to the possession and control of the land for all purposes other than that of mining, the possession for such purpose by the lessor and his grantee is not in itself adverse to the lessee or his assigns, because each party was entitled to the possession of the particular interest owned by him. (Post, pp. 25-27.) 3. SAME. Abandoned by lessee by consent of lessor, by their respective surrender and resumption of possession. A mining lease may be abandoned by the lessee with the consent of the lessor; and such abandonment may be effected by the lessee’s relinquishment of his rights under the .lease and his surrender of the possession, and the lessor’s acquiescence therein, and resumption of the possession of the premises. (Post, pp. 27-30.) Case cited and approved: Gray v. Kaufman, 162 N. Y., 388. 4. SAME. Abandonment is generally a question of Intention, and a mixed question of law and fact. • Whether a mining lease has been abandoned is generally a question of intention, and is a mixed question of law and fact; hut some acts of the lessee, as his failure to work or drill, or continue explorations for varying periods, controlled to some extent by the terms of the particular lease, are sufficient to raise a presumption of abandonment as a matter of law. (Post,- pp. 30, 31.) Cases cited and approved: Gentry v. Gentry, 1 Sneed, 97; Tray-nor v. Johnson, 1 Head, 54; Ross v. Swan, 7 Lea, 46&; Prewitt v. Bunch, 101 Tenn., 742. 5. SAME. Purchaser under foreclosure sale taking possession Is liable for fixed royalties, but not taking possession is not so liable. Where a mining lease was sold on foreclosure, the purchaser’s acceptance of the lease and his entry into possession subjects him to the performance of all contracts running with the land, including one for the payment of the fixed minimum royalties; but if he does not take possession, he is not personally liable for the royalties. (Post, pp. 31, 33.) Cases cited and approved: Snowden v. Association, 7 Lea, 226; State v. Martin, 14 Lea, 93; Tradesman Pub. Co. v. Knoxville Car Wheel Co., 95 Tenn., 634. 6. SAME. Purchaser of lease, If he accept the same, must pay royalties and operate mine. It is the duty of the purchaser of a mining lease at a foreclosure sale thereof, if he accept the lease, not only to pay the minimum royalty semiannually, as stipulated in the lease, hut also, actively and in good faith, to operate the mine to the full extent its quality and quantity justified. (Post, pp. 34, 35.) 7. SAME. Facts constituting the lessee’s abandonment of the lease acquiesced in by lessor; case in judgment. Where the purchaser at the foreclosure sale of a mining lease, providing for the semiannual payment of a fixed minimum royalty, did not go into possession, and for nearly ten years made no payment of royalty, although he knew that the owner of the land had sold the land to complainant, a mining corporation, which denied the validity of such lease; and while such foreclosure purchaser was at the same time buying other mining lands in that vicinity, he asserted no right to said lease so purchased by him, it was held that such acts and conduct, as a matter of law, raised a presumption of an intention to abandon the lease, and the owner of the land and his grantee having treated the lease as abandoned, and having made no demand for payment of such royalties, such purchaser of the lease cannot, at a subsequent time, when mining has become more profitable, claim the right to mine under his lease, nor can his assignee under an assignment made after the lapse of nine years. (Post, pp. 31-39.) Cases cited and approved: Petroleum Co. v. Coal, Coke & Manufacturing Co., 89 Tenn., 391; Porter v. Noyes,' 47 Mich., 55; Koch’s Appeal, 93 Pa., 434; Ray v. Gas Co., 138 Pa., 576; Aye v. Phil. Co., 193 Pa., 452; Conrad v. Morehead, 89 N. C., 31; Coal Co. v. Combs, 152 Ind., 379.
126 Tenn. 40Hughes v. State (1912)
1. MURDER IN THE FIRST DEGREE. Evidence held sufficient to sustain conviction. The evidence is stated, reviewed, and held to be sufficient to warrant a verdict and conviction of murder in the first degree. (Post, pp. 51-66.) i 2. CRIMINAL LAW. Photograph of scene of homicide Is admissible in evidence for what it is worth. A photograph of the scene in a room where a homicide occurred was properly admitted in evidence to show the recollection of a witness testifying as to the arrangement of the furniture in the room a short time before the homicide and immediately thereafter, and the position of the body of the deceased on the floor, where the witness testified that he knew the position of the -various objects referred to,- and that the location of the furniture was the same before and after the homicide, and that the photograph correctly represented them -and their location, though the photograph was taken some time after the homicide. The photograph was introduced for the purpose of showing the position of the mentioned objects at the. time of the tragedy, and to aid the jury in seeing these objects as the witness saw them; and it was the province of the jury to weigh and value the photograph as evidence as well as all the other testimony. (Post, pp. 66-71.) Cases cited and approved: Moon v. State, 68 Ga., 687; Shaw v. State, 83 Ga., 92; State v. O’Reilly, 126 Mo., 597; State v. Kelly, 46 S. C., 55; People v. Mahatch, 148 Cál., 200; Sellers v. State, 91 Ark., 175, 313; Spokane v. Patterson, 46 "Wash., 93; Britt v. Railroad, 148 N. C., 37; Harrison v. Green, 157 Mich., 690; Gaslight Co. v. Dean, 142 Ky., 678; Carlson v. Benton, 66 Neb., 486; State v. Matheson, 130 Iowa, 440; Higgs v. Railroad, 16 N. D., 446; Dederiehs v. Railroad, 14 Utah, 137. Case cited and disapproved: Pore v. State, 75 Miss., 727. 3. SAME. Accuracy of photograph may be proved by a witness other than the photographer who made it. The fact that a photograph of a homicide scene, admitted in evidence, was not proved by the photographer who made it, is immaterial, where a witness testified that he knew the position of the various objects shown by the photograph and that it correctly represented the facts; for the accuracy of photographs may be proved by any one knowing the fact. (Post, pp. 66-68.) Cases cited and approved: McGirr v. Babbitt, 61 Mise. Rep., 291, 113 N. T. Supp., 753; Smith v. Railroad, 80 Vt., 208; Me-Karren v. Railroad, 194 Mass., 179; Consolidated Gas, etc., Co. v. State, 109 Md., 186; Traction Co. v. Scribner (Ind. App.), 93 N. E., 1014; Thompson v. Railroad, 48 Tex. Civ. App., 284. 4. SAME. Photographs shown to be reasonably accurate are admissible in evidence to aid the jury; defects affect their weight, but not admissibility. Photographs are admissible in evidence, when shown to be reasonably accurate representations of the place or thing in question, to aid the jury in understanding the testimony of the witnesses in relation to the objects or things as presented. They belong in the law of evidence to the same class as models, maps, and plans. The mere fact that they are inaccurate in some particulars does not affect their admissibility, but goes only to their weight. (Post, pp. 68, 69.) Cases cited and approved: Traction Co. v. Scribner (Ind. App.), 93 N. E., 1014; Hassam v. Safford, 82 Yt., 444; Territory v. Price, 14 N. M., 262; West v. State, 53 Fla., 77; Martin v. Knight, 147 N. C., 564; Railroad v. Morris, 80 Ark., 528; Johnson v. Railroad, 35 Utah, 285; State v. Hersom, 90 Me., 273. 5. SAME. Admissibility of photographs in evidence is not affected because procured to be made by State's attorney. The admissibility of photographs in evidence is not affected by the fact that they were made at the instance of the State’s prosecuting attorney to illustrate his theory of the case. (Post, p. 69.) Cases cited and approved: State v. Remington, 50 Ore., 99; Burton v. State, 115 Ala., 1; Jarvis v. State, 138 Ala., 17. 6. SAME. Admissibility of photographs in evidence is not affected by denial of their correctness testified to by another witness. The admissibility of photographs in evidence is not affected by the fact that the witnesses for the adverse party denied their correctness, where a witness for the party introducing same testifies to their correctness. (Post, p. 69.) 7. SAME. Arranging before the jury the furniture in the room of the homicide is within the discretion of the trial judge. The trial court’s action, over objection of defendant on trial for murder committed in a hotel room, in permitting, in the court room, and in the presence of the jury, the assembling and arranging of the furniture in the hotel room at the time of the homicide, including the carpet, table, and chairs, together with an alleged reproduction of a window of the room, to enable witnesses to testify as to the placement of the articles of furniture, was not reversible error; for the admission of such evidence was within the discretion of the trial judge. (Post, pp. 71-74.) Cases cited and approved: Thrawley v. State, 15S Ind., 375; People v. Durrant, 116 Cal., 179; Painter v. People, 147 Ill., 444; State v. Martin, 47 S. C., 67; State v. Coella, 8 Wash., 512; Ruloff v. People, 45 N. Y„ 213’; People v. Searcy, 121 Cal., 1; Johnson v. State, 59 N. J. Law, 535; People v. Maughs, 143 Cal., 253, 8 Cal. App., 107. 8. SAME. Same. Furniture and its arrangement in room of homicide may be introduced as rebuttal evidence, when. The assembling and arranging, in the court room and before the jury, of the furniture in the room of the homicide, is properly permitted as rebuttal evidence, where it has a distinct tendency to overturn the defense, though it might have been introduced as original evidence. (Post, p. 74.) 9. SAME. Same. Same. Evidence in chief may be admitted in rebuttal in discretion of trial judge, without abuse of discretion. The trial court’s admission of evidence in rebuttal, which should have been introduced as evidence in chief, rests in such court’s sound discretion, and, in the absence of any abuse of such discretion, its action will not be disturbed or interfered with, upon appeal. (Post, pp. 74, 75.) Case cited and approved: Moore v. State, 96 Tenn., 209. 10.SAME. Recall of accused during State’s rebuttal evidence to lay grounds to contradict him is not prejudicial where the grounds already existed. Where the accused testified that he believed that the decedent had stolen his diamond, • and had not procured it from a third person who had stolen it, the error, if any, in permitting the State, after the defendant had closed his evidence, and the State was engaged in-the introduction of its rebuttal evidence, to question the accused as to whether he had told a certain police officer, at a certain time and place, that the deceased had not stolen his diamond, hut that the third person had, and that the deceased had obtained it from such person, for the purpose of laying a foundation to impeach the accused by the contradicting testimony of such officer, was not prejudicial, because the accused could have been so impeached on the testimony so previously given by him. {Post, pp. 75, 76.) 11. SAME. Refusal to permit recall of witness by accused after State had closed its rebuttal evidence to prove what might have been proved on cross-examination is not ground for reversal. Where the accused had full opportunity to inquire into a matter on his cross-examination of the State’s witness, or to recall the witness when he put in the evidence for Ms defense, the action of the trial court in refusing to permit the accused, after the State had- closed its evidence in rebuttal, to recall the witness for examination into such matter, was within the sound discretion of the court, and is-no ground for reversal.. {Post, pp. 76, 77.) 12. SAME. Court’s refusal to permit corrborative witness to be examined for accused after State had closed its rebuttal evidence is not error, when there was no apparent reason for the delay. , Where the accused had called and examined a street car motorman as to the number of shots he heard and the intervals between them, and many months elapsed between the homicide and the trial, the court’s refusal to permit the accused to introduce the conductor on the same car as said motorman, after the State had closed its evidence in rebuttal, to corroborate ■the testimony of the motorman, was no ground for reversal, especially where there was no apparent reason why said conductor was not secured as a witness at the proper time. {Post, pp. 77, 78.) 13. SAME. Accused may be cross-examined as to other offenses committed by him to affect his credibility as a witness. On cross-examination of the accused on trial for murder, the State may prove that he had, prior to the said murder, killed other persons, and had shot at others, to affect his character and credibility as a witness, hut the State will be bound by his answers and explanations. {Post, pp. 78-80.) Cases cited and approved:. Zanone v. State, 97 Tenn., 101; Ryan v. State, 97 Tenn., 206; Powers v. State, 117 Tenn., 363, 369. 14. SAME. Same. Whether cross-examination of accused as to other offenses may throw light upon his guilt or innocence need not be considered where he puts his general character in evidence. Where the accused introduces witness to show his good character for peace and good order, he thereby makes his general character the subject of examination, as throwing light upon his guilt or innocence; and in such case, the question whether the evidence brought out on cross-examination, as shown in the preceding headnote, might have been properly used for the purpose of throwing' light upon his guilt or innocence need not be considered by the supreme court. {Post, pp. 80, 81.) 15. SAME. Improper remark of spectator is no ground for new trial where jury was instructed not to consider it, especially if it is not shown that jury heard same. Where, on the trial of the accused for murder, and while he was being cross-examined as a witness, the widow of a third person killed in a sister State, by the accused, was in the court room, and characterized a statement by the accused as “an emphatic story,” and thereupon the trial judge reprimanded her, and stated that, if she repeated her offense, she would not be permitted to remain, and instructed the jury not to consider any remark made by her, her such misconduct was not ground for a new trial, especially in the absence of a showing that the jury heard the remark. (Post, pp. 81, 82.) 16. SAME. Presence of widow of a previous victim of accused on trial for a subsequent murder for making suggestions to State’s attorney in cross-examination of accused is no ground for reversal, when. While the accused on trial for murder- was being cross-examined by the State as to previous homicides committed by him in a sister State, the action of the court in permitting the widow of one of his victims to remain near the State’s attorney and make suggestions to him as to the cross-examination of the accused, was no ground for reversal, especially where the accused had been acquitted on a trial for such killing, and the jury was instructed to pay no attention to the evidence with respect to it, and where it does not appear that she was so placed there by the State’s attorney for the purpose of influencing the jury. (Post, pp. 82, 83.) 17. SAME. Improper remark of the State’s attorney as to his knowledge of the facts as to a previous killing was not prejudicial where jury was properly instructed. Where the State’s attorney, during the cross-examination of the accused on trial for murder, which involved the killing of third persons by the accused, said to the court: “He volunteers an explanation. Cannot I ask him something about the explanation? I happen to know something about the facts myself;” and the court replied that the witness on the stand should be permitted to testify, the remark of the State’s attorney as to his knowledge of the facts, though improper, was not prejudicial to- the accused; especially in view of the fact that the trial judge subsequently instructed the jury to pay no attention to the previous killing, because the accused had been acquitted thereof. (Post, p. 83.) 18. SAME. Misconduct of State's attorney that was not pre? judicial to accused is no ground for reversal. Where the jurors in a homicide case did not learn of a newspaper publication charging' the creation of a corruption fund to tribe the jurors to insure the acquittal of the accused, the misconduct of the State’s attorney in causing the publication of the charge that was found to be untrue, and his statement, not in the presence of the trial jurors, but in the presence of the venire thereafter discharged, that he had been asked if money would influence him to drop the case, constituted no ground for reversal. (Post, pp. 84-86.) 19. SAME. Excitement produced by newspaper publication quieted by subsequent correction constitutes no ground for change of venue or continuance of case. The said statement of the State’s attorney that he had been asked whether money would influence him to drop the case, and said newspaper publication charging the creation of a corruption fund to bribe jurors to insure an acquittal, where a subsequent publication disclosed that there was nothing in the newspaper charge, constituted no ground for change of venue or a continuance of the case, and a denial of the change of venue and a refusal of the continuance, both sought upon the ground of excitement produced by the publication of the charge, constituted no error, because properly within the discretion of the trial judge. (Post, pp. 84-86.) 20. SAME. Removal of jurors for stating, before the jury was completed and sworn, that they had made up their minds about the case, though denied with conflicting statements, constitutes no error.' Where a deputy sheriff, while in charge of the incomplete jury in .a homicide case, heard two jurors say to each other, when they were apart from the others, and before the completion of the jury, and before they were sworn as jurors, that they had made up their minds about the matter, the trial judge properly removed said two jurors, although, on their examinations in open court, separate and apart from each other, they denied that the statements were about the case* but made such conflicting statements about their conversation as to convince the trial judge that they were talking about the case. (Post, pp. 86-88.) 21. SAME. Assignment of error may be disregarded, where no reference to the record is made in it or the brief. ■Where there is no reference to the record, either in the assignment of error or in the brief for the accused, the assignment of error complaining of the action of the trial judge in holding a juror incompetent, may be disregarded. (Post, p. 88.) 22. SAME. Court’s holding venireman incompetent as juror, without tendering him to either party, is not reversible error, when. The action of the trial judge in holding a venireman incompetent as a juror, after his examination on his voir dire and before he was tendered to either party, can constitute no ground for reversal, at least in the absence of an extraordinary condition. (Post, p. 88.) 23. SAME. Failure to put witnesses under the rule, where affidavit shows sufficient grounds, is error. Where an affidavit is filed, stating sufficient grounds for the application of .the rule excluding witnesses from the court room, it is the duty of the trial judge to grant it, and his failure to do so is error. (Post, p. 89.) Cases cited and approved: Dougherty v. Shown, 1 Heist., 302; Rainwater v. Elmore, 1 Heist., 363. Other cases are cited on other points as to putting witnesses under the rule, but not upon points adjudicated in this case, on pages 89 and 90 of the opinion. 24. SAME. Rule excluding witnesses during trial does not include detective whose duty is to assist State’s attorney in preparing cases. The rule of court, excluding all the witnesses from the court room during the trial of a criminal case, does not include a detective attached to the office of the State’s attorney, and charged with the duty of assisting in preparing cases. (Post, pp. 88-90.) Case cited and approved: Car Co. v. Smith, 100 Tenn., 127. 25. SAME. Buie excluding witnesses during trial does not apply to rebuttal witnesses. The rule of court, excluding all the witnesses from the court room during the trial, civil or criminal, does not apply to witnesses in rebuttal. (Post, p. 90.) Case cited and approved: Heaton v. Dennis, 103 Tenn., 161. 26. SAME. Evidence of experiments with pistol used in the killing as to powder burns Is competent. On a trial for murder by shooting, evidence of experiments made to show how far the pistol used by the accused in shooting the deceased would powder burn cloth similar to clothing worn by decedent is competent. (Post, pp. 90, 91.) Cases cited and approved: Boyd v. State, 14 Lea, 161; Lipes v. State, 18 Lea, 125; Railroad v. Ayres, 16 Lea, 725; Byers v. Railroad, 94 Tenn., 345; Moore v. State, 96 Tenn., 209; Fisher v. Insurance Co., 124 Tenn., 450, 466-473. 27. SAME. Same. Evidence of experiments with pistol used in the killing, as to powder burns, is properly received In rebuttal, when. Where, on a trial for murder by shooting, the State showed the infliction of several bullet wounds and powder stains on the shirt worn by the decedent, and the accused testified that there was a struggle between him and the decedent, and that he obtained his pistol, which was discharged, inflicting the fatal wounds, the testimony of an expert as to experiments made for the purpose of showing how far the pistol used in the killing would powder burn cloth similar to the shirt which the accused wore, was properly received in rebuttal. (Post, pp. 58, 90, 91.) 28. SAME. Verdict cannot be impeached by juror's affidavit of arguments made by other jurors. The affidavit of a juror in a homicide case, stating the argument alleged to have been made to him by the other jurors, during their deliberations upon the verdict, resulting in the finding of the accused guilty of murder in the first degree with mitigating circumstances, is inadmissible. (Post, pp. 91, 94.) Case cited and approved: Lee v. State, 121 Tenn., 521, 555. 29. SAME. Same. Juror’s affidavit impeaching verdict, with subsequent affidavits of himself and foreman of jury destroying its effect, is no ground for new trial. Where the affidavit of a juror in a murder case, resulting in a conviction of murder in the first degree, with mitigating circumstances, averred that the other jurors argued in support of a conviction upon the grounds that the accused was a rich man, and had killed a number of men, and had gone unpunished, and that, unless a verdict of murder in the first degree was rendered, he would be given bail, and eventually go unpunished for the killing of the deceased, and that the accused was an old man, and ■ would not live twenty years in prison, and that, if the offense was not murder in the first degree, a certain judge’, upon a habeas corpus proceeding before him, would have released the accused on bail, and subsequent affidavits by him and by the foreman of the jury averred that the deliberations were fair and impartial, and were arrived at fairly, a new trial, upon the ground of misconduct of jurors, was properly denied. (.Post, pp. 91:94.)
