Volume 130 — Tennessee Reports

<p>1. HOMICIDE. Indictment. Issues, Proof, and Variance.</p> <p>Const, art. 1, sec. 8, providing that no man shall be taken or imprisoned, etc., hut by the judgment of his peers or the law of the land, section 9, providing that in criminal, prosecutions the accused has the right to be heard and to demand the nature and cause of the accusation, Shannon’s Code, sec. 7077, requiring the facts constituting the offense to be stated in the indictment in ordinary and concise language, without prolixity or repetition, and section 7080, requiring the act or omission charged to be stated with such degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case, were not violated where, under an indictment charging in one count an assault with a gun with intent to kill, the court admitted evidence of an assault by shooting, and that, the assaulted party having fled, accused pursued her and struck her with the barrels of the gun used as a club, this -evidence not showing two offenses, but one offense, composed of different acts done pursuant to one intent and as a part of one assault. (Post, pp. 5-7.)</p> <p>Cases cited and approved: Hughes v. Commonwealth, 31 L. R. A., • 693; State v. Sampson, 42 L. R. A., 907.</p> <p>Case cited and distinguished: Stevens v. McClaughry, 207 Fed., 18.</p> <p>2. CRIMINAL LAW. Appeal. Review. Invited error.</p> <p>Where, under an indictment in one count for assault with a gun with intent to kill, evidence was introduced of an assault by shooting, and that accused pursued the assaulted party, and struck her with the barrels of the gun used as a club, and accused made no motion to require the State to elect upon which phase of the evidence it would ask a conviction, but, on the contrary, introduced evidence by way of defense as to each of the acts, he acquiesced in the State’s treatment of the facts as showing but one transaction, and could not complain on appeal. (Post, pp. 7-9.)</p> <p>Oase cited and approved: Forrest v. State, 81 Tenn., 105; Givens v. State, 103 Tenn., 665; Scruggs v. State, 66 Tenn., 38.</p> <p>3. HOMICIDE. Instruction. Conformity to Indictment.</p> <p>Where, under an indictment charging an assault with gun with intent to kill, evidence was introduced of an assault by shooting, and that accused pursued the assaulted party, and struck her with the barrels of the gun used as a club, an instruction that, if the proof showed beyond a reasonable doubt that accused committed an unlawful assault at either of such times or in either of the ways mentioned, he would he guilty, was not erroneous. (Post, pp. 9-11.)</p> <p>Oase cited and distinguished: Holt v. State, 107 Tenn., 540.</p> <p>4. INDICTMENT AND INFORMATION. Duplicity. Separate acts constituting one offense.</p> <p>Where an assault with intent to kill is composed of several different acts done hy the same defendant in prosecution of his criminal intent, it is not necessary that each act so done should be made the basis of a separate indictment or a separate count. (Post, pp. 11-17.)</p> <p>Codes cited and construed: Sec. 6467 (S.); secs. 7077, 7080 (S.).</p> <p>Case cited and distinguished: State v. Ladd, 32 Tenn., 228; Witt v. State, 46 Tenn., 8.</p> <p>Cases cited and approved: Pearce v. State, 33 Tenn., 65; Cornell v. State, 66 Tenn., 520; Womack v. State, 47 Tenn., 510; Phillips v. State, 85 Tenn., 551; Kannon v. State, 78 Tenn., 390; Fowler v. State, 50 Tenn., 154.</p> <p>5.-HOMICIDE. Assault with intent to kill.' Indictment.</p> <p>An indictment charging that accused willfully, etc., assaulted D. with a gun, with the felonious intent to kill her and commit murder in the first degree, was not insufficient because of its failure to describe the weapon, how it was used, or to charge that the. gun was loaded. (Post, p. 17.)</p> <p>Cases cited and approved: Bass v. State, 65 Tenn., 588; Hobbs v. State, 121. Tenn., 413.</p> <p>6. HOMICIDE. Assault with intent to kill. Evidence.</p> <p>On a trial for assaulting, with intent to kill, a woman between whose family and the family of accused bad blood had been engendered by her claim that accused’s son seduced her under a promise of marriage, evidence as to sexual intercourse between her and the son, her pregnancy, that the son left the county the morning after the baby was born, that she did not know where, he was, and that the baby lived only a short time, and died before the assault, was competent. (Post. pp. 17,18.)</p> <p>7. CRIMINAL LAW. Reservation of grounds of review. Motion for new trial.</p> <p>Under the express provisions of Supreme Court rule 14, subd. 5 (126 Tenn., 723, 160 S. W. xi), the alleged erroneous admission of evidence could not be reviewed, where it was not called to the trial judge’s attention by the motion for a new trial. (Post, p. 18.)</p> <p>8. HOMICIDE. Assault with intent to kill. Sufficiency of evi" dence.</p> <p>On a trial for assault with intent to kill, evidence held to make a question for the jury, and to support its verdict of guilty. {Post, pp. 18-22.)</p> <p>9. CRIMINAL LAW. Sentence. Statutory provisions.</p> <p>Where, on a trial for assault with intent to commit murder in the first degree, the proof showed that the ofiense was committed March 31, 1913, accused should have been sentenced under the indeterminate sentence law for not less than three nor more than, twenty-one years. (Post, pp. 22,23.)</p>

<p>1. CRIMINAL LAW. Appeal. Indictment. Objection Below. Necessity.</p> <p>Where defendant went to trial without any objection to the form of the indictment and interposed no objection that any evidence was incompetent as not tending to prove the offense charged, or that he was taken by surprise or in any way misled by lack of more specific averments therein, and made no motion in the circuit court in arrest of judgment, his objection for the first time on appeal came too late. (Post, pp. 28-38.)</p> <p>Acts cited and construed: Acts 1911, ch. 32.</p> <p>Constitution cited and construed: Art. 1, sec. 9.</p> <p>Cases cited and approved: Scruggs v. State, 66 Tenn., 38; Forrest v. State, 81 Tenn., 106; State v. Rogers, 65 Tenn., 563; Glidewell v. State, 83 Tenn., 135; Rodes v. State, 78 Tenn., 414; Luttrell v. State, 85 Tenn., 232; Stevenson v. State, 64 Tenn., 683; Palmer v. State, 121 Tenn., 490.</p> <p>Code cited and construed: Sec. 6531 (S).</p> <p>2. CRIMINAL LAW. Motion in Arrest of Judgment. Defect in Indictment.</p> <p>Where the indictment is good on its face a motion in arrest of judgment is of no avail; as it does not reach matter appearing only in the evidence. (Post, pp. 28-38.)</p> <p>3. ARSON. Prosecution. Sufficiency of Evidence.</p> <p>Evidence in-a prosecution under Shannon’s Code, sec. 6531, for willfully and maliciously burning a barn containing valuable property therein, held to preponderate against the verdict of guilty. (Post, pp. 38-42.)</p> <p>Code cited and construed: Secs. 6430-6433 (S.).</p> <p>4. CRIMINAL LAW. Parties to Offenses. “Principal in First Degree.”</p> <p>A “principal in the first degree” is the actual or absolute perpetrator of the crime, and, where a crime is committed in the absence of the offender, by means prepared beforehand, he is a principal in the first degree. (Post, pp. 42-44.)</p> <p>5. CRIMINAL LAW. Parties to Offenses. “Principal in Second Degree.”</p> <p>A “principal in the second degree” is one who is present aiding and abetting the crime, though at common law his presence need not be an actual, immediate, standing by within sight or hearing of the crime, but may exist by reason of a constructive presence, as where one commits a crime and another keeps watch or guard. (Post, pp. 42-44.)</p> <p>6. CONSPIRACY. Criminal Liability.</p> <p>Where two or more persons conspire or combine by concert of action to commit a crime, and it is done by one of them in the absence of the other or others, the crime is the act of all. (Post, p. 44.)</p> <p>Cases cited and approved: Owen v. State, 84 Tenn., 4; Autry v. Coffman, 46 Tenn., 510; Strady v. State, 45 Tenn., 307; Cornwell v. State, 8 Tenn., 147.</p> <p>7. CRIMINAL LAW. Parties to Offenses. “Accessory Before the Fact.”</p> <p>At common law an “accessory before the fact” is one who, though not the chief actor in the offense nor present at its performance, is in some way concerned therewith before the fact; one who though absent at the time of the offense yet procures, counsels, or commands another to commit it; and this definition, or the distinction between principal and accessory, has not been changed by Shannon’s Code, sec. 6430, declaring that one inciting, counseling, or. procuring another to commit a felony is an accessory before the fact, section 6431, permitting accessories before the fact to be punished as principals except when otherwise expressly provided, or section 6432, permitting the conviction of an accessory whether the principal has been previously convicted or not; and hence a case against an accessory before the fact cannot be sustained where the person charged as the principal offender is acquitted. (Post, pp. 44-47.)</p> <p>Code cited and construed: Secs. 6431, 6432.</p> <p>Cases cited and approved: State v. Ayers, 67 Tenn., 99; Moody v. State, 46 Tenn., 300; Edge v. State, 117 Tenn. 405; Nuthill v'. State, 30 Tenn., 247; State v. Roger, 65 Tenn., 563.</p> <p>Case cited and distinguished. Self v. State, 65 Tenn., 244.</p> <p>8. CONSPIRACY. Sufficiency of Evidence.</p> <p>In a prosecution under Shannon’s Code, sec. 6531, for willfully and maliciously burning a barn containing valuable property, evidence held insufficient to show that defendant conspired with a third person to compel the alleged principal to burn the barn, but to show that such third person acted of his own motion. (Post, pp. 44-47.)</p>

<p>1, STATUTES. Plurality of subjects. Validity.</p> <p>Acts 1913 (2d Ex. Sess.), ch. 2, entitled “An act to define and more effectually provide for the abatement of certain public nuisances,” which were named in the first section, and included the maintenance of gambling and disorderly houses as well as as the sale of intoxicants, is not in violation of Const., art. 2, sec. 17, providing-that "no bill shall embrace more than one subject, which shall be expressed in its title, because authorizing proceedings against the principals, the aiders, and abettors, and the owners of the buildings in which the nuisance may be-conducted. (Post, p. 54.)</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>2. STATUTES. Validity.</p> <p>Nor is the title insufficient to give notice of the purpose of the act as required by the constitutional provision, though the act applied to a number of nuisances. (Post* p. 55.)</p> <p>Cases cited and distinguished: State v. Lasater, 68 Tenn., 585; Morrell v. Ficfcle, 71 Tenn., 82; Wilson v. Benton, 79 Tenn., 56; State v. True, 116 Tenn., 294; Cannon v. Mathes, 55 Tenn., 519; Frazier v. Railroad, 88 Tenn., 140; State v. Yardley, 95-Tenn., 546; Ryan v. Terminal Co., 102 Tenn., 128; State v. Brown, 103 Tenn., 450; Condon v. Maloney, 108 Tenn.,' 83; Furnace Co. v. Railroad, 113 Tenn., 728; Knoxville v. Gass, 119-Tenn., 438; State ex rel. v. Hamby, 114 Tenn., 363; Rhinehart. v. State, 121 Tenn., 420; Scott v. Marley, 124 Tenn., 388; Home-. Tel. Co. v. People’s Tel. Co., 125 Tenn., 270.</p> <p>3. INTOXICATING LIQUORS. Enjoining liquor nuisance. Power of legislature.</p> <p>It is 'within the power of the legislature to provide that a prosecution to enjoin a public nuisance, such as a liquor nuisance, may be instituted on the relation’ of private citizens. {Post, pp. 56, 57.)</p> <p>4. CONSTITUTIONAL LAW. Class legislation. What constitutes.</p> <p>In view of Shannon’s Code, sec. 4506, decaring that the State shall commence and prosecute suits according to the laws of the land, except that no .security shall be required as in case of individuals, Acts 1913 (2d Ex. Sess.), ch. 2, authorizing ten or more citizens and freeholders to file a petition in the name of the State for an injunction to abate certain public nuisances, and only requiring the giving of a bond conditionally to pay all costs and damages, instead of the usual bond in injunction cases, is not void as class legislation contrary to Const., art. 1,. sec. 8 (Const. TJ. S., Amend. 14) prohibiting deprivation of life, liberty, and property without due process of law, and Const., art. 11, see. 8, providing that the legislature shall pass no law granting any individual or individuals immunities or exemptions other than such as may be by the same law extended to> any member of the community who may be able to bring himself within its provisions; for the freeholders merely act as an agent of the State in enforcing the law. {Post, pp. 56, 57.)</p> <p>Constitution cited and construed; Art. 1, sec. 8; art. 11, sec. 8.</p> <p>Cases cited and approved: 'Webster v. State, 110 Tenn., 491; Kirk v. State, 126 Tenn., 7; State v. Mill Co., 123 Tenn., 399; Motlow v. State, 125 Tenn., 547; Debardelaben v. State, 99-Tenn., 649; Brinkley v. State, 125 Tenn., 371; Carlton v. Bugg, 149 Mass., 550; Mugler v. Kansas, 123 TJ. S., 623; Kidd v. Pearson, 128 TJ. S., 1; Eilenbecker v. District Court, 134 TJ. S., 31; City of Memphis v. Fisher, 68 Tenn., 240; Malone v. Williams, 118 Tenn., 431.</p> <p>Code cited ahd construed: Sec. 4506 (S.).</p> <p>5. NUISANCE. Public nuisances. Power of legislature, to determine.</p> <p>The determination, of what public nuisances shall be included • in an act to provide for a more effective abatement is purely a legislative question, and the validity of the act cannot be attacked on the ground that some nuisances were not included. (Post, p. 58.)</p> <p>Case cited and approved: Motlow v. State, 125 Tenn., 547.</p> <p>«. CONSTITUTIONAL LAW. Distribution of power. Authority of legislature.</p> <p>The legislature, in order to prevent fraud and make violation of law more difficult, may forbid acts which in themselves are harmless. (Post, p. 59.)</p> <p>Cases cited and approved: Kirk v. State, 126 Tenn., 16; State v. Mill Co., 123 Tenn., 399; Motlow v. State, 125 Tenn., 547.</p> <p>7. CONSTITUTIONAL LAW. Intoxicating liquors. Deprivation of property wthout due process. What constitutes. Nuisance. Injunction.</p> <p>Acts 1913 (2d Ex. Sess.), ch. 2, providing for the enjoining of certain nuisances, such as selling of intoxicating liquors, upon proceedings instituted either by the attorney-general, etc., or by citizens and freeholders who alone shall give bond, and that upon application for injunction the place in which the business is carried on shall be closed before hearing, and though the owner be not a party, is not in violation of Const., art. 1, sec. 8 (Const. U. S. Amend. 14), prohibiting the deprivation of property without due process; for the closing of the building in which the nuisance is alleged to be carried on is a valid exercise of the State’s police power, and the proceeding is quasi .criminal in character. (Post, pp. 59, 60.)</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>.8. CONSTITUTIONAL LAW: Nuisance. Distribution of governmental powers. Interference with power of judiciary. Abatement.</p> <p>Acts 1913 (2d Ex. Sess.), ch. 2, provides that the selling of intoxicating liquors, the keeping of disorderly houses, and the running of gambling bouses shall constitute public nuisances; that proceedings for abatement may be begun in the name of the State upon the relation of the attorney-general, of. the district attorney-general, or of ten or more citizens and freeholders; that the judges and chancellors shall pass upon the amount of the bond in case petition for abatement is filed by citizens; that the judges or chancellors,' upon the presentation of the bill alleging the existence of a nuisance, shall award a temporary writ of injunction. Held, that the statute contemplates the exercise of judicial functions by the judge or chancellor to whom a petition for abatement is brought, and merely prescribes a rule of practice upon the filing of a proper petition for abatement, the sufficiency of which is to be determined by the court, and hence does not violate Const., art. 2, sec. 2, declaring that no one of the three separate branches of government shall exercise powers belonging to the other. {Post, pp. 61-66.)</p> <p>Constitution cited and construed: Art. 2, secs. 1 and 2.</p> <p>Cases cited and approved: Mugler v. Kansas, 128 U. S., 623; Kansas v. Ziebold, 123 U. S., 623; Eilenbecker v. District Court, 134 U. S., 31.</p> <p>9. STATUTES. Enactment. Constitutional provisions.</p> <p>Acts 1913 (2d Ex. Sess.), ch. 2, was first introduced in the senate, where it was passed three consecutive times, and then transmitted to the house, where an identical measure had already been read and passed twice. Held, that the senate bill could be substituted for the former house bill, and, though after substitution it was enacted only once in the house, there was a compliance with Const., art. 2, sec. 18, declaring that every bill shall be read once on three different days and passed each time in the house where it originated before transmission to the other. {Post, pp. 67, 68.)</p> <p>Constitution cited and construed: Art. 2, sec. 18.</p> <p>Cases cited and distinguished: Archibald v. Clark, 112 Tenn., 532; Southern Railway Co. v. Memphis, 126 Tenn., 267.</p> <p>10. STATUTES. Enactment.</p> <p>Const., art. 2; sec. 18, declaring that every bill shall be read once on three different days, and passed each time in the house where it originated before transmission to the other, does not require the lapse, of three full days before a bill originating in one house is transmitted to the other; hence Acts 1913 (2d Ex. Sess.), ch. ‘ 2, which was introduced in the senate on October 14th, read and passed on that day, on the next, and on the sixteenth, was properly transmitted to the house on the sixteenth. (Post, p. 69.)-</p> <p>Constitution cited and construed: Art. 2, sec. 18.</p> <p>11. NUISANCE. Injunction. Preliminary writ. Notice.</p> <p>Acts 1913 (2d Ex. Sess.), ch. 2, which provides for the abatement of certain public nuisances, including the unlawful sale of intoxicating liquors, and declares in section 4 that, upon presentation of a bill alleging that the nuisance complained of exists, the court shall issue a temporary injunction with such bond as required by law in such cases, if the bill is filed by citizens and freeholders, but none when the. bill is filed by the attorney-general, etc., if it shall be made to appear to the satisfaction of the court that the allegations of the bill or petition are true, and that five days’ notice in writing shall be given the defendants of the hearing of the application, does not contemplate a hearing of the application, nor require the giving of five days’ notice of the issuance of a temporary injunction where the bill is filed by citizens and freeholders. (Post, pp. 69, 70.)</p>

