131 Tenn.

Volume 131 — Tennessee Reports

66 opinions

131 Tenn. 1Smith v. Carter (1914)
PROM WASHINGTON. Appeal from the Chancery Court of Washington County. — C. J. St. John, Special Chancellor.
131 Tenn. 11East Tennessee Coal Co. v. Taylor (1914)
1. DEEDS. Description. Certainty. A deed describing tbe land as 5,000 acres, entry No. 1951, grant No. 21902, in the name of S., conveys grant No. 21903, where the only entry that agreed with 5,000 acres, entry No. 1951,. in the name of S., was grant No. 21903, and grant No. 21902. was based on entry No. 1984. (Post, pp. 12, 13.) 2. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Deed by assignee. Certainty. A deed reciting that it was made individually and as assignee,, and that an assignment was made on a specified day, and-signed individually and as assignee, is too indefinite to show that the grantor was an assignee for benefit of creditors, entitled to sell the property. (Post, pp. 14, 15.) 3. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Creation. Names of creditors. An assignment for benefit of all creditors may be created, without specifying their names. (Post, pp. 15, 16.) Cases cited and approved: Williams v. Otey, 27 Tenn., 563,' Wooldridge v. Bank, 33 Tenn., 298; Williams v. Neil, 51 Tenn., 282; Hughes v. Brown, 88 Tenn., 578; Realty Co. v. Andrews, 128 Tenn., 725. 4. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Sale of property by assignee. An assignee for benefit of creditors may sell the property assigned, though such power is not in terms granted, since sitch power would be implied. (Post, pp. 15, 16.) 5. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Assignee. Power of-successor. £. successor of a deceased assignee for benefit of creditors takes the same powers as his predecessor had under the instrument. (Post, pp. 15, 16.) 6. ADVERSE POSSESSION. Deeds. Exclusion clause. Burden of proof. Though, a deed has an exclusion clause, it will be treated as covering all the lands, within its bounds, where the party claiming adversely fails to sustain the burden of showing the bounds of the excluded land. {Post, pp. 16, 17.) Case cited and approved: Iron & Coal Co. v. Schwoon, 124 Tenn., 176.
131 Tenn. 18Willingham v. Potter (1914)
ACKNOWLEDGMENT. Certificate of acknowledgment. Sufficiency. A certificate of acknowledgment to a deed, which recites that the acknowledger was personally known to the officer, and that she acknowledged the foregoing deed to be her act and deed for the purposes therein contained, is, when considered with the deed, sufficient, though it omits the statutory words “the within named bargainor.” Cases cited and approved: Watkins v. Hall, 57 Tex., 1; Schleicher v. Gatlin, 85 Tex., 270; Cavender v. Smith, 5 Iowa, 157; Bell v. Evans, 10 Iowa, 353; Davis v. Bogle, 58 Tenn., 315.
131 Tenn. 21Knight v. Cooley (1914)
1, APPEAL AND ERROR. Questions reviewable. Findings of court of civil appeals. Conclusiveness. A finding of the chancellor and approved by the court of civil appeals is conclusive on the supreme court on certiorari. (Post, p. 22.) Cases cited and approved: State, ex rel., v. Lee, 124 Tenn., 385. 2. APPEAL AND ERROR. Questions reviewable. Assignment of Error. Certiorari. The supreme court, on certiorari to review the action of the court of civil appeals refusing to pass on a question and make findings of fact thereon, will on error being assigned to the refusal, and to the effect that the record justifies a finding, look to the record and determine what the fact is. (Post, pp. 22, 23.)
131 Tenn. 24Peevey v. Buchanan (1914)
1. APPEAL AND ERROR. Review. Facts. Decision of Intermediate court. The concurrence of the chancellor and the court of civil appeals as to a question of fact does not bind the supreme court, where the court of civil appeals took an erroneous view of the burden of proof. {Post, pp. 28, 29.) Case cited and approved: State, ex rel., v. Lee, 124 Tenn., 385. 2. ALTERATION OF INSTRUMENTS. Notes. Burden of proof. In an action on a note, where the defendants interposed a special plea of non est factum on the ground of alteration, the burden of proof is on the defendants if the alteration does not show as such on the face of the paper. {Post, pp. 29, 30.) Laws cited and construed: Laws 1899, ch. 94. Cases cited and approved: Carter v. Turner, 37 Tenn., 179; Harding v. Heirs and Creditors of Waters, 74 Tenn., 324; Farns-worth v. Sharp, 36 Tenn., 55; Holland v. Locke, 2 Shan. Tenn. Cas., 28; Organ v. Allison, 68 Tenn., 459. 3. ALTERATION OF INSTRUMENTS. Notes. Burden of proof. Where a printed clause in a note stating that interest was payable at eight per cent, had been stricken out and provisions calling for a similar rate had been inserted, one by interlineation and the other at the end of a clause binding the separate estate of the wife, the appearance of the note is so suspicious that the burden is on the one relying thereon to show that it had not been materially altered after execution. {Post, pp. 29, 30.) 4. ALTERATION OF INSTRUMENTS. Notes. Burden of proof. Statute. Negotiable Instruments Law (Laws 18,99, ch. 94), sec. 124, providing that where a negotiable instrument is materially altered without the consent of all parties liable it is avoided except as against a party assenting to the alteration and subsequent in-dorsers, hut that a holder in due course not a party to the alteration may enforce payment according to its original terms, and section 125, specifying what are material alterations, including a change in the interest rate, do not change the rule that where the appearance of a note is suspicious the burden is upon those relying thereon to show that it has not been altered after execution. (Post, pp. 30, 31.) Cases cited and approved: Stephens v. Davis,' 85 Tenn., 271; Moss v. Maddux, 108 Tenn., 405; McDaniel v. Whitsett, 96 Tenn., 10; McVey v. Ely, 73 Tenn., 438; Taylor v. Taylor and Bloodworth, 80 Tenn., 714; Deering Harvester Co. v. White, 110 Tenn., 132. 5. ALTERATION OF INSTRUMENTS. Notes. Effect. Notwithstanding the adoption of Negotiable Instruments Law, see. 124, providing that an instrument which has been materially altered but is in the hands of a holder in due course may be enforced by him according to its original terms, a note which has been materially altered so as to require payment of interest is void in the hands of the original payee, and no action can be maintained thereon. (Post, pp. 30, 31.)
131 Tenn. 32Hickman v. Booth (1914)
FIXTURES. Nature of “fixture.” Telephone instrument. ■A telephone instrument installed in a house in the ordinary manner is not a “fixture,” and does not pass with the conveyance of the land, under the rule that only those chattels are “fixtures” which are so attached to the freehold that from the intention of the parties and the uses to which the chattels are put the annexation is presumed to he permanent or a removal would cause serious injury to the freehold. Cases cited and approved: Johnson v. Patterson, 81 Tenn., 626; De Graffenreid v. Scruggs, 23 Tenn., 451; Union Bank v. Wolfe, 114 Tenn., 255; Cannon v. Hare, 1 Tenn. Ch., 23.
131 Tenn. 35Town of Gainesboro v. Gore (1914)
MUNICIPAL CORPORATIONS. Governmental duties. Regulation of streets. A town is not liable for the death of a mare, resulting from its-attempts to get away from a horse that was loose on the streets, since the duty to regulate the streets and to prevent animals from running loose thereon is a governmental duty, and not a corporate duty, as is the duty to keep the streets in a' safe condition. Cases cited and approved: Addington v. Littleton, 50 Colo., 623; Van Cleef v. Chicago, 240 Ill., 318; Levy v. New York, 1 Sandf. (N. Y.), 465; Rivers v. Augusta, 65 Ga., 376; Chattanooga v. Reid, 103 Tenn., 616.
131 Tenn. 38York v. Byars (1914)
1. EXECUTION. Limitation of actions. Setting aside sale. Where, though land worth more. than $1,000 was sold under execution without setting apart the homestead as required by law, the execution debtor lived for thirteen years thereafter, and brought no suit to avoid the sale for this irregularity, the irregularity was not available to his heirs in ejectment by a party claiming under the sale, and a cross-action to set aside the sale was barred by Shannon’s Code, sec. 4473, providing that actions not expressly provided for shall be brought within ten years. (Post, pp. 40, 41.) Code cited and construed: Sec. 4473 (S.). Case cited and approved: Delk v. Yelton, 103 Tenn., 476. 2. EXECUTION. Sheriff’s deed as prima facie evidence of facts recited. Under Acts 1901, ch. 145, secs. 1, 2, providing that deeds by a sheriff to land sold by a former sheriff shall be prima jade evidence of the truth of all statements and recitals contained therein, such a sheriff’s deed, reciting that such notice was given, was prima jade evidence that notice was given under Shannon’s Code, sec. 4770, providing, relative to execution sales, that if the defendant is in actual possession and occupation, the officer having the execution shall, at lease twenty days before the sale, serve notice of the levy of the execution and the time and place of sale. (Post, pp. 41-43.) Code cited and construed: Sec. 4770 (S.). Acts cited and construed: Acts 1901, ch. 145; Acts 1907, ch. 334. Cases cited and approved: Camp v. Riddle, 128 Tenn., 294; Hill v. Moore, 121 Tenn., 182; Farquhar v. Toney, 24 Tenn., 502. 3. EXECUTION. Sale. Selling different parcels In one body. Where an execution debtor owned three small tracts of land acquired from different persons by different deeds which were separately fenced and separated from each other by roads, and each of which had upon it a dwelling house and other buildings, and was occupied by a different person, the sale of the three tracts in one body under an execution was void. (Post, pp. 43-46.) Cases cited and approved: Winters & Cross v. Burford, 46 Tenn., 328; Mays v. Wherry, 61 Tenn., 133; Cook, Settle & Co. v. Walters, 70 Tenn., 116; Ballard v. Scruggs, 90 Tenn., 585. Cases cited and distinguished: Stephens v. Taylor, 74 Tenn., 307; Prigmore v. Shelton, 77 Tenn., 563; Brien v. Robinson, 102 Tenn., 157.
131 Tenn. 47Chandler v. White Oak Creek Lumber Co. (1914)
1. JUDGMENT. Conclusiveness. Persons concluded. Representative capacity. To be conclusive in a subsequent action, a former judgment must have been rendered in an action in which all the parties to the subsequent action were parties, and in the' same capacity, since to allow a trustee or other representative to be estopped by a judgment rendered against him individually would be to allow the interests he represented to be concluded without having been represented in the former action. (Post, pp. 49, 50.) Code cited and construed; Secs. 4994, 5000 (S.). Case cited and approved: Melton v. Pace, 103 Tenn., 484. 2. JUDGMENT. Conclusiveness. Persons concluded. Trustee. The judgment rendered in a former suit against one individually and not as trustee, and also against all beneficiaries of the trust of which he was trustee, is conclusive against the trustee in his representative capacity. (Post, pp. 50, 63.) Cases cited and approved: Rathbone v. Hooney, 58 N. Y., 463; Jennings v. Jones, 2 Redf. Sur., 95; Manigault v. Holmes, 1 Bail. Eq. (S. C.), 283; Colton v. Onderdonk, 6(9 Cal., 155; Corcoran v. Chesapeake Co., 94 TT. S., 741; Follansbee v. Walker, 74 Pa., 306.
131 Tenn. 54Fitzpatrick v. Fitzpatrick (1914)
1. DIVORCE: Pleadings. Complaint. Verification. Statute. Where the complaint was otherwise sufficient, hut for divorce the verification required by Shannon’s Code, sec. 4206, prescribing verification of divorce complaints by affidavit making certain statements, was defective in omitting the word “levity,” and in substituting the word “purposes” in place of the required “causes,” the defects were not fatal, but the chancellor should have allowed their amendment. (Post; pp. 56, 57.) Code cited and construed: Secs. 4203, 4206 (S.). Case cited and distinguished: De Armond v. De'Armond, 92 Tenn., 40. Case cited and approved: Hackney v. Hackney, 28 Tenn., 450. 2. DIVORCE. Pleadings. Amendment of affidavit verifying complaint. Time. In view of the State’s liberal rules as to amendment of pleadings, an offered amendment to cure a verbally defective affidavit verifying a complaint for divorce was not too late, when offered during the trial of the issue raised by the plea in abatement; the defendant not having been prejudiced by the delay. (Post, p. 57.) 3. DIVORCE. Statute. Two years’ residence as prerequisite to right of complainant to avail hersejf of respondent’s acts in another State. Although complainant in divorce has not resided in this State for two years, if her complaint sets out sufficient facts as having taken place in this State to justify a decree by themselves, the complaint is good; but to take advantage of acts occurring in another State she must have resided here for the two years next preceding the institution of her action. (Post, pp. 57-63.) Case cited and distinguished: Carter v. Carter, 113 Tenn., 509. 4. DIVORCE. Pleadings. Allegations of complaint. Sufficiency-under statute. Allegations in a complaint for divorce that defendant became drunk, that he cursed his wife and her family, that he left her at the home of her parents, saying that he should not return, being sober at the time, that he accused complainant of lying when she told him that she had opened a letter of his only by mistake, and threatened to report her to the postal authorities, that he finally left complainant at her parents’ home in Nashville, and returned to his own in Philadelphia, and had not returned, that he had contributed nothing to the support of complainant and their child, and that he had published in the Nashville papers notices that he would not be responsible for her debts, giving her maiden as well as her married name, are allegations of cruel treatment and failure to provide sufficient to justify a divorce from bed and board at least, under Shannon’s Code, sec. 4202, providing that it shall be a ground for divorce from bed and board of the bonds of matrimony-in the discretion of the court (1) if the husband by cruel treatment renders it unsafe or improper for the wife to cohabit with him, and (3) if he has refused or neglected to provide for her. (Post, pp. 57-63.) 5. DIVORCE, Service of process issued under defective pleading. Effect. Service of subpoena to answer, served wth copy of bill in a divorce action, upon a nonresident respondent temporarily in the State, was good, and gave jurisdiction of the person, though the affidavit verifying the complaint was verbally defective, at least to permit amendment of the verification. (Post, pp. 64, 65.)
131 Tenn. 66Combs v. Combs (1914)
1. EXECUTORS AND ADMINISTRATORS. Allowance to widow dissenting from will. “Assets.” In Shannon’s Code, sec. 4020, providing that the allowance for a year’s support of a widow dissenting from her husband’s will, may be set out to her from any personal assets of the deceased, those assets are meant which go to the personal representative for payment of debts. (Post, p. 68.) Code cited and construed: Sec. 4020 (S.). Case cited and approved: A'gee v. Saunders, 127 Tenn., 680. 2. EXECUTORS AND ADMINISTRATORS. Widow dissenting from will. Allowance for support. Property subject. Rents. Where deceased lessor left notes given him by tenants for rents yet to accrue, the mere giving of the notes did not work such a severance of the rent from the reversion that they vested in deceased’s personal representative, so as to give his wife a claim on their proceeds for her support under Shannon’s Code, sec. 4020, providing that a widow, dissenting from the provisions of her husband’s will, may have a year’s allowance for support out of his personal estate. (Post, p. 68.) 3. EXECUTORS AND ADMINISTRATORS. Real property. Rents as incident of, reversion. Rents accruing in the future under a lease, being incidents of the reversion, pass to the heir or devisee on death of lessor. (Post, pp. 68, 69.) Cases cited and approved: Smith v. Thomas, 82 Tenn., 324; Combs v. Young, 12 Tenn., 218; Rowan v. Riley, 65 Tenn., 67; Walsh v. Packard, 40 L. R. A., 321; Stinson v. Stinson, 32 Me., 593. 4. EXECUTORS AND ADMINISTRATORS. Rents. Severance from reversion. To sever rents from the reversion, tbe act must be that of the owner, and must indicate his intention to sever, such as the indorsement to a third person of notes taken for rent yet to accrue. (Post, pp. 69-71.) Cases cited and approved: Ellis v. Foster, 54 Tenn., 131; Kim-ball v. Walker, 71 Ill. App., 309; Leonard v. Burgess, 16 Wis., ■ 42; Cheatham v. Beck Co., 96 Ark., 230; Alabama, etc., Co. v. Oliver, 78 Ala., 158; Watkins v. Duvall, 69 Miss., 364.
131 Tenn. 72Lynch v. Jackson County (1914)
SHERIFFS AND CONSTABLES. Fees. Statutory provisions. Commitment. A commitment for which a sheriff is entitled to the fee prescribed by Shannon’s Code, sec. 6402 (9), is one granted by him, and not issued by a court or magistrate, though the word “commitment” means a process directed to a ministerial officer by which a person is to be confined in prison, usually issued by a court or magistrate (citing Words and Phrases, First and Second Series, Commitment). Codes cited and construed: Secs. 6352, 6402 (S.). Acts cited and construed: Acts 1809, ch. 6.
131 Tenn. 75Logan v. State (1914)
CRIMINAL LAW. Trial. Presence of accused. Const. Declaration of Rights, art. 1, sec. 9, provides that in all criminal prosecutions accused hath the right to be heard by himself and counsel, to demand the cause of the accusation, to have a copy thereof, and to meet the witnesses face to face. In a prosecution for murder, the court, in the absence of accused, ordered a special venire to be summoned for the selection of jurors therefrom. Held,, that the order for the venire was not a part of the trial, but was a mere preliminary step, and accused’s constitutional right to be present at all times was not infringed. Constitution cited and construed: Art. 1, sec. 9. Oases cited and approved: Andrews v. State, 34 Tenn., 550; Hopkins v. State, 78 Tenn., 206; Jones v. State, 152 Ind., 318; State v. Long, 209 Mo., 366; State v. Clark, 32 La. Ann., 558; State v. Abrams, 11 Or., 169; State v. Simien, 36 La. Ann., 923; Percer v. State, 118 Tenn., 765; State v. Barrington, 198 Mo., 23; Osborn v. State, 24 Ark., 629; Pocket v. State, 5 Tex. App., 552; Ammons v. State, 65 Fla., 166; Ward v. Territory, 8 Okl., 12; Ex Parte Bollman, 4 Cranch. (8 TJ. S.), 75.