126 Tenn. 96Neville v. Southern Railway Co. (1912)
1. COMMON CARRIERS. Liability for station agent’s unprovoked and unauthorized assault and battery upon a passenger, while transacting business in which the carrier had no interest. It is the duty of a common carrier to exercise ordinary care to protect a passenger in its station or depot, while waiting to take passage on its train, against the negligent, wanton, or willful acts of its own servants, irrespective of the scope of the authority or grade of employment of the servant, and a breach of this duty by the carrier fixes its liability. Therefore, a common carrier is liable in damages for an assault and battery committed, without just cause or provocation, by its station agent on a passenger while in the station waiting for the arrival of a train, though it occurred while the two were engaged in a discussion concerning a matter of business in which the carrier had no interest whatever. Cases cited and approved: Perry Co. v. White, 99 Tenn., 256; Traction Co. v. Lane, 103 Tenn., 382; Railroad-v. Shaw, 110 Tenn., 479; Railroad v. Flake, 114 Tenn., 676; Railroad v. Cheat-ham, 118 Tenn., 164. 2. SAME. Same. Principle on which the rule is based and from which it conclusively follows. The carrier cannot escape liability for such act of its servant, upon the ground that it was unauthorized; for it was a breach of its legal duty from which the right of action flows. This rule is based upon the principle that it is the duty of the carrier’s station agent to exercise ordinary care to protect a passenger from the turbulent or disorderly conduct of other passengers or persons in the station, and if he. stand by and allow a passenger to be insulted or injured, without any attempt to prevent the wrongful act, the carrier will certainly he liable; and it necessarily follows that, if the carrier is liable for the wrongful acts of other passengers and strangers allowed by the station agent, without any effort to prevent the wrongs, it will certainly be liable for such wrongs committed by the station agent himself. (Post, pp. 100, 101, 103, 104.) Oases cited and approved: Ferry Cos. v. White, 99 Tenn., 256; Traction Co. v. Lane, 103 Tenn., 382; Railroad v. Shaw, 110 Tenn., 479; Railroad v. Flake, 114 Tenn., 676; Railroad v. Cheat-ham, 118 Tenn., 164.
126 Tenn. 106Prescott v. Duncan (1912)
1. CONSTITUTIONAL LAW. Quarterly county court is a constitutional court that cannot be abolished by legislative enactment. The quarterly county court, though not mentioned in the constitution of 1870, nor in the prior constitutions, is nevertheless a constitutional court which cannot be abolished by legislative enactment; for its existence as a creature of the constitution must be implied from the constitutional provisions that necessarily refer to it, particularly such as confer “upon the justices of the p.eace” the performance of certain duties which could only be done by them in their collective capacity, or direct the performance of political administrative duties by the county court which had always been performed by the quarterly county court, and not by the quorum court or monthly court, because in such cases the constitutional convention must have had in mind the quarterly county court. (Post, pp. 118-134.) Constitution cited and construed: Art. 1, secs. 6, 7; art. 2, sec. 26; art. 6, sec. 15; art. 7, sec. 2; art 11, secs. 1, 9, 17; schedules to the three constitutions. Cases cited and approved: Pope v. Phifer, 3 Heisk., 682; Redis tricting Cases, 111 Tenn., 234. 2. SAME. Legislative power is only limited by federal and State constitutions. The legislature has all legislative power not prohibited by the constitution of the United States or the constitution of this State, either expressly or by necessary and fair implication. (Post, p. 127.) Case cited and approved: Jackson v. Nimmo, 3 Lea, 599. 3. SAME. Doubtful clause should be construed in connection with whole instrument. ■Where a clause of the State constitution standing by itself is of doubtful import, the whole instrument should be examined with a view of ascertaining the true intent of the clause in question. (.Post, pp. 127, 128.) 4. SAME. Object of construction is to ascertain intent; presumption as to precision in language to convey,meaning. The object of construction of a written constitution is to give effect to the intent of the people in adopting it, but this intent is to be found in the instrument itself; and it is to be presumed, unless an examination of the instrument demonstrates otherwise, that language has been employed with sufficient precision to convey the meaning intended; and the ascertained intent must be enforced. (Post, p. 128,) 5. SAME. Constitution construed as prospective, unless clearly shown to be retrospective. Constitutions should be construed to operate prospectively unless clearly intended, as shown by the words used, to have a retrospective effect. (Post, p. 128.) 6. SAME. Legislature may deprive county court of all fcower not conferred upon it by the constitution. Prom the foregoing generally accepted rules of construction (as shown in headnotes 2, 3, 4, and 5), it is manifest that the legislature may take from the county court all power not conferred upon it by the constitution, expressly or by necessary impli- , cation. (Post, pp. 129, 130.) 7. SAME. Implications may support powers and restraints, but cannot do violence to a plainly expressed intention. The powers conferred by the constitution, as well as its restraints upon inherent power, may be supported by such implications as are necessary to give effect to the intent of the people in conferring the one or setting the bounds of restraint upon the other; but, in drawing implications, the whole instrument must be considered, and no implication of intention with respect to one part of tlie instrument can be justified where such implication does violence to a plainly expressed intention to he found in another part. (Post, p. 130.) 8. SAME. Quarterly county court is impliedly Imbedded in the constitution of 1870. The quarterly county court is impliedly imbedded in the constitution of 1870; and this implication arises solely from the delegation, by that instrument, of certain duties to “justices of the peace” and to the “county court,” which could only be performed by them when assembled in a body, an assemblage well known at the time as the quarterly county court; for the implication that the quarterly county court is a constitutional court is necessary in order to give effect to the plainly expressed intention that the “justices of the peace” and the “county court” shall perform the duties directly imposed upon them. (Post, p. 130.) 9. SAME. Quarterly county court is a constitutional court alone for the purpose of performing the functions imposed upon it by the constitution; powers conferred by legislature may be repealed by legislature. While the constitution of 1870 does not expressly mention the quarterly county court, yec it impliedly recognizes and continues it by the provision (art. 7, sec. 1) that “There shall be elected for each county by the justices of the peace, one coroner, and one ranger”; by the provision (art. 7, sec. 2) that vacancies “in the office of sheriff, trustee, or register . . . shall be filled by the justices”; and by the provision (art. 11, sec. 17) 'that “No county office created by the legislature shall be filled otherwise than by the people or the county court"; for these powers can be performed by the justices only when assembled in the body known as the quarterly county court, and it cannot be deprived of these constitutional powers by the legislature; . but the constitution did not impliedly confer upon that court all of the extensive governmental and administrative powers theretofore conferred on it by the legislature, and such powers so conferred by the legislature may be taken away by the legislature. The quarterly county court was held in existence hy the constitution alone for the purpose of performing the duties directly imposed upon it by that instrument. Therefore, the statute (Private Acts 1911, ch. 237) creating a board of county commissioners in certain counties, with substantially all the statutory powers and functions of the quarterly county court; but with none of its powers, specifically mentioned in the constitution, is not unconstitutional and void as depriving that court of its constitutional powers, especially in view of the provision (art. 6, sec. 1) that inferior courts of justice may be ordained at the discretion of the legislature, and the further constitutional provision (art. 11, sec. 9) that "The legislature shall have the right to vest such powers in the courts of justice, with regard to private and local affairs, as may be expedient.” The.implied constitutional recognition and continuance of the quarterly county court for the performance of the functions so specified in the constitution did not import into the constitution all the powers which that court possessed by statute as a part of the existing system of government. (Post, pp. 113, 118-143, and especially 120-143.) Acts cited and gonstrued: Acts 1911 (Private), ch. 237. Constitution cited and construed: Art. 6, secs, i, 8; art. 7, secs. 1, 2; art. 11, secs. 9, 17. Case cited and approved: State, ex rel., v. Powers, 124 Tenn., B53. Cases cited, distinguished, and approved': Cannon Co. v. Hooden-pyle, 7 Humph., 145; Railroad v. County Court, 1 Sneed, 637; Young v. Shumate, 3 Sneed, 369; Pelts v. Memphis, 2 Head, 651; Pope v. Phifer, 3 Heisk., 682; Grant v. Lindsay, 11 Heisk., 651; Wood v. Tipton Co., 7 Bax., 112; Jackson v. Nimmo, 3 Lea, 597; Railroad v. Wilson Co., 89 T.enn., 597; Walsh v. Crook, 91' Tenn., 388; Shelby Co. v. Exposition Co., 96 Tenn., 653; State v.' Cum-mins, 99 Tenn., 667; Judges’ Salary Oases, 110 Tenn., 370; State v. Akin, 112 Tenn., 603. 10. SAME. The constitutional assumption of existence of laws does not import them into the constitution, except when. • The rule of construction that the constitution assumes the existence of a well understood system of government which is to remain in force and be administered under the limitations and restrictions therein imposed can be resorted to only in the interpretation of the words employed to express such limitations and restrictions, and cannot be used to import into the constitution the existing system of government, except when some provision in the instrument itself would fail of its purpose, unless supported by such an implication. (Post, pp. 131, 132.) 11. SAME. Appointees of county commissioners, without fixed terms, without specific duties, without salaries, but with maximum rates of compensation, are not county officers whose election must be by the people or the county court. The statute (Private Acts 1911, ch. 237, sec. 8), authorizing the board of county commissioners, created by said act, to appoint a jail physician, superintendent of county morgue, superintendent of hospital, physician of asylum and workhouse, jail engineer, courthouse janitor, courthouse engineer, courthouse electrician, courthouse policeman, and a night watchman, with no fixed terms of office and no fixed salaries, but with fixed maximum rates of compensation, with no specific duties to be performed, but employed to aid the commissioners to perform the duties imposed upon them, is not unconstitutional in authorizing the commissioners to fill offices created by the legislature, because such appointees are not county officers, but mere employees. (Post, pp. 143-147.) Acts cited and construed: Private Acts 1911, ch. 237, secs. 3, 4, 7, and 8. Constitution cited and construed: Art. 11, sec. 17. 12. SAME. Vacancies occurring in the board of county commissioners, or in positions to be filled by it, after they have been once filled may be filled in such manner as the legislature shall direct. The statute (Private Acts 1911, ch. 237, secs. 16 and 24), authorizing the board of county commissioners, created by said act, to fill vacancies occurring in the board or in the positions it is authorized to fill, is not unconstitutional for that reason, because tlie vacancies contemplated are such as happen after the office has been created and filled, and fall within the constitutional provision (art. 7, sec. 4) authorizing the filling of all vacancies not otherwise provided for to “be made in such manner as the legislature shall direct,” -and do not fall within the constitutional provision (art. 11, sec. 17) requiring county offices created by the legislature to be filled by the people or county court, and not otherwise, because the vacancies contemplated by this provision are the vacancies which occur immediately upon the creation of the county office. The said two provisions must be construed together so that both may stand. (Post, p. 147.) Acts cited and construed: Private Acts 1911, ch. 237, secs. 16 and 24. Constitution cited and construed: Art. 7, sec. 4; art. 11, sec. 17. Cases cited and approved: Condon v. Maloney, 108 Tenn., 82; Richardson v. Young, 122 Tenn., 471.
126 Tenn. 148Graves v. Illinois Central Railroad (1912)
PROM LAUDERDALE. Appeal of the Graves case from the Circuit Court of Lauderdale County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — S. J. Everett, Circuit Judge. PROM SHELBY. Appeal of the Henkel cases from the Circuit Court, of Shelby County (3d Division) to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — A. B. Pittman, Circuit Judge.
126 Tenn. 169Tate v. Tate (1912)
1. WILLS. Giving whole estate to husband for life, and at his death to children of testatrix or the issue of any child previously dying, gives remainder to children or issue as a class. A will giving all the property of the testatrix to her husband for life, and at his death to be equally divided between her children, share and share alike, the issue of any child, dying before said period, to take the share of the deceased parent, gave such remainder estate to the children of the testatrix, or their issue, as a class; and where one of such children died after the death of the testatrix, but before the life tenant, unmarried and without issue, the other surviving child, living at the death of the life tenant, took the whole remainder estate. (Post, pp. 172-199.) Cases cited, reviewed, and approved: Frierson v. Van Burén, 7 Yerg., 606; Deadrick v. Armour, 10 Humph., 588, 600, 601; Satterfield v. Mayes, 11 Humph., 58; Womack v. Smith, 11 Humph., 478, 479; Morton v. Morton, 2 Swan, 318; Fulkerson v. Bullard, 3 Sneed, 260; Beasley v. Jenkins, 2 Head, 191, 192; Rogers v. Rogers, 2 Head, 660; Parrish v. Groomes, 1 Tenn. Chy., 581, 583; Connell v. McKenna, 2 Tenn. Cas., 190; Jackson v. Everett, 3 Tenn. Cas., 881; Land Co. v. Hill, 87 Tenn., 589, 595, 596; Blass v. Helms, 93 Tenn., 166; Forrest v. Porch, 100 Tenn., 391; Nichols v. Guthrie, 109 Tenn., 535; Sanders v. Byrom, 112 Tenn., 472, 477, 478, 479. Cases cited, reviewed, distinguished, and approved: Cathey v. Cathey, 9 Humph., 470; Ivey v. Satterfield, 11 Humph., 58; Lockwood v. Nye, 2 Swan, 519; Bridgewater v. Gordon, 2 Sneed, 5; Ward v. Saunders, 3 Sneed, 387; Harris v. Alderson, 4 Sneed, 250; Petty v. Moore, 5 Sneed, Í26; Alexander v. .Walch, 3 Head, 493; McClung v. McMillan, 1 Heisk., 655; Puryear v. Edmond-son, 4 Heisk., 43; Green v. Davidson, 4 Bax., 488; Whitman v. Young, 1 Tenn. Chy., 586; Allen v. Allen, 2 Tenn. Chy., 28; Davis v. Goforth, 1 Lea, 31; Elkins v. Carsey, 3 Tenn. Cas., 292; Owens v. Dunn, 85 Tenn., 131; Baloh v. Johnson, 106 Tenn., 249; Smith v. Smith, 108 Tenn., 21. ' 2. ESTOPPEL. Contingent devisee in remainder is not estopped by mistaken construction of will in bills, and conveyances before the estate is vested and the will is construed by court, when. Where the complainant, under the' proper construction of her mother’s will, is entitled to the entire remainder estate in her mother’s property, to the exclusion of those claiming under her deceased sister dying before the death of the life tenant, she is not estopped to claim that interest by the fact that she filed hills in chancery and joined in trust deeds in which she, erroneously and mistakenly, recognized an equal vested interest in the sister, when neither of them had a vested interest, and both only had contingent interests depending upon their survival of their father as life tenant, because such recognition was made under mistake as to the effect of the will, which was open to examination and construction by any one. (Post, pp. 199-212.) 3. SAME. Sworn statements of facts operate as estoppel, but statement of conclusion of law does not so operate, when. Where one, upon oath, in a pleading, deposition, or oral testimony, states a given fact as true, he will not be permitted to deny that fact in a subsequent litigation, though the parties he different, unless the statements were made inconsiderately, by mistake, or without full knowledge of the facts; but the estoppel does not apply to mere conclusions of law upon undisputed facts. (Post, pp.'212-214.) Cases cited and approved: Hamilton v. Zimmerman, 5 Sneed, 39; Cooley v. Steele, 2 Head, 605; Stillman v. Stillman, 7 Bax., 169, 175; Stephenson v. Walker, 8 Bax., 289; Seay v. Ferguson, 1 Tenn. Chy., 287; Nelson v. Claybrooke, 4 Lea, 687, 692; Chilton v. Scruggs, 5 Lea, 308; McEwen v. Jenks, 6 Lea, 289; Watterson v. Lyons, 9 Lea, 566; Smith, v. Fowler, 12 Lea, 163; Allen v. Westbrooke, 16 Lea, 251, 255, 256; McCoy v. Pierce, 1 Tenn. Cas., 87; Murrell v. Watson, 2 Tenn. Chy., 244; Yerbine v. Ragsdale, 96 Tenn., 532; McLemore v. Railroad, 111 Tenn., 639, 666, 667; Grier v. Canada, 119 Tenn., 17; Barnes v. Brown, 1 Tenn. Cby. App., 726. 4. SAME. By deed cannot be claimed except by parties or privies thereto. No one can claim an estoppel by deed, wbo is not either a party or privy thereto. (Post, p. 214.) . 5. SAME. Not operative unless other party justifiably relied on statements and had no equal opportunity of ascertaining the truth. Estoppel cannot he operative against any one, unless the statement complained of was made under such circumstances as justified the other party in relying on it, and unless it was relied on, and then it will not be binding where such other party had equal opportunity of ascertaining the truth of the representation. (Post, pp. 214-219.) Case cited and approved: Parkey v. Ramsey, 111 Tenn., 302, citing and approving Morris v. Moore, 11 Humph., 433-435; Moses v. Sanford, 2 Lea, 659; Askins v. Coe, 12 Lea, 672; Collins v. Williams, 98 Tenn., 525; Coal Co. v. McDowell, 100 Tenn., 570; Crabtree v. Bank, 108 Tenn., 483, 491; Burgess v. Seligman, 107 U. S., 20; Estis v. Jackson, 111 N. C., 145; Mills v. Graves, 38 Ill., 455; Holcomb v. Boynton, 151 Ill., 294. 6. QUIETING TITLE. Reimbursement by complainant to defendants for benefits received in discharging tax liens and other liens. In quieting complainant’s title to land against claims arising under deeds of trust given by a sister, who, through a mistaken construction of their mother’s will, was supposed to have a vested undivided half interest in remainder in the land, complainant will be required to reimburse.defendants, so far as the money, lent and attempted to be secured by such deeds of trust, was used to redeem the land from tax sales and liens and other liens. (Post, pp. 219-221.) Cases cited and approved: Trousdale v. Trousdale, 6 Lea, 161; Caldwell v. Palmer, 6 Lea, 652; Howard v. Wheatley, 15 Lea, 607, 616.
126 Tenn. 223Weil v. Mayor of Newbern (1912)
FROM DYER. Appeal from the Circuit Court of Dyer County.— Jos. E. Jones, Judge.