<p>1. MUNICIPAL CORPORATIONS. Power to Light Streets. Incidental powers.</p> <p>An express grant of power to a municipality to light streets carries, by implication, power to construct or acquire by purchase a lighting plant for that purpose. (Post, p. 76.)</p> <p>Acts cited and construed: Acts 1903, c. 551, sec. 7; Acts 1907, c. 488.</p> <p>Cases cited and approved: Rushville Gas Co. v. Rushville, 121 Ind., 206; Mauldin v. Greenville, 33 S. C., 1; Ellinwood v. Reedsburg, 91 Wis., 134; Jacksonville Electric Light Co. v. Jacksonville, 36 Fla., 229; Fawcett v. Mt. Airy, 134 N. C., 129; Overall v. Madisonville, 125 Ky., 684; Crouch v. McKinney, 47 Tex. Civ. App., 54.</p> <p>Cases cited and distinguished: Smith v. Nashville, 88 Tenn., 464; City of Crawfordsville v. Braden, 130 Ind., 149.</p> <p>2. MUNICIPAL CORPORATIONS. City of Trenton. Power to purchase light plant.</p> <p>The city of Trenton, under its charter (Acts 1903, ch. 551, sec. 7, authorizing the city council to pass all ordinances necessary for the proper government and general welfare of the city, etc., and Acts 1903, ch. 551, sec. 2, as amended by Acts 1907, ch. 488, see. 1, subd. 10), “to provide for lighting the streets,” could purchase an electric light plant, even though it were a part of its purpose or plan in so doing to furnish electric current for private, as well as public, consumption in the production of lights. (.Post, pp. 75-77.)</p> <p>Cases cited and distinguished: Mauldin v. Greenville, 33 S. C., 1.</p> <p>3. , MUNICIPAL CORPORATIONS. Ordinances.</p> <p>Where a city charter commits the decision of the making of a corporate contract of purchase to the city council, and is silent as to the mode of its exercise, the decision may he evidenced by a resolution, and need not necessarily be by an ordinance. (Post, pp. 79, 80.)</p> <p>Cases cited and approved: Board of Education v. De Kay, 148 U. S., 591; Illinois Trust, etc., Bank v. Arkansas City, 76 Fed., 271; Newman v. Emporia, 32 Kan., 456; Paterson v. Barnet, 46 N. J. Law, 62; Board, etc. v. East Tenn., etc., Co., 115 Fed., 307; Sedalia v. Donohue, 190 Mo., 407.</p> <p>4. MUNICIPAL CORPORATIONS. Ordinances.</p> <p>Under the charter of the city of Trenton (Acts 1903, ch. 551, sec. 7, and Acts 1903, ch. 551, sec. 2, as amended Act 1907, ch. 488, sec. 1, subd. 10), providing that the city council shall have power by ordinance to provide for lighting the streets, such power can only be exercised' by ordinance, and not by resolution. (Post, p. 80.)</p> <p>5. MUNICIPAL CORPORATIONS.</p> <p>Where a municipality had power under its charter to purchase an electric light plant, it was liable under an implied promise for the reasonable value so purchased and used by it, though the power was not properly exercised by the city council, and though bonds voted to pay for it were invalid. (Post, pp. 80-82.)</p> <p>Cases cited and distinguished: Hitchcock v. Galveston, 96 U. S., 341; Houston, etc., R. Co. v. Texas, 177 U. S., 92.</p> <p>Cases cited and approved: Land Company v. Jellico, 103 Tenn., 320; State v. Knoxville, 115 Tenn., 184.</p> <p>6. ESCROWS. Nature and Requisites.</p> <p>A deed cannot be delivered to the grantee as an escrow, and, if it is delivered to him, it becomes an operative deed freed from any condition not expressed in the deed itself. (Post, p. 84.)</p> <p>Cases cited and distinguished: Alexander v. Wilkes, 11 Lea, 221.</p>

<p>1. EXECUTORS AND ADMINISTRATORS. Judicial Settlement of Accounts.</p> <p>Shannon’s Code, - section 6027, subsec. 4, gives the county court original Jurisdiction of the settlements of accounts by executors and administrators; section 4031, relating to the settlement of solvent estates, requires each executor, or administrator within two years after qualification to file his accounts with the clerk of the county court. Section 4034 requires the clerk to give notice to parties interested, and section 4038 provides that any person interested in the estate may except to the account after it has been stated by the clerk, and, if dissatisfied with the clerk’s decision, may appeal to the county court. Held, that in view of section 4040, providing for an appeal from the judgment of the county court, that court has jurisdiction to dispose of the exceptions, and it is not necessary to appeal from the clerk’s decision to the circuit or chancery court as in case of insolvent estates, and hence in a proceeding in Shelby county for the settlement of an administrator’s accounts, the probate court had jurisdiction to dispose of exceptions to such accounts. (.Posh pp. 89, 90.)</p> <p>Cases cited and construed: Bashaw, ex’r, v. Temple, 115 Tenn., 596; Key v. Harris, 116 Tenn., 161; Harness v. Hughett, 117 Tenn., 489.</p> <p>Code cited and construed: Sec. 6027 (S.); secs. 4031-4046 (S.).</p> <p>2. COURTS. Jurisdiction. Court of Appeals.</p> <p>While Shannon’s Code, section 387, provides for a probate court in Shelby county, and for appeals therefrom to the supreme court, yet since the creation of the court of civil appeals by Acts 1907, ch. 82, appeals should be taken from the probate court to the court of civil appeals, where the amount in controversy is within that tribunal’s exclusive jurisdiction. (Post, V- 91.)</p> <p>Case cited and approved: Eason v. Gaines, 127 Tenn., 662.</p> <p>Code cited and construed: Sec. 387 (S.).</p>

<p>1. CARRIERS. Transportation of Animals. Damages. Con tract Valuation.</p> <p>Where a contract for the transportation of certain horses provided that it was agreed that the value of each horse should not exceed $100, and that the carrier’s liability for any loss or damage should not exceed the actual cost at the point of shipment, and in no event the contract valuation, the measure of the owner’s damage for injuries to the animals in transportation by reason of the carrier’s negligence was the amount each animal had been depreciated in value by reason of its injuries not in excess of the actual cost of the animal at the point of shipment, and in no event in excess of the contract value. (Post, pp. 96-98.)</p> <p>2. CARRIERS. Transportation of Animals. Cost at Shipping Point.</p> <p>Where a contract for the transportation of animals provided that ■ the carrier’s liability should not exceed actual cost at the point of shipment, the actual cost at that point was sufficiently proven by showing the market value of the animals there, in the absence of evidence that they were bought for less than their market value. (Post, p. 99.)</p> <p>Case cited and approved: Pierce v. Southern Pacific Co., 120' Cal., 156.</p>

<p>1. STATUTES. Validity. Plurality of subjects.</p> <p>Indeterminate sentence law (Acts 1913, ch.. 8) is not violative of Const., art. 2, sec. 17, as containing plurality of subjects. (Post, pp. 104-106.)</p> <p>Constitution cited and construed: Art. 2, secs. 1, 3.</p> <p>2. JURY. Trial by jury. Right. Assessment of punishment.</p> <p>Since the right to trial by jury at common law did not extend to assessment of punishment, the indeterminate sentence law (Acts 1913, ch. 8) was not unconstitutional as impairing the right of trial by jury. (Post, pp. 106, 107.)</p> <p>Cases cited and approved: Durham v. State, 89 Tenn., 723, 733; George v. People, 167 Ill., 447; People ex rel., Bradley v. Ill. St. Reformatory, 148 Ill., 413; Skelton v. State, 149 Ind., 641; Miller v. State, 149 Ind., 607.</p> <p>3. JURY. Criminal prosecutions. Assessment of punishment.</p> <p>It is not essential that the punishment to be imposed on a person convicted of an offense be assessed by the jury, unless the statuter; of the state so direct, since the power to declare what shall be the appropriate punishment for an ascertained crime is a matter solely of legislative cognizance, which body may provide a minimum and a maximum punishment, and leave it to the jury to fix a definite term within those limits, or it may provide a single term, leaving nothing for the jury, except to respond to the issue of guilty or not guilty. (Post, pp. 106, 107.)</p> <p>4. CONSTITUTIONAL LAW. Due process of faw. Indeterminate sentence law.</p> <p>Indeterminate sentence law (Acts 1913, ch. 8) is not unconstitutional as depriving a person convicted of an offense, and sen-fenced thereunder, of his liberty without due process of law. (Post, pp. 107, 108.)</p> <p>Constitution cited and construed: Art. 1, sec. 8.</p> <p>5. CONSTITUTIONAL LAW Departments of government. Infringement of judiciary. Indeterminate sentence law.</p> <p>Since the powers conferred on the board of prison commissioners by the indeterminate sentence law (Acts 1913, ch. 8), though involving the exercise of judgment and discretion, are administrative only, the law is not unconstitutional as vesting in the board judicial power. (Post, pp. 108-111.)</p> <p>Cases cited and approved: State v. Page, 60 Kan., 664; State ex rel. v. Peters, 43 Ohio St., 629; People ex rel. v. State Reformatory, 148 Ill., 413; Geo. v. People, 167 Ill., 447; Miller v. State, 149 Ind., 607.</p> <p>6. PARDON. Parole. Indeterminate sentences.</p> <p>Indeterminate sentence law (Acts 1913, e. 8), conferring on the board of prison commissioners power to grant paroles to prisoners after having served the minimum term specified for an offense of which they have been convicted, does not confer unlimited discretion on the board, but authorizes the granting of such parole only in accordance with the conditions specified by section 4 for final discharge, to wit, the board must believe, from the history of the prisoner and his conduct during the service of the minimum term, etc., that he will probably not violate the law, and that his parole will not be incompatible with the interests of society. (Post, pp. Ill, 112.)</p> <p>7. CONSTITUTIONAL LAW. Departments of government. Interference with legislature.</p> <p>Indeterminate sentence law (Acts 1913, ch. 8), conferring on the board of prison commissioners power to grant parole of prisoners who have served the minimum term of punishment, is not unconstitutional as vesting legislative power on the board; the parole being but a qualified enlargement of the prisoner, who is subject to be returned to actual confinement at ¿ny moment on the determination of the commissioners that- he has broken his parole. (Post, pp. 112-114.)</p> <p>Acts cited and construed: Acts 1897, ch. 125, sec. 24; Acts 1903, ch. 343; Acts 1913, ch. 8.</p> <p>Case cited and approved: State v. McClellan, 87 Tenn., 52, 56, 58.</p> <p>Cases cited and distinguished: State ex rel. v. Evans, 122 Tenn., 184, 191, 192; Richardson v. Young, 122 Tenn., 471, 490-502.</p> <p>8. PARDON. Authority to pardon. Indeterminate sentence law.</p> <p>Since the discharge of the prisoner under indeterminate sentence law (Acts 1913, ch. 8) by the board of prison commissioners is not a pardon, and the disabilities of the crime in respect of the rights of citizenship, etc., remain until removed by proceedings for that purpose, the law was not unconstitutional as interfering with the governor’s pardoning power, which exists and may be exercised independent of Such law. (Post, pp. 114-119.)</p> <p>Case cited and distinguished: Fite v. State, 114 Tenn., 646.</p> <p>Acts cited and construed: Acts 1869-70 and 1885, sec. 18; Acts 1891, ch. 123, sec. 18.</p>

<p>1. DESCENT AND DISTRIBUTION. Agreements between heirs. Right of infant devisee.</p> <p>An agreement between the others entitled to share in the estate of the deceased person is not binding on an infant heir. (Post, p. —.)</p> <p>2. LIMITATION OF ACTIONS. Statutes. Applicability.</p> <p>The ten years’ limitation, prescribed by Shannon’s Code, sec. 4473, does not apply to a suit in equity wherein no technical ■relief is sought, as a bill to perpetuate testimony; hence such limitation does not apply to an action for the purpose of setting ,up a lost will, so as to furnish complainants with color of title to land held by them, and to which defendants were asserting claims. (Post, p. —.)</p> <p>Code cited and construed: Secs. 4473, 2761 (S.).</p> <p>Case cited and distinguished: Everitt v. Everitt, 41 Barb., 385.</p> <p>Cases cited and approved: Alvis v. Oglesby, 87 Tenn., 172; Hughes v. Brown, 88 Tenn., 578; Lewis v. Brooks, 14 Tenn., 167; Anderson v. Akard, 83 Tenn., 182; Caldwell v. Palmer, 74 Tenn., 652; Kirtland v. Railroad Co., 72 Tenn., 414; Ballard v. Scruggs, 90 Tenn., 585; Blackwell v. Railway, 124 Tenn., 516.</p> <p>3. WILLS. Lost wills. Establishment. Laches.</p> <p>As Shannon’s Code, sec. 3955, does not limit the period for the probate of wills, the right of devisees in possession of land to set up a lost will, so that it would furnish them color of title against possible claims' by defendants, who were also devisees of other land, is not barred by twenty years' delay, where the situation of the parties was not changed in the meantime. (Post, p. —.)</p> <p>Code cited and construed: Sec. 3955 (S.).</p> <p>Case cited and approved: Scott v. Wagstaff, 120 Tenn., 252.</p> <p>Cases cited and distinguished: Grier v. Canada, 119 Tenn., 17; Anderson v. Akard, 83 Tenn., 182; Parker v. Bethel Hotel Co., 96 Tenn., 252; Townsend v. Townsend, 44 Tenn., 70; Gibson v. Lane, 17 Tenn., 475.</p>

<p>1. HOMICIDE. Sufficiency of evidence. Self-defense.</p> <p>On a trial for homicide, evidence held to show hy the preponderance thereof that the killing was done in necessary self-defense, and hence a verdict finding accused guilty of voluntary manslaughter was against the weight of the evidence. (Post, pp. 145-157.)</p> <p>Case cited and approved: Grainger v. Slate, 13 Tenn., 459.</p> <p>2. HOMICIDE. Self-defense. Necessity of killing.</p> <p>Where great hodily violence is being inflicted or threatened upon-a person hy one much stronger and heavier, with such determined energy that the person assaulted may reasonably apprehend death or great bodily injury, he is justified in using a deadly weapon, whether the bodily violence is being or about to be inflicted with a club, a rock, or with the fists of an overpowering adversary of superior strength and size. (Post, pp.. 157, 158.)</p> <p>Case cited and approved: State v. Bowling, 3 Shan. Cas., 110-</p>

<p>MASTER AND SERVANT. Liens. “Employee" and day “laborers.” Contractors.</p> <p>Persons who furnish and drive, or employ others to drive, their teams, in the hauling of lumber, to be paid by the thousand feet hauled, are not within Shannon’s Code, sec. 3564, giving “employees” and “day laborers” of a corporation or partnership a lien for their labor and services, for wages or compensation in arrears for less than three months, but are contractors; they being their own masters as to time and manner of work, and their compensation not being wages.</p> <p>Code cited and construed: Sec. 3564 (S.).</p> <p>Cases cited and approved: Pox v. McClay, 48 Neb., 820; Lang v. Simmons, 64 Wis., 525; Littlefield v. Morrill, 97 Me., 505; Henderson v. Nott, 36 Neb., 154; Balch v. N. Y., etc., R. Co., 46 N. Y., 521; Vane v. Newcombe, 132 U. S., 220; King v. Kelly, 25 Minn., 522; Malcomson v. Wappoo Mills, 85 Fed., 907; Tod v. Railway, 52 Fed., 241.</p>

<p>1. WEAPONS. Carrying weapons. “Carry.”</p> <p>A person who to protect himself against an unlawful assault in his office and sleeping apartment, under circumstances entitling him to exercise the right of self-defense, picked up a pistol and fired two shots, whereupon bystanders took the pistol away from him, did not “carry” the pistol within Shannon’s' Code, sec. 6641, making it'unlawful for any person to carry publicly or privately any pistol except an army or navy pistol. (Post, pp. 165-168.)</p> <p>2. WEAPONS. Carrying weapons. Manner of carrying.</p> <p>Under Shannon’s Code, sec. 6641, providing that it shall be unlawful to carry publicly or privately any dirk, razor concealed about the person, sword cane, etc., belt of pocket pistol, revolver, or any kind of pistol except the army or navy pistol usually used in warfare, which shall he carried openly in the hand, it is not necessary to a conviction that the weapon be concealed about the person, unless it be a razor, or an army or navy pistoL usually used in warfare. (Post, pp. 168-170.)</p> <p>Code cited and construed: Sec. 6641 (S.).</p> <p>Cases cited and approved: Kendall v. State, 118 Tenn., 158; Coffee v. State, 72 Tenn., 246.</p> <p>Cases cited and distinguished: Moorefield v. State, 73 Tenn., 348; Page v. State, 50 Tenn., 198.</p> <p>3. WEAPONS. Carrying weapons. Purpose and place of carrying pistol.</p> <p>It is not a defense to a charge of carrying a pistol under Shannon’s Code, sec. 6641, that accused armed himself solely for the purpose of self-defense, or that he carried the pistol only on his own farm or premises. (Post, pp. 168-170.)</p> <p>Case cited and distinguished: Osborne v. State, 115 Tenn., 718.</p> <p>4. WEAPONS. Right to own pistol.</p> <p>A pistol is property, and a person is not prohibited from owning one, notwithstanding Shannon’s Code, sec. 6650, making it a misdemeanor to sell, offer to sell, or bring into the State for the purpose of selling, giving away, or otherwise disposing of, pistols of any kind other than army or navy pistols. (Post, pp. 170-173.)</p> <p>Code cited and construed: Secs. 6650, 7195 (S.).</p> <p>Cases cited and approved: Maupin v. State, 89 Tenn., 367; State v. Parker, 81 Tenn., 225.</p>

<p>1. NELIGENCE. “Res ipsa loquitur.”</p> <p>Where, from the nature and circumstances of the occurrence that has caused an injury, the maxim “res ipsa loquitur” is applicable, the burden of proof of negligence is not thereby shifted from plaintiff to defendant, nor is plaintiff relieved from the burden of showing negligence; but the doctrine merely raises an inference that, if due care had been employed by the person in charge of the instrumentality or premises, the casualty would not have happened, and the jury would be warranted in inferring that some negligence had occurred in respect of management or condition. {Post, pp. 177-179.)</p> <p>Cases cited and approved: Sweeney v. Brving, 228 U. S., 233; Kay v. Metropolitan Street R. Co., 163 N. Y., 447; Womble v. Merchants’ Grocery Co., 135 N. C., 474.</p> <p>Cases cited and distinguished: Young v. Bransford, 80 Tenn.,' 232; Rose v. Transportation Co., 20 Blatchf., 411.</p> <p>2. MASTER AND SERVANT, injuries to servant. Negligence. Question for jury.</p> <p>Where a servant was injured by the explosion of a boiler in defendant’s plant, and there was evidence that the boiler was old and that several rivets, which had rusted to such an extent as to render them inadequate, were found after the explosion as a part of the wreckage, there was sufficient evidence to entitle plaintiff to go to the jury on the question of defendant’s negligence, independent of the doctrine of res ipsa loquitur. (Post, pp. 179, 180.)</p> <p>Cases cited and approved: Fitzgerald v. Southern R. Co., 6 L. R. A., 337; Byers v. Carnegie Steel Co., 16 L. R. A., 214.</p>

