128 Tenn.

Volume 128 — Tennessee Reports

71 opinions

128 Tenn. 1Nance v. Piano Co. (1913)
1. INNKEEPERS. Lien. At common law innkeepers had a lien upon baggage brought upon the premises by guests, whether it belonged to the guests or to third persons; but such lien did not exist in favor of boarding house keepers. (Post, p. 5.) Cases cited and approved: Hunter v. Sevier, 15 Ten-n., 130; Cook v. Kane, 13 Ore., 482; Black v. Brennan, 5 Dana (Ky.), 310; Singer Mfg. Co. v. Miller, 52 Minn., 516; Meacham v. Galloway, 102 Tenn., 415. 2. LIVERY STABLE KEEPERS. Lien. At common law a livery stable keeper did not bave a lien such as that given to innkeepers. (Post, p. 6.) Code cited and construed: Sec. 3556 (S.). Cases cited and approved: McGee v. Edwards, 87 Tenn., 506; Caldwell v. Tutt, 78 Tenn., 258. 3. INNKEEPERS. Eminent domain. Liens by boarding house keepers. Validity of statute. Shannon’s Code, sec. 3590, giving the keepers of boarding and lodging houses a lien on all baggage and other goods, brought into such house by any guest, to secure payment of sums due for board or lodging, is valid, and does not violate Const. Tenn., art. 1, sec. 21, prohibiting property from being taken without just compensation. (Post, pp. 6, 7.) Cases cited and approved: Waters v. Gerard, 189 N. Y., 302; Arendale v. Morgan & Co., 37 Tenn., 703; Guano Co. v. Hunt, 100 Tenn., 89. 4. CONSTITUTIONAL LAW. Innkeepers. Due process of law. The statute does not violate Const., art. 1, sec. 8, prohibiting one from being deprived of property, except by the law of the land. (Post, pp. 6, 7.) 5. SALES. Conditional sales. A conditional vendor only has a lien as security for the purchase money by the retention of title, and does not own the property absolutely. (Post, p. 7.) Constitution cited and construed: Art. 1, sec. 8; art. 11, sec. 8. Cases cited and approved: Southern Ice & Coal Co. v. Alley, 154 «S. W., 536; McGee v. Edwards, 87 Tenn.,. 606; Motlow v. State, 125 Tenn., 589. 6. CONSTITUTIONAL LAW. “Law of the land.” Abolishing common law. The legislature is not prohibited from changing or abolishing the common law in force at the adoption of the State constitution, in the absence of restriction in the State or Federal Constitution; the phrase “law of the land" as used in the State Constitution, merely referring to the common and statute law then existing, but not prohibiting the change of the common law. (Post, pp. 8,9.) Case cited and approved: Prescott v. Duncan, 148 S. W.,. 299. Case cited and distinguished: Harbison v. Knoxville Iron Co., 103 Tenn., 421.
128 Tenn. 11Nolan Bros. Lumber v. Dudley Lumber Co. (1913)
1. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Set-off. The debtor of an insolvent creditor, who has assigned, for the benefit of creditors, the obligation evidencing the indebtedness, may set off against the demand in the hands of the assignee any indebtedness, whether matured or unmatured due from the insolvent. (Post, p. 15.) Cases cited and approved: Trust Co. v. Bank, 91 Tenn., 336; Spaulding v. Backus, 122 Mass., 553; Gatewood v. Denton, 40 Tenn., 381; Litterer v. Berry, 72 Tenn., 193; Catron v. Cross, 50 Tenn., 584. 2. PRINCIPAL AND SURETY. Remedies of surety. A surety or an indorser of a promissory note, who pays the debt due from his principal, may, if the principal be insolvent, enforce an equitable set-off against any demand' sued on by such principal. (Post, p. 16.) Case cited and approved: .Bank v. Kendrick, 92 Tenn., 437. 3. SET-OFF AND COUNTERCLAIM. Right to set-off. Under Shannon’s Code, see. 4639, providing that a defendant may plead demands matured when offered in set-off, and any equities between defendant and the original party under whom plaintiff claims, which by law have attached to the demand in plaintiff’s handstand for which defendant would be entitled to recover against the original party, the right of an indorser to compensation for the payment of a note of plaintiff’s assignor is an equity which may be offered in a set-off in an action by the assignee; the assignor being insolvent. (Post, pp. 16, 17.) Cases cited and approved: Taylor v. Deakins, 77 Tenn., 523; Moore v. Weir, 35 Tenn., 46; Bank v. Kendrick, 92 Tenn., 437. Code cited and construed: Sec. 4639 (S.). 4. SET-OFF AND COUNTERCLAIM. Rights of assignee. Where defendant was an indorser of a note given by plaintiff’s assignor, the assignment of a debt due from defendant to the assignor will not preclude defendant from claiming an equitable set-off; it appearing that the assignor was insolvent at the time of the execution of the note and the making of the assignment, the bare fact that defendant did not pay the note until after the assignment not. affecting its rights. (Post, pp. ■ 18, 19.) Cases cited and approved: Merwin v. Austin, 58 Conn., 22; Craighead v. Swartz, 219- Pa., 149; Beaver v. Beaver, 23 Pa., 167; Scott v. Timberlake, 83 N. C., 151; Williams v. Helme, v. Dillard, 32 Ya., 31; Collins v. Robin, 10 Barns, S. C., 777; 16 N. C., 151; McKnight v. Bradley, 10 Rich. Eq., 557; Féazle Smith v. Felton, 43 N. Y„ 419; Coffin v. McLean, 80 N. Y., 560; Scott v. Armstrong, 146 U. S., 499; Armstrong v. Warner, 49 Ohio St., 376; Eigenmann v. Clark, 21 Ind. App., 129; Sewing Machine Co. v. Zachary, 2 Tenn., 478. Cases cited and disapproved: Huse v. Ames, 104 Mo., 91; Walker v. McKay, 2 Mete., 294; Nettles v. Huggins, 8 Rich., 273; Chance v. Isaacs, 2 Edw. Ch., 348; Richardson v. Anderson, 109 Md., 641. 5. SET-OFF AND COUNTERCLAIM. Assigned rights. Rights of indorser. Where an indorser of a promissory note paid the same upon the default of the insolvent maker, the mere fact that the note was reassigned to the indorser will not preclude it from claiming to be treated as a surety, and so entitled to set off the note against a claim assigned by the maker to plaintiff. (Post, p. 20.) 6. SET-OFF AND COUNTERCLAIM. Bill's and notes. Indorser. Statutes. Negotiable Instruments Act (Laws 1899, ch. 94), sec. 50, providing that, where an instrument is negotiated back to a prior party, such party may, subject to the provisions of the, act, reissue and further negotiate the same, but he is not entitled to enforce payment against any intervening party, when read in connection with section 121, providing that, where an instrument is paid by a party secondarily liable, it is not discharged, but the party so paying is remitted to his former rights, will not preclude an indorser of a promissory note, who paid the same upon the insolvency of the maker, from claiming a set-off against one to whom the maker had assigned a debt due from the indorser. (Post, p. 21.)
128 Tenn. 22Solvent Savings Bank & Trust Co. v. Walker (1913)
1. COURTS. Appellate jurisdiction. Transfers. Statutory provisions. Acts 1909, ch. 192, providing that, when cases are appealed to the supreme court which rightly belong to the court of civil appeals, the supreme court shall transfer the case to the court of civil appeals, and vice versa, enacted to abolish the practice under which the courts dismissed for want of jurisdiction cases brought to the wrong court, covers all cases brought to either of the courts, whether by appeal or error; and where a case is brought to the supreme court by writ of error, which rightly belongs to the court of civil appeals, the supreme • court will transfer the case to the court of civil appeals. (Post, p. 23.) 2. STATUTES. Construction. Legislative intent. The court, construing a statute, will seek to ascertain the legislative intent, by considering the words used and the meaning which the legislature attached to them, where they are capable of being used in more than one sense, and the context, when taken in connection with the nature of the subject, may require that the ordinary meaning of the words used be restricted or enlarged to effectuate the legislative intent. (Post, pp. 25, 26.) Case cited and approved: Standard Oil Co. v. State, 117 Tenn., 618, 638-641.
128 Tenn. 27Turner v. State (1913)
JURY. Competency. Opinion concerning the law. “Good and lawful man.” In a prosecution for the sale of intoxicating liquor outside a city within four miles of a school, a venireman who stated that he was in favor of enforcing the law outside of the city, but though saloons should be permitted to run in the city, was not qualified as a “good and lawful man” to sit upon the jury, within the meaning of the law governing the- selection of juries, as found in Shannon’s Code, secs. 5801, 5804, 5810, 5818, since he believes in partiality in the enforcement of the laws. (Post, p. 34.) Cases cited and approved: Fletcher v. State, 25 Tenn., 249; Ray v. State, 108 Tenn., 282.
128 Tenn. 35Woolwine v. Mason (1913)
1. INSURANCE. Fire Insurance. Contracts by foreign insurance companies. Validity. Under Shannon’s Code, secs. 3274-3369, making it unlawful for any insurance company to make a contract of insurance, except as authorized by law, and prescribing the terms on which foreign insurance companies may be authorized to do business in the state, and making any person soliciting insurance on behalf of a foreign insurance company not complying with the law guilty of a misdemeanor, and authorizing licensed insurance brokers to place insurance with foreign companies, a contract of insurance made by a foreign insurance company not authorized to do business in the state, through an agent not an insurance broker, is unlawful. (.Post, pp. 39-41.) Code construed: Sees. 3275, 3292, 3314, 3315, 3325-3341 (S.). 2. INSURANCE. Fire insurance. Unlawful contracts. Liability of agent. Under Shannon's Code, sec. 3316, making an agent personally liable on all contracts of insurance unlawfully made by him in behalf of any insurance company not authorized to- do business in the State, an agent not a licensed insurance broker, who procures through another agent in a sister State insurance contracts from foreign insurance companies not authorized to do business in the State, is liable to the amount of the policies so obtained, though insured knew of the violation of the law. • (Post, pp. 42, 43.) Cases cited and approved: Burgess v. Jackson, 18 App. Div., 296; Latham v. Harrod, 71 Kan., 565; Hartman v. Hollowell, 126 Iowa, 643; Noble v. Mitchell, 100 Ala., 530; Price v. Garven, 69 S. W., 986. Code construed: Secs. 3316, 3314, 3315.
128 Tenn. 45Metzner v. State (1913)
1. JURY. Waiver. Effect as to punishment. Under Const., art. 6, see. 14, providing that no fine shall be laid on any citizen exceeding $50, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than $50, a person indicted for selling intoxicating liquors within four miles of a schoolhouse under Acts 1909, ch. 1, fixing the punishment therefor at a fine of not less than $50 nor more than $600, who waived a jury trial, could not be sentenced by the trial judge to pay a fine of more than $50, since the constitution has conferred upon juries exclusive jurisdiction to levy a fine exceeding that amount, and such jurisdiction cannot be conferred upon any other tribunal by consent or waiver of the parties. {Post, p. 46.) Acts cited and construed: Acts 1909, ch. 1. 4 Constitution cited and construed: Const., sec. 14, art. 6. 2. JURY. Trial by jury. Waiver in misdemeanor cases. The defendant in a misdemeanor case, may waive a jury trial. (Post, p. 47.) Cases cited and approved: In re McQuown, 19 Okla., 347.
128 Tenn. 50Farnsworth-Evans Co. v. Chicago, M. & G. R. (1913)
3. CARRIERS. Carriage of goods. Connecting carriers. Liability. Delivery. Where goods, shipped over the roads of two connecting carriers under a bill of lading providing that the legal remedy for loss or damage should be only against the particular carrier in whose custody they actually were, were destroyed by Are after they had been placed upon a spur track at the junction point, and after waybills had been delivered to the common agents of the carrier at that point, who had made the clerical entries showing the exchange, but the cars containing the shipment had not yet been inspected and accepted by the connecting carrier in accordance with its custom, there was no actual completed delivery to the connecting carrier, and the first carrier is liable for the loss. (.Post, pp. 53, 54.) ■Cases cited and approved: Railroad v. Barnett, 69 Ark., 150; Hewett v. Railroad, 63 Iowa, 611; Buston v. Railroad (C. C.), 116 Fed., 235; Washburn-Crosby Co. v. Railroad, 180 Mass., 252; Merriam v. Railroad, 20 Conn., 354; Converse v. Transportation Co., 33 Conn., 166; Texas & Pacific Railroad Co. v. Clayton, 173 U. S., -348. ’2. CARRIERS. Carriage of goods. Connecting carriers. Liability. Delivery. The fact that the cars were customarily hauled by an engine of the connecting carrier to the track where they were inspected, for which a charge was made against the initial carrier, does not show actual possession by the connecting carrier before inspection and acceptance. {Post, p. 58.) Case cited and approved: Huntting Elevator Co. v. Bosworth, 179 U. S., 415. '■3. CARRIERS. Carriage of goods. Connecting carriers. Liability. Delivery. Nor was the lodgment of the waybills with the agent, even though he be considered the agent of the connecting carrier, conclusive of delivery, so long as the physical movement to the track where the cars were inspected remained to be made by the first carrier. {Post, p. 59.) Oases cited and approved: Missouri P. R. Co. v. McFadden, 154 TJ. S., 155; Bosworth v. Railroad Co., 87 Fed., 83; Railroad v. Bickley, 119 Tenn., 528; Mt. Vernon Co. v. Railroad, 92 Ala., 296; Aetna Ins. Co. v. Wheeler, 49 N. Y., 616; Insurance Co. v. Railroad, 124 Tenn., 57.
128 Tenn. 60Odeneal v. State (1913)
1. CRIMINAL. LAW. Appeal and error. Bill of exceptions.. Evidence on motion for new trial. Where the record in a criminal case showed that the defendant had pleaded not guilty, but testimony was introduced on the-motion for a new trial that he had never been properly arraigned, the question cannot be considered on writ of error, where the bill of exceptions fails to show that it contains all the evidence offered on the motion for a new trial. {Post, p. 62.) Cases cited and approved: Eatherly v. State, 118 Tenn., 371; Ransom v. State, 116 Tenn., 355. 2. CRIMINAL LAW. Instructions. Reasonable doubt. “Moral certainty.” An instruction which correctly defines a reasonable doubt, and then states that, in order to convict, it is not required that the guilt of the defendant be established to an absolute certainty, but to a “moral certainty,” that is, one which convinces and directs the understanding, and satisfies the reason and judgment of the truth of the charge, is not erroneous. {Post, p. 63.) 3. CRIMINAL LAW. Instructions. Alibi. While it is better to treat an alibi as a point of evidence, and not as a defense, an instruction that the defense of alibi, when clearly and fully established by the proof, is a perfect defense, but that the jury should consider the proof with strictness and caution, as it is easily concocted, is not erroneous, where it also states that if, weighing the proof of the alibi impartially in connection with all the circumstances in the case, the jury have a reasonable doubt as to the defendant’s presence at the place of the crime, they should acquit him; any impropriety in the use of the words “when clearly and fully established by the proof,” as requiring proof beyond a reasonable doubt, being sufficiently corrected by the rest of the instruction, so as not to mislead the jury. (Post, pp. 64, 65.) Cases cited and approved: Thompson v. State, 24 Tenn., 138, 139; Chappel v. State, 45 Tenn., 92; Jefferson v. State, 3 Shan., 329, 333; Wiley v. State, 64 Tenn., 662; Legere v. State, 111 Tenn., 368, 377; Lawless v. State, 72 Tenn., 173, 181, 182;. Owen v. State, 89 Tenn., 698. 4. CRIMINAL LAW. Appeal and error. Bill of exceptions. Evidence on motion for new trial. Where the bill of exceptions in a criminal case does not state that it contains all the evidence in support of a motion for new trial, error in not granting the motion on the ground of newly discovered evidence cannot be considered. (Post, p. 66.) x '5. HOMICIDE. Evidence. Sufficiency. Cause of death. In a prosecution for homicide, evidence held sufficient to show that the death of the deceased was due to the injury inflicted by the defendant, and not to the surgeons who operated after he was wounded. (Post, p. 67.) ‘6. HOMICIDE. Cause of Death. Surgical operation. One who unlawfully inflicts a dangerous wound upon another is liable for his death, whether it be direct, or occasioned by a surgical operation made necessary by the wound and performed with reasonable shill. (Post, p. 68.) Cases cited and approved: Noble v. State, 22 L. R. A. (N. S.), 841-848; Tibbs v. Com., 138 Ky„ 558; McCoy v. Com., 149 Ky., 447; Perdue v. State, 135 Ga., 277; Johnson v. State (Fla.), 59 South., 894.
128 Tenn. 70Dixie Fire Insurance v. Nelson (1913)
1. EMBEZZLEMENT. Acts Constituting. Statutes. Construction. To establish, embezzlement, under Shannon’s Code, see. 6576, punishing any officer, agent, or clerk of any company, or any clerk or agent of a firm or’ private person, who embezzles or fraudulently converts to his own use the money or property of another, which has come into his possession by virtue of his employment, it must appear that accused occupied the relation of officer, agent, or clerk, and that he fraudulently converted to his own use property of another, which came into his possession by virtue of the employment, and where the relation of debtor and creditor existed between accused and prosecutor at the time of the acts complained of there could be no embezzlement. (Post, p. 76.) Code construed: Sec. 6576 (S.). 2. INSURANCE. Fidelity insurance. Embezzlement. Acts constituting. Where a general agent of an insurance company, authorized to appoint local agents, who reported to him the insurance effected by them and the amount of premiums, and remitted to him the premiums, he himself being required to report daily to the company the amount of premiums, and to make a monthly report showing- balances due, which must be paid within 60 days, was permitted to deposit in his own name premiums collected and received from local agents without any objection from the company, which knew the facts and also that the general agent was the general agent of other insurance companies, and that he kept the funds of all the companies in his individual account in the banks, and cheeked on them all to meet the needs of his business, the agent, failing to account for premiums collected and deposited, was not guilty of embezzlement of the funds of the company, within a bond conditioned to reimburse the company for losses by embezzlement. (Post, p. 76.) Cases cited and approved: State of Washington v. John Covert, 14 Wash., 662-667; State v. McFetridge, 84 Wis., 473; United States Fidelity & Guaranty Co. v. People’s Bank, 167 S. W., 414; Williams v. U. S. Fidelity Co., 105 Md., 490; Monongahela Coal Co. v. Fidelity Co., 94 Fed., 732. Case cited and disapproved: Com. v. Smith, 129 Mass., 104-110.