126 Tenn. 267Southern Railway Co. v. City of Memphis (1912)
1. EMINENT DOMAIN. Inherent attribute of sovereignty, without limitation, except as limited by the constitution. The power oí eminent domain is an inherent attribute of sovereignty, without limitation or restriction, except and subject to the constitutional limitation that private propery cannot be taken for private purposes at all, nor for a public use without compensation. {Post, p. 281.) Constitution cited and construed: Art. 1, sec. 21. 2. SAME. Whether taking Is for a private or public use and whether statute provides for ascertainment of value and payment thereof, are judicial questions; and all other questions are political. Whether the attempted taking of private property is for a private or public use, 'and, where the taking is for a public use, whether the statute authorizing the taking for a public use provides a sufficient and adequate procedure for the ascertainment of the fair value of the property to be taken, and payment in cash, or sufficient security, are judicial questions confided to the courts; but all other incidents of the taking are political questions, for the determination of the sovereign, and not judicial questions, for the determination of the courts. For instance, the selection of the property to be taken, as con-tradistinguished from similar property in the same locality; the determination of its suitableness for the public use to which it is proposed to be put; and the quantity of the property required, are all political questions, not subject to judicial review. (Post, pp. 281-283.) Cases cited and approved: Anderson v. Turbeville, 6 Cold., 150; White v. Railroad, 7 Heisk., 537; Ryan v. Terminal Co., 102 Tenn., 116; Water Co. v. Scott, 111 Tenn., 328; Memphis v. Hastings, 113 Tenn., 112; Railroad v. Cemetery Co., 116 Tenn., 400; Kohl v. United States, 91 U. S., 367; United States v. Fox, 94 U. S., 320; Boom Co. v. Patterson, 98 U. S., 406; Shoemaker v. United States, 147 U. S., 282; Navigation Co. v. United States, 148 U. S., 327; United States v. Railroad, 160 U. S., 668; Isom v. Railroad, 36 Miss., 300; Railroad v. Chicago, 141 Ill., 602. 3. SAME. Particular property may be selected for public use by legislative enactment. Particular property belonging to a particular citizen can be selected directly for the • public use by legislative enactment. (Post, p. 283.) Cases cited and approved: Anderson v. Turbeville, 6 Cold., 150; Railroad v. Cemtery Co., 116 Tenn., 400; Shoemaker v. United States, 147 U. S., 282. 4. SAME. Public parks are for a public use. Public parks are for the benefit of the public, and property taken for such uses falls within a proper exercise of the power of eminent domain. (Post, pp. 283, 284.) Cases cited and approved: Memphis v. Hastings, 113 Tenn., 142; Shoemaker v. United States, 147 U. S., 282; United States v. Railroad, 160 U. S., 668. 5V SAME. Property devoted to a public use cannot be taken for another public use without legislative warrant. Property devoted to a public use, so selected and set apart by proper legislative authority, cannot be taken for another and inconsistent public use, in the absence of legislation expressly or impliedly warranting it. (Post, p. 284.) Case cited and approved: Railroad v. Cemetery Co., 116 Tenn., 400. 6. SAME. Same. Statute authorizing the taking of specific property devoted to a public use for another inconsistent public use, upon compensation, is not unconstitutional for that reason.- The statute (Acts 1909, eh. 141), authorizing the city of Memphis to take the property known as the “Southern Railway Company yards,” including its switchyards, in said city, for park purposes, and authorizing said city to pledge its credit for the payment of the bonds to be issued to pay for the property, expressly selects and authorizes the taking of property deyoted to a public use to be appropriated to another public use inconsistent therewith, and is not in conflict with the constitutional provision (art. 1, sec. 8) forbidding the deprivation of property except by the law of the land, nor with the constitutional provision (art. 1, sec. 21) forbidding the taking of property for private use at all, and the taking for a public use without just compensation, nor with the constitutional provision of the federal constitution (14th am.) guaranteeing the -equal protection of the laws, because the power of eminent domain exists independent of the constitution and is only limited by it, and the power to take property for public purposes includes the power to select the property to be taken. (Post, pp. 284-286.) Acts cited -and construed: Acts 1909, ch. 141. Constitution cited and construed: Art. 1, secs. 8 and 21 (State); 14th am. (U. S.). Cases cited, approved, and distinguished: Jones v. Perry, 10 Yerg., 60; Mayor v. Dearmon, 2 Sneed, 104; Brown v. Haywood, 4 Heisk., 351; McKinney v. Hotel Co., 12 Heisk., 104; Memphis v. Fisher, 9 Bax., 240; Ragio v. State, 86 Tenn., 272; Stratton v. Morris, 89 Tenn., 497; Sutton v. State, 96 Tenn.', 696; State v. Railroad, 124 Tenn., 1; Fleming v. Memphis, 126 Tenn., 331. 7. SAME. Same. Same. Statute authorizing the taking of . specific property, provided it can be acquired for not exceeding a certain sum, is not unconstitutional as not providing just compensation. The statute (Acts 1909, ch. 141), authorizing the city of Memphis, through its part commission, to acquire certain specified property for park purposes, provided not more than five hundred thousand dollars shall he paid therefor, under private negotiation or condemnation, authorizes the said city to invest a sum not exceeding that amount in the acquisition of the property; and the park commission is authorized to investigate the value of the property, and to determine whether it can be acquired for a sum not exceeding the said maximum amount, either by private negotiation or condemnation; and the statute is not unconstitutional for failure to provide adequate method of just, compensation, for the reason that, if the commission, as the city’s agent, upon investigation, determines that the property is worth more than the said maximum sum fixed, the right to exercise the power of eminent domain does not exist. (Post, pp. 286-289.) Acts cited and construed: Acts 1909, ch. 141, sec. 4. Cases cited and approved; Water Co. v. Scott, 111 Tenn., 321; Memphis v. Hastings, 113 Tenn., 142. 8. SAME. Same. Same. Same. Statute authorizing the taking of specific property at a maximum price does not authorize the taking if the property is worth more, and is constitutional. The legislature, in authorizing the taking of certain specific property for a public use, may fix the maximum price at which the property may be acquired; and where the property cannot be acquired for the maximum sum, the power of eminent domain cannot be exercised, because it is a condition precedent to taking' possession of the property condemned that the adjudged value be paid into the registry of the court or secured by bond. (Post, pp. 288, 289.) Acts cited and construed: Acts 1909, ch. 141, sec. 4. Cases cited and approved: Cunningham v. Terminal Co., 126 Tenn., 343; Shoemaker v. United States, 147 U. S., 282; United States v. Railroad, 160 U. S., 668. 9.SAME. Procedure for ascertaining value must be regulated by legislation. The procedure for ascertaining the value of the property sought to he condemned is a matter of legislative regulation. (Post, p. 289.) Case cited and approved: Railroad v. Nesbit, 10 How., 395. 10. SAME. Same. Procedure is clearly defined by Code and decisions. The procedure in condemnation suits is well established and well understood in this State, and is clearly defined by our Code and the decisions of the supreme court construing it. (Post, pp. 289, 290.) 11. SAME. Same. Same. Statute authorizing acquisition ot specific property for pubíic use at a maximum value was passed with reference to established procedure; no acquisition if value exceeds maximum. The statute (Acts 1909, ch. 141), authorizing the city of Memphis to acquire, by condemnation or negotiation, certain specified property for park purposes, and fixing the maximum price which the city is authorized to pay therefore, was passed with reference to the then established mode of procedure for ascertaining the value of property sought to be taken in such cases; and where the investigation according to the statutory procedure develops the fact that the fair valuation of the property does not exceed the said maximum sum, the said city may acquire the property; but if such investigation shows that the said property is worth more than the said maximum sum, said city’s power to acquire it under said statute is at an end. (Post, pp. 289, 290.) Acts cited and construed: Acts 1909, ch. 141. 12. SAME. Statute authorizing the taking of railroad terminals and switch yards, without providing for time required to procure others, is due process of law and constitutional, when. The statute (Acts 1909, ch. 141), authorizing the city of Memphis to acquire, for park purposes, the yards and switchyards, of a certain railroad company in said city, without providing a system hy which it is possible to deal with the particular ^case, so as to recognize and preserve the property rights of said company, in that no provision was made for said company to use its terminals pending the time which it would require to procure additional terminals or sufficient facilities to enable it to discharge its duty to the public as a common carrier, is due process of law, and said company is not thus deprived of due process of law, because, if the taking of the company’s yards will disable it from performing its functions, or if the value of its remaining property is impaired, such facts must enter into the amount of the compensation to be awarded. (Post, pp. 290, 291.) Acts cited and construed: Acts 1909, ch. 141. Cases cited and approved: Navigation Co. v.’ United States, 148 U. S., 812; United States v. Railroad, 160 U. S., 668; Backus v. Depot Co., 169 U. S., 557. 13. CONSTITUTIONAL LAW. Statute not expressly amending former law is not unconstitutional for failure to recite its title or substance. The statute (Acts 1909, ch. 141), authorizing the city of Memphis to acquire, by compensation or negotiation, certain specified property for park purposes, is not an express amendment of Acts 1879, ch. 2, nor of Acts 1899, ch. 142, authorizing said city to acquire parks, and, therefore, is not unconstitutional as violating the constitutional requirement (art. 2, sec. 17) that all acts which amend former laws shall recite -the title or substance of the law amended; and if it be an implied amendment of said former-acts, it does not violate the said constitutional ■provision. (Post, pp. 291, 292,) - - Acts cited and construed: Acts 1909, ch. 141. Constitution cited and construed: Art. 2, sec. 17. 14. SAME. Committee’s substituted bill under original title, • thereafter passed on its final reading, where original had been passed on its first and second readings, is validly passed, when. ■Where an act originated in the house of representatives, and, after it was passed on two separate readings, it was then referred to a committee, which substituted another hill for the original hill, with the same- title, hut with essentially different provisions in its body; and, upon recommendation of the committee, the house passed said substituted hill on its third and final reading, treating the passage of the original bill as sufficient to make the final passage of the substituted bill a passage on its third reading; whereupon, the substituted bill was duly passed by the senate and signed, in open session, by both speakers, and approved by the governor, it was held that the bill was passed by the house upon three separate readings .as required by the constitution (art. 2, sec. 18.). (Post, pp, 292, 293.) Acts cited and construed; Acts 1909, ch. 141. Constitution cited and construed: Art. 2, sec. 18. Cases cited and approved: State v. McConnell, 3 Lea, 332; Williams v. State, 6 Lea, 549; Brewer v. Huntingdon, 86 Tenn.. 732; State v. Algood, 87 Tenn., 163; Nelson-v. Haywood, 91 Tenn., 596; Erwin v. State, 116 Tenn., 71; Jackson v. Manufacturing Co., 124 Tenn., 421. 15. SAME. Same. No difference between substitute bill and amendment by substitution; bill cannot be killed by mere terminology. After a hill has passed its second reading,, it may be amended by substituting a new body, and there is no substantial reason why it is not just as permissible to offer the same subject-matter under the original title as a substitute for the original bill; for the distinction sought to he made- between reporting a substitute bill and an amendment by substitution is more fanciful than real. A legislation bill cannot be destroyed upon , mere matter of terminology. (Post, p. 293.) Citations same as under preceding headnote 16. EMINENT DOMAIN. Just compensation Is fair cash value, including capabilities and potentialities, whether developed or undeveloped. The “just compensation” required by the constitution for the taking of private property for a public use is the fair cash value of the property taken. The value of the capabilities and potentialities of the property, whether developed or undeveloped, for a particular use at the time of the taking, together with every other element of value, must be considered in determining its then market value, but the speculative value of the property in the hands of a future owner cannot be considered; and where the owner has developed his property, and is using it in the way which possesses a special value to him, “just compensation” requires that he be paid for it at the place and in the form in which it is taken. (Post, pp. 294-296.) ■Oases cited and approved: Woodfolk v. Railroad, 2 Swan, 437; Allowacy v. Nashville, 88 Tenn., 510. 17. SAME. Same. Measure of compensation for railroa'd terminals and switchyards taken in. a city for park purposes. Where certain property of a railroad company, including its terminals and switchyards in a certain city, is taken by the city for a public purpose, namely, for public park purposes, the company is entitled to compensation, not only for the value of the land taken as land, but, in addition, for the value of the land in connection with the uses to which it is devoted. Where the taking of the switchyards destroys the function of the company in the city as a common carrier, it is entitled to compensation for the full value of the use of its terminals to its entire railroad system; and where it does not destroy, but merely permanently impairs its said function, the company is entitled to fair compensation for the degree of impairment which its railroad system suffers, to be ascertained by a comparison of the present yards, in their location and situation in the said city with respect to the patrons of the company in the city, and its connection physically and intangibly with the remainder of the system, with like elements of value to be possessed by new yards when acquired to replace those taken for park purposes. (Post, pp.' 296, 297.) 18. SAME. Same. Same. “Fair cash value” is defined, and includes the peculiar value to owner of property in use by him. By “fair cash value,” in the rule requiring the payment of the fair cash value of property taken under eminent domain, is meant the market value; hut where the property is in actual use hy the owner in such way that it possesses a peculiar value to him, which will he sacrificed if placed upon the general market, he is entitled to this value as just compensation for the taking. (Post, pp. 297-301.) Cases cited and approved: Navigation Co. v. United States, 148 U. S., 327 (citing Montgomery Co. v. Bridge Co., 110 Pa., 54); Railroad v. Railroad, 112 Ill., 589 (citing Railroad v. Kirby, 104 Ill., 345).
126 Tenn. 302Laxon v. State (1912)
1. STATE’S JURISDICTION. In criminal cases extends to Island No. 21 in Mississippi river by cession of the United States and its acquiescence in the State's exercise of its jurisdiction over it. The land embraced in what is now known as “Island No. 21,” formerly known as “Cut-Off Island,” lay entirely west of the Mississippi river in 1763, and so remained until 1821 or 1822, and it became the property of France in 1763 by treaty of that date between England, France, and Spain, and was part of the land ceded by France to the United States in 1803; and, there'fore, wnile such land was not a part of the land now in Tennessee that was ceded to the United States by North Carolina in 1789; and since the channel of said river changed by avulsion previous to the admission of Arkansas as a State in the union in 1836, ' so as to form such island and to leave it east of the middle line of the said river, it was never a part of the State of Arkansas. In 1834, Tennessee made provision, by its constitution (art. 1, sec. 31), continued in the constitution of 1870, for the extension of its limits and jurisdiction over any lands already acquired by it, or which should be thereafter acquired by it, and in 1846' (act of August 7, 1864, ch. 92, 9 Stat., 66) the United States ceded to Tennessee absolutely all unappropriated lands in the said State, after which Tennessee assumed and exercised full jurisdiction over said island, in which the United States acquiesced, so that the United States surrendered’, and Tennessee acquired, absolute jurisdiction over said island. (Post, pp. 303-311.) Constitution cited and construed: Art. 1, sec. 31. Cases cited and approved: Moss v. Gibbs,. 10 Heisk., 283, 294-296; State v. Pulp Co., 119 Tenn., 47. 2. COUNTY'S JURISDICTION. Venue of offense committed on an island not in its boundaries, but over which the county exercised jurisdiction by acquiescence of State since 1823. The venue of a criminal offense, committed on Island No. 21 in the Mississippi river, is in the county of Dyer in the State of Tennessee, though such county, as originally laid off in 1823, did not embrace such island; where such island belonged to Tennessee, and was not claimed by any other county, and Dyer county assumed and exercised jurisdiction over it and over the taxpayers living upon it ever since said year of 1823, with the acquiescence of said State. If the State acquiesces in the county’s jurisdiction, the accused cannot object. {Post, pp. 311, 312.
126 Tenn. 313Advance Lumber Co. v. Moore (1912)
1. FOREIGN CORPORATIONS. Doing business in this State without registering charters cannot enforce their contracts. Under our statutes (Acts 1895, ch. 81, amending Acts 1877, ch. 31, and Acts 1891, eh. 122), making it unlawful for any foreign corporation to do business in this State, without previously complying with the provisions of said acts as to the registration of its charter, etc., a foreign corporation coming into this State, establishing itself, and carrying on business here, without complying with the said statutory requirements, cannot enforce its contracts growing out of its such business. (Post, pp. 316, 317.) Acts cited and construed: Acts 1877, ch. 31; Acts 1891, ch. 122; Acts 1895, ch. 81. Cases cited and approved: Lumber Co. v. Thomas, 92 Tenn., 587; Harris v. Water & Light Co., 108 Tenn., 245; Property Co. v. Nashville, 114 Tenn., 213. 2. SAME. Maintaining agency here to do business in adjacent States is not doing business here; and isolated transactions are not. A foreign corporation, engaged in the business of buying and selling lumber, and maintaining an office in this State in charge of a resident agent, who makes no sales, but looks after its purchasing business in adjacent States, is not engaged in business in this State, within the meaning of the statute (Acts 1895, ch. 81) making it unlawful for any foreign corporation to “do business in this State,” without previously registering its charter," etc., though it made two or three purchases here as isolated transactions. (Post, pp. ’317-323.) Acts cited and construed: Acts 1895, ch. 81. Cases cited and approved: John Deere Plow Co. v. Wyland, 2 Ann. Cas., 304, and note; Bradbury v. Waukegan, etc., Mining Co., 113 Ill. App., 600; People v. Feitner, 77 App. Div., 189, 78 N. Y. S., 1017; Penn. Collieries Co. v. McKeever, 93 All. Div., 303, 87 N. Y. S., 869; Doty v. Railroad, 8 Abb. Prac., 427; Hart v. Livermore Foundry, etc., Co., 72 Miss., 809; Honeyman v. Col. Fuel, etc., Co. (C. C.), 133 Fed., 96. Cases cited and distinguished: Lumber Co. v. Thomas, 92 Tenn., 587; Insurance Co. v. Kennedy, 96 Tenn., 711; Harris v. Water & Light Co., 108 Tenn., 245. 3. CHANCERY PRACTICE. Reference to master for report as to account sued on, when it is large, of many items, and disputed, is proper. Where the account sued on is large, and consists of many items, and there is a controversy about the account as a whole, and about some of the items, a reference to the master for investigation, and further proof, if necessary, and a report, is proper. (Post, pp. 315, 316, 322.)
126 Tenn. 323Louisville & Nashville Railroad v. Maxwell (1912)
1. RAILROADS. Prescriptive right to maintain embankment ■ over servient land does not warrant the raising of the embankment. Where a railroad company has acquired a prescriptive right to maintain its embankment over servient land, that right will not warrant it in raising the embankment, so as to impose a greater burden on the servient land. {Post, pp. 327, 328.) Case cited and approved: Railroad v. Mossman, 90 Tehn., 157. 2. WATERS AND WATERCOURSES. Surface waters are a burden on the lowest land. The lowest land is required to bear the burden of surface waters. {Post, p. 328.) Case cited and approved: Garland v. Austin, 103 Tenn., 555. 3. SAME. Same. Lower land raised, by deposits, to level of the once higher land, is no longer required to bear burden of surface waters. Where a railroad company, with a prescriptive right to maintain its embankment, made a ditch, whereby surface waters were permitted to run through a culvert upon the lower land of another, until the deposits and accumulations of soil and sand thereon raised it to the level of the land on the other side of the embankment, it was held that by so raising the level of the lower land, the rule that the lower land is required to bear the burden of surface waters was put in abeyance, or made inapplicable, 'and that the railroad company was not bound to provide a means to carry off such surface waters, for the reason that it no longer had the right to drain over what was formerly the lower land. {Post, pp. 328-330.)
126 Tenn. 331Fleming v. City of Memphis (1912)
1. CONSTITUTIONAL LAW. Class legislation in favor of a particular municipality must have what basis, to be constitutional. Under the constitutional prohibition (art. 11, sec. 8) against partial legislation in favor of particular individuals other than such as may he extended to any member of the community who may be able to bring himself within its provisions, laws public in their character, and otherwise unobjectionable, may extend to all citizens, or be confined to particular classes; and while municipalities may be classified for conferring upon them certain rights, privileges, immunities, or exemptions not enjoyed by the community at large, yet the classification must not be mere arbitrary selection, for it must have some basis which bears a natural and reasonable relation to the objects sought by the legislation, and there must be some good and valid reason why the particular municipality upon which the benefit is.conferred should be so preferred. (Post, pp. 334-337.) Constitution cited and construed: Art. 11, sec. 8. Cases cited and approved: Stratton v. Morris, 89 Tenn., 522; Malone v. Williams, 118 Tenn., 425; State v. Railroad, 124 Tenn., 1; Soon Hing v. Crowley, 113 U. S., 709; Connolly v. Union Sewer Pipe Co., 184 U. S., 540. Case cited and distinguished: Williams v. Taxing District, 16 Lea, 531. 2. MUNICIPAL CORPORATIONS. Liability for injuries resulting from negligence or failure to keep streets in safe condition for travel. Municipal corporations are liable in actions of tort for injuries to persons sustained by reason of their negligence or failure to keep their streets in safe condition for travel. (Post, p. 337.) Cases cited and approved: Humes v. Mayor, etc., 1 Humph., 403; Memphis v. Lasser, 9 Humph., 757; Nashville v. Brown, 9 Heisk., 1; Niblett v. Nashville, 12 Heisk., 684; Knoxville v. Bell, 12 Lea, 157. 3. CONSTITUTIONAL LAW. Rule established by decisions is a general law of the land, and legislation suspending same for a particular municipality, without proper classification, Is unconstitutional. A uniform course of decisions, establishing the rule making every municipal corporation liable for injuries sustained by its negligent failure to maintain its streets, is a general rule of law, and the general law of the land; and a statute (Acts 1879, ch. 11, amended by Acts 1881, ch. 96), providing that the counties in which taxing districts are situated, and the taxing districts themselves shall not he liable for injuries to persons or property, by reason of defects in the streets or alleys, or other property under the control, and within said taxing districts, or for the conduct of those managing the affairs of such districts, which applied only to the city of Memphis, is invalid and void under the constitutional prohibition (art. 11, sec. 8) against partial legislation in favor of particular individual other than such as , may be able to bring himself within its provisions. (Post, pp. 337-340.) Acts cited and construed: Acts 1879, ch. 11; Acts 1881, ch. 96. Constitution cited and construed: Art. 11, sec. 8. Cases cited and approved: Budd v. State, 3 Humph., 483; Mayor, etc., v. Dearmon, 2 Sneed, 104; Knoxville v. Bell, 12 Lea, 157; Hatcher v. State, 12 Lea, 368; Williams v. Taxing District, 16 Lea, 531. 4. SAME. Population classification fixed under a certain federal census, without reference to future censuses, is vicious, and legislation abrogating a law in favor of municipalities created under such classification is unconstitutional. Where a statute (Acts 1879, ch. 11, sec. 22) provides that the several communities embraced in the territorial limits in all such municipal corporations as have had their charters abolished, or as may surrender the same, are created taxing districts, and that whenever any community under the government of a municipal corporation, having a population of less than 35,000 inhabitants according to the federal census of 1870, may desire to be governed by such act, the authorities of such corporation shall cause an election to be held, etc., the said statute (Acts 1881, eh. 96) abrogating a general law of the land in favor of a certain municipal corporation, under the name of taxing districts, is invalid and unconstitutional, because the classification under which other municipal corporations may subsequently come within its provisions or scope is inflexibly fixed by the population classification under the federal census of. 1870, and because it does not apply equally and alike to all municipalities then and thereafter having the requisite population, nor does it extend to or embrace all which may come into like situation and circumstances, for the reason that the classification is based solely upon the federal census of 1870, and is, therefore, arbitrary and vicious. (Post, pp. 340-342.) Acts cited and construed: Acts 1879, ch. 11, sec. 22; Acts 1881,' eh. 96.