<p>WITNESSES. Testimony against representatives or survivors of decedent. Partners.</p> <p>Under Shannon’s Code, sec. 5598, providing that in actions by or against executors, in which judgment may he rendered for or against them, neither party can testify against the other as to any transaction by the testator unless called thereto by the opposite party, the maker of a note to a partner in whose name the firm business was done, sued by the surviving partners, to whom the note had passed by operation of law, might testify as to a payment to the deceased partner; and the fact that one of the surviving partners, as executor of the deceased partner, was joined as complainant was immaterial, since the statute contemplates only the proper parties to the record, and the executor was only a nominal and unnecessary party.</p> <p>■Code cited and construed; Sec. .5598 (S.).</p> <p>Cases cited and approved: McCutchen v. Rice, 56 Miss., 455; Bragg v. Clark, 50 Ala., 363; Hayward v. French, 12 Gray (Mass.), 453; Clapp v. Hull, 18 R. I., 652; Trempfer v. Conklin, 44 Barb., 466; Hess v. Lowrey, 122 Ind., 225; "Wood v. Stewart, 9 Ind. App., 321; Dodds v. Rogers, 68 Ind., 110; Grange Association v. Owens, 86 Tenn., 355; McBrien v. Martin, 87 Tenn., 14.</p> <p>Cases cited and distinguished: Combs v. Black, 62 Miss., 831; Oram v. Rothermel, 98 Pa., 300.</p>

<p>1.' PARTNERSHIP. Action against partners. Denial of partnership.</p> <p>Shannon’s Code, sec. 5559, providing that when two or more persons sue at law, as partners, on an account, hill of exchange, bond, or note, it shall not he necessary for them to prove their partnership, unless the defendant files a plea in abatement under oath denying the partnership, has no application to defendants, sued as partners who may put the partnership in issue by an unverified denial. (Post, pp. 190-195.)</p> <p>Acts cited and distinguished: Acts 1859-60, ch. 104, sec. 4.</p> <p>•Cases cited and approved: Coffee v. Eastland, 3 Tenn., 159; Barrett v. Hambright, 36 Tenn., 587; Johl v. Ferriberger, 57 Tenn., 38; Crosthwait v. Ross, 1 Humph., 23; Furnish v. Burge, 101 Tenn., 538.</p> <p>Code cited and construed: Sec. 5559 (S.).</p> <p>2. PARTNERSHIP. Action against alleged partner. Denial under oath. Evidence of nonmembership.</p> <p>A statute providing that every written contract, instrument, or signature purporting to be executed by the party sought to be .. charged, his partner, agent, or attorney in fact, and constituting the foundation of an action, is conclusive evidence against such party, unless the execution thereof is denied under oath, does not apply to an action on an instrument in the name of an alleged firm, having nothing on its face purporting to show •that a particular defendant was a member of the firm, and such person was not precluded by the statute from proving non-membership without filing a verified plea denying the same. {Post, pp. 195, 196.)</p>

<p>1. CARRIERS. Duty to receive passenger. Rules of carrier.</p> <p>A rule of a railway company that local passengers would not be carried on detoured trains, and that tickets would not be sold them for such trains, was reasonable, and one which the company had a right to make, and its enforcement did not render it liable in damages, though a regularly scheduled local train was two hours late. (Post, pp. 199-205.)</p> <p>2. CARRIERS. Duty to receive and transport passengers. When relation exists.</p> <p>Plaintiff went to a railway station intending to take a train, which was late, and was told that a detoured train would soon pass, but that it would he against the rules to sell a ticket to a local passenger for such train. He nevertheless stated that he would board the train and see if the conductor would put him off. Upon the arrival of the train he asked the conductor if he could take that train, and was told to get aboard. The conductor, however, believed that plaintiff had a ticket, and, upon learning that he had no ticket before the train had left the station, requested plaintiff to leave the train, which he did. Held,, that plaintiff did not become a passenger, and was not entitled to be carried notwithstanding the company’s ' rule prohibiting the carriage of local passengers on such train, on the theory that the relation of passenger and carrier, having been established, could not be severed by the company. (Post, pp. 199-205.)</p> <p>3. CARRIERS. Rules. Validity.</p> <p>Railway companies may adopt, and in a lawful and proper manner enforce, reasonable rules and regulations not in contravention of law or public policy for the carriage of freight and passengers and the transaction of their business generally, and may decline to accept as a passenger a person who refuses or fails to comply •with such rules. (Post, pp. 206, 207.)</p> <p>Case cited and approved: Railroad v. Turner, 100 Tenn., 213.</p> <p>Cases cited and distinguished: Webster v. Railroad Co., 161 Mass., 298; Hogner v. Boston Elevated Ry. Co., 198 Mass., 260.</p> <p>4. CARRIERS. Passengers. Who are passengers.</p> <p>One who procures a ticket and procures passage upon a railway train by fraudulent misrepresentations is not a passenger, but a trespasser. (Post, pp. 207, 208.)</p> <p>Case cited and approved: Pitzmaurice v. Railroad Co., 192 Mass. 159.</p>

<p>CORPORATIONS. Officers. Authority of general manager.</p> <p>The general manager of a commercial corporation lias no authority as such to commit the corporation to the payment of ordinary attendance, as distinguished from emergency attendance, by a physician or surgeon upon a corporate employee injured while in the line of his duty.</p> <p>Cases cited' and approved: Cushman v. Cloverland Coal, etc., Co., 170 Ind., 402; Spelman v. Min. etc., Co., 26 Mont., 76; Swazey v. Union Mfg. Co., 42 Conn., 556; King v. Lithograph Co., 183 Mass., 301; Refining Co. v. Lefiingwell, 61 Fla., 101.</p>

<p>1. APPEAL AND ERROR. Review. Questions of fact.</p> <p>Tlie supreme court is not "bound by concurrent finding of the' master and the chancellor on questions of fact which should not have been referred to the master. (Post, pp. 214-216.)</p> <p>Cases cited and approved: Cobb v. Jameson, 1 Tenn., 604; Buchanan v. Alwell, 27 Tenn., 517; Patton v. Cone, 69 Tenn., 19; Carey v. Williams, 69 Tenn., 54; Eubank v. Wright, 2 Tenn., 539; Jones v. Douglass, 1 Tenn., 357; Hascall v. Halford, 107 Tenn., 356; Rename v. Vance, 58 Tenn., 227.</p> <p>2. APPEAL AND ERROR. Equity. Reference to master. Matters proper for reference. Harmless error.</p> <p>In a proceeding on motion for a decree against a sheriff and his surety for failure to make proper return on an execution, where the sheriff admitted the failure to make return, but denied receiving the execution, the question whether he made return should not have -been referred to the master, but the reference was harmless, except in so far as it involved an increase of costs. (Post, pp. 214-216.)</p> <p>3. EQUITY. Reference to master. Matters proper for reference.</p> <p>In such proceeding, the question whether the sheriff ever received the execution should not have been referred to the master, as it was the vital issue in the case. (Post, pp. 214-216.)</p> <p>4. APPEAL AND ERROR. Scope of review. Appeal by only one party.</p> <p>Under Shannon’s Code, sec. 4887, providing that either party,, dissatisfied with a judgment or decree of the circuit or chancery court in a matter of equity, may appeal to the supreme court and have a re-examination of the whole matter of law and fact appearing in the record, and section 4891 providing that any of the parties to a judgment or decree may appeal therefrom, the judgment remaining in full force against such of the parties as do not appeal, in a proceeding for a decree against a sheriff and his surety for failure to make return on an execution, the sheriff was properly allowed a broad appeal, so as to bring up the whole decree for review, though the surety did not appeal, .as the sheriff was interested no less in the decree against the surety than in the decree against himself; he being liable to reimburse the surety. (Post, pp. 217, 218.)</p> <p>Code cited and construed: Secs. 4887, 4891 (S.).</p> <p>Cases cited and approved: Wood v. Cooper, 49 Tenn., 454; Grubb v. Browder, 58 Tenn., 302.</p> <p>Cases cited and distinguished: Parsons v. Kinzer, 71 Tenn., 352.</p>

<p>1. ELECTIONS. Contest. Ballots.</p> <p>Where ballots cast at an election have been preserved in accordance with the statutory requirements, which have prevented tampering with them, and they are offered in evidence in a contest in which the issue depends on the number of ballots •cast for each candidate, they are primary and controlling, and sufficient in law to overthrow the prima facie case made by the returns, in case the showing made by the ballots conflicts with that made by the returns; but where the ballots have not been properly preserved, and unauthorized persons have had reasonable opportunity to tamper with them, their competency as evidence is destroyed. (Post, pp. 223-226.)</p> <p>Acts cited and approved: Acts of 1907, ch. 436, sec. 16.</p> <p>Case cited and approved: Newhouse v. Alexander, 27 Okla., 46.</p> <p>Case cited and distinguished: Taylor v. Carr, 126 Tenn., 253.</p> <p>2. ELECTIONS. Contest. Ballots. Preservation.</p> <p>Where ballots voted at an election were not only not preserved as required by law, but were three times counted by unauthorized persons after the election, and ample opportunity afforded for destruction or substitution, they were inadmissible to control the returns of the contest. (Post, pp. 226, 227.)</p>

<p>CERTIORARI. Decisions of lower court. Finality.</p> <p>Under Acts 1907, eh. 82, giving the court of civil appeals appellate jurisdiction in certain cases, with power to grant writs of supersedeas in those cases, just as the supreme court has power in cases within its jurisdiction, and providing that the supreme court can review the decrees of the court of civil appeals only after final judgment therein, the supreme court has no jurisdiction to issue certiorari to review the order of the court of appeals overruling a motion to discharge a writ of supersedeas, theretofore issued by that court to supersede an injunction granted by the chancery court.</p> <p>Acts cited and construed: Acts 1907, ch. 82.</p>

<p>1. MUNICIPAL CORPORATIONS. Actions against city. Venue. Injuries to real property.</p> <p>An action against a city to recover for damages to land situated in another county, caused by the city taking, under the power of eminent domain, but without condemnation proceedings, water which would- otherwise flow through the land, can be brought only in the county in which the city is located, since the rule that an action for injuries to realty is local, being .based on only technical reasons, or at most reasons of private convenience, must yield to the rule that a city can be sued only in the county in which it is located, which is based upon reasons of public policy. (Post, p. 233.)</p> <p>Case cited and approved: Baltimore v. Meredith Turnpike Co., 104 Md., 351.</p> <p>Case cited and disapproved: Heckscher v. Philadelphia, 6 Sadler, 346.</p> <p>2. EMINENT DOMAIN. Remedies of property owner. Recovery of damages.</p> <p>A landowner whose land is taken or occupied by another in the exercise of the right of eminent domain, without resort to condemnation proceedings, may sue the taker in an ordinary action of damages. (Post, pp. 234-236.)</p> <p>Cases cited and approved: Saunders v. Railroad, 101 Tenn., 210; Railroad v. Cochrane, 3 Lea, 478; Railway v. Weaks, 81 Tenn., 149; Mattix v. Swepston, 127 Tenn., 693; Phillips v. Baltimore, 110 Md., 431; Mostyne v. Fahrigas, Cowp., 161.</p> <p>Cases cited and distinguished: Livingston v. Jefferson, 1 Brock., 203; Nashville v. Webb, 114 Tenn., 432.</p>

<p>1. JUSTICES OF THE PEACE. Actions. Warrant. Sufficiency.</p> <p>A -warrant, in an action in justice court, -which alleged plaintiff was damaged by defendant’s negligence, recklessness, and carelessness as a common carrier in the delay of a shipment of poultry, will support a recovery for damages caused by depreciation in the market value of poultry during the delay. (Post, pp. 2:40, 241.)</p> <p>Cases cited and approved: Railroad v. Davis, 127 Tenn., 167; Railroad v. Flood, 122 Tenn., 56.</p> <p>2. CARRIERS. Carriage of goods. Damages for delay.</p> <p>A carrier is liable for loss on the value of property intrusted to it for transportation,' which results from a decline. in the market price pending the carrier’s negligent delay in forwarding the consignment to its destination. (Post, p. 241.)</p> <p>Case cited and approved: Wells v. National Life Association, 53 L. R. A., 84.</p> <p>3. CARRIERS. Carriage of live stock. Stipulations of fact.</p> <p>Unless a consignee of poultry complies with the stipulation in the bill of lading requiring notice in writing of any claim for loss or injury before delivery, he cannot recover for the death of some of the birds and the injury to others occasioned by delay in transportation, but he may recover damages occasioned by a depreciation in the market price before delivery. (Post, pp. 241-244.)</p> <p>Cases cited and approved: Railroad v. Stock Co., 123 Tenn., 299; Railroad v. Bacon, 128 Tenn., 169; Kansas, etc., R. Co. v. Ayers, 63 Ark., 331; Wichita R. Co. v. Koch, 8 Kan. App., 642; Mis- • souri, etc., R. Co. v. Frogley, 75 Kan., 440; Klass Commission Co. v. Wabash R. Co., 80 Mo. App., 164; Frey v. N. Y. Central, etc., R. Co., 114 App. Div.,-747.</p>

<p>1. CONSTITUTIONAL LAW. Persons entitled to raise question.</p> <p>A landowner, whose land is sought to he condemned by an electric power company incorporated under Acts 1895, ch. 208, and Acts 1909, ch. 127, cannot question the constitutionality of those acts on the ground that they permit only incorporated companies to condemn, and therefore discriminate against individuals and partnerships, contrary to Const. TJ. S. Amend. 14, and Const. Tenn., art. 1, sec. 8, since the landowner is not injuriously affected by the alleged discrimination. (Post, pp. 247, 248.)</p> <p>Acts cited and construed: Acts 1895, ch. 208; Acts 1909, ch. 127.</p> <p>Cases cited and approved: Cronin v. Adams, 192 U. S., 108; Commonwealth v. Wright, 79 Ky., 22; Schoolcraft v. Railroad, 92' Ky., 233; Brown v. Railroad, 79 Fed., 176; Pugh v. Pugh, 32 L. R. A., 954; Spratt v. Transmission Co., 37 Mont., 60; Kelly v. State, 123 Tenn., 516.</p> <p>2. EMINENT DOMAIN. Proceedings. Petition. Public use.</p> <p>A petition by an electric power company, incorporated under Acts 1895, ch. 208, and Acts 1909, ch. 128, which authorized companies incorporated thereunder to engage in some business that is not of a public nature, for the condemnation of lands, which alleged that the purpose of the company was the generating of electric current for commercial uses and for lighting and power purposes, that the company had invested large sums in the enterprise, which would be of great value to the citizens of the surrounding counties, and that it was engaged in a work of internal improvement which will subserve general public use, does not show that the power is to be supplied to the public in general, and not to selected individuals, and therefore does not show that the land sought to be condemned is to be used for a public purpose. (Post, pp. 248-250.)</p> <p>Case cited and approved: Power Co. v. Webb,. 123 Tenn., 584.</p> <p>3. EMINENT DOMAIN. Proceedings. Petition. Public use.</p> <p>A petition for ,the condemnation of lands must distinctly show beyond doubt that the land is to be used for a public purpose, since' otherwise there is no right to condemn. (Post, pp. 260-262.)</p>

<p>1. INTOXICATING LIQUORS. Liquor nuisance. What constitutes.</p> <p>Under Acts 1913 (2d Ex. Sess.), ch. 2, providing, in section 1, that conducting the sale of intoxicating liquors in violation of state law shall he a nuisance, and may be abated, a person who has paid all federal and municipal taxes and who sells liquor only to persons outside of the State, is not maintaining a nuisance within the act; such sales being legal. {Post,- pp. 256-259.)</p> <p>Acts cited and construed: Acts 1909, ch. 479.</p> <p>Cases cited and distinguished: State v. Kelly, 123 Tenn., 556; Logan v. Brown, 125 Tenn., 209; State v. Pérsica, 168 S. W., 1057.</p> <p>2.. COMMERCE. Interstate commerce. Liquor sales.</p> <p>One who sells intoxicating liquors solely in interstate commerce does not violate local prohibitory laws because he did not purchase his liquor in interstate commerce; the sale and not the purchase of liquors being prohibited. {Post, pp. 259, 260.)</p> <p>Cases cited and distinguished: Kelly & Co. v. State, 123 Tenn., 516; Logan v. Brown, 125 Tenn., 214; Palmer v. Express Co., 129 Tenn., 116.</p>

<p>1. RAILROADS. Crossings. Change of grade. Power of municipality.</p> <p>A municipal corporation having full control over its streets, and the railroad crossings over such streets, can both alter the grade of the streets, and compel railroad companies maintaining overhead crossings to reconstruct such crossings to conform to the new grade. (Post, p. 264.)</p> <p>Code cited and construed: Sec. 6871 (S.).</p> <p>Acts cited and construed: Acts 1875, ch. 92; acts 1903, ch. 133.</p> <p>Cases cited and approved: Dyer County v. Railroad, 87 Tenn., 712; Chattanooga v. Railroad, 128 Tenn.,- 399.</p> <p>2. MUNICIPAL CORPORATIONS. Streets. Power of.</p> <p>Under Shannon’s Code, sec. 1679, providing that the general highway laws shall not apply to incorporated cities or towns, neither the county court nor any other authority can interfere with the control of the streets within a municipality. (Post, p. 264.)</p> <p>Code cited and construed: Sec. 1679 (S.)»</p> <p>Cases cited and approved: State v. Mayor, 40 Tenn., 263; De Tavernier v. Hunt, 53 Tenn., 599.</p> <p>3. MUNICIPAL CORPORATIONS. Streets. Liability for.</p> <p>Where a municipal corporation allows its streets to get out of repair or become obstructed so as to constitute a public nuisance, both the municipality and its officers are liable to indictment. (Post, pp. 2,64,265.)</p> <p>Cases cited and approved: State v. Barksdale, 224 Tenn., 154; Chattanooga v. State, 37 Tenn., 578; State v. Murfreesboro, 3b Tenn., 217; Hill v. State, 36 Tenn., 443; State v. Shelbyville, 36 Tenn., 177.</p> <p>4. RAILROADS. Obstruction of streets of municipality. Criminal responsibility.</p> <p>Where a municipality raised the grade of a street under a railroad trestle to such an extent that large loads could riot' pass thereunder, hut did not require the railroad company to elevate its trestle, the railroad company is not liable to prosecution for obstructing the street, even though the trestle constituted a nuisance, for the nuisance, if any, was caused by the act of the municipality. (Post, pp. 265-269.)</p> <p>Cases cited and approved: Brown v. McAllister, 39 Cal., 573; Magee v. Railroad, 13 Pa. Sup., 187; Brimberry v. Savannah, etc., R. Co., 78 Ga., 641.</p> <p>Case cited and distinguished: State v. Rankin, 3 S. C., 438.</p>