128 Tenn. 82Swift & Co. v. Memphis Cold Storage Warehouse Co. (1913)
1. EQUITY. Jurisdiction of court of chancery. “All civil causes of action.” Under Shannon’s Code, sec. 6109, extending the jurisdiction of the chancery court to all civil causes of action triable in the circuit court, except for injuries to person, property, or character involving unliquidated damages, the words “all civil causes of action” mean only those civil actions which could have originated in the circuit court; the purpose of the act being to give litigants the option of bringing suits either in the circuit or the chancery court. (Post, p. 87.) Acts cited and construed: Acts 1877, ch. 97. Case cited and approved: Simmons v. Leonard, 89 Tenn., 623. .2. EQUITY. Jurisdiction of court of chancery. Shannon’s Code, sec. 6109, giving the court of chancery jurisdiction of all civil causes of action heretofore triable in the circuit court, does not give the court of chancery exclusive, but merely concurrent, jurisdiction of such actions. (Post, p. 87.) Acts cited and construed: Acts 1877, ch. 97. ■Cases cited and approved:' Jackson v. Nimmo, 71 Tenn., 597; Ramsey v. Temple, 71 Tenn., 252; Williams v. Burg, 77 Tenn., 459; Hawkins v. Kercheval, 78 Tenn., 642; Frazier v. Browning, 79 Tenn.,'254; Glenn v. Moore, 79 Tenn., 256; State V. Keller, 79 Tenn., 401; Kirkseys & Son v. Crandall, 90 Tenn., 532; Ducktown Sulphur & Iron Co. v. Fain, 109 Tenn., 65; McCreary v. First National Bank, 109 Tenn., 129; Trust Co. v. Hotel Co., 124 Tenn., 664. -15. EQUITY. Jurisdiction of court of chancery. “Liquidated damages.” Under Shannon’s Code, sec. 6109, extending the jurisdiction of the court of chancery to all civil causes of action, except for injuries to person, property, or character involving unliquidated damages, an action for damages for injuries to eggs caused hy the negligence of the warehouseman in allowing them to absorb fruity flavors cannot be maintained in the court of chancery, for not only is the action based on an injury to property, but the damages are unliquidated-; the contract of bailment not fixing the amount; and “liquidated damages” being the amount of damages which have been fixed by anticipatory agreement between the parties (citing 5 Words and Phrases, 4174.) (Post, p. 93.) Acts cited and construed: Acts 1877, ch. 97; Acts 1851-52, ch. 365, sec.' 9. Code cited and construed: Sec. 6131 (S.); see. 4321 (T. & S. and 1858). Cases cited and approved: Ramsey v. Temple, 71 Tenn., 252; Kirtseys & Son v. Crandall, 90 Tenn., 532. ON PETITION TO BEHEAR. 4. EQUITY. Statutory provisions. Repeal by implication. Acts 1851-52, ch. 365, sec. 9, which was carried into Shannon’s Code as section 6131, provides that the filing of an answer is a waiver of objection to the jurisdiction of the court of chancery and the cause will not be dismissed, but will be determined on its merits, although the court be of the opinion that the matters complained of are of legal cognizance. Acts 1877, ch. 97, carried into Shannon’s Code as section 6109, provides that the court of chancery shall have jurisdiction of all actions triable in the circuit court, except actions for injuries to person, property, or character involving unliqui-dated damages. Held, that the act of 1851, in so far as it applied to the exceptions in the act of 1877, was repealed by implication, although it remained in force as to objections to jurisdiction over the person of the defendant or the local status of the litigation, and consequently the filing of an answer by the defendant is not a waiver of objections to jurisdiction, where the action is one falling within the exceptions of the statute. (Post, p. 96.) Acts cited and construed: Acts 1851-52, ch. 365; Acts 1877, ch. 97. Code cited and construed: Sec. 6131 (S.); sec. 4321 (T. & S. and 1858). Cases cited and approved: Holcomb v. Canady, 49 Tenn., 612; Frazier v. Tuhh, 49 Tenn., 666; Rankin v. Craft, 48 Tenn., 712; Bennett v. Wilkins, 45 Tenn., 240; Lowry v. Naff, 44 Tenn., 372; McNairy v. Nashville, 61 Tenn., 251; Dean v. Snelling, 49 Tenn., 484; Kirkman v. Snodgrass, 40 Tenn., 370; Falls v. Building & Loan Association, 105 Tenn., 24; Baker v. Mitchell, 105 Tenn., 610-612. 5. COURTS. Equity. “Jurisdiction.” Consent. Waiver. “Jurisdiction” is the power constitutionally conferred upon a judge or magistrate to determine causes according to law and' carry his sentence into execution; hence as the act of 1877 (Shannon’s Code, sec. 6109), specifically excepts certain causes from the jurisdiction of court of chancery, a party cannot, even by express waiver or consent, confer upon that tribunal jurisdiction to hear the excepted causes. (Post, p. 100.) 6. BAILMENT. Degree of care. A bailee for hire is required to exercise only ordinary care, which is that which a capable person engaged in the same work is-accustomed to exercise. (Post, p. 101.) Case cited and approved: Lancaster Mills v. Merchants’ Compress Co., 89 Tenn., 1-33. 7. EQUITY. Warehousemen. Injuries to property. Liquidated Damages. Where a warehouseman stored eggs, issuing a receipt stating that the property was stored at the owner’s risk, that its condition and quality were unknown, but that it would be-returned to the owner at his request, the contract is a mere bailment for hire, obligating the bailee to use ordinary care, and the law cannot by implication raise an agreement on the part of the warehouseman to return to the owner eggs of good and merchantable quality, or to pay the difference between the - market value of stored eggs of good quality and the value of the eggs actually redelivered; hence an action for damages to the eggs stored is necessarily one for unliquidated damages. (Post, p. 101.) '8. LIMITATION OF ACTIONS. New action after reversal. Under Shannon’s Code, sec. 4446, providing that if an action is commenced within the time limited, and judgment is rendered against the plaintiff upon any ground not concluding his right ■of action, or is reversed on- appeal, he may commence a new action within one year, defendant, who secured a reversal because the action was improperly brought in the court of chancery, will he enjoined by the decree of reversal from setting up the defense of limitations against a new action begun within the year. (Post, p. 102.) Code cited and construed: Sec. 4446 (S.); see. 2755 (T. & S. and 1858). Cases cited and approved: Smith v. McNeal, 109 U. S., 426, 3 Sup. Ct., 319, 27 K Ed., 986; Cole v. Nashville, 45 Tenn., 639; Railroad v. Pillow, 56 Tenn., 248; Love v. White, 5 Tenn., 210; Chilton v. Scruggs, 73 Tenn., 313; Hughes v. Brown, 88 Tenn., 678.
128 Tenn. 103Stansbury v. Embrey (1913)
1. PRINCIPAL AND AGENT. Collection of note. Payment at bank. That a note is made payable at a particular bank, or at any bank, does not make tbe bank tbe owner’s agent to receive payment, if tbe note is not placed by bim witb tbe bank. (Post, p. 107.) Cases cited and approved: Cbeney v. Libby, 134 U. S., 68; Ward v. Smith, 7 Wall. (U. S.), 447; Hills v. Place, 48 N. Y.,' 520; Adams v. Hackensack, 44 N. J. Law, 638; Griswold v. Davis, 125 Tenn., 229. 2. TENDER. Notes. Payment at bank. Tbe making of a note payable at a named bank entitles tbe maker to tender payment there; a tender there being available to prevent a forfeiture and stop tbe running of interest, though tbe note be not at that bank when payment is tendered. (Post, p. 108.) Cases cited and approved: Cbeney v. Libby, 134 U. S., 68; Cbeney v. Bilby, 74 Fed., 52. 3. TENDER. Payment. As a rule, it is sufficient if a debtor tenders payment of a note on the due date at tbe place of payment, even though tbe creditor be absent; tbe debtor not being required to follow tbe creditor. (Post, p. 109.) Cases cited and distinguished: Southworth v. Smith, 7 Cush. (61 Mass.), 391; Hale v. Patton, 60 N. Y., 223. 4. MORTGAGES. Payment. Sufficiency of tender. Where tbe maker of a note secured by a trust deed located tbe payee in another State, and informed bim of bis' desire to pay tbe notes, which were then past due, and afterwards deposited funds in tbe bank used by tbe payee, there was sufficient tender of payment to prevent tbe latter from maturing the entire indebtedness for nonpayment, and foreclosing the trust deed. (Post, p. 110.) 5. BILLS AND NOTES. Place of payment. The making of notes payable “at any bank” in a city authorized the maker to require the holder of the notes to make his election at what bank he would receive payment, and on failure to elect, the maker could elect to make payment at a certain bank, and give notice of his election to the holder. (Post, p. 110.) Cases cited and approved: Brickett v. Spaulding, 33 Vt., 109; Barrett v. Eller, 51 N. C., 550.
128 Tenn. 112Smith v. Dixie Park & Amusement Co. (1913)
1. RELEASE. Joint tort-feasors. Statutes. Shannon’s Code, sec. 5570, providing that all releases, whether of a debt of record, or a contract under seal, or otherwise, shall have effect according to the intention of the parties, is confined to actions ex contractu only, and does not change the common law rule governing the release of one joint tort-feasor. {Post, p. 116.) Cases cited and approved: Snyder v. Witt, 99 Tenn., 622; Brown v. Kencheloe, 3 Cold., 192. Code cited and construed: Secs. 5570 (S.). 2. RELEASE. Joint tort-feasors. “Covenant not to sue” one joint wrongdoer. Effect. An instrument executed by a person sustaining a personal injury inflicted by joint wrongdoers, whereby he agrees to dismiss the suit against one of them, and not to reinstitute it, and whereby he agrees to hold him harmless from all liability by reason of the accident, is a “covenant not to sue,” and is' not a satisfaction of the liability of the other wrongdoer, and judgment may be recovered against him. {Post, p. 117.) Cases cited and approved: Bloss v. Plymale, 3 W. Va., 393; Ellis v. Esson, 50 Wis., 138; Gilbert v. Finch, 173 N. Y., 455; Louisville, etc., Co. v. Barnes, 117 Ky., 860; Carey v. Bilby, 129 Fed., 203; Chicago, etc., R. Co. v. Averill, 224 Ill., 516; Chamberlain v. Murphy, 41 Vt, 110; Robertson v. Trammell, 98 Tex., 364; Mathewson v. O’Kane, supra. Cases cited and disapproved: Ellis v. Bitzer, 2 Ohio, 89; Seither v. Philadelphia Traction Co., 125 Pa., 397; O’Shea v. Y. Y. C., etc., R. Co., 105 Fed., 559; Abb v. Nor. Pac. R. Co., 28 Wash., 428; McBride v. Scott, 132 Mich., 176; Ducey v. Patterson, 37 Colo., 216; Musolf v. Duluth Elec. Co., 108 Minn., 369.
128 Tenn. 123Deen v. Crenshaw (1913)
1. TAXATION. Inheritance tax. Appraisement and judgment. Under Acts 1893, ch. 174, sec. 12, providing that any interested person, not satisfied with an appraisement of property subject to an inheritance tax, shall have the right to file exceptions thereto in writing, on giving security to pay' all costs, together with whatever tax shall be fixed by the county court, and thereupon to have the county court hear such exceptions, that the county court shall have jurisdiction to determine all questions of valuation and of the liability of the appraised estate for such tax, subject to the right of appeal, and that if an appeal is prosecuted to the circuit court the cause shall be heard <2e novo, the county and circuit courts have power to render a judgment for the amount of the tax and costs; their power not being limited to passing on the correctness of the valuations contained in the appraiser’s report, the proceeding amounting to a suit regularly instituted, notwithstanding section 14, expressly providing for a suit to enforce the tax lien on realty at the end of one year after the decedent’s death, and section 15, providing for a suit commenced by notice or bill where any tax has not been paid according to law. (Post, pp. 128-130.) Acts cited and construed: Acts 1893, ch. 174. 2. TAXATION. Inheritance tax. Collection. Attorney’s fees. Under Acts 1893, ch. 174, sec. 12, providing that .any interested person, not satisfied with the appraisement of property subject to an inheritance tax, shall have the right to file exceptions thereto, on giving security to pay all costs, together with whatever tax shall be fixed by the county court, whereupon such court shall have jurisdiction of the matter, subject to the right of appeal to the circuit court, section 14, relative to actions to enforce a tax lien on realty, which provides that, if the court adjudges the tax to he due and a charge upon the real estate, it shall tax up as a part of the costs a reasonable attorney’s fee for the clerk’s attorney, and section 16, providing that clerks of .county courts shall he the agents of the state for the collection of such tax, that it shall he their duty when necessary to employ an attorney, and that the fees of such attorney shall he taxed up by the court as costs against the delinquent, if he shall be held liable, it was proper for the county court, on the hearing of exceptions to the ap-praisement, which were overruled, to tax a reasonable attorney’s fee for the clerk’s attorney as a part of the costs. (Post, pp. 131, 132.) ' Cases cited and approved: Harrison v. Johnston, 109 Tenn., 245, 26á, 266, 267; Shelton v. Campbell, 109 Tenn., 690. 3. TAXATION. Inheritance tax. Collection. Attorney’s fees. On appeal in a proceeding for the collection of an inheritance tax, in which the county court taxed an attorney’s fee for the attorney of the clerk of the county court, the supreme court could make such reduction in the fee allowed as would bring it down to a reasonable amount, and commensurate with the work done and the responsibility assumed. (Post, pp. 131, 132.) 4. TAXATION. Inheritance tax. Collection. Witness fees. In an inheritance tax proceeding, the county court had power to allow special compensation to an expert witness, who testified as to the value of real estate. (Post, p. 133.) 5. APPEAL AND- ERROR. Record. Questions presented for-review. Expert witness. Fees. In an inheritance tax proceeding, an allowance of $30 to an expert witness on the value of real estate could not be held erroneous, where the facts upon - which the trial court acted were not before the supreme court. (Post, p. 133.) 6. TAXATION. Inheritance tax. Collection. Costs. Where, on the hearing of exceptions to the appraisement of real property subject to an inheritance tax, by agreement of the parties the valuation was reduced to the amount received on a sale subsequent to the appraisement, hut not to the valuation insisted on in the exceptions, and the county court thereupon overruled the exceptions, the reduction by agreement, based on a fact transpiring after the taking of the appeal to the county court, did not make the heirs the successful parties on the appeal, and hence costs were properly taxed against them. (Post, p. 133.) 7. COSTS. On appeal. Collection of inheritance tax. In a proceeding to appraise property subject to an inheritance tax against the heirs and administrator of a decedent, the county court rendered judgment against the heirs for the amount of the tax on the real estate, and against the administrator for a tax on certain personal property. On an appeal by the heirs alone, the circuit court sustained their exception only to the tax against the personal property. Held; that the only contest between the heirs and the State was in respect to the tax on the real estate, and, having lost this contest, they were properly taxable with the costs, notwithstanding the sustaining of the exception as to the tax against the administrator. (Post, p. 133.) 8. APPEAL AND ERROR. Review. Questions not raised below. In a proceeding to collect an inheritance tax, where no objection that the tax was not then due was made in'the circuit court, the immaturity of the action was waived, and could not be urged on appeal. (Post, p. 134.) Acts cited and construed: Acts 1893, ch. 174, sec. 4. 9. TAXATION. Inheritance tax. Time for collection. Acts 1893, ch. 174, sec. 4, provides that, if an inheritance tax is paid within three months after the death of the deceased, a discount of five-per cent, shall be allowed, and if not paid at the end of one year from the death of a decedent, “at which time it shall be due,” interest shall be charged. Section 8 makes it the duty of persons to whom real estate descends to notify the clerk of the county court immediately upon the vesting of the estate. Section 14 requires that, when any such tax on real estate shall have remained due and unpaid for one year, the clerk of the county court shall proceed hy bill or petition to enforce the lietí, and also provides that, if the clerk knows of any good and sufficient reason why payment of the tax has been delayed, he shall not be compelled to file the bill immediately upon the tax becoming due, but in his discretion may postpone the bringing of such suits to such times as he deems proper within the limits of the act. Section 3 requires the owner of personal estate subject to the tax to make a full report and return to the clerk within one year, and within that time to enter into security for its payment, and provides that in case of failure so to do the tax shall be immediately payable and collectible. Section 5 provides for the deduction of the amount of the tax by executors or administrators from legacies or distributive shares, and provides that every sum of money retained by any executor or administrator, or paid into his hands on account of any legacy or distributive share for the use of the State, shall be paid by him without delay to the county clerk. Held, that the tax is due at the death of the decedent, the expression “at which time,” in section 4, referring to the date of death, and hence, although the clerk of the county court might wait one year before proceeding to collect the tax, he was not bound to do so, and a judgment in a proceeding to collect the tax commenced within one year was not erroneous, although execution thereon should have been stayed until the expiration of one year. {Post, p. 135.)
128 Tenn. 137J. T. Fargason Co. v. Ball (1913)
1. FACTORS. “Conversion” by factor. Assertion of ownership. Though as a general rule any assertion of dominion over the personal property of another against his will is a conversion, and the defendant cannot justify by showing that he had no notice of complainant’s rights, yet, where a cotton factor received cotton for sale in good faith, and paid over the proceeds to the person purporting to be the true owner before notice of the owner’s rights, and had neither property nor proceeds in his possession when demand was made by the owner, he could not be said to have knowingly or conscientiously asserted any claim to the property or its proceeds against the owner, and there was consequently no “conversion.” (Post, p. 139.) Cases cited and approved: Taylor v. Pope, 45 Tenn., 413; Frizzell v. Rundle, 88 Tenn., 396; Bank v. Hill, Fontaine & Co., 99 Tenn., 42; Embry v. Galbreath, 110 Tenn., 297; Hughes v. Alston, 105 Tenn., 70. Cases cited and disapproved: Roach v. Turk, 56 Tenn., 708. 2. COURTS. Previous decisions. It is almost as important that the law should be certain as that it should be sound; hence, though sometimes the duty is imperative to overrule a former decision, the power should be sparingly exercised. (Post, pp. 141, 142.) 3. CHATTEL MORTGAGES. Foreign mortgage. Though a mortgagee of property under a foreign mortgage, duly recorded and valid in the foreign jurisdiction, can recover the property from a purchaser without knowlege in this State, yet, where cotton covered by a mortgage duly recorded in a. foreign State was consigned, without the knowledge or consent of the mortgagee, to a cotton factor in this State, the mortgagee could not recover from tlie factor, after he had in good faith sold the property and turned over the proceeds to his principal, since the contest was not over the property or proceeds. (Post, p. 142.) Case cited and approved: Frizzel v. Bundle, 88 Tenn., 413. Case cited and disapproved: Newsum v. Hoffman, 124 Tenn., 369.
128 Tenn. 143Maness v. Clinchfield Coal Corp. (1913)
1. MASTER AND SERVANT. Injuries to servant. Actions. Jury question. In a personal Injury action, evidence held sufficient to show that the servant at the head house of defendant’s mine was acting within the scope of his authority and about the business of the master, when he dumped coal into the chute and upon plaintiff. (Post, p. 150-152.) 2. MASTER AND SERVANT. Injuries to servant. Fellow servant. A master is not liable to a servant for injuries resulting from the negligence of a fellow servant engaged in the common employment, where there has been due care in the selection and employment of the fellow servant. (Post, p. 152-155.) Cases cited and approved: Railroad v. Wheless, 78 Tenn., 741; Railroad v. Edwards, 111 Tenn., 31; Railroad v. Lahr, 86 Tenn., 335; Fox v. Sandford, 36 Tenn., 36; Railroad v. Elliott, 41 Tenn., 611; Railroad v. Rush, 83 Tenn., 151. Cases cited and distinguished: Railroad v. Wheless, 78 Tenn., 741; Railroad v. Edwards, 111 Tenn., 31. 3. MASTER AND SERVANT. Injuries to servant. Negligence of fellow servant. Where a, servant employed to represent the master in the general supervision of the work departs from the scope of his employment and does the work of a fellow servant, the master is not liable for his negligence when so employed, hut if the negligent servant has been designated by the master as one to perform a personal duty, which the master owes to other servants, his negligence in the performanGe-of- that duty is the negligence of the master without regard to the general grade of his employment. (Post, p. 152-155.) 4. MASTER AND SERVANT. Injuries to servant. Duty to warn. Where a mining company employed a carpenter to repair a coal chute, down which coal was dumped while the carpenter was at work, it is the duty of the company to warn the carpenter before coal is dumped into the chute. (Post, p. 155-159.) Cases cited and approved: Western Electric Co. v. Hauselmann, 69 C. C. A., 346; Brewing & Malting Co. v. Bosch, 41 C. C. A., 482; Orman v. Salvo, 54 C. C. A., 265; Pantzar v. Mine Co., 99 N. Y., 368; McGovern v. Railroad, 123 N. Y., 280; Stone Co. 1 v.' Mooney, 61 N. J. L., 253; Peters v. George, 83 C. C. A., 408; Curley v. Hoff, 62 N. J. L., 760; Brick Co. v. Shanks, 69 Kan., 306; Hendrickson v. Gypsum Co., 133 Iowa, 89; Brice-Nash v. Barton Co., 79 Kan., 110; Bridge Co. v. Valente, 7 Peunnewill (Del.), 370; Coal Co. v. Hamilton, 107 Tenn., 705; Freeman v. Railroad, 107 Tenn., 340. Case cited and distinguished: Anderson v. Coal Co., 108 Minn., 455. 5. MASTER AND SERVANT. Injuries to servant. Negligence of fellow servant. Where a mining company had its carpenter repair a coal .chute, which was being used while the repairs were in progress, the master is liable for the negligence of another servant, who had been warning the carpenter before coal was dumped, where he dumped coal down the chute upon the carpenter without warning. (Post, p. 155-159.)