126 Tenn. 343Cunningham v. Memphis Railroad Terminal Co. (1912)
1. EMINENT DOMAIN. Finality of appropriation of land as dissociated from litigated question as to amount of damages. The judgment for the appropriation of land in condemnation proceedings becomes final upon the confirmation of the report of the jury of view, and the payment of the assessment of damages, or upon the execution of the bond required by the statute, as the essential prerequisite preliminary to taking possession; and that part of the case is dissociated from the assessment of damages, -which may thereafter proceed as a separate litigation. (Post, pp. 347-356.) Code cited and construed: Secs. 1845, 1846, 1848, 1849, 1855, 1856, 1858-1861, 1863, 1865 (S.); secs. 1550, 1551, 1553, 1554, 1560, 1561, 1563-1566, 1568, 1570 (M. & Y.); secs. 1326, 1327, 1329, 1330, 1336, 1337, 1339-1342, 1344, 1346 (T. & S. and 1858). Cases cited and approved: Railroad v. Campbell, 109 Tenn., 640;, Water Co. v. Scott, 111 Tenn., 321; Memphis v. Hastings, 113 Tenn., 142; Snowden v. Shelby Co., 118 Tenn., 725. Cases cited and disapproved in part: Alloway v. Nashville, 88 Tenn., 510; Railroad v. Moggridge, 116 Tenn., 445; Snowden v. Shelby Co., 118 Tenn., 725. 2. SAME. At what time a nonsuit may be taken in condemnation cases. A nonsuit in a condemnation case under the eminent domain laws must he taken before the case has been finally submitted to the jury on a trial in the circuit court before the court and jury, and before the jury has retired to consider of its verdict; and there can he no nonsuit after the report of the jury of view has been confirmed without exception or appeal, and the land has been decreed to the petitioner; and where the appeal from the report of the jury of view to the circuit court goes to the question of damages only, and the report is in other respects confirmed, the land decreed to the petitioner, and a bond executed for the purpose of taking possession, the judgment of condemnation is final, and the petitioner cannot thereafter take a nonsuit. (Post, pp. 345-347, 356, 357.) Code cited and construed: Secs. 4689, 4691 (S.); secs. 3678, 3680 (M. & V.); secs. 2964, 2966 (T. & S. and 1858). 3. SAME. Abandonment, impracticability, or impossibility of the enterprise will not authorize nonsuit, when. After the report of the jury of view, hut before its confirmation, and before bond has been given in double the amount of damages found by the jury oi view, the petitioner may take a nonsuit, even though it has incidentally invaded the possession of the ■ defendant, if it has not taken possession under any order of court, where it is made to appear that the enterprise has become impracticable, and has been abandoned; but after the adjournment of the term of court at which the report of the jury of view was confirmed, without exception or appeal, and the land was decreed to the petitioner, and bond was given -as required by statute, it is too late for petitioner to withdraw, even where it is made to appear that the enterprise has been abandoned or has been impracticable or impossible. (Post, pp. 356, 357.) Case cited and approved: Stevens v. Duck River Navigation Co., 1 Sneed, 237, 244, 245. 4. NONSUITS. May be taken in jury and nonjury cases, when. A nonsuit cannot be taken after the jury has retired to consider of its verdict in a jury case, or after the cause has been finally submitted to the court, in a case tried before the court without the intervention of a jury. (Post, p. 356.) Code cited and construed: Secs. 4689, 4691 (S.); secs. 3678, 3680 (M. & V.); secs. 2964, 2966 (T. & S. and 1858). Case cited and approved: Railroad v. Sansom, 113 Tenn., 683.
126 Tenn. 359Hicks v. State (1912)
1. CRIMINAL LAW. Accomplice must be corroborated both as to commission of crime and identity of the accused. Tie corroboration of tie testimony of an accomplice, essential to support a conviction, must be not only as to tie commission of tie crime, but as to tie identity of tie accused as tie party who committed it. {Post, %>. 362.) 2. SAME. Requisites to constitute an accomplice; mere presence, without more, does not. Tie mere presence of one wben a crime is committed does not make bim an “accomplice”. To make one an accomplice, tiere must be proof tiat be knowingly, voluntarily, and witi common intent, united with tie principal offender in tie commission of tie crime. (Post, pp. 362, 363.) Cases cited and approved: Harris v. State, 7 Lea, 124'; Pariam v. State, 10 Lea, 498; Clapp v. State, 94 Tenm, 194, 3. SAME. Court may charge witness to be an accomplice, if he so confesses; otherwise it is a question of fact for jury; burden to show. Where a State’s witness confesses in his testimony to a criminal participation in the offense, the court may charge that he is an accomplice, and that no conviction can he had without corroboration of his testimony; but, where the witness denies all criminal connection with the crime committed, the question whether he is an accomplice is one of fact to be submitted to the jury, under proper instructions, the burden of proof being on the party asserting that he is an accomplice to prove by a preponderance of the evidence the guilty connection of the witness; and, where the jury find the witness to be an accomplice, they must apply, the rule requiring corroboration, otherwise bis testimony must be given the same weight as that of other witnesses. (Post, p. 363.) 4. SAME. Whether witness is an accomplice is for jury; verdict of guiity upon his uncorroborated testimony is a finding that he was not an accomplice. Where, on a trial for burglary of a store, a State’s witness, a brother-in-law of the accused, testified that, on the night of the burglary, the accused requested the witness to go with him (the accused), to the home of a third person; that when they came to the store, the accused stopped and stated his intention to burglarize it; that the witness urged him not to do so; that the accused required the witness to remain by threats of violence; that the witness went across the road from the store; that he there saw the accused commit the crime; and that he did not participate in the crime, or receive any of the stolen property, the question whether the witness was an accomplice was for the jury; and, by the verdict of guilty, it was found that such witness had no guilty connection with the crime, and such finding authorized the conviction on his uncorroborated testimony. (Post, pp. 361-364.)
126 Tenn. 365Harness v. State (1912)
1. JUDGES. The failure of a special judge to take the dueling oath is a harmless error not affecting the merits, and is no cause for reversal. The failure of a duly elected special judge, trying a criminal case, to take the dueling oath prescribed by statute (section 1073 of Shannon’s Code), where he takes the oath prescribed by statute (section 5731 of Shannon’s Code) for special judges that he would “administer justice without respect to persons, and do equal rights to the poor and rich,” etc., is no ground for reversal, because such failure does not affect the merits. Code cited and construed: Secs. 1073, 5730-5732 (S.); secs. 940, 4695-4697 (M. & V.); secs. 5930a-5930d (T. & S.); sec. 752 (T. & S., and 1858). Case cited, distinguished, and approved: Low v. State, 111 Tenn., 81. 2. REVERSALS AND NEW TRIALS. Not granted for errors not affecting the merits; statute enacting court rule into law. The long settled practice of the supreme court not to reverse cases and grant new trials for errors not affecting the merits is strengthened and confirmed by the statute (Acts 1911, ch. 32) prohibiting the grant of new trials by appellate courts “for any error in any procedure . . . unless it shall affirmatively appear that the error complained of has affected the results of the trial.” This statute merely enacts into law the former practice of the supreme court, and will be enforced, unless fundamental or constitutional rights of parties litigant are violated. (.Post, pp. 367, 368.) Acts cited and construed: Acts 1911, ch. 32.
126 Tenn. 370Virginia-Tennessee Hardware Co. v. Hodges (1912)
1. PRACTICE. Our courts are not bound by precedents of other States, but may adopt the best and most conducive to justice. On points of practice wholly new in this State, the supreme court, in establishing the practice to he followed here, is not' hound to follow the precedents of other States, hut exercises the unquestionable right of choosing what may seem to it to he the best practice, and that most conducive to the attainment of justice; and while foreign precedents should not be lightly disregarded, yet less hesitancy is felt in declining to follow them on a point of practice than one involving a question of substantive law. (Post, pp. 374, 375.) 2. SAME. Both parties moving for peremptory instructions, and the denial thereof, does not operate to withdraw case from jury and to submit questions of fact to trial judge. Where both parties move for peremptory instructions, the trial judge, if satisfied there is a conflict in the evidence, should1 refuse both motions, and submit the ease to the jury, with general instructions as a case unfit for peremptory’ instructions; for such motions, when the trial judge is of the opinion both should be denied, do not operate as an agreement for the withdrawal of the case from the jury, and for a submission of the determination of the disputed questions of fact to be made by the trial judge, but only as a submission of the question of law, and, as a preliminary thereto, a submission of the question whether a conflict in the evidence exists. (Post, pp. 373, 374, 375-377.) Oases cited and approved: Wolf v. Printing Co., 233 III., 501; Banks v. Bates Imp. Co., 121 Iowa, 432; Stauff v. Bingenheimer, 94 Minn., 309; Thompson v. Brennan, 104 Wis., 564; Cash Reg. Co. v. Bonneville, 119 Wis., 222; Taylor v. Wooden, 30 Okl., 6. 3. SAME. Same. Effect of moving for peremptory instructions by both parties; but denial of motions does not withdraw case from jury. The party moving for peremptory instructions thereby asserts his belief that there is no conflict in the evidence on any substantial or material point, and insists that the law is with him on such undisputed evidence; and it is equally true that his adversary, making a similar motion, *is in the attitude of making the same claim in his own behalf, both as to facts and law. They are both, then, in the attitude of saying there is nothing but a question of law involved; that is the law of the case as applicable to the undisputed facts. But their assertions are mere expressions of opinions, and do not amount to an agreement as to the facts, so as to withdraw the case from the jury, and submit the same to the trial judge, in case both motions are denied. (Post, pp. 375-377.) Case cited and approved: Tyrus v. Railroad, 114' Tenn., 579. 4. SAME. Effect and treatment of motions for peremptory instructions, when made by both parties. Where both parties move for peremptory instructions, the motion of each party should be treated for what it is, a matter wholly distinct from and adverse to that of his adversary. Neither is put in a worse position, so far as concerns his ultimate right of review, by his adversary’s making a similar motion. Such motion should stand as if made and remaining alone, and should be disposed of on its-own merits. The only question submitted to the trial judge is the question of law; as a necessary preliminary to responding to this question, he must determine whether there is any substantial conflict in the evidence; if he finds such conflict, or undisputed evidence from which conflicting inferences may reasonably be drawn, on material points, he should submit the case to the jury; if he is of the opinion that there is , no such conflict, he should sustain the motion of-the one party or of the other, according to his view, of the facts and the law. (Post, p. 378.) 5. SAME. Review of action of trial judge upon motions for peremptory instructions, made by both parties. Where both parties move for peremptory instructions, the party whose motion therefor has been overruled may have the action of the trial judge reviewed on appeal, without the necessity of asking the submission of any special question or questions to the jury; and on such appeal, he may attack the action of the trial judge, in overruling his motion and in sustaining that of his adversary, and may put forward his contention of the facts and assail that of his adversary; and the appellate court will, for itself, ascertain the facts, and will determine whether the trial judge should have sustained the one motion or the other, or should have submitted the case to the jury. (Post, p. 378.)
126 Tenn. 380Siler v. Perkins (1912)
1. PRINCIPAL AND AGENT. Personal liability of agent of undisclosed principal for services rendered by an employed agent. Where the defendants, owning a part of the stock of a corporation, employed the complainant to procure a purchaser for all the stock therein, without disclosing to him the other owners, except that “a man in Ohio” owned some of the stock, which was not a disclosure of their such principal, and it does not appear who the other owners were, if any, hut it does appear that the defendants were assuming to act for all the owners, and that, pursuant to the negotiations conducted by the complainant, they sold and delivered the entire capital stock of the corporation, the defendants are personally liable to the complainant for compensation for his such services. (Post, pp. 385, 386.) 2. SAME. Agent contracting for a disclosed principal does not bind himself personally, unless there is a disclosed intention so to bind himself. While it is generally true that an agent who, acting within the scope of his authority, enters into contractual relations for a disclosed principal, does not bind himself, in the absence of an express agreement to do so, yet it is also true that whether such agent does, by such transaction, bind himself depends on the intention of the parties, which must be gathered from the facts and circumstances of each particular case; and it is the disclosed intention, and not some hidden intention of the agent, that governs; and' hence an agent may become personally liable, although contrary to his actual intention, if he has hound himself by the terms of the contract. (Post, pp. 386, 387.) 3. SAME. Agent contracting in his own name without disclosing his principal is personally liable, though it is known that he is agent, when. An agent who makes a contract in his own name, without disclosing the name of his principal, renders himself personally liable, even though the person with whom he deals knows that he is acting as agent, unless it affirmatively appears that it was the mutual intention of the parties that the agent should not be bound. (Post, p. 387.) Case cited and approved: Davis v. McKinney, 6 Cold., 17. 4'. SAME. Contract with a known agent for a known principal is the principal’s contract, and the agent is not personally liable, when. Where a third person contracts with an agent, knowing that he is an agent, and also with knowledge of the principal for whom the contract is made, the contract, if within the scope, of the powers of the agent, is in law the contract of the principal, and the agent is not bound, unless, in making the contract, the third party gave credit expressly and exclusively to the agent, and it was clearly the intention of the agent to become personally liable. (Post, pp. 387, 388.) Case cited and approved: Bailey v. Galbreath, 100 Tenn., 602. 5. ATTACHMENT. Agents and trustees, giving bond for release of impounded property held for their principals, cannot escape liability, because not personally liable on contract sued on. Where the defendants, owning part of the stock of a corporation, employed the complainant to procure a purchaser for all the stock, anil the complainant, having procured such purchaser, sued the defendants as individuals, and also as agents and trustees of all the' shareholders, for his compensation, and by injunction and attachment writs impounded a part of the purchase money indebtedness secured by a deposit of the stock as collateral, whereupon the defendants, to discharge these writs, executed their individual bond to pay any recovery which complainant might obtain, it was held that the defendants, having procured the release of the fruits of the complainant’s labor, which they held as agents and trustees for all the stockholders, could not be heard to say that they were not personally liable, and that the suit should be against their principal. (Post, pp. 388, 389.) 6. SAME. Same. Decree need not show ground of personal liability of agents In such case, when. Under the circumstances disclosed in the preceding headnote, it was not necessary for the decree to show whether the defendants were held liable individually, as agents dealing for an undisclosed principal, or as agents and trustees having all of the capital stock within their possession and control, with full power to a'ct in the premises, and as having contracted for and obtained the services of the complainant to effectuate a sale thereof. (Post, pp. 389, 390.) 7. BFfOKERS. Compensation for bringing parties together where they consummate trade, with changes, in absence of broker, when. Where, as a result of a broker’s efforts, the parties were brought together and- a sale was effected, he was entitled to compensation, although some changes were made in the details of the trade, and although he was not present at the actual consummation of the trade and delivery of the property, where he was told by one of his principals that there was nothing further he could do in the premises. (Post, pp. 390, 391.) Cases cited and approved: Parker v. Walker, 86, Tenn., 567; Gilchrist v. Clark, 86 'Tenn., 583; Cheatham v. Yarbrough, 90 Tenn., 77; Woodall v. Foster, 91 Tenn., 195. 8. SAME. Accepting employment from adverse party, without consent, forfeits compensation, when; but this case does not fall within the rule. Where a broker, employed to effect a sale, without the full knowledge and consent of his principal, accepts employment from the parties to whom the sale is made, to act for them in the same matter, he is not entitled to recover compensation from his original principal, if the defense is relied on. However, in this case, no such inconsistent employment was accepted. (Post, pp. 391, 392.) Cases cited and approved: Perkins v. McGavock, 3 Hay., 265; Hadley v. Latimer, 3 Yerg., 537; Coffee v. Ruffin, 4 Cold., 487; Moinett v. Days, 1 Bax., 431; Tynes v. Grimstead, 1 Tenn. Chy., 508; Raht v. Mining Co., 5 Lea, 1. 9. SAME. Does not forfeit compensation by effort to add that much to price, by authority of principal, when. Where a seller, in order to delude a purchaser as to the amount of commissions included in the price of property offered for sale, authorized the broker, by a letter to be shown to the purchaser, to deal with the purchaser for additional sum as his compensation, the broker’s showing of such letter to the purchaser was not such had faith on his part as precluded him from recovering compensation from the seller, nor were other small matters not prejudicially affecting the interest of the defendants, especially where complainant was never in any respect disloyal to their interests. (Post, pp. 392, 393.)
126 Tenn. 394Hamblin v. State (1912)
1. CRIMINAL LAW. No reversal for failure of minutes to show that special judge elected by bar was in attendance, nor for failure of clerk to sign such minute entry, when. Where the record showed that the regular judge was incompetent, because, as attorney-general before his election as judge, he signed the indictment charging the accused with crime, and that, on account of his such technical incompetency, he vacated the bench, whereupon the clerk of the court opened and held an election at which the members of the bar, present and resident of the State, voted, and that a certain person was, by a majority vote of such attorneys, elected special judge to preside at the trial of the case, the verification of the minute entry as to such election, made by the signature of the regular judge instead of that of the clerk of the court, and the failure of such entry to recite that the attorney so elected as special judge was in attendance on the court at the time of his election, were mere irregularities, not affecting the substantial rights of the accused, constitute no ground for reversal, and must he disregarded under our statutes, especially where neither the validity nor regularity of the election was questioned in the trial court, as in any way affecting the fairness and impartiality of the trial. Code cited and contrued: Sec. 6351 (S); sec. 5268 (M. & V.); sec. 4513 (T. & S. and 1858). - Acts cited and contrued: Acts 1911, ch. 32. Oases cited and approved: Wilson v. State, 109 Tenn., 167; Harness v. State, 126 Tenn., 365, 368, 369, explaining and limiting Low v. State, 111 Tenn., 81, to its facts. 2. SAME. No reversal for technical errors not affecting the merits, where no substantial right was violated. No reversal w.ill be made in any case for technical errors not affecting the merits, unless some substantial right of the accused guaranteed to him by the statutes or the constitution was violated; for the supreme court will not permit an offender to escape through mere irregularities and technicalities, nor even through errors which it can see have not operated to the prejudice and hurt of the defendant. (Post, pp. 399, 400.) Code cited and construed: Sec. 6351 (S); sec. 5268 (M. & V.); sec. 4516 (T. & S. and 1858). Cases cited and approved: Wilson v. State, 109 Tenn., 167; Harness v. State. 126 Tenn., 365. 3. SAME. Innocent shall not suffer for want of a fair trial, nor shall guilty escape through mere irregularities or technicalities. While it is the duty of the supreme court to see that no innocent defendant shall suffer for want of a fair trial, it is' also its duty at the same time to see that no guilty defendant shall escape through a mere irregularity or technicality which does not and cannot affect the merits, which, in every criminal case, is the guilt or innocence of the accused. (Post, p. 400.) ■Code cited and construed: Sec. 6351 (S.); sec. 5268 (M. & Y.); sec. 4516 (T. & S. and 1858). Case cited and approved: Wilson v. State, 109 Tenn., 167. 4. SAME. Statute forbidding reversals except for errors affecting result must be given effect, except where it invades constitutional rights. , The statute (Acts 1911, ch. 32), forbidding the supreme court’s reversal of any case, criminal or civil, for any error in the proceedings below, unless it is made affirmatively to appear that the errors complained of affected the result, must be given effect, unless it invades some constitutional right of the accused. (Post, p. 400.) Acts cited and construed: Acts 1911, cb. 32. Case cited and approved: Harness v. State, 126 Tenn., 365.