<p>1. EMINENT DOMAIN. Injunction. Compensation.</p> <p>Where a public service corporation takes land under condemnation proceedings, on charter proceedings, it is not a trespasser, and cannot he sued as such; but where such corporation is about to enter upon land to appropriate without the institution of condemnation proceedings, it may be enjoined until compensation shall be secured or paid. {Post, pp. 271-274.)</p> <p>Code cited and construed: Secs. 1844, 1866 (S.).</p> <p>Cases cited and approved: Mitchell v. Turnpike Co., 22 Tenn., 456; Railroad Co. v. Adams, 40 Tenn., 596; Colcough v. Railroad, 39 Tenn., 171; Simms v. Memphis, etc., Railroad, 59 Tenn., 621; Saunders v. Railroad, 101 Tenn., 206; Doty v. Telephone & Telegraph Co., 123 Tenn., 329; Parker v. Railroad, 81 Tenn., 669; White v. Railroad, 54 Tenn., 528; Snoddy v. Kreutch, 40 Tenn., 301; Large v. Dennis, 37 Tenn., 595; Walker v. Fox, 85 Tenn., 154; Lieberman, Loveman & O’Brien v. Clark, 114 Tenn,, 117.</p> <p>2. EMINENT DOMAIN. Action for damages.</p> <p>Where a railroad company appropriated land without proceedings for assessment of damages, the landowner, suing for damages under Shannon’s Code, sec. 1866, providing that, in case land has been actually taken, the owner may petition for a jury to assess the value, or he may sue for damages in the ordinary way, mush either prove title deraigning it from the State, or he must show possession. {Post, pp. 271-274.)</p>

<p>■CONSTITUTIONAL LAW. Master and servant. Imprisonment for debt. Wages. Payment.</p> <p>Imprisonment by operation of law being imposed, if a fine adjudged be not paid, Acts 1913 (1st Ex. Sess.), ch. 29, declaring it a misdemeanor, punishable by fine, if a corporation operating a supply store in connection with its business does not pay in cash to its employees, at stated periods, the balance of wages due them, contravenes Const. 1870, art. 1, sec. 18, by indirectly authorizing imprisonment for debt in civil cases.</p> <p>Acts cited and construed: Acts 1913, ch. 29; Acts 1899, ch. 11.</p> <p>Constitution cited and construed: Art. 1, sec. 18.</p> <p>■Cases cited and distinguished: State v. Coal Co., 92 Tenn., 81; State v. Williams, 150 N. C., 802.</p> <p>■Case cited and approved: Harbison v. Iron Co., 103 Tenn., 421.</p>

<p>1. NUISANCE. Public nuisance. Prosecution. Abatement.</p> <p>At common law, not only is maintenance of a nuisance an offense, hut on conviction of maintaining a public nuisance, not only may the offender he punished, hut the nuisance ordered abated. (Post, pp. 282, 283.)</p> <p>Code cited and construed: Secs. 6750, 6752, and 6871 (S.).</p> <p>Case cited and approved: Woods v. Cottrell, 55 W. Va., 476.</p> <p>2. NUISANCE. Public nuisance. Abatement. Direction to sheriff.</p> <p>The nuisance not being the building in which dead animals were converted into fertilizer, hut the business or the manner in which it was conducted, and judicial discretion being required to be exercised in the matter of abatement of such a nuisance, it should not be intrusted to the sheriff, by a mere order to abate, without instructions as to how it be done. (Post, pp. 283-285.)</p> <p>Case cited and distinguished: Bloomhuff v. State, 8 Black!, 205; Shepard v. People, 40 Mich., 487; State v. Schaefer, 45 Wash., 9.</p>

<p>1. HOMICIDE. Evidence. Dying declarations.</p> <p>The admissibility of a purported dying declaration is a question for tbe court, while the weight of the declaration is for the jury. (.Post, pp. 298-300.)</p> <p>2. HOMICIDE. Evidence. Dying declarations.</p> <p>The burden is upon the party offering a purported dying declaration to show that it was made in articulo mortis, that deceased was fully conscious of his impending death, and that he had sufficient mental capacity to comprehend the nature of his statements, although, if nothing appears to suggest a doubt of his capacity, the general presumption of sanity will suffice. (Post, pp. 298-300.)</p> <p>3. HOMICIDE. Evidence. Dying declarations.</p> <p>Where deceased was anaesthetized shortly after the shooting, and after he recovered from the anaesthetic he was given opiates up to the time of his death, which induced a fitful sleep, the burden is upon the one offering a dying declaration to show that deceased was rational when he made it. (Post, pp. 300-305.)</p> <p>Case cited and approved: Bell v. State, 72 Miss., 507.</p> <p>4. HOMICIDE. Evidence. Dying declarations. Sufficiency of evidence.</p> <p>In a prosecution for homicide, preliminary evidence of the mental capacity of deceased held insufficient to justify the admission of a purported dying declaration. (Post, pp. 300-305.)</p> <p>5. HOMICIDE. Evidence. Dying declarations.</p> <p>In determining whether the preliminary proof of the capacity of the deceased, whose dying declaration was offered, was sufficient, the failure of the State to introduce all of the witnesses present when the declaration was made can he considered as a circumstance against it. (Post, pp. 305, 306.)</p> <p>Case cited and approved: Standard Oil Co. v. State, 117 Tenn., 625.</p> <p>6. HOMICIDE. Evidence. Dying declarations.</p> <p>While a dying declaration elicited by leading questions is not inadmissible for that reason, the declaration, .to be admitted, must be such that the declarant could have testified to the same matter had he been called in court. (Post, pp. 306-309.)</p> <p>7. HOMICIDE. Appeal. Harmless error.</p> <p>Where there was much evidence to justify accused’s claim of self-defense, the erroneous admission of a dying declaration wherein accused’s victim stated that accused shot without provocation is prejudicial. (Post, pp. 309, 310.)</p>

<p>1. SUPERSEDEAS. Remedy. Nature of writ.</p> <p>The writ of supersedeas, which Shannon’s Code, secs. 5737, 5738, 6348, authorizes the supreme court to issue to interlocutory orders or decrees, is not a suitable remedy to vacate a temporary injunction, for a writ of supersedeas merely restrains the execution of something in fieri, hut not yet finished, while an injunction is in itself negative in character. (Post, pp. 313-323.)</p> <p>Acts cited and construed: Laws 1913, eh. 2; Laws 1851, ch. 181.</p> <p>Code cited and construed: Secs. 5737, 5738, 6348 (S.).</p> <p>Cases cited and distinguished: Edmondson v. King, 1 Tenn., 426; Linebaugh v. Rinker, 1 Peck., 362; Kearney v. Jackson, 9 Tenn., 294; Claiborne v. Crockett, 19 Tenn., 607; Keesee v. Board of Education, 46 Tenn., 127; Williams v. Boughner, 46 Tenn., 486; Railroad Co. v. Huggins, 47 Tenn., 217; Mabry v. Ross, 48 Tenn., 770; Cone v. Paute, 59 Tenn., 506; Allen v. Nelson, 66 Tenn., 343; Raht v. Mining Co., 2 Shan. Cas., 8; Payne v. Johnson, 2 Shan. Cas., 542; Foley v. Leath, 3 Shan. Cas., 354; Watkins v. Bank, 3 Shan. Cas., 564; Park v. Meek, 69 Tenn., 78; Baird v. Turnpike Co., 69 Tenn., 394; Johnston v. Hanner, 70 Tenn., 8; Roberson v. Roberson, 71 Tenn., 50; Blake v. Dodge, 76 Tenn., 465; Woods v. Batey, 83 Tenn., 733; Downing v. Coal Co., 93 Tenn., 221; Troughber v. Akin, 109 Tenn., 451; Coltart v. Hain, 2 Tenn. Ch., 356; Mabry v. State, 17 Tenn., 207; Redmond v. Redmond, 68 Tenn., 561; State, ex rel., v. Herbert, 127 Tenn., 220.</p> <p>2, INJUNCTION. Validity.</p> <p>An injunction made in respect to a subject-matter beyond the jurisdiction of a court is a mere nullity, and may be disregarded. (Post, pp. 323, 324.)</p> <p>Case cited and approved: State v. Ragghianti, 129 Tenn., 560.</p> <p>Code cited and construed: Secs. 5737, 5738 and 6348 (S.).</p> <p>3. SUPERSEDEAS. Scope of Remedy.</p> <p>Where a court undertakes to enforce hy contempt process injunctions void because made in respect to a subject-matter beyond its jurisdiction, such process may be superseded, under Shannon’s Code, secs. 5737, 5738, 6348, authorizing the supreme court to issue supersedeas to interlocutory orders. (Post, pp. 323, 324.)</p>

<p>INSURANCE. Life policy. Constitutional ailment. Affliction between application and delivery of policy. Failure to disclose.</p> <p>Plaintiff, before applying for insurance to be issued by defendant, bad suffered from one or more attacks of renal colic, but' in tbe application answered “No” to questions as to whether be bad ever been afflicted with renal colic. Between tbe date of tbe application and tbe delivery of tbe policy be was seized with a severe attack of renal colic, which persisted through several days, during which time be was informed by bis physician as to tbe nature of tbe disease. Held, that it' was tbe duty of insured to have disclosed sbcb illness to defendant prior to tbe delivery of tbe policy, and its failure to do so constituted such fraud as would avoid tbe policy.</p> <p>Case cited and distinguished: Equitable Life Assurance Co. v. Me-Elroy, 83 Fed., 631.</p> <p>Cases cited and approved: Ins. Co. v. Ewing, 92 U. S., 377; Cable v. Ins. Co., Ill Fed., 19; Merriman v. Grand Lodge, 77 Neb., 544; Carleton v. Ins. Co., 109 Me., 79; Trail v. Baring, 4 De G., J. & S., 318; Ins. Co. v. Railroad, 38 L. J. Ch., 314; Canning v. Farqubar, 16 Q. B. D., 727.</p>

<p>1. APPEAL AND ERROR. Review. Scope and theory of case.</p> <p>Where, though defendant hy its pleas interposed two distinct defenses, either of which, if sustained, would hare resulted in a dismissal of the action, the parties and the court ignored one of such defenses, such defense would in the supreme court he treated as having been abandoned in the trial court. (Post, p. 332.)</p> <p>Constitution cited and construed: Sec. 8, Arts. 11 and 1.</p> <p>Acts cited and construed: Acts 1911, ch. 591.</p> <p>Case cited and approved: Teasdale & Co. v. Manchester Produce Co., 104 Tenn., 267.</p> <p>2. STATUTES. Special or local laws. Suspension.</p> <p>Priv. Acts 1911, ch. 591, amending the Chattanooga charter, so as to provide that in eases of personal injury resulting from any cause originating in the neglect or failure of such city or its officers or agents to perform their duties, no suit shall be brought unless a verified statement of the amount and cause of the injury, and the time and place where it occurred, and the particular negligence causing it shall be presented to the mayor or city attorney within thirty days, is invalid, in that it violates Const., art. 11, sec. 8, providing that the legislature shall have no power to suspend any general law for the benefit of any particular individual, or pass any law for the benefit of individuals inconsistent with the general laws of the land, or grant to any individual rights, privileges, immunities, or exemptions not extended to any member of the community who may bring himself within the provisions of such law. .(Post, pp. 332-335.)</p> <p>Constitution cited and construed: Sec. 18, art. 11.</p> <p>Act cited and construed: Acts 1911, ch. 591.</p> <p>Case cited and approved: Fleming v. Memphis, 126 Tenn., 331.</p>

<p>1. BANKS AND BANKING. Insolvency. Rights of depositor. Stopping payment of check.</p> <p>Where a depositor had the makers of checks stop payment on them after they had been deposited in an insolvent bank and had passed to a correspondent bank, and where, by a subsequent agreement saving the rights of the parties, the checks were collected, their proceeds were held by the receiver in trust for the defrauded depositor. (Post, pp. 337-339.)</p> <p>Acts cited and construed: Laws 1899, ch. 94.</p> <p>Cases cited and approved: Akin v. Jones, 93 Tenn., 353; Pease v. Bank, 114 Tenn., 693; First Nat. Bank v. Strauss, 66 Miss., 479; Grant v. Walsh, 145 N. Y., 502.</p> <p>2. BANKS AND BANKING. Deposits. Equitable set-off.</p> <p>Where a company which indorsed a note held by an insolvent bank had been indemnified by the maker of the note, it was not entitled to set off against its liability on the note any part of its deposit in.the bank, though the principal on the note was insolvent. (Post, pp. 339-341.)</p> <p>Cases cited and approved: Knaffle v.- Trust Co., 128 Tenn., 181; In re Middle District Bank, 9 Cow., 414.</p>

<p>1. LIMITATIONS OF ACTIONS. New cause of action. Amended pleading.,</p> <p>A complaint or declaration may be amended after the expiration of limitations, and tbe' amendment will relate to the commencement of the action, provided it does not state a new cause of action or bring in new parties, but if a new cause of action is introduced, the statute runs against it to the time of filing. (Post, pp. 349, 350.)</p> <p>Case cited and approved: Love v. Southern Ry. Co., 108 Tenn., 108.</p> <p>3. LIMITATION OF ACTIONS. Amendment. “New cause of action.”</p> <p>Where an original declaration charged that plaintiff’s injuries resulted from his employers’ negligence, first, in failing to provide sufficient help, and, second, in failing to provide reasonably safe appliances, an amendment, filed more than two years after the accident, charging that plaintiff’s injuries were proximately caused by defendants’ negligence in failing to warn plaintiff of an impending danger, did not state a new cause of action, and hence was not barred; the cause of injury not being the cause of action. (Post, pp. 350-352.)</p> <p>Cases cited and approved: Crofford v. Cothran, 34 Tenn., 492: Miller v. Taylor, 53 Tenn., 465; Flatley v. M. & C. R. Co., 56 Tenn.. 230; Corder v. Dolin, 63 Tenn., 241; Trousdale v. Thomas, 71 Tenn., 720; Allen v. Link, 73 Tenn., 454; Hagerty v. Hughes, 63 Tenn., 222; Iron & Coal Co. v. Broyles, 95 Tenn., 615.</p> <p>Cases cited an,d disapproved: Nance v. Thompson, 33 Tenn., 321: Augusta Mfg. Co. v. Vertrees, 72 Tenn., 75; Railroad v. Foster, 78 Tenn., 351; Burgie v. Parks, 79 Tenn., 84; State, ex rel., v. Keller, 79 Tenn., 399; Railway Co. v. Mahoney, 89 Tenn., 320; Hooper v. Railroad, 107 Tenn., 712; Love v. Railway Co., 108 Tenn., 104; Bryan v. Zarecor, 112 Tenn., 509; Texas, etc., R. Co. v. Cox, 145 U. S., 593; Chobanian v. Washburn Wire Co., 33 R. I., 289.</p> <p>3. ACTION. “Commencement of action.”</p> <p>Under Shannon’s Code, sec. 4521, pi-oviding that the cause of action may be briefly stated in general terms in the summons, the summons and not the declaration is the commencement of the action; and hence, where a summons contained a general statement of the cause of action, the fact that plaintiff, more than two years after the accident, filed an amendment to the declaration, which did not state a different cause of action from that stated in the summons, and at the same time dismissed the counts alleged in the original declaration, did not entitle defendants to judgment, on the theory that, after the dismissal of the original declaration, there was nothing to sustain the amendment. (Post, pp. 352, 353.)</p> <p>Code cited and construed: Secs. 4518, 4521 (S.).</p> <p>Case cited and approved: Love v. Railroad Co., 108 Tenn., 104.</p>

<p>1. RAILROADS. Fire. Emission of sparks. Negligence. Evidence.</p> <p>Where, in an action for destruction of plaintiff’s property by Are alleged to have been set by sparks from defendant’s engines, it was admitted that the fire, if set by sparks, must have come from one of two engines identified, and the evidence was conclusive that these engines - were new, of the latest design, equipped with the latest improved spark arresters in good condition, and were skillfully operated, the evidence was insufficient to sustain a finding that the fire was caused by the emission of sparks from defective equipment operated by the railroad company. (Post, pp. 359-363.)</p> <p>Cases cited and approved: Railroad v. Fort, 112 Tenn., 451; Martin v. McCrary, 115 Tenn., 316.</p> <p>2. RAILROADS. Fires. Negligence. Rubbish. Accumulation.</p> <p>It is actionable negligence for a railroad company to allow rubbish or other combustible materials to accumulate on a right of way near the track so that it will be likely to take fire from sparks necessarily emitted from engines, and, as a natural and probable result, ignite and damage another’s property. (Post, pp. 363-365.)</p> <p>Cases cited and distinguished: O’Neill v. Railroad, 115 N. Y.r 579; Hawley v. Railroad, 49 Or., 509.</p> <p>3. RAILROADS. Fires. Engines. Combustible material.</p> <p>In an action against a railroad company for fires alleged to have consumed plaintiff’s property, evidence held to require submission to the jury of the question of the railroad company’s negligence in permitting inflammable material to .accumulate on the right of way adjacent to plaintiffs property, by means of which fire could be, and was, communicated from defendant’s engines to plaintiffs property. (Post, p. 365.)</p> <p>4. RAILROADS. Fires. Release. Validity. Public policy.</p> <p>.A contract for the construction of a switch tract containing a release to the railroad company of any damage sustained by the landowner from loss of property from fire set out by the railroad company’s engines, etc., in so far as it related to property outside the railroad’s right of way, was not invalid as contrary to public policy. (Post, pp. 365-378.)</p> <p>Cases cited and approved: Railroad v. Keefer, 146 Ind., 21; Railroad Co. v. Sáulsbury, 115 Tenn., 402; Hartford Fire Ins. Co. v. Railroad, 175 U. S., 91; Griswold v. Railroad, 90 Iowa, 265; Stephens v. Railroad, 109 Cal., 86; Mansfield Mut. Ins. Co. v. Railroad Co., 74 Ohio St., 30; Greenwich Ins. Co. v. Railroad Co., 112 Ky., 598; Checkley v. Railroad, 257 Ill., 491; M. K. & T. Ry. Co. v. Carter, 95 Tex., 461; Mann v. Railroad Co., 135 Mich., 210; Porter v. Railroad, 205 Mass., 590; Mayfield v. Southern Ry. Co., 85 S. C., 165; Railroad v. Blaker, 68 Kan., 244; Express Co. Cases, 117 IT. S., 1; Coup v. Railroad, 56 Mich., 111.</p> <p>Cases cited and distinguished: Burud v. Railroad, 62 Minn., 243; Railroad v. McDonough, 21 Mich., 165.</p> <p>5.- RAILROADS. Fires. Destruction of property. Release. Construction.</p> <p>A contract, of a millowner with defendant'railroad company, by which the company agreed to construct a switch track from its main track to the mill located on private property, provided that the millowner, as an inducement to the railroad company, agreed that the company should not be liable for any loss or damage by fire communicated to the millowner’s buildings or contents thereof or property stored along the track, by the railroad company’s engines, or arising in any manner from the operation of the spur track, and to that end the millowner agreed not to make any claim against the railroad company for any loss or damage that might grow out of fire set by or communicated from the railroad company’s locomotives on or along such track. Reid, that the release was limited to fires set out by the operation of engines on the spur track, and did not relieve the railroad company from liability for fires set by the railroad company’s engines operating on its main line. (Post, pp. 378-380.)</p> <p>6. SALES. Conditional sales. Rights of buyer.</p> <p>The buyer of property under a conditional sale contract in which the title is retained in the seller to secure the price is the equitable owner of the property and,, on the destruction of the property by fire while in the buyer’s possession before payment, does not relieve him from the obligation to pay the price. (Post, pp. 380, 381.)</p> <p>Cases cited and approved: Light v. Insurance Co., 105 Tenn., 487; Mfg. Co. v. Buchanan, 118 Tenn., 251.</p> <p>7. SALES. Conditional sales. Destruction of property. Right to sue.</p> <p>Where property sold under a conditional sale contract is destroyed by the negligence of a third person, either the seller by reason of his retained title, or the buyer by reason of his possession and special or equitable ownership, may sue and recover full damages; and if a suit is brought by the buyer he will hold the balance of the recovery beyond his own interest in trust for the seller. (Post, p. 381.)</p> <p>Cases cited and approved: Smith v. Gufford, 36 Fla., 481; White v. Webb, 15 Conn., 305; Criner v. Pike, 39 Tenn., 400; Railway v. Hall, 107 Tenn., 514.</p>

