135 Tenn.

Volume 135 — Tennessee Reports

56 opinions

135 Tenn. 1Maydwell v. Maydwell (1916)
1. TRUSTS. Removal of Trustee. Friction with beneficiary. Where testator’s will directed his widow as trustee to apply the income from a daughter’s share of the estate to the best interest of the latter and for her comfort, maintenance, and support, and friction developed between mother and daughter resulting in litigation and bad feeling, the mother will be removed as trustee on the daughter’s application, irrespective of the merits of the dispute. (Post, pp. S, 4.) 2. TRUSTS. Removal of trustee. Statute. The chancery court has jurisdiction, under Shannon’s Code, sections 5414, 5422, to remove a trustee for the causes enumerated in the statute and “for other good cause” at suit of the beneficiary. (Post, p. 4.) Code cited and construed: Secs. 5414, 5422 (S.) 3. TRUSTS. Removal of trustee. Equitable jurisdiction. A court of equity has inherent jurisdiction to remove a trustee, independent of statutory provisions, for good cause shown. (Post, pp. 4, 5.) Case cited and distinguished: May v. May, 167 IT. S., 310.
135 Tenn. 6Allen v. Chicago, Rock Island & Pacific Railroad (1916)
FROM SHELBY- Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Ben L. Capell, Judge.
135 Tenn. 13Pemiscot County Bank v. Central State Nat. Bank (1916)
1. BANKS AND BANKING. Cashier. Duties of. “Partnership.” Wliere a bank cashier who was also a member of a firm issued a draft to pay a firm obligation embezzling the bank’s funds in his capacity as cashier, the bank cannot recover from the payees the amount of the draft on the theory that the cashier was merely paying his own obligation; for the commercial idea is that a partnership is practically an entity separate from the members composing it; this being particularly true as the name of the partnership indicated it was a corporation (citing Words and Phrases, Partnership). (Post, pp. 15-17.) Cases cited and approved: Holmes v. Sarrett, 54 Tenn., 506; Lacey v. Cowan, 162 Ala., 546; House v. Thompson, 40 Tenn., 512. Case cited and distinguished: Menagh v. Whitwell, 52 N. Y., 146. 2. CORPORATIONS. Names. Presumptions. The name “Tindle Cotton Company” is'prima fade that of a corporation, and not a partnership, and will be so treated by way of presumption in the absence of proof. (Post, pp. 17, 18.) Case cited and approved: Ingle System Co. v. Norris, 132 Tenn., 472.
135 Tenn. 19Bank of Commerce & Trust Co. v. Burke (1916)
FROM SHELBY Appeal from the Chancery Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — P. H. Heiskell, Chancellor.
135 Tenn. 28Neill v. Metropolitan Casualty Insurance (1916)
JUDGMENT. Notwithstanding verdict. Party entitled to move. Where a case had been submitted to the jury and judgment entered on a verdict for the plaintiff, a judgment non obstante veredicto for the defendant rendered by the trial judge, at the request of the defendant, was error. Case cited and approved: Kirk v. Salt Lake City, 32 Utah, 143-. Case cited and distinguished: Bledsoe v. Chouning, 20 Tenn., 85..
135 Tenn. 35Boswell v. Barnum & Bailey (1916)
1. THEATERS AND SHOWS. Right to admission. The right of a purchaser of a ticket to enter and remain at a theater, circus, race track, or private park is a mere revocable license. (Post, pp. 38, 39.) Cases cited and approved: Meisner v. Ferry Co., 154 Mich., 545; Collister v. Hayman, 183 N. Y„ 250; Horney v. Nixon, 213 Pa., 20; W. W. Y. Co. v. Black, 113 Va., 728; Marrone v. Wash. Jockey Club, 227 U. S„ 638. 2. THEATERS AND SHOWS. Right to admission. No action will lie, in the absence of statute regulating admission to places of amusement, for refusal to admit any person. (Post, pp. 38, 39.) 3. THEATERS AND SHOWS. Right to admission. If the license of a ticket holder to enter a place of amusement be revoked, and the ticket holder ejected without necessary force, his only remedy is an action for breach of the contract, in which damages are limited to the ticket price and expenses incident to the purchase of the ticket and attending the place of amusement. (Post, pp. 38, 39.) 4. THEATERS AND SHOWS. Conduct of Parties. The patrons of places of amusement are required by law to demean themselves in an orderly and civil manner. (Post, pp. 39, 40.) Cases cited and approved: State v. Watkins, 123 Tenn., 502; Interstate Amusement Co. v. Martin, 8 Ala. App., 481; Weber-Stair Co. v. Fisher (Ky.), 119 S. W., 195. 5. THEATERS AND SHOWS. Liability for uncivil conduct towards patrons. The proprietor of a place of amusement is reguired to exercise civil conduct toward those he permits to enter and remain on his premises', and is liable in tort for breach of this duty. (Post, pp. 40, 41.) 6. THEATERS AND SHOWS. Injuries to persons attending. Acts of employe. Circus ushers, in acting uncivilly towards patrons in assigning seats, though acting in excess of their authority, held to be acting within the general scope of their authority. (Post, p. 41.) Case cited and approved: Terry v. Burford, 131 Tenn., 451.
135 Tenn. 42Preslar v. Mobile & O. R. (1916)
1. RAILROADS. Injuries to persons on tracks. Actions. Statute. Shannon’s Code, section 157, subd. 4, providing that every railroad company shall keep the engineer, fireman, or some other person on the locomotive always on the lookout ahead, and when any person appears upon the railroad, the alarm whistle shall be sounded, the brakes put on, and every possible means employed to stop the train and prevent an accident, does not apply where a trespasser, walking along the railroad right of way, was struck by a piece of timber which became loose and projected from a lumber car; for there was nothing to show the trespasser’s danger to the engineer, who did not • know of projecting-timber. (Post, pp. 45, 46.) Cases cited and approved: Cincinnati, etc., R. Co. v. Rrock, 132 Tenn., 477. Code cited and construed: Sec. 1574 (S.). 2. RAILROADS. Injuries to persons on tracks. Trespasser. Where the servants in charge of a train did not know that a piece of timber was projecting from a lumber car, they do not owe a trespasser on the right of way anv duty to exercise care to prevent him from being struck by the projecting timber. (Post, p. 46.) Cases cited and approved: Todd v. Cincinnati, etc., R. Co., 185 S. W., 62; Carr v. Mo. Pac. R. Co., 195 Mo., 214. 3. RAILROADS. Injuries to persons on tracks. Actions. Res ipsa loquitur. Where a trespasser on a railroad right of way was struck by a ' piece of timber which projected from a lumber car and it did not appear how the lumber was loaded or whether the timber was caused to project by reason of negligence of the railroad company and there was no showing as to how long it had projected, negligence on the part of the railroad company cannot be based on the doctrine of res ipsa loquitur. (Post, pp. 46, 47.) Case cited and approved: Chicago, etc., R. Co. v. Reilly, 212 111., 5:06. Case cited and distinguished: Louisville, etc., R. Co. v. Marlow, 169 Ky„ 140.
135 Tenn. 48Roberts v. Nashville, C. & St. L. Ry. Co. (1916)
1. COMMERCE. Interstate commerce.- Validity of contract. Complaint. A complaint for breach of contract by an interstate carrier for an expedited shipment which does not show that the carrier had no published tariff covering such shipments, does not show that the contract was illegal under the Interstate Commerce Act of Feb. 4, 1887, chapter 104, section 3, 24 Stat. 380 (U. S. Comp. St. 1913, section 8565), and the Elkins Act, Feb. 19, 1903, chapter 708, 32 Stat. 847.' (U. S. Comp. St. 1913, sections 8597-8599). (Post, pp. 50-54.) ' Acts cited and construed: Acts 1887, ch. 104, Sec. 3. Case cited and distinguished: Chicago, etc., R. Co. v. Kirby, 225 U. S., 155. 2. COMMERCE. Interstate commerce. Validity of contract. In an action for breach of an interstate carrier’s contrcat for an expedited shipment, where it appeared that there was no published tariff for such shipment, the contract was illegal under the Interstate Commerce Act and the Elkins Act, since it gave an undue advantage to the shipper, and there could be no recovery thereon. (Post, pp. 50-54.)
135 Tenn. 55Memphis Steel Construction Co. v. Walker (1916)
ATTORNEY AND CLIENT. Lien. Issuance of summons. Acts 1899, chapter 243, provides by sections 1 and 2 that attorneys of record be begin a suit in a court qf record shall have a lien upon plaintiff’s right of action from the filing of the suit, and that any attorney who is employed to prosecute a suit already brought shall have a lien on plaintiff's right of action from the date of his employment, provided, the record will first be made to show such employment-by notice on the rule docket of such court or written memorandum filed with the papers in the case or notice served on defendant. Shannon’s Code, sections 4445, 4518, declare that all civil actions in courts of record are commenced by summons. Defendant compromised an action by plaintiff before summons was served. Held, that until service of summons or some other notice of institution of the suit, plaintiff’s counsel had no lien which he could assert against defendant. Acts cited and construed: Acts 1899, ch. 243. Cases cited and approved: Railroad v. Wells, 104 Tenn., 706; Northup v. Haywood, 102 Minn., 307; Florida, etc., R. Co., 104 Ga„ 353. Code cited and construed: Secs. 4445, 4518 (S.).
135 Tenn. 60Denison-Gholson Dry Goods Co. v. Hill (1916)
1. FRAUDS, STATUTE OF. Real property. Mortgage. Description. A mortgage reciting the'mortgagor’s conveyance of “the following real estate,” one house and lot and storehouse, bounded on the east by east alley, south by Third street, west by Broad street, north by Fourth street, containing the entitre block between Third and Fourth streets, known in the plan of town as lots 53, 54, 55, and 56-, and on default authorizing the mortgagee to sell the real estate at “Eaton, in Gibson county, Tennessee, at public sale,” first advertising the sale by posters in three or more public places in Gibson county, one of which should be in the district in which the land lies, and one at the courthouse door in Trenton, Tennessee, or by advertising in some newspaper published in Gibson county,” which did not mention the residence of the mortgagor or the mortgagee, did not contain a sufficient description of the real estate conveyed to comply with the statute of frauds. (Post, pp. 62-68.) Cases cited and distinguished: Dobson v. Litton, 45 Tenn., 616; Johnson v. Klellogg, 54 Tenn., 262; Dougherty v. Chesnutt, 86 Tenn., 1; Wood v. Zeigler, 99 Tenn., 515; Railway v. Webster, 106 Tenn., 586. 2. EVIDENCE. Description of mortgaged premises. Parol evidence. In such case no particular realty was indicated with sufficient certainty to permit of parol proof to correct or apply the attempted description, as a description of land applicable with equal exactness to any one of a number of tracts cannot be aided by parol evidence. (Post, pp. 62-68.) 3. BILLS AND NOTES. Ratification. Mortgaged security. Where defendant, who had put some money in the business of her son-in-law, and must have known of his indebtedness, and that he had made an assignment of his stock of goods, after the execution of a forged note for $1,000 due January 1, 1912, purporting to be signed by her, executed a mortgage on realty “to secure the payment of one promissory note bearing this date and due January 1, 1912, for $1,000,” she thereby acknowledged the validity of the note and ratified its' execution in her name. (Post, pp. 68-70.) Case cited and distinguished: Railroad v. Roe, 118 Tenn., 601. 4. MORTGAGES. Requisites. Description of debt. A mortgage of realty "to secure the payment of one promissory note bearing this date and due January 1, 1912, for $1,000,” sufficiently described the indebtedness intended to be secured; as literal exactness in describing the debt is not required, and a description correct so far as it goes and full enough to direct attention to the sources of full information is sufficient. (Post, pp. 70, 71.) Cases cited and approved: Fitzpatrick v. School Com., 26 Tenn., 224; Stanford v. Andrews, 59 Tenn., 664; First Nat. Bank v. Tamble, 62 S. W., 308. 5. BILLS AND NOTES. Forgery. Estoppel. Statute. Where defendant by her mortgage of realty to secure a certain described note thereby adopted and ratified the note, although it had been forged, and where after her ratification and the delivery of the mortgage and the note to the mortgagee the mortgagee released and turned over to her son-in-law a stock of goods which had been previously assigned for the mortgagee’s benefit, an estoppel in pais arose against the defendant, precluding her from setting up forgery under section 23 of the Negotiable Instruments Act (Laws 1899, chapter 94). (Post, pp. 71, 72.) Acts cited and construe#: Acts 1899, ch. 94.
135 Tenn. 73Black v. Moree (1915)
1. HIGHWAYS. Frightening mule. Action against automobile owner. Instruction. Statute. In an action against an automobile owner for injuries to plaintiff on a highway, where the court charged that, if defendant failed to comply with Acts 1905, chapter 172, section 1, requiring the registration of • automobiles, his conduct was negligence per se, and that, if an injury resulted to plaintiff by reason of such negligence and the wrongful act of defendant in violating the statute, the latter was liable for damages, also that, if he had the machine registered, he had a right to operate it, hut, if it was not registered, he was liable for damages caused directly or proximately by its being operated along the public highway, such instruction was erroneous as leading the jury to conclude that defendánt was liable if the mule drawing plaintiff’s buggy took fright at the automobile, injury resulting consequently at a time when the automobile was on the public highway and not registered in defendant’s name, whether the defendant was or was not negligent in the management of the automobile under the common law or sections 3 and 4 of the act. (Post, pp. 75-81.) Acts cited and construed: Acts 1905,’eh. 173, sec. 1. 2. HIGHWAYS. Frightening mule. Liability of automobile owner. Statute. Where defendant’s automobile was not. registered as required by Acts 1905, chapter 173, when he operated it on the highway, and his failure to register it had no connection with and in no way caused the frightening of plaintiffs mule, which tipped over her buggy and injured her, defendant’s failure to register his car alone, without negligence in its operation, did noto render him liable to plaintiff; as the statute discloses no purpose to make failure to comply with its first section, requiring registration, the ground of liability of the owner of an automobile for any further sum than the fine of $25 to $100 prescribed by section 6. (Post, pp. 81-91.) Cases cited and approved: Chase v. Railroad, 208 Mass., 137; Dean v. Boston Elev. R. Co., 217 Mass., 495; Gould v. Elder, 219 Mass., 396; Bourne v. Whitman, 209 Mass., 155; Hughes v. Atlanta Steel Co., 136 Ga., 511; Shaw v. Thielb'ahr, 82 N. J. Law, 23; Birmingham R. R. Light & Power Co. v. Aetna Accident & L. .Co., 184 Ala., 601; Railroad v. Kelley, 91 Tenn,, .699; Postal Tel. Co. v. opfi, 93 Tenn., 369; Railroad v. Pugh, 97 Tenn., 625; Chattanooga L. & P. Co. v. Hodges, 109 Tenn., 331; Adams v. Inn. Co., 117 Tenn., 470; Yaulx v. Railroad, 120 Tenn., 316. Case cited and distinguished: Dudley v. St. Ry. Co., 202 Mass., 443; Feely v. Melrose, 205 Mass., 329; Armstead v. Lo.unsberry, 129 Minn., 34; Atlantic C. L. Co. v. Wier, 63 Fla., 64; Hemming v. New Haven, 82 Conn., 661; Lindsay v. Ceechi, 3 Boyce (Del.), 138; Weeks v. McNulty, 101 Tenn., 495; Demming v. Merchants’ Cotton Press, etc., Co., 90 Tenn., 306.
135 Tenn. 92Todd v. Cincinnati, N. O. & T. P. Ry. Co. (1915)
1. RAILROADS. Accidents at crossings. Proximate cause. Obtruction of crossing. The obstruction of a highway crossing by cars stopped across it is not the proximate cause of in.iury to a person who was struck by moving cars on another track while he was waiting to cross. (Post, pp. 98, 99.) Cases cited and approved: Alabama, etc., R. Co. v. Cox, 106 Miss., 33.; Du Boise v. R. R. Co., 88 Hun, 10; Jackson v. Nashville, etc., R. Co., 81 Tenn., 491; Beopple v. Railroad, 104 Tenn., 420; Selleck v. Lake Shore, etc., R. Co., 58 Mich., 195. Case cited and distinguished: Butterfield v. Forrester, 11 East., CO. 2. RAILROADS. Accidents. Statute. Switching. The statutes prescribing the precautions to be observed m the operation of trains do not apply to movements of cars during switching operations in railroad yards. (Post, pp. 99, 100.) Case cited an approved: Railroad v. Pugh, 95 Temí., 419. 3. RAILROADS. Accidents at crossings. Care of traveler. Continuing duty. The duty of a pedestrian approaching a railroad grade crossing to look and listen continues so long as he is on the track. (Post, p. 100.) Case cited and distinguished: Patton v. Railroad, 89 Tenn., 373. 4. RAILROADS. Accidents at crossings. Care of traveler. Sight and hearing. Where either the sense of sight or of hearing is not available on approaching a railroad crossing, the obligation of a pedestrian to use the other sense is stronger. (Post, p. 101.) Case cited and distinguished: Railroad v. Satterwhite, 112 Tenn., 185. 5. NEGLIGENCE. Contributory negligence. Last clear chance. The rule that, contributory negligence of the plaintiff will not bar recovery where defendant could have avoided the accident thereafter generally applies, in relation to successive acts of the parties, only to conscious misconduct of the defendant after discovering plaintiff’s peril, not to failure to exercise due care to discovering such peril. (Post, pp. 101-105.) Cases cited and approved: Davies v. Mann., 10 M. & W. 540; Tuff v. Warman, 2 C. B. (N. S.), 740; Radley v. London, etc, R. Co., 1 App. Cas., 759; Dunworth v. Grand Trunk, etc., R. Co., 127 Fed., 307; Chunn v. City, etc., R. Co., 207 U. S„ 302, Railroad v. Williford, 115 Tenn., 122; Railroad v. Roe, US Tenn., 610. Case cited and distinguished: Grigsby v. Bratton, 128 Tenn., 597. 6. NEGLIGENCE. Contributory negligence. Last clear chance. Simultaneous acts. Where the misconduct or negligence of plaintiff is simultáneous with that of defendant, or the act of plaintiff has not terminated as a causal factor, there can be no recovery under the doctrine of last clear chance. (Post, pp. 105-108.) Cases cited and approved: Teakle v. San Pedro, etc. R. Co., 32 Utah, 276: Bourrett v. Chicago, etc., R. Co., 152 Iowa, 579; Railway v. Haynes, 112 Tenn., 736; Inland, etc., Co. v. Tolson, 139 U. S., 551. 7. NEGLIGENCE. Contributory negligence. Last clear chance. Dangerous occupation. On principles of public policy, one who is engaged in a business hazardous to the public, such as operating a dangerous instrumentality, is required to 'be constantly on the lookout for others, and is liable for his negligent failure to keep such lookout, even to one who was negligent in subjecting himself to the danger. (Post, pp. 105-108.) 8. RAILROADS. Accidents at crossings. Contributory negligence. Last clear chance. Gross negligence. An adult pedestrian in full possession of his faculties who desired to cross a four-track railroad, the last track of .which was blocked by stationary cars, and who stopped on the third track and engaged for several minutes in conversation with another without at any time looking up the track to ascertain if another train was approaching, was guilty of such gross negligence as to preclude his recovery, even though the railroad' employees were bound to anticipate that a person might be there and negligently failed to perform their duty to look out, which negligence on their part would render the company-liable for injuries to one whose contributory negligence was not gross. (Post, pp. 108-113.) Cases cited and approved: Inland & Seaboard Coasting Co. v. Tolson, 139 U. S., 5'51: Railway Co. v. Ives, 144 U. S., 408; St. Louis, etc., R. Co. v. Schumacher, 152 ü. S., 77; 111. Cent. R. Co. v. Ackerman, 144 Fed., 959; Chunn v. .City & Suburban Ry. Co., 207 II. S., 302; Rider v. Syracuse Rapid Transit Co., 171 N. Y., 139; Moore-v. Phila., etc., R. Co., 108 Pa., 349; Muscarro v. Railroad Co,, 192 Pa. 8; Atchéson, etc., R. Co. v. Withers', 69 Kan., 620; So. R. Co. v. Bailey, 110-Va., 833; Oliver Iowa Cent. R. Co., 122 Iowa, 222; Buckley v. Flint, etc., R. Co., 119 Mich., 583; Meinrenkin v. N. Y. Cent., etc., R. Co., 81 App. Div., 132. Cases cited and distinguished: Quinn v. Chicago, etc., R. Co., 162 Ind., 442; Dunworth v. Grand Trunk; etc., R. Co., 127 Fed., 307; Denver City Tramway Co. v. Cobb, 164 Fed., 41; Zirkle v. Railway Co., 67 Kan., 77. 9. RAILROADS. Accidents at crossings. Contributory negligence. , Distraction of attention. Where a pedestrian, desiring to cross a four-track railroad, stopped on the third track to wait until the cars obstructing the fourth track were removed, and was there struck by cars moving along the third track, the fact that he was watching a train approach- . ing from the opposite direction on the second track does' not relieve him from contributory negligence, since distraction of attention excuses failure to exercise the senses only when it renders their Use impracticable. (Post, pp. 113-116.) Cases cited and approved: Piper v. C., M. & St. P. R. Co., 77 Wis., 247; Schneider v. C., M. & St. P. R. Co., 99 Wis., 386; Koester v. C. & M. W. R. Co., 106 Wis., 460; Railroad v. Dies, 98 Tenn., 655; Wilson v. Citizens’ St. R. Co., 105 Tenn., 74; Middle Tenn. R. Co. v. McMillan, 184 S. W. -. Case cited and distinguished: Guhl v. Whitcomb, 109 Wis., 69.