126 Tenn. 402South Knoxville Brick Co. v. Empire State Surety Co. (1912)
1. EMPLOYER’S LIABILITY INSURANCE. Tramway is not a railroad in sense of application for policy stating that assured did not operate a “railroad”. A tramway upon which small cars were operated to haul dirt up from the pits to the plaintiff’s brick-making machinery, which cars were run by gravity, except for a short distance, where cables were sometimes used, did not constitute the operation of a “railroad,” within the meaning of an application for an employer’s liability policy, which stated that the assured did not operate a railroad on its premises. (Post, p. 406.) 2. SAME. Same. Such tramway is not incuded in words “draught or driving animal or vehicle”. The tramway described in the preceding headnote would not be included in the provision of the policy therein described, exempting the insuring company from liability for accidents “caused by any draught or driving animal or vehicle, or any person in charge thereof.” (Post, p. 406.) 3. SAME. Construction of policy rendering insuring company liable for counsel fees and expenses in assured’s successful defense against an action for an accident. Under an employer’s liability policy providing that, if an action is thereafter brought against the assured to enforce a claim for damages for an accident covered by the policy, the assured shall immediately forward to the insuring company’s office every summons or other process served upon him, and that the insuring Company will, at its own cost, defend such suit on behalf of the assured, unless it elects to settle the same, or to pay the assured ihe maximum indemnity provided by the policy, it was held that if the insuring company refused to defend an action against the assured for personal injuries to an employee, and refused to pay the said indemnity so provided for in the pokey, it is liable to the assured for the necessary costs, expenses, and counsel fees incurred by the assured in a successful defense against such action. {Post, pp. 407-409. 4. SAME. Provisions binding insurer to defend “any suit” against assured covered by policy does not limit insurer’s liability to meritorious suits. A provision in an employer’s liability policy, binding the insuring company to defend “any suit brought against the assured to enforce a claim for damages on an account of an accident covered by this policy,” did not limit the insuring company’s liability to meritorious claims, and such company could not defeat the assured’s action for his necessary expenses and counsel fees incurred by him in successfully defending an employee’s action for personal injuries, upon the ground that the employee’s said action was without merit. {Post, pp. 409, 410.) 5. SAME. Insurer cannot by limiting liability to actual losses paid after judgment avoid1 liability for necessary expenses and counsel fees incurred by assured in successful defense of suit covered by policy. Where an employer’s liability policy provides that, “No action shall lie against the company to recover for any loss under this policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue,” this provision, when read in connection with other provisions, refers to losses sustained under suits, the defense of which had been undertaken by the insuring company; and the insuring company is not released from liability by reason of such provision, and the assured may recover from such company the necessary expenses and counsel fees incurred by him in his successful defense to a suit for an accident covered by the policy, where such company breached its contract in refusing to defend such suit. {Post, pp. 410-414.) Case cited and approved: St. Louis Dressed Beef & Packing Co. v. Maryland Casualty Co., 201 U. S., 173.
126 Tenn. 415Dunlap v. State (1912)
1. BIGAMY. Burden is on State to prove beyond a reasonable doubt the death of the former spouse. In the prosecution of a man for bigamy, the burden of proof is upon the State to prove, beyond a reasonable doubt, by direct or circumstantial evidence, that the former wife of the accused was living at the time of his second marriage. (Post, pp. 419-426.) Code cited and construed: Sees. 6760-6762 (S.); secs. 5649-5651 (M. & V.); secs. 4839-4841 (T. & S. and'1858). Cases cited and approved: Parker v. State, 77 Ala., 47; Squire v. State, 46 Ind., 459. Case cited and distinguished: Crane v. State, 94 Tenn., 94. 2. SAME. Presumption of innocence overcomes presumption of continuance of life of the former spoqse. The presumption of the continuance of life of the former spouse is neutralized or overcome by the presumption of innocence of the accused charged with bigamy. The law makes no presumption either way in such cases. (Post, pp. 420-422.) Code cited and construed: Secs. 6760-6762 (S.); secs. 5649-5651 (M. & V.); secs. 4839-4841 (T. & S. and 1858). Cases cited and approved: Rex v. Twying, 2 B. & Aid., 386; Regina v. Willshire, Q. B. D., 366; Regina v. Lumley, Law Rep., 1 C. C. Res., 196; Commonwealth v. McGrath, 140 Mass., 296; Squire v. State, 46 Ind., 459. Case cited and distinguished: Crane v. State, 94 Tenn., 94. 3. SAME. No presumption that former spouse was living at second marriage, from fact of living four and a half years before trial. In a prosecution for bigamy, it cannot be presumed that the former spouse of the accused was living at the time of the marriage charged to be bigamous, from the fact that the former spouse was alive four and one-half years before the trial occurring about a year after the alleged bigamous marriage. (Post, pp. 422-426.) Case cited and approved: People v. Feilen, 58 Cal., 218. 4. SAME. Evidence insufficient to show former spouse to be living at time of alleged bigamous marriage. ' In a prosecution for bigamy, the evidence is stated, reviewed, and held to be insufficient to show that the former wife of the accused was living at thé time of his alleged bigamous marriage.
126 Tenn. 427Miller v. Park City (1912)
1. MUNICIPAL BONDS. Prohibition of sale under par Is not violated by a sale at par with an allowance for attorney’s fee and expenses. The prohibition of an enabling act (Private Acts 1911, eh. 127) against the sale of funding and street improvement bonds of a certain municipal corporation at less than par clearly forbids a sale of the bonds at less than par, and deprives such city of the power to sell such bonds at less than par; and par value means what the words signify, and no definition of the phrase can make its meaning plainer; but said prohibition was not violated by a sale of bonds of the par value of twenty-five thousand dollars at their par value, and accrued interest, though an allowance of one thousand dollars for attorney’s fees, and the amount of other expenses incident to the sale, such as printing and lithographing the bonds, postage, etc., was made to the purchaser, especially where it does not appear that the allowance was a subterfuge to cover an unlawful sale. 2. SAME. Bill for injunction against their sale is too late, where the sale has been consummated. A bill to enjoin the sale of municipal bonds is too late, where it is filed alter the bonds have been sold and delivered to- the purchaser, and the purchase price has been paid. (Post, p. 431.) 3. SAME. Same. Bill for personal judgment agafnst nonresident purchaser must be dismissed, if jurisdiction over him has not been acquired. In.so far as a bill to enjoin the sale of municipal bonds seeks a personal judgment against the purchaser, a nonresident, it must be dismissed, if the court has not acquired jurisdiction over him. (.Post, p. 431.) Í. SAME. Action against a committee for their unlawful sale lies in favor of city, and not taxpayers, when. The right of action, if any, against the members of a committee of a city council, for breach of its duty, in making' an unlawful sale of the city’s bonds, lies in favor of the city, and not in favor of the public at large; and hence a suit does not lie by citizens and taxpayers for the benefit of themselves and all other citizens and taxpayers, especially where the city has not declined to bring suit upon such alleged liability, and such complainants have not requested it to do so. (Post, pp. 431, 432.) , 5. SAME. City council may appropriate city’s general funds to reimburse bond fund for expenses of bond sale deducted. Where a city has sold its funding and street improvement bonds at par, according to an enabling act, but allowing the purchaser to deduct the amount expended for legal services "and other expenses incident to the issuance and sale of the bonds, the city council can properly appropriate from the city’s general funds a sum sufficient to reimburse such bond fund on account of such deductions. (Post, pp. 433, 434.)
126 Tenn. 435Smith v. United States Fire Insurance (1912)
1. EXECUTIONS. Lien attaches only to personalty in county to which execution Is issued. The lien of an execution attaches only to the execution debtor’s personalty in the county to which the execution is issued. (Post, pp. 438-440.) Cases cited and distinguished: Berry v. Clements, 9 Humph., 312; Cox v. Hodge, 1 Swan, 371; Cecil-v. Carson, 86 Tenn., 139. 2. SAME. No lien, at common law, on debtor’s choses in action; but statutory lien on choses in action of corporations. The issuance of an execution does not, at common law, fix a lien upon the debtor’s choses in action; but this rule has beeen changed, in this State, by statute (section 4765 of -Shannon’s Code), as against corporations. (Post, p. 440.) Code cited and construed: Sec. 4765 (S.); sec. 3750 (M. & Y.); sec. 3037 (T. & S. and 1858). Case cited and approved: Hillman v. Moore, 3 Tenn. Chy., 461. 3. SAME. Choses in action and those of corporations alone may, by legislation, be made subject to levy of execution. The legislature may make choses in action subject to levy under execution, and may make the choses in action of corporations alone subject to levy. (Post, p. 440, 441.) Code cited and construed: Sec. 4765 (S.); sec. 3750 (M. & V.); see. 3037 (T. & S. and 1858). 4. SAME. Lien on choses in action of corporations without registration of memorandum of judgment. The staute (section 4713 of Shannon’s Code), providing that an execution shall not bind the debtor’s legal or equitable interest in stock, choses in action, or other personal property, not liable at law, unless a memorandum of the judgment is registered within sixty days from its rendition in the county where the debtor resides, or, if he be a nonresident, then in the county where the property is, does not apply to the choses in action of corporations, because they are rendered liable to levy of execution by section 4765 of Shannon’s Code, and the registration requirement applies only to “choses in action or other personal property not liable at law” to execution; and an execution against a corporation, without registration of a memorandum of the judgment, fixes a lien on its choses• in action, just as if they were “goods and chattels.” (Post, pp. 441, 442.) Code cited and construed: Secs. 4713, 4765 (S.); secs. 3699, 3750 (M. & V.); secs. 2985, 3037 (T. & S. and 1858). 5. SAME. Lien on personalty and choses in action of a corporation by receiver's confusion of proceeds thereof, when; remandment and references to ascertain identity of funds. Where an execution lien was fastened upon the personalty and choses in action of a corporation in the county to which the execution was issued while it was a going concern, but the execution was wrongly returned “nulla tona,” after which a general creditors’ insolvency bill was filed against the corporation and a receiver appointed, and said judgment creditor intervened and sought priority of payment in the distribution of its assets, upon the ground of said lien, which the receiver sought to defeat by the contention that the proceeds of the property of the corporation located in said county and that located elsewhere had become inextricably confused in the receiver’s hands, so that such proceeds could not then he identified and subjected to the said lien, but it was held that no insuperable difficulty in identifying the proceeds of the property affected by the lien could be perceived, and that there was none, if the receiver had properly kept his accounts; and the cause was remanded with directions for á reference for said purpose. (Post, pp. 437, 438, 442.)
126 Tenn. 443Mechanics' Bank & Trust Co. v. Hood (1912)
1. GUARANTY. Guarantor of payment of note is secendarily liable, and binding extension of payment given to maker of note, without guarantor’s assent, releases him. An accommodation guaranty of the payment of a note, indorsed tkereon, with, the knowledge of the discounter and holder of the note, though absolute in form, binds the guarantor to pay the note, upon the default of the maker, and his liability is secondary within the meaning of our Negotiable Instruments Law .(Acts 1899, ch. 94, sec. 120), providing that a person “secondarily liable” is discharged by a binding agreement expending the time of payment, without his assent, and such extension of the time of payment given by the holder to the maker of such guaranteed. note discharges such guarantor not assenting thereto. Acts cited and construed: Acts 1899, ch. 94', secs. 119, 120. 2. SAME. Same. Definition of primary and secondary liability on an instrument has reference to such instrument, and not a guaranty of the payment of the same, indorsed thereon or written on a separate paper. The general provision prefixed to our Negotiable Instruments Law (Acts 1899, eh. 94) that the person primarily liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same, and that all other parties are secondarily liable, has reference to the face of the instrument, as apparent from the expression, “the terms of .the instrument,” and not to contracts referring thereto, which may appear elsewhere; and not even to a guaranty of the payment of a note, whether indorsed thereon or written on a separate piece of paper; and such provision creates no primary liability, but only a secondary liability, in connection with sections 119 and 120 of said statute. Acts cited and construed: Acts 1899, ch. 94, secs. 119 and 120. Oases cited and approved: Taylor v. Ross, 3 Yerg., 330; Hunter v. Dickinson, 10 Humph., 37; Klein v. Kern, 94 Tenn., 34; Banking Co. v. Hall, 119 Tenn., 548; Bank v. Bellamy, 19 N. D., 509.
126 Tenn. 449Wattles v. Foster (1912)
1. APPEALS. Appeal from decree in suit to set aside agreement among beneficiaries under a will lies to court of civil appeals. An. appeal from a decree sustaining a demurrer to a bill filed for the primary purpose of setting aside an agreement, made among the beneficiaries of a will, as to the distribution of the testator’s estate, should be taken to the court of civil appeals, and not to the supreme court. (Post, pp. 450, 451.) Acts cited and construed: Acts 1907, ch. 82. Cases cited and approved: State ex rel., v. Corum, 123 Tenn., 394; Chattanooga v. Railroad, 123 Tenn., 497; Morris v. Railroad, 124 Tenn., 524. 2; SAME. Where supreme court inádvertently assumes appellate jurisdiction that properly belongs to the court of civil appeals, its judgment thereunder is binding. Where, through inadvertence the supreme court assumed jurisdiction of an appeal or writ of error that should have been taken to the court of civil appeals, and passed a decree in such case, its such decree, although erroneous, was not void, but conclusive on the parties and their privies, and binding on all the world. (Post, pp. 451, 452.) Acts cited and construed: Acts 1907, ch. 82. Cases cited and approved: Skillern v. May, 6 Cranch, 267; McCormick v. Sullivant, 10 Wheat., 192; Navigation & Railroad Co. v. Iowa Homestead Co., 123 U. S., 552; Dowell v. Applegate, 152 TJ. S., 327. 3. SAME. Supreme court’s inadvertent assumption of appellate jurisdiction that properly belongs to court of civil appeals does not preclude its transfer of the case to that court upon second appeal. Where the supreme court inadvertently assumed jurisdiction of an appeal from a decree upon a demurrer, and passed a decree, and remanded the case for answer, it was not thereby precluded, upon a second appeal, from transferring the case to the court of civil appeals, under the statute (Acts 1909, ch. 192) authorizing such transfer. {Post, v. 451.) Acts cited and construed: Acts 1909, ch. 192.
126 Tenn. 453Citizens' National Bank v. Watkins (1912)
1. TRUSTS AND TRUSTEES. Trust deed imposing active duties upon the trustee creates an active trust. Where a deed conveyed land in trust for the benefit of the grantor for life, and then for others, requiring the trustee to keep the property in repair, collect rents-, pay taxes and insurance, and, at the death of the grantor, to convey the land to the grantor’s daughter, if living, and if not living, then imposing certain other active duties upon the trustee, or his successor, in respect of the land, such deed created an active trust. (Post, pp. 455-457.) Cases cited and approved: Jourolmon v. Massengill,. 86 Tenn., 81; Henson v. Wright, 88 Tenn., 501. 2. SAME. Estate of cestui que trust under an active trust is an equitable one; and may be reached by judgment creditors, when. Where trust deed creates an active trust, the estate of the cestui que trust is a permanent equitable estate, which can he reached only by a judgment creditor, where the deed is valid and there is no fraud. (Post, p. 457.) Case cited and approved: McKeldin v. Gouldy, 91 Tenn., 677. 3. FRAUDULENT CONVEYANCES. General creditors may subject land conveyed in trust for grantor’s benefit in fraud of creditors. Where a deed conveying land in trust was a fraudulent conveyance, or merely a device to hinder and delay the grantor’s creditors-, an existing or subsequent creditor, whether with or without judgment, may file his bill in chancery and subject the land to the satisfaction of his debt, as provided by section 6097 of Shannon’s Code. (Post, pp. 457, 458.) Code cited and construed: Sec. 6097 (S.); sec. 5031 (M. & V.); sec. 4288 (T. & S. and 1858). Cases cited and approved: August v. Seeskind, 6 Cold., 166; Brooks v. Gibson, 7 Lea, 271; Menkin v. Brinkley, 94 Tenn., 721. 4. SAME. Deed creating trust for benefit of grantor is void upon its face, as to his creditors who may subject the land by bill in ohancery, without other proof of fraud. Where the absolute owner of the legal title and beneficial use of certain land conveyed the same to his brother by name, in trust to keep the property in repair, collect the rents, pay the taxes and insurance, and to pay the remainder of the income to the grantor, during his life, and, at his death, to convey the land to the grantor’s daughter in fee, if living, and, if not then living, then imposing certain other active duties upon the trustee and his successor, such deed evidenced,' on its face, an illegal scheme to hinder and delay creditors, and was invalid as to them, and such land may be subjected to the payment of the grantor’s debts by a chancery bill alleging that the conveyance was fraudulent, and was made for the purpose of hindering and delaying creditors, without any further proof of the fraudulent arrangement than the terms of the instrument itself. {Post, pp. 458-460.) Code cited and construed: Sec. 6097 (S.); sec. 5031 (M. & V.); sec. 4288 (T. & S. and 1858). Cases cited and approved: Menkin v. Brinkley, 94 Tenn., 721; Nolan v. Nolan, 218 Pa., 135; Sargent v. Burdett, 96 Ga., Ill; Petty v. Sanitarium, 110 Va., 815.
126 Tenn. 461Littleton v. Sain (1912)
1. SEPARATE ESTATE. Debts charged thereon by married woman does not authorize subjection of funds appearing to be a general estate. A fund cannot be subjected to the payment of a note, made by defendant during her coverture, for the payment of which she bound her separate estate, where it appears that such fund was a part of her general estate, and not a part of her separate estate, and where the coverture was pleaded as a defense. IPost, pp. 463, 465, 466.) 2. ACCIDENT LIFE INSURANCE. Membership in fraternal order bound to pay a certain sum upon member’s death constitutes accident life insurance', when. Membership in a fraternal order, evidenced by a certificate binding the order to pay a specified sum upon the member’s death resulting from accident, and entitling the member to , change his beneficiary, constitutes an insurance on his life in the event of death by accident. (Post, pp. 463, 464.)' Cases cited and approved: Weil v. Trafford, 3 Tenn. Chy., 108; Lodge v. Ladd, 5 Lea, 721; Catholic Knights v. Kuhn, 91 Tenn., 214. 3. SAME. Member’s designation of wife as beneficiary in a benefit certificate in a fraternal order, subject to change of beneficiaries, does not create a vested or separate estate in her. Where a member in a fraternal order designated his wife as beneficiary in his membership certificate, providing for the payment of a certain benefit upon the death of the member by accident, and entitling the member to change the beneficiary, such beneficiary has no vested interest in the fund represented by the certificate until the death of the member, and there was no separate estate created in the fund. (Post, pp. 464, 465.) Cases cited and approved: Weil v. Trafford, 3 Tenn. Chy., 108; Lodge v. Ladd, 5 Lea, 721; Catholic Knights v. Kuhn, 91 Tenn., 214; Trust Co. v. Bank, 123 Tenn., 617. 4. SEPARATE ESTATE. Creation of equity for benefit of married women; existence only during coverture; suspension during dis-coverture; but revivor upon .remarriage, when. A married woman’s separate estate is a creation of equity, devised for her protection and “to evade the harsh and unjust dogmas of the law” with respect to the rights of her husband over her property; and her separate estate exists only during coverture, and is suspended by discoverture, but revives upon her remarriage, unless defeated, during the intermediate period, by her disposition of the property. (Post, p. 465.) Cases cited and approved; Beaufort v. Collier, 6 Humph., 492; Pooley v. Webb, 3 Cold., 603; Hughey v. Warner, 124 Tenn., 728. 5. SAME. Fund not previously vested, but created by death of husband, is not separate estate, but general estate, when. Where, by reason of contingencies, a wife’s interest in a fund derived from a benefit certificate issued, by a fraternal order, to her husband, did not become vested until his death, such fund was a part of general estate, and not a part of her separate estate, since the same event (her husband’s death), which gave her vested interest in the fund also terminated her coverture. (Post, p. 465.)