<p>FROM JOHNSON.</p> <p>Appeal from the Circuit Court of Johnson county to the Court of Civil Appeals and by certiorari to the Court of Civil Appeals from the Supreme Court.— Dana Harmon, Judge.</p>

<p>1. CRIMINAL LAW. Trial. Continuance.</p> <p>The trial judge has a large discretion in the matter of granting continuances, and his ruling will not he disturbed unless an abuse appears. (Post, p. 390.)</p> <p>Cases cited and approved: Todd v. "Wiley, 22 Tenn., 576; Womack v. State, 74 Tenn., 152.</p> <p>2. RAPE. Statutory rape. Evidence. Admissibility.</p> <p>Evidence showing lewd conduct and language on the part of a prosecutrix after the date of her alleged seduction is not admissible in defense of a prosecution for having unlawful intercourse with a girl under the age of consent. (Post, pp. 390-394.)</p> <p>Cases cited and approved: Tabler v. Connor, 60 Tenn., 195; Hamm v. Romine, 98 Ind., 77; Anderson v. Hathaway, 130 Ind., 528; Keisling v. Readle, 1 Ind. App., 240; Hoban v. Sanford & Stillman Co., 64 N. J. Law, 426; Poer v. Johnson, 48 Ind. App., 596; Beach v. Sehroeder, 47 Colo.,' 312; Haslet & Stuart v. Pryor, 6 Tenn., 33; Herron v. Allen, 32 S. D., 301; Bertram v. State, 32 Ind. App., 199; Branch v. Klatt, 173 Mich., 31.</p> <p>3. CRIMINAL LAW. Trial. New Trial. Newly Discovered evidence. Diligence.</p> <p>Where a new trial is sought on the ground of newly discovered evidence, accused’s affidavit must set forth the facts showing reasonable diligence, as, where the diligence used is alleged to have consisted of inquiries, the time, place, and circumstances must be stated. (Post, pp. 390-394.)</p> <p>4. CRIMINAL LAW. Trial. Newly discovered evidence. Affidavit.</p> <p>Where a new trial is sought on the ground of newly discovered evidence, accused’s affidavit should be supported by that of the new witness showing the materiality of the testimony and that it had not been communicated to accused. {Post, pp. 390-394.)</p> <p>5. CRIMINAL LAW. Trial. New trial. Question of law.</p> <p>Whether a party was diligent in seeking evidence so that he may claim new trial on the ground of newly discovered evidence is a question of law for the court which must be determined from the averments of the affidavit. (Post, pp. 390-394.)</p> <p>6. CRIMINAL LAW. Trial. New trial. Newly discovered evidence.</p> <p>An accused seeking a new trial on the ground of newly discovered evidence must file an affidavit showing that his counsel had no knowledge of the alleged newly discovered evidence; the knowledge of his counsel being imputable to him. (Post, pp. 390-394.)</p> <p>7. RAPE. Statutory rape. Evidence. Admissibility.</p> <p>In a prosecution for having unlawful intercourse with a girl under age of consent, the relations of the parties and their opportunities for meeting may be shown to corroborate the prosecutrix.- (Post, pp. 394-396.)</p> <p>Cases cited and approved: People v. Abbott, 97 Mich., 484; State v. Waters, 132 Iowa, 481; Jamison v. State, 117 Tenn., 58.</p> <p>8. RAPE. Statutory rape. Evidence. Admissibility.</p> <p>In a prosecution for having unlawful intercourse with a girl under the age of consent, evidence that accused was seen paying special attention to the female, conversing with her privately while passing through her room at night, and that they were seen sitting close together alone, is admissible. (Post, pp. 394-396.)</p> <p>9. CRIMINAL LAW. Evidence of other offenses. Admissibility.</p> <p>Where accused was charged with having sexual intercourse with a girl under the age of consent, evidence of subsequent acts of intercourse is admissible in confirmation. (Post, pp. 394-396.)'</p> <p>10.RAPE. Statutory rape. Evidence. Admissibility.</p> <p>In a prosecution for having intercourse with a girl under the age of consent, where the girl ’ gave birth to a child, the fact that the child had red hair like accused warrants the presumption that accused was its .father, in the absence of evidence showing red hair among the girl’s kindred, or that any man hay-' ing red hair had access to her. (Post, pp. 394-396.)</p> <p>11. RAPE. Evidence. Admissibility.</p> <p>In a prosecution for having unlawful intercourse with a girl under the age of consent evidence held sufficient to justify a conviction. (Post, pp. 394-396.)</p>

<p>1. HIGHWAYS. Highway taxes. Statutory provisions.</p> <p>Acts 1909, eh. 479, sec. 2, providing that the several county courts of the State are thereby authorized to levy an annual county ta.x on every $100 worth of taxable property not exceeding 30 cents upon the $100 worth of property, and exclusive of the tax for public roads and pikes and schools and interest op. county debts and other special purposes, authorizes the levying of a tax not exceeding 30 cents on every $100 worth of taxable property for county purposes, and also the levying of taxes for the special purposes to which it refers, and hence a quarterly county court had authority to levy a tax of 5 cents on each $100 of taxable property for repairing pike roads. (Post, pp. 400-402.)</p> <p>Acts cited and construed: Acts 1909, ch. 479; Acts 1895, ch. 4.</p> <p>2. HIGHWAYS. Highway taxes. Statutory provisions.</p> <p>Shannon’s Code, sec. 648, authorizing the several county courts of the State to levy a county tax on every $100 worth of taxable property not exceeding 30 cents and exclusive of the tax for public roads and schools and interest on county debts, and providing that the aggregate amount of special taxes levied by counties shall not exceed the amount limited therein to them for current expenses, so far as it conflicts with Acts 1909, ch. 479, sec. 2, is repealed by the provision of that act that all laws in conflict therewith are thereby repealed, and hence the power of a county to levy a tax for repairing pike roads was not subject to the limit imposed by section 648. (Post, p. 402.)</p> <p>Code cited and construed: Sec. 648 (S.).</p> <p>3. HIGHWAYS. Highway taxes. Statutory provisions.</p> <p>Acts 1907, ch. 518, authorizes Hawkins county to issue bonds to be used in grading and macadamizing certain public roads therein described. Acts 1909, cli. 143, sec. 3, provides that the county courts of the State shall levy each year for road purposes a tax on all property outside of incorporated towns, and that this levy shall he 2 cents on each $100 of taxable property for each day assessed to labor on the public roads. Held, that a tax levied by the quarterly county court of Hawkins county of 5 cents on each $100 for the purpose of repairing pike roads was not invalid, because in excess of the levy authorized by chapter 143, as the tax was levied for the purpose of repairing roads of the kind constructed under chapter 518, as distinguished from the class of roads to which chapter 143 relates. (Post, p. 402.)</p> <p>Acts cited and construed: Acts 1909, ch. 143; Acts 1907, ch. 518.</p>

<p>1. BANKS-AND BANKING. Receiving deposit while insolvent. Indictment.</p> <p>An indictment for receiving a deposit, knowing the hank to be insolvent, which alleges that the defendant, as cashier of the K. Bank & Trust Company, permitted the reception of a stated amount “on deposit in said bank and corporation,” is not de-murrable in that it is not alleged that the corporation was a banking institution. (Post, pp. 405, 406.)</p> <p>Case cited and distinguished: State v. Willis, 170 S. W., 1032.</p> <p>2. CRIMINAL LAW. Right to allege error. Persons not appealing. “Appeal.”</p> <p>An “appeal” from a law court is not like a broad appeal in chancery, but is only an appeal in error; it merely suspends the judgment, and no errors can be corrected except those committed against the party prosecuting the appeal or writ of error. (Post, p. 407.)</p> <p>Gases cited and approved: Jones v. Ducktown, etc., Co., 109 Tenn., 375; Gallena v. Sudheimer et al., 56 Tenn., 189.</p> <p>3. BANKS AND BANKING. Constitutional law. Arbitrary classification. Offenses. Receiving deposit by insolvent bank.</p> <p>Acts 1911, ch. 44, prohibiting any officer or agent, having the control or management of a “bank,” from receiving money on deposit, knowing the bank to be insolvent, is not violative of Const, art. 1, see. 8, prohibiting arbitrary classification, since the word “bank,” in view of Acts 1913, ch. 20, sec. 44, defining banks, will be construed to include savings banks, trust companies, and private banks. (Post, pp. 407-409.)</p> <p>Acts cited and construed: Acts 1911, ch. 44; Acts 1913, ch. 20, sec. 44.</p> <p>4. STATUTES. Construction. General word.</p> <p>Where the ■ intent of a statute is clear, general words will be expanded to effectuate that purpose, if necessary. (Post, pp. 409, 410.)</p> <p>Cases cited and approved: . Coal Creek, etc., Co. v. Tenn. Coal, etc., R. C., 106 Tenn., 651; Rose v. Wortham, 95 Tenn., 505.</p> <p>5. CONSTITUTIONAL LAW. Arbitrary classification. Receiving depo'sits by insolvent bank.</p> <p>Acts 1911, ch. 44, prohibiting any officer or agent of a bank from receiving a deposit, knowing the bank to be insolvent, is not violative of Const, art. 1, sec. 8, in that it does not apply to national banks, since such banks are not subject to State regulation. (Post. p. 410.)</p> <p>'Cases cited and approved: Easton v. Iowa, 188 U. S., 220; Ex parte Pittman, 31 Nev., 43.</p> <p>6. CONSTITUTIONAL LAW. Imprisonment for debt. Receiving deposit in bank while insolvent.</p> <p>Acts 1911, ch. 44, making it an offense to receive a deposit in a bank, knowing it to be insolvent, is not violative of Const, art. 1, sec. 18, in that it creates liability to imprisonment for debt. (Post, pp. 410, 411.)</p>

<p>1. BANKS AND BANKING. Criminal prosecutions. Sufficiency of indictment.</p> <p>Under Acts 1911, cli. 44, making it a felony for any officer or otlier person having the control or management of any hank to receive or permit the reception of any money on deposit when such officer or person knows or has good reason to believe .that the hank is insolvent, an indictment, charging that accused, being the cashier of the K. Banking & Trust Company, a corporation, and as such having the control and management of the K. Banking & Trust Company, received and permitted the reception on deposit of money, and \that he then knew and had good reason to believe that the K . Banking & Trust Company was insolvent, but not alleging that accused was an officer or person having control of a bank or that the K. Banking & Trust Company was a bank, was insufficient, where the name of the K. Banking & Trust Company could not be found in any list of corporations published in the acts of the General Assembly as required by Shannon’s Code, sec. 2033, and no special act creating such corporation could be found, as the averments that the institution had a cashier and that a deposit was received by it did not indicate that it was a bank, nor was it a fair inference from the name of the institution that it was a bank. (Post, pp. 414-417.)</p> <p>Act cited and construed: Acts 1911, ch. 44.</p> <p>Case cited and distinguished: State v. Pearce, 7 Tenn., 66.</p> <p>2. CRIMINAL LAW. Evidence. Judicial notice. Existence and powers of corporations.</p> <p>The courts will judicially notice the existence, name, and powers-of a private domestic corporation created by a public act, and tlie authority to incorporate under and powers conferred by a general incorporation law. (Post, pp. 417, 418.)</p> <p>Code cited and construed: Secs. 7081, 2033 (S.).</p> <p>Acts cited and construed: Acts 1875, ch. 142, sec. 20.</p> <p>Cases cited and approved: Owen v. State, 37 Tenn., 493; Coal Creek, etc., Co. v. E. Tenn., etc., Co., 105 Tenn., 563.</p> <p>3. CRI MI NAL LAW. Evidence. Judicial notice. Existence and powers of corporations.</p> <p>Shannon’s Code, sec. 2033, requiring the secretary, of State to have published and bound with the acts of each general assembly a certified list of all corporations organized under that chapter since the last publication, with the names and date of organization, and providing that such publication shall be legal evidence of the existence of such corporations, places such lists of domestic corporations in the same status as the published acts of the legislature of which the courts will take judicial notice. (Post, pp. 417, 418.)</p> <p>4. CRIMINAL LAW. Evidence. Judicial notice. Existence and powers of corporations.</p> <p>Judicial notice cannot be taken of the existence or powers of a corporation not appearing to have been created under the laws of this State. (Post, pp. 419, 420.)</p> <p>Cases cited and approved: Owen v. State, 37 Tenn., 493; Nashville Trust Co. v. Weaver, 102 Tenn., 66; Water Co. v. Bank, 123 Tenn., 364.</p> <p>■5. INDICTMENT AND INFORMATION. • Requisites of Accusation. Statutory offenses.</p> <p>Indictments for statutory offenses must bring the defendant within all the material words of the statute, and nothing can be taken by intendment. (Post, pp. 420-422.)</p> <p>Cases cited and approved: State v. Jones, 10 Tenn., 22; Grandison v. State, 21. Tenn., 451; Elijah v. State, 21 Tenn., 455; Williams v. State, 27 Tenn., 585.</p> <p>Cases cited and distinguished: Steinston v. State, 14 Ténn., 531; Jones et al. v. State, 84 Tenn., 466; Wilson v. State, 103 Tenn., 87.</p> <p>6. BANKS AND BANKING. Criminal offenses. Statutory provisions.</p> <p>Acts 1911, oh. 44, making it a felony for any officer or other person having the control or management of a hank to receive or permit the reception of any money, etc., on deposit in such bank, when such officer or person knows or has good reason to believe that the bank is insolvent, is valid. {Post, p. 422.)</p> <p>Acts cited and construed: Acts 1911, ch. 44.</p> <p>Case cited and approved: State v. Willis, 170 S. W., 1030.</p>

<p>1. ABATEMENT AND REVIVAL. Persons in whose name action may be revived. ■ *</p> <p>Under Shannon’s Code, sec. 4579, providing that a suit, which has abated by the death of either party, may be revived by or against the heir, personal representative, guardian, or assign, who may be legally entitled to decedent’s place in the subject-matter of the litigation, where, after a judgment for defendant, in an action for malpractice, was affirmed by the court of civil appeals, plaintiff died, his widow and next of hin had no interest in the subject-matter of the litigation, entitling her to have the cause revived in her name, and to • prosecute certiorari to the Supreme Court, as plaintiff’s personal representative was his successor in interest, and the suit should have been revived in his name. (Post, p. 425.)</p> <p>2. ABATEMENT AND REVIVAL. Death of party. Actions for malpractice.</p> <p>Under Shannon’s Code, sec. 4569, providing that no civil action, whether founded on wrongs or contracts, except actions for wrongs affecting the character of plaintiff, shall abate by the death of either party, but may be revived, and se'ction 4579, providing that a suit which has abated by the death of either party may be revived by or against the person legally entitled to the decedent’s place in the subject-matter of the litigation, an action for malpractice did not abate upon plaintiff’s death from a cause other than the wrongful act of defendant; sections 4025-4029, relative to actions for death by wrongful act having no application. (Post, pp. 425-430.)</p> <p>Code cited and construed: Secs. 4569, 4575, 4579 (S.)</p> <p>Cases cited and approved: Daniel v. Coal Co., 105 Tenn., 470; Posey v. Posey, 113 Tenn., 588.</p>

<p>1. HOMESTEAD. Persons entitled. “Head of family.”</p> <p>Where a husband and wife owned land as tenants by the en-tireties, the wife, after the husband’s death, was entitled to a homestead exemption as against her debts incurred after the husband’s death, since upon -the death of the husband there was effected a change in the right of the possession awarded by the common law to the husband, and an estate absolute was vested in the wife, and she was the “head of a family” as to her estate, within the constitutional provision that a homestead in the possession of each head of a family shall be exempt during the life of the head of the' family. (Post, pp. 431, 432.)</p> <p>Cases cited and approved: Jackson v. Shelton, 89 Tenn., 82; Manufacturing Co. v. Collier, 95 Tenn., 115.</p> <p>2. HUSBAND AND WIFE. Tenancy by the entirety. Nature of survivor’s interest.</p> <p>Upon the death of a husband, the wife holds land, which was vested in them as tenants by the entireties, as survivor in own right, and not under or by inheritance from the husband. (Post, pp. 432, 433.)</p> <p>Cases cited and approved: Taul v. Campbell, 15 Tenn., 330; Ex parte Brien, 2 Tenn. Ch., 33;. Smith v. Wright, 13 Tex. Civ. App., 480; Pendergast v. Heekin, 94 Ky., 384; Wike v. Garner, 70 Am. St. Rep., 111.</p> <p>Case cited and distinguished: McCrae v. McCrae, 103 Tenn., 719.</p> <p>3. HOMESTEAD. Persons entitled. Minor children.</p> <p>Under the constitutional provision giving a homestead exemption to each head of a family, to inure to the benefit of the widow, and to be exempt during the minority of their children occupying the homestead, where a husband and wife owned land as tenants by the entireties, their minor children, after the death of the surviving wife, were entitled to a homestead exemption as against debts of the wife incurred after the husband’s death, as the wife was the head of the family after the husband’s death, and the minors on her death became immediate and complete beneficiaries of the constitutional provision. {Post, pp. 433, 434.)</p>

<p>FROM MORGAN.</p> <p>Appeal from the Chancery Court of Morgan County to the Court of Civil Appeals, and by certiorari to the-Court of Civil Appeals from the Supreme Court. — L. H. Oarlock, Judge.</p>