135 Tenn. 117Green v. United States Fidelity & Guaranty Co. (1915)
1. PRINCIPAL AND SURETY. Fidelity bonds. Construction of contract. Contracts of fidelity insurance are to be likened to contracts of insurance rather than to contracts of personal suretyship, and are to be construed by the same exact rules of the law of insurance, and the language of the bond, being that selected and employed by the insurer issuing it for a consideration, when ambiguous or doubtful, must be given the strongest interpretation in favor of the person indemnified which it will reasonably bear. (Post, pp. 121, 122.) Cases cited and approved: Anderson v. Fitzgerald, 4 H. L. Cas., 484; American Surety Co. v. Pauly, 170 U. S., 133; Railroad v. Fidelity & G. Co., 125 Tenn., 690; Guarantee Co. v. Savings Bank, 183 U. S., 419; Seay v. Georgia Life Ins. Co., 132 Tenn., 673. 2. PRINCIPAL AND SURETY. Fidelity bonds. Construction of contract. Embezzlement. Under a fidelity bond executed by the president of a banking and trust company as principal and a fidelity company as surety to save the bank harmless from any pecuniary loss sustained by reason of the fraud or dishonesty of the' principal amounting to embezzlement 'or larceny, it is not necessary to a recovery that the insured introduce such proof as would convict the principal of the crime of larceny or embezzlement, as defined by the criminal law. (Post, pp. 122, 123.) Cases cited- and approved: Aetna Indemnity Co. v. Crowe Coal ■ & M. Co., 154 Fed., 545; Champion Ice Mfg. Co. v. Am. Bonding Co., 115 Ky., 863; City Trust, etc. ,Co. v. Lee, 204 111., 69; Rankin v. U. S. Fid. & G. Co., 86 Ohio St., 267. 3. PRINCIPAL AND SURETY. Fidelity bonds. Renewal contract. Construction. Term. Under a fidelity bond against pecuniary loss from the fraud or dishonesty of the president of a banking and trust company amounting to embezzlement or larceny, issued in 1908, which provided indemnity during the term, and any subsequent renewal of such term by reason of the specified acts “committed during the continuance of such term or any renewal thereof, and discovered during said continuance or any renewal thereof, or within six months thereafter, expressed an intention to protect against losses within the period specified in the bond, and provided that on its execution the insurer should not thereafter be liable under any bond previously issued to the insured, and that on the issuance of any subsequent bond all liability should cease, that only one bond should be in force at one time, unless otherwise stipulated, and which was renewed annually upon an additional consideration, “subject to all the covenants and considerations of the original bond,” the renewals constituted separate contracts, and the insured could not recover unless the alleged defaults occurred on some specified date or in some specified period covered by one of such contracts, and discovered within the time limited therefor. (Post, pp. 123-137.) Cases cited and approved: (Fidelity & Cas. Co. v. Consolidated Nat. Bank, 71 Fed., 116; Fidelity Deposit Co. v. Champion, 133. Ky., 74; Hawley v. U. S. Fid. & G. Co.-, 100 App. Div., 12; Campbell Milk Co. v. U. S. Fid. & G. Co., 161 App. Div., 738. Cases cited and distinguished:* De Jernette v. Fid. & C. Co., 98 Ky., 558; U. S. Fid. & G. Co. v. Williams, 96 Miss., 10; Proctor Coal Co. v. ü. S. Fid. & G. Co. (C. C.), 124 Fed., 424; U. S. Fid. & U Co. v. Citizens’ Nat. Bank, 147 Ky., 287; U. S. Fid. & G. Co. v. Shepherds’ Home, 163 Ky., 706; First Nat. Bank v. U. S. Fid. & G. Co., 110 Tenn., 10. 4. PRINCIPAL AND SURETY. Fidelity bonds. Proofs of loss. Liability. Under such bond, providing that the insurer at the expiration of three months after satisfactory proof would pay its liability, and that on the discovery of any act which might result in a claim the insured should as soon as possible give notice to the insurer in writing, and should within three months after the discovery of the default furnish the insurer reasonable particulars and proofs of the correctness' of the claim, and declaring that the bond should be void if the employer failed to give such notice, but not providing that a failure to make proofs of the correctness of the claim should forfeit the bond, the allegation of a claim duly made showed that the complaint as the commencement of the action was filed after the lapse of such three months’ period. (Post, pp. 137, 138.) Cases cited and approved: Ins. Co. v. Whitaker, 112 Tenn., 151; Dixon v. State Mut. Ins. Co., 34 Okl„ 624. 5.. PRINCIPAL AND SURETY. Fidelity bonds. Denial of liability. Time to use. Waiver. A denial of its liability on its fidelity bond made when notice of a claim was given waived the provision of the bond tending to render the suit premature, if brought before the expiration of three months after proof of loss. (Post, pp. 138, 139.) Cases cited and approved: French v. Fid. & C. Co., 135 Wis., 259; Jennings v. Brotherhood Acc. Co., 44 Colo., 68; Atlantic Horse Ins. Co. v. Nero (Miss.), 66 South., 780.
135 Tenn. 140Perkins v. Brown (1916)
COSTS. On appeal. Expense of bill of exceptions. Unnecessary matter. “Full costs.” Where a successful appellant in an action at law, by violating supreme court rule 2 (126 Tenn. 716, 160 S. W. vii), requiring bills of exception to state testimony in narrative and concise form, increased materially the size of the transcript, he should pay one-half of the appeal costs, notwithstanding the rule that in actions at law the successful party is entitled to recover full costs, since “full costs” -do not include costs so added. Cases cited and approved: Perkins v. Brown, 132 Tenn., 294; Cincinnati, etc., R. Co. v. Shelton, 123 Tenn., 513.
135 Tenn. 143Bledsoe v. State (1916)
1. RAPE. Evidence. Corroboration of female. In Pub. Acts 1911, chapter 36, providing punishment for criminal abuse of females, the proviso that no conviction shall be had on the unsupported testimony of the female is complied with if there is adduced sufficient evidence of another than the female which fairly tends to convict the defendant of the crime. (Post, p. 144.) i Acts cited and construed: Acts 1911, ch. 36. Cases cited and approved: Clapp v. State, 94 Tenn., 186; Suther v. State, 118 Ala., 88; State v. Hayes, 105 Iowa, 82; State v. Brassfield, 81 Mo., 151. 2. RAPE. Evidence. Corroboration of female. Such evidence need not be direct and positive, in the sense of being sufficient to convict, independent of that of the female alleged to have been debauched, but simply as to such facts or circumstances as tend to support the female in her testimony upon fact or facts éssential to constitute the offense. (Post, pp. 144, 145.) Cases cited and approved: Wright v. State, 31 Tex. Cr. R„ 354; State v. Smith, 84 Iowa, 522.
135 Tenn. 146Paul Jones & Co. v. Wilkins (1916)
1. INTOXICATING LIQUORS. Illegality. Right of action for price. Mere knowledge on the part of a seller of intoxicants that the buyer intends illegally to resell the liquors will not render the contract void, so as to bar the seller’s action for the purchase price, though if the seller participates in or contributes to the purchaser’s intention to sell illegally, or does any act to facilitate or further the design to transgress the law, or has an interest therein, the right to recover the price is lost. (Post, p. 148.) Cases cited and approved: Bank v. Burke, 185 S. W., 704; Tracy v. Talmadge, 14 N. Y., 173; Anheuser-Busch Brewing Assn. v. Mason, 44 Minn., 318; Washington Liquors Co. v. Shaw, 38 Wash., 398; Frankel v. Hillier, 16 N. D. 387. 2. INTOXICATING LIQUORS. Sale of Intoxicating liquors. Recovery of price. Statute. Where the seller of liquors knew through its local agent that the buyer was running a wide-open liquor saloon in violation of law, and made the shipment to a transfer company, not to the consignee, marked merely with his initials, so that the public would not know to ■ whom it was to be delivered, such seller could not recover the price, having aided the buyer’s design to transgress the law and circumvented the legislature’s object in passing Acts (Ex. Sess.) 1913, chapter 1, requiring common carriers to cause all consignees of liquor to sign, before delivery, an affidavit setting out his name, etc. (Post, pp. 148-150.) Acts'cited and construed: Acts 1913, ch. 1. Cases cited and approved: Kohn v. Melcher (C. C.), 43 Fed., 641; Feineman v. Sachs, 33 Kan., 621; Corbin v. Houlehan, 100 Me. 246; Gaylord v. Soragén, 32 Vt., 110.
135 Tenn. 151Hiller v. Crenshaw (1916)
COMMERCE. “Interstate commerce.” Engagement in by liquor dealer. Statute. Under Acts 1909, chapter 479, section 4, subjecting the occupation of wholesale liquor dealer to a privilege tax, making it a misdemeanor to exercise the privilege without first paying the tax, and section 16, providing that the inhibition of the act shall not apply to any person engaged in interstate commerce, a liquor dealer, who sold to customers out of the State, securing his supply from other dealers in the city, who carried a “borrow and loan” account with such other dealers and in turn supplied them with liquors, thus balancing accounts, but making settlement by cash payment in one case, was doing an intrastate business, and so liable for the tax. Acts cited and construed: Acts 1909, eh. 479, sec. 4. Cases cited and approved: Heyman v. Hays, 35 Sup. Ct., 403; Cargill v. Minnesota, 180 U. S., 452; Tombeaugh v. State, 50 Tex. Cr. R„ 286; Ray v. State, 46 Tex. Cr. R., 176; Howard v. State, 72 Tex. Cr. R„ 624; State v. Mitchell, 156 N. C., 659; Com. v. Abrams, 150 Mass., 393; Brown v. State, 121 Tenn., 186; Jones V. State, 66 So., 987. Code cited and approved: Sec. 6783 (S.).
135 Tenn. 156Travis v. Sitz (1915)
1. HUSBAND AND WIFE. Wife’s separate estate. Conveyance creating. In a conveyance of real estate to a' daughter, to take effect after the death of the grantor and his wife, the words “to have and to hold said tract of land to the said L. H. and her heirs, free from the debts, liabilities, or contracts of her husband if she should ever marry, and not to be liable to be sold for the debts of any husband she may have if she ever marries,” created a separate estate, without the aid of a clause restraining alienation. (Post, pp. 163-167.) Cases cited and approved: Darley v. Darley, 3 Atk., 399; Cape v. Capé, 2 Y. & C., 543; Lee v. Prideaux, 3 Bro. Chy., 383; Tyrrell v. Hope, 2 Atk., 558; Prichard v. Ames, T. & R., 222; ■ Kirk v. Paulin, 7 Vin. Abr., 95; Atcherly v. Vernon, 10 Mod., 531; Wagstaff v. Smith, 9 Ves., 520; Dixon v. Olmius, 2 Cox, 414; Simmons v. Hórwood, 1 Keen, 9; Tullett v. Armstronge, 1 Beav., 1; Bain v. Lescher, 11 Sim., 397; Margetts v. Bar-ringer, 7 Sim., 482; Gouler v. Camm, DeG., F. & J., 146; Tyler v. Lake, 2 R. & M., 188; Powell v./Powell, 28 Tenn., 477; Barnum v. Le Master, 110 Tenn., 638; Williford v. Phelan, 120 Tenn., 589; Mitchell v. Bank, 126 Tenn., 669; Hamilton v. Bishop, 16 Tenn., 33; Beaufort v. Collier, 25 Tenn., 487; Loftus v. Penn, 31 Tenn., 445; Gardenhire v. Hinds, 38 Tenn., 402; Pearson v. Davis, 48 Tenn., 593; Eaves v. Gillespie, 31 Tenn., 128; Woods v. Sullivan, 1 Swan, 507; Houston v. Embry, 33 Tenn., 480; Meredith v. Owen, 36 Tenn., 223; Baggett v. Meux, 1 Coll., 138; Stogdon v. Lee, 1 Q. B„ 661; Molloy v. Clapp, 70 Tenn., 586; Wood v. Polk, 59 Tenn., 220. Cases cited and distinguished: Grotenkemper v. Carver, 77 Tenn., 280; Young v. Young, 56 N. C., 216; Martin v. Bell, 9 Rich. Eq. (S. C.), 42. 2. HUSBAND AND WIFE. Wife’s separate estate. - Statute. Shannon’s Code, sections 4234, 4235, providing that there can be no dispossession of the husband or wife on a sale under execution of the husband’s interest in the wife’s general real estate during the life of the wife, that it cannot during her life be aliened by the husband, and Acts 1879, chapter 141, reducing the husband’s rights of curtesy in the wife’s land, have no bearing on the inferences to be drawn from the language of a deed showing an intention to create a separate estate in the wife. (Post, pp. 167-169.) Acts cited and construed: Acts 1879, ch. 141. Cases cited and approved: Coleman v. Satterfield, 39 Tenn., 259; Lucas v. Rickerieh, 69 Tenn., 728; Garth & Buckman’v. Fort, 83 Tenn., 68'3; Key v. Snow, 90 Tenn., 663; McCallum v. Petigrew, 57 Tenn., 394; Corley v. Corley, 67 "Tenn., 7; Bryant v. Freeman, 131 Tenn., 87; Parlow v. Turner, 132 Tenn., 339; Abies v. Abies, 86 Tenn., 333; Price v. Planters’ Nat. Bank, 92 Va„ 468. Codes cited and construed: Secs. 4234, 4235 (S.). 3. HUSBAND AND WIFE. Wife’s separate estate. Necessity of trustee. A trustee is not essential to the creation of a separate estate. (Post, p. 169.) Case cited and distinguished: Hamilton v. Bishop, 16 Tenn., 33. 4. HUSBAND AND WIFE. Separate estate. Property of wife at time of marriage. Although property may be given to a woman to her sole and separate use while she is single, and not in contemplation of any particular intended marriage, the peculiar properties of the separate estate did not and cannot exist until she is married. (Post, p. 169.) 5. PERPETUITIES. Restraint on alienation. Wife’s separate estate. A deed to a daughter, creating a separate estate, providing that the land was given without power of disposal in any way, and not to be liable to be sold for her debts, or the debts or liabilities of any husband, was not invalid as a restraint on alienation. (Post, pp. 169-171.) Cases cited and approved: Clive v. Carew, 1 John. & Hem., 199; Sheriff v. Butler, 12 Jur. (N. S.), 329; Lady Bateman v. Faber, 67 L. J. Ch., 130; Stanley v. Stanley, 7 Ch. Div., 589; Richards v. Chambers, 10 Ves., 580; Tullett v. Armstrong, 4 Myl. & Cr., 377; Hauser v. St. Louis, 170 Fed., 906. Case cited and distinguished: Baggett v. Meux, 1 Coll., 138-153. 6. HUSBAND AND WIFE. Wife’s separate estate. Statute. Acts 1913, chapter 26, removing the disabilities of coverture in respect of married women, and practically making their estates separate, does not interfere with or disturb the creation or operation of equitable separate estates, since the removal by the statute of the wife’s disabilities increased rather than diminished the necessity for such estates. (Post, pp. 171-177.) Acts cited and construed: Acts 1913, ch. 26. Cases cited and approved: Pooley v. Webb, 43 Tenn., 599; Young v. Young, 47 Tenn., 461; Hix v. (Gosling, 69 Tenn., 560; Eclcerly v. McGhee, 85 Tenn., 664; Webster v. Helm, 93 Tenn., 322; Bank v. James, 95 Tenn., 8; Robinson v. Queen, 87 Tenn., 445; Musson v. Trigg, 51 Miss., 172; Hooks v. Brown, 62 Ala., 258; Holliday v. Hively, 198 Pa., 342. Cases cited and distinguished: MacConnell v. Lindsay, 131 Pa., 476; Hays v. Leonard, 155 Pa., 474. 7. EQUITY. Bill of review. Right to file. Minors. A minor may file an original bill in the nature of a bill of review to question matters adjudged against him. (Post, pp. 177, 178.) Cases cited and approved: Livingston v. Noe, 69 Tenn., 63; Mc-Cown v. Moores, 80-Tenn., 635; Winchester v. Winchester, 38 Tenn., 460; Anderson v. Ammonett, 77 Tenn., 1; Greenlaw v. Greenlaw, 84 Tenn., 435; Wilson v. Schaefer, 107 Tenn., 300; Stephens v. Porter, 58 Tenn., 341; Puckett v. Wynns, 132 Tenn., 513. 8. EQUITY. Bill of review. Collateral attack. Innocent purchaser. The rights of an innocent purchaser under a decree could not be interfered with, either by a bill of review for error apparent or an original bill in the nature of a bill of review. (Post, pp. 177, 178.) 9. DEEDS. Rights of heirs. Separate estate of wife. Under a deed creating a separate estate in a wife, her children could have no interest, save as her heirs at law. (Post, pp. 178, 179.) Cases cited and approved: Hix v. Gosling, 69 Tenn., 560; Old Folk’s Society v. Millard, 86 Tenn., 657. 10.HUSBAND AND WIFE. Wife’s separate estate. Restraint on alienation. Power of court. Where a bill was filed by the husband and wife in substantially an ex parte proceeding for the purpose of obtaining leave of the chancellor to violate a clause restraining alienation in a deed creating a separate estate in the wife, the chancellor was without jurisdiction of the subject-matter, and his decree was inoperative. (Post, pp. 178, 179.) 11. JUDGMENT. Collusive decree. Effect. A coliusive decree between husband and wife can be treated, as to third parties, only as a deed between them. (Post. pp. 178, 179.) 12. JUDGMENT. Collusive decree. Construction of deed. . A' collusive decree, obtained by a husband and wife concerning the validity of a deed, or of any clause thereof, filed against persons' who on the face of the bill had no interest in the controversy, will be treated as to third persons only as a deed between the husband and wife. (Post, pp. 178, 179.) 13. ABATEMENT AND REVIVAL. Other action pending. Ground for demurrer. To recover land conveyed in violation of a restraint on alienation, pendency of a prior suit on the same matter would not be ground of demurrer, but for motion to elect. (Post, pp. 179, 180.) Case cited and approved: Clark v. Garrett, 74 Tenn., 262. 14. ABATEMENT AND REVIVAL. Grounds Other action pending. Pendency of a prior suit will not be ground for a plea in abatement, where the bill states that the record in the old case has been lost and cannot be found. (Post, pp. 179, 189.) 15. HUSBAND AND WIFE. Separate estate of wife. Conveyance. The rule that a married woman will not be permitted in a court of equity to disaffirm a voidable sale made by her, the consideration of which has been paid directly to her, except on condition that she refund the purchase money, or that it be declared a lien on the property, does not apply where the sale has been made in violation of a restraint on alienation. (Post, pp. 180-182.) Cases cited and approved: Bradshaw v. Van Vallcenburg, 97 Tenn., 316; Cox v. Building & Loan Association, 101 Tenn., 490; Harris V. Smith, 98 Tenn., 286; Pilcher v. Smith, 39 Tenn., 208; Aiken v. Suttle, 72 Tenn., 103; Bank v. James, 95 Tenn., 8; Richards v. Chambers, 10 Ves., 580. 