131 Tenn. 79T. Towles & Co. v. Miles (1914)
MASTER AND SERVANT. Injury to servant. Independent contractor. A firm, contracting to construct railroad wort, organized a corporation to which a part of the work was subject. The partners and a third person were the stockholders of the corporation, and it was agreed that the third person could withdraw, and it was understood that the firm, on the completion of the ' subcontract, would buy from the corporation the contracting outfit for actual value thereof. The work sublet was done under the supervision of the firm. Held, that the corporation was not an independent contractor, and the firm was liable for injury to an employee. Cases cited and approved: Nelson v. American Cement Co., 84 Kan., 797; James McNeil Co. v. Crucible Steel Co., 207 Pa., 493; Consol. Coal Co. v. Seniger, 179 Ill., 370. Cases cited and distinguished: Central Coal & I. Co. v. Grider, 65 L. R. A., 455; Traction Co. v. O’Connor, 149 Ill. App., 598; Holbrook, etc., Corp. v. Perkins, 147 Fed., 166; McDonald, Shea & Co. v. Railroad, 93 Tenn., 281.
131 Tenn. 87Bryant v. Freeman (1914)
HUSBAND AND WIFE. Curtesy initiate, flight of husband to sue alone to protect joint estate of husband and wife. As governor of the family, the husband may control his wife’s realty, and can sue for and collect the rents thereof when there has been no disseisin of their joint estate, hut where a wife had conveyed her land, the husband, by suit in equity in the nature of ejectment, could not recover possession, rents, etc., of the property on the strength of his estate by curtesy initiate without joining his wife as plaintiff; he being only jointly seised with her in such case, and the right of action, if any, being joint. Code cited and construed: Sec. 4234 (S.). Acts cited and construed: Acts 1849-50, ch. 36. Cases cited and distinguished: Weisinger v. Murphy, 39 Tenn., 674; Guión v. Anderson, 27 Tenn., 325. Cases' cited and approved: Abies v. Abies, 86 Tenn., 333; Brasfleld v. Brasfield, 96 Tenn., 580; Gillespie v. Worford, 42 Tenn., 642; Corley v. Corley, 67 Tenn., 8.
131 Tenn. 94Moss v. State (1914)
1. SUNDAY. Trial. Unless authorized by statute, court cannot be held on Sunday; hence it is improper for the judge in a criminal case to charge the jury on Sunday. (Post, pp. 97-103.) Cases cited and distinguished: Gholston v. Gholston, 31 Ga., 625; Jones, Adm’r, v. Johnson, 61 Ind., 267; McCorkle v. State, 14 Ind., 39; People v. Odell, Dak. 197; Swann v. Broome,' 3 Burrowes, 1955. 2. COMMON LAW. Effect of. The common law of England as it stood at and before the separation of the colonies is law in Tennessee, being derived from North Carolina, out of which State the State of Tennessee was carved, for Acts N. C. 1715, ch. 31, and Acts N. C. 1778, ch. 5, preserved the common law, while Cession Act 1789, ch. 3, provided for its continuance in the State of Tennessee. (Post, pp. 103-106.) Cases cited and approved: Shute v. Harder, 9 Tenn., 5; State v. Miller, 79 Tenn., 626; Box v. Lanier, 112 Tenn., 393; Fields v. State, 9 Tenn., 158; Porter v. State, 8 Tenn., 226; State v. Miller, 79 Tenn., 620; Nunnely v. Doherty, 9 Tenn., 27; Bgnew ■ v. Cochran, 39 Tenn., 320. Cases cited and distinguished: Tisdale v. Munroe, 11 Tenn., 320; Smith v. Bank, 115 Tenn., 12; Glasgow’s Lessee v. Smith & Blackwell, 1 Tenn., 144. 3. COMMON LAW. Effect of. The Tennessee Code governs, in case of conflict between its provisions and the common law. (Post, pp. 103-106.) 4. COMMON LAW. Existence of custom. Question for court. • Every general custom is a part of the common law, and the existence of a general custom, as the one not to hold court on Sunday, is a Question f0r the courts. (Post, pp. 106-110.) Acts cited and construed; Acts 1741, ch. 14, sec. 2; Acts 1777, ch. 8, sec. 6. Code cited and distinguished; Secs. 3029, 3031, 4623, 5940, 6993, 6994 (S.). ■ Cases cited and approved: Styles v. Harrison, 99 Tenn., 128; City of Parsons v. Lindsay, 41 Kan., 336; Henderson' v. Reynolds, 84 Ga., '159; State of Louisiana v. Keatine, 130 La., . 434. 5. SUNDAY. Holding of court. The common-law rule, that court cannot he held nor ordinary business transacted upon Sunday, is recognized by Code 1858, secs. 1723, 1724, 2*902 (Shannon’s Code, secs. 3029, 3031, 4623), prohibiting the carrying on of ordinary duties on that day. (Post, pp. 106-110.) 6. SUNDAY. Charging of jury. Holding court. The charging • of a jury is a high judicial function, and, when the jury were charged on Sunday, court was held on that day. (Post, p. 110.) 7. CRIMINAL LAW. Appeal. Review. Harmless error. Where court was improperly'held on Sunday, such action cannot be disregarded as a mere irregularity, under Acts 1911, . ch. 32, for it is equivalent to holding court at a place not authorized. (Post, pp. 110, 111.) Acts cited and construed: Acts 1911, ch. 32.
131 Tenn. 112Hickey v. State (1915)
1.. CRIMINAL LAW. Limitation of prosecutions. Misdemeanors. Statute. Shannon's Code, 6942, 6946, providing a limitation of one year upon prosecutions for misdemeanors, applies to all misdemeanors though the prosecution he begun by indictment charging felony; the charge of felony in the indictment including the misdemeanor. (Post, pp. 114-117.) Cases cited and approved: Wilson v. State, 15 Tenn., 517; State v. Bowling, 29 Tenn., 52; Turley v. State, 50 Tenn., 13; Smith v. State, 79 Ala., 21; Stafford v. State, 59 Ark., 413; Gill v. State, 38 Ark., 524; Swalley v. People, 116 Ill., 247; Louisville, etc., Co. v. Commonwealth, 4 Ky. Law Rep., 627; State v. Hailey, 51 N. C., 42; State v. Howard, 15 Rich. (S. C.), 274; State v. Child, 44 Kan., 420; Poster v. State, 38 Ala., 427; Weston v. State, ’63 Ala., 155; Smith v. State, 62 Ala., 29. 2. CRIMINAL LAW. Limitation of prosecutions. Commencement of prosecution for misdemeanor. Indictment charging felony. When a defective indictment, found within twelve months, charging assault and battery with intent to rape was too defective to support conviction and was recommitted to the grand jury by the court, a new and valid indictment being returned on which defendant was acquitted of the felony, but convicted of a simple assault, there was such an institution of prosecution for the misdemeanor within a year as to bar the running of the statute of limitation on that grade of offense. Shannon’s. Code, 6942, 6946. (Post, pp. 117, 118.) 3. CRIMINAL LAW. Limitation of prosecutions. Commencement of prosecution for misdemeanor. Indictment charging felony. A prosecution for misdemeanor, instituted but not brought to trial, etc., and abandoned, and an indictment for felony returned, could not serve as an institution of prosecution, to come within the one-year period of limitation set for all misdemeanors by Shannon’s Code, 6942, 6946, sufficient to sustain a conviction .for a misdemeanor, included under the indictment charging felony. (Post, pp. 117, 118.)
131 Tenn. 119Gernt v. Floyd (1914)
FROM FENTRESS. Appeal from the Chancery Court of Fentress County. —A. H. Eoberts, Chancellor.
131 Tenn. 126Barnes v. Noel (1914)
1. APPEAL AND ERROR. Presentation of grounds of review in court below. The direction of a verdict must be challenged by a motion lor a new trial to be reviewed on appeal. {Post, pp. 129-133.) Acts cited and construed:. Acts 1875, ch. 106. Code cited and construed: Secs. 4689, 4851 (S.). Cases cited and approved: Seymour v. Railroad, 117 Tenn., 98; Railroad v. Johnson, 114 Tenn., 632; King v. Cox, 126 Tenn., 553; Jenkins v. Hankins, 98 Tenn., 545; King v. Miller, 67 Tenn., 382. 2. APPEAL AND ERROR. Presentation below. Motion for new trial. Errors, which can be made to appear by bill of exceptions only, must be presented to the trial court on motion for new trial, before relief can be had on appeal. {Post, pp. 129-133.) 3. NEW TRIAL. Motion. Nature. A motion for new trial is not alone to secure another hearing, but to present errors complained of for correction, if possible; hence, if the trial court erred in directing a verdict, he should set it aside, or, if he erred in refusing to direct verdict, he should on motion for new trial make the appropriate direction. {Post, pp. 129-133.) 4. TRIAL. Motion for new trial. A motion for a peremptory instruction is not a waiver of other objections, nor is reliance on other matters in the motion for . new trial a waiver of the motion for peremptory instruction. {Post, pp. 129-133.) 5. DISMISSAL AND NONSUIT. Right to dismiss. Shannon’s Code, sec. 4689, permitting plaintiff to dismiss at any time before thé jury retires, does not enlarge his common-law right, and plaintiff cannot terminate his suit at will where hy so doing he might prejudice the right of defendant. (Post, p. 129-133.) 6. APPEAL AND ERROR. Matters reviewable. Shannon’s Code, secs. 4851, 4852, provide that, where a motion for new trial is granted or refused, either party may except to the decision and reduce to writing the reasons for the new trial together with the substance of the evidence in the case, etc., and the appellant may assign for error that the judge in the court below improperly granted or refused a new trial, and the supreme court may grant new trials to correct any errors of the circuit court in granting or refusing the same. Defendant’s motion for peremptory instruction was overruled, ,and in his motion for new trial he assigned that error, as well as others. Defendant was granted a new trial, and took a wayside hill of exceptions to the refusal of the court to peremptorily instruct in his favor. Held that, as the purpose of the statute was to give the party excepting the benefit of the former trial without regard to the merits of the case as determined on a subsequent trial, defendant might, on review of the judgment rendered on the second trial, procure review of the denial of his motion for directed verdict. (Post, pp. 129-133.) 7. DISMISSAL AND NONSUIT. Right to dismiss. Where defendant’s motion for a peremptory instruction was denied and he was subsequently granted a new trial, it is proper for the court on the second trial to refuse to allow plaintiff to dismiss, as that would deprive .defendant of any advantage from the former trial. (Post, p. 134.) Oases cited ■ and approved: Croft v. Johnson, 67 Tenn., 390; Fisher v. Stovall, 85 Tenn., 316; Boone & Harrison v. Bush, 91 Tenn., 29. 8. APPEAL AND ERROR. Review. Where a wayside bill of exceptions- was reserved to the action of the lower court on motion for new trial which was granted, the supreme court upon appeal from a subsequent judgment will first review the exceptions to the motion. (Post, p.134.) Cases cited and approved: Railroad v. Higgins, 85 Tenn., 620; Railroad v. Scott, 87 Tenn., 495. 9. APPEAL AND ERROR. Jurisdiction. Stipulation. Appellate jurisdiction cannot tie conferred by stipulations. (Post, pp. 134, 135.) Cases cited and approved: State v. Perry, 63 Tenn., 438; Jenldns v. Hankins, 98 Tenn., 545; Railroad v. Conley, 78 Tenn., 531; State v. Willis, 170 S. W., 1030; Jones v. Ducktown, etc., Co., 109 Tenn., 375; Gallena v. Sudbeimer, et al., 56 Tenn., 189. 10. APPEAL AND ERROR. Review. Where defendant’s motion for peremptory instruction was denied, but after verdict for plaintiff a new trial was granted, defendant cannot on plaintiffs appeal from an adverse judgment on the second trial obtain a review of the denial of bis motion for peremptory instruction, unless be appealed in error or filed bis wayside bill of exceptions for a writ of error after final judgment below. (Post, pp. 134, 135.)
131 Tenn. 136Hermitage National Bank v. Carpenter (1914)
1. PRINCIPAL AND SURETY. Discharge of surety. Diversion to an unauthorized purpose. Where defendant’s testator became surety with M. on notes of a new corporation organized by M., under an agreement with the payee bank that the proceeds of one of the notes was to be used in paying a specified indebtedness of an insolvent corporation, and the other was to be used to furnish capital for the operation of the new corporation, and about one-half of the proceeds of the second note were diverted without the consent of the surety by the bank or with its knowledge to the payment of other debts of the insolvent corporation to the bank, so that the new corporation soon failed for want of capital, the surety was thereby discharged from liability on that note. (Post, pp. 141-147.) Cases cited and distinguished: Benjamin v. Rogers, 126 N. Y., 60; Gano v. Farmers’ Bank, 103 Ky., 608; Crossley v. Stanley, 112 Iowa, 24. Cases cited and approved: .Perkins v. Ament, 39 Tenn., 110; Hickerson v. Raiguel, 49 Tenn., 329; Russell v. Ballard, 16 B. Mon. (Ky.), 201; Ham v. Greve, 34 Ind., 18; Planters’ State Bank v. Schlamp, 124 Ky., 295; Haworth v. Crosby, 120 Iowa, 612; Altoona Bank v. Dunn, 151 Pa., 228; Petefish v. Watkins, 124 Ill., 384; Chaffe v. Taliaferro, 58 Miss., 544; Lee v. Bank, 2 Sandf. Ch. (N. Y.), 311; Hefferlin v. Krieger, 19 Mont., 123. 2. PRINCIPAL AND SURETY. Discharge of surety. Diversion to an unauthorized purpose. Mode of diversion. The fact- that some of the proceeds of the note were not charged off by the bank against the indebtedness of the insolvent corporation, but checks were drawn against them by M., as president of the new corporation, to pay the indebtedness of the old, does not entitle the hank to hold the surety. (Post, pp. 147, 148.) 8. PRINCIPAL AND SURETY. Discharge of surety. Diversion to an unauthorized purpose. Consent of surety. One who became surety on a note to raise capital for a new corporation is not released from liability for so much of the proceeds of the note as were diverted to the payment of the debts of another corporation with the consent of the surety. (Post, p. 148.)
131 Tenn. 149State ex rel. Gann v. Malone (1914)
1. SHERIFFS AND CONSTABLES. Term. “Vacancy.” Death before qualification. Under Const., art. 7, sec. 1, providing for tide election of the sheriff for the term of two years, section 2, providing that if a vacancy occurs in the office of sheriff, subsequent to an election, it shall be filled by the justices, and section 5, providing that the term of the officer shall he computed from the first day in September next succeeding the election, that no appointment to fill a vacancy shall be made for a period extending beyond the unexpired term, and that every officer shall hold office until his successor is elected or appointed and qualified, the justices cannot appoint a successor to one who was elected sheriff but died before he qualified, since there can be no appointment unless there is a vacancy, and there can be no vacancy so long as the former sheriff is prolonged until the qualification of his successor; the word “vacancy” being used in its ordinary sense as meaning empty of an incumbent (citing Words and Phrases, First and Second Series, Vacancy). (Post, pp. 153-164.) Code cited and construed: Secs. 1118, 4889 (S.). Cases cited and distinguished: Johnson v. Mann, 77 Va., 265; Chadduck v. Burke, 103 Va., 694; King v. McLure, 84 N. C., 153. Cases cited and disapproved: Childrey v. Rady, 77 Va., 518; Owens v. O’Brien, 78 Va., 116; Maddox v. York, 21 Tex. Civ. App., 622; Riddell v. School District, 15 Kan., 168; Campbell v. Dotson, 111 Ky., 125; Olmstead v. Augustus, 112 Ky., 365; Dixon y. Candill, 143 Ky., 623. Cases cited and approved: Condon v. Maloney, 108 Tenn., 83; State v. Slagle, 115 Tenn., 336; Richardson v. Young, 122 Tenn.,. 471; State ex rel. Loring v. Benedict, 15 Minn., 198; Tappan v. Gray, 9 Paige, N. Y., 507; People v. Van Horn, 18 Wend. N. Y., 515; State v. Harrison, 113 Ind., 434; People v. Ward, 107 Cal.,. 236; State v. Askew, 43 Ark., 82; Baxter v. Latimer, 116 Mich., 356; Kimberlin v. State, 130 Ind., 120; State v. Henderson, 4 Wyo., 535; Johnson v. Mann, 77 Va., 265; People ex rel. Battle v. Mclver, 68 N. C., 467; Lawrence v. Hanly, 84 Mich., 399; State ex', rel. Hoyt v. Metcalfe, 80 Ohio St., 244; Com. ex rel. Broom v. Hanley, 9 Pa., 513; State ex rel. Atty.-Gen. v. Dabbs, 182 Mo., 359; Kline v. McKelvey, 57 W. Va., 29; Smith v. Reppard, 69 W. Va.,. 211; State ex rel. v. Wilkinson, 124 La., 655; State ex rel. v. Murphy, 32 Pla., 138. 2. OFFICERS. Term. Vacancy. Under those sections, .where an appointment is made to fill an. unexpired term, there is a vacancy at the end of the term,, since the appointment was only for that time, though the appointee must continue to perform the duties as an officer holding over, rather than under a prolonged term, as in the case of an officer elected for a definite term and until his successor was qualified. (Post, pp. 164-Í67.) Case cited and distinguished: State ex rel. Kenner v. Spears, 53 S. W., 247. Cases cited and approved: Powers v. Hurst, 21 Tenn., 24; Brewer v. Davis, 28 Tenn., 208; Keys v. Mason, 35 Tenn., 6. 3. OFFICERS. Term. Appointee to fill vacancies. Where the length of' term only is fixed with no set date for it»beginning or ending, and-no reference to an unexpired term or to a vacancy in the term as distinguished from a vacancy in the office, an incumbent appointed to fill a vacancy holds for a. full term, not merely for the unexpired portion of his predecessor’s term. (Post, pp. 167-169.) Constitution cited and construed: Sec. 5, art. 7. Case cited and distinguished: Gold v. Fite, 61 Tenn., 237. 4. OFFICERS. Term. Commencement. Commission. Though an elective office is still' a species of property, the title thereto comes from the people, and not from the commission of the executive or other formality, and the term of such officer may begin notwithstanding his.failure to receive a commission. (Post, pp. 169-172.) Constitution cited and construed: Art. 6, sec. 11. Code cited and construed: Secs. 443, 444, 445 (S.); secs. 1153, 1305 (S.). Cases cited and approved: Bates v. Taylor, 87 Tenn., 319;' State ex rel. v. Board of Inspectors, 114 Tenn., 516; Maloney v. Collier, 112 Tenn., 78; Malone v. Williams, 118 Tenn., 390; State ex rel. v. Wright, 67 Tenn., 237; Turney v. Dibrell, 62 Tenn., 235; Blackburn v. State, 40 Tenn., 690; Calloway v. Sturm, 48 Tenn., 764; Mayor, etc., of Nashville v. Thompson, 80 Tenn., 344; State v. Parchmen, 40 Tenn., 609; State ex rel. v. Trewhitt, 113 Tenn.. 561.