126 Tenn. 467Burkett v. Studebaker Bros. Manufacturing Co. (1912)
1. NEGLIGENCE. Liability of manufacturer for injuries resulting from defects in goods put upon the market, with knowledge, and without notice. As a general rule, the manufacturer is not liable for injuries sustained by the purchaser of his goods from an intermediate dealer, for want of privity between the parties, unless the manufacturer put apparently safe goods on the market, with knowledge of the defect therein, and without notice of the defect, or unless the goods are of such kind as to be immediately dangerous to human life or'health, when he becomes liable to any one into whose hands the article falls, and who is injured' while using it properly. {Post, pp. 472, 473.) Cases cited and approved: 'Huset v. Case, etc., Co., 120 Fed., 865; Knelling v. Manufacturing Co., 183 N. Y., 78; Tomlinson v. Armour, 75 N. J. Law, 748; Hasbrouck v. Armour, 139 Wis., 357; Statter v. Manufacturing Co., 195 N. Y., 478; Laudeman v. Russell, 46 Ind. App., 32; Ward v. Pullman Co., 138 Ky., 554; Pullman Co. v. Ward, 143 Ky., 727; Olds Motor Works v. Shaffer, 145 Ky., 616; Peaslee-Gaulbert Co. v. McMath, 148 Ky., 265. 2. SAME. Nonliability of manufacturer of goods for Injuries resulting from defects, where same were purchased through intermediate dealer, without participation by manufacturer; public policy forbids liability. Where, the defendant manufacturer of a carriage wrote to the plaintiff’s husband, who was negotiating with a certain dealer for the purchase of a carriage, stating he used the best material throughout in the construction of his carriages, and that he trusted plaintiffs husband would give said dealer his order; and where plaintiffs husband subsequently purchased through another dealer a carriage manufactured by such manufacturer, who had no knowledge of the negotiation with the other dealer until the carriage was ordered; and plaintiff was subsequently injured through defects in the carriage, it was held that conceding the possible liability of the manufacturer, if, the purchase had been made through the said first mentioned dealer, upon the theory that the manufacturer aided in making the sale, he could not be held so liable where the sale was made through the other dealer, in whose negotiations the manufacturer did not participate. Public forbids such liability of manufacturers. {Post, pp. 473, 474.)
126 Tenn. 475Heiskell v. Lowe (1912)
1. ELECTIONS. Only one publication of campaign and election expenses in Knoxville elections, and that after final statement, and within thiree days after election. A statute (Private Acts 1911, ch. 498, see. 30), requiring every candidate for an elective office, in the city of Knoxville, the day before the election and within three days after the election, to file with the recorder and publish, at least once in a daily newspaper, a sworn statement of all his campaign and election expenses itemized, and providing that any candidate failing to do so shall he 'disqualified to hold the office, requires only one publication of campaign and election expenses which must be made after the preparation and filing of the last statement of expenses, and within three days after the election. {Post, pp. 488, 489, 492, 493.) Acts cited and construed: Private Acts 1911, ch. 498, sec. 30. 2. SAME. Statute requiring candidates to file and publish statements of election expenses in Knoxville elections' did not take effect as to candidates for mayor until the fourth Saturday in January, 1912. The statute (section 30 of Private Acts 1911, ch. 498) requiring every candidate for an elective office, in the city of Knoxville, to file and publish a sworn statement of campaign and election expenses itemized, and for his failure to do so, disqualifying him to hold the office, under section 44 of said act, providing that, for the purpose of giving notice of election, the act shall take effect December 30, 1911; that, for the purpose of electing the first board of commissioners, it shall take effect on the third Saturday in January, 19.12; and, for other purposes, it shall take effect on the fourth Saturday in January, 1912, does not apply to the election of a mayor on the third Saturday in Jan-nary, 1912, because said requirement did not become operative or effective until the fourth Saturday in January, 1912; and, therefore, a candidate for mayor of said city at an election held on the third Saturday in January, 1912, did not disqualify himself to hold the office, by his failure to publish a statement of his campaign expenses on the day before such election. (Post, pp. 488, 489, 490, 491, 492, 493.) Acts cited and construed: Private Acts 1911, ch. 498, secs. 30 and 44. 3. STATUTES. No retrospective effect, when taking effect at a fixed future date. A statute does not have a retrospective effect when, by its terms, it is to take effect at a fixed future date. (Post, pp. 491, 492.) Cases cited and approved: Dugger v. Insurance C'o., 95 Tenn., 245, 249; Railroad v. State, 81 Tex., 572-598. 4. SAME. To be construed as prospective, unless retrospective by express provision or necessary implication. It is a rule of statutory construction that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared, or is necessarily implied from the language used; and doubts must be resolved against the retrospective effect. (Post, pp. 491, 492.) Cases cited and approved: Dugger v. Insurance C'o., 95 Tenn., 245, 249; Railroad v. State, 81 Tex., 572-598. 5. ELECTIONS. Publication of election expenses within three days after election, embodying a former statement published on election day, complies with statute for Knoxville elections, when. Under tjie statute (Private Acts 1911, ch. 498, sec. 30), requiring every, candidate for an elective office in the city of Knoxville to publish a sworn statement of all his campaign and election expenses within three days after the election, the publication of a statement on the day of the election and the publication of another statement on the third day after the election, referring to and adopting or embodying the former statement and setting out one additional item, was sufficient. (Post, pp. 488, 493.) Acts cited and construed: Private Acts 1911, ch. 498, sec. 30. 6. SAME. Required itemized statement of campaign and election expenses of a candidate in Knoxville election need not itemize a sum given to charity, when. Under the statute (Private Acts 1911, ch. 498, sec. 30), requiring every candidate for an elective office in the city of Knoxville to file and publish a sworn statement of all his campaign and election expenses itemized, it was not necessary to include in the statement a sum given by a candidate for charitable purposes, and the unnecessary inclusion of such sum in the' statement does not necessitate the giving of the items and details thereof. (Post, pp. 488, 493.) Acts cited and construed: Private Acts 1911, ch. 498, sec. 30. 7. SAME. Filed and published statement of candidate’s campaign and election expenses need not give details of expenditures of his contribution to campaign fund of his party or ticket in Knoxville election, when. Under a statute (Private Acts 1931, ch. 498, sec. 3D) requiring every candidate for an elective office in the city of Knoxville to file and publish a sworn statement of all his campaign and election expenses itemized, and by whom such funds are contributed, where a number of offices were filled at an election, and one candidate’s contribution to the campaign fund of his party or ticket was stated to he made for a proper and legitimate purpose, he was not required, in his statement, to give the sources of the balance of such fund contributed by others, or the details of its expenditure, in the absence of any showing that he had any control or management of the fund. (Post, pp. 488, 493-496, 497, 498.) Acts cited and construed: Private Acts 1911, ch. 498, sec. 30. 8. SAME. Candidate’s statement of election expenses containing an item of fifteen dollars given to a named person, without showing its purpose, is a compliance with statute. Under the statute (Private Acts 1911. ch. 498, sec. 30) requiring every candidate for an elective office in the city of Knoxville to file and publish, a sworn itemized statement of all his campaign and election expenses, and for bis failure to do so, disqualifying him to hold the office, the failure of the statement to show the purpose for which a single item of fifteen dollars given to a named individual does not render the candidate ineligible to the office. (Post, pp. 488, 496.) Acts cited and construed: Private Acts 1911, ch. 498, sec. 30. 9. SAME. In election contests general charges of fraud, without detailing particular acts a,nd incidents of fraud, are insufficient. In election contests, general charges of fraud in the bill will be disregarded, unless the alleged acts of fraud • are set out in detail; for a general charge of fraud, in the entire absence of any specific allegation as to the particulars and incidents of the fraud, is insufficient. (P'ost, pp. 496, 497.) 10. STATUTES. No room for construction, if there be no doubt of legislative intent and purpose. There is no room for the construction of a statute, when, from the language used in it, there can be no doubt of the ■ intention and purpose of the legislature in its enactment. (Post, pp. 498-500.) Cases cited and approved: Kirk v. State, 1 Cold., 346-348; State, ex rel., v. Manson, 105 Tenn., 237, 238. HEADNOTES ON DISSENTING OPINION. 11. CONTESTED ELECTIONS. Petition by voter to declare election void presents a case of contested election. A petition filed in the circuit court, by one not a candidate in the election, but a citizen, taxpayer, and voter, against the candidate appearing to be elected mayor, and the election commissioners, seeking to enjoin the commissioners from issuing a certificate of election to suck candidate, to enjoin his qualifying and assuming the duties of the office, and to declare the election void upon the ground that the candidate disqualified himself to hold the office by his failure to file and publish the statement of his campaign and election expenses, as required by the constitutional statute contained in Private Acts 1911, ch. 498, sec. 30, applicable in the city of Knoxville, to the end that a new election might be held, presents (it is not controverted) an election contest which the petitioner may institute and maintain, -if his contention is supported by the facts, and the circuit court has jurisdiction of such contest. (Post, pp. 482-484, 488, 500, 501.) Acts cited and construed: Private Acts 1911, ch. 498, sec. 30. Cases cited and approved: Marshall v. Kerns, 2 Swan, 68; Lewis v. Watkins, 3 Lea, 174; Maloney v. Collier, 112 Tenn., 91; Ad-cock v. Houk, 122 Tenn., 275; Taylor v. Carr, 125 Tenn., 235. 12. STATUTES. Intention prevails over literalism, and is not to be eluded; construed to be sensible, if possible. The fundamental rule of the construction of statutes is that the real intention appearing from the whole act will always prevail over the literal use of terms; and a thing which is within the letter of a statute is not within the statute, unless it be within the intention of the lawmakers; and such construction ought to be put upon it as will not suffer it to be eluded. Statutes must be construed, if possible, so as to make them sensible, and to effect and carry out the purposes for which they were enacted. It is not to be presumed that the lawmakers will pass a defective and insensible act. The courts will restrain the language of a statute so as to avoid the stultification of the legislature and absurd consequences. (Post, pp. 503, 504, 509-512.) Cases cited and approved: Gold v. Fite, 2 Bax., 248, 249; Brown v. Hamlett, 8 Lea, 735; Wise v. Morgan, 101 Tenn., 273; Maxey v. Powers, 117 Tenn., 403; People v. Columbia Co., 43 N. Y., 130. 13. SAME. Statute takes effect as to mayor under provision fixing time as to commissioners because he is included in board of commissioners; and independent of such inclusion, to avoid absurdities. A statute (Private Acts 1911, ch. 498), by sections 3, 4, 5, 6, 30, 39, and 45 thereof, providing for the election of a board of commissioners, to consist of a mayor and four commissioners, in the city of Knoxville, and prescribing precautions deemed necessary to secure fair elections, and to prevent, detect, and expose fraud, corruption and bribery of electors, and by' section 44 thereof providing that, for the purpose of electing the first board of commissioners, the act shall take effect on the third Saturday in January, 1912, and for all other purposes shall take effect on the fourth Saturday in January, 1912, takes effect on the third Saturday in January, 1912, as to the requirements of a statement of campaign and election expenses to be made by the candidate for mayor as well as the commissioners, because the mayor is expressly classed as one of the commissioners; and, independent of such express provision, it is held so to take effect to avoid the stultification of the legislature and absurd consequences, and in accordance with the rules of construction stated in head note 12. (Post, pp. 504-517.) Acts cited' and construed: Private Acts 1911, ch. 498, secs. 3, 4, 5, 6, 30, 39, 44, and 45. Cases cited and approved: Wise v. Morgan, 101 Tenn., 273; Maxey v. Powers, 117 Tenn., 403. 14. SAME. Candidate's statement of campaign and election expenses that is fatally defective for its want of itemization and failure to show how money was spent. Under the statute (Private Acts 1911, ch. 498, sec. 30), requiring every candidate for an elective office in the city of Knoxville to file and publish a sworn statement of all his campaign and election expenses itemized, and by whom such funds are contributed, a candidate’s statement that he contributed ' five hundred dollars to the Democratic campaign committee, to be used by it in bearing the legitimate expenses of the campaign, such as office rent, clerk hire, printers’ bills, postage, brass bands, etc., and that he gave fifteen dollars to a certain named person, without any explanation for what purpose it was paid or used, is not a compliance with the statute and is fatally defective, because it does not contain the itemization required, and does not state how the money was used by the campaign committee as the agent of the candidate; and the statement is further fatally defective in its omission to state by whom was contributed the sum of ten thousand dollars admitted to have been contributed to the campaign committee, and how it was used and spent by such committee as the agents of the candidate. '(Post, pp. 484, 487, 488, 517, 518, 520, 521.) Cases cited and approved: In re Umbel, 231 Pa., 94; Healy v. State, 115 Md„ 377; State v. Good, 8 Ohio Dec., 401. 15. SAME. Statement of campaign and election expenses in Knoxville elections must be filed and published, one before and the other after the election, and eacli must be published at least once. The statute (Private Acts 1911, eh. 498, sec. 30), requiring that “every candidate for an elective office ... in the city of Knoxville shall, the day before the election and within three days after the election, file with the recorder and publish at least once in a daily newspaper his sworn statement of all his campaign and election expenses,” etc., means that such statement must be filed and published the day before the election and that another statement must be filed and published within three days after the election, and that each statement must be published at least once; and that the publication of both statements after the election is not a compliance with the statute. (Post, pp. 488, 501, 506-508, 523.)
126 Tenn. 524Campbell v. Home Ice & Coal Co. (1912)
1. DEEDS OF CONVEYANCE. Quitclaim deed conveys whatever interest the grantor has, unless specially limited. Under our statute (Shannon’s Code, section 3680), a quitclaim deed is a form of conveyance; and like other deeds, it conveys, under our statute (Shannon’s Code, section 3672), whatever interest the grantor has in the land, unless otherwise specially limited and confined by its terms. (Post, pp. 530, 531.) Code cited and construed: Secs. 3672, 3680 (S.); secs. 2812, 2820 (M: & V.); secs. 2006, 2013 (T. & S. and 1858). 2. REGISTRATION. Not necessary as between the parties, but is as against strangers and others without notice, when. While under our statutes (Shannon’s Code, sections 3671 and 3749) providing for the registration of deeds, deeds required to be registered are effective between the parties and their privies, without registration, yet as to strangers and other persons not having actual notice of them, they are effective only from the noting thereof for registration. (Post, p. 530.) Code cited and construed: Secs. 3671, 3749, 3750 (S.); secs. 2811, 2887, 2888 (M. & V.); secs. 2005, 2072, 2073 (T. & S. and 1858). 3. SAME. Deed first registered shall have preference over prior deed subsequently registered, unless there was notice of such unregistered deed. In case of rival instruments, the deed first registered, or noted for registration, shall have preference over one of earlier date, but noted for registration afterwards, unless it is proved in a court of equity that the party claiming under the subsequently registered instrument had full notice of the previous unregistered instrument. (Post, p. 530.) 4. SAME. Unregistered deeds are void as against creditors, or bcna fide purchasers without notice. Any deed not properly registered, or noted for registration, is null ahd void, as to existing and subsequent creditors, or bona fide purchasers from the maker, without notice. (Post, p. 530.) Code cited and construed: Sec. 3752 (S.); sec. 2890 (M. & V.); sec. 2075 (T. & S. and 1858). Case cited and approved: Wilkins v. McCorkle, • 112 Tenn., 688, 697. 5. SAME. Prior registered deed of a bona fide purchaser is not limited to call for corner of another’s land under unregistered deed, but extends to his corner under his registered deeds. Where the grantor in a prior but unregistered deed conveying the land in controversy to the defendant, having forgotten the making thereof, executed, for a valuable consideration, a second deed conveying the land to eojnplainant’s grantor, describing the land as beginning at a certain corner of the land of the defendant, which deed complainant’s grantor accepted and paid the consideration, without notice of the said prior unregistered deed, and after making an examination of the records, and finding that said grantor was the record owner of the land, the deed of the complainant’s grantor, having been first registered, must be considered as conveying the land bounded on the said corner of the land owned by the defendant under registered deeds, and is not limited to defendant’s such corner as evidenced by said unregistered deed; and, therefore, the said second deed so first registered was prior in right to the said first but unregistered deed, and complainant was vested with the title by the registered deed of his said grantor. (Post, pp. 527, 528, 531, 532.) 6. SAME. Grantee in quitclaim deed is not, for that reason,' charged with knowledge of prior unregistered deeds. The grantee’s acceptance of a quitclaim deed is not evidence, within the purview and operation of our registration laws, that he had knowledge of any defect or infirmity in the title; and such deed does not, under said laws, create any presumption against him, and does not cast upon him the burden of explaining; but this doctrine has no bearing upon the equities which do not fall within the scope of the registration laws, and are unaffected thereby. (Post, p. 533.) Cases cited and approved: Lowry v. Brown, 1 Cold., 456; Miller v. King. 7. DEEDS OF CONVEYANCE. Occupancy not sufficiently open and adverse to render deed of another to a third person void as champertous. Where the defendant, holding title to the land in controversy under a prior unregistered deed, attempted to defeat complainant’s title under a subsequent and registered deed, upon the ground that defendant’s open and adverse possession' at the time of the execution of such subsequent deed rendered it champertous and void, and it appearing that defendant’s occupation consisted merely of a bridge extending a few feet over the land, and also the" piling of some refuse lumber thereon, without showing how long the lumber remained thereon, or whether it was there,when such subsequent deed was executed, it was held that such occupancy was not sufficiently open and adverse to render the deed, under which complainant claimed, void for champerty., (Post, pp. 529, 533, 534.) 8. SAME. Bona fide purchaser under a registered deed, with a quitclaim deed in his line of title, if the title is apparently valid and clear. A purchaser of land holding under a registered deed, with a quitclaim deed in his line of title, or even immediately pre-ceeding his deed, will he regarded as a purchaser in good faith, notwithstanding such quitclaim deed, if his title, as shown by the registration record, is apparently valid and clear, and he has no notice of any defect in the title. (Post, p. 534.) Case cited and approved: Rich v. Downs, 81 Kan., 43.