128 Tenn. 160Luster v. Garner (1913)
EASEMENTS. Extent of right. Obstruction. Gates. The owner of a servient estate can establish and maintain suitable gates at the termini of an easement of way acquired by an adjoining owner of farming lands by prescription; the prescriptive period maturing while the lands were uninclosed woodland, during which no gates or bars were maintained. (.Post, pp. 162, 163.) Cases cited and disapproved: Fankboner v. Corder, 127 Ind., 164; Shivers v. Shivers, 32 N. J. Eq., 578; Rogerson v. Shepherd, 33 W. Va., 307. Cases cited and approved: Ames v. Shaw, 82 Me., 379; Hartman v. Fick, 167 Pa., 18; Dyer v. Walker, 99 Wis., 404.
128 Tenn. 164Butler v. State (1913)
1. STATUTES. Title of Act. Crimes. Amending act. The title of Acts 1870-71, eh. 36, which was “An act to amend the laws upon the subject of trespass upon property and malicious mischief,” was broad enough to include section 1 of the act, which now appears as Shannon’s Code, sec. 6496, subsee. 8, forbidding the wanton destruction of valuable timber of another, since that title evidently intended to embrace the matters within the article of the Code of 1868 in which the original section appeared, and which was entitled “Trespass on Property, Malicious Mischief and Keeping Dogs That Kill Sheep.” (Post, pp. 166, 166.) Code cited and construed: Sec. 6496, subsec. 8 (S.). Acts cited and construed: Acts 1870-71, ch. 36. 2. TRESPASS. Cutting timber. Defenses. Right of possession. Where one of two parties, who held deeds which overlapped as to a portion of the premises, had an inclosure upon the property covered by her deed, her possession extended to all the property described in her deed, including the interlap, so that one cutting timber therefrom with authority from her was not guilty of violating Shannon’s Code, sec. 6496, subsec. 8, prohibiting the wanton destruction of the timber of another, even though the other party had the legal title to the interlap. (Post, p. 167.) Case cited and approved: Lieberman v. Clark, 114 Tenn., 117. 3. TRESPASS. Cutting timber. Construction of statute. Shannon’s Code, sec. 6496, subsec. 8, prohibiting the wanton destruction of timber of another^ is intended to protect the possession, not the title, and does not apply to one cutting timber under the authority of one claiming title, who was in possession thereof, even though in fact another had the legal title. (Post, p. 167. Case cited and approved: Deaderick v. State, 122 Tenn., 222.
128 Tenn. 169Southern Railway Co. v. Bacon (1913)
1. CARRIERS. Carriage of live stock. Limitation of liability. Notice of- claim. A clause in a contract for tlie shipment of live stock, which required notice in writing of a claim for damages for loss or injury to live stock before its removal or intermingling with other stock, does not apply to a claim for animals which died during the shipment, since notice of such loss is not required to enable a carrier", to protect itself from fraudulent claims, and its agent must have known that the animals were dead, so that he could have made an immediate investigation. (Post, pp. 170, 171.) Cases cited and approved: Kansas, etc., R. Co. v. Ayers, 63 Ark., 331; Missouri, K. & T. Ry. Co. v. Frogley, 75 Kan., 440; L. & N. R. Co. v. Warfield & Lee, 6 Ga. App., 550; Patterson v. K. & T. Ry. Co., 24 Okla., 747; Pierson v. Northern Pac. Ry., ' 61 Wash., 450. 2. CONTRACTS, Construction. Extrinsic circumstances. A contract must he construed with reference to the situation of the parties, the business to which it relates, ancj its subject-matter. (Post, p. 171.)
128 Tenn. 172Louisville & N. R. v. State (1913)
1. RAILROADS. Construction. Highway crossings. Statute. Construction. Acts 1899, ch. 356, requiring railroad companies to grade public road crossings to a level with the rails of the railroad, and to keep same in repair for a distance of ten feet on each side of the track, is supplementary of, and auxiliary to, Acts 1889, ch. 119, providing for the furnishing and keeping in repair of good and sufficient crossings, and hence is not repugnant to same, and does not impliedly repeal it. (Post, pp. 173, 174.) Acts cited and construed: Acts 1889, ch. 119, ch. 356. Cases cited and approved: Balden v. State, 122 Tenn., 717; Cate v. State, 35 Tenn., 120; Durham v. State, 89 Tenn., 730; U. S. v. Barnes, 222 II. S., 513, 520. 2. RAILROADS. Construction and maintenance. Crossing highways. “Crossing.” The word “crossing,” as applied to the intersection of a common highway and a railroad, and as used in the statutes relating to such crossings, means the entire structure, including the necessary approaches, though a part may he outside of the railroad’s right of way. (Post, p. 175.) Cases cited and approved: Roxbury v. Central Vermont R. Co., 60 Vt., 121; Moberly v. Kansas City, etc., R. Co., 17 Mo. App., 518, 539; Farley v. Chicago, etc., R. Co., 42 Iowa, 234; Louisville, etc., R. Co. v. Com., 149 Ky., 459.
128 Tenn. 177Mayor of Knoxville v. Barton (1913)
1. MUNICIPAL CORPORATIONS. Public improvements. Damages. Changing grade of streets. “All benefits accruing."' Under Acts 1891, ch. 31, as amended by Acts 1893, cb. 41, the-first section of which allows to an abutting property owner consequential damages incident to changing tbe grade of a. street, and tbe second section of wbieb provides that “all benefits accruing” from sucb improvements shall be allowed to reduce tbe damages, “all benefits accruing” means accruing to tbe owner as owner of tbe particular property, not as a taxpayer or resident of tbe vicinity sharing benefits common to. all. (Post, pp. 178, 179.) Acts cited and construed:' Acts 1891, cb. 31; Acts 1893, cb. 41- Case cited and approved: Humes v. Knoxville, 20 Tenn., 403. 2. MUNICIPAL CORPORATIONS. Public improvements. Damages. Changing grade of streets. Acts 1891, ch. 31, as amended by Acts 1893, cb. 41, secs. 1, 2,. relating to tbe allowance of damages to abutting property-owners from a change in tbe grade of a street and tbe deduction of benefit, is to be given a liberal construction in favor-of tbe citizen affected. (Post, p. 179.) Cases cited and approved: Nashville v. Nichols, 62 Tenn., 338; Knoxville v. Hartb, 105 Tenn., 436; Chattanooga v. Geiler, 81. Tenn., 611; Acker v. Knoxville, 117 Tenn., 224. Code cited and construed: Code (T. & S. and 1858), secs. 1392-1394.
128 Tenn. 181Knaffle v. Knoxville Banking & Trust Co. (1913)
1. BANKS AND BANKING. Set-off by depositor. Although the Negotiable Instruments Law (Laws 1899, ch. 94) declares that the maker shall be primarily liable for the payment of a negotiable instrument, nevertheless, where one who signed as maker seeks to set off his deposit in an insolvent bank against his liability to the bank on the note, he will not be treated as the real party in interest, where he signed for the benefit of his comaker in order to enable him to negotiable the instrument. (Post, pp. 183, 184.) Acts cited and construed: Acts 1899, eh. 94. Cases cited and approved: Building, etc., Co. v. Northern Bank, 206 N. Y., 400; Winne v. Winne, 166 N. Y„ 263, 271. 2. SET-OFF AND COUNTERCLAIM. Equitable set-off. Nature. The remedy of equitable set-off may be enforced independently of the statutes, where from the nature of the claim or the situation of the parties it is impossible to obtain justice by plea or cross-action. (Post, p. 184.) Cases cited and approved: Wilson v. Exchange Bank, 122 Ga., 495; Corbett v. Hughes, 75 Iowa, 282; Lindsay v. Jackson, 2 Paige (N. Y.), 581; Becker v. Northway, 44 Minn., 61; Scholz v. Steiner, 100 Ala., 148; Graham v. Middleby, 213 Mass., 437; Nolan Bros. Lumber Co. v. Dudley Lumber Co., 128 Tenn., 11. 3. BANKS.AND BANKING. Equitable set-off by depositor. Where a depositor in a bank signed a note to the bank as comaker, merely for the accommodation of the real maker and to enable him to negotiate it, the depositor will not, upon the insolvency of the bank, be permitted to set off against his liability on the note his rights against the bank based upon his deposit therein; it appearing that the rea), maker was not yet insolvent and that the hank had not sought to-subject the depositor to liability, for to permit him such a right would work injustice by means of an equitable set-off. (Post, p. 186.) Cases cited and approved: Nashville Trust Co. v. Bank, 91 Tenn., 336, 347; In re Middle District Bank, 9 Con. (N. Y.), 414; Davis-v. Industrial Mfg. Co., 114 N. C., 321; Edmondson v. Thomas-son, 112 Va., 326; New Farmers' Bank v. Young, 100 Ky., 683. 4. BANKS AND BANKING. Equitable set-off by depositor. Upon the insolvency of a bank, unmatured claims against it will be treated as matured, for the purpose of enabling the-holder to obtain the right of equitable set-off. (Post, p. 187.) Case cited and disapproved: Clark v. Sullivan, 2 N. D., 103.
128 Tenn. 190Stair v. Heska Amone Congregation (1913)
1. REWARDS. Actions. Evidence. Efficient cause of arrest. Where a reward was offered for the arrest and delivery to the sheriff of a culprit, and a police officer, in searching for the culprit in reliance upon the reward, made the arrest, hut the prisoner escaped, and on pursuit surrendered to plaintiff, who was in the front of the pursuit, the officer was the efficient cause of the arrest, and not plaintiff. (Post, pp. 192, 193.) 2. REWARDS. Who may receive. Efficient cause of arrest. The rules governing the interpretation of ordinary contracts are to be applied in the construction of a published reward: for an arrest or other service, and the better rule is that he who is the active and efficient cause in securing the result described in an offer of reward is the one entitled thereto. (Post, p. 193.) Cases cited and approved: McCIaughrey v. King, 147 Fed., 463; Haskell v. Davidson, 91 Me., 488. 3. REWARDS. Who may receive. Police officer. A police officer is precluded by public policy from demanding or enforcing a reward for an arrest, but the fact that a reward was voluntarily paid an officer after notice that a private citizen claimed it does not enlarge the rights of such citizen, or entitle him thereto, where the officer, rather than he, was the efficient cause of the arrest. (Post, p. 194.) 4. REWARDS. Who may receive. “Arrest.” Where a citizen joined the pursuit of a prisoner, who had escaped from an officer, and the culprit surrendered to him while immediate and continuous pursuit was being made by the officer and others, such action did not constitute a second arrest, and it was not an “arrest” within the meaning of an offer of reward. (Post, p. 194.) Case cited and approved: Cooper v. Adams, 2 Blackf. (Ind.), 294. 5. REWARDS. Apportionment. Necessity of concert of action. Where there is no concert of action when the endeavor to gain a reward is entered upon, he alone is entitled to it who first substantially complies with the offer; and where a prisoner escaped from an officer, and in the pursuit surrendered to a. citizen, there was no sufficient concert of action to entitle such citizen to a portion of the reward. (Post, p. 194.) Case cited and approved: Stroud v. Garrison, 24 Ark., 53.
128 Tenn. 196Southern Operating Co. v. City of Chattanooga (1913)
1. APPEAL AND ERROR. Scope of review. Pleading. Demurrers. While ordinarily a demurrer had in part must be overruled altogether, the supreme court, since the enactment of the statute allowing appeals from decrees overruling demurrers, may, when the decision would greatly narrow the litigation, depart from that rule and determine the propriety of one ground of demurrer, though another ground is bad. (Post, pp. 200, 201.) Cases cited and approved: Biddle v. Motley, 69 Tenn., 468, 473; Phoenix Insurance Co. v. Day, 72 Tenn., 247, 249; Puckett v. Bichardson, 74 Tenn., 49, 65; Berry v. Wagner, 81 Tenn., 591, 599; Ballentine v. Mayor, 83 Tenn., 633, 650. 2. MUNICIPAL CORPORATIONS. Ordinances. Reference. Where a municipal ordinance referred by number to chapter 593 of the Acts of the General Assembly for 1909, and there was no such numbered chapter in the published acts, that part of the reference must be treated as wholly nugatory, but it will not impair the validity of the ordinance if there is sufficient otherwise to identify the act intended to be incorporated. (Post, pp. 201, 202.) Acts cited and construed: Acts 1909, ch. 479. Cases cited and approved: Napa v. Easterly, 76 Cal., 222; Kreulhaus v. City of Birmingham, 164 Ala., 623; Bichards v. Town of Magnolia, 100 Miss., 249; Dismukes v. Town of Louisville, 101 Miss., 104. • 3. MUNICIPAL CORPORATIONS. Ordinances. Reference, to statutes. A city ordinance declared that each vocation, occupation and • business named in chapter 593 of the Acts of the General Assembly for 1909, known as the “Eevenue Bill,” should be a privilege within the city, and the rate of taxation on such privileges should he the same for the city for the fiscal year as provided in the revenue bill. The Acts of 1909 contained no chapter 593, but chapter 479, entitled “An act to provide revenue for the State of Tennessee and the counties and municipalities thereof,” provides in section 4 that each occupation thereinafter named shall bear a certain tax, and thereafter enumerates various taxable occupations. Held, that as no person reading the ordinance and Acts of 1909 could fail to find the statute in question, it was properly incorporated into, the ordinance by reference; incorporation by reference being recognized in ease of deeds where the description may be so incorporated and in case of ordinances so far as the inclusion of directions and specifications (Post, p. 204.) 4. MUNICIPAL CORPORATIONS. Ordinance. Reference. The Chattanooga ordinance, which in fixing privilege taxes upon occupations attempted by reference to incorporate, the Revenue Act of 1909, is not rendered invalid because sections 5 and 7 of the act referred to a class of privileges over which municipal corporations could not have any control, because the tax is required to be paid directly to the State; for the purpose of the ordinance was obviously to confine its application to those forms of privilege which were open to municipal taxation. (Post, pp. 204, 2:05.) Acts cited and approved: Acts 1909, secs. 4, 5, 7. 5. MUNICIPAL CORPORATIONS. Ordinances. Reference. Where a municipal ordinance incorporates by reference a general statute, the statute in its entirety need not be set out in the ordinance or entered upon the minutes of the corporation. (Post, pp. 204, 205.) 6. COMMERCE. Interstate commerce. Burden upon. An occupation tax may be imposed upon one engaged in the sale of liquors, though all of his purchases and all of his sales are made without the State, without imposing a burden on interstate commerce; his business being situated within the State. (Post, p. 206.) Cases cited and approved: Logan v. Brown, 125 Tenn., 209; Southern Operating Co. v. Hays, Ms., Knoxville, September term.
128 Tenn. 207Mahoney-Jones Co. v. Sams Bros. (1913)
1. FRAUDULENT CONVEYANCES. Judgment. Creditor’s suit. Issues, proof, and variance. In a suit against a purchaser of a stock of goods who failed to comply with the Bulk Sales (Laws 1901,' eh. 133), relative to ascertaining and notifying, the creditors of the seller, a variance between the bill describing plaintiff as a creditor of a firm of which the seller .was a member and .the evidence showing that it was an individual creditor of the seller was immaterial; no relief being sought against the. partnership, and the partnership having no assets. (Post, p. 210.) Cases cited and approved: House v. Thompson, 40 Tenn., 512; Pennington v. Bell, 36 Tenn., 200; Jackson Insurance Co. v. -Partee, 56 Tenn., 296; Fowlkes v. Heirs and Creditors of Bowers, 79 Tenn., 144, 146. Acts cited and construed: Act 1789, ch. 57. Code cited and construed: Sec. 4486 (S.). 2. PARTNERSHIP. Liability for firm debts. . Partnership debts are several as well as joint, and each member of the firm is individually liable therefor, especially in view of Shannon’s Code, sec. 4486, providing that all joint obligations and promises are joint and several. (Post, p. 210.) 3. FRAUDULENT CONVEYANCES. Sales in bulk. Statutory provisions. Under the Bulk Sales Law (Laws 1901, ch. 133), providing that, where any portion of a stock of merchandise is sold otherwise than in the ordinary course of trade, the sale shall be presumed fraudulent and void as against creditors of the seller, unless the purchaser shall make inquiry of the seller as to his creditors, and shall notify them personally or by registered mail of the proposed sale, upon a sale of merchandise in bulk by an individual, creditors of a partnership of which he was a member were entitled to notice. {Post, p. 211.) Case cited and disapproved: Whitehouse v. Nelson, 43 Wash., 174. Cases cited and approved: People’s Saving Bank v. Van Allsburg, 165 Mich., 524; Daly v. Sumpter Drug Co., 127 Tenn., 412. 4. COURTS. Rules of decision. Decisions of courts of other States. While a construction given to a foreign statute closely similar to one of this State is useful and to be accorded reasonable consideration, it is in no sense authoritative, nor is it as persuasive as a deliverance of the same court upon the common law,' since each sovereignty must construe its own statute. {Post, p. 212.) 5. FRAUDULENT CONVEYANCES. Sales in bulk. Statutory Provisions. Under the Bulk Sales Law (Laws 1901, ch. 133), providing that a sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade shqll be presumed fraudulent and void as against the creditors of the seller, unless the requirements of that act are complied with, a sale of goods separated from a stock of merchandise to the value of about one-half of the whole stock, without a compliance with the statute, was a violation thereof. {Post, p. 211.) 6. FRAUDULENT CONVEYANCES. Sales in bulk. Statutory provisions. Under such statute, where a purchaser of merchandise in bulk intermingled the goods with other goods, making them practically indistinguishable, he was liable directly to creditors of the seller for their value, 'Without the necessity of attaching them. (Post, p. 211.) Case cited and approved: Daly v. Sumpter Drug Co., 127 Tenn., 412.