131 Tenn. 173Shaw v. Webb (1914)
1. BAILMENT. Bailee’s common-law lien. Possession. An artisan’s common-law lien, as against third persons, depends for validity, upon his retention of the article or property subject to the lien. (Post, pp. 176-180.) Case cited and distinguished: Sullivan v. Clifton, 55 N. J. Law, 324; Buxton v. Baughn, 6 C. & P. 674. Cases cited and approved: Baughman Automobile Co. v. Emanuel, 137 Ga., 354; Small v. Robinson, 69 Me., 425; Denison v. Shuler, 47 Mich., 598; Bissell v. Pearce, 28 N. Y., 252; Hampton v. Seible, 58 Mo. App., 181; Kirtley v. Morris, 43 Mo. App., 144; Watts v. Sweeney, 127 Ind., 116; Hammond v. Danielson, 126 Mass., 294; Ruppert v. Zang, 73 N. J. Law, 216; D’Gette v. Sheldon, 27 Neb., 829; McGhee v. Edwards, 87 Tenn., 506; Nat. Bank of Commerce v. Jones, 18 Okl., 555; Adler v. Godfrey, 153 Wis., 186. 2. SALES. Statutory lien for repairs. Priority. Lien of conditional vendor. The lien on a vehicle for repairs furnished at the request of the owner or his agent, in favor of the mechanic, etc., who undertakes the work, notwithstanding he may have parted with its possession, given by Acts 1909, ch. 150, is subordinate to the lien of the conditional seller of the vehicle, since placing the vehicle in the possession of the conditional buyer should not be considered as a consent in advance to the subordination of the title retained for security for the payment of the purchase money, and since the seller’s intent, if any, to permit repairs and a consequent lien attaching to his interest should be manifested •in' the note contract, as otherwise notes containing the reservation of title would be deprived of a considerable element of marketability. (Post, pp. 180-184.) Case cited and distinguished: Keene v. Thomas, 1 K. B., 136. Cases cited and approved: Presque Isle, etc., Co. v. Reichel, 179 Mich., 466; Gillespie-v. Bradford, 15 Tenn., 168; Rhea v. Allison, 40 Tenn., 176; Belnap v. Condon, 23 L. R. A. (N. S.), 601; New Memphis Gaslight Co. Cases, 105 Tenn., 268; Pride v. Yiles, 35 Tenn., 125; Automobile Co. v. Bicknell, 129 Tenn., 493; Price v. Jones, 40 Tenn., 84; McCombs v. 'Guild, 77 Tenn., 81; Drummond Carriage Co. v. Mills, 54 Neb., 417; Ragon v. Howard, 97 Tenn., 334. 3. SALES. Conditional sales. Lien. A seller’s retention of title to personal property to secure the purchase money partakes of the nature of a lien, and, when retained in a written, unregistered contract is superior to any right acquired by a purchaser for value and without notice. (Post, pp. 180-184.) 4. INNKEEPERS. Lien. Nature. The common-law lien of an innkeeper attaches to personal property in possession of a guest, as a conditional buyer, provided the innkeeper had no notice of the nature and extent of the guest’s title when the property was brought to the inn; such lien being given by way of recompense for his obligation to receive the guest and his baggage. (Post, pp. 184, 185.)
131 Tenn. 186Working v. State (1914)
1. COSTS. In criminal prosecutions. Liability in county. Appeal costs. Statute. Under Shannon’s Code, sec. 7619, subsec. 2, and sec. 7621, regulating the taxing of costs in criminal cases to State or county, where defendants were convicted of misdemeanors, and nolle proseguís were entered after reversal on appeal, the costs of the transcripts on appeal and those accruing in the supreme court, applies only to trial costs, not costs on appeal. (Post, p. 187.) Code cited and construed: Sec. 7619, subsec. 2 (S.). 2. COSTS. In criminal prosecutions. Trial court costs. Jarvis •law. Acts 1897, ch. 20, regulating the taxation of costs in criminal cases, applies only to trial costs, not costs on appeal. (post pp. 188, 189.) Acts cited and construed: Acts 1897, ch. 20; Acts 1901, ch. 75. Code cited and construed: Sec. 7619, subsec. 2; sec. 7621 (S.). Case cited and distinguished: Henly v. State, 98 Tenn., 665. 3. COSTS. In criminal prosecutions. Motion to retax. Where transcripts on appeal from convictions for misdemeanors were not filed with the supreme court by clerk of the trial court until after the forty days prescribed as a limit by rule 7 of the court, such ground for objecting to the taxing of the costs of such- transcripts to the county cannot be set up on motipn by the county to retax them to the State, made in the appellate court after the case has been disposed of in the trial court and its term closed. (Post, pp. 189, 190.)
131 Tenn. 191Ahrens & Ott Mfg. Co. v. Moore (1914)
1. BILLS AND NOTES. Order. Oral acceptance. Where an order for $1,000 was presented to defendants and payment demanded, and they admitted they owed the drawer that amount and promised to pay it as soon as they could obtain settlement from the government on the contract under which the alleged indebtedness arose, there was a verbal acceptance. (Post, p. 194.) 2. BILLS AND NOTES. Negotiability. Person to whom payable. An order transferring and assigning to A. “$1,000 of the indebtedness due us by G.,” and authorizing and requesting G. to pay to A. the same on presentation to G. of the transfer, was not negotiable, as the negotiable instrument law (Acts 1899, eh. 94, sec. 1, subsec. 4) provides that an instrument, to be negotiable, must be “payable to order or bearer.” (Post, pp. 194, 195.) Acts cited and construed: Acts 1899, ch. 94, sec. 132. Cases cited and approved: Gilley v. Harrell, 118 Tenn., 122; Montague v. Myers, 58 Tenn., 539. 3. BILLS AND NOTES. Oral acceptance. Nonnegotiable orders. A nonnegotiable order may be accepted verbally. (Post, pp. 194, 195.) 4. ASSIGNMENTS. Assignment of special fund. Defenses against assignee. An order recited that the drawers being desirous of securing to plaintiff the payment of an indebtedness owing to it by the drawers, and that whereas defendant owed the drawers more than $1,000, they transferred and assigned to plaintiff $1,000 of such indebtedness due by defendant and authorized defendant to pay plaintiff the sum of $1,000 on presentation of the order. Defendant was a contractor employed by the government to construct a building, and the drawers were subcontractors who had, when the order was drawn, not completed their work. Under defendant’s contract with the government, it was compelled to pay for all materials and all the work, and the drawers were under a similar contract with defendant. After the order was given and accepted, it became necessary for defendant to pay for other materials essential to the subcontract of the drawer, so that, at the close of the work, the drawer was indebted to defendant. Held, that the order was intended to appropriate the special fund in the hands of the defendant, and, after that fund was wiped out by the debt of drawer, the defendant was not liable to plaintiff. (Post, pp. . 195-198.) Cases cited and approved: Jenks v. Wells, 90 Mich., 515; Beardsley v. Cook, 143 N. Y„ 144. 5. ASSIGNMENTS. Construction. Nature. The instrument so drawn was an assignment. (Post, pp. 198-200.) Case cited and approved: Nolen Bros. Lumber Co. v. Dudley Lumber Co., 128 Tenn., 11. , 5. ASSIGNMENTS. Acceptance. Construction. Where A. assigned to plaintiff a debt owing to A. by defendant, who was a contractor under whom A. was a subcontractor, and when plaintiff presented the assignment, defendant stated that he owed A. something more than the amount, and was simply waiting for the work to be approved by the inspector, and that he would pay it, but later A., as subcontractor, became indebted to defendant for more than the amount represented by the assignment, defendant was not liable to plaintiff; the promise to pay not being supported by any consideration. (Post, pp. ■198-200.) 7. NOVATION. Nature. The facts did not make out a case of novation. (Post, pp. 198-200.)
131 Tenn. 201Tennessee Cent. R. v. Gilbert (1914)
1. RAILROADS. Crossing accidents. Watchman. Where a railroad company was by ordinance required to keep a watchman at a crossing while it should be in operation and running its trains, the watchman was bound to warn travelers of the approach of a hand car just as much as of trains. {Post, pp. 203, 204.) Case cited and approved: Lake Shore, etc., R. Co. v. Frantz, 127 Pa., 297. 2. RAILROADS. Crossing accidents. Watchman. Duty of care. While a traveler is not entitled to rely solely upon the absence of a watchman at a railroad crossing as an indication of safety, yet the absence may be considered by the jury on whether the traveler’s failure to take precautions was contributory negligence; hence a charge declaring, as a matter of law, that a traveler’s failure to stop, look, and listen could not, in the absence of the watchman, be considered contributory negligence, is error. {Post, pp. 204-207.) Cases cited and approved: Roby v. Kansas City Southern R. Co., 41 L. R. A. (N. S.), 355, 357; Union Pac. R. Co. v. Rosewater, 157 Fed., 171.
131 Tenn. 208Hyde v. State (1914)
1. STATUTES. Enactment. Powers of legislature at speciaf sessions. Pub. Acts 1st Ex. Sess. 1913, ch. 11, prohibiting the sale or distribution of opium or any derivative thereof, except that a physician may prescribe the drugs when in personal attendance on a patient, is within the governor’s call for a special session to consider a bill to regulate the intrastate trade or sale of opium or any derivative thereof, as against the objection that it regulates the practice of medicine. (Post, p. 213.) Acts cited and construed: Acts 1913, ch. 11. Case cited and appr/oved: State ex rel. v. Woolen, 128 Tenn.,. 487. 2. CONSTITUTIONAL LAW. Health. Due process of law. Dealing in drugs. Pub. Acts 1st Ex. Sess. 1913, ch. 11, prohibiting the sale or distribution of opium or any derivative thereof, except that a physician may prescribe the drugs when in personal attendance on a patient, does not deprive a physician of his liberty or property without due process of law as arbitrarily curtailing his. right to practice by prescribing according to methods formerly obtaining, but is a valid exercise of the police power to regulate the sale and distribution of dangerous drugs. (Post, pp. 213-215.) Constitution cited and construed: Art. 1, sec. 8. Cases cited and approved: Matter of Yun Quong, 159 Cal., 508; Ex parte Mon Euclr, 29 Or., 421; Ex parte Hallawell, 155 Cal., 112. 3. CONSTITUTIONAL LAW. Statutes. Validity. Right to. question. One not prosecuted for violating any of the rules adopted for the enforcement of Pub. Acts 1st Ex. Sess. 1913, ch. 11, prohibiting tlie sale or distribution of opium or any derivative thereof, or for having in his possession any of the drugs specified, may not question the constitutionality of the provision authorizing rules for the enforcement of the act, or the provision of the act declaring that possession of the drugs shall be presumptive evidence of a violation of the act. (Post, p. 215.) Constitution cited and construed: Art. 1, sec. 8. Cases cited and approved: Palmer v. Southern Express Co., 129 Tenn., 116; Noell v. Power Co., 130 Tenn., 245. 4. HEALTH. Regulations. Violations. Where a detective under the employment of the pure food and drug department of the State procured from a physician a prescription for morphine for an alleged friend, but, in fact, a fictitious person, and procured a druggist to fill the prescription, the physician was answerable as aiding in, and hence a principal in, the druggist’s offense of a sale in violation of Pub. Acts 1st Extra Sess. 1913, ch. 11, prohibiting the sale of morphine, but permitting a physician to prescribe the same when personally attending a patient. (Post, pp. 215-217.) Case cited and distinguished: McLain v. State, 43 Tex. Cr. ft., 213. 5. CRIMINAL LAW. Acts of government agents. Defenses. The physician could not defend on the ground that the prescription was procured and the sale made for the purposes of a criminal prosecution. (Post, pp. 217-219.) Cases cited and distinguished: Grimm v. United States, 156 U. S., 604; Excise Com’rs v. Backus, 29 How. Pr. (N. Y.), 33. Cases cited and approved: Goode v. United States, 159 U. S., ■ 669; Rosen v. United States, 161 U. S., 29; Evanston v. Myers, 172 Ill., 266; People v. Murphy, 93 Mich., 41; State v. Lucas, 94 Mo. App., 117. 6. HEALTH. Illegal sales of morphine. Defenses. The physician could not defend on the theory that the person prescribed for was nonexistent. (Post, pp. 219, 220.)
131 Tenn. 221Sequatchie & South Pittsburg Coal & Iron Co. v. Tennessee Coal, Iron & Railway Co. (1914)
1. PUBLIC LANDS. Entries. “Checkerboard system.” Entries on lands based on the “checkerboard system,” that is, one entry built on another, and a third on the second, are valid. (Post, pp. 224, 225.) Case cited and approved: Coal Co. v. Scott, 121 Tenn., 88. 2. EVIDENCE. Weight. Credibility of witness. Where, in a prior suit, the question determinative of title to the land in, controversy "was decided, the decision will not be disturbed on the testimony of a witness who contradicted his testimony in the first case, giving evidence to meet the court’s ruling. (Post, pp. 225-227.) Case cited and distinguished: McEwen v. Coal & Land Co., 125 Tenn., 694. 3. PUBLIC LANDS. Grants. Special entry. That subsequent entries referred to an earlier entry, which, however, was not surveyed until after the subsequent entries, does not supply the requisite notoriety to render the first entry special, on the theory that its boundaries were well established. (Post, pp. 227-229.) Case cited and approved: Hitchcock v. Southern Iron & Timber Co., 38 S. W., 588. 4. COURTS. Precedent. Stare decisis. While the principle of res judicata does not apply where the action is between different parties, the courts will under the doctrine of stare decisis, follow a prior decision adjudicating the title to the land in controversy. (Post, pp. 229, 230.) Cases cited and approved: Kolb v. Swann, 68 Md., 516; Railroad v. United States, 168 U. S., 1; De Beam v. Deposit Oo., 233 U. S., 32; Bienville Water Supply Co. v. Mobile, 186 U. S., 217; State v. Union Railway Co., 129 Tenn., 705. 5. PUBLIC LANDS. Grants. Construction. Where land grants, after describing the property, closed with the words “excluding all prior legal claims,” such grants did not exclude an earlier grant which was not special, though it had been surveyed. (Post, pp. 230-232.) Case cited and distinguished: Bowman v. Bowman, 40 Tenn., 48. Cases cited and approved: Fowler v. Nixon, 54 Tenn., 719; Bleidorn v. Pilot Mountain Co., 89 Tenn., 211; Wright v. Hurst, 1122 Tenn., 656; Iron & Coal Co. v. Schwoon, 124 Tenn., 176; King v. Coleman, 98 Tenn., 561. 6. PUBLIC LANDS. Grants. Filing of caveat. That the holder of a subsequent special grant did not file a caveat to test the validity of an earlier grant which was not special does not preclude a later attach; the caveat provided for by Acts 1806, ch. 2, and Acts 1825, ch. 22, not doing away with the action of ejectment. (Post, pp. 232-236.) Acts cited and construed: Acts 1806, ch. 2, secs. 16 and 17; Acts 1825, ch. 22. Cases cited and approved: Peck v. Eddington, 2 Tenn., 331; Gould v. Hoyle, 4 Tenn., 100; Bugg v. Norris’ Lessee, 12 Tenn., 326; Peeler v. Norris, 12 Tenn., 331; Heirs of Williamson v. Buch-annan, 2 Tenn., 278; McGavoek v. Shannon, 13 Tenn., 128; Vaughn v. Hatfield, 13 Tenn., 236; Williams v. Wilson, 8 Tenn., 248. 7. ADVERSE POSSESSION. Exclusive possession. Necessity.. Where defendants entered into peaceable possession of land, they could maintain as against the true owner, who also entered, proceedings in unlawful entry and detainer, and have him removed; hut, having failed to do so and acquiesced in the owner’s possession of another part of the premises, the possession of the parties must be deemed concurrent. (Post, pp. 236-241.) Cases cited and distinguished: Nowell v. Gray, 31 Tenn., 96; Waddle v. Stuart, 36 Tenn., 535; Creech v. Jones, 37 Tenn., 632. 8. ADVERSE POSSESSION, Concurrent possession. Effect. Where, after defendant was in possession of a portion of a tract of land to which complainant had the legal title, complainant also entered and held possession for some years, his title gave him constructive possession of the entire tract, except that portion actually held hy defendant, and defendant’s possession could not, where it did not continue for the statutory period after complainant deserted the land, ripen into adverse title. (Post, pp. 236-241.) 9. EQUITY. Proceedings. Introduction of documents. In equity, a deed which proves itself is admissible without notice, the matter being governed by the ancient chancery practice; neither the statute nor court rules having prescribed the practice. (Post, pp. 241-243.) Code cited and construed: Page 1777 (S.); secs. 6271-6281 (S.). Cases cited and approved: Pardee v. De Cala, 7 Paige, 132; Kellogg v. Wood, 4 Paige, 578; Barrow v. Rhinelander, 1 Johns Ch., 550; Consequa v. Panning, 2 Johns Ch., 481; Miller v. Avery, 2 Barb. Ch., 582. 10.QUIETING TITLE. Recovery of land. Defenses.. Proof that title to a portion of the land which complainant seeks to recover was subject to an outstanding title is a good defense. (Post, pp. 241-243.)