16. HUSBAND AND WIFE. Separate estate of wife. Conveyance. Where a married woman disaffirms a sale made by her of her separate estate, voidable because of a restraint on alienation, she may recover such rents acruing from the date when she surrendered possession. {Post, pp. 182, 183.) Cases cited and approved; Rowan v. Riley, 66 Tenn., 67; Smith v. .Heirs, etc., of Thomas, 83 Tenn., 324; Combs v. Combs, 131 Tenn., 66. 17. DESCENT AND DISTRIBUTION. Right of heirs. Wife’s separate estate. Where a sale by a married woman of property constituting her separate estate is void because of a restraint on alienation, although her heirs at law cannot recover rents accruing before her death, in the absence of a tenancy by curtesy in the surviving husband, they could recover for rents not in arrears at her death. {Post, pp. 182, 183'.) 18. CURTESY. Requisites. Wife's separate estate. Where there was no language, in a deed creating a separate estate, cutting off the husband’s marital rights beyond the death of the wife, which intention must be clearly expressed, all the elements of a tenancy by curtesy existing, marriage, birth of issue capable of inheriting, seisin in the wife, and death of the wife, the husband was entitled to a tenancy by curtesy. {Post, pp. 183, 184.) Cases cited and approved; Carter v. Dale, 71 Tenn., 710; Frazer v. Hightower, 59 Tenn., 94; Bingham v. Weller, 113 Tenn., 70; Monroe v. Van Meter, 100 111., 347. 19. CURTESY. Wife’s separate estate. Construction of deed. Under Shannon’s- Code, section 3672, making the use of the words “heirs and assigns’’ unnecessary, the failure to use the word “assings,” in a deed conveying a separate estate and imposing a restraint on alienation, would not defeat the surviving husband’s right to a tenancy by curtesy. (Post. pp. 184, 185.) Cases cited and approved: Teague v. Sowder, 121 Tenn., 132; Kendall v. Clapp, 163 Mass., 69; Goetz v. Ballou, 64 Hun, 490; Johnson v. Morton, 28 Tex. Civ. App. 296. Code cited and construed: Sec. 3672 (S.). 20. CURTESY. Wife’s separate estate. Construction of deed. . The words “and her heirs, free from the debts, liabilities, or contracts of her husband if she should every marry,” in a deed creating a separate estate in a wife, did not by the use of the word “heirs” import a purpose to cut off a right to a tenancy by curtesy in the surviving husband. (Post, p. 185.) Case cited and approved: Templeton v. Twitty, 88 Tenn., 595. 21. CURTESY. Requisites. Release by death of issue. Where all the requisites of a tenancy by curtesy have existed, the husband is entitled to curtesy on surviving his wife, although all issue have died. (Post, pp. 185, 186.)
135 Tenn. 187Merchants' Cotton Press & Storage Co. v. Miller (1916)
LANDLORD AND TENANT. Premises. Injuries from defects. Employee of tenant. Where .the landlord has agreed to keep the premises in repair, and after notice neglects tó do so, he will be liable to an employee of the tenant who is injured by the defect. Cases cited and approved: Thompson v. Clements, 96 Me., 1-96; Davis v. Smith, 26 B. I., 129; Cavalier v. Pope (1905), 2 K. B., 757; Cameron v. Young, 12 Ann. Cas., 49; Brady v. Klien, 133 Mich., 422; Dustin v. Curtis, 74 N. H., 266; Shute v. Bills, 191 Mass., 433; Edwards v. N. Y., etc., R. Co., 98 N. Y., 245; Still-well v. South Louisville Land Co. (Ky.), 58 S. W., 696; Thomas v. Yannuci, 185 111. App., 414; Patten v. Bartlett, 111 Me., 409; Flood v. Pabst Brewing Co., 158 Wis., 626; Stenburg v. Will-cox, 96 Tenn., 163; Miles v. Janvrin, 196 Mass., 431; Hutchinson v. Cummings, 156 Mass., 329; Glynn v. Lyceum Theatre Co., 87 Conn., 237; Monahan v. Nat. Realty Co., 4 Ga. App., 680; White v. Sprague, 9 N. Y. St. Rep., 220; Baird v. Shipman, 33 111. App., 503. Cases sited and distinguished: Ryall v. Kidwell (1913), 3’ K. B., 123; Campbell v. Portland Sugar Co., 62 Me., 552.
135 Tenn. 198Illinois Cent. R. Co. v. Centerville Telephone Co. (1916)
1. RAILROADS. Right of way. Easement. Deeds to a railroad right of way construed, and held to convey only an easement, the fee remaining in the grantor. {Post, p. p., 199, 200.) Cases cited and approved: Railroad v. Aslin, 186 S. W!., —; Mc-Lemore v. Railroad, 111 Tenn., 639. 2. TELEGRAPHS AND TELEPHONES’. Railroad right of way. Right of telephone lines to cross. A railroad company, having only an easement in its right of way, does not own to the sky, and cannot enjoin the crossing of overhead telephone wires so long as they do not impair the reasonable and safe use of the easement. {Post, pp. 200, 201.) Cases cited and approved: Flaherty v. Fleming (W. Va.), 3 L. R. A. (N. S.), 461; Bitello v. Lipson (Conn.), 16 D. R. A. (N. S.), 193. 3. COSTS. Change in subject-matter pending suit. During the pendency of an action to enjoin telephone companies from constructing lines across a railroad right of way, defendants erected new poles and strung wires thereon properly, the previous construction being defective. Held that costs in lower court should be paid by defendants, while costs of appeal should be paid by appellant railroad company. {Post, p. 201.)
135 Tenn. 202Mengel Box Co. v. Fowlkes (1916)
1. STATUTES. Construction. Title of act. Priv. Acts 1815, chapter 186, entitled “An act to establish a levee and drainage district . . . and for the purpose of draining and the reclamation of the wet and swamp lands, . . . and prescribe the method of doing so, and providing for the assessment and collection of the cost and expense of such improvment, and the manner of obtaining the means and funds therefor,” is violative of Constitution article 2, section 17, providing that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title, in that section 4 of the act provides that a court composed of the chairman or judges of the county courts of the counties within the district shall sit once each month for the purpose of hearing and determining such questions as may be necessary to be passed upon under the act; it creating a new and independent court. (Post, pp. 203-206.) Acts cited and construed: Acts 1915, ch. 186. Constitution cited and construed: Art. 2, sec. 17. 2. COURTS. Definition. A court is an instrumentality of soverignty, the repository of its judicial power, with authority to adjudge as to the rights of person or property between adversaries; the presence of judges being necessary as an essential element. (Post, pp. 206, 207.) Case cited and distinguished: Railroad v. Crider, 91 Tenn., 489.
135 Tenn. 208Farabee-Treadwell Co. v. Union & Planters' Bank & Trust Co. (1916)
1. ACTION. Contract or tort. Action on contract. An action against the bank for damages resulting from breach of a contract to loan money is an action sounding in contract, and not in tort. (Post, pp. 212, 213.) Case cited and approved: James v. Bank, 105 Tenn., 1. Code cited and construed: Sec. 4468 (S.) 2. CONTRACTS. Mutuality. Contract to loan money. A bank is liable for breach of a contract to loan money in consideration of the transfer of a deposit, such a contract not being unilateral, the consideration being the agreed transfer of deposit. (Post, pp. 214-216.) Cases cited and approved: Lowe v. Turpie, 147 Ind., 652; Anderson v. Hilton & D. Lbr. Co., 121-Ga., 688; Hedden v. Schneblin, 126 Mo. App., 478; Holt v. United Security L. Ins. & T. Co., 76 N. J. Law. 585; Bixby-Theirson Lbr. Co. v. Evans, 167 Ala., 431; Case cited and distinguished: Manchester & O. Bank v. Cook, 49 L. T. N. S., 694. 3. DAMAGES. Contracts to loan money. Damages for breach, Loss of profits. Where a bank breached a contract to loan a grain dealer money with which to pay for corn purchased, and the grain dealer was thereby compelled to make a forced sale of the grain, he was entitled to recover the loss actually suffered by reason of the forced sale, but he was not entitled to recover a profit which he might have made by reason of an advance in the market; such profit being purely speculative. (Post, pp. 216, 217.)
135 Tenn. 218McCormick v. State (1916)
1. WITNESSES. Competency. Husband and wife.. Objections. Time. The defendant in a criminal case should object to the offer of his wife as a witness against him when she is first offered. {Post, pp. 221, 222.) Code cited and construed: Sec. 7199 (S.). 2. STATUTES. Validity. Subjects and titles of acts. Acts 1915, chapter 161, entitled “An act to permit the husband or wife to testify,” and providing that they shall be competent to testify for or against each other in criminal cases, is not invalid, under Constitution article 2, section 17, providing that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title; the means employed in the act being the only way of accomplishing the object stated in the title, regardless of whether the words may compel the spouse to testify, that being an incidental result. '{Post, pp. 222-224.) Acts cited and construed: Acts 1915, ch. 161. Case cited and approved: Cannon v. Mathes, 55 Tenn., 521. Constitution cited and construed: Art. 2, sec. 17. 3. WITNESSES. Privilege. Husband and wife. Acts 1915, chapter 161, making the husband and wife competent witnesses for or against each other in criminal cases, does not destroy the rule that communication between them by virtue or in consequence of the marital relation, or any confidential communications between them, are inadmissible. {Post, pp. 224-228.) Acts cited and construed: Acts 1915, ch. 161; Acts 1879, ch. 200. Cases cited and approved: Patton v. Wilson, 70 Tenn., 101; Orr v. Cox, 71 Tenn., 621; Hyden v. Hyden, 65 Tenn., 408; Brewer v. Ferguson, 30 Tenn., 565; Kimbrough v. Mitchell, 38 Tenn., 540; Barker v. McAuley, 51 Tenn., 424; Mercer v. State, 40 Fla., 216; Ex parte Beville, 58 Fla., 170. Cases cited and distinguished: Ins. Co. v. Shoemaker, 95 Tenn., 82; Norman v. State, 3«27 Tenn., 355. Code cited and construed: Secs. 5596, 5597 (S.). 4. WITNESSES. Confidential relations. Husband and wife. Time for objections. An objection by one accused of crime to a question asked his wife as witness, before the answer, because calling for confidential matter arising out of the marital relation, was properly and seasonably made. (Post, pp. 228-230.) Case cited and approved: Kimbrough v. Mitchell, 38 Tenn., 540. 5. CRIMINAL LAW. Trial. Objections. Repetition. It is not necessary to repeat an objection to a question put to a witness, one ruling on one question being enough, nor is repetition of similar exceptions required. (Post, pp. 230, 231.) Case cited and approved: L. & N. R. R. Co. v. GoWer, 85 Tenn., 471. 6. WITNESSES. Privilege. Waiver. Where the objectionable portions of testimony of defendant’s wife were not brought out on cross-examination, he did not ■ by the cross-examination waive his right to object and except to such testimony, especially where he moved to strike all her testimony. (Post, pp. 231-233.) Cases cited and approved: Baxter v. State, 83 Tenn., 664; White v. Suttle, 31 Tenn., 174; Tobin v. Railroad (Mo. 1891), 18 S. W„ 996; Martin v. Railroad (1886), 103 N. Y., 626; Thomas v. State, 121 Tenn., 83; Scott v. Bank, 123 Tenn., 287. Cases cited and distinguished: Horres v. Berkeley Chemical Co., 57 S. C., 189; Cathey v. Railroad, 104 Te^> 39; Barker v. Railroad, 126 Mo., 143. 7. WITNESSES. Privileged writings. The general rule Is that letters between spouses are privileged, falling within the privilege for confidential communications which prevails between husband and wife. (Post, pp. 233-237.) Cases cited and approved: State v. Wallace, 162 N. C., 622; Gross v. State, 61 Tex. Cr. R., 176. 8. CRIMINAL LAW. Trial. Conduct of counsel. Counsel should not argue from evidence excluded by the court, or upon other cases, where there is nothing in the record to sustain the reference. (Post, pp. 2S'7, 238.)
135 Tenn. 238Heiskell v. Morris (1916)
1. CORPORATIONS. Liability of shareholders for subscriptions. Under a subscription contract, making all subscriptions contingent upon the whole amount being subscribed, no assessments can be enforced until the entire capital stock has been subscribed. (Post, p. 243.) Cases cited and approved: Read v. Memphis-Gayoso Gas Co., 56 Tenn., 545; Anderson v. Railroad, 91 Tenn., 44; Newport, etc., Mill Co. v. Mims, 103 Tenn., 466; Pope v. Merchants’ Trust Co., 118 Tenn., 506. 2. CORPORATIONS. Liability of shareholders for subscriptions. Promoters who complete subscription by subscribing for the balance of unsold shares, intending to sell such shares to others, are liable for the amount so subscribed. (Post, p. 243'.) 3. CORPORATIONS. Subscriptions to capital stock. .“Procure.” A subscription contract, providing that all subscriptions are on condition that the promoters “procure” subscriptions to the full amount of the capital stock, held not to require that all subscriptions be made, by persons other than the promoters. (Post, ‘PP- 243, 244.) 4. CORPORATIONS. Liability of shareholders for subscriptions. Subscriptions of corporate stock by insolvent persons cannot be counted to hold other subscribers for the amount of their subscriptions; but, if such subscriber was apparently solvent at the time he made the subscription, no fraud is perpetrated upon other subscribers by the acceptance of his subscription in good faith, though he afterward proves to have been insolvent. (Post, pp. 244-246.) „ Cases cited and approved: Belfast, etc., R. Co. v. Brooks, 60 Me., 568; La. Purchase Exposition Co. v. Kuenzel, 108 Mo., App., 105; Stone v. Monticello Construction Co., 135 Ky., 659; Morgan v. Landstreet, 109 Md., 558. 5. CORPORATIONS. Actions on subscriptions. Burden of proof. The insolvency of a subscriber, as relieving other subscribers from obligation to pay subscriptions, is a matter of defense, the burden of proving which is on those subscribers asserting it. (Post, p. 246.) 6. CORPORATIONS. Subscriptions. Fraud. Laches of shareholder. The shareholder, whose subscription is obtained through fraud, must be diligent in discovering the fraud and repudiating the contract, to avoid his subscription as against creditors of the corporation. (Post, p. 246.)' 7. CORPORATIONS. Subscriptions. Fraud. Laches of shareholder. Where subscribers for more than two years took no steps to repudiate subscriptions, but allowed their names to remain on the corporate books as shareholders, and paid one assessment, held, that they could not defeat an action by receiver to recover unpaid subscriptions on the ground of fraud. (Post, pp. 247, 248.) Cases cited and approved: Chamberlain v. Trogden, 148 N. C., 139; Sanger v. Upton, 91 U. S., 56; Chubb v. Upton, 95 U. S., 667; Lantry v. Wallace, 97 Fed., 865; Upton v. Trilbilcock, 91 U. S., 45. •
135 Tenn. 249W. C. Early Co. v. Williams (1916)
1. MORTGAGES. Assignment. Transfer of debt. The lien of a mortgage or trust deed passes, without special assignment thereof, to the indorsee of a note or transferee of the .debt secured by the instrument; the mortgage being transferred as incident to the debt. (Post, pp. 254-259.) Cases cited and approved: Clark v. Jones, 99 Tenn., 639; Bank v. Smith, 107 Tenn., 483; Central Trust Co. v. Stepanek, 15 L. R. A. (N. S.), 1025; Costello v. Meade, 55 How. Prac. (N. Y.), 356; Cornish v. Abington, 4 Hurl. & 1ST., 550; James v. Morey, 2 Cow. (N. Y.), 246; Curtis v. Moore, 152 N. Y„ 159; Windle v. Bonebrake, (C. C.), 23 Fed., 165. Cases cited and distinguished: NaL Live Stock Bank v. First Nat. Bank, 203 TJ. S., 303; Yiele v. Johnson, 15 Hun. (N. Y.), 332; Viele v. Judson, 82 N. Y., 32. 2. MORTGAGES. Assignment. Priorities. Effect of failure to record. Assignments of mortgage need not be recorded to preserve priority over subsequent incumbrances. (Post, pp. 254-259.) 3. MORTGAGES. Release. Effect of satisfaction or release. Where the holder of a mortgage has been induced by fraud to enter a discharge or release, if he does not take prompt steps to have his mortgage restored, he is estopped to assert its priority as against a subsequent purchaser or mortgagee relying on such cancellation. (Post, pp. 259-261.) 4. ESTOPPEL. Equitable estoppel. Intent. To constitute estoppel, the act relied on must have been done with the knowledge or intent that it would be relied on. (Post, p. 261.) Cases cited and approved: Parkey v. Ramsey, 111 Tenn., 308; Morris v. Moore, 30 Tenn., 433; Collins v. Williams, 98 Tenn., 531. 5. ESTOPPEL. Equitable estoppel. Knowledge of facts. It is essential to estoppel that the person claiming it was himself not only destitute of knowledge of the facts, but without available means of acquiring such knowledge; for there can be no estoppel where both parties have the same means of ascertaining the truth. (Post, p. 261.) Cases cited and approved: ■ Crabtree v. Bank, 108 Tenn., 492. 6. MORTGAGES. Release of assigned mortgage by mortgagee. Estoppel. Where notes and a recorded trust deed of land securing them have been pledged as security for debt of payee thereof, his release on the record of the trust deed which recites facts showing the notes were negotiable and not then due does not affect the pledgee’s right or priority over later incúmbrancers who made no inquiry of the trustee as to ownership of the notes. (Post,-pp. 261, 262.) Cases cited and approved: Roberts v. Halstead, 9 Pa., 32; Trust Co. v. Smythe, 94 Tenn., 530; Demuth v. Old Town Bank, 85 Md., 315; Swift v. Smith, 102 U. S., 442; Assets Realization Co. v Clark, 205 N. Y„ 105.