126 Tenn. 535East Tennessee Brewing Co. v. Currier (1912)
1. INTOXICATING LIQUORS. Wholesalers and retailers are defined for purposes of taxation. Under the statutes (Acts 1907, ch. 547, and Acts 1909, ch. 479), providing that “persons selling liquors in quantities of one quart or more, except manufacturers selling to dealers in original packages of not less than five gallons, are wholesale dealers, and persons selling smaller quantities than five gallons are retail dealers,” a brewer not selling liquor in quantities less than one quart, hut not confining its sales to dealers in original packages of five gallons or more, is only liable for the taxes imposed on wholesalers, and not for that imposed on retailers; for, under this statutory definition, a dealer's status as a wholesaler or retailer is determined hy the quantity of liquor sold, and not hy the fact whether the sale is to other dealers or to consumers. (Post, pp. 538-541.) Acts cited and construed: Acts 1907, ch. 547; Acts 1909, ch. 479. Cases cited, distinguished, and approved: State v. Lowenhaught, 11 Lea, 13; Harrison v. State, 96 Tenn., 548. 2. CONSTITUTIONAL LAW. Statute authorizing distress warrant for delinquent privilege taxes without previous notice or demand is not unconstitutional for that reason. The statute (Acts 1907, ch. 540, first prescribing the amount of the privilege taxes exacted of wholesale and retail liquor dealers and then providing that “the procuring of United States revenue license to wholesale or retail liquor dealers shall he taken as prima facie evidence that the parties are in the wholesale or retail liquor business, and are subject to State and county taxes,” and (by section 18) making it the duty of privilege taxpayers to pay promptly tbe tax, and providing that, if the tax be not paid when due, a penalty of one per cent, of the amount of the delinquent tax for each day’s delinquency shall be paid, and that the clerk of the county court shall issue a distress warrant for the collection of tbe taxes and penalties, and shall enforce the collection thereof as in other cases, is not invalid as depriving such- tax debtor of property without due process of law, upon the ground that it directed the collection of such privilege tax by distress warrants, without previous notice to or demand upon the delinquent taxpayer. (Post, pp. 541-547.) Acts cited and construed: Acts 1907, cb. 540, sec. 18; Acts 1909, ch. 479. State and federal constitutional provisions with respect to due process and the law of, the land are applied and construed, but not cited. Cases cited and approved: Myers v. Park, 8 Heisk., 540; Murray v. Improvement C'o., 18 How., 282; Hagar v. Reclamation, 111 U. S., 709, 710. 3. SAME. Same. Summary remedies are valid if delinquent taxpayer is given an opportunity to contest the validity of the tax. Laws providing summary remedies for the collection of delinquent taxes are not unconstitutional, because they dispense with some of the formalities of ordinary judicial procedure, or cut off technical defenses, or authorize tbe seizure of the property before a hearing, provided the taxpayer is given an opportunity at some stage to contest the validity of the tax. (Post, pp. 547,’ 548.) 4. PRIVILEGE TAXES. Distress warrant for specific tax fixed by statute without notice or assessment; otherwise, under statute as to merchant’s tax and privileges depending on valuation of property invested in business. The statute (Acts 1907, ch. 602, sec. 30), providing for the hack assessment and reassessment of property omitted from taxation, and that, in case of merchant’s tax and delinquent privilege tax, the county court clerk shall issue a citation for the purpose of back assessment, which citation shall cite the delinquent to appear for the purpose “of being assessed or reassessed for the years -, upon omitted or inadequately assessed property . . . , and show cause, if any, why said property should not be back or reassessed at its actual cash value,” applies to the assessment of property according to valuation, and privilege taxes like that of the merchant’s privilege tax the. amount of which depends upon the valuation of the property invested in the business, and not to licenses or privilege taxes, the specific amount of which is fixed by statute, and is not dependent in any sense upon assessment or valuation, and does not apply to the specific privilege tax imposed upon wholesale liquor dealers, so that the five days’ notice prescribed by said statute was not required to be given to said delinquent before issuing the distress warrant. (Post, pp. 548-550.) • Acts cited and construed: Acts 1907, ch. 602, sec. 30. Case cited and approved: Foppiano v. Steed, 113 Tenn., 167-172. 5. SAME. Statutory penalties for delinquency will not be enforced . where tax was not demanded, and its validity was doubted. Where in a chancery suit to contest the validity of a distress warrant issued by the clerk of the county court against a brewer to collect delinquent privilege taxes, it appeared that a brewer’s license had been theretofore erroneously construed by the revenue department of the State as permitting sales which in law rendered the brewer liable for a specific wholesale privilege tax, and that it had been the custom of the clerk of the county court to notify the particular brewer when the privilege taxes required of him were due and that no demand was ever made' of the taxes sought to be collected by distress warrant, the penalty of one per cent, for each day’s delinquency imposed by statute (Acts 1907, cb. 540, sec. 18) will not be enforced against 'the brewer for failure to pay 'the tax when due, because the validity of the tax was doubted. (Post, pp. 550, 551.) Acts cited and construed: Acts 1907, ch. 540, sec. 18.
126 Tenn. 553King v. Cox (1912)
1. PEREMPTORY INSTRUCTIONS. Concurrent motions th.ere-for does not take case from jury and submit it to trial judge. Concurrent motions by both parties for peremptory instructions will not operate as a mutual agreement to take the case from the jury, and to submit the whole controversy to the determination of the trial judge. (Post, pp. 557-560.) Case cited and approved: Hardware Co. v. Hodges, 126 Tenn., 370. Cases cited and disapproved: Railroad v. Crutcher,' 1 Tenn. C. C. A., 231; Aizenshtatt v. Mayor, 1 Tenn. C. C. Á., 805. 2. SAME. Motion therefor does not waive objections to rejection or admission of evidence, as a demurrer to evidence does. A motion for peremptory instructions does not waive the mover’s objections to the rejection or admission of evidence, as a demurrer to evidence does. (Post, pp. 558, 560.) Cases cited and approved: Railroad v. Leinart, 107 Tenn., 635; Coleman v. Bennett, 111' Tenn., 705, 711. 3. DEMURRER TO EVIDENCE. Definition; effect; joinder and final judgment; complete, and needs no bill of exceptions to preserve evidence. The defendant’s demurrer to the plaintiff’s evidence sets it all out, and confesses its truth, and withdraws the case from the jury, and submits to the court the application of the law to the admitted facts; and where the evidence is written, or, if parol, is certain, the plaintiff must join in the demurrer, or waive his evidence, and if he refuse to join, except in terms disapproved by the court, his evidence is considered as withdrawn, and the jury must find for the defendant. The party who prevails on a demurrer to the evidence is entitled to a final judgment in his favor. Tlie demurrer to tlie evidence is complete in itself, and, no bill of exceptions is needed for its preservation for the review of a ruling thereon. (Post, pp. 561, 564.) Cases cited and approved: Hopkins v. Railroad, 96 Tenn., 409; Summers v. Railroad, 96 Tenn., 459; Railroad v. Brown, 96 Tenn., 559; Mitchell v. Railroad, 100 Tenn., 329; Thane v. Douglass, 102 Tenn., 307; Artenberry v. Railroad, 103 Tenn., 266; Barr v. Railroad, 105 Tenn., 544; Manufacturing Co. v. Morris, 105 Tenn., 654; Coleman v. Bennett, 111 Tenn., 705, 714; Railroad v. Sansom, 113 Tenn., 683. 4. SAME. Function to test plaintiff’s case upon his testimony alone. The office and function of a demurrer to the evidence is to test the strength of the plaintiff’s case upon his own testimony, and not upon the testimony of both parties, nor upon facts agreed to >by both parties. (Post, pp. 561, 562.) Case cited and approved: Bridgeport, etc., Co. v. Raliroads, 103 Tenn., 490, 495. 5. SAME. Not prevented by conflicting evidence which it submits for harmonization. The fact that the evidence is conflicting does not prevent the case from being submitted on a demurrer to the evidence; but the evidence must be considered as a whole, and all reasonable inferences drawn from it in plaintiff’s favor, though none of it must be excluded simply because unfavorable, but only if shown by other evidence to be incorrect. The demurrer submits the decision and determination of the question of apparent conflict in the evidence to the court for the harmonizing of all the evidence in respect thereof. (Post, pp. 562, 563.) Case cited and approved: Corbett v. Smith, 101 Tenn., 368, 374. 6. PEREMPTORY INSTRUCTIONS AND DEMURRER TO EVIDENCE. Similarities, dissimilarities, and distinctions between a demurrer to evidence and a motion for peremptory instructions are stated. The demurrer to evidence and the motion for peremptory instructions have points of similarity, but also material points of difference, many of which are stated, pointed out, and contrasted in the opinion of the court. (Post, pp. 565-568.) C'ases cited and approved: Tyrus v. Railroad, 114 Tenn., 579; Railroad v. Williford, 115 Tenn., 108, 124;» Traction Co. v. Brown, 115 Tenn., 323; Kinney v. Railroad, 116 Tenn., 450; Seymour v. Railroad, 117 Tenn., 98; Norman v. Railroad, 119 Tenn., 401. 7. SAME. When either is sustained in trial and appellate court, or in the appellate court alone, the case is ended. A peremptory instruction, sustained in the trial court and affirmed in the appellate court, will end the case; and a peremptory instruction, offered and refused in the trial court, hut adjudged good in the appellate court,’will end the case; and so, on the sustainment of a demurrer to the evidence, either in the trial court or in the appellate court, the case will likewise he at an end. (Post, pp. 564, 565.) 8. SAME. Remandment for assessment of damages upon sustaining motion for peremptory instructions, but appellate court must fix damages upon sustaining demurrer to evidence. Upon sustaining a motion for peremptory instructions, the case may he remanded for the assessment of damages on evidence to he heard heforfe a jury, while upon sustaining a demurrer to the evidence, all the evidence must he found in the demurrer itself, and the amount of damages must he fixed hy the court. (Post, pp. 565.) Cases cited and approved: Tyrus v. Railroad, 114 Tenn., 579; Railroad v. Williford, 115 Tenn., 108, 124; Traction Co. v. Brown, 115 Tenn., 323; Kinney v. Railroad, 116 Tenn., 450; Seymour v. Railroad, 117 Tenn., 98; Norman v. Railroad, 119 Tenn.,. 401; Railroad v. Hayes, 117 Tenn., 680; 697; Railroad v. Roe, 118 Tenn., 601, 625, 626; Box .Co. v. Gregory, 119 Tenn., 537. 9. PEREMPTORY INSTRUCTIONS. Motion for, does not waive exceptions as to rulings on evidence. A party, hy making a motion for peremptory instructions, does not waive any exceptions he may have reserved' against the action of the trial judge in his rulings against him on questions of evidence; and lie may, on liis motion for new trial, assign such errors, along with the action of the trial judge in granting to his adversary, or in refusing to himself, a motion for peremptory instructions. (Post, pp. 565-669.) Case cited and approved: Tyrus v. Railroad, 114 Tenn., 579. 10. INJUNCTION. When dissolved, damages may be-recovered upon reference or by suit. Upon the dissolution of an injunction, the defendant may have either a reference to the master for the assessment of damages, or bring an independent suit on the injunction bond. (Post, pp. 570, 571.) Code cited and construed: Sec. 6259 (S.); sec. 5192 (M. & Y.); sec. 4442 (T. & S. and 1858).' Cases cited and approved: Ragan v. Aiken, 9 Lea, 623; Terrell v. Ingersoll, 10 Lea, 77, 80, 84. 11. SAME. Best evidence of record in injunction suit is the original or a duly certified copy of whole record, except where part is lost. The fact of the dissolution of an injunction must be shown in an action on the injunction bond by the best evidence, which is the record of the injunction suit, which record must be proved by the production of the original, or by a copy thereof, certified by the clerk or the person having legal custody thereof. A copy of the whole record must be produced, except where part of the record is lost, and cannot be produced. (Post, p. 571.) Code cited and construed: Sec. 5579 (S.); sec. 4547 (M. & V.); sec. 3794 (T. & S. and 1858). Cases cited and approved: Duncan v. Gibbs, 1 Yerg., 256; Garrick v. Armstrong, 2 Cold., 267; Phipps v. Caldwell, 1 Heisk., 350; Willis v. Louderback, 5 Lea, 561; Smith v. Hutchison, 104 Tenn., 394; Railroad v. Seymour, 113 Tenn., 523; Russell v. Houston, 115 Tenn., 536. 12. SAME. Evidence held insufficient to lay ground for introduction of certified copies of judicial records. In an action on an injunction bond, in which it was sought to prove the dissolution of the injunction by certified copies of the pleadings, the decree, the injunction bond, and the injunction writ, the evidence is stated and held to be insufficient to show that such papers were lost, so as to admit in evidence certified copies thereof. (Post, pp. 569, 570, 571-574.) Cases cited and approved: Pharis v. Lambert, 1 Sneed, 228; Vaulx v. Merriwether, 2 Sneed, 686; G-irdner v. Walker, 1 Heisk., 191; Rhea v. McCorkle, 11 Heisk., 415; Whiteside v. Watkins (Tenn. Chy. App.), 58 S. W., 1107.
126 Tenn. 576Davis v. Cam-Wyman Lumber Co. (1912)
1. EMPLOYER OF INDEPENDENT CONTRACTOR. Not liable for injuries resulting from negligence of contractor or his servants, when. The employer of an independent contractor is not liable for the negligence of the contractor or his servants resulting in injuries to third persons or the contractor’s employees, if the contractor be a proper person, and the work be not unlawful, or a nuisance in itself, or necessarily attended with danger, with the probable qualification that where the employer of a contractor is subject to an absolute duty to do or not to do certain things with reference to the work and the premises, such duty is nondelegable to the contractor, so as to relieve the employer of liability for injuries caused by its nonfulfillment. (Post, pp. 579, 583-586.) Cases cited and approved: Powell v. Construction Co., 88 Tenn., 693; Rush v. Steinman, 1 Bos. & P., 404; Laugher v. Pointer (1826), 4 L. J. K. B., 309; Quarman v. Burnett (1840), 6 Mees. & W., 499; Hilliard v. Richardson, 3 Gray (Mass.), 349; Bibb v. Railroad, 87 Va., 711; Cincinnati v. Stone, 5 Ohio St., 38; Hilsdorf v. St. Louis, 45 Mo., 94; Salliotte v. Bridge Co., 58 C. C. A., 466; Thomas v. Harrington, 72 N. H., 45; Jacobs v. Fuller, 67 Ohio St., 70; Anderson v. Fleming, 160 Ind., 597; Railroad v. Tow, 23 Ky. Law Rep., 408. Cases cited and distinguished: Baker v. Railroad, 106 Tenn., 490; White v. Railroad, 108 Tenn., 739. 2. SAME. Same. Declaration showing employer’s nonliability for negligence of his independent contractor or 'employees. Where the plaintiff alleged that defendant’s independent contractor was, at the time plaintiff’s intestate was injured, carrying out a contract with defendant to cut and deliver logs to defendant along its tramroad, and that said contractor had erected houses where his employees camped while working, and, having about completed the work at that point, directed his employees to tear down the camp and load it on one of defendant’s cars left there for that purpose; that defendant furnished a car for said lumber, and gave permission to his said contractor or his employees to convey it to the new camp; and that plaintiff's intestate, While in said contractor’s employ, and while on said car in the line of his duty, and obeying the orders of said contractor (his .employer), was, by reason of defendant’s negligence in furnishing to said contractor and his employees a car which was unsafe and defective, thrown from the car and killed, it was held that the plaintiff did not sufficiently allege that defendant owed a duty to his said contractor to furnish the car, or any duty to plaintiff’s intestate to inspect it before it was so furnished, but merely that the car was furnished for the accommodation of the contractor and his employees, in preparing to perform the contract, and not in the performance of the con-126 Tenn. 37 tract, so that defendant was not chargeable with its contractor’s negligence, if any, in allowing plaintiff’s intestate to use the defective car. (Post, pp. 579, 580, 586, 587.) Case cited and approved: Bush v. Grant, 22 Ky. Law Rep., 1766. 3. SAME, Same. Same. Liable for injuries to servant of contractor resulting from defective appliance furnished under contract, but not if furnished as an accommodation, when. Where the employer agrees with an independent contractor to furnish appliances necessary to perform the contract, he will he liable to a servant of the contractor for injuries resulting from his not providing proper appliances, but he will not be so liable where appliances are furnished as an accommodation, and not in fulfillment of any contract obligation, especially where it is not alleged that he knew of the defect or ought to have known it, upon the exercise of due care. (Post, pp. 587, 588.) Cases cited and approved: McCall v. Pacific M. S. S. Co., 123 Cal., 42; Sullivan v. Gas & Light Co., 190 Mass., 288; Jacobs v. Puller, 67 Ohio St., 70; King v. Railroad, 66 N. Y., 187; Bush v. Grant, 22 Ky. Law Rep., 1766.
126 Tenn. 589Beeler v. Nance (1912)
1. HOMESTEAD. Right in land with less than one thousand dollars is treated as an assigned and vested homestead. Where the head of a family, a married man, owns only one tract of land worth less than one thousand dollars, his homestead right therein is to he treated as an assigned homestead and a vested estate in the land. (Post, pp. 591, 592.) Cases cited and approved: Gray v. Baird, 4 Lea, 212; Arnold v. Jones, 9 Lea, 545; Burnett v. Austin, 10 Lea, 564; Briscoe v. Vaughn, 103 Tenn., 314; Delk-v. Yelton, 103 Tenn., 479; Carver v. Maxwell, 110 Tenn., 82. 2. SAME. Same. Whether unassigned, or treated as assigned, can only be conveyed by joint deed of husband and wife, when that relation, exists. The homestead right, whether it.be a mere floating right in unassigned homestead land, or such right as an estate for life in the specific tract of land by reason of facts which the law treats as an assignment of the homestead in that tract, can only be conveyed by the joint deed of husband and wife, when that relation exists. (Post, p. 592.) Code cited and construed: Sec. 3798 (S.); sec. 2935 (M. & V.); sec. 2114a (T. & S.). Constitution cited and construed: Art. 11, sec. 11. Case cited and approved: Cox v. Keathley, 99 Tenn., 523. 3. SAME. Lease of homestead land is not forfeited by lessors’ subsequent removal from State, when. Where a husband and wife, having a homestead estate in certain land for and during the life of the survivor, after which the title in fee is to pass to a remainderman, leased the land to defendants during the life of the wife, and thereafter, removed to another State, such removal and termination of residence and citizenship in thiá State, and .their acquisition of the same in another State, did not work a forfeiture of said lease. (Post, pp. 592-598.) Case cited and approved: Cowan v. Carson, 101 Tenn., 526; Bris-coe v. Vaughn, 103 Tenn., 308; Coile v. Hudgins, 109 Tenn., 223, citing Carrigan v. Rowell, 96 Tenn., 185. 4. SAME. Lease or sale by owner before any act of abandonment. It is settled beyond dispute in this State that the owner of a 'homestead may pass a good title to a lessee or purchaser from him by a lease or sale before any act of abandonment. (Post, p. 598.) 5. SAME. Lease is not affected or forfeited by mere intention to remove from State; for actual removal is necessary. The lease of a homestead estate is not affected or forfeited by the fact that the lessor, at the time the lease was made, purposed and intended to leave the State; for the intention must be accompanied by actual removal. (Post, pp. -599, 600.) Case cited and approved: Vaughn v. Ballentine, 1 Shannon’s Cases, 596.
126 Tenn. 601Pyott Land & Mining Co. v. Tarwater (1912)
1. INJUNCTION. Judgment for damages against complainant cannot exceed penalty of bond except upon proof of malice and want of probable cause. Damages in excess of the penalty of the injunction bond cannot . be allowed against the complainant in an injunction suit, except upon proof of malice and want of probable cause in suing out the injunction. (Post, pp. 604, 605.) Cases cited and approved: Meyers v. Bloch, 120 II. S., 206; Railway Co. v. Railway Co., 47 W. Va., 725; Cox v. Taylor, 10 B. Mon. (Ky.), 17; McLaren v. Bradford, 26 Ala., 616; Hayden v. Keith, 32 Minn., 277; Robinson v. Kellum, 6 C’al., 399; Manlove * v. Vick, 55 Miss., 567; Coal Co. v. Upson, 40 Ohio St., 17. 2. SAME. Estoppel to deny sufficiency of fiat where injunction was acted on without objection to form of bond, when. Though the fiat of the judge granting an injunction is not full enough, as where it grants an injunction against the removal of iron ore through underground entries, on condition that a bond, with sureties, in the penalty of one thousand dollars, be executed to indemnity the defendant, the complainant and his sureties would be estopped to deny the sufficiency of the fiat, where the bond was conditioned to prosecute the injunction suit with effect, or, on failure to do so, to pay to defendant all such costs and damages as might be adjudged against the complainant, and abide by and perform the judgment of the court in the premises, if the injunction was acted on without objection to the form of the bond. (Post, pp. 603, 606.) 3. SAME. Form of bond is prescribed by. statute only in three cases; in other cases, form is to be prescribed by fiat, but form must be applicable to case. Our statutes prescribe the form of an injunction bond, only where a judgment is enjoined, or where a suit is enjoined before judgment (Shannon’s Code, section 6256), and where a hill is hied to set aside a fraudulent conveyance, and an injunction is issued in connection with an attachment writ (Shannon’s Code, section 6098); and in all other cases, it is the duty of the chancellor to prescribe the terms of the bond, which he has full authority to do, as a condition of granting the writ; but he should prescribe the form of bond applicable to the case. (Post, p. 606.) Code cited and construed: Secs. 6098, 6256 (S.); secs. 5032, 5189 (M. & V.); secs. 4289, 4439 (T. & S. and 1858). Cases cited and approved: Black v. C'aruthers, 6 Humph., 87; Newell v. Partee, 10 Humph., 325; Moore v. Hallum, 1 Lea, 511; Staples v. White, 88 Tenn., 30.