131 Tenn. 244Hogan v. Nashville Interurban Railway Co. (1914)
1. CARRIERS. Duty to transport. Persons under disability. Any person is entitled to be received as a passenger on payment of fare, notwithstanding a seeming incapacity on bis part to take care of himself, if, in fact, he is competent to travel alone without requiring other care than that which the law requires a carrier to bestow on all persons alike. The disability which will disentitle a person to transportation may be mental or physical, and in respect to physical disability the carrier is under no obligation to receive as a passenger one who, without an attendant, is unable because of extreme age or tender years to care for himself, and the same test applies as to other physical disabilities. {Post, pp. 249-251.) Cases cited and approved: Owens v. Macon, etc., R. Co., 119 Ga., 230; Meyer v. St. Louis, etc., R. Co., 54 Fed., 116; Zachery v. Mobile & Ohio R. Co., 74 Miss., 520; Id., 75 Miss., 746; Illinois Cent. R. Co. v. Smith, 85 Miss., 349; Illinois Cent. R. Co. v. Allen, 121 K'y., 138. 2. CARRIERS. Duty to transport. Person using crutches. Complainant, about twenty-six years of age, who had always had to walk with two crutches, but who for ten years had continuously traveled alone and unattended in trains, street cars, etc., and who only required ordinary care, could not be excluded from a passenger train on the ground of his physical disabilities. {Post, pp. 251, 252.) 3. CARRIERS. Carriage of passengers. Satutes. “Common' carrier.” Acts 1875, ch. 13,0 (Shannon’s Code, sec. 3046), abrogating the aommon-law rule as to rights of action for exclusion from public conveyances, and declaring that no carrier of passengers need carry or admit any person whom it chose not to, was abrogated by Acts 1897, ch. 10, sec. 14, declaring all corporations, etc., operating railroads to tie “common carriers” which term depends upon whether the carrier may determine who he will carry or whether he is hound to carry all alike, and which, under Acts 1907, ch. 433, declaring that any incorporated interurban railroad company shall have the same powers and privileges as railroad companies, subject to the same duties and obligations, includes an interurban street railway company. (Post, VP- 252-256.) Code cited and construed: Sec. 3046 (S). Acts cited and construed: Acts 1875, ch. 130; Acts 1897, ch. 10; Acts 1907, ch. 433. Cases cited and distinguished: McDuffee v. Portland, etc., R. Co., 52 N. H., 430; Indianapolis Traction, etc., Co. v. Lawson, 143 Fed., 834. Cases cited and approved: Piedmont Mfg. Co. v. Columbia, etc., R. Co., 19 S. C., 353; McGregor v. Gill, 114 Tenn., 521; Chicago, etc., R. Co. v. Milwaukee, etc., R. Co., 95 Wis., 561; Diebold v. Kentucky Traction Co., 117 Ky., 146; Birmingham Mineral R. Co. v. Jacobs, 92 Ala., 187; Katzenberger v. Lawo, 90 Tenn., 238; Memphis News Pub. Co. v. Southern R. Co., 110 Tenn., 684; Coe v. Railroad, 3 Fed., 775; Chicago, etc., R. Co. v. N. Y., etc. (C. C.), 24 Fed., 516; C., etc., R. Co. v. Burlington, etc., R. Co., 34 Fed., 481; Whiteman v. Fayette Fuel-Gas Co, 1'39 Pa., 492; Railroad Co. v. Coal Co., Ill Ky., 960; Bourke v. Olcott Water Co., 84 Vt„ 125. 4. INJUNCTION. Subjects. Common carrier’s abuse of franchise. A complaint alleging that a common carrier’s refusal to accept complainant was a persecution of complainant for having brought a suit for damages against it and an attempted intimidation showed a palpable abuse of a public franchise, which a court of equity would enjoin. (Post, p. 257.) 5. INJUNCTION. Subjects. Continuing wrongful acts. A complaint alleging that a common carrier had wrongfully refused to accept complainant as a passenger and threatened to continue such wrongful act set out a right to relief by injunction, on the ground that a single action was a more adequate remedy than an action or actions at law for damages. (Post, pp. 257-259.) Cases cited and approved: Ainsworth v. Munoskong, etc., Club, 153 Mich., 185; Colliton v. Oxborough, 86 Minn., 361; Ladd v. Osborne, 79 Iowa, 93.
131 Tenn. 260Crouch v. Southern Surety Co. (1914)
1. INSURANCE. Guaranty and indemnity insurance. Recovery of premium. Apportionment. Where a county trustee gave bond with a surety company as surety for the faithful performance of his duties, and paid a premium of $4,000 in advance, and died after six months, during which time the bulk of the funds passing through his hands were collected and disposed of, his administratrix could not recover back one-half of the premium, since the risk had attached, and neither it nor the premium could be apportioned. (Post, pp. 262-265.) Cases cited and approved: Mut. L. Ins. Co. v. Kelly, 114 Fed., 268; Dickerson v. Ins. Co., 200 Ill., 270; Ins. Co. v. Roberts, 4 Duer. (N. Y.), 141; Waters v. Allen, 5 Hill (N. Y.), 421; Ins. Co. v. Pyle, 44 Ohio St., 19; Hoyt v. Gilman, 8 Mass., 336; Hendy Works v. Ins. Co., 86 Cal., 248; Blaeser v. Ins. Co., 37 Wis., 31. 2. PLEADING. Answer. When necessary. Where the bill seeking a recovery of part of advance premium paid for surety bond on ground of insured’s death at expiration .of half of period raised questions of estoppel and waiver which the demurrer did not reach, such questions required an answer. ■ (Post, pp. 265, 266.)
131 Tenn. 267Columbia & Pulaski Turnpike Co. v. Hughes (1914)
STATUTES. Validity. Enactment of “road law.” Extra session. The governor’s call for the first extra session of 1913, directed the attention of the legislature to the questions of the- road law from Maury county, the amendment of the act creating a turnpike commission for that county, and to the enactment of measures to enforce the criminal law relating to public nuisances. Acts 1913 (1st Ex. Sess.), ch. 98, regulates the operation and condition of turnpike roads in counties having a population of not less than 40,450 inhabitants nor more than 40,475 inhabitants. Held:, that the act was void, as it did not fall within the governor’s call, notwithstanding the description by population fitted Maury county, for the expression “road law*’ has no relation to an act regulating turnpikes, and it could not be sustained as an act amending the act creating a turnpike commission; there never having, been any such act. Acts cited and construed: Acts 1913, ch. 98. Case cited and approved: State ex rel. v. Woollen, 128 Tenn., 456.
131 Tenn. 270Columbia Grocery Co. v. Marshall (1914)
1. PAYMENT. Payment by note. ’ Intent. The taking of the note of a debtor does not extinguish the original debt, nor operate as a payment, unless so intended or agreed between the parties, though it may extend the time of payment; and if for any reason, without fraud, the creditor loses his right to sue on the note, he may sue on the original indebtedness. (Post, p. 275). Cases cited and approved: Poliak Bros. v. Niall-Herin Co.-, 137 Ga., 23; Otto v. Halff, 89 Tex., 384; Pigot’s Case, 11 Coke, 27a. 2. ALTERATION OF INSTRUMENTS. Materiality. An immaterial change by whomsoever made, at least when unaccompanied by fraudulent design, will not invalidate an instrument, nor will a material change by a stranger avoid it. (Post, pp. 275-277.) Cases cited and approved:. Kennel v. Muncey, Peck, 273; Nichol v. Thompson, 9 Tenn., 155. 3. ALTERATION OF INSTRUMENTS. Effect. Intent. The intent with which an instrument is altered is immaterial in determining the effect upon the immediate instrument, but is important in determining whether a recovery can be had upon the original debt or consideration. (Post, pp. 277, 278.) 4. ALTERATION OF INSTRUMENTS. Notes. Effect. Extin-guishment of debt. A debtor executed a series of eleven notes falling due each two months, there being no apparent intention at the time that they should extinguish the creditor’s original demand for payment of goods sold, and the creditor thereafter wrote in each note a clause to the effect that it was one of a series, and that, on default in payment of any note, all became due and payable, without notice to. the debtor until he called to make the first payment, which insertions destroyed the whole advantage the debtor had gained by closing the account and substituting the notes so as to relieve him of financial embarrassment. Held, that such act was a constructive fraud or attempt to gain an advantage over, the debtor, and not only destroyed thé notes but also extinguished’ the account for which they were given, though, if the ■ alteration had been without fraudulent intent, it would have destroyed the note, but not have extinguished the account. (Post, pp. 2V8-280.) Cases cited and approved: White v. Hass, 32 Ala., 430; Vogle v. Ripper, 34 Ill., 100; Wheelock v. Freeman, 13 Pick. (Mass.), 165; Greenfield Sav. Bank v. Stowell, 123 Mass., 196; Walton Plow Co. v. Campbell, 35 Neb., 173; Wolferman v. Bell, 6 Wash., 84; Warder, etc., Co. v. Willyard, 46 Minn., 531; Green v. Sneed, 101 Ala., 205; Otto v. Halfi, 89 Tex., 384.
131 Tenn. 281Mayor of Nashville v. Burns (1915)
MUNICIPAL COPORATIONS. Torts. Public parks. Injury tc minor. A municipal corporation, owning and operating a park and playground for the benefit of the public, under charge of a park commission, with police assigned to insure good order, was engaged in the public duty of preserving and maintaining the public health, and not in any proprietary or ministerial duty, and hence was not liable to a minor', struck by a swing which other boys swinging too high, had turned over. Cases cited and approved: Harper v. Topeka, 92 Kans., 11; Board of Park Commissioners v. Prinz, 127 Ky., 460; Russell v. Tacoma, 8 Wash., 156; Blair v. Granger, 24 R. I., 17; Steele v. City of Boston, 128 Mass., 588; Clark v. Inhabitants of Waltham, 128 Mass., 567; Conelly v. Nashville, 100 Tenn., 262; Irvine v. Chattanooga, 101 Tenn., 294; Davis v. Knoxville, 90 Tenn., 599; Pesterfield v. Vickers, 43 Tenn., 206; Poster v. Water Co., 71 Tenn., 42; Mayor of Memphis v, Lasser, 28 Tenn., 757; Mayor and Aldermen of Knoxville v. Bell, 80 Tenn., 157; Niblett v. Nashville, 69 Tenn., 684; Fleming v. Memphis, 126 Tenn., 331.
131 Tenn. 289Rather v. Nashville, C. & St. L. Ry. Co. (1914)
1. CARRIERS. Rates. Filing-with interstate commerce commission. While there is no presumption that a freight rate is reasonably low because it has been published and filed with the interstate commerce commission, individual shippers cannot- attack the reasonableness of such a rate. {Post, pp. 293-302.) Acts cited and construed: Acts 1906, ch. 3591, sec. 7. Cases cited and approved: Adams Ex. Co. v. Croninger, 226 U. S., 502; Illinois Cent. R. Oo. v. Interstate Commerce Commission, 206 U. S., 441; Railroad Co. v. Carl, 227 U. S., 639; M., K. & T. R. R. Co. v. Harriman Bros., 227 U. S., 668; C., R. I. & P. v. Cramer, 232 U. S., 490; Boston & Maine R. R. v. Hooker, 233 U. S., 97; A., T. & S. P. Ry. v. Robinson, 233 U. S., 173; Pierce Co. v. Wells Fargo & Co., 235 U. S., —; Railroad Co. v. Miller, 226 U. S., 513; Great Northern Ry. Co. v. O’Connor, 232 U. S., 508. 2. CARRIERS. Carriage of live stock. Limitation of liability. Where the bill of lading for an interstate shipment of live stock, which limited the carrier’s liability and recited that the consideration for the limitation was the giving of a lesser rate than the one filed with the interstate commerce commission, was accepted, the shipper is bound by the limitation, and can- • not attack it on the theory that the rate filed with the commission was not reasonably low. {Post, pp. 293-302.)
131 Tenn. 303Silliman v. International Life Insurance (1914)
1. INSURANCE. Life insurance. Suicide. Exchange of policy. In 1910 insured took out a life insurance policy for five years, which provided that he might, at any premium date, exchange it for any form of policy then in use, at the premium nxed hy his age at the time the exchange was made, or at the age of the original policy, hy paying the difference in premiums for the past years, with interest. The policy also provided that in case of suicide within one year from its date the company should he liable only for the amount of the premiums paid. Four years thereafter insured demanded an exchange of his policy for another form, refusing to make a new application with health certificate, and the company made the exchange on the old application, stating that the new policy was issued in exchange for the former one. The premium paid was the premium for the age of insured at that time. The new policy provided that in case of suicide “within one year from the date on which this insurance begins,” the limit of recovery should he the premiums paid. Insured committed suicide six months after the change was effected, and the beneficiary refused the company’s tender of the premium paid on the exchange policy. Held, that the two policies were in effect one and the same contract, and that the insurance began, within the meaning of the suicide clause in the second policy, at the time of the issuance of the original policy. (Post, pp. 308-313.) Case cited and distinguished: Gans, Ex’r v. Aetna Life Ins. Co., 108 N. E„ —. 2. INSURANCE. Life insurance. Suicide clause. Construction. A provision in a life insurance policy, limiting recovery thereon to the amount of the premium in case of suicide while sane or insane within one year from the date thereof, is reasonable, and should be favorably considered by the courts to prevent fraud on the companies. (Post, pp. 313-315.) Cases cited and approved: Billings v. Ins. Co., 64 Vt., 78; Mut L. Ins. Co. v.’ Wiswell, 35 L. R. A., 262.
131 Tenn. 316State ex rel. Greene v. Rimmer (1914)
1. PARDON. Imprisonment. Parole. Indeterminate sentence law.- Under Indeterminate Sentence Law (Acts 1913, cli. 8), providing that the hoard of prison commissioners shall constitute a hoard of parole, and shall have power to cause to he released on parole any person sentenced to confinement in the penitentiary who has served the minimum term provided hy law, that such convicts while on parole shall remain in the custody of the warden, subject to he returned to the penitentiary at any time upon violation of the terms of parole, and that in considering applications for parole the hoard shall not entertain any petition nor hear any argument of any attorney or any person unconnected with the penitentiary in favor of or against the parole, etc., a prisoner has not the absolute right to he released upon parole provided he has a clean conduct record . while in prison and has served the minimum term for his offense, since the act invests the hoard of prison commissioners with discretion as to the exercise of the power conferred in the interest of public policy. (Post, pp. 317-327.) A'cts cited and construed: Acts 1913, ch. 8. Cases cited and distinguished: Board of Prison Commissioners v. De Moss, 157 Ky., 289; Woods v. State, 130 Tenn., 100. Cases cited and approved: Wilson v. Commonwealth, 141 Ky., 341; Board v. Smith, 155 Ky., 425. 2. STATUTES. Construction. Intention of legislature. Adoption of act of another State. Although a statute he taken practically verbatim from that of another State, the interpretation put upon the original statute hy the courts of its State can have no binding effect upon the courts of the adopting State in interpreting such act after -its enactment in the second State. (Post, p. 327.) Case cited and approved: Smith v. Coal Co., 115 Tenn., 552. 3. PARDON. Imprisonment. Parole. Indeterminate sentence law. Under Acts 1913, ch. 52, providing for paroles in case of prisoners sentenced under laws previous to the indeterminate sentence law (Acts 1913, ch. 8), a prisoner by good conduct in prison secures no absoluté right to parole by the governor on the recommendation of the board of prison commissioners, since the act vests in such prison commissioners a discretion as to the exercise of their power. (Post, pp. 327, 328.) Acts cited and construed: Acts 1913, ch. 52; Acts 1913, ch. 8.
131 Tenn. 329Western Oil Refining Co. v. Dalton (1914)
COMMERCE. Interstate commerce. Privilege tax. “Transaction commercially continuous.” Laws 1909, ch. 479, sec. 4, provides that every corporation or local agent having oil depots or warehouses for delivering oil, or any local agent using a railroad car or railroad depot for such purpose, shall pay a privilege tax. Plaintiff oil company had its principal place of business, and also its barrel factory, in Indiana, and had a refinery in Illinois, and had no branch office in the State, but its salesman, employed on a salary, and without interest in its collections, took orders for oil and barrels addressed to plaintiff, which shipped a tank car of oil from its refinery and a car of barrels from its factory to a point in the State, consigned to itself, on arrival of which the salesman notified customers, and, if they furnished barrels, delivered oil from the car, and, if they furnished no barrels, took barrels from the car and filled them from the tank car, and made collections at the time, and some customers left their barrels of oil at the side of the track for several days before removing them, and any barrels not taken away were reshipped to plaintiff in Kentucky. Held, that the barrels were offered “as a part of a transaction commercially continuous,” and as incidental to delivery under the first act of transportation; that the putting of the oil in barrels did not constitute a local depot; and that the oil and barrels were within the protection of the commerce clause, and hence not liable to the privilege tax. Acts cited and construed: Acts 1909, ch. 479, sec. 4. Cases cited and distinguished; Caldwell v North Carolina, 187 U. S., 625; Rearick v. Pennsylvania, 203 U. S., 510. Cases cited and approved: , Austin v. Tennessee, 179 U. S., 359; Brown v. Maryland, 12 Wheat., 443; May vl New Orleans, 178 U. S., 51;- Lovehin v. Tansil, 118 Tenn., 717; Dozier v. Alabama, 218 U. S., 124; Crenshaw v. Arkansas, 227 TJ. S., 389; Stewart v. Michigan, 232 TJ. S., 665; General Oil Co. v. Crain, 209 TJ. S., 211.