135 Tenn. 263Moyers v. City of Memphis (1916)
1. ATTORNEY AND CLIENT. United States. Powers of congress. Congress has the power, to determine - the conditions upon which the government will consent to be sued, or upon which it will grant pensions or other bounties, or prescribe conditions upon which attorneys will be allowed to represent claimants or litigants before any of the courts of the government, within certain reasonable limitations, if done by general laws applicable to all alike, and in advance of the services rendered in such courts. {Post, pp. 289, 290.) Acts cited and construed: Acts 1887, ch. 359; Acts 1861, ch. 45; Acts 1891, ch. 496. Cases cited and approved: Printing & N. Registering Co. v. Sampson, L. R., 19 Eq., 465; McGowan v. Parish, 237 U. S., 285; Wylie v. Coxe (1853), 15 How., 415; Wright v. Tebbitts, 91 U. S., 252; Stanton v. Embry, 93 IT. S., 548; Taylor v. Bemiss, 110 U. S., 42; Ball v. Halsell, 161 U. S., 72; Mayton v. Raymond, 4 Am. L. Times (N. S.), 21; McPherson v. Cox, 6 Otto (96 U. S.), 404; Nutt v. Knut, 200 U. S., 12; Moyers v. Fahey, 43 Wash. L. Rep., 691; Frisbie v. U. S., 157 U. S., 160; Fitzgerald ■ v. Grand Trunk Railroad, 63 Vt., 169; Parker v. Davis, 79 U. S., 457; L. & N. R. R. Co. v. Mottley, 219 U. S., 467; Wailes v. Smith, 157 U. S., 271; Ralston v. Dunaway, 184 S. W„ 425. Cases cited and distinguished: Lochner v. New York, 198 TJ. S., 45; Allgeyer v. Louisana, 165 U. S., 589; Williams v. Fears, 179 U. S„ 270; Addyston Pipe & Steel Co. v. U. S., 175 U. S., 211; Railroad v. Yoigt, 176 U. S., 498; Ball v. Halsell, 161 U. S., 72; McMicken v. Perm, 18 How., 507; In re Paschal, 10 Wall., 483; Stanton v. Embry, 93 II. S., 548; Matthews v. People,- 202 111., 389. 2. CONSTITUTIONAL LAW. Liberty of contract. Regulation. Powers of congress. Congress has the power to regulate and restrain the conduct and contracts of all persons for the common good, the possession and enjoyment of liberty and property being subject to such reasonable conditions as may be essential to the safety, health, peace, good order, and morals of the community. (Post, p. 290.) 3. CONSTITUTIONAL LAW. Powers of congress. Liberty of contract. The liberty of contract is one of the inalienable rights of a citizen, embracing as it does, the right to enter a lawful calling and to acquire> and dispose of property, so that a general prohibition against entering into contracts with respect to property is unconstitutional and void. (Post, pp. 290, 291.) 4. CONSTITUTIONAL LAW. Due process of law. Construction. The due process of law clauses of the federal Constitution, while designed to preserve life, liberty, and property inviolate against arbitrary power, were not intended to interfere with the police power of the different States. (Post, pp. 291, 292.) 5. CONSTITUTIONAL LAW. Liberty of contract. Regulation. Powers of congress. Liberty of contract and right of property are i).ot absolute and universal, in spite of the Fifth and Fourteenth Amendments to the United States Constitution, and it is within the power of the government to restrain some individuals from all contracts, as well as all individuals from some contracts. (Post, pp. 291, 292.) 6. ATTORNEY AND CLIENT. Compensation. Contingent fees. Legality. A contract between an attorney and a city, by which the attorney is to receive fifty per cent, of the amount collected from the government on a claim arising out of the Civil War, is legal and valid, and not against public policy. (Post, pp. 292, 293.) 7. ATTORNEY AND CLIENT. Constitutional law. Powers of congress. Depriving of property. Act Cong. March 4, 1915, chapter 140, section 4, 38 Stat. 9-96, prohibiting and amount in excess of twenty per cent of the amount collected to be paid to the attorney collecting Civil War claims included under the bill,’ is unconstitutional and invalid, under Const. IT. S. Amend. 5, as to attorneys who have performed their services and secured the allowance of claims prior to its enactment, since they have then a vested property right, which cannot be destroyed by arbitrary act of Congress. (Post, pp. 292, 293.) Act cited and construed: Acts 1915, ch. 140. 8. ATTORNEY AND CLIENT. Compensation. Contingent fees. While the courts do not always favor contingent fees, and look with some suspicion upon them, especially where t*he amount agreed to be paid represents fifty per cent, of the total claim, still the trend of judicial decision is in favor of upholding and enforcing such contracts, where no question of fraud, misreppresentation, or unfair dealing is raised. (Post, p. 29$.) 9. UNITED STATES. Claims against United States. “Gift.” “Bounty.” An amount appropriated under Act March 4, 1915, to repay the city of Memphis for the rental value of land taken for a navy yard during the Civil War is not a gift or bounty, but is in the nature of a debt supported by good and valuable consideration. (Post, pp. 293, 294.)
135 Tenn. 295Deming v. Nichols (1916)
BAIL. Pending appeal. Violation of ordinance. Defendant convicted in a city court of carrying concealed weapons in violation of city ordinance, being unable to furnish an appeal bond, might take the paupers’ oath and have his case reviewed by the circuit court, but was not entitled to a discharge from custody pending the appeal, unless he gave a bail bond in a sufficient amount to appear and perform whatever judgment might be rendered by the appellate court. Acts cited and construed: Acts 1'909, ch. 407. Cases cited and approved: State v. Taxing Dist. of Shelby Co., 84 Tenn., 251; State v. Mason, 71 Tenn., 649; Greenwood v. State, 65 Tenn., 567; State v. Haynes, 104 Tenn., 406; Mayor of Nashville v. Fisher, 1 Shan. Cas., 345. Cases cited and distinguished: O’Haver v. Montgomery, 120 Tenn., 448; Memphis v. Schade, 59 Tenn., 579. Code cited and construed: Sec. 5907 (S.). Constitution cited and construed: Art. 6, sec. 1.
135 Tenn. 305Chickasaw Hotel Co. v. C. B. Barker Construction Co. (1916)
1. MECHANICS’ LIENS. Purpose of statute. Construction. The intention of the legislature in enacting the mechanic’s lien-laws was to secure and protect the laborer in his wages, and thereby to promote and encourage improvements, and the act should be given a liberal construction so as to carry out such purpose. (Post, pp. 314, 315.) • Cases cited and approved: Alley v. Lamier, 41 Tenn., 540; Truxall v. Williams, 83 Tenn., 428: Barnes v. Thompson, 32 Tenn., 313: Steger v. Arctic, etc., Co., 89 Tenn., 453; Luttrell v. Railroad, 119 Tenn., 508. 2. MECHANICS’ LIENS. Procedure. Construction. While the law is strict in its requirements that the claimant shall make it clearly appear that he has a lien, yet when that appears remedial laws for its enforcement are to be liberally construed. (Post, p. 315.) Case cited and approved: Thompson v. Baxter, 92 Tenn., 305. 3.- BANKRUPTCY. Mechanics’ liens. Discharge in bankruptcy. Statute. Under Bankrupt Act, July 1, 1898, chapter 541, section 67, cl. D, 30 Stat. 564 (U. S. Comp. St. 1913, section 9651), providing that liens given or accepted in good faith and for a personal consideration, which have been recorded according to law, if the record thereof is necessary to impart notice, shall not be affected by the act, and section 1.6 (section 9600), providing that the liability of a codebtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the bankrupt’s discharge, there was no intention to impair liens valid under the State laws, but to give the bankrupt personal immunity from his debts, leaving intact all liens existing prior to the bankruptcy in favor of his creditors, so that mechanics’ liens upon the property of a hotel company in force more than four months prior to the contractor’s adjudication in bankruptcy continued in force as against the property of the hotel company, after the contractor’s discharge. (Post, pp. 315-321.) Cases cited and approved: Pike Bros. Lbr. Co. v. Mitchell, 132 Ga., 675; In re Huston, 7 Am. Bankr. Rep., 92; Crane Co. v, Signal Cof, 42 Misc. Rep., 338; In re Grissler, 136 Fed., 754. Cases cited and distinguished: Holland v. Cunliffl, 96 Mo. App., 67; Eberle v. Drennan, 40 Okla., 59. 4. BANKRUPTCY. Discharge of contractor. Parties. Judgment against owner. The owner filed a bill in chancery against the contractor, the guaranty company, and certain sub-contractors and material-men who had filed liens against the property, and the separate suits of the' lien claimants were consolidated therewith, and the owner sought judgment against the contractor and the surety company for the amount of liens established against its property, and a stipulation between the hotel company, the construction company by its trustee in bankruptcy, and the surety company was filed, showing the amount due from the hotel company to the construction company, providing that it should be applied to the discharge of liens for which the hotel company was secondarily liable, without releasing the surety, and the construction company thereafter filed a petition to stay, and later alleged its discharge in bankruptcy as a bar to the lien claims. Held, that, as all the parties were before the court, the fact that judgment could not be had against the contractor by reason of his adjudication in bankruptcy did not prevent a foreclosure of the liens against the hotel property, and that, as the trustee in bankruptcy came into court, it was not necessary that the lienholders should be compelled follow the trustee and the bankrupt back into the bankruptcy court to adjust their claims. (Post, pp. 321-327.) Cases cited and approved: Warner v. Yates, 118 Tenn., 548; Luttrell v. Railroad, 119 Tenn., 492; Wolf v. Stix, 99 U. S., 1; U.- S. Wind, Engine & Pump Co. v. N. Penn. & Iron Co., 227 Pa., 262; Chamberlin v. Huguenot Mfg. Co., 118 Mass., 532; New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U. S., 656; Munson v. Railroad, 120 Mass., 81; Pike Bros. Lbr. Co. v. Mitchell, 132 Ga., 675. Cases cited and distinguished: Hill v. Harding, 130 U. S., 699; Butterick Pub. Co. v. Bowen, 33 R. I., 43; Powers Dry Goods Co. y. Nelson, 10 N. D„ 580. 5. BANKRUPTCY. Proof of claim. Action. In the case of a bankrupt corporation, the bankruptcy act does not restrain a creditor who has not proved his claim in bankruptcy from prosecuting an action to judgment to enforce his lien upon the property attached or to charge officers or stockholders liable for the debts of the corporation. (Post, pp. 3'21, >27.)
135 Tenn. 328Pritchard v. Rebori (1916)
PROM SHELBY Appeal from the Chancery Court of Shelhy County. —Jas. L. McRee,, Special Chancellor.
135 Tenn. 338Martin Furniture Co. v. Massey (1916)
1. INJUNCTION. Bonds. Enforcement. Though an injunction bond was conditioned that, if complainant should pay such damages' and costs as might be awarded by the chancery court in dismissing the bill, it should be void, but otherwise remain in full force, instead of following Shannon’s Code, section 6257, declaring that, if the object be to enjoin a money demand after judgment, the penalty of the bond shall be double the judgment or sum sought to be enjoined, the condition of the bond was such that liability could be predicated thereon. (Post, pp. 341, 342.) Case cited and approved: Terrell v. Ingersoll, 78 Tenn., 77. Code cited and construed: Sec. 6257 (S.). 2. BANKRUPTCY. Discharge. Liability of sureties. Shannon’s Code, section 6264, declares that, on dissolution of an injunction to stay proceedings on the judgment for money, decree shall be entered against the claimant and his surety for such sum as the court may order. Sections 4485-4487 declare that, where an instrument is joint and several, suit may be brought against one or any of the obligors, and that the discharge of one does not effect discharge of the other. Complainant, who sought to enjoin execution on a money judgment, filed an injunction bond and, after the injunction was issued, was adjudicated a bankrupt. Bankruptcy Act July 1, 1898, chapter 541, section 16, 30 Stat. 550 (U. S. Comp. St. 1913, section 9600), declares that the liability of a person who is a codebtor with, or guarantor or surety for, a bankrupt, shall not be altered by the discharge of the bankrupt. E<M, that the discharge of complainant, principal in the bond, did not, the injunction being dissolved, discharge the liability of the surety. (Post, pp. 342-345.) Cases cited and approved: State v. Frankgos, 114 Tenn., 76; Brannon v. Weight, 113 Tenn., 692; Wiolf v. Stix, 99 Ti. S., 1; Gibson v. Reed, 54 Neb., 309; Gyger v. Courtney, 59 Neb., 555; Martin v. Kilbourn, 59 Tenn., 331. Case cited and distinguished: Stull v. Beddeo, 78 Neb., 119. Codes cited and construed: Secs. 4485-4487, 6264 (S.). 3. BANKRUPTCY. Composition. Liability of sureties. As the release effected by composition of a bankrupt is one affected by operation of law and not mutual consent, the fact that a creditor, whose claim had been enjoined'before the debtor was adjudicated a bankrupt, joined in favor of the composition, does not discharge the surety on the debtor’s injunction bond. (Post, pp. 345, 3:46.)
135 Tenn. 347Elmore v. State (1916)
1. INTOXICATING LIQUORS. Evidence. Internal revenue license. Statute. Acts 1903, chapter 35'5, making 'the payment of an internal revenue special tax as a retail liquor dealer prvma faoie evidence of sales within the law prohibiting sales of liquor within four miles of a schoolhouse, and Acts 1909, chapter 384, providing that in all prosecutions for violations of the law against the sale of intoxicating liquors copies of the records in the office of the internal revenue collector, showing defendant’s payment of an internal revenue special tax as a liquor dealer, or the issuance of an internal revenue special tax stamp, when certified by the revenue collector, shall be competent evidence, are drastic and in derogation of the common-law rights of the citizen, and must not be too liberally construed against the citizen. (Post, pp. 349, 350.) Acts cited, and construed: Acts 1913, ch. 355; Acts 1909, ch. 384. Case cited and approved: Brinkley v. State, 125 Tenn., 371. 2. CRIMINAL LAW. Reception. of evidence. Identity of accused. Liquor license. In a prosecution for selling liquor within four miles of a schoolhouse, evidence li&lü, not to sufficiently identify the accused with one Mae Elmore to permit the introduction in evidence of a federal liquor license to one Mrs. Mae Elmore to engage in the business of retail liquor dealer. (Post, pp. S'49, 350.) 3. INTOXICATING LIQUORS. Offense. Issues and proof. Schoolhouse. In a prosecution for selling liquor within four miles of a schoolhouse, the existence of a schoolhouse, where school is ordinarily kept, within four miles of defendant’s place of business, is a fact which must be averred in the indictment and proven on ■the trial, notwithstanding Acts 1909, chapter 1, which extended the four-mile law to the whole state. (Post, pp. 350-352.) Cases cited and approved: Kelly v. State, 123 Tenn., 516; Motlow v. State, 125 Tenn., 560.
135 Tenn. 353South Memphis Land Co. v. Memphis Interurban Co. (1916)
1. COVENANTS. Covenants running with land. Binding force. Covenants running with the land bind even purchasers at sales in imvitum. (Post, pp. S'63, 364.) Cases cited and approved: Shelby v. Hearne, 14 Tenn., 512; Bream v. Dickerson, 21 Tenn., 126; Cronin v.. Watkins, 1 Tenn. ch., 119; Hite v. Parks, 2 Tenn. ch., 374; Brooks v. Smith, 1 Shan. Cas., 158; Doty v. Railroad, 103 Tenn., 564; Clealla v. Miller, 105 Tenn., 255; Clapp v. Wilder, 176 Mass., 332. 2. RAILROADS. Conveyances. Construction. Conditions subsequent. Right of way. A contract to which deed for a right of way referred, whereby a land company granted an interurban railroad a right of way “on the following conditions,” that it would grade the way, etc., with a forfeiture providing for a breach of condition, which necessarily implied the right of re-entry, created conditious subsequent, rather than covenants running with the land, so that a purchaser in insolvency proceedings and its successors were not affected thereby. (Post, pp. 364-366.) Cases cited and approved: Blanchard v. Railroad Co., 31 Mich., 43; Emerson v. Simpson, 43 N. H., 475; McCue v. Barrett, 99 Minn., 355; Woodruff v. Trenton Co., 10 N. J. Eq., 489; Randall v. Wentworth, 100 Me., 177; Trustees' of Union College v. New York, 65,App. Div., 553; Hammond v. Railroad, 15 S. C., 10. Case cited and distinguished: Gray v. Blanchard, 8 Pick., 284. 3. DEEDS. Estates on condition. Creatioij. While the words “this conveyance is upon the condition” are usually held to create an estate on condition, they do not necessarily create one, but may be so controlled by other words in the instrument as to fail of that effect. (Post, pp. 366-372.) Cases cited and approved: Episcopal City Mission v. Appleton, 117 Mass., 326; Sohier v. Trinity Church, 109 Mass., 1; Chapin v. Harris, 8 Allen (Mass), 594; Stanley v. Colt, 5 Wall., 119; Laberee v. C'arleton, 53 Me., 211.. Cases cited and distinguished: Cromwell’s case, 2 Co., 71; Bear v. Whisler, 7 Watts (Pa.), 144; Merritt v. Harris, 102 Mass., 326; Blanchard v. Railroad Co., 31 Mich., 43; Emerson v. Simpson, 43 N. H., 475; McCue v. Barrett, 99 Minn., 355; Trustees of Union College v. N. Y., 65 App. Div., 553. 4. DEEDS. Estates on condition. Creation. The words relied on as creating the condition on which an estate depends must not only be such as of themselves would create a condition, but must be so connected with the grant as to qualify or restrain it, and a condition may be created by reference to a condition contained in another instrument, as by reference in a deed to an agreement to convey, with recital that the deed is made pursuant thereto. (Post, pp. 366-372.)