<p>1. EMINENT DOMAIN. Appropriation of railroad right of way-Action for damages. Limitation of actions.</p> <p>Where a railroad company, instead of instituting condemnation proceedings, took a conveyance of land from the life tenant, the one-year period of limitations prescribed by Shannon’s Code, sec. 1867, did not apply to an action brought by a re-mainderman to recover damages for the appropriation of such land; such section not applying where land is not taken in the exercise of the power of eminent domain. {Post, pp. 452,. 453.)</p> <p>Code cited and construed: Sec. 1867 (S.).</p> <p>2. EMINENT DOMAIN. “Condemnor.” “Appropriator.”</p> <p>“Condemnor” and “appropriator” necessarily include, as parts. of their meaning, one who subjects the lands of another; that is, in recognition that the lands are those of another than the condemnor, and that there is need that such be taken from such other and vested, as by way of compulsory sale, in the-appropriator. (Post, pp. 454-456.)</p> <p>Code cited and construed; Sec. 1844 (S.).</p> <p>Cases cited and distinguished: Re Olean, 135 N. Y., 341; Re-Yonkers, 117 N. Y., 564; Geneva v. Henson, 195 N. Y„ 455; Commonwealth v. Bisby, 37 Kan., 253; San Jose v. Reed, 65-Cal., 242; San Jose v. Freyschlag, 56 Cal., 8; Langford v. United States, 101 U. S., 341.</p> <p>3. REMAINDERS. Limitations. Commencement of period.</p> <p>The seven-year statute of limitations will not run against the-interest of ,a remainderman in land, during the existence of the-life estate. (Post, pp. 456, 457.)</p> <p>Cases cited and approved: Smith v. Cross, 125 Tenn.,. 160; Shortle v. Railroad, 131 Ind., 338; Webster v. Railroad, 78-Ohio, 90; Smith v. Railroad, 88 Tenn., 611.</p> <p>4. EMINENT DOMAIN. Appropriation of land. Measure of damages. Railroad right of way.</p> <p>Where a railroad company takes possession of land under a deed from the life tenant, the measure of damages recoverable by remaindermen for the company’s appropriation of the land is the value of the land at the termination of the life estate rather than at the date of the taking. {Post, pp. 457, 458.)</p>

<p>1. INFANTS. Contracts. Duty to disaffirm.</p> <p>Where it is uncertain whether an infant’s contract benefits or prejudices her, and she marries while yet an infant, she should disaffirm the contract within a reasonable time, if she desires to avoid it. (Post, pp. 461, 462.)</p> <p>Cases cited and approved: Lancaster v. Lancaster, 81 Tenn., 126; Scott v. Buchanan, 68 Tenn., 468.</p> <p>2. INFANTS. Deed. Duty to disaffirm.</p> <p>An infant’s deed executed in consideration of a covenant of the grantee, which is void under the statute of frauds because not capable of being performed within one year, being void because clearly to the infant’s prejudice, need not be dis-affirmed. (Post, pp. 462, 463.)</p> <p>Cases cited and approved: Swafford v. Ferguson, 71 Tenn., 292; Robinson v. Coulter, 90 Tenn., .706.</p> <p>3. LIFE ESTATE. Adverse possession under life tenant. Remainders.</p> <p>The possession of a life- tenant’s grantee cannot become adverse to the remaindermen until after the death of the life tenant. (Post, pp. 463, 464.)</p> <p>Code cited and construed: Sec. 1866 (S.).</p> <p>Cases cited and approved: Matherson v. Davis, 42 Tenn., 443; Walton v. Gaines, 94 Tenn., 420.</p> <p>4. EMINENT DOMAIN. Appropriation of land. Measure of damages.</p> <p>The damages recoverable by a remainderman from a railroad company for the appropriation of land under a deed from the life tenant, in which the remainderman joined while an infant. were properly assessed as of the date of the death of the life tenant, where the deed was void as to the remainderman. (Post, pp. 463, 464.)</p> <p>5. EMINENT DOMAIN. Remedies of owners. Appropriation of land. Remaindermen.'</p> <p>While the chancery court has no jurisdiction of a proceeding brought solely for the condemnation of land for public im--provements, or administer the relief authorized in condemnation proceedings under Shannon’s Code, sec. 1866, it may entertain a bill in equity by remaindermen to have their rights declared as against a deed from the life tenant, under which a railroad company claims title to its right of way, and may grant complete relief in respect thereto. (Post, pp. 463, 464.)</p>

<p>BILLS AND NOTES. Indorser. Discharge. Extension of time of payment.</p> <p>At the maturity of notes given in renewal of other notes, the maker explained to the holder that a surety on the notes was ill, and that his signature to renewal notes could not then he obtained, and the holder accordingly accepted the sums required as discounts for renewals, on condition that the maker should get renewal notes properly signed by the surety as soon as his condition would permit. No new notes were signed by the maker and left with the holder. HeM, that there was no agreement binding upon the holder to extend the time of payment, within Negotiable Instruments Law (Acts 1899, • ch. 94), sec. 120, subd. 6, providing that a party secondarily liable is discharged by any agreement binding upon the holder to extend the time of payment, unless made with the assent of the party secondarily liable, or unless the right of recourse-against him is expressly reserved, and the surety was not therefore discharged, since the holder agreed to permit renewals only on condition that the surety would sign the renewal notes.</p> <p>Acts cited and construed: Acts 1899, ch. 94.</p> <p>Cases cited and approved: Kuhlman v. Leavens, 5 Okla., 562; Williams v. Martin, 2 Duv., 491; National Park Bank v. Koeh-ler, 204 N. Y„ 174.</p> <p>Cases cited and distinguished: Barrett v. Davis, 104 Mo., 549; Miller v. McCallen, 69 Iowa, 681; Bank of Uniontown v. Mackey, 140 U. S„ 220.</p>

<p>1. CERTIORARI. Review. Findings. Conclusiveness. '</p> <p>A concurrent finding of facts by tbe probate court and of the court of civil appeals cannot be considered in tbe supreme court on certiorari to tbe court of civil appeals. {Post, pp. 478, 479.) Cases cited and approved: State ex rel. v. Lee, 124 Tenn., 385; Miller v. Miller, 52 Tenn., 723; Sballer v. Garrett, 127 Tenn., 665.</p> <p>2. CERTIORARI. Review. Findings. Conclusiveness.</p> <p>"Where tbe probate court merely dismissed a petition to contest a will, but, befor.e so doing, it must bave found that an agreement •between tbe parties was not procured by fraud, and was supported by a sufficient consideration, and tbe court of civil, appeals on appeal affirmed tbe decree and specifically found that the agreement was not procured hy fraud and was supported hy a sufficient consideration, there was a concurrent finding of facts which could not he considered hy the supreme court on certiorari to the court of civil appeals. {Post, p. 479.)</p> <p>3. WILLS. Petition for contest. Estoppel.</p> <p>A defense, to a petition to contest a will, that a petitioner was estopped because of a prior judgment of the prohate court dismissing a prior petition pursuant to an agreement between the petitioner and the defendants does not go to the merits of the issue of devisavit vel non, hut raises an issue proper to he settled finally before the issue of devisavit vel non is tried. (Post, pp. 479, 480.)</p> <p>Case cited and approved: Shaller v. Garrett, 127 Tenn., 665.</p> <p>4. JUDGMENTS. Conclusiveness. Evidence outside the record.</p> <p>The court, in ascertaining the extent and effect of an adjudication ,in a prior suit, is not confined to the record in the prior suit, hut may hear evidence outside of the record to determine what, in fact, was adjudicated therein. (Post, pp. 480, 481.)</p> <p>Case cited and approved: Harris v. Mason, 120 Tenn., 668.</p>

<p>1. INSURANCE. Accident Insurance. Forfeit.</p> <p>Where the foreman of a bridge construction crew oecassionally did some diving in connection with the work, without receiving any extra compensation therefor, there was no change oí occupation, within the meaning of an accident insurance policy-prohibiting a change to a more hazardous occupation. (Post,, pp. 485-489.)</p> <p>Cases cited and approved: Ins. Co. v. McNevin, 32 Can. S. C.,. 194; Acc. Ass’n v. Kelsey, 46 Ill. App., 371; Stone v. Casualty Co., 34 N. J. Law, 371; Hoffman v. Standard Life Co., 127' N. C., 337; Life & Acc. Ins. Co. v. Burroughs, 69 Pa., 43; Hess v. Acc. Ass’n, 112 Mich., 196; Taylor v. Ill. Commercial'. Men Ass’n, 24 L. R. A., 1174.</p> <p>Cases cited and distinguished: Stevens v. Modern Woodmen of America, 127 Wis., 606; Holiday v. Accident Association, 103-Iowa, 178; Accident Association v. Frohard, 134 Ill., 228.</p> <p>2. APPEAL AND ERROR. Exhibitions. Filing.</p> <p>An accident insurance policy, application and proof of death, which, were not copied in the hill of exceptions hut were directed to he sent up, cannot he considered a part of the hill'of exceptions, where they were not shown to have been filed in the court helow. (Post, pp. 489, 490.)</p> <p>Case cited and approved: Dunn v. State, 127 Tenn., 267.</p>

<p>PROM HAMILTON.</p> <p>Appeal from the 'Criminal Court of Hamilton County. — S. D. M'cReynolds, Judge.</p>

<p>1. STATUTES. Prospective title. Retrospective provisions.</p> <p>Const., art. 2, sec. 17, providing that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title, is contravened by Acts 1885, ch. 34; the title “An act to provide for the descent of the estates of illegitimate persons who die interstate” being wholly prospective, narrowing the scope of the act to estates of persons dying after its passage, and section 2 applying -the provisions of the first section to estates of persons who had died before passage of the act. (.Post, pp. 498, 499.)</p> <p>Acts cited and distinguished: Acts 1885, ch. 34.</p> <p>Constitution cited and construed: Art. 2, sec. 17.</p> <p>Cases cited and approved: Lindsay v. Savings & Loan Co., 120 Ala., 156; Thomas v. Collins, 58 Mich., 64; Alpin v. Stiles, 83 Mich., 460; Katz v. Herrick, 12 Idaho, 1; State v. King County, 49 Wash., 619.</p> <p>2. ESCHEAT. Estate of bastard. Office found.</p> <p>Prior to Acts 1885, ch. 34, estates of illegitimates dying intestate, leaving no heirs capable of inheriting under the existing law, stood immediately escheated to and became the property of the State; the title vesting at once without necessity of office found or any suit by the State. (Post, pp. 500-502.)</p> <p>Cases cited and approved: Puckett v. State, 33 Tenn., 355; Hinkle v. Shadden, 32 Tenn., 46; State v. Unknown Heirs, 113 Tenn., 298; State v. Lancaster, 119 Tenn., 647; Turnmire v. Mayes, 121 Tenn., 45; Laughlin v. Johnson, 102 Tenn., 455.</p> <p>3. BASTARDS. Inheritance from. Persons dead. Statutes.</p> <p>It is not possible for the state, as attempted by Acts 1885, ch. 34, sec. 2, to endow an illegitimate already dead with heritable blood, that others may claim through him as heirs on his mother’s side. (Post, pp. 500-502.)</p> <p>4. CONSTITUTIONAL LAW. Validity of statute. Persons who may question.</p> <p>Defendants, from whom complainants can recover land sued for, only if a statute is constitutional, can raise the question of its unconstitutionality. (Post, p. 502.)</p> <p>5. CONSTITUTIONAL LAW. Validity of statute. Authority of court.</p> <p>The court will not refuse to consider the constitutionality of a statute merely because it is old, and numerous property rights may have been based on it; it not appearing it has ever been before the court or acted on in any way. (Post, pp. 502, 503.)</p> <p>Cases cited and approved: Telephone Co. v. Tel. & Tel. Co., 125 Tenn., 270; State ex rel. v. Baseball Club, 127 Tenn., 294.</p> <p>■6. STATUTES. Partial invalidity.</p> <p>Though Acts 1885, ch. 34, as to descent of estates of illegitimates, contravenes Const., art. 2, sec. 17, because, while its title is wholly prospective, it has a retrospective provision, such provision, being several, will be eliminated and the remainder stand. (Post, pp. 503-506.)</p> <p>Cases cited and approved: State v. Trewhitt, 113 Tenn., 561; Cannon v. Mathes, 55 Tenn., 504; State of Tenn. v. McCann, 72 Tenn., 1; State ex rel. v. Schlitz Brewing Co., 104 Tenn., 715; Malone v. "Williams, 118 Tenn., 439; Richardson v. Young, 122 Tenn., 471; State v. Hayes, 116 Tenn., 40; State ex rel. v. Taylor, 119 Tenn., 229.</p> <p>Constitution cited and construed: Art. 2, see. 17.</p> <p>7. STATUTES. Amendment. Recital in title.</p> <p>The words in the title of Acts 1885, ch. 34, “and to amend section 2423 of T. & S. Code,” will be treated as surplusage; it not satisfying Const., art. 2, sec. 17, providing that a law which amends a former law shall recite in its caption the title or substance of the law amended. (Post, pp. 506, 507.)</p> <p>Case cited and approved: Railroad v. Maxwell, 113 Tenn., 480.</p>

<p>1. INFANTS. Crimes. Punishment. Assessment by jury.</p> <p>Since the indeterminate sentence act (Laws 1913, ch. 8) expressly provides that it shall apply only to persons over eighteen years of age, one under that age convicted of manslaughter could only be sentenced to the reform school, under Laws 1907, ch. 599, sec. 4, for a term'to he fixed by the jury. (Post, p. 509.)</p> <p>Acts cited and construed: Acts 1913, ch. 8; acts 1907, ch. 599, sec. 4.</p> <p>Codé cited and construed: Sec. 7202 (S.).</p> <p>2. CRIMINAL LAW. Reversal. Necessity of discharge of accused.</p> <p>Where a criminal case is reversed because the court erroneously taires the punishment away from the jury, the cause will be remanded for a new trial, and the defendant is not entitled to his discharge. (Post, p. 509.)</p> <p>Case cited and approved: Gass v. State, 172 S. W., 305.</p>

<p>1. MUNICIPAL CORPORATIONS. Use of streets. Automobiles. Care of driver.</p> <p>As an automobile is not an inherently dangerous instrumentality, a charge imposing on the driver of an automobile in the city street a high degree of care is erroneous, as a driver is bound to exercise only ordinary care, or that degree of care and caution which an ordinarily prudent person would exercise under the same circumstances. (Post, pp. 512-514.)</p> <p>Cases cited and approved: Goodman v. Wilson, 129 Tenn., 464; Railroad v. Wade, 127 Tenn., 154.</p> <p>2. MUNICIPAL CORPORATIONS. Use of streets. Automobiles. Measure of ordinary care.</p> <p>The measure of ordinary care to be used by the driver of an automobile in a city street is to be estimated by the risk entailed, through probable dangers attending the particular situation as is to be commensurate with the risk of injury to the pedestrian in the street, having in view the condition of traffic and condition of the machine being operated. (Post, pp. 514, 515.)</p> <p>Cases cited and approved: Christy v. Elliott, 216 Ill., 31; Indiana Springs Co. v. Brown, 165 Ind., 465; House v. Cramer, 134 Iowa, 374. . .</p> <p>3. MUNICIPAL CORPORATIONS. Use of streets. Automobiles. Contributory negligence.</p> <p>A pedestrian, having equal rights with others to the use of the street, must exercise ordinary care for his own safety, to be • measured by the situation confronting him, such as the immediate circumstances of place and condition demand. (Post, p. 515.)</p> <p>4. MUNICIPAL CORPORATIONS. Use of streets. Injury to-pedestrian. Question for jury.</p> <p>"Whether one injured by collision with an automobile was guilty of contributory negligence because he stepped off the front end of a street car and walked diagonally away from the crossing and toward the sidewalk is for the jury. (Post, pp. 515, 516.)</p> <p>Cases cited and approved: Baker v. Close, 204 N. Y., 92; Minor v. Stevens, 65 Wash., 423; Deputy v. Kiminell, 80' S. E., 919.</p>

<p>1. MUNICIPAL CORPORATIONS. Street crossings. Negligence.</p> <p>A person riding a liorse down a street which crosses a much traveled city street is not negligent, as a matter of law, because he fails to look up and down the cross-street before crossing it. (Post, pp. 518, 519.)</p> <p>Gases cited and approved: Baker v. Close, 204 N. Y., 92; Millsaps v. Brogdon, 97 Ark., 469; Tiffany v. Drummond, 168 Fed., 47; Minor v. Stevens, 42 L. R. A., 1182; Deputy v. Kimmell, 51 'L. R. A., 997.</p> <p>2. NEGLIGENCE. Contributory negligence. Question for jury.</p> <p>Where the measure of care required is ordinary or reasonable care, which varies with the circumstances, contributory negligence is for the jury. (Post, p. 519.)</p> <p>Cases cited and approved: Railway v. Riddick, 110 Tenn., 227; Railroad v. Wade, 127 Tenn., 154; Leach v. Asman, 172 S. W., 303.</p>

<p>1. MUNICIPAL CORPORATIONS. Defect in street. Contributory negligence. Speed of automobile at night.</p> <p>Where a person drives an automobile at night in a dark place so fast that he cannot stop or avoid an obstruction within the distance lighted by his lamps, he is guilty of contributory negligence. (Post, pp. 522-526.)</p> <p>Cases cited and approved: Lauson v. Pond du Lac, 141 Wis., 57; McDonald v. Yoder, 80 Kan., 25; Corcoran v. New York, 188 N. Y., 131.</p> <p>ON PETITION TO REHEAR.</p> <p>2. APPEAL AND ERROR. Oral argument.</p> <p>Acts 1911, ch. 25, which forbids appellate courts to reverse and .dismiss upon the merits any case tried or triable by jury, without giving the parties an opportunity to be heard by oral argument of counsel, does not apply to an action heard by the judge without jury by consent of parties: (Post, pp. 526-528.)</p> <p>Acts cited and construed: Acts 1911, ch. 25.</p>

<p>1. INTOXICATING LIQUORS. Nuisance. Temporary injunction. Statutory injunction.</p> <p>In a suit to abate an alleged liquor nuisance, under Acts 2d Ex. Sess. 1913, ch. 2, a temporary injunction, issued without five-days’ notice to defendants, as required therein, is erroneous, but not void. {Post, p. 582.)</p> <p>Acts cited and construed: Acts 1913, ch. 2, sec. 6.</p> <p>Case cited and approved: State v. Ragghianti, 129 Tenn., 560.</p> <p>2. INTOXICATING LIQUORS. Abatement of nuisance. Appeal-Findings. Conclusiveness.</p> <p>On appeal to the court of civil appeals from a judgment of the circuit court, under Nuisance Act (Acts 2d Ex. Sess. 1913, ch. 2), sec. 5, providing that proceedings on appeal under the act shall be the same as in courts of chancery, the court of civil appeals should find the facts from the preponderance of the evidence, independent of the findings of the circuit court. {Post, pp. 532, 533.)</p> <p>Acts cited and distinguished: Acts 1913, ch. 2, sec. 5.</p> <p>3. CERTIORARI. Findings. Conciusiveness.</p> <p>The supreme court on certiorari will not review a finding of fact, concurred in by the trial judge and court of civil appeals, if' there is any evidence to support it. {Post, p. 533.)</p> <p>Case cited and approved: State ex rel. v. Lee, 124 Tenn., 385.</p> <p>4. INTOXICATING LIQUORS. Nuisance. Findings. Sufficiency of evidence.</p> <p>In a suit to abate a liquor nuisance, under Acts 2d Ex. Sess. 1913,. ch. 2, evidence held not to sustain a finding against the owner-of the building, on the theory that the nuisance, which was caused by the acts of a subtenant, had not been discontinued in good faith before suit was begun. (Post, pp. 533-539.)</p> <p>Cases cited and approved: Sharp v. Arnold, 108 Iowa, 203; Shear v. Brinkman, 72 Iowa, 698; Merryfield v. Swift, 103 Iowa, 167; Miller v. State, 3 Ohio St.,. 175.</p>