131 Tenn. 343State Board of Law Examiners v. Shimer (1914)
1. ATTORNEY AND CLIENT. Disbarment. Limitations. Knowledge. Acts 1903, ch. 247, see. 5, providing that a license to practice law granted by the supreme court on certificate of the State' board of law examiners, if procured by fraud, may be revoked at any time within two years, did not intend that the limitation should begin to run until knowledge of the fraud had been brought home to the hoard petitioning for a revocation of license. (Post, p. 349.) Acts cited and construed: Acts 1903, ch. 247. ' 2. ATTORNEY AND CLIENT. Disbarment. Conviction of crime. Statute. Shannon’s Code, secs. 5781-5783, provide that charges preferred against an attorney shall he in writing, and a copy furnished the attorney, authorize the courts to strike from their rolls any attorney guilty of misdemeanor, inconsistent with his professional duties, and declare that one so stricken may not practice in any court of record. Acts 1903, ch. 247, establishes a State hoard of law examiners, and sections 3-5 thereof provide for certification by the hoard, and a rule, authorized by section 6 thereof, provides that an applicant, on presentation of his duly authenticated license from another State, may be admitted without examination, if the board is satisfied that he is worthy. Respondent presented a license to practice in Maryland, but did not inform the board that he had there been convicted of obtaining money under false pretenses and served a jail sentence, and claimed that when he applied he had no knowledge of a proceeding disbarring him from practice in Baltimore city. There was also evidence of complaints against his professional conduct in the State in his dealings with poor and ignorant clients. Held, that respondent had fraudulently withheld information which he was hound to disclose to the board, and that his license would he canceled and his name stricken from the rolls. (Post, pp. 249-353.) Acts cited and construed: Acts 1815, ch. 97; Acts 1817, ch. 51, sec. 1; Acts 1821, ch. 66, sec. 3. Code cited and construed: Secs. 5781, 5783 (S.). Cases cited and distinguished: In re Henderson, 88 Tenn., 531; Smith v. State, 9 Tenn., 228. Cases cited and approved: State v. Fields, 8 Tenn., 137; Smith v. State, 9 Tenn., 228; Lawyer’s Tax Cases, 55 Tenn., 565; Davis v. State, 92 Tenn., 634; Brooks v. Fleming, 65 Tenn., 331; Hunt v. McClanahan, 48 Tenn., 503; Ingersoll v. Coal Co., 117 Tenn., 263; In re Cameron, 126 Tenn., 614.
131 Tenn. 354State v. Chadwick (1914)
1. HOMICIDE. Punishment. Assessment by jury. Statutory provisions. Under Shannon’s Code; sec. 7206, providing that in no case shall any person convicted of a felony he confined for less • than twelve months in the penitentiary, and that whenever, in the opinion of the jury, the offense merits a less punishment than twelve months in the penitentiary, the jury may punish by confinement in the county jail for any less period, and section 6446, providing that whoever is convicted of involuntary manslaughter shall undergo confinement in the penitentiary for not less than one nor more than five years, on a conviction for involuntary manslaughter, the jury may assess the punishment at imprisonment in the county jail for less than one year, as section 7206 authorizes such assessment whenever imprisonment in the penitentiary for twelve months is fixed as the minimum punishment. (Post, pp. 356, 357.) Acts cited and construed: Acts 1913, ch. 8; Acts 1859-60, ch. 63. Code cited and construed: Secs. 6446, 7206 (S). Cases cited and approved: Bolton v. State, 45 Tenn., 650; Davis v. State, 65 Tenn., 429; Ferrell v. State, 70 Tenn., 25; Morton v. State, 91 Tenn., 438; Mitchell v. State, 123 Tenn., 650. 2. CRIMINAL LAW. Punishment. Assessment by jury. Statutory provisions. Shannon’s Code, sec. 7206, was not repealed by Acts 1913, ch. 8, sec. 1, providing that whenever any person over eighteen is convicted of any felony, or other crime punishable by imprisonment in the penitentiary, the court shall sentence such person to the penitentiary for an indefinite period not to exceed the maximum term provided by law for the crime for which-he was convicted and sentenced, provided that this shall not interfere with the operation of statutes providing for punishment for certain offenses hy fine or imprisonment in the county jail or both, as felonies to which section 7206 relates are not offenses punishable hy imprisonment in the penitentiary if, in the opinion of the jury, they merit a less punishment 'than twelve months in the penitentiary, and moreover the proviso excludes section 7206 from the purview of chapter 8. (Post, pp. 357-359.) Acts cited and construed: Acts 1913, ch. 8. Code cited and construed: Sec. 7206 (S.). 3. STATUTES. Repeal. Implied repeal. Nothing short of an irreconcilable conflict between two statutes works a repeal hy implication. (Post, p. 359.) Cases cited and approved: Coke, etc., Co. v. Electric Co., 123 Tenn., 428; McCampbell v. State, 116 Tenn., 98; Memphis, etc., R. R. Co. v. Union R. R. Co., 116 Tenn., 500; Balden v. State, 122 Tenn., 704. 4. CRIMINAL LAW. Instructions. Necessity of requests. Under Shannon’s Code, sec. 7188, providing that it shall be the duty of all judges, in charging juries in criminal prosecutions for felonies wherein two or more grades or classes of offense may he included in the indictment, to charge as to all of the law of each offense included, without any request on the part of defendant to do so, on a trial for involuntary manslaughter the court without request should have charged the provisions of section 7206 relative to assessing the punishment at im-prisonment in the county jail, and it was error to refuse a request for such an instruction. (Post, p. 359.) Acts cited and construed: Acts 1913, ch. 8. Code cited and construed: Secs. 7188, 7206 (S).
131 Tenn. 360Schwartz v. Black (1914)
1. COVENANTS. Breach. Damages. Where, in a suit by a grantee for breach of general covenant of warranty and against incumbrances, because of railroad tracks and rights of way over the land, the evidence showed that the railroads were beneficial to the premises, the grantee could not recover substantial damages. (.Post, p. 364.) 2. COVENANTS. Covenants of warranty and against incum-brances. Breach. Damages. Railroad tracks in existence and operation across a tract of land, when conveyed by deed containing a covenant of warranty and against incumbrances, are incumbrances, where the grantee, though inspecting the premises before purchase, was misled by the grantor into believing that the railroads were paying rent for the right of way, but the grantee could only recover nominal damages, where the railroads greatly benefited the premises. (Post, pp. 364-371.) Case cited and distinguished: Rich v. Scales, 116 Tenn., 57. Cases cited and approved: Kellogg v. Ingersoll, 2 Mass., 97; Hubbard v. Norton, 10 Conn., 422; Ailing v. Burlock, 46 Conn., 504; Herrick v. Moore, 19 Me., 313; Lamb v. Danforth, 59 Me., 322; Butler v. Galek, 27 Vt., 739; Prichard v. Atkinson, 3 N. H., 335; Haynes v. Stevens, 11 N. H., 28; Memmert v. Mc-Keen, 112 Pa., 315; Howell v. Northampton R. Co., 211 Pa., 284; Whitbeck v. Cook, 15 Johns (N. Y.), 583; Huyck v. Andrews, 113 N. Y., 81; Hymes v. Estey, 116 N. Y., 501; Hymes v. Estey, 133 N. Y., 342; Jordan v. Eve, Trustee, 31 Grat. (Va.), 1; Trice v. Kayton, 84 Va., 217; Patton v. Quarrier, Trustee, 18 W. Va., 447; Barre v. Fleming, 29 W. Va., 314; Desvergers v. Willis, 56 Ga., 516; Haldane v. Sweet, 55 Mich., 196; Kutz v. McCune, 22 Wis., 628; Bennett v. Booth, 70 W. Va., 264; Ireton v. Thomas, 84 Kan., 70; Schurger v. Moorman, 20 Idaho, 97; Jones y. Jenkens, 34 Md., 1; Harrison v. Des Moines & Ft. D. R. Co., 91 Iowa, 114; Killen y. Funk, 83 N'eh., 622; Sandum v. Johnson, 122 Minn., 368; Stuhr v. Butterfield, 161 Iowa, 736; First Unitarian Church v. Citizens Say. & Tr. Co. (Iowa), 142 N. W., 87; Pierce v. Houghton, 122 Iowa, 477; Beach v. Miller, 51 Ill., 209; Burk v. Hill, 48 Ind., 52; Kellogg v. Malin, 50 Mo., 496; Tuscogee Land & Secur. Co. y. Birmingham Realty Co., 161 Ala., 522; Farrington y. Tourtelott (C. C.), 39 Fed., 738; Pilcher v. Atchison - R. R. Co., 38 Kan., 516; Pryor y. Buffalo, 197 N. Y., 123; Van Ness y. Royal Phosphate Co., 60 Fla., 284; Goodman v. Heilig, 157 N. C., 6; Ex parte Alexander, 122 N. C., 727; Geren y. Caldarera, 99 Ark., 260; Perry v. Williamson, 47 S. W., 189; Wadhams v. Swan, 109 Ill., 46.
131 Tenn. 372Clark v. State (1914)
1. TRESPASS. Criminal prosecution. Title of prosecutor. If a party has actual possession of land, or of a portion thereof, whereby he has constructive possession of the remainder, such possession will sustain a prosecution for trespass, and the one so trespassing cannot defend on superior title. {Post, p. 376.) Cases cited and approved: Deaderick v. State, 122 Tenn., 975; Butler v. State, 128 Tenn., 167. 2. TRESPASS. Criminal prosecution. Possession of prosecutor. Notice. Under the criminal, as well as the civil, law, all persons must take notice of open, adverse possession of land, and of the registered claim of title of which such possession is notice, whether the holding is personally or by tenant. {Post, pp. 376, 377.) 3. TRESPASS. Criminal responsibility. Willfulness. A criminal trespass is willful if committed in a heedless disregard of the rights of others. {Post, pp. 376, 377.)
131 Tenn. 378Murrell v. Rich (1914)
FROM SHELBY. Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by Certiorari from the Court of Civil Appeals to the Supreme Court.— -, Judge.
131 Tenn. 415Butt v. State (1914)
1. BAIL. Criminal prosecution. Right to release on bail. Constitutional provisions. “Capital offens.e.” One convicted of first degree murder and sentenced to life imprisonment on the jury finding mitigating circumstances is nbt, pending appeal, entitled as a matter of right to hail, under Const., art. 1, sec. 15, providing that all prisoners shall be bailable,unless for capital offenses, when the proof is evident or the presumption great, for the provision does not apply after conviction, especially since the court on appeal. may disregard the finding of mitigating circumstances and order infliction of death penalty, so that there continues to be involved a “capital offense,” within the constitution. {Post, pp. 417-420.) Cases cited and approved: Ex parte Ezell, 40 Tex., 451; Ex parte McAnally, 53 Ala., 495; Ex parte Dyson, 25 Miss., 356; Ex parte Voll, 41 Cal., 29; Hampton v. State, 42 Ohio, St., 401; In re Schriber, 19 Idaho, 531; Ex parte Heath, 227 Mo., 39; Ex parte Fortenberry, 53 Miss., 428. v Case cited and distinguished: State v. Ward, 9 N. C., 443. Code cited and construed: Sec.-7105 (S.). Constitution cited and construed: Art. 1, sec. 15. 2. Bail. Criminal prosecutions. Right to bail. Though the right of one convicted of murder in the tlrst degree to hail, under Const., art. 1, sec. 15, is lost by the conviction, the common-law power of the court to admit to bail pending appeal remains, but the power will always be exercised with great caution. (Posf,, p. 420.) Case cited and approved: Ford v. State, 42 Neb., 418.
131 Tenn. 421Hood v. Hogue (1914)
1. VENDOR AND PURCHASER. Vendor’s lien. Priority between lien and judgment. In this State the vendor’s implied lien is a. mere capacity in the vendor to acquire a lien by filing a hill to fix and enforce his claim on the land, and, until he does this, any creditor of the grantee may attach or cause execution to he levied on the land and prevail upon the lien thereof over the vendor: (Post, pp. 423, 424.) Cases cited and approved: Robinson v. Owens, 103 Tenn., 91; Sharp v. Fly, 68 Tenn., 4; Gann v. Chester, 13 Tenn., 205; Roberts v. Rose, 21 Tenn., 145; Hulett v. Whipple, 58 Barb. (N. Y.), 224; Spring v. Short, 90 N. Y., 538; Cutler v. Ammon, 65 Iowa, 281. 2. VENDOR AND PURCHASER. Vendor’s lien. Priority between lien and judgment. Where a deed retained no lien for the purchase price, the vendor, upon a subsequent reconveyance to him in satisfaction of the unpaid balance of the purchase price, did not stand in the same position as though he had brought a suit for the enforcement of his implied lien, and, until his deed was registered, a creditor, by levying upon the land under an execution on a judgment against the vendee, could acquire rights superior to the vendor. (Post, pp. 424-426.) Case cited and approved: Bryant v. Bank, 107 Tenn., 560.
131 Tenn. 427Saulman v. Mayor of Nashville (1914)
MUNICIPAL CORPORATIONS. Performance of private function. Operation of electric plant. Liability for negligence. A city, owning and operating an electric plant, as authorized by Acts 1891, ch. 207, and Acts 1901, ch. 11, though only to light its streets and municipal buildings, is engaging in performing a private function; and hence the rule of respondeat superior applies to it, so as to render it liable for negligent construction and maintenance of a heavily charged wire, which by coming in contact with a guy wire attached to a telephone pole caused the death of a lineman employed by the telephone company. Acts cited and construed: Acts 1891, ch. 207; Acts 1901, ch. 11. Cases cited and approved: Smith v. Dixie Park & Amusement Co., 128 Tenn., 112; Russell v. Men of Devon County, 2 T. R., 667; Moodalay v. Morton, 1 Bro. Ch., 469; Barron v. Detroit, 94 Mich., 601; Davoust v. Alameda, 149 Cal., 69; Bullmaster v. St. Joseph, 70 Mo. App., 60; Boothe v. Fulton, 86 Mo. App., 19; Rhobidas v. City of Concord, 70 N. H., 90; Brown v. Salt Lake City, 33 Utah, 222; Humes v. Mayor of Knoxville, 20 Tenn., 402; Knoxville v. Harth et al., 105 Tenn., 436; Mayor of Memphis v. Lasser, 28 Tenn., 757; Mayor, etc., of Nashville v. Brown, 56 Tenn., 1; Mayor of Knoxville, etc., v. Bell, 80 Tenn., 157; Oliver v. Nashville, 106 Tenn., 273; Doyle v. Chattanooga, 128 Tenn., 433; Memphis v. Kimbrough, 59 Tenn., 133;’ Foster v. Water C’o., 71 Tenn., 42; Davis v. Knoxville, 90 Tenn., 600; Irvine v. Chattanooga, 101 Tenn., 291; Chattanooga v. Reid, 103 Tenn., 616; Provine v. Seattle, 59 Wash., 681; Toledo v. Cone, 41 Ohio St., 149. Cases cited and distinguished: Irvine v. Greenwood, 89 S. C., 511; Johnson v. Somerville, 195 Mass., 370; Yarborough v. Bank of England, 16 East, 6.
131 Tenn. 441Davidson County v. Sumner County (1914)
PROM SUMNER. Appeal from the Chancery Court of Snmner County. —J. W. Stout, Chancellor.
131 Tenn. 445Cohn v. Walker Const. Co. (1914)
RAILROADS. Mechanics’ liens. Statutory provisions. ‘Materials.” One furnishing lumber to a subcontractor for the erection of concrete culverts for use in making molds for the concrete culverts as specified in the contract, furnishes “materials” used in building the culverts, within Shannon’s Code, sec. 3580, giving a lien on a railroad and its franchises and property for the valué of material furnished in the building of its road and culverts,, where the lumber was practically consumed in the work. Cases cited and approved: Barker & S. Lumber Co. v. Marathon Paper Mills, 146 Wis., 12; Moritz v. Lewis Construction Co., 158 Wis., 4)9; Avery & Sons v. Woodruff & Cahill, 144 Ky., 227; E. R. Darlington Lumber Co. v. Westlake Construction Co., 161 Mo. App., 723; Chicago Lumber Co. v. Douglas, 89 Kan., 308;- Chamberlain v. Lewiston, 23 Idaho, 154; Empire State Surety Co. v. Des Moines, 152 Iowa, 552. Code cited and construed: Sec. 3580 (S.).
131 Tenn. 451Terry v. Burford (1914)
1. TORTS. Torts of servánt. Joint liability of several masters. Where sixty property owners contracted^ with a special police officer to pay him $1 each per month, he to he under control of all of them and to report nightly for instructions from any of the subscribers at a certain place, the contract of hiring was joint, and not several,, giving rise to a joint liability on the part of the subscribers for tortious acts committed by such officer within the scope of his authority and employment. (Post, pp. 459-464.) Cases cited and approved: Gaines v. Bard, 57 Ark., 615; Halupt-zok v. Great Northern B. Co., 55 Minn., 446; Púgmire v. Oregon Short Line R. Co., 33 Utah, 27; Burke v. Norwich & W. R. Co., 34 Conn., 474; Corning v. Walker, 100 N. Y., 547; Goodman v. Wilson, 129 Tenn., 464; Moore v. Southern Railway Co., 165 N. C., 439. Cases cited and distinguished: Buchanan v. Chicago, 75 Iowa, 393; Gulf, C. & S. F. R. Co. v. Dorsey, 66 Tex., 148. 2. MASTER AND SERVANT. Tort of servant. Wrongful killing by special policeman. Scope of-employment. Evidence. In an action against property owners, who had jointly hired a special policeman, for the wrongful act of such officer in killing $ne whom he suspected of wrongdoing on one of the subscriber’s premises, evidence as to whether the killing was within the general scope of the officer’s authority held sufficient to sustain a verdict for plaintiff. (Post, pp. 464, 465.) Code cited and construed: Sec. 6997 (S.). 3. MASTER AND SERVANT. Servant’s tort. Act in excess of particular authority. In an action, against joint employers of a special policeman to guard their property, for the wrongful killing of plaintiff’s decedent on the premises of one of such subscribers, where the officer discovered decedent under suspicious circumstances, in the exercise of his duty to guard the property, although his act in shooting was a misjudged and wrongful act, nevertheless, it being within the, general scope of his authority, his employers were liable therefor. (Post, pp. 465-479.) Cases cited and approved: Eichengreen v. Railroad, 96 Tenn., 229; Moore v. Sanborne, 2 Mich., 519; Wright v. Wilcox, 19 Wend. (N. Y.), 343; Cox v. Keahey, 36 Ala., 340; Hughes v. New York & N. H. R. C’o., 4 Jones & S., 222; Yerger v. Warren, 31 Pa., 319; Pittsburg, A. & M. Pass. R. Co. v. Donahue, 70 Pa., 119; Crocker v. New London, W. & P. R. Co., 24 Conn., 249; Brasher v. Kennedy, 10 B. Mon. (Ky.), 30; Harriss v. Mabry, 23 N. C., 240; Rounds v. Delaware, L. & W. R. Co., 64 N. Y., 129; Holler v. Ross, 68 N. J. Law, 324; Levi v. Brooks, 121 Mass., 501; Denver & R. G-. R. Co. v. Harris, 122 U. S., 597; Magar v. Hammond, 183 N. Y., 387; Kusnir v. Pressed Steel Car Co. (D. C.), 201 Fed., 146; Arbuckle v. Kirkpatrick, 98 Tenn., 221; McManus v. Cricket, 1 East, 106. Cases cited and distinguished: Mott v. Consumers’ Ice Co., 73 N. Y., 543; McClung v. Dearbome, 134 Pa., 396; Sharp v. Erie Railroad Co., 184 N. Y„ 100; Railroad v. Carter, 129 Tenn., '463.