128 Tenn. 213Marquet v. Aetna Life Ins. (1913)
1. INSURANCE. Insurable interest. Date of termination. Where a life insurance policy for a term of ten years provided that at the expiration of the term a new policy for an equal amount would be issued without medical re-examination, subject to the premium for the age then attained by insured, providing the expiring policy was returned to the company, and that the surplus under the expiring policy would be applied to reduce the premium on the new policy to the rate charged in the first policy, a rider attached to the policy at the expiration of the term, providing that, the surplus having been found sufficient to reduce the premium during the ensuing term of ten years to the amount named as premium in the policy, it was unnecessary to return the policy for the issue of a new policy until the expiration of ten years from the date of the rider, provided the premium was paid and that all the other conditions, provisions, and requirements of the policy continued in force, extended the obligations of the company for an additional ten-year term, and made the original policy operative for twenty instead of ten years, and therefore the beneficiary’s insurable interest was to be tested as of the date of the original contract and not as of the date of the rider. {Post, pp. 218, 219, 220.) Case cited and approved: First Nat’l Bank v. Guaranty Co., 110 Tenn., 25. Case cited and disapproved: Life Insurance Co. v. Galbraith, 115 Tenn., 471. 2. INSURANCE. Insurable interest. Husband and wife. A husband and wife have each a reciprocal insurable interest in the life of the other. (Post, p. 222.) Case cited and approved: Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S., 457. 3. INSURANCE. Construction. Rights of beneficiaries. Where a life insurance policy was made payable to insured’» wife, or in the event of her death before that, of insured to-his heirs, executors, administrators, or assigns, her rights were so far vested that they could not, during her life, be divested! without her consent. (Post, p. 222.) Cases cited and approved: Gosling v. Caldwell, 69 Tenn., 455; Trust Co. v. Bank, 123 Tenn., 625. 4. INSURANCE. Proceeds. Wife’s separate estate. Where an insurance policy was made payable to insured’s wife, delivered to her, and she paid the premiums thereon, this was a settlement by the husband upon the wife, and created in her a separate estate, and the company therefore properly treated her as having the sole right of disposition of the surplus created by the premiums. (Post, pp. 222, 223.) Case cited and approved: Hughey v. Warner, 124 Tenn., 726. 5. INSURANCE. Insurable interest. Necessity. A lack of insurable interest by the beneficiary in the life of the insured, where the insurance is taken out and paid for by the beneficiary as a speculation, vitiates the contract, especially in view of Acts, 1895, ch. 160, sec. 2, as amended by Acts 1899, ch. 31, defining a contract of insurance as an agreement by which one party for a consideration promises to pay money or its equivalent, or to do some act of value to the insured upon the destruction or injury, loss or damage, of something in which the other party had an insurable interest, and Shannon’s Code, sec. 3159, providing that all contracts founded in whole or in part on a gambling or wagering consideration shall be void to the extent of such consideration. (Post, p. 223.) Cases cited and approved: Bendet v. Ellis, 120 Tenn., 277; Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S., 457. Code cited and construed: Sec. 3159 (S.). 6. INSURANCE. Insurable interest. Husband and wife. Effect of divorce. A life insurance contract naming insured’s wife as beneficiary, was not invalidated by the subsequent divorce of the husband and wife. (Post, p. 224.) Cases cited and approved: Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S., 457; Snyder v. Mystic Circle, 122 Tenn., 248. 7. DEATH. Presumption from absence. Where a wife procured a divorce and the decree enjoined the husband from- attempting to have any relations with her or the minor children, and he thereafter left C., where his .wife and children resided, and for some time resided in O.,' which place he subsequently left, evidence that he had not been heard from in C. by any member of his immediate family or others for seven years, with no evidence as to any inquiry made concerning him at 0., his last known piace of residence, was insufficient to raise a presumption of death. (Post, pp. 225, 226, 227.) 8. EVIDENCE. “Presumption.” What constitutes. A “presumption” is a conclusion reached by means of the weight of proven circumstances, and before it can exist the circumstances which attend must be in evidence. (Post, p. 225.) Cases cited and approved: Dunlap v. State, 126 Tenn., 415; Davie v. Briggs, 97 U. S., 628; Renard v. Bennett, 76 Kan., 854; Modern Woodmen of America v. Gerdom, 72 Kan., 391; Miller v. Sovereign Camp Woodmen of the World, 140 Wis., 505; Hansen v. Owens, 132 Ga., 652; Hitz v. Ahlgren, 170 Ill., 63; Puckett v. State, 33 Tenn., 356; Shown v. McMaekin, 77 Tenn., 601; Bank v. White, 114 Tenn., 73, 84. 9. EVIDENCE. Circumstantial evidence. Weight and sufficiency. Proof of an essential fact must be had either direct or positive by witnesses who know the fact, or circumstantial by witnesses who know and testify to facts which tend to establish or prove the essential fact, and only when the circumstances are, in the judgment of the court or jury, such as usually or necessarily attend the essential fact are they sufficient in law to warrant a verdict; judgment or decree establishing a fact which has not been proved by direct or positive evidence. (Post, p. 225.)
128 Tenn. 231Jennings v. Crystal Ice Co. (1913)
FROM HAMILTON. Appeal from Chancery Court, Hamilton Connty.— T. M. McConnell, Jndge.
128 Tenn. 244Anderson v. Louisville & N. R. (1913)
1. EXECUTORS AND ADMINISTRATORS. Appointment of administrator. Jurisdiction of courts. Existence of assets.. Under Shannon's Code, sec. 3935, providing that letters of administration may he granted'upon the estate of a nonresident,, hy the county court of any county in this State where the deceased had any goods, chattels, or assets at the time of his death, where at the time a nonresident was hilled in a county in this State he had on his person personal property of the value of $35, such property would support administration in such county; its value, or the fact that it was on his person rather than elsewhere, being immaterial. (Post p. 247.) Code cited and construed: Sec. 3935 (S.). Cases cited and approved: Harrington v. Brown, 22 Mass., 519; Pinney v. MeGregory, 102 Mass., 186; Railroad v. Bradley, 51 Neb., 596. 2. EXECUTORS AND ADMINISTRATORS. Assets. Property .subject. A pistol, a gold watch, a gold badge of an order, and money belonging to a decedent were all subject to administration, none of such property being exempt. (Post, p. 248.) 3. EXECUTORS AND ADMINISTRATORS. Assets. Property subject. Where a nonresident at the time of his death left property in K. county, administration might be had in that county, although subsequent to his death some one without authority sent such property to his wife in another state, since the parties responsible could be made to answer for such removal. (Post, p. 248.) Cases cited and approved: Missouri Pacific R. R. v. Bradley, 51 Neb., 596; Bullock v. Rogers, 16 Vt., 295; Valentine v. Jackson, 9 Wend. (N. Y.), 302. 4. EXECUTORS AND ADMINISTRATORS. Title of administrator. The property of a decedent vests in his administrator, when appointed, by relation from the date of the death. (Post, p. 248.)
128 Tenn. 250Mayor of Knoxville v. Cain (1913)
1. MUNICIPAL CORPORATIONS. Torts. Obstructions in streets. Contributory negligence. Knowledge of defect. While a citizen, walking along a street, need not keep Ms eyes oh the pavement all the time, and may assume that the city has done its duty, and may even he excused for temporary forgetfulness of a danger when his attention is distracted, where plaintiff, walking along the street after dark, was injured by falling over some stakes two or three feet high driven in the ground at the edge of the sidewalk, the presence of which he was familiar with, which he testified that he simply forgot, without offering any excuse, he is precluded by his negligence from recovery against the city. {Post, p. 255.) Cases cited and approved: Lerner v. City of Philadelphia, 21 L. R. A. (N. S.), 614, 648-653; Eeynolds v. Los Angeles & E. Co., 39 L. R. A. (N. S.), 896; Jacobson v. Oakland Meat & Packing Co., Am. Cas., 1913B, 1194, 1197-1204; Carson v. City of Genesee, 9 Idaho, 244; Brownsville v. Arbuckle (Ky.), 99 S. W., 239; Town of Corinth v. Lawrence (Ky.), 127 S. W., 1009; City of Natchez v. Lewis, 90 Miss., 310; Chase v. Atchison, T. & S. F. Ry. Co., 134 Mo. App., 655; Knoxville v. Cox, 103 Tenn., 372. 2. TRIAL. Taking case from jury. Direction of verdict. Consideration of evidence. In passing on a motion by defendant for a peremptory instruction in his favor, it must be assumed that the evidence of plaintiff’s witnesses is true. (Post,.p. 252.) 3. NEGLIGENCE. Contributory negligence. Question for jury. Where the evidence shows without contradiction that plaintiffs negligence proximately contributed to his injury, the case is one for a peremptory instruction for the defendant. {Post, p. 258.) Cases cited and approved: Railway v. Haynes, 112 Tenn., 712, 730-734; Tyrus v. Railroad, 114 Tenn., 579.
128 Tenn. 259Ferguson v. Booth (1913)
1. EVIDENCE. Documentary evidence. Recitals in deeds. Effect. Particular recitals in a deed are conclusive evidence of the facts recited, in actions in which the purpose of the deed is directly involved. (.Post, p. 265.) Cases cited and approved: George v. Bischoff, 68 Ill., 236; Usina v. Wilder, 58 Ga„ 178; Mix v. People, 86 Ill., 329. 2. EVIDENCE, Documentary evidence. Recitals in deeds. Effect. Collateral issue. In ejectment between the heirs of a wife who conveyed property to her husband and the husband’s grantees, the deed from the wife is collateral to the purpose of the action, and the recitals therein are only prima facie evidence of the facts recited, but they are evidence and receivable as such against all those claiming under the deed. (Post, pp. 265, 266.) 3. EVIDENCE. Documentary evidence. Recitals in deeds. Weight as evidence. Where the recitals in a deed which is collateral to the purpose of the action are particular and definite and are corroborated by the substantial evidence of the parties and are not contradicted by anything in the record, they may be accepted as true. (Post, p. 265.) 4. TRUSTS. Resulting trust. Relationship between parties. ■ The general rule that, where one buys land in the name of another and pays the consideration therefor, the land will be held in trust for the person paying the consideration does not apply where a parent purchases land in the name of his child or a husband in the name of his wife, in which case an advancement or gift will be presumed from .the relationship. (Post, p. 269.) Cases cited and approved: Whitten v. Whitten, 3 Cush. (Mass.), 191; Kimbrough v. Kimbrough, 99 Ga., 134; Barnum v. Le Master, 110 Tenn., 640. 5. HUSBAND AND WIFE. Wife’s separate estate. Conveyance to wife. Husband’s request. The rule that, where a stranger makes a conveyance to a wife, there must be apt words used to create a separate estate in the wife does not apply where the husband pays the consideration for the property and directs the conveyance to be made to the wife, in which case the rule is the same as if the conveyance were directly from the husband and the wife takes a separate estate which she may convey to her husband under Shannon’s Code, sec. 4246. (Post, p. —.) Code cited and construed: Sec. 4246 (S.). Cases cited and approved: Barnum v. Le Master, 110 Tenn., 640; Vick v. Gower, 92 Tenn., 391.
128 Tenn. 271State ex rel. Bolt v. Drummond (1913)
1. COSTS. Statutes. Repeal. The Jarvis act (Laws 1897, eh. 20), which declares that neither the State nor any county shall he liable for costs or fees in any criminal prosecution, except in cases of certain felonies, or where the defendant has been sent to the workhouse under the small offense law, or where he has been convicted in a court of record and execution against him returned nuTla hona, is a repeal by implication of all statutes, in force at the time of its passage, fixing liability upon the State or county for costs or fees in criminal prosecutions not within the exceptions. ■ (Post, p. 274.) Act cited and construed: Acts of 1875, ch. 43. Code cited and construed: Sec. 449, subsec. 3 (S.); sec. 36 (T. S. and 1858). Case cited and approved: Henley v. State, 98 Tenn., 706-8. 2. STATUTES. Repeal. By implication. A repeal by implication can operate only where there is such a repugnance or conflict between the subsequent statute and an earlier one that the two cannot stand together. (Post, p. 274.) Acts cited and disapproved: Acts 1899, ch. 307; Acts 1913, ch. 25. Cases cited and approved: Hunter v. Memphis, 93 Tenn., 574; Blaufield v. State, 103 Tenn., 600. 3. PRISONS. Care of prisoners. Sheriff’s fees. Liability of county. “Boarding.” The expression “boarding,” as used in the Jarvis Act (Laws 1897, ch. 20), providing that neither the State nor any county thereof shall be liable in any criminal prosecution for any costs or fees, but that compensation for boarding prisoners shall be paid in all cases as heretofore, includes not only the compensation to which a jailer is entitled for furnishing prisoners with food, bedding, and water, but for the keeping of such prisoners in custody; and hence the statute did not repeal Shannon’s Code, sec. 6412, providing that jailers shall receive forty cents a day for each prisoner fed, and for each turnkey one dollar, but that only two turnkeys shall be allowed for each prisoner. (Post, pp. 275, 276.)
128 Tenn. 277Tennessee Coal, Iron & Railroad v. Paint Rock Flume & Transportation Co. (1913)
1. EMINENT DOMAIN. ' Appropriation of land. Exclusive remedies. Where land has been occupied by a public service corporation, Which did not exercise its power of eminent domain, the remedy given the landowner by Shannon’s Code, see. 1865, to petition for a jury of inquest to assess the damages, or to bring an action at law for damages, is exclusive, and the landowner cannot bring ejectment or enjoin the corporation from using his land. (Post, p. 282.) Code cited and construed: Secs. 1861-1866 (S.). Cases cited and approved: Colcough & N. & N. R. R. Co. v. Adams, 39 Tenn., 172; Tennessee & A. Co. v. Adams, 40 Tenn., 597; Railroad v. Cochrane, 71 Tenn., 479; Parker v. Railroad, 81 Tenn., 670; Saunders v. Railroad, 101 Tenn., 206; Doty v. Telephone & Telegraph Co., 123 Tenn., 329. 2. EMINENT DOMAIN. Power of condemnation. “Public use.” That the number of persons who can use, and that the area served by a flume company, down whose flume lumber and bark from the mountains is floated, is small, will not render the flume a nonpublic use, for a public use may be limited to the inhabitants of a small or restricted locality, and hence the legislature could properly delegate the power of eminent domain to flume companies. (Post, pp. 284, 285.) Cases cited and approved: Gilmer v. Line Point, 18 Cal., 229; Talbot v. Hudson, 16 Gray (Mass.), 417; Township Board of Education v. Hackmann, 48 Mo., 243; Coster v. Tide Water Co., 18 N. J. Eq., 54; Pocantico Waterworks v. Bird, 130 N. Y., 249; Dietrich v. Murdock, 42 Mo., 279; De Camp v. Hiberina Underground R. Co., 47 N. J. Law, 43; Collier v. Railroad, 113 Tenn., 96; Cotton v. Miss., etc., Boom Co., 22 Minn., 372; West Ya. Transp. Co. v: Volcanic Oil Co., 5 W. Va., 382; Ryan v. Terminal Co., 102 Tenn., 111. Cases cited and distinguished: Cozard v. Kanawha Hardwood Co., 139 N. C., 283; Phosphate Co. v. Phosphate Co., 120 Tenn., 260. 3. COURTS. Rules of decision. Previous decisions. Since Acts 1875, ch. 142, entitled '‘An act to provide for the-organization of corporations,” and subsequent amendments (Acts 1887, ch. 16; Acts 1893, ch. 11), all of which were entitled “An act to amend an act to provide for the organization of corporations,” were held constitutional, although they gave the various corporations organized thereunder the power of eminent domain, Acts 1901, ch. 138, entitled “An act to amend an act for the organization of corporations,” and providing for the organization of flume companies, must he treated as constitutional, although giving such companies the right of eminent domain. (Post, p. 288,) Acts cited and construed:. Acts 1901, ch. 138; Acts 1875, ch. 142; Acts 1887, ch. 16; Acts 1893, ch. 11. Cases cited and approved: Telephone Co. v. Telephone & Telegraph Co., 125 Tenn., 270; Kelly v. State, 123 Tenn., 516; Richardson v.- Young, 122 Tenn., 471; State, ex rel., v. Nashville Baseball Club, 154 S. W., 1151. 4. STATUTES. Title of acts. Validity. It being customary to endow public service corporations with the power of condemnation, an act entitled “An act to provide for the organization of corporations” has a broad enough title to embrace a’ grant of such power, and consequently an amending act, entitled “An act to amend an act entitled ‘An act to provide for the organization of corporations,’ ” which gave the power of eminent domain to flume corporations, is not invalid, under Const., art. 2, sec. 17, because the body of the act is broader than its caption. (Post, pp. 289, 290.) Case cited and approved: Memphis St. Ry. Co. v. State, 110 Tenn., 598. 5. INJUNCTION. Right to maintain injunction. Even though a flume company was not authorized by law to appropriate water to run its flume, a riparian owner, who stood by and without objection allowed it to erect a valuable flume, which would be worthless without the water from his stream, cannot then enjoin such appropriation of water, for the granting of an injunction is always a matter of discretion, and ' the court should refuse one when it will destroy valuable property of one party without any corresponding benefit to another. (Post, p, 290.) Cases cited and approved: Madison v. Cooper Co., 113 Tenn., 331; Bank & Trust Co. v. Hotel Co., 124 Tenn., 649. 6. INJUNCTION. Denial. Recovery of damages. Where a riparian owner sought to enjoin a flume company from operating its flume, which it had placed through his land, without condemnation, and from appropriating the waters of a stream which ran through his property, and also damages, hut alleged no ground of equitable jurisdiction save the right to injunctive relief, the denial of his injunction precludes the court of chancery from taking jurisdiction of his suit for damages. (Post, p. 292.) Cases cited and approved: Bank & Trust Co. v. Hotel Co., 124 Tenn., 649; Swift & Co. v. Memphis Cold Storage Warehouse Co., 158 S. W., 480. 7. INJUNCTION. Right to maintain. That a flume company organized as a public service corporation will not transport for the public generally is no ground for an injunction in favor of one whose land abutted on the stream which fed the flume and whose property had been taken without condemnation; the persons injured by the refusal of the company having their right of redress in appropriate proceedings, and the State having the right to dissolve the company for a breach of public duty. (Post, p. 293.)
128 Tenn. 294Camp v. Riddle (1913)
1. ADVERSE POSSESSION. Possession of separate tracts. The possession of one of several adjoining tracts conveyed by the same deed was not constructive possession of either of the other tracts, where the tracts were separately described by the deed, and were not covered by one general boundary. (Post, p. 299.) Acts cited and construed: Acts 1801, ch. 6, Sec. 48; Acts, 1837-38, ch. 176., Code cited and construed: Sec. 5915 (S.). Cases cited and approved: Haggart v. Ranney, 73 Ark., 344; Hardie v. Guaranty, etc., Co., 81 Ark., 141; Henry v. Brown, 143 Ala., 446; Quisenberry v. Chenault, 143 Ky., 312; Hornblower v. Banton, 103 Me., 375; Elliott v. Cumberland Coal & Coke Co., 109 Tenn., 745; MeSpadden v. Starrs Mountain Iron Co. (Tenn. Ch. App.), 42 S. W., 497. 2. JUDICIAL SALES. Sale by master. Effect of confirmation. A bid at a master’s sale continues a mere offer until the court rejects it or accepts it by confirming the report of sale, but such confirmation only gives the purchaser an equitable title, the legal title not vesting until a deed is made by the master pursuant to a decree, or the lapse of a reasonable time after the master is ordered to make a deed, if he fails to do so. (Post, p. 301.) 3. JUDICIAL SALES. Passing of title. Sale by master. A sufficient time did not, as a matter of law, elapse between December, 1876, when a decree directed a master to make a deed for land purchased at a judicial sale, and February 12, 1877, to vest legal title in the purchaser without a deed, under the rule that title will vest in a purchaser within a reasonable time after a master is ordered to make a deed, if lie does not do so. (Post, p. 303.) 4. EVIDENCE. Recital of deed. Effect. Acts 1907, ch. 334, sec. 1, provides that all conveyances in an official capacity by a public officer, or one acting in a fiduciary relation, shall be admitted as prima facie evidence of the facts recited therein, so far as they relate to the execution of the powers of the office, and section 2 requires all such instruments of record when the act was passed, be admitted in accordance with section 1. Reid, that recitals, in a master’s deed to land belonging to an estate, that decedent left a will which authorized his executor to sell his interest in the land, and that the executor had sold such interest to a person named, to whom the deed purported to convey the legal title, were prima facie evidence of the facts recited. (Post, pp. 303, 304.) Acts cited and construed: Acts 1907, ch. 334. Case cited and approved: Hill v. Moore, 121 Tenn., 182. 5. EXECUTORS AND ADMINISTRATORS. Deeds. A deed conveying estate land made by an executor to himself for a grossly inadequate consideration was voidable at the instance of the persons injured. (Post, p. 305.)