135 Tenn. 373Quinn v. Hester (1916)
1. TAXATION. .Special statutes. .Constitutionality. Chapter 667, Priv. Acts 1915, incorporating a school district, levying a school tax on such district, and providing for its collection by the cohnty trustee, is not in contravention of constitution article 2, section 29, forbidding the delegation of the power of taxation except to counties or incorporated towns. (Post, pp. 376, 377.) Acts cited and construed: Priv. Acts 1915, ch. 667. Cases cited and approved: Keesee v. Civil District, 46 Tenn., 127; Waterhousev. Cleveland Pub. Schools, 55 Tenn., 857'; Lipscomb v. Dean, 69 Tenn., 546, Smith v. Carter, 131 Tenn., 1. Constitution cited and construed: Sec. 28, art. 2; Sec. 29, Art. 2. 2. TAXATION. Special statutes. Constitutionality. Nor is it in contravention of constitution article 2, section 28, requiring equality and uniformity of taxation, since such constitutional provision does not prevent local taxation for local purposes. (Post, pp. 377, 378). Case cited and approved; Louisiana v. Pilsbury, 105 U. S., 278. Case cited and distinguished: King v. Sullivan County, 128 Tenn., 393. Constitution cited and construed: Art. 2, sec. 28. 3. STATUTES. Constitutionality of special acts. Nor is it contravention of constitution article 11, section 8, providing that the legislature shall have no power to suspend any general law for the benefit of any particular individual, etc., since such constitutional provision does not inhibit legislation respecting municipal or public corporations. (Post, pp. 378-380.) Cases cited and approved: Reelfoot Lake Levee Dist. v. Dawson, 97 Tenn., 151; Ballentine v. Pulaski, 88 Tenn., 633; State v. Wilson, 80 Tenn., 246; Williams v. Nashville, 89 Tenn., 487; Redist. Cases, 111 Tenn., 234; Todtenhausen v. Knox Co., 132 Tenn., 169; State ex rel. v. Cummings, 130 Tenn., 566. Constitution cited and construed: Sec. 29, art. 2; Sec. 8, Art.ll. 4. TAXATION. Legislative power to levy local taxes. In the absence of constitutional restriction, the legislature has plenary power to levy taxes for local purposes. (Post, pp. 378-S'80.) 5. CONSTITUTIONAL LAW. Legislative power. Policy. The power of legislature is limited only by the Constitution, and its acts cannot be declared unconstitutional merely for reasons of policy. (Post, pp. 380, 381.) Cases cited and approved: Demoville v. Davidson County, 87 Tenn., 214; Re Forked Deer Drainage Dist., 133 Tenn., 684; Arnold v. Knoxville, 115 Tenn., 195; State ex rel. v. Powers, 124 Tenn., 553.
135 Tenn. 382Niehaus v. C. B. Barker Const. Co. (1916)
1. MECHANICS’ LIENS. Pleading. Amendment. Limitations, In a suit to establish a mechanic’s lien, complainant did not make the trustees under a prior mortgage parties before the expiration of the ninety days from the service of notice of lien. An amended bill in which the trustees were named as defendants was. filed. In that bill the complainant prayed that the court determine the interest, if any, held by the trustees, and that, if the mortgage be found a valid prior lien, complainant be permitted- to subject 'the equity of defendants to the satisfaction of his claim. Shannon’s Code, section 4495, declares that at any time before trial new parties may be added. Held that, as no relief was sought against the trustees, the notice required by section 3536, which is a condition precedent to a mechanic securing priority over the mortgage, not having been served, the amendment will be treated as relating back to the original bill, and the trustees cannot defeat the bill on the plea of limitation. (Post, pp. 386-390.) Cases cited and approved: Lane v. Marshall, 48 Tenn., 30; Fulghum v. Cotton, 74 Tenn., 596; Blackburn v. Clarke, 85 Tenn., 506; King v. Patterson, 129 Tenn., 1; Miller v. McIntyre, 6 Pet., 61; Flatley v. Railroad, 56 Tenn., 230; Burgie v. Parks, 79 Tenn., 84; Love v.-Railroad, 108 Tenn., 104; Brooks v. Brooks, 59 Tenn., 12. Codes cited and construed: Secs. 3536, 3540 (S.); Sec. 4495 (S.). 2. MECHANICS LIENS. Pleading. Amendment. Limitations. ■In such case the contractor and mortgagor cannot defeat the lien because the trustees of the mortgage, who held the legal title, were not brought in within the ninety-day period; for, while such parties were indispensible, yet, as no relief was sought against them, limitations do not apply any more than where the contractor is not originally made a party. (Post, pp. 3910-392.) Cases cited and approved: Harrison v. McCormack, 122 Cal., 651; Green v. Clifford, 94 Cal., 49; Western Sash, etc., Co. v. Heiman, 65 Kan., 5; Casserly v. White, 124 Mich., 157. Case cited and distinguished: Met. Life Ins. Co. v. People, 209 111., 42. 3. ATTACHMENT. Amendment of bill. Effect. Where one seeking a mechanic’s lien failed to mase the trustees of a prior mortgage parties, but later brought them in by amendment, such amendment does not, under Shannon’s Code, section 5237, declaring that the attachment laws shall be liberally construed, and plaintiff shall be permitted to amend any defect of form, destroy an attachment levied against the contractor and owner under the original bill. (Post, pp. 392-S'94.) Cases cited and approved: Lillar'd v. Porter, 38 Tenn., 177; Watt v. Carnes, 51 Tenn., 532; Morrow v. Fossick, 71 Tenn., 129; Lookout Bank v. Susong, 90 Tenn., 590; Wilson v. Beadle, 39 Tenn., 512. * 4. ATTACHMENT. Proceedings. Change in theory of attachment. A plaintiff, who. has attached a party’s effects, both at law and equity, may dismiss his attachment at law and proceed in equity. (Post, p. 394.) Case cited and approved: Magill v. Manson, 20 Grat. (Va.), 527. 5. MECHANICS’ LIENS. Perfection of lien. Parties. Where a prior mortgage on the premises upon which complainant sought a mechanic’s lien had been discharged save as to a few mortgage bonds, the holders of which could not be discovered, and the amount of such had been deposited for payment, a -mechanic’s lien against the premises cannot be defeated because the trustees under the mortgage who yet held the legal title were ‘ not made parties within ninety days after serving notice as required by law; for in such cases the trustees were pratically nominal parties. (Post, pp. 394-397.) Cases cited and approved: Williams v. Railroad, 12'9 Tenn., 680; Lane v. Marshall, 48 Tenn., 30; King v. Patterson, 129 Tenn., 1; Gillespie v. Bradford, 15 Tenn., 168; Reid v. Bank of Tenn., 33 Tenn., 262; Alley v. Lanier, 41 Tenn., 540; Daniel & Co. v. Weaver, 73 Tenn., 392; Ragon v. Howard, 97 Tenn., 334.
135 Tenn. 398Smith v. Bank of Commerce & Trust Co. (1916)
1. MASTER AND SERVANT. Injuries to third persons. Independent contractor. The employer is liable for the negligence of an independent contractor or his employees where he might have anticipated the injury as a direct or probable consequence of the failure to exercise reasonable cafe in the course of the work. (Post, pp. 405, 406.) Case cited and distinguished: McHarge v. Newcomer, 117 Tenn., 604. 2. MASTER AND SERVANT. Injuries to third persons. Independent contractor. Where plaintiff while walking on street outside of covered sidewalk was struck by a hot rivet which was dropped by an employee of an independent contractor constructing a building, the owner of sdch building was not liable, the negligent act being only an incidental or collateral detail of the work and not a necessary or natural result which the owner might reasonably have anticipated. (Post, pp. 406-412.) Cases cited and approved: Hundhausen v. Bond, 36 Wis., 29; Haekett v. W. U. Tel. C'o., 80 Wis., 187; McHarge- v. Newcomer, 117 Tenn., 595; 'Strauss v. Louisville (1900), 108 Ky., 155; Bye v.'Faxon (1892), 156 Mass., 471. Cases cited and distinguished: Anderson v. Fleming, 160 Ind., 597; Boomer v. Wilbur (1900), 176 Mass., 482; Smith v. Milwaukee Builders’ & Traders’ Exchange, 91 Wis., 360; Richmond v. Sitterding, 101 Va., 354; Salliotte v. King Bridge Co., 65 L. R. A., 620. ■ 3. MASTER AND SERVANT. Injuries to third persons. Independent contractor. That the owner of a building in process of construction required an independent bond from the contractor, does not in any way render the owner liable for negligence of the contractor. (Post, pp. 412, 413.) ' Cases cited and approved: French v. Vix (1894), 143 N. Y., 90; ■Wolf v. American Tract Soe. (1898), 25 App. Div., 98; Salliotte v. King Bridge Co., 122 Fed., 378. Case cited and distinguished: Central Coal & I. Co. v. Grider, 65 L. R. A., 506.
135 Tenn. 414Keyer v. Memphis Cotton Exchange (1916)
1. EXCHANGES. Property in seat. Right to compel transfer. Where the charter of a cotton exchange expressly provided that its members were not stockholders, the rule that a purchaser 'of stock may compel, by a bill in equity, the transfer of the same on the books of the corporation, and that a corporation must issue a certificate of stock to one entitled to it, does not apply to the sale of a seat in the exchange. (Post, pp. 421-424.) Cases cited and approved: State of Minn. v. McPhail, 124 Minn., 398; Hyde v. Woods, 94 U. S., 523; Sparhawk v. Yerkes, 142 U. S., 1; O'Dell v. ‘Boyden, 150 Fed., 731; Zell v. Baltimore Stock Ex., 102 Md., 489. Cases cited and distinguished: Vaughn v. Herndon, 91 Tenn., 65; ReGregory, 98 C. C. A., 383. 2. EXCHANGES. Transfer of memberships. Wlhere a provision of the constitution and by-laws of a cotton exchange was that “every member, upon admission, pledges himself to abide by the constitution and also by all the by-laws, rules, and regulations of the Exchange,” a provision of the the constitution that no certificate of membership shall be transferred until the intention is posted for ten days and until all claims presented by other members within the ten days . are settled was binding upon all members, and cannot be complained of by a third party. (Post, pp. 424, 425.) Case cited and approved: Ryan v. Cudahy, 157 111., 108.
135 Tenn. 426Pemiscot County Bank v. Wilson-Ward Co. (1916)
FROM SHELBY Appeal from the Chancery Court of Shelby County. F. H. Heiskell, Chancellor.
135 Tenn. 435Louisville & N. R. v. Marlin (1915)
1. CARRIERS. Injuries by servant. Wanton acts. Where an employee of a railway company compelled trespassers stealing a ride to jump from the train when it was passing over a trestle, although they had intended to alight shortly, ,his act was wanton, and where the trespassers were injured, furnishes ground for an action of damages. (Post, p. 439'.) 2. CARRIERS. Carriage of passengers. Sleeping car employees. With respect to passengers, employees in charge of a Pullman car are held agents of the railroad company, and are bound to refrain from injuring passengers as well as to protect them, but such agency does not exist with respect to trespassers. (Post, pp. 439-445.) Cases cited and approved: Railroad v. Lillie, 112 Tenn., 332; Railroad v. Ray, 101 Tenn., 1; Railroad v. Katzenberger, 84 Tenn., 380; Penn. R. Co. v. Roy, 102 U. S., 451; Dwinelle v. Railroad, 120 N. Y., 117; Campbell v. Seaboard Air Line R. Co., 83 S. C., 448; Railroad v. Derry, 47 Colo., 584; Gannon v. Railroad, 141 Iowa, 37; Terry v. Burford, 131 Tenn., 4'51; Union Railway Co. v. Carter, 129 Tenn., 459'; Memphis St. Ry. Co. v. Stratton, 131 Tenn., 620; Blake v. Railroad, 38 Tex., Civ. App., -337; Railroad 'v. Elliott, 41 Tenn., 611; Railroad v. Mitchell, 58 Tenn., 400; Railroad v. Connor, 83 Tenn., 254; Dodge v. Boston & ■Bangor Steamship Co., 148 Mass., 207; Railroad v. Meacham, 91 Tenn., 428. 3. MASTER AND SERVANT. Acts of agent. Responsibility for. A principal is liable for injuries inflicted on a third person by the acts of ’his agent within the scope of the agent’s authority, though such acts were in violation of instructions. (Post, pp. 439-445.) 4. MASTER AND SERVANT. Acts of agent. Responsibility of principal. A master is liable for the acts of his servant within the scope of the servant’s authority, to one injured, though such person did not bear any contractual relation to the master. (Post, pp. 439-445.) 5. CARRIERS. Carriage of passengers. Duty of care. A carrier of passengers is bound to exercise the highest degree of care for their safety, but its only duty to a trespasser is to refrain from wilfully injuring him. (Post,.pp. 439-445.) 6. CARRIERS. Acts of agent. Responsibility of principal. The employees of a Pullman car are deemed agents of the railroad company only with their relations to passengers, such employees having no control over the management of the train. Decedent, who had been stealing a ride on the top of a train, climbed down to the platform of a Pullman car shortly before the train reached the station. The Pullman ear conductor compelled decedent to jump from the moving train while it was on a high trestle, and from resulting injuries decedent died. There was nothing to show that decedent was about to annoy Pullman passengers or to even enter the car, and the act of the con-, ductor was a purely personal matter of his own. Held, that the railroad company was (not responsible for the act of the Pullman car conductor, for sucli person was not its agent or servant. (Post, pp. 439-445.)
135 Tenn. 446Illinois Cent. R. v. Moriarity (1916)
1. EMINENT DOMAIN. Right to compensation. Under Const, art. 1, sec. 21, providing that no property shall be taken or applied to public use without consent or without just compensation, when a portion of a street immediately adjacent to a complaining owner’s property is obstructed so as to destroy of substantially impair the owner’s easement of access or way in the street abutting his land, he is entitled to compensation. (Post, pp. 450-452.) Cases cited and approved: Anderson v. Turbeville, 46 Tenn., 158; Railroad v. Bingham, 87 Tenn., 530; Smith v. Railroad, 87 Tenn., 630; Hamilton County v. Rape, 101 Tenn., 222; State v. Taylor, 1,07 Tenn., 463; Coyne v. Memphis, 118 Tenn., 651; Humes v. Mayor of Knoxville, 20 Tenn., 408. Constitution cited and construed: Art. 1, sec. 21. 2.- EMINENT DOMAIN. Right to compensation. “Taking.” Under Const, art. 1, sec. 21, providing that no property shall be taken or applied to public use without consent or without just compensation, any diminution of the value of property directly invaded which is not shared by the public generally is a “taking.” (Post, pp. 452-453.) 1 Cases cited and approved: Richards v. Washington Terminal Co., 233 U. S., 546; Railway v. Bingham, 87 Tenn., 522; Harmon v. Railroad, 87 Tenn., 614; Chattanooga v. Dowling, 101 Tenn., 342; Brumit v. Railroad, 106 Tenn., 124; Terminal Co. v. Jacobs, 109 Tenn., 727; Terminal Co. v. Lellyett, 144 Tenn., 368; Gossett v. Railway, 115 Tenn., 376. • Case cited and distinguished: Lewisburg & N. R. Co. v. Hinds, 183 S. W„ 985. 3. EMINENT DOMAIN. Right to compensation. Closing street. Where a street is closed by elevation of railroad tracks not abuttin on, but adjacent to, plaintiff’s land, he is entitled to compensation under Const, art. 1, sec. 21, prohibiting taking property for public use without compensation, since his easement of access extends from his land to the next intersecting street in either direction. (Post, pp. 453-458.) Case cited and approved: Town of Clinton v. Turneb, 95 Miss., 594. Cases cited and distinguished: Newark v. Hatt, 79 N. J. Law, 548; Henderson v. Lexington, 132 Ky., 390; Vanderburgh v. Minneapolis, 98 Minn., 329; In re Melon Street, 182 Pa., 397. 4. EMINENT DOMAIN. “Police power.” Exercise of poweri What constitutes. Closing a street by elevation of railroad tracks for safety of the public is referable to the power of eminent domain, and not to the police power, since the latter, though it may take property, does not appropriate it to a different use; while eminent domain transfers private property, to a public agency to use as its own. (Post, pp. 458-461.) Cases cited and approved: Bradbury v. Vandalia Levee, etc., District, 236 111., 36; Turnpike Co. v. Davidson County, 91 Tenn., 291. Casé cited and distinguished: McKeon v. N. Y., N. H. & H. R. Co., 75 Conn., 343. 5. EMINENT DOMAIN. Right to compensation. Rights of railroads put to expense in elevating tracks are not like those of adjacent landowners' whose easement of access is destroyed by the elevation of tracks, since the railroads still have their original easement, but the owners do not. (Post, p. 461.) 6. APPEAL AND ERROR. Scope of review. Intermediate court, amount of damages. Where the trial court and the court of civil appeals concur as to the amount of damages to a property owner by destruction of his easement of access by elevation of railway tracks across an adjacent street, and the evidence is conflicting, the supreme court will treat such concurrent finding as conclusive. (Post, p. 461.) Cases cited and approved: Grant v. Railroad, 129 Tenn., 398; Carolina, etc., R. R. Co. v. Shewalter, 128 Tenn., 363.