131 Tenn. 480Arrowsmith v. State (1914)
1. CONVICTS. Trial. Pendency of prior sentence. One under conviction and imprisoned in the penitentiary may be brought to trial and sentenced for another crime, whether charged to have been committed before or during such imprisonment. (Post, pp. 484, 485.) Cases cited and approved: Thomas v. People, 67 N. Y., 218; People v. Majors, 65 Cal., 138; Henderson v. James, 52 Ohio St., 242; Rigor v. State, 101 Md., 465. •Code cited and construed: Secs. 6951, 7155, 7150 (S.). . Constitution cited and construed: Sec. 9, art. 1. •2. CRIMINAL LAW. Right to speedy trial. Pendency of prior sentence. The rights of one under confinement for another crime to a speedy trial are not abridged or deferred until termination of his sentence. (Post, pp. 485-488.) •Cases cited and approved: State v. Drophy, 8 Ohio Dec., 698; State v. Stalmaker, 2 Brev. (S. C.), 44; In re Garvey, 7 Colo., 502; Dudley v. State, 55 W. Va., 472; State v. Keefe, 17 Wyo., 227; State v. Sims, 1 Tenn., 253. Case cited and disapproved: Gillespie v. People, 176 Ill., 238. :3. CRIMINAL LAW. Constitutional rights. “Speedy trial.” A “speedy trial,” within the constitutional guaranty^ means a trial as soon after indictment as the prosecution can with reasonable diligence prepare for it, without needless delay, having in view its regulation and conduct, by fixed rules of law. (Post, p. 488.) 4. CRIMINAL LAW. Postponement of trial. Constitutional rights. Where accused was convicted of forgery and confined in the penitentiary, and other untried cases of forgery against him were by order of the court, in his absence and without his consent, retired from the docket, until the expiration of his sentence, which occurred two years thereafter, such order operated as a denial of the right to a speedy trial guaranteed by Const., art. 1, sec. 9, and Shannon’s Code, sec. 6951. (Post, pp. 488, 489.) Cases cited and approved: Benton v. Com., 90 Va., 328; Jones v. Com., 114 Ky., 599.
131 Tenn. 490Atlas Powder Co. v. Goodloe (1914)
1. APPEAL AND ERROR. Review. Amendments. Issue with court. The ruling by the chancellor denying a petition to amend a bill after a demurrer had been sustained, the complainant contending that the amendment was agreed to by the chancellor during the argument, cannot be reviewed; since the complainant cannot take issue with the chancellor in that manner as to what occurred during the argument. (Post, p. 499.) Acts cited and construed: Acts 1909, ch. 504. Constitution cited and construed: Sec. 8, art. 1. 2. TAXATION. Recovery of taxes paid. Payment under duress. Payment under protest, reserving the right to sue for recovery, of the privilege tax required of foreign corporations by Acts 1909, ch. 504, the failure to pay which would have required the corporation’s factory to remain idle, and would have rendered its contracts void, is made under duress, and not voluntarily. (Post, pp. 499-506.) Acts cited and construed: Acts 1909, ch. 504. Cases cited and approved: Gaar, Scott & Co. v. Shannon, 223 U. S., 468; Swift & C. & B. Co. v. United States, 111 U. S., 29; .Robertson v. Frank Bros., 132 U. S., 23; Oceanic Steam Navigation Co. v. Stranahan, 214 U. S., 329; Arkansas Bldg. & Loan Ass’n v. Madden, 175 U. S., 26.9; Ex parte Young, 209 U. S., 123; Western Union Tel. Co. v. Andrews, 216 U. S., 165; Ludwig v. Western Union Tel. Co., 216 U. S., 146. Case cited and disapproved: Railroad v. Marion County, 120 Tenn., 352. Case cited and distinguished: Atchison, T. & S. F. R. Co. v. O’Conner, 223 U. S., 280. 3. COMMERCE. Regulation. Interstate commerce. State taxation. Tlie power of congress oyer interstate commerce is supreme, and tlie levying of taxes by a State wbicb impedes or burdens such commerce is invalid. (Post, p. 506.) Cases cited and approved: Galveston, H. & S. A. R. Co. v. Texas, 210 TT. S., 217; Norfolk & Western R. R. v. Pa., 136 TJ. S., 114; Robbins v. Taxing Dist., 120 TJ. S., 489; Corson v. Maryland, 120 TJ. S., 502; Welton v. Mo., 91 TJ. S., 275; Brown v. Maryland, 12 Wheat., 419. 4. CORPORATIONS. Foreign corporations.' Privilege tax. The legislature has supreme control over foreign corporations in so far as it does not affect interstate commerce, and may exact such conditions and impose such taxes as it chooses on the privilege to do business within the State. (Post, pp. 506, 507.) Cases cited and approved: Horn Silver Mining Co. v. N. Y., 143 TJ. S., 314; Mutual Life Ins. Co. v. Spratley, 172 TJ. S., 602; Hooper v. Cal., 155 TJ. S., 648; Bank of Augusta v. Earl, 39 U. S. (13 Pet.), 519; Paul v. Va„ 75 U. S. (8 Wall.), 168; Pensacola Tel. Co. v. W. TJ. Tel. Co., 96 TJ. S., 1; Pembina Mining Co. v. Pa., 125 TJ. S., 180. 5. COMMERCE. Interstate commerce. Regulation. State tax. Privilege tax. The fact that a corporation is engaged in interstate commerce does not exempt its property from a State tax, or preclude the State from imposing a privilege tax on its right to enter another State to do business, and the State may resort to the capital stock or receipts on property employed in interstate-commerce to fix the value of such privilege tax, if the receipts- and capital are not taxed as such. (Post, p. 507.) Cases cited and approved: TJ. S. Exp. Co. v. Minn., 223 TJ. S., 335; Baltic Mining Co. v. Mass., 231 TJ. S., 83; Maine v. Grand Trunk Line, 142 TJ. S., 217; Provident Ins. Co. v. Mass., 6 Wall.» 611; Flint v. Stone-Tracy C’o., 220 TJ. S., 107. 6. COMMERCE. Constitutional law. Regulation. Due process of law. Privilege tax. Acts 1909, ch. 504, which imposes on a foreign corporation entering the State to do business a privilege tax, measured by its authorized capital stock, is not, when applied to a foreign corporation principally engaged in the manufacture of powder, but which it sells in interstate commerce, and which has a factory and supply warehouse within the State, from which it fills orders for both interstate and intrastate shipments, invalid as imposing a burden on interstate commerce, contrary to Const., U. S., art. 1, sec. 8, giving congress the power to regulate interstate commerce or as taking the property of the corporation without due process of law, contrary to Const., XT. S. Amend. 14, sec. 1. (Post, pp. 508-517.) Acts cited and construed: Acts 1866, ch. 230. Cases cited and approved: Western Union Telegraph Company v. Kansas, 216 U. S., 1; Pullman Co. v. Kansas, 216 U. S., 56; S. S. White Dental Co. v. Mass., 231 U. S., 68. Cases cited and distinguished: Security Mutual Life Insurance Co v. Prewitt, 202 U. S., 246; Baltic Mining Company v. Mass., 231 U. S., 78.
131 Tenn. 518Bird v. State (1914)
1. STATUTES. Construction. Acts of same legislature. ■Acts 1913 (2d Ex. Sess.), ch. 1, regulating the shipment of intoxicating liquor into the State, or between points within the State, and chapter 3, prohibiting the conveying or shipping liquor from one county to another in the State, are in pari materia, and must he construed together so as to harmonize with each other, especially since they were passed at the same legislative session and are presumed to he actuated hy the same public policy; and the exceptions to the prohibition to the shipment of liquor maintained in chapter 1 will he construed to apply to chapter 3. (Post, pp. 525, 526.) Acts cited and construed: Acts 1913, ch. 1-3. Cases cited and approved: Pond v. Trigg, 52 Tenn., 532; Graham v. Gunn, 87 Tenn., 458;. Merriman v. Lacefield, 51 Tenn., 209; State v. Manson, 105 Tenn., 232. Case cited and distinguished: Houston & Texas Central R. R. Co. v. State, 95 Tex., 507. 2. INTOXICATING LIQUORS. Offenses. Personal transportation. “Ship.” “Deliver.” Acts 1913 (2d Ex. Sess.), ch. 3, which is entitled “An act to prohibit” the shipment and conveying of intoxicating liquors from one county to another, hut providing that the venue- for prosecution shall he in the county to which shipments are made or in which deliveries are made, does not prohibit the personal transportation of liquor, since “ship” means to put or receive on a ship or other vessel for transportation, to send away, to get rid of; and “deliver” means to give or transfer, to yield possession of, to make or give over, to make the delivery of, to commit, to surrender, to rescind; and both imply a change of custody, and do not apply to personal transportation, and it will be presumed that if tbe legislature intended to prohibit personal transportation, it would have provided for the venue of prosecutions for violation of that provision also. (Post, pp. 526, 527.) 3. STATUTES. Construction. “Or.” “And.” In that act the word “or” between the words “ship” and “convey” should be read “and”; those conjunctions being frequently convertible. (Post, p.- 527.) Case cited and approved: Ransom v. Rutherford County, 123 Tenn., 1. 4. CONSTITUTIONAL LAW. Statutes. Presumption in favor Of constitutionality. Acts 1913 (2d Ex. Sess.), ch. 1, which is entitled “An act regulating the shipment” and delivery of intoxicating liquor, and section i9 of which' excepts from the prohibition of the acts personal transportation of liquor for personal or family use in quantities not exceeding one gallon, does not prohibit the personal transportation of quantities greater than one gallon, since the title includes only the regulation of shipment and delivery, and to construe it to prohibit personal transportation would render the statute unconstitutional under Const., art. 2, sec. 17, requiring the subject of an act to be expressed in its title. (Post, pp. 528-530.) Acts cited and construed: Acts 1913, ch. 1-3. Constitution cited and construed: Sec. 17, art. 2. 6. INTOXICATING LIQUORS. Regulation of shipment. Constitutionality. The legislature can, in .the exercise of its police powers as an aid to the enforcement of the law against the sale of liquor, regulate shipments of liquor, and thereby prohibit acts which in themselves are harmless. (Post, p. 530.) Cases cited and approved: State, ex reí., v. Pérsica, 130 Tenn., 48; Kirk v. State, 126 Tenn., 16; Motlow v. State, 125 Tenn., 547; State v. Mill C’o., 123 Tenn., 399.
131 Tenn. 531Smith v. Louisville & N. R. (1914)
CARRIERS. Carriage of live stock. Delivery. Private stockyards. Acts 1897, ch. 10, sec. 17, prohibiting the giving of undue preferences hy a common carrier to a particular person, locality, or description of traffic, or the subjecting of a particular person, locality, or description of traffic to unreasonable prejudice, does not require the carrier to make deliveries of live stock shipments in ear load lots at private stockyards maintained hy the consignee, and a contract with the Union Stockyards Company, hy which the carrier agreed to make all such deliveries at the company’s yards at the carrier’s expense, is valid, since the nature of the stock, the necessity for quarantine, and the danger and delay which would he caused hy extra switching thereby made necessary is sufficient to justify a different rule from that applied to inanimate freight, which the carrier must deliver on a private track. Acts cited and construed: Acts 1897, sec. 17, ch. 10; Acts 1887, ch. 104. Cases cited and approved: Central Stockyards Co. v. Louisville & N. R. Co., 118 Fed., 113; Central Stockyards Co. v. Louisville & N. R. Co., 192 U. S., 568; Atlantic Express Co. v. Wilmington, etc., R. Co., Ill N. C., 470; Texas v. Missouri, etc., R. Co., 99 Tex., 516; Kates v. Atlanta Baggage & Cab Co., 107 Ga., 636; Dingman v. Duluth,-etc., R. Co., 164 Mich., 332. Cases cited and distinguished: Covington Stockyards Co. v. Keith, 139 U. S., 128; Butchers’ & Drovers’ Stockyards Co. v. Louisville & N. R. Co., 67 Fed., 35; Express Cases,'117 U. S., 1.
131 Tenn. 542Brier Hill Collieries v. Gernt (1914)
1. DEEDS. Construction. All parts of a deed must be construed together without regard to its formal divisions. (Post, pp. 546-549.) Acts cited and construed: Acts 1819, ch. 28, sec. 1; Acts 1851-52, ch. 33, sec. 1. Case cited and approved: Iron & Coal Co. v. Schoon, 124 Tenn., 176. Code cited and construed: Sec. 3672 (S.). 2. DEEDS. Construction. Estates conveyed. Limitations. The quoted words in a deed which conveys described land and which declares that the grantors convey “all their right, title, claim, and interest in” the land described, limit the conveying words and restrict them to the grantors’ interest therein at the time of the making of the deed. (Post, pp. 546-549.) 3. ADVERSE POSSESSION. “Color of title.” Conveyances operating as color of title. A deed conveying described land, but only the grantors’ rights therein, is not “color of title” tó a parcel within the description previously conveyed by the grantors, and the grantee may not acquire title by seven years’ adverse possession under the statute of limitations (Acts 1819, ch. 28, sec. 1). (Post, pp. 546-549.) 4. DEEDS. Construction. Estates conveyed. A deed, which purports to convey all the grantor’s title and which refers to his title papers which purport to convey an estate in fee to the grantor, incorporates the title papers and the title of the grantor passes, and where the grantor has only deeds giving color of title the color of title only is passed. (Post, p. 549.) 5. EJECTMENT. Issues. Equitable relief. * The court in ejectment may not reform deeds to the parties where their grantors are not parties to the suit. (Post, pp. 549, 550.) 6. DEEDS. Conditions. Change by Subsequent deed. An agreement that a tract shall not be conveyed may be modified by a subsequent deed, which will stand unless reformed in a suit therefor. (Post, pp. 549, 550.) 7. DEEDS. Description. Property conveyed. A deed, which describes the land conveyed by grant number and by metes and bounds, and which concludes “including 5,000 acres, platting out 3,000 acres, prior claims, and leaving 2,000 acres by estimation,” passes title to a parcel within the grant where the parcel was included in an inferior grant and where there was no adverse possession thereof. (Post, pp. 550, . 551.) 8. EJECTMENT. Parties. Statutory provisions. Under Shannon’s Code, sec. 4970, providing that any person having a valid subsisting legal interest in real property and a right to the immediate possession thereof may maintain ejectment therefor, plaintiff in ejectment must, to succeed, show both legal title and right to immédiate possession, and one who has executed a deed of trust to secure a debt, retaining the right of possession until default, may not maintain ejectment without joining the trustee or mortgagee, for he has not the legal title. (Post, pp. 551-553.) Cases cited and approved: King v. Coleman, 98 Tenn., 562; Lowry v. Whitehead, 103 Tenn., 396; Garrett v. Land Co., 94 Tenn., 459; Hubbard v. Godfrey, 100 Tenn., 158; Langford v. Love, 35 Tenn., 309; Edwards v. Miller, 51 Tenn., 314; Campbell v. Campbell, 40 Tenn., 325; Crutsinger v. Catron, 29 Tenn., 27; Bank v. Ewing, 80 Tenn., 598; Carter v. Taylor, 40 Tenn., 30. Code cited and construed: Sec. 4970 (S.). 9. MORTGAGES. Title conveyed. A trust deed or mortgage conveys the legal title to the trustee or mortgagee, and he is entitled to the immediate possession unless tlie instrument contains a contrary provision. (Post, pp. 551-553.)