<p>1. CRIMINAL LAW. Transcript. Motion to strike.</p> <p>A supplemental transcript o£ proceedings in the cause at a term-of the circuit court, when the cause was pending on appeal to the supreme court must he stricken, since the circuit court had no-jurisdiction to make any order therein. (Post, pp. 542-544.)</p> <p>Code cited and distinguished: Secs. 4597, 4598, 4599 (S.).</p> <p>Cases cited and approved: Woodson v. State, 2 Shan. Case, 84; Staggs v. State, 22 Tenn., 372.</p> <p>2. CRIMINAL LAW. Appeal. Remand for correction of errors.. '</p> <p>Under Shannon’s Code, secs. 4597-4599, providing that the circuit court may, within twelve months after final judgment and while .the cause is still therein, amend any clerical error in the judgment where there is sufficient matter apparent on the record,, the papers in the cause, or entries of the presiding judge to-amend hy, that mistakes apparent on the face of the record may he corrected after final judgment, and that in such cases the party seeking the correction shall give notice of intention to move therefor, the supreme court may remand a cause to the-trial court to correct clerical errors as to an order granting time to file a hill of exceptions, when there is sufficient matter to amend hy; hut where no evidence, by affidavit or otherwise, to which the supreme court can look, is offered, the cause will not he remanded. (Post, pp. 544-546.)</p> <p>Cases cited and approved: Dunn v. State, 127 Tenn., 267; Carney v. McDonald, 57 Tenn., 232.</p> <p>3. CRIMINAL LAW. Record. Bill of exceptions.</p> <p>On motion to remand a record for correction, the supreme court cannot look to the part of the transcript purporting to be a hill of exceptions, marked “Filed” by the clerk of the circuit court, when, the record shows affirmatively that there was then no authority to file a hill of exceptions, since it is not a part of the record. (Post, pp. 544-546.)</p> <p>4. CRIMINAL LAWS. Correction of record. Requisites of order.</p> <p>It is essential to the validity of an order correcting a clerical error, mistake, or omission in a judgment or decree, made by . the court on whose minutes the error occurred, that it show that there was sufficient matter apparent on the record, the papers in the cause, or the entries of the presiding judge to satisfy the court that the error or omission occurred in the .entry of the judgment or decree which it purports to amend. (Post, pp. 544-546.)</p>

<p>1. TELEGRAPHS AND TELEPHONES. Limitation of liability. Persons affected.</p> <p>One for whose benefit a contract for the delivery of a telegram was entered into and whose suit for failure to deliver was based thereon, notwithstanding the telegram was sent -voluntarily by the sender without previous authorization and without the sender’s agency, was bound by a stipulation on the back of the message that the company should not be liable for damages for nondelivery, caused by the negligence of its servants ox-otherwise, beyond $50, unless a greater value was stated in writing when the message was offered and an additional sum paid on such additional value, if valid. (Post, pp. 549-552.)</p> <p>Cases cited and approved: Manier v. Western U. Tel. Co., 94 Tenn., 442; Bailey v. Western U. Tel. Co., 19 Ann. Cas., 900; Anniston Cordage Co. v. Western U. Tel. Co., 30 L. R. A., 1116; Rhyne v. Western U. Tel. Co., 164 N. C., 394; Western U. Tel. ,Co. v. Hearn, 110 Ark., 176; Western U. Tel. Co. v. Alford, 110 Ark., 379; Marr v. Telegraph Co., 85 Tenn., 529; Railroad! v. Smith, 123 Tenn., 678; Hart v. Penn. R. Co., 112 TJ. S., 331; Primrose v. Western U. Tel. Co., 154 U. S., 1; Adams Express Co. v. Croninger, 226 U. S., 491; Western U. Tel. Co. v. Bilisoly, 82 S. E.; 91; Western U. Tel. Co. v. Compton, ^69 S. W., 946; Western U. Tel. Co. v. Commercial Milling Co., 218 U. S., 406.</p> <p>2. TELEGRAPHS AND TELEPHONES. Limitation of liability. Effect. Gross negligence.</p> <p>A provision on the back of a telegraph form that the company will not be liable for damages for mistakes, nondelivery, etc., caused by the negligence of its servants or otherwise, beyond $50, unless a greater value was stated in writing when the message was offered and an additional sum paid on such additional value, if a valid limitation of liability, did not relieve tbe company from liability for tbe gross negligence of its agents and employees, whereby it was not delivered. (Post, pp. 552, 553.)</p> <p>Cases cited and approved: Weld v. Postal Tel. Co., 199 N. Y., 88; Id., 210 N. Y., 59; Halsted v. Postal Tel. Co., 193 N. Y., 293; Kiley v. Western U. Tel. Co., 109 N. Y., 231; Wheeloek v. Postal Tel. Co., 197 Mass., 119; U. S. Tel. Co. v. Gildersleve, 29 Md., 232; Postal Tel. Co. v. Nichols, 159 Fed., 643.</p>

<p>1. PLEADING. Construction. “Etc.”</p> <p>The character “etc.,” as used in a bill by a company’s doctor to recover money taken out of the wages of employees, alleging that the money was collected on representations that the funds collected would go to the company’s doctor and for his benefit in the way of purchasing medicines, providing, hospital equips . ment, etc., imports every agency, devise, construction, and measure tending to, preserve the health . of employees or to alleviate or cure their suffering in case of accidental injury or illness. (Post, pp. 555-557.) :</p> <p>Cases cited and approved: In re Schouler, 134 Mass., 426; High Court I. O. F. v. Schweitzer, 70 Ill. App., 139; Garvin v. State, 81 Tenn., 169.</p> <p>2. PLEADING. Amendment. Construction against repugnancy.</p> <p>An amendment to a pleading will not be held repugnant to the original averment, where a construction can be given which will avoid it. (Post, pp. 557-560.)</p> <p>Acts cited and construed; Acts 1889, ch. 259.</p> <p>3. PHYSICIANS AND SURGEONS. Compensation. Benefit fund. Right to recover. Evidence.</p> <p>In an action by a company’s doctor to recover amounts held out of the wages of employees- for his alleged benefit under Acts 1889, ch. 259, making it unlawful to withhold a portion of wages for the avowed purpose of paying the salary of the company’s doctor without consent of the employee and that the whole amount of such wages so withheld shall be paid to the company’s doctor, evidence held insufficient to show that any fund was withheld for the avowed purpose of paying the company’s doctor rather than maintaining hospitals, nurses, etc., or that any money -was left of the fund. (.Post, pp. 560-565.)</p> <p>Acts cited and construed: Acts 1889, ch. 259.</p>

<p>1. COUNTIES. Political status. “County.”</p> <p>A “county” is but an emanation from tbe State, which does not exercise any power or franchise under any contract between itself and the State, and the State creating it may destroy it. (Post, pp. 569, 570.)</p> <p>Acts cited and construed: Acts 1909, ch. 417; Acts 1913, ch. 272.</p> <p>Cases cited and distinguished: Demoville v. Davidson County, 87 Tenn., 214; Luehrman v. Taxing District, 70 Tenn., 425; Meri-wether v. Garrett, 102 U. S., 511; Redistricting Cases, 111 Tenn;, ' 234. :</p> <p>2. COUNTIES. Local self-government. Diversion of county ’ funds.</p> <p>Priv. Acts 1913, ch. 272, amending Acts 1909, ch. 417, authorizing a county to issue bonds for building a county road, so as to divert the proceeds to other roads in the county and to direGjt . how the fund should be expended, in the absence of express constitutional restraints is not invalid as depriving the county of local self-government" by taking away a delegated power of taxation, since a county, as against the State, -can have no vested rights in its delegated governmental powers. (Post, pp. 569, 570.)</p> <p>3. CONSTITUTIONAL LAW. ‘ Obligation of contracts. Invasion, of private rights. Taxes.■ - Diversion. .</p> <p>Funds acquired and held by a county in the exercise of its governr mental function of taxation are not entitled to constitutional protection, against legislative diversion, while funds or. prop^ erty held in its quasi private • or proprietary right are entitled to such protection. (Post, pp. 570-572.)</p> <p>Cases cited and distinguished: Tippecanoe County v. Lucas, 93 U. S., 108; Worcester v.‘ Street R. Co., 196 U. S., 539; Mt. Hope Cemetery v. Boston, 158 Mass., 509.</p> <p>4. HIGHWAYS. State control.</p> <p>The control of highways is primarily a State duty, to he taken in immediate charge at will through its own agents. (Post, pp. 572-574.)</p> <p>Cases cited and distinguished: Atkins v. Kansas, 191 U. S., 207; Barney y. Keokuk, 94 U. S., 324; O’Connor v. Pittsburg, 18 Pa.r 187; State y. Board of Education, 56 Miss., 518; State ex rel. v. St. Louis County Court, 34 Mo., 546; State v. Brewer, 64 Ala., 287; Lucas v. Tippecanoe County, 44 Ind., 524; Nashville y. Touns, 37 Tenn., 186; State v. Haben, 22 Wis., 660.</p>

<p>1. LOGS AND LOGGING. Deeds. Sale of “interest in land.”</p> <p>A sale of standing timber is a sale of an “interest in land.” (Post, p. 578.)</p> <p>Case cited and approved: Childers v. Coleman, 122 Tenn., 109.</p> <p>2. LOGS AND LOGGING. Sale. Warranty. Action by as- ■ signee. “Covenant running with the land."</p> <p>Where a conveyance of timber contained a warranty of title, the grantee’s assignee could sue for breach of such warranty though his deed contained no warranty; the covenant of warranty being a “covenant running with the land.” (Post, pp. 578, 579.)</p> <p>Cases cited and approved: Williams v. Burg, 77 Tenn., 455; Kenney v. Norton, 57 Tenn., 384; Mette v. Dow, 77 Tenn., 97; Evans v. Sanders, 49 Ky., 291; Redding v. Lamb, 81 Mich, 318; Ernst v. Bartle, 1 Johns Cas., 319; Hoxie v. Finney, 16 Gray (Mass.), 332; Suthon v. Laws, 127 La., 531; Temple v. Shaw, 203 Fed., 974; Hopkins v. Lane, 17 Tenn., 79.</p> <p>3. LOGS AND LOGGING. Sale. Warranty. Breach. Action by assignee. Damages recoverable. . ^</p> <p>An assignee of the grantee in a deed containing a warranty of title can recover, for breach of such warranty, only the damages sustained by him, and not necessarily the whole consideration expressed in the deed to his grantee. (Post, pp. 578, 579.)</p> <p>4. LOGS AND LOGGING. Sale. Warranty. Construction and operation.</p> <p>Where a warranty deed purports to convey distinct and separate interests of the grantors, recoveries on the warranty must be distributed in the same proportion as the several interests conveyed, though the warranty be general in terms. (Post, pp. 578, 579.)</p> <p>5. JUDICIAL áALES. Failure of title. Recovery of price paid. Where the chancellor, subsequent to a chancery sale, dissolved an injunction against the collection of the purchase money and permitted it to be collected on condition that a refunding bond be given, he had jurisdiction, on failure of the title, to order repayment of the fund secured by the refunding bond. (Post, pp. 579, 580.)</p> <p>Case cited and approved: McMurray v. Brasfieid, 57 Tenn., -529.</p>

<p>1. CRIMINAL f_AW. Repeal of statutes. Effect as to offense.</p> <p>Code 1858, sec. 49, providing that the repeal of a statute does not affect any proceeding commenced under it, applies to criminal cases,' and abolishes the common-law rule that the repeal of a statute after an offense 'has been committed under the act annuls the offense. (Post, pp. 585-588.)</p> <p>Acts cited and distinguished: Acts 1911, ch. 44.</p> <p>Code cited and construed: Code 1858, sec. 49.</p> <p>Cases cited and approved: State v. Willis, 130.Tenn., 412; Richardson v. State, 43 Tenn., 122; Roberts v. State, 2 Tenn., 423; Bennett v. State, 10 Tenn., 472.</p> <p>Cases cited and distinguished: Hill v. State, 73 Tenn., 730; State v. Nashville Bank, 84 Tenn., 118; Wallace v. Goodlett, 104 Tenn., 680; Shelby County v. Railroad Co., 84 Tenn., 408; Railway & Light Co. v. Norvell, 122 Tenn., 618; Standard Oil Co. v. State, 117 Tenn., 650.</p> <p>2. BANKS AND BANKING. Receiving deposit while insolvent. Testimony of receiver.</p> <p>In a prosecution for receiving a deposit, knowing the bank to be insolvent, testimony of the receiver of the bank on the issue of insolvency that he was acquainted with the value of the assets at the time of the deposit is competent, where he showed that the valuation was in accordance with his best judgment, the weight of the evidence depending on his means of knowledge. (Post, p. 588.)</p> <p>3. CRIMINAL LAW. Appeal. Estoppel to allege error.</p> <p>A party calling out evidence on cross-examination may not assign error thereon. (Post, pp. 588, 589.)</p> <p>4. BANKS AND BANKING. Receiving deposit while insolvent. Evidence. Subsequent condition.</p> <p>In a prosecution for receiving a deposit knowing the hank to be insolvent evidence on the issue of insolvency as to the value of the assets at a subsequent time is competent if the period concerning which inquiry is made is sufficiently near the date of deposit to make it improbable that any material change in the solvency of the assets has occurred. (Post, pp. 589, 590.)</p> <p>5. CRIMINAL LAW. Evidence. Res inter alios acta.</p> <p>In a prosecution for receiving a deposit knowing the bank to be insolvent, on the issue of insolvency, evidence that at a meeting of bankers relative to loaning the bank money to tide it over, they refused the loan, is inadmissible, defendant not being present. (Post, pp. 590, 591.)</p> <p>6. CRÍMINAL LAW. Evidence. Hearsay.</p> <p>In a prosecution for receiving a deposit knowing the bank to be insolvent, testimony of a witness as to the insolvency of the company derived solely from what was said at a meeting of bankers is inadmissible as hearsay. (Post, pp. 591, 592.)</p> <p>7. BANKS AND BANKING. Receiving deposit while insolvent. Knowledge of officer having control, etc.</p> <p>A person having the control or management of a bank, within the statute making it a felony for any such person to receive a deposit knowing the bank to be insolvent, is under duty to keep' up with the assets and at all times to know their value as far as practicable by the exercise of due diligence. (Post, pp. 592, 593.)</p> <p>8. BANKS AND BANKING. 'Receiving deposit while insolvent. “Insolvent.”</p> <p>Under the statute making it a felony to receive a deposit knowing the bank to be insolvent, a bank is “insolvent” when its assets are less in value than the amount of its deposits and debts, exclusive of the capital stock, surplus, and undivided profits, allowing a reasonable time for the conversion of the assets into money. (Post, pp. 593-596.) Cases cited and approved: Ellis v. State, 138 Wis., 513; Fleming v. State, 62 Tex. Cr. R., 653.</p> <p>9.BANKS AND BANKING. Receiving deposit while insolvent. Evidence. Good faith.</p> <p>In a prosecution for receiving a deposit knowing the bank to be insolvent, it was competent for defendant to show on the issue of good faith what arrangements be bad made for money to finance the bank on account of the stringency of the money market and that, when an insolvency bill was filed against the bank, be protested against it. (Post, pp. 596, 597.)</p> <p>10. CRIMINAL LAW. Reversal. Right of defendant to discharge.</p> <p>Where, in a prosecution for an offense committed before the passage of the indeterminate sentence act (Laws -1913, cb. 8), which by express terms only applied to offenses thereafter committed, the jury were erroneously told not to fix punishment, and a verdict simply of guilty was rendered, the case will be reversed for a new trial, but defendant is not entitled to his discharge. (Post, pp. 597, 598.)</p> <p>Acts cited and construed: Acts 1913, ch. 8.</p> <p>Cases cited and approved: State v. Ragsdale, 78 Tenn., 671; Mayfield v. State, 101 Tenn., 673; Fitts v. State, 102 Tenn., 141; Waddle v. State, 112 Tenn., 556.</p> <p>11.' CRIMINAL LAW. Arrest of judgment. Defect in verdict.</p> <p>Since arrest of judgment is proper only for some defect in the pleadings not cured by judgment, that the jury were erroneously told not to fix judgment when the indeterminate sentence act did not apply is not ground for arrest of judgment. (Post, pp. 598, 599.)</p> <p>Case cited and approved: Green v. State, 129 Tenn., 386.</p> <p>12. CRIMINAL LAW. Change of venue. Prejudice.</p> <p>In a prosecution for receiving a deposit knowing the bank to be iisolvent, affidavits showing that there were 5,000 or 6,000 depositors residing in the county, and that great prejudice existed against the defendant among the depositors and their friends comprising perhaps 20,000 people, and that defendant ■was subject of hitter comment in the newspapers, were sufficient to compel a change of venue. (Post, pp. 599, 600.)</p>