135 Tenn. 462Memphis St. Ry Co. v. Cavell (1916)
1. CARRIERS. Carriage of passengers. Degree of care. The degree of care imposed on a carrier of passengers, such as a street railway, by law and on grounds of sound public policy, is the exercise of the utmost diligent skill and foresight. (Post PI). 465, 466.) Cases cited and approved: Ferry Co. v. White, 99 Tenn., 256; Railroad v. Flake, 114 Tenn., 671; Christie v. Griggs, 2 Camp., 79; Stokes v. Saltonstall, 38 U. S„ 181; N. J. R. & Transp. Co. v. Pollard, 89 U. S., 341; Gleason v. Ry. Co., 140 II. S., 435; Sweeney v.'Erving, 228 U. S„ 233; Inland & Seaboard Co. v. Tolson, Adm’r., 139 U. S., 551; Chicago Union Traction Co. v. Uree, 218 III., 9. Case cited and distinguished: Railroad v. Kuhn, 107 Tenn., 106. 2. NEGLIGENCE. Res epsa loquitur. In. general, mere proof that an accident injurious to plaintiff has occurred does not justify a verdict or judgment imposing liability therefor upon the defendant. (Post, pp. 466, 467.) 3. NEGLIGENCE. Burden of proof. The law imposes on plaintiff suing for injuries caused by negligence the burden of showing by a preponderance of the evidence that the negligence was the cause of his injury, and that defendant was responsible for the negligence. (Post, pp. 467-470.) Cases cited and approved: Simpson v. Omnibus Co., L. R., 8 C. P„ 390; The Annot Lyle, 11 P. D., 114; The Indus, 12 P. D., 46; Carpus v. Railroad, 5 Q. B., 747; Skinner-v. Railroad, 5 Exch., 787; Scott v. London Dock Co., S' EL & C., '596; Kearney v. Railroad, L. R., 5 Q. B., 411; Byrne v. Boadle, 2 H. & C., 722; Briggs v. Oliver, 4 EC. & C., 403; Brown v. Union P. R. Co., 81 Han., 701; McGinn v. N. O. Ry. & Light Co., 118 La., 811; So. P. 'C. v. Hogan, 13 Ariz., 34; Railroad v. Hadley, 170 Ind., 204; Hughes v. Railroad Co., 85 N. J. Law, 212; Sweeney v. Erving, 228 U. S., 233. Cases cited and distinguished: De Glopper v. Railway & Light Co., 12S Tenn., 633; Stokes v. Saltonstall, 13 Pet., 18. 4. NEGLIGENCE. Pleading and proof. Plaintiff suing for injuries caused by negligence is under the burden that his proof in substance shall correspond with the averments of his pleadings. {Post, pp. 467-470.) 5. APPEAL AND ERROR.- Harmless error. Instructión. In an action against a railway for injuries, where, under all the evidence, there was no material issue of fact for the jury to determine on the question of defendant’s negligence, error in charging the doctrine of res ipsa loquitur was harmless. {Post, pp. 470, 471.) Case cited and approved: Lowry v. Railroad, 117 Tenn., 507. 6. CARRIERS. Injuries. Negligence. Question for jury. In an action against a street railway for injuries to a passenger, where, under all the evidence, no reasonable difference of opinion can exist as to the negligent character of the acts of defendant’s employees at a railroad crossing under the particular circumstances and at a particular time, the act was negligent in law, and there is no issue for the jury on the question of the negligence. {Post, p. 471.) Case cited and approved: Traction Co. v. Carroll, 113 Tenn., 514. 7. CARRIERS. Carriage of passengers. Negligence. Where a street railway’s conductor in charge of a motor and trailer after walking upon straight railroad tracks gave the . signal to the motorman to attempt the crossing, so that, though the motor got over the tracks, the trailer was struck by a train, the street railway was negligent, though the dust and noise of another train, which the motor had stopped to let go by, hindered the conductor’s seeing and hearing the approaching train. {Post, pp. 471-475.) Case cited and approved: Railroad v. Roe, 118 Tenn., 601. 8. CARRIERS. Carriage of passengers. Negligence. The negligence of a railroad in running a freight over a- street railway crossing did not excuse such street railway, whose conductor was negligent in not making sure of the approach of the freight before attempting to cross, from liability to an injured passenger, since the passenger’s injuries were the proximate result of the conductor’s failure to discharge his duty. (Post, pp. 475-477.) Acts cited and construed: Acts 1871, ch. 46. Cases' cited and approved: Wallenburg v. Mo. Pac. R. Co., 86 Neb., 642; N. Y. & H. R. R. Co. v. Maidment, 168 Fed., 21; Brommer v. Penn. R. Co., 179 Fed., 577; Parker v. Des Moines City R. Co., 153 Iowa, 254; Vincennes Traction Co. v. Curry (Ind. App.), 109 N. E., 62.
135 Tenn. 478Bowker v. Bry-Block Mercantile Co. (1916)
LIBEL^ND SLANDER. Words imputing larceny. In slander action it was error to direct a verdict for defendant on the .ground he had not imputed larceny to plaintiff, where he roughly said to plaintiff, a customer in his store, in the presence of others, that a hat was stolen from the store, that the hat on her head looked very much like it and was the hat, that he had been trying to locate the hat for some.time by detectives', and they had located it on her head, and she replied that she had never been accused of stealing before, and no denial of the meaning of his words as defined by this reply was made by him. Case cited and approved: Cheatham v. Patterson, 125 Tenn., 437. Cases cited and distinguished: Fields v. State, 46 Tenn., 526; Hughes v. State, 27 Tenn., 76; Bank v. Boudre, 92 Tenn., 740; Ouslow v. Horne, 3 Wils., 177.
135 Tenn. 485Prater v. Riechman (1916)
EXEMPTIONS. Statutes. Construction. Under Shannon’s Code, section 3794, exempting in the hands of every male citizen, and every female head of a family, two horses or mules, together with wagons,, harness, and saddles, etc., an automobile is not exempt; it being property entirely dissimilar to that exempted and used by a different class of citizens from those intended to be protected by the exemption statute. Cases cited and approved: Cox v. Ballentine, 60 Tenn.,' 363; Wolfenbarger v. Standifer, 35 Tenn., 659; Hawkins v. Pearce, 30 Tenn., 44; Webb v. Brandon, 51 Tenn., 285; Simons v. Lovell, 54 Tenn., 510; Lames v. Armstrong, 162 Iowa, 327.
135 Tenn. 489American Express Co. v. Fox (1916)
1. INJUNCTION. Foreign courts. Injunction against proceedings. Relief. Equitable remedies. The courts of the forum may restrain a citizen of the State of the forum from prosecuting a suit against a citizen of the same State in a foreign State. (Post, pp. 490, 491.) Cases cited and approved: Lockwood & Co. v. Nye, 32 Tenn., 515; Dehon v. Foster, 4 Allen (Mass.), 545; Cole v. Cunningham, 133 TI. S., 107; Jones v. Hughes, 156 Iowa., 684; Freick v. Hinkly, 122 Minn., 24. 2. INJUNCTION. Relief Right to. Defendant, a resident of Tennessee, will not be enjoined from suing a complainant in the State of Mississippi on a cause of action arising in Tennessee, because it would be to complainant’s convenience to be sued in Tennessee, or because the rules of law in Mississippi are slightly different, for probably the laws of Tennessee would be applied, and such an injunction should be granted only in a very special case, and not one merely where the practice in two States differed. (Post, pp. 491-494.) Cases cited and distinguished: Bigelow v. Old Dominion Copper Mining and Smelting Co., 74 N. J. Eq., 457; Jones v. Hughes, 156 Iowa, 684; C'ole v. Young, 24 Kan., 435. 3. INJUNCTION. Relief. Right To.c The courts of the forum will not at the suit of a nonresident corporation which might remove a suit brought by a resident of the State to the federal courts, enjoin a resident from suing in a foreign State, for such corporation could not be compelled to submit to the jurisdiction of the local courts. (Post, pp. 494-498.) Cases cited and approved: Turcott v. Railroad, 101 Tenn., 108; Adams v. Chattanooga Co., Ltd., 128 Tenn., 505.
135 Tenn. 499Pappas v. State (1916)
1. SALES. Conditional sales. Recovery of property. Failure to resell. Effect. Where the seller of goods on conditional sale retook the goods, title to which was retained in him after they were removed from the State, his failure to resell them, as required by the conditional sales law, canceled the debt against the original purchaser. (Post, pp. 500, 501.) 2. SALES. Conditional sales. Criminal responsibility for transfers. Statutes. Construction. “Knowingly or willfully.” Laws 1909, ch. 557, sec. 1,. making it unlawful to remove from the State any personalty, title to which was retained át time of sale, unless written consent of the seller is obtained, having omitted the words “knowingly” or “willfully,” does not require intent to defraud as an element of the offense, but the bare removal, even if in good faith, constitutes the offense. (Post, pp. 501-508.) Acts cited and construed: Acts 1909, ch. 557. Cases cited and approved: Debardelaben v. State, 99 Tenn., 649; Duncan v. State, 26 Tenn., 148; Haggerty v. St. L. Ice Mfg. Co., 148' Mo. 238; State v. Foster, 22 R. I„ 163. Case cited and distinguished: Halsted v. State, 41 N. J. Law, 552.
135 Tenn. 509Parker-Harris Co. v. Tate (1916)
1. LIENS.. Conditional sales. Lien for automobile injury. Priorities.. “Deodand.” Ther lien, on an automobile, given by Laws 1905, ch. 173, sec. 5, to a person injured thereby in collision, is inferior to a conditional vendor’s rights therein fixed before the collision, and only the interest of the vendee is subject to such lien; and the doctrine of “éeodanct" (by which is meant the forfeiture of a personal chattel, animate or inanimate, becoming the immediate instrument causing death) does not apply, especially in view of Const, art. 1, sec. 12, providing that “if any person be killed by casualty, there shall be no forfeiture in consequence thereof;” and since the legislative policy has been consistently to protect the lien for the price. (Post, pp. 511-516.) Acts cited and construed: Acts 1905, ch. 173. Cases cited and approved: Leach v. Asman, 130 Tenn., 510; Newbrand v. Kraft, L. R. A. 1915D, 693. Constitution cited and construed: Art. 1, sec. 12. 2. LIENS. Statutory. Priorities. A lien created by statute does not take precedence of a prior contractual lien, unless such is the clear intention of the statute, even when the statutory lien is for work done on or to the betterment of the property in question. (Post, pp. 516, 517.) Cases cited and approved: Wilson v. Donaldson, 121 Cal., 8; Adler v. Godfrey, 153 Wis., 186; Reeves & Co. v. Russell, 28 N. D„ 265; Shaw v. Wlebb, 131 Tenn., 173'; Horace Waters Co. v. Gerard, 189 N. Y., 3102. 3. LIENS. Statutory. A statutory lien has only such force as the statute gives it, and • the superseding or subordinating of an earlier lien, by the statute creating a lien, should not easily be inferred, especially where the statutory lien is not awarded for service adding value to or preserving the property in question. (Post, pp.. 517, 518.) Cases cited and approved: Haneh v. Ripley, 127 Ind., 151; McDaniel v. Osborn, 166 Ind., 1. 4. LIENS. Priorities. In the absence of express statute to the contrary, liens take precedence in the order of time. (Post, pp. 518-520.1 Acts cited and construed: Acts 1897, ch. 78. Case cited and distinguished: Des Moines Brick Co. v. Smith, 108 Iowa, 307. Code cited and construed: Secs. 3533, 3536, 3569, 3585. 5. LIENS. Statutes. Construction. “Owner.” Where the same word used in a statute more than once, and the meaning is clear at one place, it will ordinarily be construed to have that meaning elsewhere in the act, and the word “owner,” as used in Laws 1905, ch. 17S', refers to the conditional vendee who has control and use of the automobile, and not to the conditional vendor. (Post, pp. 520-522.) Cases cited and approved: Bank v. Vandyck, 51 Tenn., 617; Marion Mfg. Co. v. Buchanan, 118 Tenn., 238; Lehman v. Ferrell, 71 Ala., 458; Montgomery v. Rich, 3 Tenn. Ch., 660; Pierce v. Lawrence, 84 Tenn., 572. Cases cited and distinguished: Daugherty v. Thomas, 174 Mich., 371; Samson v. Aitehison, (1912), A. C., 844; Wynne v. Dalby, 30 Ont., 67; Goff v. Byers, 70 Neb., 1; Waggoner v. St. John, 57 Tenn., 503.
135 Tenn. 525Hodge v. State (1916)
1. COURTS. Establishment. ' Powers of legislature.. “Inferior courts.” Priv. Laws 1915, ch. 78, establishing a criminal court in Dyer county and prescribing its jurisdiction, is within the power conferred on the Legislature by Const, art. 6, see. 1, declaring the the judicial power shall be vested in the supreme court, and in such circuit, chancery, and other inferior courts as the legislature shall ordain and establish, since the new court is an “inferior court.” (Post, pp. 528-534.) ■Acts cited and construed: Acts 1915, ch. 78; Acts 1829-30, ch. 95. ' Cases cited and approved: Granville Wilcox v. State, 50 Tenn., 110; Gray v.. State, 50 Tenn., 113; Moor® v. State, 37 Tenn., '512‘; McClain v. State, 1 Shan. Cas., 480; Re-districting Cases, 111 Tenn., 23'4; Railroad v. Byrne, 119 Tenn., 278; State v. Lindsay, 103 Tenn., 625; Coleman v. Campbell, 3 Shan. Cas., 355; Halsey v. Gaines, 70 Tenn., 316; Shelby Co. v. Judges, 3 Shan. Cas., 525; Hurt v. Hurt, 70 Tenn., 177; Miller v. Conlee, S'7 Tenn., 432; Ward v. Thomas, 42 Tenn., '565; State v. Wilson, 70 Tenn., 211; Kelly v. Conner, 122 Tenn., 339. Cases cited and distinguished: Ellis v. State, 92 Tenn., 85; Bank v. Cooper, 10 Tenn., 599; Judges’ Cases, 102 Tenn., 510; Jackson v. Nimmo, 71 Tenn., 598. Constitution cited and construed: Sec. 1, arts. 5, 6; Sec. 2, art. 6, (18S'4-1870). 2. JUDGES. Appointment. Powers of legislature. Although Const, art. 11, sec. 17, provides that no county office of legislative creation shall be filled otherwise than by the people or the county court, the legislature may under article 7, sec. 4, providing that the election of all officers and filling of all vacancies not otherwise provided for by Constitution shall be made as the legislature may direct, provide as by Priv. Laws 1915, ch. 78, sec. 12, that the office of judge of the criminal court of Dyer county be filled by appointment until the next general election. (Post, pp. 534, 535.) Acts cited and construed: Acts 1915, ch. 78, sec. 12. Cases cited and approved: State ex rel. v. Trewhitt, 113 Tenn., 561; Condon v. Maloney, 108i Tenn., 82; State ex rel. v. Maloney, 92 Tenn., 62; Richardson v. Young, 122 Tenn., 471; Re-districting Cases, 111 Tenn., 234; , Luehrman v. Taxing Dist., 70 Tenn., 440. Constitution cited and construed: Art. 11, sec. 17; Art. 7, sec. 4. 8. CLERKS OF COURTS. Appointment. Powers of legislature. Priv. Laws 1915, ch. 78, sec. 4, providing that the clerk of the circuit court of Dyer county shall be clerk' of the criminal court of such county, does not violate Const, art 6, sec. 13, requiring that clerks of inferior courts be elected by the voters every four years. (Post, pp. 535, 536.) Acts cited and construed: Acts 1915, ch. 78, sec. 4. Constitution cited and construed: Art. 6, sec. 13. 4. CLERKS OF COURTS, Judges. Establishment of offices. Statutes. Validity. Priv. Laws 1915, ch. 78', being intended to relieve the circuit court of Dyer county of certain duties, properly provides by sections 4, 12, that the judge of the county court and clerk of the circuit court shall perform the duties of the criminal court established by the act, and it is unnecessary that a new judgeship and clerkship be established. (Post, pp. 536, 537.) Acts cited and construed: Acts 1915, ch. 78. Constitution cited and construed: Art. 6, sec. 1 (1870). 5. STATUTES. Construction. Acts in pari materia. Priv. Laws 1915, ch. 78, as to criminal court of Dyer county, must be construed in pwri materia with chapter 82^ passed on the same day, creating the office'of county judge in such county. (Post, p. 537.) 6. CLERKS OF COURTS. Judges. Holding two offices. “Lucrative office.” Priv. Laws 1915, ch. 78, secs. 4, 12,■ providing that the judge of the county court of Dyer county shall act as judge of the criminal court created hy the act, and the clerk of the circuit court as clerk of such criminal court, does not violate Const, art. 2, sec. 26, providing that no person shall hold more than one “lucrative office,” since the act expressly provides that there shall he no compensation therefor. (Post, pp. 537-539.) Acts cited and construed: Acts 1915, ch. 78, secs. 4', 12. Cases cited and approved: State v. Kirk, 44 Ind., 401;. Chambers v. State, 127 Ind., 365; State ex rel. v. Slagle, 115 Tenn., 336. Constitution cited and construed: Art. 2, sec. 26. 7. JUDGES. Appointment. Powers of legislature. Under Priv. Laws 1915, ch. 78, sec. 12, providing that the county judge of Dyer county shall act as judge of the criminal court in that county, no express appointment of such judge to the new office is necessary; the act itself being sufficient authority.(Post, p. 539.) Constitution cited and construed: Art. 6, sec. 1. 8. JUDGES. Statutes. Certainty. Intent of legislature. Priv. Laws 1915, ch. 78, see. 12, providing that the “judge of the court” of Dyer county shall be judge of the criminal court, and receive no other compensation than provided by law for said county judge, clearly shows that the county court was intended, and is not objectionable for omission of “county” before the words “court of Dyer county.” (Post, pp. 539, 540.) Acts cited and construed: Acts 1915, ch. 78, see. 12.