131 Tenn. 554State ex rel. Bonner v. Andrews (1914)
1. MANDAMUS. Compelling official action. Suit by taxpayers. Taxpayers of a city may, by mandamus, compel city officers to collect privilege taxes imposed by statute where the officers charged with the duty of collecting taxes make no attempt so to do. (Post, pp. 560-578.) Cases cited and approved: Diamond v. State, 123 Tenn., 348; Knight v. Village of Thompsonville, 74 Ill. App., 550; In re Minneapolis Police Department Relief Ass’n, 85 Minn., 302; Stone v. Bevans, 88 Minn., 127; Shepard v. Easterling, 61 Neb., 882; State v. Cornwall, 97 Wis., 565; Land, Log & Lumber Co. v. McIntyre, 100 Wis., 245; Id., 100 Wis., 258; Johnson v. Black, 103 Va., 477; Cathers v. Moores, 78 Neb., 17; Independent School District No. 5 v. Collins, 15 Idaho, 336; Walker v. Village of Dillonvale, 82 Ohio St.,' 137; Wilcox v. Porth, 154 Wis., 422; Read v. Cunningham, 126 Iowa, 304; Finney v. Garner, 110 Tenn., 67; State v. Holt, 163 Ind., 198. Cases cited and approved: State v. True, 116 Tenn., 294; Park v. City of Laurens, 68 S. C., 212; Milster v. Spartanburg, 68 S. C„ 243. Cases cited and distinguished: Russell v. Tate, 52 Ark., 541; Zuelly v. Casper, 160 Ind., 455; Kimble et al. v. Board of Commissioners of Franklin County, 32 Ind. App., 377; Woodruff v. New York, etc., R. Co., 129 N. Y., 27; Central R., etc., Co. v. Pettus, 113 U. S., 116; Fox v. Hale, etc., Mining Co., 108 Cal., 475; Sands v. Greely & Co. (C. C.), 83 Fed., 772; Grant v. Lookout Mt. Co., 93 Tenn., 691; Crampton v. Zabriskie, 101 U. S., 601; Trustees v. Greenough, 105 U. S., 527. 2. LICENSES. Compelling collection. Suit by taxpayers. Lien. Taxpayers of a city, compelling by mandamus city officers to collect privilege taxes imposed by statute, have a lien on funds collected by the officers for the full amount of expenses and counsel fees, but have no lien on judgments recovered for taxes. (Post, pp. 560-578.) 3. LICENSES. Privileges. Enforcement. “Debt.” A privilege tax is a “debt” and may be sued on as such. (Post, pp. 578, 579.) Cases cited and approved: State v. Nashville Sav. Bank, 84 Tenn., HI; State & Davidson County v. Hirsch Bros., 84 Tenn., 40; Union & Planters’ Bank v. Memphis, 101 Tenn., 154; Mayor & Aldermen of Jonesboro v. McKee, 10 Tenn., 167; Rutledge v. Fogg, 43 Tenn., 554; State v. Duncan, 71 Tenn., 680; State v. Railroad Co., 82 Tenn., 56; Nashville v. Cowan, 78 Tenn., 209; E. T. Y. & O. R. Co. v. Morristown, (Tenn. Ch. App.), 35 S. W., 771. 4. LICENSES. Privilege tax. Statutory provisions. A privilege tax may be levied by statute, either on a percentage basis or for a fixed sum, and when so imposed may be sued for as a debt by the State, county, or municipality. (Post, pp. 578, 579.) ■ 5. TAXATION. Assessment of taxes. Effect. “Debt.” A tax, when assessed on a valuation of property, creates a personal “debt” in favor of the government against the person whose property is assessed. (Post, pp. 678,579.) 6. LICENSES. Privilege tax. Enforcement. Suit by taxpayers. Taxpayers of a city, seeking by mandamus to compel officers to collect a privilege tax on persons continuing to sell intoxicating liquors notwithstanding the prohibition law, may amend their bill so as to bring the persons liable to a privilege tax before the. court, so that it may render judgment for the city, or may cause distress warrants to issue for the immediate collection of the-tax, or may, on obtaining an assessment of the tax, cause a. scire facias to issue for the parties assessed to show cause why they should not be held liable or why distress warrants should: notissue. (Post, pp. 579, 580.) 7. SCIRE FACIAS. Requisites. Judgment. The writ of scire facias is awarded by the court and is both a writ and a pleading, but must be based on some matter of record, as a judgment, bond, or some entry or suggestion of record. (Post, p. 580.) Cases cited and approved: State v. Johnson, 65 Tenn., 198; State v. Patterson, 66 Tend., 246; Gregory v. Chadwell, 43 Tenn., 390; Frierson, Adm’r, v. Heirs of Harris, 45 Tenn., 146; Martin v. Gorden, 4 Tenn., 173; Hayes v. Cartwright, 74 Tenn., 139. 8. SCIRE FACIAS. Requisites of writ. Manner of testing. The writ of scire facias may be tested by demurrer, or if fatally defective by writ of error or appeal. (Post, p. 580.) 9. LICENSES. Privilege tax. Assessment. An assessment of a privilege tax is void where it does not show the amount due, but merely contains figures and ruled columns without dollar marks. (Post, pp. 581, 582.) Cases cited and approved: Thompson v. Evans, 2 Tenn. Ch. App., 61; Dunn v. Dunn, 99 Tenn., 598; Hamilton v. Brownsville Gaslight Co., 115 Tenn., 150; Barnes v. Brown, 1 Tenn. Ch. App., 726; Payton v. Stuart & Looney, 7 Tenn., 156; McIntosh v. Paul, 74 Tenn., 45; Rogers v. Hollingsworth, 95 Tenn., 357. 10.LICENSES. Privilege tax. Assessment. Scire facias. “Judgment.” An assessment of a privilege tax, though not strictly a “judgment,” ascertains the amount due, at least provisionally, and may be the basis of a scire facias, but when the assessment is wholly void scire facias is necessarily void. (Post, pp. 581, 582.)
131 Tenn. 583Wood v. Green (1914)
1. APPEAL AND ERROR. Assignments of error. Rule of court. Under Rule of Court, sec. 14, subsec. 3 (160 S. W., ix), requiring that, when the error alleged is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence, with citation of the record where it and the ruling may be found, an assignment of error that “the chancellor erred in excluding from the hearing all evidence tending to show oral statements by one E. in the transactions involved under the petition herein, and particularly that part of such evidence as is set out at length in the wayside bills of exception filed by both parties,” was not in compliance with the rule of court, and is overruled. (Post, pp. 586, 587.) 2. ACCOUNT STATED. Implied assent of party. Transaction between banks. Where the N. Bank remitted $20,000 to New York to the account of the M. Bank, the vice president of the M. Bank seeing the entry on the books of the N. Bank and making no objection, there was an account stated between the parties, not to be reopened, in the absence of fraud, mistake, or surprise. (Post, p. 587.) 3. BANKS AND BANKING. Certificate of deposit. Validity. Funds to support. Where the N. Bank issued a certificate of deposit in exchange for a draft of the same amount on New York issued by the M. Bank, the draft being held as a cash item by the N. Bank by instruction of its vice president, who was also president -of the M. Bank, and not being presented for payment until after the failure of the N. Bank, when it was presented to the receiver, payment was properly refused; the certificate not being valid in the hands of the M. Bank, since there was no money in the N. Bank on which the certificate of deposit could rest. {Post, pp. 587-589.) , 4. BANKS AND BANKING. Officers. Authority. Letter of introduction. Where the vice president of the N. Bank took to the M. Bank a letter, signed by the cashier of the N. Bank, introducing him, which was typewritten all open-spaced, except a notation, single-spaced and crowded into the bottom of the letter just above the signature, that he had full authority to represent N. Bank in all matters, including New York exchange, such letter, carrying notice on its face that it had been altered, was not binding on the N. Bank as a representation of its vice president’s authority. (Post, p. 589.) 6. BANKS AND BANKING. Officers. Authority. Estoppel. Although one E. dictated the policy and dominated the action of the N. Bank, in the absence of knowledge of the M. Bank of the fact, such hank could not rely on the condition, so that no estoppel could arise out of it in respect to certain dealings between the two hanks. (Post, p. 590.) 6. BANKS AND BANKING. Officers. Act in excess of authority. Imputation of knowledge. Where the vice president of the N. Bank, in treating with the M. Bank for the purchase of its stock, ostensibly for the N. Bank, but in reality for himself, was acting fraudulently and in his own interest, perpetrating a fraud on both banks, his knowledge could not be imputed to the N Bank, to bind it under the terms of the transaction as consummated by him. (Post, pp. 590, 591.) Case cited and approved: Ruohs v. Bank, 94 Tenn., 57. 7. BANKS AND BANKING. Officer. Act in excess of authority. Estoppel. Where the N. Bank retained one as vice president who had secured his control of it by a series of questionable transactions, it did not thereby become liable for his subsequent fraudulent acts in purporting to represent it in purchasing the stock oí the M. Bank, ostensibly for the N. Bank, but in reality for himself. {Post, pp. 592, 593.) 8. BANKS AND BANKING. Deposit. Trust fund as general deposit. Where the N. Bank remitted $20,000 to New York to the credit of the M. Bank, the fund was not a special deposit and trust fund for the benefit of the stockholders of the M. Bank, from whom one E., vice president of the N. Bank, and purporting to act for such bank, but in reality for himself, had purchased the stock of the M. Bank, since the N. Bank had no knowledge of the purpose for which the M. Bank intended to use the money, and so did not place the fund in New York in trust for that purpose. {Post, pp. 593, 594.) 9. BANKS AND BANKING. Purchase of stock in other bank. Ultra vires. Statute. Under Shannon’s Code, secs. 2083, 2084, 2085, prescribing charter powers of discount and savings banks, the contract of such a bank, through its officers, to purchase of the stockholders of another bank their stock therein, was absolutely void, as being ultra vires. {Post, pp. 594-599.) Acts cited and construed: Acts 1875, ch. 142; Acts 1883, ch. 168. Cases cited and approved: Marble Co. v. Harvey, 92 Tenn., 115; Miller v. Insurance Co., 92 Tenn., 167; Clark v. Railroad, 123 Tenn., 246; Hotel Co. v. Dyer, 125 Tenn., 302; Concord N. Bank v. Hawkins, 174 U. S., 364; California N. Bank v. Kennedy, 167 U. S., 362; Central Transp. Co. v. Pullman Pa. Car. Co., 139 U. S.. 24; De Da Vergne Refrigerating M. Co. v. German Savings Institution, 175 U. S., 40; Anglo-American Land Mortgage Agency Co., Ltd., v. Lombard, 123 Fed., 721; Hadley v. Bankers’ Trust Co., 157 Mo. App., 557. Code cited and construed: See. 2083-2085 (S.); See. 2097 (S.).
131 Tenn. 600State v. Del Rio Turnpike Co. (1914)
1. CONSTITUTIONAL LAW. Due process of law. A party by bis conduct cannot so forfeit a right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared. Forfeiture of rights in property cannot be adjudged by legislative acts, and confiscations without judicial hearing after due notice are void, as being without due process of law. (Post, pp. 605-608.) Acts cited and construed: Acts 1835, ch. 54. Cases cited and approved: White’s Creek Turnpike Co. v. Marshall, 61 Tenn., 104; Westervelt v. Gregg, 12 N. Y., 209; Lawton v. Steele, 152 U. S., 133; North America Cold Storage Co. v. Chicago, 211 U. S., 306; McConnell v. McKillip, 71 Neb., 712; State v. Derry, 171 Ind., 18; Darst v. People, 51 III., 286; Strong v. State, 129 Tenn., 472. Cases cited and distinguished: Bank of Columbia v. Akely, 4 Wheat., 235; Detroit v. Detroit Plank Road, 43 Mich., 140; Malone v. Williams, 118 Tenn., 418. Code cited and construed: Sec. 1748 (S.). Constitution cited and construed: Art. 1, sec. 8. 2. CONSTITUTIONAL LAW. Due process of law. Forfeiture of turnpike charter. “Property.” Shannon’s .Code, sec. 1748 et seq., providing that the county court of each county shall appoint three superintendents of turnpike roads and toll bridges, to see that they are kept in repair as required by law, and that whenever, in the opinion of a majority of them, any road or bridge shall be in bad condition, they may open the gates until it is put in good order, receiving for their services such compensation as the county court may allow payable by the owners of such roads and bridges, and that any owner demanding any toll or closing any gate required to be kept open may be indicted, and on conviction its charter forfeited, was not intended to abate a nuisance, but to impose a penalty for neglect, and to force the performance of a duty by declaring a forfeiture of the right to take toll, which is an attribute or usufruct of property, and hence “property” and, so construed, violates the due process clause of Const. U. S. Amend. 14, and Const. Tenn. art. 1, see. 8, declaring that no one shall be deprived of his property, but by the law of the land. {Post, pp. 608-610.) Cases cited and approved: Powell v. Sammons, 31 Ala., 662; Ohio Turnpike Co. v. Waechter, 26 Ohio Cir. Ct. R., 605.
131 Tenn. 611Tennessee Coal, Iron & R. v. Hooper (1914)
FROM MARION. Appeal from the Circuit Court of Marion county to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — Na-thas Buckmar, Judge.
131 Tenn. 620Memphis St. Ry. Co. v. Stratton (1915)
MASTER AND SERVANT. Injuries to third person. Master’s liability. Exemplary damages. Where plaintiff ran his automobile into an excavation opened in a - highway by defendant street railway company, whose night watchman- thereupon tortiously assaulted him while he was endeavoring to extricate his machine, the defendant was liable in exemplary damages, although no relation of contract subsisted between it and the plaintiff. Oases cited and approved: Traction Co. v. Lane, 103 Tenn., 376; Railroad v. Garrett, 76 Tenn., 438; Railroad v. Fleming, 82 Tenn., 128; Haehl v. Railroad, 119 Mo., 326; Smith v. Middleton, 112 Ky., 588; Railroad v. Robinson, 125- Ala., 483; St. Louis, etc., R. Co. v. Hackett, 58 Ark., 381; Baltimore, etc., R. Co. y. Strube, 111 Md., 119; Forrester y. Southern P. Co., 48 L. R. A. (N. S.), 35; Railroad v. Starnes, 56 Tenn., 52. Cases cited and disapproved: Railroad v. Carter, 129 Tenn., 459; Railroad v. Dies, 98 Tenn., 655.
131 Tenn. 626Sofge v. Lowe (1915)
1. PROCESS. Service. Privilege. Parties. Suitors, whether plaintiff or defendant,- from a foreign jurisdiction, are exempt from the service of civil process while attending court and for such reasonable time before and after trial as may enable them to go from and return to their homes. (Post, pp. 628-631.) Cases cited and approved: Sewanee, etc., Coal Co. v. Williams, 120 Tenn., 339; Bridges v. Sheldon (C. C.), 7 Fed., 44; Brooks /. State, 3 Boyce (Del.), 1. Cases cited and distinguished: Holyoke, etc., Co. v. Ambdem (C. C.), 55 Fed., 593; Cronk v. Wheaton, 23 Lancaster Law Rev., 206. 2. PROCESS. Service. Privilege of parties traveling to and from State of suit. Where defendant was served with process in this State while returning from attending as suitor a United States court in Arkansas, his plea of abatement was properly sustained; since a State court, by way of comity and on grounds of public policy, should enforce the privilege of witness or party to suit in .another State to he exempt from service of process while attending court. (Post, pp. 631-636.) Cases cited and approved: Tyrone Bank v. Doty, 2 Pa. Dist. R., '558; Hoffman v. Judge of Circuit Court, 113 Mich., 109; Powell v. Pangborn, 161 App. Div., 453; Plimpton v. Winslow (C. C.), 9 Fed., 365; Hollender v. Hall, 13 N. Y. Supp., 758. Cases cited and distinguished: Parker v. Marco, 136 N. Y., 585. 3. PROCESS. Service. Privilege. Parties. Witnesses. Burden of proof. The privilege of a party or witness from a foreign jurisdiction exempt from service of process while attending court is invokable only when the person’s sole business in the State of suit is to attend the litigation, the burden being upon him under plea in abatement to establish the fact. (Post, p. 636.) Cases cited and approved: Finucane v. Warner, 194 N. Y., 160; Chaffee v. Jones, 19 Pick. (Mass.), 261; Smythe v. Banks, 4 Dali., 329.
131 Tenn. 637McLemore v. Raine's Estate (1915)
TAXATION. Inheritance taxes. Assessment. A testatrix devised all of her real estate to her husband for life ■with the direction, that if her sister survived it should go to the sister for life, remainder to any children the sister might leave surviving her. The will further provided that in event of the sister’s death before that of the husband the property should go to the sister’s children, and that if the sister died without issue, the property should go over to the testatrix’s cousin. Shannon’s Code, sees. 726, 727, provide that-where there shall be a devise to collateral relatives to take effect after the expiration of one or more life estates, the tax on such estate shall not be payable until the person liable for it shall come into actual possession, and that the tax shall be assessed upon the value of the estate at the time the right to possession accrues. Held, that as the interest of both the cousin and the sister was liable to be divested, they were not entitled to the enjoyment of the estate so as to be liable to transfer taxes. Cases cited and approved: Vanderbilt v. • Eidman, 196 U. S., 480; People v. McCormick, 208 Ill., 437; Howe v. Howe, 179 Mass., 546; Harrison v. Johnston, 109 Tenn., 245; Bailey v. Drane, 96 Tenn., 16. Code cited and construed; Secs. 726, 727 (S.).