<p>1. GIFTS. Rescission for fraud. Laches.</p> <p>The right to rescind a gift for fraudulent representations as to performance of the donor’s conditions must he promptly asserted upon discovery of the fraud, a failure so to do amounting to an affirmance, and the declaration of intent to rescind must be prompt, unconditional, and unevasive and consistently adhered to, and hence, where the donor of a certain amount to a college on condition that it raise a certain amount by subscription, ¡knew in 1909 that it had fraudulently represented performance of the condition, his bill to rescind the gift for such fraud not brought until 1913, was too late. (Post, pp. 606-608.)</p> <p>Caces cited and approved: Precious Blood Society v. Elsythe, 102 Tenn., 40; Landreth Co. v. Schevenel, 102 Tenn., 486; Wood-folk v. Marley, 98 Tenn., 467; Ruohs v. Bank, 94 Tenn., 57; Street Railway Co. v. Giardino, 116 Tenn., 368; Latrobe v. Dietrich, 114 Md., 8; Angel v. Columbia Canal Co., 69 Wash., 550; Masson v. Bovert, 1 Denio, 69; M. W. A. v. Vincent, 40 Ind. App., 711; Kennedy v. Bender, 140 S. W., 491; Blank v. Aronson, 187 Fed., 241; Richardson v. Lowe, 149 Fed., 625; Grymes v. Sanders, 93 U. S., 55; Wilbur v. Flood, 16 Mich., 40; Cox v. Montgomery, 36 Ill., 396; Prewitt v. Bunch, 101 Tenn., 723.</p> <p>2. GIFTS. Fraud of donee. Ratification.</p> <p>Where a donor' of a certain amount to a college on condition that it raise á certain amount by subscription after knowledge of the donee’s fraudulent representation as to the performance of’such condition, allowed the gift to remain uncancelled at the solicitation of the trustees of an institution with which the college had been consolidated, refrained from bringing suit, and imposed certain other conditions on the consolidated institution after consultation with the original donee, he thereby abandoned his purpose to rescind, and ratified the gift. (Post, pp, 606-608.)</p> <p>3. PLEADING. Fact or conclusion.</p> <p>In a bill to rescind a gift on the ground of the donee’s fraudulent representation as to the performance of conditions imposed on the gift, an allegation that the donee was not injured by the delay in bringing suit was a mere conclusion, where the particular facts were not stated, on which the court could pass, and would not be considered. (Post, p. 608.)</p> <p>4. GIFTS. Rescission for fraud of donee. injury to donee.</p> <p>Where rescission of a gift is sought for the fraudulent representations of the donee as to its performance of a condition, the fact that the donee was not injured by the donor’s delay in bringing suit is immaterial. (Post, p. 608.)</p>

<p>EVIDENCE. Copy of deed. Presumption. Seal.</p> <p>Where a duly certified copy of a deed offered in evidence purports to have been executed and acknowledged in another State before a commissioner of deeds qualified under the laws of this State to take such acknowledgments and contains nothing' to represent the commissioner’s seal, but contains the words “in witness whereof I have hereunto . . . affixed' my official seal,” followed by due official signature, it will be presumed that the seal was impressed on the original certificate.</p> <p>Cases cited and approved: Coffey v. Hendricks, 66 Tex., 676; Mitchner v. Holmes, 117 Mo., 186; Summer v. Mitchell, 29 Fla., 179.</p>

<p>VENDOR AND PURCHASER. Option. Breach. Right of action. Accrual. “Final termination.”</p> <p>Under Shannon’s Code, sec. 4446, authorizing commencement of a new suit on the grounds relied on in the first suit within one year after dismissal of the first, there is no “final termina.tion” of a voluntarily dismissed ejectment suit until one year after such dismissal, within the meaning of on option contract binding defendant to convey timber land to plaintiff within ninety days after final termination of the ejectment suit; and hence an action brought May 3, 1913, after dismissal of the ejectment suit on February 11, 1913, for breach of the option contract executed September 20, 1912, was premature.</p> <p>Code cited and construed: See. 4446 (S.); sec. 2755 (1857-58).</p> <p>Cases cited and approved: Iron & Coal Co. v. Broyles, 95 Tenn., 612; Hooper v. Railroad, 106 Tenn., 31.</p>

<p>1. CORPORATIONS. Use of funds for purchase of stock. Liability.</p> <p>Where the president of a corporation purchased stock from a stockholder and resold it the next day at the same figure, the fact that he used the funds of the corporation in paying the stockholder did not create a liability against the stockholder in favor of creditors of the corporation, on it becoming insolvent. (Post, pp. 618, 619.)</p> <p>Cases cited and approved: Clark v. Clark Machinery Co., 151 Mich., 416.</p> <p>2. BANKS AND BANKING. Purchase of corporate stock. Statutory provisions.</p> <p>Under Shannon’s Code, sec. 3232, providing that no part of the capital stock of any bank shall be withdrawn until its liabilities are satisfied, and section 3235, prohibiting any bank buying in its own capital stock, a sale by a stockholder in a bank of his stock to the bank is invalid, and the receiver of the bank, on its becoming insolvent, may recover of the stockholder the amount paid by the bank. (Post, pp. 619, 620.)</p> <p>Code cited and construed: Sec. 3235 (S.).</p> <p>Acts cited and construed: Acts 1859-60, eh. 27, sec. 17.</p> <p>Cases cited and approved: Burrows v. Niblack, 84 Fed., Ill; Tait v. Pigott, 32 Wash., 344; Union Trust & Savings Bank v. Amery, 72 Wash., 648; Fitzpatrick v. McGregor, 133 Ga., 332; Hall v. Henderson, 126 Ala., 449.</p> <p>3. BANKS AND BANKING. Purchase of corporate stock. Statutory provisions.</p> <p>A stockholder of a bank, who had resigned as director, sold his stock to the president, who stated that he would sell the samé to a person named. The president used the funds of the hank to purchase the stock, and the hank gaye to the stockholder credit for the proceeds, and issued to him a duplicate deposit slip. The certificate of stock was carried in a drawer of the hank as a cash item. The stockholder understood that he dealt with the president as an individual, and that the consideration came from him through the hank, and knew nothing of the hank acquiring the stock. Held, that the stockholder, on the hank becoming insolvent, was not liable to the hank for the proceeds of the sale. (Post, pp. 620-625.)</p> <p>Cases cited and distinguished: Crandall v. Lincoln, 52 Conn., 73; Johnson v. Laflin, 5 Dill., 65.</p> <p>Cases cited and approved: German Savings Bank v. Wulfekuhler, 19 Kan., 60; Grady’s Case, 1 De G. J. & S., 448; Nieol’s Case, 3 De G. & J., 387; Columbian Bank’s Estate, 147 Pa. St., 422; Corn v. Skillern, 75 Ark., 148; Bargate v. Shorthridge, 5 H. L. Cas., 297; Taylor v. Hughes, 2 Jones & L., 24; Ex Parte Bagge, .13 Beav., 162; Wallace v. Bank, 89 Tenn., 630.</p>

<p>1. TAXATION. Exemptions. Municipal property. “Public purpose.”</p> <p>Under Const., art. 2, sec. 28, authorizing the legislature to exempt from taxation such property as may he held by the State, counties, cities, or towns and used exclusively for public or corporate purposes, and Acts 1907, ch. 602, sec. 1, exempting from taxation all property of a city that is used exclusively for public or municipal corporation purposes, that portion of a municipal waterworks plant, which was exclusively used to supply for profit to the owning city water to another city within whose limits it is located, is not used for a “public purpose,” and is therefore taxable by the other city. (Post, pp. 630-634.)</p> <p>Constitution cited and construed: Art. 2, sec. 28.</p> <p>Acts cited and construed:' Acts 1907, eh. 602, sec. 1; Acts 1907, ch. 207; Acts 190SÍ, eh. 153; Acts 1909, ch. 344.</p> <p>Cases cited and approved: Waylánd v. Middlesex County, 4 Gray, 500; Jackson County v. State, 155 Ind., 604; Farwell v. City of Seattle, 43 Wash., 141; Rehill v. Bast Newark, 73 N. J. Law, 220; Omaha Water Co. v. Omaha, 162 Fed., 225.</p> <p>Cases cited and distinguished: Dyer v. Newport, 123 Ky., 203; Com. v. Covington, 128 Ky., 36; South Pasadena v. Pasadena Land & Water Co., 152 Cal., 579.</p> <p>3. TAXATION. Exemptions. Municipal property. “Public purpose.”</p> <p>The fact that the furnishing of water to the inhabitants of the city is a “public purpose” of that city does not make it, either directly or incidentally, a “public purpose” of the city owning the system. (Post, pp. 634-642.)</p> <p>Cases cited and approved: West Hartford v. Board of Water Comrs., 44 Conn., 360; People ex rel. v. Assessors of Brooklyn, 111 N. Y., 505; Smith v. Nashville, 88 Tenn., 464.</p> <p>Cases cited and distinguished: Stiles v. Newport, 76 Vt., 154; Swanton v. Highgate, 81 Vt., 152; City of Omaha v. Douglas County, 148 N. W., 938.</p>

<p>1. TRADE UNIONS. Validity of labor union.</p> <p>A labor union organized for the purposes of regulating tbe wages of its members and protecting them in tbeir contracts and tbe promotion of tbeir interests as laboring people is lawful. (Post, p. 646.)</p> <p>Cases cited and approved: Rohlf v. Kasemeier,- 140 Iowa, 182; Lobse Patent Door Co. v. Fuelle, 215 Mo., 421; Beck v. Protective Union, 118 Micb., 497; Thomas v. Cincinnati, etc., R. Co., 62 Fed., 803; Jacobs v. Coben, 183 N. Y., 207; Mills v. U. S. Printing Co., 99 App. Div., 605.</p> <p>2. TRADE UNIONS. Fixing wages. Failure to notify contractor. Recovery of damages.</p> <p>Where a labor union bad absolute control over tbe labor market in respect of tbe services of bricklayers, fixed the term of employment and tbe Wages at tbe beginning of each calendar year, and tbe bricklayers all agreed thereto by. becoming members of tbe union, a contractor, notified of tbe rate by tbe union, who employs bricklayers individually at wages fixed by tbe union, may recover from tbe union tbe loss occasioned by continuing to pay tbe men at that rate after tbe union had lowered tbe rate, but bad not notified tbe contractor. (Post, pp. 646-648.)</p> <p>3. PLEADING. Speaking demurrer. Action against labor union.</p> <p>In an action for loss occasioned by a contractor became defendant, a labor union, lowered tbe rate of wages without notifying tbe contractor, a demurrer to tbe complaint that such injury as occurred was necessarily suffered not by tbe contractor, but by tbe pefsons with whom be contracted for tbe erection of the buildings, is a speaking demurrer, and hence bad. (Post, p. 648.)</p> <p>4. INJUNCTION. Demurrer.</p> <p>In a suit to recover the loss occasioned by a contractor because defendant, a labor union, lowered the rate of wages without notifying the contractor, a demurrer will not lie to that part of the bill asking an injunction against the union’s withdrawing certain funds it had in the bank; since the proper remedy is motion to dissolve. (Post, p. 649.)</p> <p>6. TRADE UNIONS. Right to sue. Pleading.</p> <p>An unincorporated labor union may not, as such, be made a party, and, if a few of the members are made parties, it should be alleged in the bill that they were made parties as representing the others of the same class. (Post, p. 649.)</p> <p>Cases cited and approved: Pickett v. Walsh, 192 Mass., 572; Brown v. Brown, 86 Tenn., 277; Fidelity & Guaranty Co. v. Rainey, 120 Tenn., 357.</p> <p>BUCHANAN, X, dissents.</p>

<p>1. LANDLORD AND TENANT. Forfeiture of lease. Equitable estoppel.</p> <p>Where a lease prohibited assignment, and the corporate lessee upon dividing its assets assigned the lease to stockholders, who thereafter carried on the business, making a studied effort to prevent the public from realizing that the business was no longer that of the original corporation, the lessors who did not know of the change, or of the assignment, are not estopped to claim a forfeiture because they received checks in payment of the rent, signed by the successor of • the original lessee. (Post, pp. 652-657.)</p> <p>2. LANDLORD AND TENANT. . Leases. Stipulations.</p> <p>A stipulation in a lease that, should the lessor rightfully seeking to recover possession, be obstructed, and litigation ensue, the lessee should pay the lessor a reasonable attorney’s fee, is valid. (Post, pp. 657-659.)</p> <p>Cases cited and approved: Richards v. Bestor, 90 Ala., 353; Talbott v. English, 156 Ind., 300.</p> <p>3. LANDLORD AND TENANT. Validity of (ease. Estoppel to deny.</p> <p>Where the lessees asserted that the lessors were bound by a lease, although executed by their agent, and the lessors asserted the negative, the lessees are estopped to deny the validity of the lease and the right of the lessors, who though entitled to possession, were obstructed, to recover a reasonable attorney’s fee in accordance with a condition in the lease. (Post, pp. 659, 660.)</p> <p>4. INJUNCTION. Bond. Liability of surety. ■</p> <p>Where a lessor, though entitled to possession, was enjoined from continuing an action of unlawful entry and de-tainer, the surety on the injunction bond is liable for a reasonable attorney’s fee as part of the damages caused by the injunction, where the lease provided that if the lessor was wrongfully obstructed in a rightful attempt to retain possession, the lessee should pay a reasonable attorney’s fee. (Post, p. 660.)</p>

<p>1. HOMICIDE. Prosecution. Evidence.'</p> <p>Evidence held to warrant a conviction of assault with intent to commit voluntary manslaughter. (Post, pp. 665, 666.)</p> <p>2. CRIMINAL LAW. Evidence. Admissibility.</p> <p>In a prosecution for assault with intent to commit murder, evidence of the number and age of accused’s children was properly excluded. (Post, p. 666.)</p> <p>3. HOMICIDE. Evidence. Admissibility.</p> <p>Where the prosecuting witness, who was shot, accompanied another onto accused’s premises, evidence that accused had a grudge and wished to kill the witness’ companion is admissible. (Post. p. 666.)</p> <p>4. CRIMINAL LAW. \ Appeal. Presentation of grounds of review in court below. Necessity.</p> <p>Errors in the charge, not pointed out by the motion for new trial, cannot he reviewed. (Post, pp. 666-668.)</p> <p>5. CRIMINAL LAW. Appeal. Sufficient presentation of errors.</p> <p>A ground in a motion for new trial that the verdict should he set aside because of the jury’s misconduct is too general to present that question for review on appeal. (Post, p. 668.)</p> <p>6. CRIMINAL LAW. Appeal. Bill of exceptions.</p> <p>Where evidence heard on the motion for new trial is not preserved in a hill of exceptions, the refusal of the motion cannot be reviewed. (Post, p. 668.)</p> <p>Case cited and approved: Odeneal v. State, 128 Tenn., 60/</p>

<p>1. CERTIORARI. Petition. Stating case.</p> <p>The petition for certiorari satisfies the rules of the supreme court, as to stating the case, where it adopts, as a part of it, a brief prepared for such court fully stating the case. (Post, pp. 671-676.)</p> <p>2. TRADE-MARKS AND TRADE-NAMES. Succession.</p> <p>The right to use the names “Whitney,” “Whitney Car Wheel Works,” and “A. Whitney & Sons” was not disposed of when the Whitneys suspended business, the assets and business of the concern not passing to any one person, but there being merely a passing to various persons of considerable of the assets thereof under levy thereon. (Post, pp. 676-678.)</p> <p>Case cited and approved: Hazelton Boiler Co. v. Hazelton Tripod Boiler Co., 142 Ill., 494.</p> <p>3. TRADE-MARKS AND TRADE-NAMES. Expiration of patent. Right to use manufacturer's name.</p> <p>Where the Whitneys, manufacturing a car wheel under the Faugh t patent, designated and sold it as the Faught wheel, and not as the Whitney wheel, the public did not, on expiration of the patent, acquire the right to use the name “Whitney” in manufacture of the wheel. (Post, pp. 678, 680.)</p> <p>•Cases cited and approved: Singer Mfg. Co. v. June Mfg. Co., 163 TJ. S., 169; Holzapfel’s Compositions Co. v. Am. Com. Co., 183 II. S., 1; Simmons Medicine Co. v. Mansfield Drug Co., 93 Tenn., 84; Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S., 537.</p> <p>4. TRADE-MARKS AND TRADE-NAMES. Acquisition. Production.</p> <p>The product of A. Whitney & Sons and Whitney Car Wheel Works having for half a century been known to the trade as Whitney wheels, indicating. the source of their manufacture, they andi their successors acquired a right to use the name “Whitney”' in advertising car wheels, which will he protected from unfair infringement. (Post, pp. 680, 681.)</p> <p>5. ESTOPPEL. Acts for consideration.</p> <p>One who, for a consideration, signs a contract by which another assigns right to use trade names, and likewise one claiming .under him, is estopped to question the title of the assignor and. assignee. (Post, pp. 681, 682.)</p> <p>Cases cited and approved: Anderson v. Akard, 83 Tenn., 182; Berrigan v. Fleming, 70 Tenn., 271; Friedenwald v. Mullan, 5T Tenn., 226; Fort v. Coker, 68 Tenn., 579.</p> <p>6. TRADE-MARKS AND TRADE-NAMES. Family name. Right of employer.</p> <p>As against a manufacturer of car wheels, having the right to-designate them as “Whitney” wheels, a rival manufacturer, merely because employing Asa W. Whitney, who never manufactured such wheels, hut was merely an employee and relative-of manufacturers thereof, has no right to advertise its wheels-as the “Whitney” or the “Asa W. Whitney” wheels, but merely the fact of its employment of such person, and facts in relation to him. (Post, pp. 682-693.)</p> <p>Cases cited and approved: Holloway v. Holloway, 13 Beav., 209; Burgess v. Burgess, De G. M. & G-. Co., 896-903; Brown Chemical' Co. v. Meyer, 139 U. S., 640; Meneely v. Meneely, 62 N. Y., 427; Robinson v. Storm, 103 Tenn., 40; Donnell v. Safe Co., 208 U. S., 267; Safe Co. v. Hall’s Safe Co., 208 U. S., 664; Aetna Mill & Elevator Co. v. Kramer Milling Co., 28 L. R. A., 934; Stone-braker v. Stonebraker, 33 Md., 252; Morton v. Morton, 1 L. R. A. (N. S.), 660; Tussaud v. Tussaud, 44 Ch. Div., 678; Burrow v.. Marceau, 124 App. Div., 665.</p>

<p>STATUTES. Enactment. “Final judgment.”</p> <p>Const., art. 2, sec. 18, provides that no bill shall become a law until it shall have been read and passed on three different days in each house, and on its final passage shall have received the assent of a majority of all the members to which the house shall be entitled. The senate of the State of Tennessee is composed of thirty-three members. Acts 1907, ch. 540, sec. 8, originating’ in the house, was amended by the senate, and, as amended, was passed by a constitutional majority. The matter was then referred to a conference committee; the house having refused to concur in the amendment. The senate first refused to make the conference committee report the action of that body, but, on motion to reconsider, on which the vote stood sixteen to fourteen, the action of the committee was made the action of the senate. Held, that the expression “final passage” means the actual final vote necessary to a bill becoming a law, regardless of parliamentary fictions; and hence act of 1907, the amendments added by the senate having been material, was not adopted in accordance with the constitution, because not receiving a majority on its final passage..</p> <p>Constitution cited and construed: Art. 2, sec. 18.</p> <p>Acts cited and construed: Acts 1907, ch. 640, sec. 8.</p> <p>Cases cited and approved: Board of Revenue v. Crow, 141 Ala., 12.6; Rogers v. State, 72 Ark., 565; Glenn v. Wray, 126 N. C., 730; Cohn v. Kingsley, 5 Idaho, 441; State v. Drab elle, 261 Mo., 515; Norman v. Kentucky Board, etc., 93 Ky., 537.</p> <p>Case cited and distinguished: Norman v. Kentucky Board, 93 Ky., 537.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson Connty to the Conrt of Civil Appeals, and hy certiorari from the Court of Civil Appeals to the Supreme Court. t —John Allis on, Chancellor.</p>