135 Tenn. 541Northcut v. Church (1915)
1. MINES AND MINERALS. Title. Adverse possession. By possession of surface. Possession of the surface of land by one who has by his conveyance of the mineral interest severed the latter from the surface, is not a possession of the. underlying severed mineral interest, nor does such possession inure to the owner of the mineral; distinct estates being created by the severance. (Post, pp. 546-553.) Acts cited and construed: Acts 1819, ch. 28(, sec. 1. Cases cited and approved: Murray v. Allred, 100 Tenn., 100; Westmoreland & Cambria Natural Gas Co. v. De Witt, IS'0 Ba., 235; Louisville & N. R. Co. v. Massey, 136 Ala., 156; Gordon y. Park, 202 Mo., 236; Catlin Coal Co. v. Lloyd, 180 111., 398; Kiser v. McLean, 67 W. Va., 294; Wallace v. Elm Grove Coal Co., 58 W. Ya., 449; J. R. Crowe Coal & Min. Co. v. Atkinson, 85 Kan., 357; McBurney v. Coal & Coke Co., 121 Tenn., 275. Code cited and construed; Sec. 4456 (S.). 2. MINES AND MINERALS. Title. Adverse possession. By possession of surface. Acts of possession required for the surface and those for the minerals are different; the latter requiring some form of mining or activities directly related thereto. (Post, pp. 553-555.) Cases cited and approved: Catlin Coal Co. v. Lloyd, 176 111., 275; Ames v. Ames, 160 111., 59®; New Jersey Zinc Co. v. N. J. Franklinite Co., IS' N. J. Eq., 322; Gill v. Fletcher, 74 Ohio St., 295; Lillibridge v. Lackawana, etc., Co., 143 Pa., 293; Louisville, etc., R. Co. v. Massey, 136 Ala., 156; Manning v. Kansas, etc., C’oal Co., 181 Mo., 359; Caldwell v. Copeland, 37 Pa., 427; Armstrong v. Caldwell, '53 Pa., 284; Huss v. Jacobs, 210 Pa., 145; Virginia Coal, etc., Co. v. Kelly, 93 Va., 332. 3. ADVERSE POSSESSION. Tacking. Privity. Where the grantee of an adverse possessor takes possession, he may unite his subsequent possession with his grantor’s prior possession to make out adverse possession for the seven-year period. (Post, pp. 555, 556,) Case cited and approved: Finnegan v. Stineman, 5 Pa. Super.. Ct„ 124. 4. MINES AND MINERALS. Title. Adverse possession. Tacking. Where the grantee of mineral rights of an adverse possessor takes immediate and appropriate possession thereof, he may unite his subsequent possession with his grantor’s prior. possession to make out statutory title by adverse possession. (Post, pp. 555, 556.) 5. COMMON LAW. Courts. Rules of decision. Decisions of other courts. The courts of a State may refuse to follow even a concensus of authority in all other States, or a Well-recognized rule of cqmmon law, on the ground that it is not suited to the genius of the State or is opposed to its public policy; the public policy of a State being shown by its statutes and decision's. (Post, pp. 556-558.) Cases cited and approved: Welcker v. Staples, 88 Tenn., 49; Ramsey v. Quillen, 73 Tenn., 184. 6. MINES AND MINERALS. Conveyance of legal rights. Right of access incident. The grantor of minerals by implication of law conveys the right to obtain access to them through the surface, and against such purpose does not hold the surface adversely. (Post, pp. 558, 559.) Acts cited and construed: Acts 1819, ch. 28, sec. 1.
135 Tenn. 560Lea v. Louisville & N. R. (1915)
1. EMINENT DOMAIN. Highways. Use for other public purposes. Underground pipes. Laying water pipes under a county highway creates an additional servitude upon the fee interest, for which the abutting owner may recover, notwithstanding the county has consented to such action so far as its easement in the surface is concerned. (Post, pp. 568-571.) Acts cited and construed: Acts 1907, ch. 254. 2. CONSTITUTIONAL LAW.. Eminent domain. Class legislation. Discrimination against particular corporations. Acts 1907, eh. 254, authorizing any railroad company, now or hereafter owning or operating a railroad to condemn for reservoir purposes, etc., does not violate Const, art. 11, sec. 8, or Const. U. S. Amend. 14, sec. 1, prohibiting class legislation, although it does not confer the same right upon new railroad companies until they own or operate a railroad. (Post, p. 571.) Cases cited and approved: Stratton v. Miorris, 89 Tenn., 497; Dugger v. Ins. Co., 95 Tenn., 245; Harbison v. Iron Co., 10S' Tenn., 421; Condon v. Maloney, 108 Tenn., 82; Scott v. Marley, 124 Tenn., 388. Constitution cited and construed: Art. 11, sec. 8. 3. EMINENT DOMAIN. Extent of power. Statutory construction. Under Acts 1907, eh. 254, authorizing a railroad to condemn a pipe line between a running stream and its reservoir or tanks, a pipe line may be condemned between a reservoir formed by damming a running stream and the railroad’s tanks. (Post, " p. 571.) 4. EMINENT DOMAIN. Proceedings to take. Offenses. Threatened misuser. Where a railroad company has been granted eminent domain power for pipe line purposes, an owner cannot defeat condemnation proceedings upon the ground that the railroad intends to divert some of the water to purposes not contemplated by the statute. (Post, pp. 571, 572.) 5. EMINENT DOMAIN. Rights acquired. Misuser. Who may question. Where a railroad has power to condemn for pipe line purposes, only the State may question its diversion of the water to pur-, poses not contemplated by the statute. (Post, pp. 571, 572.)' Cases cited and approved: Barrow y. Turnpike Co., 28 Tenn., 304; Heiskell v. Chickasaw Lodge, 87 Tenn., 668; Railroad Co. v. Transportation Co., 128 Tenn., 277. 6. EMINENT DOMAIN. Nature. ■ Acts constituting. Appropriation. Where a pipe line was located along a highway and the pipe laid thereon awaiting the digging of ditches in which it was tp be placed, held the abutting owners’ fee interest in the highway was taken so as to authorize him to bring suit under Shannon’s Code, secs. 1866, 1867. (Post, pp. 573-575.) Case cited and approved: Calahan v. Dunn, 78 Cal., 366. 7. INJUNCTION. Dissolution. Dismissal of bill. There was no error in dismissing a bill upon a hearing to dissolve a preliminary injunction, where the parties treated the „ cause as if submitted on bill, answer, and proof. (Post, pp. 575, 576.) 8. EMINENT DOMAIN. Remedies of owner. ■ Injunction. Failure to institute condemnation proceedings. Where defendant railroad company had the right to condemn complainant’s fee interest in a highway, and had already taken possession of it, complainant could not enjoin completion of the work, although no condemnation proceedings had been started. (Post, p. 576.)
135 Tenn. 577Montgomery v. State (1915)
1. INTOXICATING LIQUORS. Illegal sales. Fraternal club. One directing the dispensing of intoxicating drinks as “president” of a club composed mostly of drinkers, the front door of which was kept locked, and the glass panels thereof kept opaque by deep paint, the members entering by a side door from a dark unlighted alley, they being sworn to secrecy and paying for the expenses and “president’s” salary by proceeds of coupon books for liquor payments, the club having obtained a federal retail liquor license, held guilty of violation of the law, forbidding selling intoxicating liquor within four miles of an' institution of learning. (Post, pp. 578-584.) Case cited and distinguished: Moriarty v. State, 122 Tenn., 440. Case cited and approved: Tenn. Club of Memphis v. Dwyer, 79 Tenn., 452. 2. INTOXICATING LIQUORS. Prosecutions. Presumptions. In prosecution for illegal retail liquor selling, by statute there is a presumption of guilt arising from the possession of a United States internal revenue license for the retail sale of intoxicating liquors. (Post, pp. 584, 585.) Case cited and approved: Hermitage Club v. Shelton, 104 Tenn., 101. 3. CRIMINAL LAW. Appeal. Reversal. Failure to instruct. Statute. Where refusal to give proper instructions does not affect the result, the verdict being fully in accord with the merits of the case, the case must be affirmed, under Acts 1911, ch. 32, providing that no verdict or judgment shall be set aside or any criminal cause for error in the charge, etc., unless in the opinion of the appellate court it affirmatively appears the error has affected the result. (Post, p. 585.) Acts cited and construed: Acts 1911, ch. 32.
135 Tenn. 586Scruggs v. Mayberry (1915)
1. WILLS. Construction. Estates created. •A will devising land to the son without mention of heirs or children or character of estate is a direct devise in fee. (Post, pp. 595. 596.) Cases cited and approved: Middleton v. Smith, 41 Tenn., 144; Kirk v. Furgerson, 46 Tenn., 479; Wynne v. Wynne, 56 Tenn., 308; Frank v. Frank, 120 Tenn., 569; Hatzenberger v. Weaver, 110 Tenn., 620; Speight v. Askins , 118 Tenn., 749. Codes cited and construed: Sec. 6>, ch. 22 (1784); Sec. 3673 (S.). 2. WILLS. Construction. Estates created. A will devising lands to the wife during her life and on her death to the son and the heirs of his body, but if he should die without heirs, to his sister, and the heirs of her body, is a direct devise in fee to the son, since at common law such a devise would be an estate tail, and under Shannon’s Code, sec. S'673, all such estates are made estates in fee simple. (Post, pp. 595, 596.) 3. WILLS. Construction. Estates created. Limitations. Where a devise of a fee simple is followed by condition that if the devisee should die without heirs the land should go to his sister, it is not impaired by such limitation where the devisee survives the testator, since, to invoke the limitation, the devisee must die before the testator’s death. (Post, pp. 595, 596.) 4. WILLS. Construction. Estates created.. Where a devise of the fee is followed by a devise over in case the devisee dies without issue or without children, or without heirs of the body, to invoke the limitation, the death of the devisee must occur prior to that of the testator. (Post, pp. 596, 597.) Cases cited and distinguished: Meacham v. Graham, 98 Tenn., 190; Vaughn v. Cator, 85 Tenn., 302. 5. WILLS. Construction. Conflict in rules. The rule (Shannon’s Code, sec. 3675) that where a devise of the fee is followed by devise over if the devisee dies without issue, to invoke the limitation the devisee’s death must occur prior to that of the testator, and the rule that if a life estate is granted with unlimited power of disposition of the whole estate and remainder created in the same property, the latter is void, are not in conflict. (Post, p. 597.) Case cited and disapproved: Frank v. Frank, 120 Tenn., 569. 6. WILLS. Construction. Estates created. Power of disposition. Powers merely incidental and to be inferred from the fact of ownership are not the unlimited or absolute power of disposition which, if given to a life tenant, makes a subsequent remainder void, but such absolute power must be given in express terms or impliedly by added words. (Post, pp. 597-600.) Case cited and approved: Overton v. Lea, 108 Tenn., 505. 7. WILLS. Estates created. Particular words. The rule that where a devise of the fee is followed by a devise over if the devisee dies without issue, to invoke the second devise the devisee must predecease the testator, applies even where at the time of making the will the devisee was only eight years old, and the testator died within one year thereafter. (Post, p. 600.) Case cited and approved: Frank v. Frank, 120 Tenn., 575. 8. WILLS. Estates created. Devises over. Where the devise is to a son and to his children, although they are not yet in being and may never be, it is the preferred construction that the son takes the life estate with remainder to the children. (Post, pp. 600, 601.) Cases cited and approved: Turner v. Ivie, 52 Tenn., 222; Beecher v. Hicks, 75 Tenn., 207; Blackburn v. Blackburn, 109 Tenn., 675. 9. WILLS. Estates created. Remainders. The devise to a son and to his children, and if he dies without children then to his sister and her children, creates a life estate in the son with remainder to the children, and at birth of a child the remainder would vest, subject to open and let in after-born children. (Post, pp. 600, 601.) 10. WILLS. Construction. Technical words. “Heirs of the body.” When technical words are used in a will they are presumed to be used in a technical sense, and before another meaning can be attached to them that meaning must clearly appear, so that unless it clearly appears that the testator used the words “heirs of the body” as meaning childen, they will not be so construed. (Post, pp. 601-603.) Cases cited and approved: Loving v. Hunter, 16 Tenn., 4; Settle v. Settle, 29 Tenn., 474; Vaden v. Hance, 3& Tenn., 300; Clop-ton v. Clopton, 49 Tenn., 31; Owen v. Hancock, 38,Tenn., 563; Pierce v. Ridley, 60 Tenn., 145; Middleton v. Smith, 41 Tenn., 144; Kirk v. Furgerson, 46 Tenn., 479; Skillin v. Lloyd, 16 Tenn., 564; Balch v. Johnson, 106 Tenn., 249; Bingham v. W'eller, 113 Tenn., 70; Ward v. Saunders, 35 Tenn., 387; Wood v. Polk, 59 Tenn., 220; Linn v. Alexander, 59 Pa., 43; Pearsol v. Maxwell (C. C.), 68 Fed., 513; Lanham v. Wilson (Ky.), 22 S. W., 438; Wilkerson v. Clark, 80 Ga., 367; Brant v. Gelston (N. Y.), 2 John Cas., 384; Shuttle & Weaver Land Imp. Co. v. Barker, 178', Ala., 366. 11. WILLS. Construction. Technical words. Rules of property. Since Shannon’s Code, sec. 3673, making all estates tail fee-simple estates, creates a rule of property, its application ought not to be rendered difficult by a latitudinarian construction of familiar words, the technical significance of which uniformly creates an estate tail at common law. (Post, pp. 603, 604.) Code cited and construed: Sec. S'673(S.). 12. WILLS. Construction. Particular words. Provisions of will held not to indicate that the words “heirs of the body” were intended to be used in other than the technical significance. (Post, pp. 603, 604.) 13. HUSBAND AND WIFE. Deeds. Effect. A deed made directly by the husband to the wife creates in her a separate estate. (Post, pp. 604, 605.) Cases cited and approved: Barnham v. Le Master, 110 Tenn., 638; Funkhouser v. Fowler, 117 Tenn., 539; Ferguson v. Booth, 128 Tenn., 259; Travis v. Sitz, 185 S. W., 1075. 14. HUSBAND AND WIFE. Perpetuities. Deeds. Effect. Where the husband conveyed land to the wife, the deed providing that neither should dispose of it during the life of the other, but that the husband should be entitled to control and manage it, the husband became the wife’s trustee for her separate estate, such a restraint on the power of alienation being void if the estate is general, but not if the estate is the separate one of the wife. (Post, pp. 604, 605.) 15. HUSBAND AND WIFE. Deeds. Effect. Under a deed from the husband to the wife, he to retain the use and possession of the property, but neither to have the right to dispose of it, and in the event of his death, the wife to control and manage the property, and in the event of her death after the grantor’s death, the property to be divided among the children, and in the event of her death during the life of the grantor, the conveyance to be void, the wife has an estate only during the joint lives of herself and husband, and the interest of the children under the deed is contingent . only. (Post, pp. 605, 607.) 16. HUSBAND AND WIFE. Deeds. Effect. Such a deed conveys an estate in praesenti, the interest of the wife being immediate. (Post, pp..605-607.) 17. DIVORCE. Decree. Vested and contingent interests. A) decree in a divorce ease operating as a deed and describing a vested remainder interest in lands conveys nothing where the sole interest is a contingent remainder, and is not cured by a further description including any other property or estate of the defendant. (Post, pp. 607, 608.) Case cited and approved: Taylor v. Swafford, 122 Tenn., 303. 18. DIVORCE. Decree. Vested and contingent interests. A decree attempting to convey a contingent remainder is of no effects, since an instrument purporting to convey such an interest amounts only to an agreement to convey which may be enforced when the contingency happens. (Post, pp. 607, 608.) 19. PARTIES. Joinder. Antagonistic interests. That a husband and wife have under a will various interests in property, the extent of which in either of them depends upon his survival of the other, does not make them antagonistic so as to make their joinder as plaintiffs improper. (Post, p. 608.) Case cited and approved: Bigley v. Watson, 98 Tenn., 353. 20. QUIETING TITLE. Right to remedy. Title of plaintiff. Where the husband conveyed land to the wife subject to divestiture should she predecease him, and to the limitation that he should control and use the land during his life, they were both proper parties to sue to remove a cloud from the title, the equitable title being in her and the legal in him. (Post, p. 608.)
135 Tenn. 609White v. Hatcher (1915)
1. BILLS AND NOTES. Negotiability. Certain time. Acceleration clause. A series of notes, payable at different times, but all to become due upon default of one are negotiable; the time of payment not being uncertain and contingent within Negotiable Instruments Act (Laws 1899, ch. 94) sec. 1, subsec. 3, and section 4, providing that an instrument is negotiable which is payable, “on or before a fixed or determinable future time specified therein.” (Post, pp. 611-616.) Acts cited and construed: Acts 1899; ch. 94, sec. 4; Acts 1899, ch. 94, subsec. 3, sec. 1. Cases cited and approved: Bank v. Bussell, 124 Tenn., 618; Chicago Railway Equipment Co. v. Merchant’s Nat. Bank, 136 U. S., 268; Thorp v. Mindeman, 123' Wis., 149. Case cited and distinguished: Iowa Nat. Bank v. Carter, 144 Iowa, 715. 2. BILLS AND NOTES. Construction. Time of maturity. Acceleration clause. Such notes become due prior to their fixed maturities only at the option of a holder, and the hold of earlier notes, upon one of which default is made, can declare due and payable only the notes in his possession. (Post, p. 616.)
135 Tenn. 617State ex rel. Barnes v. Garrett (1915)
1. PARDON. Time of granting.. “Conviction.” Accused, found guilty, may be pardoned although appeal is pend-, ing, since in the provision of Const, art. 3, sec. 6, empowering the governor to pardon after conviction, “conviction” means verdict of guilty, not judgment or sentence; and the vacating or suspending of the judgment by appeal does not affect the verdict. (Post, pp. 619-626.) Cases cited and approved: Ex Parte Campion, 79 Neb., 364;-People v. Marsh, 125 Mich., 410; Gilmore v. State, 3 Okla. Cr., 639. Cases cited and distinguished: Smith'v. State, 74 Tenn., 637; Parker v. State, 103 Tenn., 547; Commonwealth v. Lockwood, 109 Mass., 3S'3; State v. Alexander, 76 N. C., 231. Codes cited and construed: Secs. 5595, 7199, 7201, 70281, 7232, 7250(S.). Constitution cited and construed: Art. 3, sec. 6; Art. 8, Ch. 2, sec. 1; Art. 1, sec. 5 (1870). 2. CRIMINAL LAW. Pardon. Waiver. A prisoner, pardoned pending appeal, who unsuccessfully moves to dismiss his appeal, and does not call the attention of the supreme court to his pardon, the case not being tried on its merits, but affirmed for want of bill of exceptions, and who on remand interposes his pardon in the court below, does not waive the pardon. (Post, pp: 626, 627.) 3. CRIMINAL LAW. Judicial notice. Pardon. Courts do not judicially notice a pardon. (Post, pp. 626, 627.) Cases cited and approved: United States v. Wilson, 7 Pet., 150; People v. Marsh, 125 Mich., 410. 4. PARDON. Waiver. Usually, if a prisoner fails to plead his pardon and puts himself on his trial, he waives the advantage of the pardon. (Post, pp. 626, 627.) 5.. PARDON. Effect. Payment of costs. A pardon does not release a convict from costs of the prosecution. (Post, pp. 627, 628.) Case cited and approved: Spellings v. State, 99 Tenn., 201; Smith v. State, 74 Tenn.,'637; Henderson v. Wauter, 101 Tenn.,. 229.