128 Tenn. 307D. B. Loveman Co. v. Bayless (1913)
1. TRIAL. Joint defendants. Verdict for servant. Effect as to master. When a master is sued solely for misfeasance or nonfeasance on the part of his servants and is liable for their conduct only under the doctrine of respondeat superior, a verdict,'permitted to stand in favor of such servants, either in the same action or in a prior action, entitles the master to a discharge from such claimed liability. (Post, p. 312.) Cases cited and approved: Doremus v. Root, 23 Wash., 710; Stevick v. Northern Pac. R. Co., 39 Wash., 501; Norris v. N. W. Improvement Co., 53 Wash., 451; Sipes v. Puget Sound Electric Ry., 54 Wash., 47;' Aldrich v. Inland Empire Co., 62 Wash., 173; McGinnis v. Chicago, R. I. & P. R. Co., 200 Mo., 347; Indiana Nitroglycerine, etc., Co. v. Lippincott Glass Co., 165 Ind., 361; Southern Ry. Co. v. Harbin, 135 Ga., 122; Chicago, St. P. & M. Co. v. McManigal, 73 Neb., 580; Montfort v. Hughes, 3 E. D. Smith (N. Y.), 591; Anderson v. Fleming, 160 Ind., 597; Hill v. Bain, 15 R. I., 75; Hayes v. Chicago Telephone Co., 218 Ill., 414; New Orleans & N. E. R. Co. v. Jopes, 142 U. S., 18, 24, 27, 12 Sup. Ct., 109; Gill v. Morris, 58 Tenn., 614; Bank of Commerce v. Porter, 60 Tenn., 447; Renkert v. Elliott, 79 Tenn., 235. Cases cited and disapproved: I. C. R. R. Co. v. Murphy, 123 Ky., 787; G. C. & S. F. R. Co. v. James, 73 Tex., 12; Gardner v. Southern R. Co., 65 S. C., 341; Carter v. Southern Ry. Co., 93 S. C., 329. 2. TRIAL. Verdict for servant. Effect as to master. Where a master is liable for an injury to a third person on grounds other than the misconduct of his servant, he may be held liable notwithstanding a verdict in favor of the servant. (Post, p. 317.) Cases cited and approved: Jones v. Seattle, 51 Wash., 245,; Aldrich v. Inland Empire Co.,' 62 Wash., 173; Clay v. Chicago'. Milwaukee & St. Paul Bailway Co., 104 Minn., 1. 3. APPEAL AND ERROR. Assignments of error. Necessity. In an action against an employer and two of its employees for false imprisonment, assault and slander, in which a verdict, was rendered against the employer and in favor of the employees, where it appeared that other employees not sued assisted in inflicting the injuries complained of, the supreme court could not, in the absence of an assignment of error that there was no evidence to support the verdict against the employer, examine the evidence for the purpose of determining whether there was evidence sustaining the employer’s liability, aside from the evidence as to the conduct of the employees exonerated by the verdict, and hence would .afittrm the judg, ment. (Post, p. 318.)
128 Tenn. 320W. J. Barton Seed, Feed & Implement Co. v. Mercantile National Bank (1913)
1. BANKS AND BANKING. Collection of drafts. Nature of deposit. Intention of parties. In determining whether a draft was received by a hank for collection only, or whether it became the absolute owner, where it was deposited subject to check under an agreement that if returned uncollected the bank should charge it back to the depositor, the intention of the parties, as evidenced by their acts, controls. {Post, p. 323.) '2. BANKS AND' BANKING. Deposit of drafts. Conditional sale. Where a draft was deposited with a bank subject to check up to its face value the same as a cash deposit, under an agreement, however, that if it was returned uncollected the bank could charge the amount of the credit back, the transaction was at most a conditional sale of the draft to the bank, conditioned upon the collection of the draft. {Post, p. 324.) 3. GARNISHMENT. Property subject. Bank deposits. Where a draft was deposited with a bank and full credit was given to the depositor as for a cash deposit under an agreement, however, that if the draft were not collected, the amount of the credit should be charged back to the depositor, the draft was subject to garnishment for the depositor’s debts to the extent of his interest when the garnishment notice was served. {Post, p. 324.) 4. GARNISHMENT. Bank deposits. Where a draft deposited with a bank as a pledge for credit given to the depositor is garnished by the depositor’s creditors, the bank must show the extent of its interest in the draft in order to protect its own interest therein from the garnishment. (Post, p. 325.) 6. CARRIERS. Bills of lading. Pledge as security. Where a draft made upon the purchaser of goods was deposited in a hank by the seller with the bill of lading attached, and a checking credit was given to the depositor under an agreement to charge hack the amount should the draft be returned uncollected, the hill of lading was merely security for the collection of the draft, whether it were made out to the consignee or to the shipper’s order. (Post, pp. 326, 327.) Case cited and approved: Bank v. Hayes, 119 Tenn., 729.
128 Tenn. 329Harrison v. Knafle (1913)
1. MECHANICS’ LIENS. Time for filing notice. Completion of building. Under a contract for construction of a building, including tbe installing of a sprinkler system, to be approved by tbe State Inspection Bureau, tbe building is not completed, as regards tbe thirty days thereafter for filing notic'e of lien, till tbe work required by tbe bureau on its inspection is done. (Post, pp. 334, 335.) Case cited and approved: Voightman v. Railroad, 123 Tenn., 463. 2. BANKRUPTCY. Priorities. Liens. Relative to tbe question of certain creditors of a bankrupt contractor being entitled to priority as having filed notices of lien within thirty days of completion of a building, tbe bankrupt’s trustee is bound by tbe agreement of tbe contractor and building owner in extending time for tbe completion. (Post, p. 338.) 3. MECHANICS’ LIENS. Time for filing notice. Enlargement of contract. Within tbe statute giving materialmen thirty days from completion of tbe work provided by tbe contract within which to file notices of liens, they have thirty days from completion of tbe work as enlarged by amendment of tbe contract between tbe owner and contractor, though part of their material was furnished before such amendment and all of it was for tbe work previously provided for by tbe contract. (Post, p. 339.)
128 Tenn. 340Day v. Sharp (1913)
COUNTIES. Officers. Eligibility and qualification. “Office.” Const., art. 2, sec. 25, provides that no person who has been a collector or holder of public moneys shall hold any other State office until he shall have accounted for and paid into the treasury all sums for which he may be liable. Shannon’s Code, sec. 1069, excepts from eligibility to office defaulters to-the treasury at the time of election and declares the election of such person void. Defendant’s election to the office of trustee of a county was void because he was then a defaulter, and after a judgment by the inducting authority that he was ineligible, but that a vacancy was thereby created, he settled his default and was elected by the county court to such office. Held, on petition of resistance to his induction therein, that the word “office,” as used in the constitution' and statute, implied the right to exercise the functions of a public trust or employment and to receive the fees and emoluments belonging to it and to hold the place for the term prescribed by law; that “office-for a term” was an entity; and that the removal of an officer for disqualification did not operate to divide the term or create a new and distinct term, so that the default and consequent disqualification did not merely affect a part of the term but made him ineligible for election by the county court to hold the remnant'of the term. (Post, pp. 343-349.) Code cited and construed: Sec. 1069 (S.). Constitution cited and construed: Sec. 25, art. 2. Cases cited and approved: Lewis v. Watkins, 71 Tenn., 174; State, ex rel. Childs, v. Dart, 57 Minn., 261; State v. Rose, 74 Kan., 262; United States v. Hartwell, 6 Wall., 385; People v. Duane, 121 N. Y., 367; People v. Ahearn, 196 N. Y., 221.
128 Tenn. 350Noe v. Mayor of Morristown (1913)
1. MUNICIPAL CORPORATIONS. Governmental powers. Exclusive franchise. The ordinances of Morristown, providing for the selection of places for the inspection of animals to be slaughtered for food' and for their sale at such places, and confirming a contract with a company, which ordinances, when construed together, made the premises of that company the only place for the inspection and slaughter of animals, are void as not being within the powers conferred by the charter of Morristown (Acts 19-03, ch. 103.) (Post, pp. 353, 354.) Cases cited and approved: Jackson County Horse R. Co. v. Interstate Rapid Transit R. Co. (C. C.), 24 Fed., 306; Detroit, Citizens Street R. Co. v. Detroit R. Co.-, 171 U. S., 48. 2. MUNICIPAL CORPORATIONS. Legislative control. Grant of franchise. The power to grant an exclusive franchise, even of the limited class which may be granted within the city, must be expressly conferred upon the municipality by the legislature. (Post, p. 354.) 3. MUNICIPAL CORPORATIONS. Power to grant. Constitutional provisions. Under Const., art. 1, sec. 22, forbidding perpetuities, and monopolies, the legislature cannot confer upon a municipality the power to grant an exclusive franchise for the conduct of a business which is of common right. (Post, pp. 854-356.) Constitution cited and construed: Sec. 22, art. 1. Cases cited and approved: Memphis Street Railroad Co. v. City of Memphis, 44 Tenn., 406; Railroad Co. v. Memphis, 3 Shan. Cas., 198; City of Memphis v. Memphis Water Co., 52 Tenn., 495; Leeper v. State, 103 Tenn., 500. 4. MUNICIPAL CORPORATIONS. Governmental powers. Municipal slaughterhouse. While the legislature might authorize a municipal corporation to establish a single slaughterhouse, to be conducted by its own agents, it would have to provide that all persons having animals to be slaughtered should have the right to resort to that place to do their own slaughtering, or to have it done by their own agents, or the act would be unconstitutional. (Post, p. 360.) . , Cases cited and approved: Slaughterhouse Case, 16 Wall. (83 U. S.), 36; Gale v. Kalamazoo, 23 Mich., 344; City of Chicago -v. Rumpff, 45 Ill., 90. 5. MUNICIPAL CORPORATIONS. Police power. Regulation of' slaughterhouses. The original ordinance of Morristown, providing for :the selection of one or more places for the inspection and slaughtering of animals intended for food, when dissociated from the second ordinance and the contract selecting only one such place, recognizes that there may be more than one place of slaughter and more than one inspector, and is in the main sound. (Post, p. 361.) 6. MUNICIPAL CORPORATIONS. Police power. Delegation of municipality. The provision of section 16 of that ordinance, conferring' police power upon the inspector, is objectionable, as clothing him with" powers which belong-to the city, and not' to an-officer, except under ordinances defining his duty. (Post, p. 361.) 7. MUNICIPAL CORPORATIONS. Police powers. Delegation of municipality. The provision of section 13 of that ordinance, giving an inspector absolute power to dispose of condemned meat as he might deem best for the public health, is objectionable, since that matter should be controlled by law, and not by the mere will of the inspector. {Post, p. 361.) 8. MUNICIPAL CORPORATIONS. Validity of ordinances. Prescribing weight of evidence. The provisions of that ordinance that certain acts should be “sufficient” evidence, rather than “prima facie” evidence, that the goods were on sale, are objectionable. {Post, p. 362.) Case cited and approved: Brinkley v. State, 125 Tenn., 371.
128 Tenn. 363Carolina, C. & O. Railroad v. Shewalter (1913)
1. APPEAL AND ERROR. Review. Reduction of verdict. The reduction of the verdict in an action for death, being upheld by the court of civil appeals, will not be interfered with by the supreme court. (Post, p. 365.) Act cited and construed: Laws 1891, ch. 124; Revised Statutes, 1903, ch. 89. Cases cited and approved: Fulgham v. Midland Valley Railroad Co. (C. C.), 167 Fed., 660; Walsh v. N. Y., etc., R. R. Co. (C. C.), 173 Fed., 494; Davidson-Benedict Co. v. Severson, 109 Tenn., 572; Mondous v. N. Y., N. H. & H. R. R. Co., 223 U. S., 1, 32 Sup. Ct., 169; Baker v. Bolton, 1st Camp., 493; Osborne v. Gillette, L. R. A. Exch., 88; Railroad v. Burk, Admx., 46 Tenn., 45, 52; Fowlkes v. Railroad, 64 Tenn., 663; Haley v. Railroad, 66 Tenn., 239; Railroad v. Daughtry, 88 Tenn., 721; Murphy v. New York & N.'H. R. Co., 30 Conn., 184; Broughel v. Sou. New Eng. Telephone Co., 72 Conn., 617; Conners v. Burlington C. R. & N. Y. Ry. Co., 71 Iowa, 490; Worden v. Humeston & S. R. Co., 72 Iowa, 201; Dillon v. Great Northern R. Co., 38 Mont., 485; Van Amburg v. Vicksburg & P. R. Co., 37' La. Ann., 651; Hamilton v. Morgan’s L. & T. R. & S. S. Co., 42 La. Ann., 824; The Corsair, 145 U. S., 335, 12 Sup. Ct., 949; Kearney v. B. & W. R. Co., 9 Cush. (Mass.), 108; Hollenbeck v. Berkshire R. Co., 9 Cush. (Mass.), 478; Kennedy v. Standard Sugar & Refinery, 125 Mass., 90; Moran v. Hollings, 125 Mass., 93; Mulchahey v. Washburn Car Wheel Co., 145 Mass., 281; St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark., 1; St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark., 241; I. C. R. Co. v. Pendergrass, 69 Miss., 425; Vicksburg, etc., R. Co. v. Phillips, 64 Miss., 693; Dillon v. Great Northern R. Co., 38 Mont., 485; Belding v. Black Hills R. Co., etc., 3 S. D., 369; Hansford v. Payne, 11 Bush. (Ky.), 380; Newport News, etc., R. Co. v. Dentzel, 91 Ky., 42; Givens v. Ky. Central R. Co., 89 Ky., 231; Sweetland v. Chg., etc., R. Co., 117 Mich.. 444; Kyes v. Valley. Telephone Co., 132 Mich., 281; Oliver v. Houghton County Street Ry. Co., 134 Mich., 367; Brown v. Chg. & N. W. Ry. Co., 102 Wis., 137; Lehmann v. Folwell, 95 Wis., 185; Holton v. Daly, 106 Ill., 131; Chg. & E. I.R. Co. v. O’Ccnnor, 119 Ill., 586; McCarthy v. Chg. R. I. & P. R. Co., 18 Kan., 46; Luhrano v. Atlantic Mills, 19 R. I., 129; L. & N. R. Co. v. McElwaine, 98 Ky., 700. 2. DEATH. Cause of action. Statutes. Interstate commerce employee. Act April 22, 1908, known as the Employers’ Liability Act, ch. 149, sec. 1, 35 Stat.., 65 (U. S. Comp. St. Supp., 1911, p. 1322), declares a carrier by railroad liable in damages to a "person suffering injury” while employed by it in interstate commerce, or, in ease of his death, to his personal representative, for the benefit of certain relatives. Section 9, added to such chapter by Act April 5, 1910, ch. 143, sec. 2, 36 Stat., 291 (V. S. Comp. St. Sup., 1911, p. 1325), provides that any right of action given by this act to a “person suffering injury” shall survive to his representative. Held, that section 9 creates no new cause of action, but merely preserves, by survival, the cause of action given the employee, and therefore has no application where there is an instantaneous killing, right of action for the killing in such case being given the personal representative. (Post, p. 367.) Cases cited and approved: Fulgham v. Midland Valley R. R. Co. (C. C.), 167 Fed., 660; Walsh v. New York, etc., R. R. Co. (C. C.), 173 Fed., 494; U. S. v. Goldenberg, 168 U. S., 95. 3. DEATH. Action for benefit of relatives. To authorize recovery for the benefit of the father of an adult son instantly killed while employed by a railroad in interstate commerce, under Act April 22, 1908, eh. 149, sec. 1, 35 Stat., 65 (U. S. Comp. St. Supp., 1911, p. 1322), merely declaring the company liable in damages, it must be shown the father had reasonable expectation of pecuniary assistance or support from deceased. (Post, p. 392.) Cases cited and approved: Michigan Central R. Co. v. Yreeland, 227 U. S., 59; American R. Co. v. Didrickson, 227 U. S., 145; Hutchins v. St. Paul M. & M. Ry. Co., 44 Minn., 5.
128 Tenn. 393King v. Sullivan County (1913)
1. TAXATION. Statutory provisions. Equality and uniformity. Acts 1909, ch. 169, and Acts 1911, ch. 620, authorizing the county to issue bonds to build roads and to levy and collect taxes on all property in the county, including that within the corporate limits of any municipality, to pay the interest, and to create a sinking fund for the payment of the principal thereof, do not violate Const., art. 2, sec. 28, requiring all property to be taxed according to its value so that taxes shall be equal and uniform throughout the State, although municipalities within such county are also required to levy a,nd collect taxes for the maintenance of their streets, in view of section 29, empowering the general assembly to authorize counties and incorporated towns to impose taxes for county and corporation purposes, and providing that all property shall be taxed according to its value upon the principles established in regard to State taxation, since the purpose of the tax is a proper county purpose, and property within .a municipality within the county is therefore liable therefor. (Post, p. 395.) . Acts cited and construed: Acts 1911, ch. 620; Acts 1909, eh. 169; Acts 1907, ch. 370. Constitution cited and construed: Sec. 28, art. 2. Cases cited and approved: L. & N. ft. R. v. County Court of Davidson County, 33 Tenn., 637; Nichol v. Nashville, 28 Tenn., 268; Adams v. M. & L. R. O. Co., 42 Tenn., 656; McCallie v. Chattanooga, 40 Tenn., 322: Shelby County v. Exposition Co., 96 Tenn., 658; Edmondson v. Board of Education, 108 Tenn., 558. 2. TAXATION. Statutory provisions. Equality and uniformity. “Uniform taxation.” Under Const., art. 2, sec. 28, providing that taxes shall be equal and uniform throughout the State, the uniformity required is limited to a uniformity in rate, assessment, and valuation of the particular tax involved, and has no reference to - a uniformity of the sum total of taxes which a citizen is required to pay. (Post, p. 397.)
128 Tenn. 399City of Chattanooga v. Southern Railway Co. (1913)
1. RAILROADS. Street crossings. Police power. Acts 1907, ch. 149, sec. 25, empowering a city to require, by ordi-' nances, railroad companies to build, maintain, repair, or replace at their own expense such bridges and approaches over their tracks when crossing any streets as the council may deem necessary to the safety and convenience of travelers on the street, and an ordinance pursuant thereto are within the scope, and an exercise, of the police power. (Post, p. 401.) Acts cited dnd construed: Acts 1907, ch. 149, sec. 25. 2. CONSTITUTIONAL LAW. Impairing obligation of contracts. The matter of proper crossings of streets and railroads for the safety and welfare of the public is one within the police power, future exercise of which cannot be bargained away by a city, so that Const. U. S., art. 1, sed. 10, forbidding passage of laws impairing obligation of contracts, is not contravened by Acts 1907, ch. 149, sec. 25, empowering a city, by ordinance, to require a railroad to build or replace, bridges over its tracks at street crossings, and an ordinance requiring the company to build a new bridge at such a crossing, though prior to the act, in consideration of contribution by the company to a bridge there built, the city contracted with it to forever after maintain a suitable bridge there. (Post, p. 402.) Cases cited and approved: Chicago, etc., R. Co. v. People, 200 U. S., 561; Chicago, etc., R. Co. v. Nebraska, 170 U. S., 57; State, ex rel. Minneapolis, v. St. Paul, etc., R. Co., 98 Minn., 380; Northern Pacific R. Co. v. Minneapolis, ex rel. Duluth, 208 U. S., 583. 3. RAILROADS. Street and railroad crossings. Power to require bridges. Under the common law a city could require a railroad to construct and maintain, at its expense, a proper bridge at a street crossing over its tracks. (Post, p. 408.) Cases cited and approved: Railroad v. State, 40 Tenn., 523; Dyer County v. Railway, 87 Tenn., 712; Railway v. State, 87 Tenn., 751.
128 Tenn. 410Baird v. Smith (1913)
CONTRACTS. Lessening competition. Sale of business. The provision of a contract, by which one sells his stock of goods and the fixtures of his store, that he will not in that town for five years engage in business in competition with the buyer, does not “tend to lessen free and full competition” in the sale of articles that had beeome a part of the mass of the property in the State, in violation of Acts 1903, ch. 140, sec. 1; the meaning of “competition,” or of undue or unreasonable restraint of trade, under the common law, not being changed by the statute. {Post, VV- 413, 414.) Cases cited and approved: U. S. v. American Tobacco Co., 221 U. S., 171, 174; Jackson v. Byrnes, 103 Tenn., 698; Bradford v. Furniture Co., 115 T.enn., 610; Turner v. Abbott, 116 Tenn., 725; Smith v. Webb (Ala.), 58 South., 913; State v. Witherspoon, 115 Tenn., 138; State, ex rel., v. Woolen Mills, 115 Tenn., 267; Standard Oil Co. v. State, 117 Tenn., 642; Standard Oil Co. v. Tenn., 217 U. S„ 413
128 Tenn. 417Interstate Amusement Co. v. Albert (1913)
PROM HAMILTON. Appeal from Chancery Court, Hamilton County.— T. M. McConnell, Chancellor.