126 Tenn. 607Woods v. Shelton (1912)
1. WILLS. Wife’s will, made without husband’s consent, is entitled to probate, if disposing of some property that he is not entitled to. Where a wife’s will, made without her husband’s con'sent, disposed of property other than that to which the husband would be entitled by virtue of his marital rights, its probate is proper, and will not be vacated, since it is only where all the property disposed of by a wife’s will, made without the husband’s consent, is such as the husband has the right to reduce to possession, that probate can be resisted. (Post, pp. 611, 612.) 2. SAME. Probate of wife’s will does not defeat his martital rights. The mere probate of the will of a wife does not defeat the husband’s marital rights. (Post, p. 612.) Case cited and approved: Williford v. Phelan, 120 Tenn., 589. 3. SAME. Wife’s will as to general estate in personalty must be consented to by her husband to exclude him; otherwise as to separate estate. A married woman has the absolute power, by will, without the consent of her husband, to dispose of her personal property held as her separate estate; but she cannot dispose of her general estate in personalty, without her husband’s consent to the particular will, either' verbal or in writing, express or implied. (Post, p. 612.) 4. SAME. Husband’s consent to wife’s will may be given before or after her death; and is irrevocable after probate of will. The husband’s consent to his wife’s will disposing of her general estate in personalty may be given m wife’s lifetime, or after her death; and after the probate of the will, it is irrevocable and binding upon him. (Post, p. 612.) Cases cited and approved: Van Winkle v. Schocnmaker, 15 N. J. Eq,, 384; Kurtz v. Saylor, 20 Pa., 209; Cutter v. Butler, 25 N. H., 343; George v. Bussing, 54 Ky. (15 B. Mon.), 558. 5. SAME. Acts and conduct of husband after wife’s death and before probate of her will constituting a waiver of his marital rights and his assent to will. Where, after the death of his wife, the husband, after being informed for the first time that she had made and published a will disposing of her entire estate, called at the office of the clerk of the county court, where it was filed, and read it; and, thereafter and before its probate, delivered to the nominated executor a bank book and some other papers belonging to his wife, and, in company with him, deposited all her valuable papers in a bank for safe-keeping until the probate of the will, and expressed a willingness that the wishes of his wife be carried into effect; and later, but before the probate, wrote to certain legatees, expressing his gratification over the legacies, and Informed them of the time when a division of the property might be expected, it was held that such acts and conduct constituted a waiver of his marital rights and an assent to the will, which he could not withdraw after its probate, upon the ground that he was then ignorant of his right to administer the estate and to reduce the dioses in action to possession, because such ignorance was ignorance or mistake of law, unmixed with any mistake of fact, which excuses no one. {Post, pp. 610, 611, 612, 613.) Cases cited as inapplicable: Goff v. Gott, 5 Sneed, 562; Hays v. Bright, 11 Heisk., 330. 6. SAME. Husband’s acceptance of wife’s devise constitutes his assent to her wiil of choses in action. Where a wife’s will, made without her husband’s consent, devised to him certain real estate in which he had no marital right or other interest, his acceptance of the devise constituted an assent to the will as a whole, though disposing of her dioses in action; for a beneficiary of a will, accepting provisions in his favor, cannot reject those which are prejudicial to him. {Post, p. 613.) . 7. SAME. Same. Husband’s acceptance of wife’s devise constitutes his election, and waives right to administer upon and appropriate personalty and choses in action bequeathed to others. Where the husband is not entitled to curtesy in his wife’s land, she has an absolute right to devise the land to him, though if she bequeaths her personalty and choses in action to others, without his consent to the will, he has the right to administer upon her estate and to reduce to possession and appropriate the same; but if he accepts the devise of the land, it amounts to a clear case of election, and constitutes his assent to the disposition of the personalty and choses in action, and a waiver of his right to administer upon and appropriate it. (Post, p. 613.)
126 Tenn. 614In re Cameron (1912)
1. JUDGES. Are not disqualified by becoming witnesses in cases heard by them. A judge is not disqualified to sit in a case merely because be is a witness on the trial, .in view of the statute (Shannon’s Code, section 5594) expressly providing that the judge is a competent witness for either party in any case tried before him. {.Post, pp. 623, 633, 648, 649.) Code cited and construed: Sec. 5594 (S.); sec. 4561 (M. & V.); sec. 3811 (T. & S. and 1858). Acts cited and construed: Acts 1824, ch. 13. 2. SAME. Are not absolutely- disqualified by personal prejudice against a party; for it is largely in his discretion whether to act or not. The mere fact that the judge is personally prejudiced against a party litigant does not absolutely disqualify him to sit in the case; for it is left to the personal delicacy and discretion of the ■ -judge as to whether he will act or not. {Post, pp. 649, 650.) 3. ATTORNEYS. Disbarment charges may, with propriety, be formulated by trial judge, when. The judge’s formulation of disbarment charges against a practicing attorney does not disqualify him to sit in the trial of such charges. The judge may act upon any information deemed to be reliable, and make a rule upon the attorney to show cause why lie should not he disbarred. Especially is it not only the right, hut the duty of the trial judge to formulate disbarment charges against attorneys practicing in his court, where the matter on which the disbarment is predicated is wholly or largely within his knowledge, without waiting for any motion by any member of the bar. {Post, pp. 650-654.) Code cited and construed: Secs. 5781-5784 (S.); sec. 4745-4747 (M. & V.); sec. 3970-3972 (T. & S. and 1858). Cases cited and approved: Smith v. State, 1 Yerg., 228; In re S. J. Henderson, 88 Tenn., 531. 4. SAME. Trial judge is not disqualified to try case by his preliminary investigation of facts before formulating charges. A trial judge, who, before formulating disbarment charges against an attorney, based on matters within his knowledge, tested his recollection of the matter by consulting others having knowledge thereof, was not thereby disqualified to hear and determine the disbarment proceeding, upon the ground that he had become the prosecutor; for it is necessary for the protection of the bar that judges shall make some preliminary investigation before formulating such charges. {Post, pp. 654, 655.) 5. JUDGES. Trial judge deciding case before the hearing is disqualified to sit in the case; disbarment proceeding. Where disbarment charges of misconduct against an attorney, formulated by a trial judge, recited that it appeared from facts within the court’s knowledge that the said attorney had been guilty of acts of immorality and impropriety inconsistent with the character and incompatible with the faithful performance of the duties of his profession; that he had been guilty of a studied and matured purpose to commit a fraud upon the court; and that he was therefore ordered to show cause why he should not be disbarred; and it was charged and proved and uncontra-dicted that the said trial judge had stated openly and publicly that it did not matter whether the said attorney confessed the charges or not, as he could prove his guilt, the trial judge was, upon due objection being made, disqualified to hear and determine such disbarment proceeding, since a trial judge who decides the case before the hearing is disqualified to sit in the trial of the case. (Post, pp. 655-659.) Code cited and construed: Sec. 5706 (S.); sec. 4671 (M. & V.); sec. 3913 (T. & S. and 1858). Constitution cited and construed: Art. 1, sec. 17; art. 6, sec. 11. 6. SAME. Same. Not disqualified by a predecision unless it be beyond doubt, nor where the judge denies it. A trial judge is not disqualified, upon the ground that he has decided the case in advance, unless it appears beyond any doubt that such decision has been made. If the judge denies such to be the fact, that ends the controversy, whether his denial be made under a special oath, or by a general statement which must be regarded as under his oath of office. (Post, pp. 659, 660.) Cases cited and approved: State, ex rel., v. Cooper, 107 Tenn., 202; State, ex rel., v. Maiden, 110 Tenn., 487. 7. CONSTITUTIONAL LAW. Supreme court cannot try a case de novo where the judgment below was void for incompetency of trial judge, with seasonable objection. Where the trial judge was incompetent, and- seasonable objection was made on that ground, the judgment in such case is void, and a trial by the supreme court upon the record would be the exercise of original jurisdiction, and the deprivation of the constitutional right guaranteed to every citizen to have his case tried according to due course of law; and the supreme court cannot, in such case, try the case üc noto, and render the judgment which should have been rendered below; and the statute (Acts 1911, ch. 32) dispensing with errors not affirmatively appearing to have affected the result of the trial is not applicable to such cases. (Post, pp. 661-668.) Acts cited and construed: Acts 1911, ch. 32. Constitution cited and construed: Art. 1, sec. 17. Cases cited' and approved: Arnold v. Embree, Peck, 134; Bedford v. Hickman, 1 Yerg., 166; Witt v. Russey, 10 Humph., 208; Mason v. Westmoreland, 1 Head, 555; Reams v. Kearns, 5 Cold., 217; Mathis v. State, 3 Heisk., 127; Harrison v. Wisdom, 7 Heisk., 99, 111; Bollling v. Anderson, 4 Bax., 550; Smith v. Pearce, 6 Bax., 72; C'rozier v. Goodwin, 1 Lea, 125; Holmes v. Eason, 8 Lea, 754; Posey v. Eaton, 9 Lea, 500; Davis v. State, 92 Tenn., 634; Dimes v. Canal Co., 16 Eng. L. & Eg., 63; Insurance Co. v. Price, 1 Hopk. Chy. (N. Y.), 1; Moses v. Julian, 45 N. H., '52; Shropshire v. State, 7 Eng. (12 Ark.), 190. Case cited and distinguished: Wroe v. Greer, 2 Swan, 172.
126 Tenn. 669Mitchell v. Chattanooga Savings Bank (1912)
1. SEPARATE ESTATE. Created by husband’s gift of money to wife; her power of disposition in lifetime or by will. A husband, who makes gifts of money to his wife, thereby surrenders all his rights with respect to the funds during cover-ture, and creates in her a separate estate in the same, over which he has no control, and which she may dispose of in her lifetime, or by will. (Post, pp. 671, 672.) ■Case cited and approved: Carpenter v. Franklin, 89 Tenn., 142; • Snodgrass v. Hyder, 95 Tenn., 575; Barnum v. Le Master, 110 Tenn., 638. 2. SAME. Husband’s rights, if not cut off, are merely suspended during coverture, and again attach after wife’s death. It has been long settled in this State that, in the absence of some particular words used in the creation of a separate estate, clearly indicating an intention to cut off, after coverture, the husband’s rights therein, such rights are merely suspended during the period of coverture, and .again attach, after the death of the wife, to the property so given. (Post, pp. 672-674.) Cases cited and approved: Hamrico v. Laird, 10 Yerg., 222; Hays v. Bright, 11 Heisk., 325. 3. SAME. Same. Created by husband’s gift of money to wife entities him to same rights as in other personalty left by intestate wife. Where a husband makes gifts of money to his wife, which become her separate estate, his right thereto is only suspended during coverture, and unless he cuts off his right of survivorship by a clear and distinct expression, his rights, upon the wile’s death intestate, are the same as in respect to other personal property left hy the wife, and the husband is entitled to administer upon and possess himself of his intestate wife’s separate personal estate. (Post, pp. 672-676.) Cases cited and approved: Brown v. Brown, 6 Humph., 127; Loftus v. Penn, 1 Swan, 445. Cases cited and distinguished: Bárnum v. Le Master, 110 Tenn., 638; Bingham v. Weller, 113 Tenn., 70.
126 Tenn. 677Weidner v. Friedman (1912)
1. DISORDERLY HOUSES. Keeping one is a nuisance and misdemeanor; remedy by fine, imprisonment, and abatement in criminal court. The keeping of a disorderly house is a nuisance, both at common law and under our statute. Such offense is a misdemeanor, and the ordinary remedy is in the criminal court, where fine and imprisonment may be most effectively imposed and inflicted, and judgment of abatement may be entered. (Post, p. 681.) 2. INJUNCTION. Maximum punishment that may be imposed by chancery for contempt in violating its injunction. The chancery court can, for contempt in violating its injunction, impose no greater punishment than a fine of fifty dollars and imprisonment for ten days. (Post, p. 683.) 3. DISORDERLY HOUSES. Cannot be prevented by an injunction against a congeries of them, when blame is not appor-tionable. The chancery court has only a limited jurisdiction to grant relief against the maintenance of a disorderly house, at the suit of a private person, and can do so only when he shows special and peculiar injury to himself, different in kind from that suffered by the general public; and hence it has no 'jurisdiction of bills by private property owners to prevent the operation of a congeries of disorderly houses in a “red light district,” by an injunction against the several owners, proprietors, and inmates of such houses, where it is practically impossible to apportion the blame, or to ascertain from the evidence the jurisdictional facts as to how much each house is responsible for the special injury alleged. (Post, pp. 681-684.) Case cited and approved: Weakley v. Page, 102 Tenn., 179. 4. SAME. Renting, conducting, or being an inmate is a criminal offense; punishment; abatement. The renting of a house to be used for a disorderly house, or conducting a house as such, or being an inmate of such house,, constitutes a criminal offense, subject to heavy fines and imprisonment for amy term less than twelve months; and the houses can be broken up. (Post, p. 684.) 5. NUISANCES. .Injunctive relief against, must be promptly applied for, or it will, be refused. Injunctive relief against the maintenance of a nuisance must be promptly applied for, or it will be refused upon the ground of laches. (Post, pp. 684, 685.) Gases cited and approved: Caldwell v. Knott, 10 Yerg., 210, 212; Madison v. Copper Co., 118 Tenn., 331, 351-355; Weller v. Smeaton, 1 Cox, 103; Reid v. Gifford, 6 John. Chy. (N. Y.), 19. 6. DISORDERLY HOUSES. Will not be enjoined after their existence for more than twenty-five years. A bill to enjoin, as a nuisance, the maintenance of a congeries of disorderly houses in a “red light district,” which have existed and have been in operation there for more than twenty-five years, will be dismissed for laches. (Post, p. 685.) See citations under the preceding headnote. 7. INJUNCTIONS. Punishment for contempt in violation of injunction, though the bill is finally dismissed. Although the chancery court is without jurisdiction to enjoin the, maintenance of a congeries of disorderly houses, the dismissal of such bills in the supreme court will not affect the contempt proceedings, instituted in the chancery court, for violation of the injunction granted in advance of a hearing on the merits, but since the injunction order was such as would have been superseded, if timely application had been made therefor, the imprisonment will be remitted. (Post, pp. 685, 686.)
126 Tenn. 687Denton v. Miller (1912)
1. APPELLATE JURISDICTION. Constitutional question abandoned on appeal does not give supreme court jurisdiction, and cause will be transferred to court of civil appeals. Where the hill charged the unconstitutionality of the statute (Acts 1907, ch. 236) under which the defendant county board of education was created, hut the question appears to be abandoned upon appeal, by failure of the brief of complainants to refer to the question, and there being nothing in the act which would justify the supreme court in taking up the question on its own motion, there is no constitutional question before the court, and the appellate jurisdiction is entirely with the court of civil appeals, and the cause will be transferred to that court. Acts cited and construed: Acts 1907, ch. 236.
126 Tenn. 689Brown v. Sullivan County (1912)
1. CONSTITUTIONAL LAW. Statute authorizing Sullivan county to issue road bonds is not unconstitutional as containing matters not in its caption. The statute (Private Acts 1911, ch. 620), authorizing Sullivan county to issue its bonds for road purposes, is not unconstitutional, as containing matters not covered by its caption and incongruous therewith. {Post, p. 691.) Acts cited and construed: Private Acts 1911, ch. 620. 'Constitution cited and construed: Art. 2, sec. 17. 2. SAME. Counties may be districted according to population or area; limit of number under each plan; contemporary legislative construction of constitutional provision. The constitutional provision (art. 6, sec. 15) that “The different counties of this State shall be laid off, as the general'assembly may direct, into districts of convenient size, so that the whole number in each county shall not be more than twenty-five, or four for every one hundred square miles,” intrusted to the legislature the manner,of districting the counties, according to a population basis or a territorial basis, as the legislature should think best. If the county was districted on a population basis, then the entire number of districts is limited to twenty-five. If the county was districted in proportion to its area, then the constitution limits the number of districts to not more than four for every one hundred square miles. There was a contemporaneous legislative construction of said constitutional provision, as evidenced by the act of 1835 (Acts 1835-36, ch. 1, sec. 2), re-enacted in the Code of 1858, and reproduced as section 97 in Shannon’s Code, that it authorized the legislature to district the counties, upon a population basis, a proper construction and one that will not be disturbed after such long acquiscence. Therefore, a county (Sullivan) of four hundred and thirty square miles, divided into twenty-two districts under a statute authorizing it, is not unconstitutionally organized, and the county court thereof is not an illegal body, for that reason. (Post, pp. 691-694.) Code cited and construed: Sec. 97 (S.); sec. 84 (M. & V.); sec. 79 (T. & S. and 1868). Acts cited and construed: Acts 1835-36; ch. 1, sec. 2. Constitution cited and construed: Art. 6, sec. 15; art. 5, sec. 12 of constitution of 1796.
126 Tenn. 695Logan & Maphet Lumber Co. v. Cross (1912)
1. RES ADJUDICATA. Decree on demurrer is, when and when not. A decree overruling or sustaining a demurrer is res adjudicata. Where a demurrer is sustained, and the hill is dismissed, that is a clear adjudication on the facts of the case stated in the bill. Where the hill well states a single ground of relief and a direct demurrer thereto is overruled, and it can he thus seen precisely on what the court acted, that state of facts must he treated in that litigation as sufficient to furnish ground of relief, if substantially proved in the evidence. Where the bill presents several grounds of relief, and it can be seen that the court acted upon each ground, the decree is res adjudicata; but a general judgment overruling a demurrer to a bill presenting several grounds of relief, without a written opinion showing ,the ground of the court’s action, amounts only to a decision that there is enough equity in the hill to require an answer. Code cited and construed: Sec. 4889 (S.); sec. 3874 (M. & V.); sec. 3157 (T. & S. and 1858). Cases cited and approved: Murdock v. Gaskill, 8 Bax., 22; Rodgers v. Dibrell, 6 Lea, 69, 74; Uhlrick v. Theime, 13 Lea, 320; Battle v. Street, 85 Tenn., 291; Jourolmon v. Massingill, 86 Tenn., 90; Clark v. Pence, 111 Tenn., 20, 26, 27. 2. SAME. Same. Decree overruling demurrer on every ground is conclusive; case in judgment. Where a demurrer assailed a bill upon the ground that complainant was not entitled to relief (1) for want of equity in the bill, and because he participated in the fraud therein alleged, (2) because the fraud alleged was not one of which he had the right to complain, (3) because the former adjudication is a bar to the present action, and (4) because the bill showed on its face that the cause of action accrued more than one year after the reversal of the judgment for error before the bill was filed, the supreme court’s judgment that, in every respect and upon every ground, the demurrer was not well taken, and affirming the chancellor’s decree in overruling the same, and remanding the cause for answer and further proceedings, is res actjwMeala on the same points contained in a new bill filed by complainant within one year after his voluntary dismissal of his first bill; and such decree overruling the demurrer is binding on the defendants, and the questions so made in the demurrer and so overruled cannot be again made upon the hearing where the allegations are sustained by the evidence.
126 Tenn. 702Southern Railway Co. v. Michaels (1912)
FROM KNOX. Appeal from the Circuit Court of Knox County to the Court of Civil Appeals, and by certiorari from tbe Court of Civil Appeals to the Supreme Court. — E. M. Webb, Circuit Judge.