131 Tenn. 644Laurenzi v. Atlas Ins. (1915)
1. INSURANCE. Fire insurance. Right of mortgagee. A fire policy stipulated that with insurer’s consent an interest under the policy might exist in favor of a mortgagee on conditions attached to the policy, and that insurer should not he liable for a greater proportion of any loss than the amount insured bore to the whole insurance, valid or not, and permitted other insurance. Subsequently insured gave a mortgage, and a rider attached to the policy provided that loss, if any, should be payable to the mortgagee as his interest might appear, but that in case of any other insurance the insurer should not be liable for a greater proportion of any loss than the sum insured bore to the whole amount of insurance on the property. Insured had procured another policy, of which the mortgagee had no knowledge. Held, that the contract evidenced by the rider was distinct from the policy, and protected the mortgagee to the extent of his interest, to the amount of the face of the policy, if necessary, and the stipulation as to contribution in the policy or in the rider did not limit the mortgagee’s rights. (Post, pp. 655-660.) Cases cited and approved: Brown City Savings Bank v. Windsor, 198 Fed., 28; Smith v. Union Insurance C’o., 25 R. I., 260; Hastings et al. v. Westchester Fire Insurance Co., 73 N. Y., 147; Eddy v. London Assurance Corporation, 143 N. Y., 311; Reed v. Firemen’s Insurance Co., 81 N. J. Law, 523; Syndicate Insurance Co. of Minneapolis v. Bohn, 65 Fed., 165; Bacot v. Insurance Co., 96 Miss., 223; Hardy v. Lancashire Insurance C’o., 166 Mass., 210; Insurance Co. v. Olcott, 97 Ill., 439; Savings Bank v. Insurance Co., 122 Mass., 165; Insurance Co. v. Trust Co., 41 Neb., 834; Insurance Co. v. Bohn, 48 Neb., 743; Insurance C’o. v. Coverdale, 48 Kan., 446; Savings & Loan Co. v. Insurance Co., 17 Wash., 175; Boyd v. Insui’ance Co., 25 Wash., 447; Ma-goun y. Insurance Co., 86 Minn., 486; Insurance Co. v. Olcott, 97 Ill., 439; Insurance Co. of Minneapolis v. Bolin, 65 Fed., 165; Manufacturing Co. v. Insurance Co., 88 N. Y., 592; Hastings v. Insurance Co., 73 N. Y., 149. 2. INSURANCE. Contracts. Repugnant stipulations. Where two clauses of a fire policy are so repugnant that they cannot stand together, the first governs, rather than the last, especially where the first clause expresses the chief object of the policy. (.Post, pp. 660-663.) Cases cited and approved: Teague v. Sowder, 121 Tenn., 132; Insurance Co. v. Williams, 11 C. C. A., 503; Insurance Office v. Varbel, 103 Ky., 758. Case cited and distinguished: Bean v. Insurance Co., Ill Tenn., 186. 3. INSURANCE. Fire insurance. “Total loss.” What is. A wooden structure is a total loss within Acts 1909, ch. 447, making an insurer liable for the amount of the policy in the event of a total loss, where the roof and the walls, excepting on one side, and part of the front porch were wholly destroyed, and the wall on the one side and part of the porch were so badly burned in places that the lumber was not worth the labor of removal, and the walls standing were considered so dangerous by municipal authorities that they were required to be taken down, though the floor remained uninjured, except that a large hole was burned through it, and though the brick foundation on which the structure stood was unimpaired; since the identity and specific character of the structure as a building were obliterated. (Post, pp. 663-664.) Cases cited and approved: Heed v. Insurance Co., 81 N. J. Law, 523; Williams v. Insurance Co., 54 Cal., 442; Packing Co. v. Insurance Co. (C. C.), 31 Fed., 200; Havens v. Insurance Co., 123 Mo., 403; O’Keefe v. Insurance Co., 140 Mo., 558. 4. INSURANCE. Fire insurance. Liability of insurance company. An insurance company may comply with Acts 1909, ch. 447, authorizing insurance companies to contract with insured that he shall maintain insurance on the property to the extent of an agreed proportion of the actual cash value thereof, and providing that insured, failing so to do, shall he a coinsurer to the extent that his insurance then in force is less than the amount of such agreed proportion, and may also stipulate the insurable value of the property, but its failure to do either does not prevent the applicability of the provision making insurer liable for the amount of the policy in the event of a total loss. (Post, pp. 664-666.) Acts cited and construed: Acts 1909, ch. 44Y. Case cited and approved: Dugger v. Insurance Co., 95 Tenn., 245. 5. INSURANCE. Fire insurance. Right of mortgagee. Agreements between mortgagor and insurer. Effect. An agreement between a mortgagor and a fire insurance company as to the amount of loss payable to the mortgagee as his interest may appear, made without knowledge of the mortgagee, is not binding on him, and he may recover the full amount of the policy in the event óf a total loss, if necessary to satisfy his interest. (Post, p. 666.) 6. INSURANCE. Fire insurance. Loss. Estoppel. One may show that a fire loss is more than that stated in the proofs, unless he has been guilty of fraud, or insurer has acted on the proofs in such a manner that to permit further ■ proof of loss would be inequitable. (Post, p. 666.) Cases cited and approved: Leslie v. Insurance Co., 60 Mise. Hep., 558; Scottish Union v. Field, 18 Colo. App., 68; Brewing Co. v. Insurance Co., 81 Ohio St., 1.
131 Tenn. 667Crout v. Yazoo & M. V. R. (1915)
1. CARRIERS. Passengers. Loss of baggage. Limitation of liability. A carrier selling a mileage book at a reduced price may properly make it the basis of a special contract setting forth any reasonable regulations or limitations of liability, and may properly contract on the subject of its liability for baggage carried on trains on which the passenger does not travel, although it would have no right to release itself of the duty to carry a limited amount of baggage free of charge as incidental to the carriage of passenger. {Post, pp. 676-678.) Cases cited and approved: McKibbin v. Railroad, 100 Minn., 270; Railroad v. Knox, 184 Ala., 489; Collins v. Railroad, 10 Cush., 506. 'Cases cited and distinguished: Marshall v. Railroad, 126 Mich., 45; Railroad v. Dinkins, 139 Ga., 332. 2. CARRIERS. Passengers. Loss of Baggage. A carrier selling a 1,000-mile ticket at a reduced price ,and therein stipulating that baggage would be carried only over such lines and between such stations as the purchaser traveled on the day the baggage was presented for checking, would not be released from liability to a passenger who, by accident, did not accompany his baggage, or who lost his baggage in .the ordinary incidents of travel, or in eases where there were regular baggage trains, or where the carrier chose not to • forward the baggage on the passenger’s train. (Post, p. 678.) 3. CARRIERS. Passengers. Loss of Baggage. Under a mileage ticket sold at a reduced rate and stipulating that baggage would be carried only over such lines and between such stations as the purchaser traveled on the day the baggage was presented for checking, the carrier was not liable as a carrier, as distinguished from a warehouseman, for loss of baggage checked on a train on which the passenger did not intend to, and did not, travel, so that there could be no recovery for its loss by the burning of the station without its fault; its liability in such case being only that of a gratuitous bailee. (Post, pp. 678, 679.) 4. CARRIERS. Passengers. Loss of baggage. Custody. Where it was not shown that the carrier or its agents knew of any open and long-continued custom of violating the contract, the fact that some traveling men did not travel on the trains on which they check their baggage did not invalidate the express stipulation in the ticket contract that the plaintiff, a traveling man, should travel between the same points and on the same day of the checking of his baggage. (Post, pp. 679„ 680.) 5. CARRIERS. Passengers. Loss of baggage. A passenger holding a mileage ticket sold at a reduced rate and stipulating that he should travel between the same points and on the same day of the checking of his baggage could not rely upon a waiver of the stipulation merely by a statement to a third person of his intention not to accompany his baggage, made when he was having it checked, and within hearing of the carrier’s agent. (Post, pp. 680, 681.) Cases cited and approved: Railroad v. Fidelity Co., 125 Tenn., 676; Railroad v. Naive, 112 Tenn., 239; Pencil Co. v. Railroad, 124 Tenn., 65. 6. CARRIERS. Passengers. Loss of baggage. Code Miss. 1906, sec. 4068, requiring every railroad to receive any trunk or baggage which its regulations allowed to be carried with every passenger, offered in person upon exhibition of a ticket over the road, and to issue a check, and upon arrival to safely keep the baggage at the station until demanded by the owner, with the right to charge a reasonable storage after four days, did not conflict with a mileage ticket provision that baggage would be carried only over such lines and between such stations as the purchaser traveled on the . day the baggage was checked. (Post, pp. 681, 682.)
131 Tenn. 683Williams v. Chattanooga Iron Works (1915)
1. DAMAGES. Proceedings for assessment. Physical examination of person injured. Power of court. The trial court has the right at common law to compel plaintiff, suing for-a personal injury, to submit to a physical examination by a physician. (Post, pp. 688-694.) Cases cited and approved: Railroad v. Childress, 82 Ga., 719; Railroad v. Hill, 90 Ala., 71; Graves v. Battle Creek, 95 Mich., 266; Hall v. Manson, 99 Iowa, 698; O’Brien v. La Crosse, 99 Wis., 421; Lane v. Railroad, 21 Wash., 120; Wanek v. Winona, 78 Minn., 98; South Bend v. Turner, 156 Ind., 418; Railroad v. Palmore, 68 Kan., 554; Manufacturing Co. v.’ Schoeninger, 42 Colo., 362; Johnston v. Railroad, 150 Cal., 542; Murphy v. Railroad, 31 Nev., 141; Railroad v. Hill, 36 Okla., 540; Brown v. Railroad, 12 N. D., 69; Bagwell v. Railroad, 109 Ga., 612; Wit-tenberg v. Onsgard, 78 Minn., 342; McQuigan v. Railroad, 129 N. Y., 50; Lyon v. Railroad, 142 N. Y., 298; State, ex rel., Carter v. Call, 64 Fla., 144. Cases cited and disapproved: Parker v. Enslow, 102 Ill., 272; Stack v. Railroad, 177 Mass., 157; Railroad v. Cluck, 97 Tex., 176; May v. Railroad, 32 Mont., 529; Larson v. Salt Lake City, 34 Utah, 321; Railroad v. Botsford, 141 U. S., 250; Railroad v. Anglin, 99 Tex., 349. 2. DAMAGES. Physical examination of person injured. Application for examination. An application to the court for a physical examination by a physician of plaintiff, suing for a personal injury, must be made before trial and supported by affidavit, setting forth facts showing that an examinatibn is necessary and can be had without danger to plaintiff or any serious pain. (Post, pp. 694, 695.) 3. APPEAL AND ERROR. Questions reviewable. Buildings on application for examination of plaintiff suing for personal injury. A decision of the court on an application for a physical examination by a physician of plaintiff, suing for a personal injury, is reviewable on appeal. (Post, pp. 694, 695.) 4. DAMAGES. Physical examination of person injured. Mode of examination. The court ordering an examination by a physician of plaintiff, suing for a personal injury, must select a physician competent and indifferent between the parties. (Post, pp. 695, 696.) 5. DAMAGES. Physical examination of person injured. Proceedings to procure examination. The court, ordering an examination by a physician of plaintiff, suing for a personal injury, must fix in advance the fee for the examination, and require defendant, making the application, to pay the sum into court, to be paid to the physician when he files his report. (Post, pp. 695, 696.) 6. DAMAGES. Physical examination of person injured. Report of examination. A physician, appointed by the court to examine plaintiff, suing for a personal injury, must file a report, stating in detail the results of his examination, and the report should be open to inspection of counsel of both parties, but not for use as evidence, except for cross-examination of the physician when introduced as witness at the trial. (Post, pp. 695, 696.) 7.DAMAGES. Physical examination of person injured. Mode of examination. A physician, examining a plaintiff suing for a personal injury, must preserve, as far as possible, the privacy of plaintiff’s person; and, in case a woman is plaintiff, the physician should be a female, if one is accessible. (Post, p. 696.) 8. DAMAGES. Physical examination of person injured. Mode of examination. Where a physician, appointed by the court, examines plaintiff, suing for personal injury, plaintiff’s own physician should he permitted to be present at the examination on plaintiff’s application therefor. (Post, p. 696.) 9. DAMAGES. Physical examination of person injured. Refusal to submit to examination. Effect. A plaintiff, suing for a personal injury, cannot be compelled to submit to an examination by a physician appointed by the court by proceedings in contempt, hut he is offered the alternative of a reasonable examination or of having his suit dis-mis|pd. {Post, p. 696.) 1Ü. PLEADINGS. Bill of particulars. Right of defendants to demand. A defendant, when sued by plaintiff for a personal injury, can require of plaintiff a hill of particulars, showing in reasonable detail the nature and effect of the injuries complained of. (Post, .p. 696.) Cases cited and approved: May .v. Railroad, 129 Tenn., 521; Curtain v. Railroad, 65 App. Div., 610; C'avanagh v. Railroad, 70 App. Div., 1; O’Neill v. Railroad, 87 App. Div., 556; Bogard v. Railroad, 3 Ann. Cas., 162. 11. PLEADING. Bill of particulars. Right of court to order. The court, in requiring plaintiff, suing for a personal injury, negligently inflicted, to furnish a hill of particulars, should exercise great caution, and thereby not impose on plaintiff the duty to furnish specifications which may embarrass him on the trial; and this is especially true where plaintiff sues in a representative capacity, as in action for death by wrongful act. {Post, pp. 696, 697.) 12. DAMAGES. Physical examination of the person injured. Refusal of plaintiff to submit to examination. Trial. Refusal of plaintiff suing for a personal injury to súbmit to a physical examination by a physician may be proved on the trial, and commented on in argument before the jury, in case no application for an examination is made to and acted on by the court. (Post, pp. 697, 698.) 13. DAMAGES. Physical examination of person injured. Orders for examination. The court, ordering an examination, by a physician appointed by it, of plaintiff suing for a personal injury, must safeguard the rights of plaintiff, and it must affirmatively appear that the precautions due plaintiff were exercised by the trial court; and plaintiff, complaining of an order for examination, need not point out deficiencies therein. (Post, p. 698.)
131 Tenn. 699Illinois Cent. R. v. Wilson (1915)
CARRIERS. Live stock shipment. Stipulation as to damages. Tlie stipulation in a contract of live stock shipment that the value of each animal does not exceed $100, and the carrier’s liability for any loss or damage shall not exceed such valuation, does not prevent recovery where an animal is after its injury worth $100, hut merely limits to such amount the recovery of damages measured by the ordinary rule of difference in market value with and without the injury. Cases cited and approved: Railroad v. Estill, 147 TJ. S., 591; Railroad v. Fagan, 72 Tex., 127; Railroad v. Hale, 85 Tenn., 69; Adams Express Co. v. Croninger, 226 U. S., 491; Railroad v. Carl, 227 U. S., 639; Railroad v. O’Conner, 232 U. S., 508; Brown v. Steamship Co., 147 Mass., 60; Railr.oad v. Reid, 91 Ga., 377. Cases cited and distinguished: Starnes v. Railroad, 91 Tenn., 516; The Styria Case, 101 Fed., 728.
131 Tenn. 705Boshwitz v. Lawhorn (1915)
1. ACKNOWLEDGMENT. Mortgage of wife’s property. Privy acknowledgment. A trust deed by a wife of her separate property not being privily acknowledged by her, as required by statute, is inoperative. (Post, p. 707.) Cases cited and approved: Robinson v. Queen, 87 Tenn., 445; Huff v. Glenn, 101 Tenn., 112. 2. VENDOR AND PURCHASER. Vendor’s lien. Waiver. A vendor does not waive his lien by taking, to secure the price, a trust deed from the purchaser, a married woman, inoperative against her, because not privily acknowledged by her. (Post, pp. 707-710.) Cases cited and approved: Gregg v. Jones, 52 Tenn., 448; Partridge v. Logan, 3 Mo. App., 509; Camden v. Vail, 23 Cal., 633; Lee v. Murphy, 119 Cal., 364; Hunton v. Wood, 101 Va., 54; Chapman v. Chapman, 55 Ark., 542; Haugh v. Blythe, 20 Ind., 24; Kent v. Gerhard, 12 R. I., 92; Davis v. Cox, 6 Ind., 481; Bakes v. Gilbert, 93 Ind., 70; Gilbert v. Bakes, 106 Ind., 558; Jones v. Rush, 156 Mo., 364; Gravlee v. Lamkin, 120 Ala., 210; Yeomans v. Bell, 79 Hun, 215; Bank v. Erwin, 2 Tenn. Cas., 442. 3. APPEAL AND ERROR. Contract of wife. Defense of cover-ture. Pleading in lower court. The defense of coverture, being a personal privilege, to prevent a personal judgment against a married woman on her notes, must be pleaded in the trial court, and cannot be asserted for the first time on appeal. (Post, p. 710.) Case cited and approved: Jackson v. Everett, 3 Tenn. Cas., 811.
131 Tenn. 711Binghampton Pharmacy v. First National Bank (1915)
BILLS AND NOTES. Presentment for payment. Effect of non-presentation. Negotiable Instruments Act (Acts 1899, eh. 94) sec. 87, provides that an instrument payable at a bank is equivalent to an order to the bank to pay it for the account of the principal debtor thereon. Section 70 provides that presentment for payment is not necessary to charge the person primarily liable, but that if the instrument is by its terms payable at a stated place and he is able and willing to pay it there at maturity, it is equivalent to a tender of payment. The makers of a note, at its maturity, had sufficient funds in the bank where it was payable to pay it, but it was not presented by the holder, and the bank subsequently failed. .Held, that the makers were not discharged, as by the terms of the instrument they were absolutely required to pay it, and were therefore primarily liable and not in the same position as the maker of a check who is only secondarily liable, and the obligation of the maker of a note is not a conditional promise to pay only at a specified place, but is a promise to pay generally, even though a place of payment is named. Acts cited and construed: Acts 1899, secs. 186, 87, 70, 61. Cases cited and approved: Adams v. Hackensack Improvement Commission, 44 N. J. Law, 638; Wood v. Saving Co., 41 Ill., 267; Ward v. Smith, 7 Wall., 447; Gas Co. v. Pinkerton, 95 Pa., 62; Rowe v. Young, 2 B. & B., 165; Grissom v. Bank, 87 Tenn., 350. Case cited and disapproved: Lazier v. Horan, 55 Iowa, 75. Case cited and distinguished: Sebag v. Abithol, 4 M. & S., 462; Turner v. Hayden, 4 B. & C., 1.
131 Tenn. 720Arnold v. New York Life Insurance (1914)
1. INSURANCE: Foreign life, insurance companies. Foreign life insurance companies authorized to do business in this State come within the provisions of the Act of 1906, ch. 457, and ch. 441, Acts of 1907. (Post, pp. 724, 725.) Acts cited and construed: Acts 1906, ch. 457; Acts 1907, ch. 441. 2. INSURANCE: Application for life insurance policy no part of contract unless attached to policy. Representations or warranties contained in an application for a life insurance policy are not available to the defendant insurance company as a defense in a suit on the policy unless the application or a copy thereof was attached to the policy at the time it was issued. (Post, pp. 725-727.) Cases cited and approved: Ellis v. Insurance Co., 64 Iowa, 507; Goodwin v. Assurance Association, 97 Iowa, 226; Seiler v. Life Association, 105 Iowa, 87; Corson v. Insurance Co., 113 Iowa, 641; Lenox v. Insurance Co., 165 Pa., 575; Corley v. Protective Association, 105 Fed., 854; Nugent v. Life Association, 172 Mass., 278; Insurance Co. v. Howell, 68 Ohio, 614. Cases cited and distinguished: Kirkpatrick v. Insurance Co., 19 L. R. A. (N. S.), 102; Johnson v. Insurance Co., 105 Iowa, 273.