128 Tenn. 433Doyle v. City of Chattanooga (1913)
1. NEGLIGENCE. Contributory negligence. Acts in emergency. Even if contributory negligence could be attributed to a young boy, he would not be guilty of such negligence in jumping into a pond to save his young brother from drowning, having acted' in an emergency. (Post, p. 438.) Case cited and approved: Railroad v. Ridley, 114 Tenn., 727. 2. DEDICATION. Streets. Acceptance. User. The acceptance of a street by a municipality may be implied from a general and long-continued use thereof by the public as of right. (Post, p. 438.) Cases cited and approved: Phillips v. Stamford, 81 Conn., 408; Railroad v. State, 60 Tenn., 55; Hill v. Hoffman (Ch. App.),, 58 S. W., 932; Downend v. Kansas City, 156 Mo., 60; Benton v„ City of St. Louis, 217 Mo., 687. 3. DEDICATION. Acceptance of streets. The use of a street by the general public may operate as an acceptance thereof so as to bind the dedicator' and make the-dedication irrevocable. (Post, p. 440.) Cases cited and approved: Mathis v. Parham, 1 Tenn. Ch., 533; ■ State v. Hamilton, 109 Tenn., 286. 4. MUNICIPAL CORPORATIONS. Acceptance of streets. If a strip, offered to he dedicated as a street, contains thereon a nuisance, such as a dangerous pond, slight acts of acceptance by the municipality would be sufficient to show an acceptance so' as to make it liable for injuries arising from the pond. {Post, p. 440.) Cases cited and approved: Attorney-General v. Abbott, 154 Mass., 323; Town Council v. Lythgoe, 7 Rich. (S. C.), 435; Campbell v. Elkins, 58 W. Va., 308; Brewer v. Pine Bluff, 80 Ark., 489; Gibbs y. Ashford, 27 Tex. Civ. App., 629; Dallas v. Gibbs, 27 Tex. Civ. App., 275. 5. DEDICATION. Acceptance. If the tract dedicated as a street is clearly defined as by a map, and the public use is practically of the whole tract dedicated, it is presumed that an act accepting a part of the tract dedicated is an acceptance of the whole. (Post, p. 441.) Cases cited and approved: Town of Derby v. Ailing, 40 Conn., 410; Pittsburg v. Epping-Carpenter Company, 194 Pa., 318; Dallas v. Gibbs, 27 Tex. Civ. App., 275; Village óf Lee v. Harris, 206 Ill., 428. 6. MUNICIPAL CORPORATIONS. Dangerous streets. Acceptance of dedication. Sufficiency of evidence. Evidence held to make it a jury question whether a tract containing a dangerous pond was accepted by a municipality as a street. (Post, pp. 441, 442.) 7. NEGLIGENCE. Attractive nuisances. The owner of dangerous machinery, naturally attractive to a child, is liable for injuries to one attracted thereto, while the machinery is on the owner’s premises. (Post, p. 444.) Cases cited and approved: Whirley v. Whiteman, 38 Tenn., 610; Railroad v. Cargille, 105 Tenn., 628; Sioux City, etc., R. Co. v. Stout, 17 Wall., 657; Lynch v.-Nurdin, 1 Ad. & E., N. S., 29; Cooke v. Midland, etc., R. C. [1909], A. C., 229; Union Pac. R. Co. v. McDonald, 152 U. S., 262. Cases cited and distinguished: Cooper v. Overton, 102 Tenn., 211; Railroad v. Ray, 124 Tenn., 16; Bottum’s Administrator v. Hawks, 84 Vt„ 370. 8. MUNICIPAL CORPORATIONS. Defective streets. • A city was responsible for the death of boys eleven and nine years of age by drowning in a pond which occupied the whole width of a public street, about 120 feet from a public park, in analogy to the rule^ imposing liability for maintaining an attractive nuisance. (Post, pp. 445, 446.) Cases cited and approved: Busse v. Rogers, 120 Wis., 443; Secard v. Lighting Co., 147 Wis., 614; Kelly v. Southern Wis. R. Co., 152 Wis.,. 328; Kessler v. Berger, 205 Pa., 289; Kramer v. Southern R. Co., 127 N. C., 328; City of Omaha v. Richards, 49 Neb., 244; Linnberg v. Rock Island, 136 Ill. App., 495.
128 Tenn. 447American Zinc Co. v. Smith (1913)
1. MASTER AND SERVANT. Master's liability. Servant’s, duty to obey rule. “Nondelegable.” While in instances the giving of signals may be the nondelegable duty of the master, the term “nondelegable” does not .mean that the master may not impose upon a servant the duty of giving signals prescribed for his own safety, and where such signals are not given at such a place as his duty requires he cannot recover for injury resulting therefrom. (Post, p. 451.) Cases cited and approved: Atchison, etc., R. Co. v. Reesman, 60 Fed., 370; New York, etc., R. Co. v. Ropp, 76 Ohio St., 449. 2. MASTER AND SERVANT. Master’s liability. Noncompliance with rules. Deceased, with other machinists, descended in a mining shaft to repair a pump after being warned by the master carpenter,, repairing the upper part of the shaft, that they should not come into the shaft until they notified him by knocking on a pipe; but when the repair was finished the foreman said, “Come on,”1 and went into the hoisting basket, followed by deceased, who. as he was getting into the basket, was hit by a piece of timber-falling from the carpenters’ work and killed. Held, that deceased had no right to infer that the foreman had obeyed the rule as to notice, and that, as he himself could have given notice, his failure to observe the rule was negligence, defeating á recovery. (Post, p. 454.) Case cited and approved: Central R. Co. v. Kitchens, 83 Ga., 83.
128 Tenn. 456State ex rel. National Conservation Exposition Co. v. Woolen (1913)
PROM KNOX. Appeal from Chancery Court, Knox County. — Will D. Weight, Chancellor.
128 Tenn. 493Jones v. State (1913)
1. HOMICIDE. Issues. Second degree murder. In view of Shannon’s Code, sec. 6441, requiring the jury to ascertain in their verdict whether the offense is murder in the first or second degree, it was error, on trial of- an indictment for murder, for the court not to instruct on second degree murder. (Post, pp. 494, 495.) Code cited and construed: Secs. 6438, 6439, 6440, 6441 (S). Cases cited and approved: Good v. State, 69 Tenn., 293, 294; State v. Hargrove, 81 Tenn., 178; State v. Parker, 81 Tenn., 221; Palmer v. State, 121 Tenn., 465, 488; Frazier v. State, 117 Tenn., 430; Powers v. State, 117 Tenn., 363. 2. HOMICIDE. Instructions. Degrees of crime. It is the better practice to charge upon all of the offenses embraced in the indictment, since failure to do so will be reversible if there is any doubt that accused was prejudiced by such omission. (Post, p. 495.) 3. HOMICIDE. Appeal. Harmless error. Failure to instruct. Failure to instruct on second degree murder so that the jury could ascertain in its verdict whether the offense was first or second degree murder, pursuant to Shannon’s Code, sec. 6441, was reversible error, notwithstanding Pub. Acts 1911, ch. 32, providing that no judgment shall be set aside for error in the charge, etc., unless it affirmatively appears that it affected the result. (Post, p. 496.) Acts cited and construed: Acts 1911, ch. 32. 4. CRIMINAL LAW. Appeal. Waiver of error. The fact that counsel both for the State and for accused took the position that he was guilty of first degree murder or entitled to acquittal on the ground of self-defense would not operate as a waiver of accused’s right to have, the question of second degree murder submitted. {Post, p. 496.)
128 Tenn. 499Shipp v. State (1913)
1. HOMICIDE. Trial. Direction of verdict. In a prosecution for homicide, where accused pleaded not guilty, though he admitted the firing of the fatal shot, claiming that it was caused hy his nervousness, and that he was only attempting to rob deceased, it is reversible error for the court to charge that the only question for the jury to determine was whether accused was guilty of murder in the first degree with mitigating circumstances, for Shannon’s Code, sec. 6441, declares that the jury before whom an offender is tried shall ascertain whether it is murder in the first or second degree, and if accused confess his guilt, the court shall determine the degree of crime by the verdict of a jury, and the court, not having the power to set aside the verdict of a jury, cannot, as it practically did in this case, direct a verdict of guilty or pass on any question of fact. (Post, p. 603.) Code cited and construed: Sec. 6441 (S). Cases cited and approved: Huffman v. State, 29 Ala., .40; State v. Wilson, 62 Kan., 621; State v. Godwin, 146 N. C., 461. 2. CRIMINAL LAW. Trial. Direction of verdict. In a prosecution for felony, where a plea of not guilty is interpose'd, the court can neither direct a verdict of guilty nor can it pass on any question of fact unfavorable to accused. (Post, p. 604.)
128 Tenn. 505Adams v. Chattanooga Co. (1913)
1. CORPORATIONS. Foreign corporations. Licensing of foreign corporations. A foreign corporation doing business in the State under foreign corporation statutes (Acts 1877, ch. 31; Acts 1891, ch. 122; Acts L895, ch. 81), requiring the filing of the charter with the secretary of State and the procurement of a license, is not a new entity, distinct from the foreign organization, and is domestic only as to property and acts within the jurisdiction. (Post, p. 515.) Acts cited and construed: Acts 1877, ch. 31; Acts 1891, ch. 122; Acts 1895, ch. 81. Cases cited and construed: Coke & Coal Co. v. Steel Co., 123 Tenn., 428, 442; Ohio & Miss. R. Co. v. Wheeler (Ind.), 297; Young v. Iron Co., 85 Tenn., 189; Grangers’ Life Ins. Co. v. Kemper, 73 Ala., 325; Memphis, etc., R. Co. v. Alabama, 107 U. S., 581; St. Louis R. Co. v. James, 161 U. S., 545; Southern R. Co. v. Allison, 190 U. S., 326; Blake v. McClung, 172 U. S., 239; Blake v. Mc-Clung, 176 IT. S., 60; McClung v. Embreerville Co., 103 Tenn., 399; Sully v. American Nat. Bank, 178 U. S., 289. 2. EQUITY. Pleading. Practice. Every reasonable presumption should be exercised in favor of a bill when assailed by demurrer. (Post, p. 519.) Cases cited and approved: Edwards v. Schillinger, 245 Ill., 231; Clark v. Mutual, etc., Assn., 14 App. D. C., 154; State v. North American, etc., Co., 106 La., 632; Williston v. Mich., etc., R. Co., • 13 Allen (Mass.), 400; Smith v. Mutual, etc., Co., 14 Allen (Mass.), 336. Cases cited and disapproved: Smith v. St. Louis, etc., Ins. Co., 3 Tenn Ch., 502; Smith v. St. Louis, etc., Ins. Co., 74 Tenn., 664. 3. CORPORATIONS. Foreign corporations. Dissolution. Jurisdiction of courts. A court of chancery will not dissolve a foreign corporation domesticated in the State, where all of its assets are in a foreign jurisdiction, regardless of its authority to act, for its decree would he unenforceable. (Post, p. 520.) 4. CORPORATIONS. Dissolution. Foreign corporations. Shannon’s Code, sees. 5187, 6103, 6104, respectively declaring thqt a corporation is not dissolved by the nonuser or assignment of its powers and franchises, unless all its property has been appropriated to the payment of its debts, and any creditor or stockholder may file' a bill to attach the corporate property, and have it applied to the payment of debts, and to hav.e any surplus divided among the stockholders, and that in such cases the court may appoint a receiver, and take an account of the affairs of the corporation, and satisfy the debts, and divide the surplus, if any, apply not only to domestic corporations but to foreign corporations, and under them a court of chancery may dissolve a foreign corporation as to its property within the jurisdiction. (Post, p. 522.) Code cited and construed: Secs. 3431, 4294, 4295 (T. & S. and 1858); Sees. 5187, 6103, 6104 (S.). Case cited and approved: O’Connor v. Knoxville Hotel Co., 93 Tenn., 708. 5. CORPORATIONS. Dissolution. Right to dissolve. Complainants and others joined in forming a British corporation, chartered to acquire land and the stock of any companies own- . ing land or doing business in Tennessee, to take or otherwise acquire stock in any company engaged in business which it was authorized to carry on, and to sell, hold, reissue, or otherwise deal with such stock and securities. The British corporation, which was formed to take over large tracts of land in Tennessee, did not develop them, but sold them to other corporations, receiving the shares of those companies in part payment. Held that, as it was not insolvent, and as the holding of such stocks was within its charter powers, complainant stockholders were not entitled to dissolution,' under Shannon’s Code, sec. 5187, declaring that a corporation is not dissolved by the nonuser or assignment in whole or in part of its powers, franchises, and privileges, unless all of the corporate property has been appropriated to the payment of debts. (Post, pp. 522, 523.) 6. CERTIORARI. Review. Moot' cases. In a suit to dissolve a corporation and distribute its assets, where the preferred stockholders were not before the court, it is improper for the court to construe the charter in relation to the rights of the preferred and common stockholders; that being a moot question-not presented by the record. (Post, p. 524.) Cases cited and approved: Kimball v. Kimball, 174 U. S., 158; Taylor v. Insurance Co., 97 Va., 60.
128 Tenn. 526Thompson v. Interstate Life & Accident Co. (1913)
1. INSURANCE. Losses. Demand and refusal. Penalty. Time of action. Under Acts 1901, ch. 141, declaring an insurance company, when a loss occurs, and it refuses to pay it within sixty days after demand, liable to pay the policy holder a penalty in addition to the loss, suit must be delayed sixty days after demand only when the company does not answer the demand within that time, and, the refusal being sooner, suit may be commenced immediately thereafter. (Post, pp. 527, 528.) Acts cited and construed: Acts 1901, ch. 141. 2. INSURANCE. Losses. Demand and refusal. Penalty. Where, on refusal to pay an indemnity under an accident and sick benefit policy, bill therefor and for the penalty proyided by Acts 1901, ch. 141, was filed, and, additional losses thereafter accruing, amended and supplemental bills to recover them were filed, more than sixty days having elapsed before their filing, the filing of the bill was a sufficient demand, and the filing of the answers, denying liability, a refusal to pay, as regards right to recover penalty on the additional losses. (Post, p. 528, 529.)
128 Tenn. 530Fourth National Bank of Nashville v. Nashville, C. & St. L. Ry. Co. (1913)
1. CARRIERS. Freight. ' Delivery without bill of lading. Though a railroad company wrongfully delivered grain without the surrender of the hill of lading as required by it, the consignors had no right of action against it if they were not injured because they had received payment for the grain. (Post, p. 535.) Case cited and approved: Witt & Watkins v. Railroad, 99 Tenn., 442. 2. CARRIERS. Freight. “Bill of lading.” A “bill of lading” is not a negotiable instrument but is merely a contract by a carrier to deliver the goods described at a particular place according to the usual course of transportation. (Post, p. 536.) Cases cited and approved: Merchants’, etc., Bank v. Railroad Co., 102 Md., 573; Midland National Bank v. Railroad Co., 132 Mo., 492; Ratzer v. Railway Co., 64 Minn., 245; Railway Co. v. Johnson, 45 Neb., 57. 3. CARRIERS. Bill of lading. Bona fide transferee. Complainant hank first accepted a hill of lading, covering a shipment of grain, and an attached draft on February 10th, and that draft and three other drafts against the same hill of lading were subsequently dishonored and taken up by the maker, and when the fifth draft was deposited, which was likewise dishonored and was not taken up, the bill of lading had been issued for more than three months. The grain covered by it was a domestic shipment to an adjoining State. Held, in view of the staleness of the bill of lading, that the bank was not an innocent transferee of the bill of lading and was estopped from recovering from the railroad company for negligently delivering the grain without the surrender of the bill of lading. {Post, p. 538.) 4. ESTOPPEL. Equitable estoppel. Diligence. One relying on an estoppel must have exercised such reasonable diligence as the circumstances require. (Post, p. 537.) Cases cited and approved: Crabtree v. Bank, 108 Tenn., 483; Brant v. Ya. Coal, etc., Co., 93 U. S., 326. 5. ESTOPPEL. Equitabíe estoppel. Knowledge of parties. Where both parties have the same means of ascertaining the truth, no estoppel can exist. {Post, p. 537.) 6. ESTOPPEL. Equitable estoppel. Negligence. One who conducts himself with á careless indifference to means of information reasonably at hand or ignores highly suspicious circumstances which should warn him of danger or loss cannot invoke the doctrine of estoppel. {Post, p. 538.) 7. ESTOPPEL. Good faith. One claiming the bénefit of an estoppel must have proceeded with the utmost good faith. {Post, p. 538.) 8. ESTOPPEL. Negligence. If a ground of estoppel is based on negligence, tbe negligence must bave been tbe proximate cause of tbe conduct of the-complaining party. (Post, p. 539.) 9. CARRIERS. Delivery of goods. Bill of lading'. Failure to-require. Evidence. In an action by tbe bolder of a bill of lading for damages because defendant railroad company surrendered freight- without presentation of tbe bill of lading, evidence held to show that such negligence by tbe railroad company was not tbe proximate cause of tbe bank’s loss. (Post, p. 539.)
128 Tenn. 541Nichols v. Lebanon & Hartsville Turnpike Co. (1913)
JUSTICES OF THE PEACE. Process. Sufficiency. A warrant issued by a justice of the peace in the form prescribed by Shannon’s Code, see. 5958, calling upon defendant to answer “in a civil action on an account under five hundred dollars,” was sufficient as against an objection that it failed to state a cause of action. (Post, p. 542.) Code cited and construed: Sec. 5958 (S.). Cases cited and approved: Railroad v. Flood, 122 Tenn., 56, 70; Railroad v. Davis, 127 Tenn., 167.
128 Tenn. 544State v. Wainwright (1913)
INDICTMENT AND INFORMATION. Value. Larceny. That an indictment for larceny, in its statement of the value of the property, omitted the dollar sign and contained an elongated decimal point extending under the two naughts did not render it fatally defective. (Post, p. 547.) Cases cited and approved: Hunt v. Smith, 9 Kan., 137; State v. Schwartz, 64 Wis., 432; Northrop v. Sanborn, 22 Vt., 433. Cases cited and disapproved: Barnes v. Brown, 1 Tenn., Chy. App., 726; Hamilton v. Gaslight Co., 115 Tenn., 153; Anderson v. Post (Tenn. Chy. App.), 38 S. W., 283; Randolph.v. Metcalf, 46 Tenn., 400.
128 Tenn. 550Coles v. Morrow (1913)
1. EXCHANGES. Dealings. Parties. Where a broker, who was a member of a board of trade operating under rules authorizing members to act as brokers between other members only, except in the making of contracts between members and authorized agents of carriers, or insurance or banking companies in connection with their legitimate business, negotiated contracts of sale or purchase with another member, who disclosed the buyer or seller, and the contracts were confirmed, the contracts were the broker’s own contracts, and not for the benefit of his customers not members, though the broker issued to each customer an instrument in the .form of a confirmation of the contract of sale or purchase on his account. (Post, p. 557. ) 2. GAMING. Gambling transactions. Purchase on margin. Where a customer dealt with a broker, who was a member of a board of trade, by purchasing grain on margin, without any purpose of receiving grain, and on the understanding that if the price declined so as to consume the margin, the customer should put up an additional margin or the broker could close out the transaction and charge the customer with the difference between the price at which the supposed purchase was made and the subsequent sale at market price, the transaction was a gambling transaction, and the money received by the broker in the conduct of his business was recoverable by the customer. (Post, pp. 562, 563.) 3. GAMING. Recovery of money lost. Parties entitled to recover. Statutes. Construction. Shannon’s Code, sec. 3162, authorizing actions to recover for the benefit of the wife or children of the loser of money in a gambling transaction, does not limit the right to recover for tlie benefit of minor children of a loser in a gaming transaction, but a recovery may be had for the benefit of adult children. (Post, p. 564.) Code cited and construed: Sec. S162 (S.).
128 Tenn. 565Puckett v. Griffith (1913)
1. JUSTICES OF THE PEACE. Execution. Entry of stay. Power to modify. An attempt made by a justice of the peace, after expiration of the three-day period allowed hy law, to change the entry of a stay of execution so as 'to make it applicable on its face only to the principal judgment debtor was ineffective. (Post, p. 668.) Cases cited and approved: Mayfield v. McLary, 40 Tenn., 160; Apperson v. Smith, 37 Tenn., 372; Howard v. Browhlow, 36 Tenn., 548. 2. JUSTICES OF THE PEACE. Execution. Entry of stay. Effect as judgment. Entry of a stay of execution by a justice of the peace was equivalent to a confessed judgment against the stayor. (Post, p. 568.) Cases cited and approved: Roberts v. Cross, 33- Tenn., 233; Apperson v. Smith, 37 Tenn., 372. 3. JUSTICES OF THE PEACE. Execution. Stay. Liability of stayor. Under Shannon’s Code, sec. 4788, authorizing a justice of the peace to enter security for stay of execution, and section 4789 providing that one who becomes stayor at the instance of the principal defendant is liable before a surety, a person who caused his name to be entered broadly as stayor was liable before the sureties, where the stay as to them was unauthorized and promptly disaffirmed by them, though he was induced to become stayor by the principal debtor’s false representation that the sureties desired that the judgment be stayed. (Post, p. 530.) ■ Code cited and construed: Secs. 4788, 4789 (S.). Cases cited and approved: Chaffin v. Campbell, 36 Tenn., 184; Holt v. Davis, 40 Tenn., 629; Higg v. Landrum, 41 Tenn., 81; Gant v. White, 62 Tenn.. 196. 4. JUSTICES OF THE PEACE. Entry of stay. Operation and effect. Where the name of a stayor is entered by a justice of the peace without any qualification, prima facie he is stayor for both the principal judgment debtor and his sureties, hut he may he shown to he in reality the stayor of the principal only. (Post, p. 571.) Case cited and approved: Woodward v. Wilton, 54 Tenn., 50. 5. JUDGMENT. Setting aside. Grounds. To justify a court of equity in setting aside a judgment at law, the complainant must prove not only fraud but that it was unmixed by any fault attributable to him, such as neglect or inattention. (Post, pp. 571, 572.) Cases cited and approved: McDowell v. Morrel, 73 Tenn., 279; Maddox v. Apperson, 82 Tenn., 596. 6. JUDGMENT. Bill to set aside. Laches. Where it appeared that the complainant, in a suit to set aside, for fraud in procurement, the entry of his name as stayor of a judgment rendered by a justice of the peace, made no effort to ascertain from the sureties of the principal debtor whether they desired him to become stayor, and that the sureties promptly disaffirmed the stay, - complainant, by reason of his inattention, was not entitled to have the judgment set aside. (Posit,, p. 572.)
128 Tenn. 573Harris v. Nashville Trust Co. (1913)
1. ABATEMENT AND REVIVAL. Survival of causes of action. Libel. An action may be maintained against an executor as such, for damages from a libel contained in a will published by the probate thereof, the maxim, “Actio personalis moritur cum persona” not applying, since the right of action did not exist in the lifetime of the testator. (Post, p. 577.) Cases cited and approved: McGhee v. Baumgartner, 121 Mich., 287; Allen v. Pioneer Press Co., 40 Minn., 117; Osborn v. Leach, 135 N. C., 628. .2. LIBEL AND SLANDER. Libelous words. Charge of Illegitimacy. It is libelous per se to charge one in print or writing with being illegitimate. (Post, p. 578.) Cases cited and approved: Shelby v. Sun Printing, etc., Assn., 38 Hun (N. Y.), 474; Mix v. North American Co., 12 Pa. Dist. R„ 446. 3. EXECUTORS AND ADMINISTRATORS. Actions. Where a libel contained in a will was published by the probate thereof, the testator, and not the executor, was liable, since a principal is responsible where authority is given to an agent to publish libelous words, and the publication is made in substantial accord with such authority and the publication by the executor was in literal pursuance of the authority given; it being his duty to probate the will. (Post, pp. 578, 579.) 'Code cited and construed: Sec. 6565 (S.). Cases cited and approved: Dawson v. Holt, 79 Tenn., 583; Wilson v. Noonan, 27 Wis., 598; Adams v. Kelly, 1 Ry. & M., 158; Bacon v. Mich. Central R. Co., 55 Mich., 224; Smith v. Harrison, 49 Tenn., 230; Douglass v. Baber, 83 Tenn., 651. 4.- TORTS. Right of action. That no precedent can be found for an action in tort, though to be considered, will not of itself prevent relief; the determinative question being whether a wrong has been inflicted for which plaintiff is entitled to recover lawful damage. (Post, p. 579.) Cases cited and approved: Kujek v. Goldman, 150 N. Y., 176; Rice v. Coolridge, 121 Mass., 393; .Jacob v. State, 22 Tenn., 493. 5. LIBEL AND SLANDER. Publication. Republication. The probate of a will was a publication of a libel contained therein sufficient to sustain a suit even if, as claimed, there was a publication thereof during the testator’s lifetime by the dictation of the will to a stenographer. (Post, p. 580.) 6. ABATEMENT AND REVIVAL. Survival of causes of action. The maxim, “Actio personalis moritur cum persona,” is based upon no very satisfactory reason, and is not favored by the courts. (Post, p. 581.) Case cited and approved: Hambly v. Trott, 1 Cowp., 373, 98 Eng. Reprint, 1136 in- 1776. Cases cited and disapproved: Finley v. Chirney, 20 Q. B. D., 494, 508; Hyatt v. Adams, 16 Mich., 180. 7. ABATEMENT AND REVIVAL. Survival of causes of action. Statutory provisions. Shannon’s Code, sec. 4569, provides that no civil action commence'd whether founded on wrongs or contracts, “except actions for wrongs affecting the character of the plaintiff” shall abate by the death of either party, but may be revived. Held, that the exception as to wrongs affecting the character of plaintiff ' did not defeat an action based on a libel contained in a will first published after the testator’s death, as that action relates only to actions commenced during the lifetime of the deceased party. (Post, pp. 585, 586.) Code cited and construed: See. 4569 (S.). Cases cited and approved: Dayton v. Lynes, 30 Conn., 351; Napier v. Trimmer, 56 Ga., 300; Frost v. Tarr, 53 Ind., 390; Lee v. Carter, 52 Ind., 342; Bell v. Hewitt, 24 Ind., 280; Baker v. Syfritt, 147 Iowa, -49; McGuire y. McGuire, 11 Bush. (Ky.), 142; Freel y. Freel, 7 Ky. Law Hep., 288; Jenkins v. Stetson, 9 Allen (Mass.), 128; Sword y. Keith, 31 Mich., 247; Clark y. Cordry, 69 Mo. App., 6; Cullen v. Woolverton, 65 N. J. Law, 279; Van Horn y. Demarest, 76 N. J. Eq„ 386; Andrews v. Brewster, 124 N. Y., 433; Whitcomb y. Whitcomb, 92 Hun, 443, 36 N. Y. Supp., 607; Sherman v. Scott, 27 Hun (N. Y.), 331; Burgess v. Burgess, 109 Pa., 312.
128 Tenn. 587Nashville Railway & Light Co. v. Dungey (1913)
1. TRIAL. Instructons. Burden of proof. In a personal injury action, where the court charged that the burden of proof was on plaintiff hy reason of defendant’s plea of not guilty, the giving of another charge, setting out the contentions of both parties as to the nature of the accident and stating that, if defendant’s version was true, verdict should be for it, places the burden of proving the truth of his theory on defendant. .{Post, pp. 589, 590, 891.) 2. TRIAL. Instructions. Burden of proof. In a personal injury action, a charge, which set out the contentions of both of the parties and stated that if defendant’s version was true, verdict should be for it, is improper because imposing on defendant the burden of proving its defense beyond reasonable doubt. {Post, pp. 592, 593.) Case cited and distinguished: McBee v. Bowman, 89 Tenn., 136. 3. APPEAL AND ERROR. Review. Harmless error. Notwithstanding the provisions of Acts 1911, ch. 32, providing that no judgment shall be set aside for any error- not affecting the result of the trial, the giving of an instruction, in a personal injury action against a street railway company, outlining defendant’s theory of the accident and charging the jury that if they should find it to be true to find for defendant, is so prejudicial as to necessitate a reversal, particularly where other instructions authorized a finding for plaintiff on a slight preponderance of evidence and the statute declaring defendant’s liability for its negligence was read to the jury, without qualification. {Post, pp. 595, 596.) Acts cited and construed: Acts 1911, ch. 32. Code cited and construed: Shan. Code,-sec. 2406. Cases cited and approved: Chapman v. McAdams, 69 Tenn., 500; McBee v. Bowman, supra; Gage v. Railroad Co., 88 Tenn., 726; Wilcox v. Hines, 100 Tenn., 524; Knights of Pythias v. Steele, 107 Tenn., .1. .
128 Tenn. 597Grigsby & Co. v. Bratton (1913)
1. EXPLOSIVES. Gasoline. Injuries to automobile. Contributory negligence. Burden of proof. In an action for injuries from tbe explosion of plaintiffs automobile by gasoline being poured into tbe tank coming in contact with a light on tbe machine, it will be assumed, in tbe absence of contrary evidence, under tbe rule as to the burden of proof, that tbe cap of tbe tank was removed by plaintiff before be went in to direct tbe tank to be filled, rather than by defendant’s employees who filled it. (Post, p. 601.) 2. EXPLOSIVES. Contributory negligence. Plaintiffs son drove plaintiffs automobile to defendant’s drug store to have it filled with gasoline, and, after stopping tbe machine in front of the store and ordering tbe gasoline, turned down tbe light of a lamp attached to tbe rear of tbe automobile about twenty inches under tbe cap of tbe tank into which tbe gasoline was poured, and walked away to talk to some boys. Tbe side of tbe lamp next to defendant’s store was of metal, so that tbe light did not show in that direction, and defendant’s clerk brought out a five-gallon gasoline can, and, without noticing that tbe light was burning, placed a funnel in tbe mouth of tbe tank and lifted tbe can to pour gasoline into tbe tank, when some of tbe gasoline ran down and came in contact with tbe light causing an explosion. There was no proof whether tbe cap on tbe automobile tank was originally removed by plaintiffs son or by defendant’s clerk. Held, that plaintiffs son was negligent in' merely lowering tbe light and removing tbe tank cap and walking away, without explaining to defendant’s clerk that tbe tank was not ready to be filled. (Post, pp. 599, 600.) 3. EXPLOSIVES. Negligence. Proximate cause. Tbe negligence of plaintiffs son was tbe proximate, cause of tbe explosion. (Post, pp. 601, 602.) 4. NEGLIGENCE. Contributory negligence. Proximate cause. If plaintiff’s negligence continued up to the time of tbe accident and contributed thereto, either the negligence of the parties was concurrent, or else plaintiff could have avoided the accident, making his negligence in either event a proximate cause of the accident. (Post, p. 603.) Cases cited and approved: Barr v. Railroad, 105 Tenn., 545; Seith v. Commonwealth Co.; 241 Ill., 252; Railroad v. Roe, 118 Tenn., 601. 5. NEGLIGENCE. “Proximate cause.” “Proximate 'cause” does not necessarily mean that which is last in time or place, but means that which is the procuring and efficient cause of the accident, and indicates, rather, nearness in causal relation. (Post, p. 603.) Cases cited and approved: Gilson v. Canal Co., 36 Am. St. Rep., 811, notes; Barr v. Railroad, 105 Tenn., 545; Rosenbaum v. Shoffner, 98 Tenn., 630. 6. NEGLIGENCE. Contributory negligence. Effect. Where plaintiff and defendant are both guilty of negligent acts which together constitute the proximate cause of the injury, plaintiff cannot recover. (Post, p. 604.) Cases cited and approved: Railway v. Haines, 112 Tenn., 715; Traction Co. v. Brown, 115 Tenn., 325.
128 Tenn. 605McClaugherty v. Cline (1913)
1. INNKEEPERS. What constitutes. “Boarding house keeper.” “Hotel keeper.” The words “innkeeper” and “hotel keeper” are synonymous, but each is distinct from a “boarding house keepeT,” in that the innkeeper has no right, to select his guests, but must receive everyone applying for accommodation who conducts himself in • a proper manner, etc., while the keeper of a boarding house is one who maintains a house for the accommodation of those who enter under contract for entertainment at a certain rate for a certain period at an agreed compensation; nor does a boarding house cease to be such because transients are occasionally entertained; nor does a hotel lose its character merely because, incidentally, it entertains boarders under contract for compensation for a spepified time. (Post, pp. 606, 607.) Case cited and distinguished: Rex v. Ivens, 7 Car. & P., 213. Cases cited and approved: Stewart v. McCready, 24 How. Prac. '(N. Y.), 62; Willfard v. Reinhardt, 2 E. D. Smith (N. Y.), 148; Civil Rights Cases, 109 U. S., 3; Meacham v: Galloway, 102 Tenn., 415; Dickerson v. Rogers, 23 Tenn., 179; Hill v. Hotel Co., 124 Tenn., 376; Kislen v. Hildebrand, 9 B. Mon. (Ky.), 72; Coe v. Ricker, 214 Mass., 212. 2. INNKEEPERS. Privilege tax. “Boarding house.” Complainants maintained a public house, kept open at certain assembly grounds, for boarders who attended an assembly, which lasted for eight weeks during the summer. Complainants were paid at a specified sum per week, and, if any boarder left without remaining a full week, he was charged $1.50 per day. Complainants kept no porter, office, or register, and did not solicit business further than by advertisement Held, that complainants kept a “boarding house,” and not a hotel, and were, therefore, not required to pay a privileged tax imposed on hotel keepers by Acts 1909, ch. 479. (Post, p. 608.)
128 Tenn. 609Kendrick-Roan Grain & Elevator Co. v. Weaver (1913)
1. PRINCIPAL AND SURETY. Fidelity- bond. Warehouse superintendent. Fund. A corporation operating a grain warehouse, desiring to borrow money from a bank on warehouse receipts, appointed W., who, in fact, was a mere bookkeeper for the corporation, superintendent of the warehouse, and procured a fidelity bond from defendant surety company guaranteeing against loss arising from W.’s fraud in issuing warehouse receipts without having the grain in store. The bond contained a rider that it should not cover any loss except such as might grow out of the issuing of fraudulent receipts signed by W. in conjunction with an officer of the warehouse company, and only such receipts as should be pledged to complainant bank as collateral in the • regular course of its business. Held, that, where W. executed receipts in conduction with the president of the warehouse company for grain in excess of that stored, which receipts were thereupon pledged to the bank, W. thereby certified to- a fact as of his own knowledge, and was guilty of fraud within the rider of the bond, though he had no actual knowledge of the falsity of the receipts, and though he, in fact, was not the superintendent of the warehouse, and performed no duties pertaining to such office. (Post, pp. 612-625.) Cases cited and approved: Dawe v. Morris, 4 L. R. A., 158, 159; Bullitt v. Farrar, 42 Minn., 8; Hedlin v. Minneapolis Medical & Surgical Institute, 35 L. R. A., 430, 431; Andrews v. Jackson, 168 Mass., 266; Fargo Gas Light & Coke Co. v. Fargo Gas & Electric Co., 4 N. D., 219; Hindman v. First National Bank, 112 Fed. 931; Shacklett v. Bickford, 74 N. H., 57; Aldrich v. Scribner, 154 Mich., 23; Morrow v. Bonebrake, 84 Kan., 724; Martin v. Hutton, 90 Neb.,° 34; Westerman v. Corder, 86 Kan., 239. - 2. PRINCIPAL AND SURETY. Fidelity bond. Conditions. Performance by employer. Omission. Rights of third persons. Where a surety company executed a fidelity bond for the benefit of a bank, insuring against loss sustained by the issuance of fraudulent warehouse receipts by the alleged superintendent of a warehouse, which might be pledged by the warehouse company to the bank, the fact that the warehouse company misrepresented the employee’s position as warehouse superintendent, when, in fact, he was a mere bookkeeper, and that the warehouse company failed to inform the surety of the employee’s default, etc., did not relieve the surety from liability for such defaults to the bank; the bank being under no obligation to the surety company to see that such conditions of the bond were complied with. (Post, pp. 627, 628, 629, 630, 631, 632.) Cases cited and approved: American Surety Co. v. Pauly, 170 U. S., 133; Fidelity & Deposit Co. v. Courtney, 186 U. S., 342; Wells Fargo & Co. v. Walker, 9 N. M., 456; Carrollton Furniture Co. v. American Credit Indemnity Co., 124 Fed. 27; Hormel v. American Bonding Co., 112 Minn., 288; People, ex’ rel., Casson v. Rose, 174 Ill., 310. 3. PRINCIPAL AND SURETY. Fidelity bond. Extent of liability. Where a bond secured plaintiff bank against the issuance of fraudulent warehouse receipts by the superintendent of a warehouse in so far as such receipts might be pledged by the warehouse company to the bank, and receipts issued by the superintendent for an amount of grain in excess of that deposited were pledged to the bank, the surety’s liability on the bond was the difference between the value of the grain called for by the receipts and the value of the amount actually stored under each of them at the time they were issued. (Post, pp. 632, 633.) Cases cited and approved: Hindman v. First National Bank, 112 Fed. 931; McDonald v. Unaka Timber Co., 88 Tenn., 38; Paragon Refining Co. v. Lee Bros., 98 Tenn., 643; Cole ,v. Zuearello, 104 Tenn., 64. 4. PRINCIPAL AND SURETY. Fidelity bond. Warehouse receipts. Pledge. Where a warehouseman's superintendent was bonded to secure a bank against fraudulent warehouse receipts that might be pledged to it to secure loans to the warehouse company, and fraudulent receipts were issued for more grain- than was deposited under them, which receipts were pledged to the bank, it was not material, either to the surety’s liability, or to the bank’s right to recover under the bond, that the warehouse company, after pledging the receipts, disposed of all of the grain covered thereby. (Post, pp. 633, 634.) 5. PRINCIPAL AND SURETY. Fidelity bond. Loss. Failure to pay. Penalty. Where, in an action on a fidelity bond, it appeared that the surety interposed its defense in good faith, and the construction of the policy as a whole presented a matter of some difficulty, the surety company, though ultimately found liable, was not subject to the penalty imposed by Acts 1901, ch. 141, on insurers for refusal to pay a loss within 60 days after demand, etc., unless such refusal shall have been in good faith. (Post, pp. 634, 636.) Acts cited and approved: Acts 1901, ch. 141. Case cited and approved: Continental Fire Ins. Co. v. Whitaker & Dillard, 112 Tenn., 168.
128 Tenn. 636Durham v. State (1913)
FROM SUMNER. Error to Circuit Court, Sumner County. — W. !L. Cook,'Judge.
128 Tenn. 645Tennessee Fertilizer Co. v. McFall (1913)
1. CONSTITUTIONAL LAW. Taxation. Due process of law. Tax proceedings. Hearing. Interested party. Revenue Act 1907, eh. 602, sec. 30, requiring bach tax proceedings to be instituted and heard before the county trustee, whose compensation, by section 48, is made to depend on the amount adjudged to be due from the taxpayer in such proceedings, does not for that reason deprive the taxpayer of due process of law in that the trustee is a party in interest, nor is the taxpayer for that reason deprived of a hearing in accordance with the “law of the land.” (Post, pp. 649, 650.) Acts cited and construed: Acts 1907, ch. 602, see. 30. Constitution cited and construed: Art. I., sec. 8. Case cited and approved: Grundy County v. Tennessee Coal, etc., Co., 94 Tenn., 295. 2. CONSTITUTIONAL LAW. Back taxes. Assessment. Hearing before assessing officer. It is not necessary that the statute providing for the assessment of back, taxes should provide the taxpayer with an opportunity for hearing before the county trustee making the assessment; it being sufficient that the taxpayer is given an opportunity to appeal to the board of equalization and that he is afforded an opportunity to review the proceedings of the board in the courts by certiorari. (Post, p. 652.) Acts cited and construed: Acts 1907, sec. 30. Case cited and distinguished: E. Tenn. Brewing Co. v. Currier, 126 Tenn., 535. 1 Cases cited and approved: MeMillen v. Anderson, 95 XT. S., 37; Paulsen v. Portland, 149 U. S., 30; Winona & St. Paul Land Co. v. Minnesota, 159 U. S., 526; Palmer v. McMahon, 133 U. S.f 660. 3. CONSTITUTIONAL LAW. Due process of law. Back tax proceedings. Notice. The notice required to he given to a taxpayer in hack tax proceedings required by Acts 1907, ch. 602, being such as to advise the taxpayer that hack assessment proceedings are to he begun against him, is sufficient; the burden being on him to show that he has paid taxes on all his property at a fair valuation. {Post, p. 665.) 4. CONSTITUTIONAL LAW. Assessment. Back taxes. Notice. Where property owner actually participated in proceedings to ' make an assessment of back taxes against his property, he could not thereafter complain that the statute did not provide for a sufficient notice of the proceedings. {Post, p. 655.) Cases cited and approved: Williams v. Eggleston, 170 XT. S., 304; C., B. & Q. R. Co. v. Nebraska, 170 TJ. S., 57; Security Trust & Safety Vault Co. v. Lexington, 203 U. S., 323. 5. CONSTITUTIONAL LAW. D.ue process of law. Back tax proceedings. Notice. Time. The 10 days’ notice provided by Revenue Act 1907, ch. 602, for an appeal from a county trustee’s back tax assessment to the board of equalizers, was long enough to constitute due process of law. {Post, p. 656.) Cases cited and approved: Bellingham Bay & B. C. R. Co., v. New Whatcom, 172 U. S., 314; Ballard v. Hunter, 204 XT. S., 241. 6. JUDGES. Judicial officers. County trustee. Compensation. . Back tax proceedings. The county trustee in making assessments of back taxes as provided by Revenue Act 1907, ch. 602, is not a judge of the Supreme or inferior courts, but exercises quasi judicial authority only, and is therefore not within Const, art. 6, secs. 7, 11, providing that such judges shall at stated times receive compensation for their services and shall not be allowed any fees or perquisites and shall not preside in the case, in the event of which he may be interested. {Post, p. 656.) Constitution cited and construed: Art. 6, secs. 7, 11. Case cited and approved: Grundy County v. Tenn. Coal, etc., Co., supra. 7. CONSTITUTIONAL LAW. Departments of government. Judicial powers. County trustee. Revenue Act 1907, ch. 602, in so far as it vests quasi judicial authority in hack' tax proceedings on the county trustee, was not violative of Const, art. 6, sec. 1, vesting the judicial power of the State in the Supreme and other specified courts. (Post, p. 667.) Acts cited and construed: Acts 1907, sec. 30. Constitution cited and construed: Art. 6, sec. 1. 8. TAXATION. Back assessment. Statutes. Application. Revenue Act 1907, ch. 602, in so far as it provides for the hack assessment of taxes, merely undertakes to provide a new remedy for the collection of taxes already delinquent at the time of its passage, and hence taxes on omitted property accruing prior to the adoption of the act were recoverable thereunder. (Post, p. 668.) Case cited and approved: League v. Texas, 184 U. S., 166. 9. TAXATION. Manufacturing corporations. Assessment of stock. Exemption. Revenue Act 1907, ch. 602, sec. 8, provides that all personal property shall he assessed under certain classes, class 6 including shares of stock, except when the corporate property or capital stock is assessed, in lieu of the shares of stock, as provided in section 22, which declares that each manufacturing corporation, whether foreign or domestic, shall pay an ad valorem on the actual cash value of its capital stock or corporate property, including franchises, easements, incorporeal rights and privileges, and all other corporate property, which shall not he less than the actual cash value of both its shares of stock and its bonded debt, etc. Held, that it was the legislative intention under such act to assess the capital stock and corporate property of all manufacturing corporations, whether foreign or domestic, and hence the shares of such corporations so assessed were exempt from further taxation. (Post, pp. 659, 660, 661.) Acts cited and construed: Act 1907, ch. 602, secs. 8, 21-24; Acts 1897, ch. 5; Acts 1903, ch. 258, 22-24. Case cited and distinugished: Express Co. v. Patterson, 122 Tenn., 279. Cases cited and approved: Bank v. Memphis, 101 Tenn., 154; Carroll v. Alsup, 107 Tenn., 257; Briscoe v. McMillan, 117 Tenn., 126.
128 Tenn. 665Brown & Sons Lumber Co. v. Sessler (1913)
1. MASTER AND SERVANT. Injuries to third person. Death. Master’s liability. Defendant lumber company maintained a sawmill in connection with which was a chute by which wood for fuel converted from slabs was taken from the saw. The wood was sold to dray-men who loaded their wagons from the pile, for the protection of whom the lumber company had adopted a custom of requiring the employees who took out the large pieces to give a warning signal if by chance a large piece should go past him into the chute, and be liable to fall on the pile. While decedent, a customer, was loading his wagon at the pile, the employee in charge of the chute temporarily left it to warm himself, and, while absent, a large piece of wood passed over the chute without warning, and struck decedent, and caused- injuries from which he died. Held,, that decedent, being at the pile by the lumber company’s invitation, was entitled to rely on the giving of a warning signal, and that defendant was therefore liable for his death resulting from a failure on the part of the employee to comply with the custom. (Post, pp. 667, 668.) Cases cited and approved: Maness v. Clinchfield Coal Corporation, 128 Tenn., 143; Rosenbaum v. Shoffner, 98 Tenn., 624; Bennett v. Louisville, etc., R. Co., 102 U. S., 577;. Sesler v. Coal Co., 51 W. Va„ 322. 2. MASTER AND SERVANT. Injuries to third person. Superintendent. Liability. Where the superintendent of a lumber company had no personal interest in the business, and was not present when decedent, a customer, was struck and killed through the negligence of a laborer employed by the company, and there was no claim that the superintendent was negligent in employing such laborer or retaining him in the service, the superintendent was not liable. (Post, pp. 669, 670, 671, 672.) Cases .cited and distinguished: Stone v. Cartwright, 6 Term Rep. (Durnf. & E.), 411; Brown v. Lent, 20 Vt., 529; Bileu v. Paisley, 18 Ore., 47; Thurman v. Pittsburg, etc., Copper Co., 41 Mont., 141. Cases cited and approved: Ellis v. Southern Railway Co., 72 S. C., 465; Railroad v. Blair, 1 Tenn. Chy., 351, 63 Tenn., 407. 3. APPEAL AND ERROR. Joint judgment. Partial invalidity. Where, in an action for death against a lumber company and its superintendent, a joint judgment against both was not sustainable as against the superintendent, but was valid as against the lumber company, the latter was not entitled to have it set aside as to it. (Post, pp. 673, 674.) Case cited and distinguished: Bentley v. Hurxthal, 40 Tenn., 378. Cases cited and' approved: Street Railway v. Gore, 106 Tenn., 390; Sparrow v. Bromage, 83 Conn. 27; Loveman v. Bayless, 128 Tenn., 307.
128 Tenn. 675Sivley v. Nixon Mining Drill Co. (1913)
1. MASTER AND SERVANT. Assumption of risk. Simple tools. Ladder. An ordinary ladder falls within the class of simple tools for defects in which the employer is held not liable, on the ground that such defect must he obvious to the user, by whom any risk of danger therefrom is assumed; and the equipment of the ladder with metal spikes at the bottom does not take it out of such rule. (Post, pp. 677-680.) Cases cited and approved: Cahill v. Hilton, 106 N. Y., 512; Marsh v. Chiekering, 101 N. Y., 396; Blundell v. Elevator Mfg.' Co., 189 Mo., 552; Jenney Electric, etc., Railroad Co. v. Murphy, 115 Ind., 566; Meador v. Lake Shore, etc., Railroad Co., 138 Ind., 290; McDonald v. Lovell, 196 Mass., 583; Sheridan v. Gor-ham Mfg. Co., 28 R. I. 256. Cases cited and disapproved: Ritt v. Tag Paint Co., 108 Tenn., 646; Jones v. Pacific Mills, 176 Mass., 354. Case cited and distinguished: Dessecker v. Phoenix Mills Co., ■98 Minn., 439. 2. MASTER AND SERVANT: Master’s liability: Tools and appliances. Where plaintiff, engaged in oiling overhead shafts and pulleys, before ascending a ladder, the lower end of which was equipped with metal spikes to prevent sliding, but which had worn blunt and become defective, requested his foreman to have some one hold it, but was told to go ahead and. use it, that it had been used for three years and had never fallen, there was no order predicated upon such a condition of the ladder, or upon any inspection, upon which plaintiff could have relied. (.Post, . pp, 680, 681.) Cases cited and approved: Meador v. Lake Shore, etc., R. Co., supra; Marsh v. Chickering, supra; Jenney Electric Light Co. v. Murphy, supra; Brewer v. Tennessee Coal Co., 97 Tenn., 615; Brouseau v. Kellogg, etc., Co., 158 Mich., 312.
128 Tenn. 682Fecheimer-Keifer Co. v. Burton (1913)
FRAUDULENT CONVEYANCES. Bulk sales. Validity. Remedy of creditors of seller. Where a retail merchant sold his stock in hulk without compliance with the Bulk Sales Act (Acts 1901, ch. 133), both parties being without actual intent to defraud, and paid over the proceeds to a part of his creditors, the sale was not absolutely void, so as to entitle an unpaid creditor to recover the value of the entire stock; but, the buyer being entitled to be sub-rogated to the claims of the creditors paid with its money, the plaintiff creditor could only recover the pro rata share of such value which was distributable to him. (Post, p. 684.) Acts cited and approved: Acts 1901, ch. 133; Acts 1903, p. 92. Code cited and construed: Civil Code 1895, sec. 2697. Cases cited and approved: Daly v. Drug Co., 127 Tenn., 412; Adams v. Young,-200 Mass., 588; Loos v. Wilkinson, 113 N. Y., 485; Algood v. Connell, 35 Tenn., 578; Neas v. Bor ches, 109' Tenn., 398; Gallus v. Elmer, 193 Mass., 106; Robinson v. Stewart, 10 N. Y., 189, 196; Kohn v. Fisbback, 36 Wash., 69; Appel Mercantile Co. v. Barker, 92 Neb., 669; Guaranty, etc., Co. v. Pearlman (D. C.), 144 Fed., 550, contra National Gro. Co. v. Plotter, 167 Mich., 626; Chatterton v. Mason, 86 Md., 236; American Bonding C'o. v. National, etc., Bank, 99 Am. St. Rep., 480, notes; Knafle v. Banking & Trust Co., 128 Tenn.,-. Cases cited and distinguished: Sampson v. Brandon Grocery Co., 127 Ga., 454; Fitz Henry v. Munter, 33 Wash., 629.
128 Tenn. 689Williams v. Hewitt (1913)
ADVERSE POSSESSION. Adverse holding. Inclosure by mistake. Where a purchaser of land accidentally or by mistake incloses a strip contiguous to his purchase, believing he is placing the fence on the boundary, and holds the strip so-inclosed for seven years, his possession is adverse, and will avail against the true owner. (Post, pp. 690, 691, 692.) Cases cited and approved: Erck v. Church, 87 Tenn., 675; Kirk-man v. Brown, 93 Tenn., 476; Brock v. Burchett, 32 Tenn., 27; Gates v. Butler, 22 Tenn., 447; Coal Creek Mining Có. v. Ross, 80 Tenn., 1; McSpadden v. Iron Co., 42 S. W., 497; Coal Co. v. Ferguson, 35 S. W., 900; Callaway v. Sandford, 35 S. W., 776; Coal Co. v. Lawson, 35 S. W., 456.
128 Tenn. 693Saunders v. Lanier (1913)
1. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Sale of property. In a special assignment in trust for creditors, a direction to sell “to the highest bidder either at public or private sale” imports a sale for cash, and, when the trustee and a preferred creditor assume to make a credit sale, they become absolutely responsible for the whole price. (Post, pp. 694, 695.) 2. PRINCIPAL AND SURETY. Discharge of sureties. Loss of) other Securities. The security provided by a special assignment for creditors inured to the benefit of sureties on a note secured thereby, and, a portion thereof being lost by negligence of the payee in actively assisting to sell the the trust property, and taking in part therefor an insolvent note, or in making a credit sale at all, he, and not the sureties, must bear the loss. (Post, 1w. 695, 696.) Cases cited and approved: Renegar v. Thompson, 69 Tenn., 457; Allen v. Henley, 70 Tenn., 141; In to Cator, 82 Tenn., 408; Gillespie v. Darwin, 53 Tenn., 21; First National Bank v. Kittle, 69 W. Va„ 171.
128 Tenn. 697Caldwell v. Nashville Interurban Railway Co. (1913)
INJUNCTION. Contempt. Where a temporary injunction issued to restrain a railroad company from condemning a right of way immediately in front of complainant’s residence was dismissed on stipulation, which provided that both parties should apply for a dismissal, and that the road should be constructed in a certain manner, and the trains operated at less than a certain rate of speed, the officers of the railroad company cannot be proceeded against as for contempt for violation of the injunction because they operated the trains at a greater rate of speed. (Post, pp. 698-704.) '
128 Tenn. 705Lusky v. Keiser (1913)
1. FRAUDS, STATUTE OF. Sale of real estate. “Party to be charged.” The words “party to be charged,” as used in the statute of frauds requiring a memorandum of a sale of real property signed by the party to be charged, means the owner of the realty rather than the party attempted to be charged or held liable in an action based on the memorandum. (Post, pp. 708, 709.) Cases cited and approved: Frazer v. Ford, 39 Tenn., 464; Lee v. Cherry, 85 Tenn., 707. 2. FRAUDS, STATUTE OF. Sale of real property. Necessity of written contract. It is not necessary that a contract for the sale of real property be in writing, provided there is a writing which contains evidence of the essential terms of the oral contract, and which is signed by the party to be charged. (Post, p. 709.) 3. FRAUDS, STATUTE OF. Sale of land. Written memorandum, A written offer to purchase land when signed and accepted may constitute a memorandum of the contract sufficient to satisfy the statute of frauds, though it consist of several contracts. (Post, p. 709.) Cases cited and approved: Lee v. Cherry, supra; Otis v. Payne, 86 Tenn., 666. 4. FRAUDS, STATUTE OF. Selling of land. Written memorandum. Complainants executed to a broker a contract authorizing the latter to sell a tract of land belonging to one of them, thq, instrument containing a description of the land, the price and terms, and an agreement to make a deed to any good purchaser complying with the terms procured by the broker. The broker thereafter obtained defendant’s consent to purchase, and induced her to sign an addenda on such contract reciting that she accepted. the proposition. Held, that such contract was merely to define the relation between complainants and the broker, and that it did not constitute a sufficient memorandum of the contract between complainants and defendant to bind her to purchase under the statute of frauds. (.Post, pp. 709-716.) Oases cited and approved: Lee v. Cherry, supra; Grafton v. Cummings, 99 U. S., 100; Lewis v. Wood, 163 Mass., 321; Weather-head v. Ettinger, 78 Ohio St., 104; Jordan v. Mahoney, 109 Va., 133; Donnell v. Currie (Tex. Civ. App.), 131 S. W., 88; Evans v, Stratton, 142 Ky., 615; Davis v. Brigham, 66 Ore., 41. ' Cases cited and distinguished: Haydock v. Stow, 40 N. Y., 363; Eletcher v. Underwood, 240 Ill., 554; Ullsperger v. Meyer, 217 Ill., 262; Lasher v. Gardner, 124 Ill., 441.
128 Tenn. 717Reeves v. Haynie (1913)
COURTS. Appellate jurisdiction. Ejectment. Where a bill charged that complainant was the owner of land and entitled to its possession, and that defendant entered thereon and was claiming it under a pretended title, appropriating rents and profits, and prayed for adjudication of the title and for possession and rents, and the answer admitted possession, but denied complainant’s title and right of possession, and set up defendant’s own claim of title, and an amended bill reiterated complainant’s claim, and attacked defendant’s ( claim and sought to remove it as a cloud, the original bill made a case of ejectment of which the court of civil appeals has no jurisdiction under acts 1907, ch. 82, sec. 7; the relief sought in the amended bill being merely incidental thereto, and not devolving jurisdiction on that court. (Post, pp. 718, 719.) Acts cited and construed: Acts 1907, ch. 82, sec. 7. Case cited and disapproved: Murphy.v. Sullivan, 124 Tenn., 430.
128 Tenn. 720Graham v. Williamson (1913)
FROM MAURY. Appeal from Chancery Court, Maury County. — J. P. Abebnathy, Chancellor.
128 Tenn. 725Bransford Realty Co. v. Andrews (1913)
1. TRUSTS. Appointment of trustees. Parties. Both under the general equity practice and Shannon’s Code, sec. 5429, providing that upon the death of a trustee a new trustee may he appointed, upon application hy the beneficiaries by petition making all necesary parties defendant, the question of the necessity of parties rests in the discretion of the chancery court, being largely a question of expediency; and hence, while all persons interested should generally be made parties, the court of chancery having jurisdiction of the trust res may proceed, although contingent remaindermen were not parties. (Post, pp. 729-734.) 2. TRUSTS. Trustees. Appointment. Parties. In a- proceeding to appoint a trustee to succeed a deceased trustee, the heirs of the deceased trustee are not necessary parties, for they have no power respecting the trust' estate or any interest therein, except the naked legal title. (Post, pp. 729-734.) Code cited ánd construed: Sec. 5429 (S.). Cases cited and distinguished: Wooldridge v. Planters’ Bank, 33 Tenn., 297; Williams et al. v. Neil et al., 51 Ténn.f-279. Cases cited and approved: Bright v. Bright, 62 Tenn., 109; Williamson v. Wiekersham, 43 Tenn., 52; Watkins v. Specht, 47 Tenn., 587; Birdsong- v. Birdsong, 39 Tenn., 289-302; Milbank v. Crane, 25 How. Prac. (N. Y.), 193; Dyer v. Leach, 91 Cal., 191; Freeman v. Prendergast, 94 Ga., 369. 3. TRUSTS. Trustees. Appointment. Attack. While by reason of lack of parties the appointment of a trustee may be irregular, still, where the omitted parties were only contingent remaindermen and the heirs of a deceased trustee, the appointment is at most irregular, and cannot be collaterally attacked. (Post, p. 734.) Cases cited and approved: Freeman v. Prendergast, 94 Ga., 369; Milbank v. Crane, 25 How. Prac. (N. Y.), 193. 4. TRUSTS. Proceedings for reinvestment. Necessary parties. A decree providing for the sale of trust property is not invalid because the ultimate contingent remaindermen were not parties to the proceeding; such persons being represented by the life tenant and those then claiming the vested remainder. (Post, pp. 734-736.) Cases cited and approved: Andrews v. Andrews, 54 Tenn., 234; Freeman v. Freeman, '56 Tenn., 301; Rutherford v. Rutherford, 116 Tenn., 383; Miller v. Texas & Pacific R. Co. et ah, 132 U. S., 662, distinguishing McArthur v. Scott, 113 U. S., 340; Glasscock v. Tate, 107 Tenn., 486. 5. TRUSTS. Sale of trust property for reinvestment. Title of purchaser. In view of Shannon’s Code, sec. 5085, providing that the purchasers of property judicially sold for reinvestment shall take good title if the provisions of the law have been substantially complied with, notwithstanding the errors of the court, a decree providing for the sale of trust property passes good title to the purchaser, who paid his money into court, even though it did not sufficiently protect the interests of contingent remain-dermen, for while the proceeds of such sale must, under section 5087, be reinvested for the benefit of the parties interested, the purchaser is not charged with any trust to see to the reinvestment. (Post, pp. 736-738.) Code cited and construed: Secs. 5085, 5087“ (S.). Cases cited and approved: Beaumont v. Beaumont, 54 Tenn., 226; Knotts v. Stearns, 91 U. S., 638; Winchester v. Winchester, 38 Tenn., 460. Case cited and distinguished: Ridley v. Halliday, 106 Tenn., 619.