135 Tenn. 629Van Tuyl v. Carpenter (1915)
1. BANKS AND BANKING. Rights of stockholders. Representation. Under the New York statute, authorizing the superintendent of banks to ascertain financial condition and make assessments on stockholders by arbitrary determination, and allowing the ■corporation ten days to apply for injunction, the doctrine of representation of stockholders by the corporation does not apply, nor does the failure of the corporation to apply for injunction estop the stockholders and make the assessment binding; and the assessment, being arbitrary, will not be enforced in Tennessee. (Post, pp. 635-638.) Cases cited and approved: Coe v. Armour Fertilizer Works, 237 U. S., 413; Hartford L. Ins. Co. v. Ibs, 237 U. S., 662; Supreme Council R. A. v. Green, 237 U. S., 531. 2. CORPORATIONS. Right of stockholders. Representation. Powers, Statutes. Construction, The power of representation by a corporation of its stockholders which may, by mere failure to exercise it, estop the stockholders to deny liability for an arbitrary assessment of the full va$ie of their stock, ought to be conferred in unmistakable terms of the statute itself, and will not be conferred by construction. (Post, pp. 635-633.) 3. EVIDENCE. Rules of evidence. Operation. Comity. No State can impose upon any other a rule of evidence for use in the courts of the latter. (Post, pp. 638, 639.) 4. CORPORATIONS. Stockholder’s liability. Statutes. Retroactive effect. A statutory amendment of another State, adopted after making of contract of subscription to corporation stock, and even after bill to enforce assessment on such stock, cannot apply to the case so brought or the contract involved therein, even under the rule of comity. (Post, pp. 638, 639.) 5. COURTS. Decisions controlling. Validity of Statute. Analogy with other acts. The holding that New York laws as to arbitrary assessment by the banking superintendent on stockholders will -not be enforced in Tennessee does not require a similar holding as to-Acts 1913, chapter 20, which requires the banking superintendent to bring corporate affairs before the court of chancery. (Post, p. 639.) Acts cited and construed: Acts 1913, ch. 20. 6. COURTS. Decisions controlling. Matters not contested. While a decision that assessments by the comptroller of the-currency are conclusive necessarily implies that they are valid,, yet when that power is merely assumed without examination,, the point cannot be successfully used by analogy in determining the validity of a statute authorizing assessments by the-banking commissioner, where the question is directly raised. (Post, pp. 639-641.) Cases cited and approved: Kennedy v. Gibson, 8l Wall., 498; Casey v. Galli, 94 U. S., 673; United States ex rel. Citizens’' Nat. Bank v. Knox, 102 U. S., 422; Bushnell v. Leland, 164 U. S'., 684; Studebaker v. Perry, 184 U. S., 258; 7. BANKS AND BANKING. Stockholders’ liability. Validity of' statutes. Determination. Statutes of other States. In suit in Tennessee to collect arbitrary assessments on stock by the New York banking commission, the question is not whether the statute authorizing such assessments is valid, but whether public policy of Tennessee permits such power to-vest in a ministerial officer. (Post, p. 641.) Case cited and approved: Matter of Union Bank, 204 N. Y., SIS. 8. BANKS' AND BANKING. Insolvency receivers. Actions. The right of the New York banking commissioner to recover assessments under New York law in Tennessee depends on the statute, and unless the right to sue in foreign State is given by statute, he cannot sue in such State. (Post, pp. 641, 642.) Cases cited and approved: Hale v. Allinson, 188 U. S., 65; Great Western Min. & Mfg. Co. v. Harris, 198 U. S., 561; Bernheimerv. Converse, 206 U. S., 534; Converse v. Minn. Thresher Mfg. Co.,. 212 U. S., 567; Converse v. Hamilton, 224 U. S., 243; Selig v. Hamilton, 234 U. S., 652; Irvine v. Elliott (D.C.), 203 Fed., 82;; Carnegie Trust Co. v. Crockett, 188 S. W., —. / 9.RECEIVERS. Jurisdiction. Action by receiver. Foreign; States. The rule is general that a mere chancery receiver cannot sue irt a foreign State, and can assert claims only through exercise of' comity by the State in which he seeks to exercise his functions,. and the rule necessarily attributes the duties of a receiver to an officer of a foreign State claiming authority under its legislative act, since foreign laws can have no extraterritorial efficacy, save in those instances which are governed by the “full faith and credit” clause of the federal Constitution..(Post, p. 642.) Cases cited and approved: Hardee v. Wilson, 129 Tenn., 511;. Booth v. Clark, 17 How., 322; Great Western M. & M. Co. v. Harris, 198 U. S., 561; Converse v. Hamilton, 224 IJ. S., 243'.. 10. RECEIVERS. Insolvency receivers. Jurisdiction of actions. If the receiver has the legal title to the claim sued on, he has; generally a right to sue -in the foreign State. (Post, p. 643.) Cases cited and approved: La Fayette Trust Co. v. Higginbotham, 136 App. Div., 747; Matter of Union Bank of Brooklyn, 204 N. Y.„ 313; State v. Del Rio Turnpike Co., 131; Tenn., 600. 11. BANKS AND BANKING. Insolvency receivers. Actions. Until judicial determination of amounts needed for liquidation of the corporation, the superintendent of banks, or statutory receiver, though having title to the assets and empowered to sue in a foreign State, cannot bring such suit. (Post, pp. 643, 644.) 12. CORPORATIONS. Rights of stockholders. Contracts. The liability of a stockholder for assessments arises out of the-statute which imposes it, but the statute becomes binding om. the stockholder through his subscription, whereby he places, himself in such a relation to it as that he is bound by its terms, and may be said to agree by implication that lie will pay when the conditions of his liability for a specific amount are lawfully made to appear.. (Post, pp. 644, 645.) Cases cited and approved: Whitman v. Oxford Nat. Bank, 176 U. S., 559; Ferguson v. Sherman, 116 Cal. 169; Flash v. Conn., 16 lFla„ 428; Bell v. Farwell, 176 111., 489; Stocker v. Davidson, 74 Kans., 214; Pfaff v. Cruen, 92 Mo. App., 560; Hancock Nat. Bank v. Ellis, 172 Mass., 39; Christopher v. Norvell, 201 U. S., 216; Kulp v. Fleming, 65 Ohio St., 321.
135 Tenn. 646Silliman v. International Life Ins. (1915)
1. INSURANCE. Life policies). Statutes. Construction.Not in good faith. , In acts 1901, Chapter 141, section 1, as to penalties for refusing to pay a policy, the words “not¡ in good faith,” are antithetical to “in good faith,” and imply a lack of good or moral intent as the motive for refusal to pay the loss. (Post. pp. 647, 648.) Acts cited and construed: Acts 1901, ch. 141', sec. 1. 2. INSURANCE. Life policies. Refusal to pay loss. Right to statutory penalty. Under such statute, the right to recover the penalty is conditoonal, and does not exist where the) right to recover the face of the pok'cy has been forfeited by failure to pay premiums, or where the refusal is in good faith. (Post, pp. 648-650.) Cases cited and approved: Thompson v. Insurance Co., 116 Tenn., 557; De Rossett Hat Co. v. London & Lancashire Ins. Co„ 134 Tenn., 199. Cases cited and distinguished: Grain Co. v. Weaver, 128 Tenn., 609; Harowitz v. Fire Ins. Co., 129 Tenn., 691; Ins.- Co. v. Kirkpatrick, 129 Tenn., 55. 3. INSURANCE. Life policies. Refusal to pay loss. Right to statutory penalty. Evidence. Evidence held insufficient to show that insurer’s refusal to pay loss on life policy was not in good faith. (Post, pp. 650-652.) Case cited and approved: Silliman v. In$. Co., 131 Tenn., 303. 4. COMPROMISE AND SETTLEMENT. Validity. The law encourages honest efforts to compromise differences. (Post, pp. 650-652.) 5. INSURANCE. Life policies. Refusal to pay loss. Right to statutory penalty. Evidence. In view of differences of opinion as to statutory construction and determinative facts, an insurer is not necessarily liable For refusal to pay a loss as made in bad faitb, on tbe ground that its attorneys should have known the law fixing liability on the policy (Post, pp. 650-652.)
135 Tenn. 653State ex rel. Thompson v. Reichman (1916)
1. SHERIFFS AND CONSTABLES. Powers and duties. The office of sheriff carries all the common-law powers and duties except as modified by statute. (Post, pp. 661, 662.) Acts cited and construed: Acts 1915’, ch. 11; Acts 1909, ch. 1; Acts 1913, ch. 2. Case cited and approved: State v. Crump, 134 Tenn., 121. 2. SHERIFFS AND CONSTABLES. Powers and duties. “Notice.” Under Shannon’s Code, section 6899', a sheriff who has “notice” of an offense and does not do his duty to prevent it is guilty of a misdemeanor, and any knowledge from any source is notice within the statute. (Post, pp. 662-666.) Code cited and construed: Sees. 452, 6892-6895, 6898, 6899, 6900, 6978, 6997 (S). Note. — See following opinion on petition to rehear. 3. SHERIFFS AND CONSTABLES. Powers and duties. Notice. Since cities have 'police officiate, the sheriff may assume that they will perform' their duties, but if he has knowledge of neglect on their part, or reason to think there is neglect, he must inform himself and prevent and suppress offenses in cities as well as rural districts. (Post, pp. 666, 667.) 4. ARREST. Arrest without warrant. “Breach of the peace.” Unlawful sale of liquors. “Breach of the peace” being a generic term including all violations of public peace or order, includes unlawful sale, actual or threatened, of intoxicating liquors, and the sheriff may arrest without warrant therefor. (Post, pp. 667-669.) Acts cited and construed: Acts 1877, ch. 23. Cases cited and approved.: Webster v. State, 110 Tenn., 507, State v. Frost, 103 Tenn., 694. Cases cited and distinguished: Galvin v. State, 46 Tenn., 294; Smith v. Knoxville, 40 Tenn., 247. 5. ARREST. Arrest without warrant. Threatened unlawful sale of intoxicating liquors. While mere possession of intoxicating liquors in any quantity is not unlawful, it is a breach of the peace for one having liquors to prepare for sale thereof, that being a threat to violate the law against sales. (Post, pp. 669-673.) Cases cited and distinguished: Hayes v. Mitchell, 69 Ala., 454; Johnson v. Mayor, 46 Ga., 80; Boaz v. Tate, 43 Ind., 60. 6. ARREST. Arrest without warrant. Threatened sale of liquors. The right of the sheriff to arrest without warrant for theatened unlawful sale 6f intoxicating liquors and to close the place of business is not unlawful as an arbitrary invasion of property rights, which are not more sacred that the person, which may be seized to prevent breach of peace. (Post, pp. 673', 674.) Case cited and approved: Yerkes v. Smith, 157 Mich., 559'. 7. SHERIFFS AND CONSTABLES. Duties. Compensation. The requirement that the sheriff, to prevent breaches of the peace, arrest one who threatens unlawful sale of intoxicating liquors and if necessary close his place of business, is not subject to the objection of requiring services without compensation. (Post, pp. 674, 675.) 8. ARREST. Arrest without warrant. Threatened unlawful sale of intoxicating liquors. For a misdemeanor committed without his presence, a sheriff cannot arrest without warrant; but, if breach of peace is threatened in his presence, he needs no warrant to arrest to prevent the breach under Shannon’s Code, section 6892. (Post, pp. 675, 676.) Code cited and construed: Sec. 6892 (S.) 9. SHERIFFS AND CONSTABLES. Duties of sheriff. Investigations. The duty of the sheriff, having notice of commission of an offense being to prevent or suppress it, involves the duty to at least make some investigation, and it is not necessary in case of unlawful sales of intoxicating liquors, for the sheriff to actually see sales before swearing out warrants. (Post, pp. 676, 677.) Case cited and approved: State v. Good, 77 Tenn., 240. 10.SHERIFFS AND CONSTABLES. Duties of sheriff. Investigations. Although the sheriff is not bound to maintain a detective force, and no statute in terms make it his duty to swear out warrants or give information to the grand jury, yet being commanded to prevent and suppress crimes and breaches of the peace, he must use all the means provided by law to accomplish such end. (Post, p. 677.) 11 SHERIFFS AND' CONSTABLES. Powers and duties. Breach. Evidence. Evidence held to show that a sheriff failed to perform his duties to prevent and suppress breaches of the peace by unlawful sale and threatened unlawful sale of intoxicating liquors. (Post, pp. 678-680.) 12. SHERIFFS AND CONSTABLES. Breach of duties. Defenses. It is no defense for the sheriff’s failure to prevent breaches, of the peace by unlawful sales of intoxicating liquors, that the State was proceeding against offenders under the Nuisance Act (Laws 1913 [2d Ex. Sess.] chapter 2), or that the criminal court administration was lax and,nothing would have been accomplished in case of arrest. (Post, pp. 680-684.) Cases cited and approved: Commonwealth v. Wright, 158 Mass., 149; Pinkerton v. Verberg, 78 Mich., 573; Jamison v. Gaernett, 10 Bush. (Ky.), 221; Robinson v. Miner, 68 Mich., 549. . Note. — See following opinion on petition to rehear.
135 Tenn. 685State ex rel. Thompson v. Reichman (1916)
1. SHERIFFS AND CONSTABLES. Title to office. Ground for removal. A sheriff who has made an honest and reasonably intelligent effort to do his duty will not be removed by the courts, though, his efforts may not have been wholly successful, his right to. continue in office depending rather on the good faith of his-, efforts than on the degree of his success. (Post, pp. 692-697.). Case cited and approved: State v. Howse, 134 T-enn., 89. Cases cited and distinguished: South v. Maryland, 18 How.,, 396; Scougale v. Sweet, 124 Mich., 323. 2. SHERIFFS AND CONSTABLES. Powers and duties. Notices of violation of law. When a sheriff learns that a city in his county is collecting tribute from numerous liquor dealers and leaving them otherwise undisturbed, this is notice to him that the law is being violated and no effort made to enforce if. (Post, pp. 697-700.)' Case, cited and approved: Jones v. State, 100 Ala., 90. 3. ARREST. Without warrant. Duties of sheriff. While a sheriff need not malte a forcible entrance into a sus* peeted residence or place of business to discover violations of the liquor law, he or his deputies should enter open saloons and malte arrests if justified by what they see therein. (Post, pp. 697-700.) 4. BREACH OF THE PEACE. Elements. “Peace.” The word “peace,” in the phrase “breach of the peace,” means the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members; that invisihle sense of security which every man feels necessary-to his comfort, and for which all governments are instituted;. (Post, pp. 700-706.) Cases cited and approved: Galvin v. State, 46 Tenn., 294; Davis v. Burgess, 54 Mich., 517; State v. Coffin, 64 Vt., 27; People v. Ruggles, 8 Johns. (N. Y.), 290; Lindenmuller v. People, 33 Barb. (N. Y.), 548|; State v. O’Rourke, 35 Neb., 614. Cases cited and ■ distinguished: Jones v. State, 100 Ala., 90; Ware v. Branch Circuit Judge, 75 Mich., 49®. 5. BREACH OF THE PEACE. Elements. Violation of statute. “Breach of the peace,” in view of the generally accepted definition, and of constitutional provision that all indictments shall conclude, “against the peace and dignity of the State,” includes any violation of any law enacted to preserve peace and good order. {Post, pp. 700-706.) 6. INTOXICATING LIQUORS. Offenses. Statutory provision. Shannon’s Code, Sec. 99S', subsec. 2, requiring every applicant for a liquor license to give bond to keep a peaceable and orderly house, is a legislative declaration that the liquor law is intended to preserve the peace, so that any violation thereof :is a breach of the peace. {Post, pp. 706-710.) «Case cited and approved: Dyer v. State, 19 Tenn., 250. •Code cited and construed: Sec. 993, subsec. 2 (S.). 7. INTOXICATING LIQUORS. Offenses. Nuisance. Breach of the peace. ¡Engaging in the sale of intoxicating liquors, declared by Act 1913 (2d Ex. Sess.) chapter 21, to be a nuisance, Is among that «class of nuisances always .treated by the court as tending to disturb the peace and good order of the community. {Post, pp. 710-713.) •Cases cited and approved: Childress v. Mayor & Aldermen, 35 Tenn., 358; State v. Graham, 35 Tenn., 134; Delk v. Commonwealth, 166 Ky., 39. «Cases cited and distinguished: Graham v. State,-134 Tenn., 285; Legg v. Anderson, 116 Ga., 401; State v. Tabler, 34 Ind. App., 393. 8. SHERIFFS AND CONSTABLES. Powers and duties. Enforcement of law. That Acts 1913 (2d Ex. Sess.) chapter 2, declaring a saloon a nuisance, provides a method for its abatement, merely furnishes a cumulative remedy, and does not abrogate any other remedy or affect a sheriff’s duties. (Post, p. 713.) 9. INTOXICATING LIQUORS. Offenses. “Disorderly house.” A saloon run in violation of law is a “disorderly house,” which is defined as any place where illegal practices are habitually carried on; and hence a saloon open, équipped, and ready for business is a threat to breach the peace, if not in itself a breach of the peace. Citing Words & Phrases, Second Series, Disorderly House. (Post, pp. 713, 714.) 10. BREACH OF THE PEACE. Elements. Violence. It is not necessary that an act have in itself any element off violence in order to constitute a breach of the peace. (Post, pp. 714-731.) Cases cited and approved: Davis v. Burgess, 54 Mich., 517; Roberson v. State, 43' Fla., 156; Judy v. Lashley, 50 W. Va., 628; Hurd v. State, 119 Tenn., 584; McLennon v. Richardson, 15 Gray (Mass.), 74; Cornett v. Commonwealth, 78 S. W., 858; Delk v. Commonwealth, Í66 Ky., 39; Scougale v. Sweet, 124 Mich., 311; Yerkes v. Smith, 157 Mich., 557; In re Kellam, 55 Kan., 700. Cases cited and distinguished: Davis v. Burgess, 54 Mich., 517; State v. Warner, 34 Conn., 276; Ware v. Branch, 75 Mich., 496; Robinson v. Miner, 68 Mich., 549; In re Carroll, 12 Wkly. Law Bui. (Ohio), 9. 11. SHERIFFS AND CONSTABLES. Powers and duties. Arrest. On making an arrest for a threatened violation of the liquor law, the sheriff should take such steps as are necessary to prevent the threatened sales, as, in case of a saloon open for business, by closing it till the liquors are removed, and then release the offender and leave future sales and future threats to be dealt with as they arise. (Post, pp. 731-737.) Case cited and approved: Shanley v. Wells, 71 III., 78; O’Con-nor v. Bucklin, 59 N. H., 589; Ross v. Leggett, 61 Mich., 445; Ex parte Morrill, 35 Fed., 261; McC'rowell v. Bristol, 73 Tenn., 685. Cases cited and distinguished: Eilenbeeker v. District Court, 134 U. S., 31; Spalding v. Preston, 21 ,Vt., 9; Quinn v. Heisel,. 40 Mich., 578. 12. SHERIFFS AND CONSTABLES. Powers and duties. Willful neglect. In proceedings to remove a sheriff for failure to enforce the liquor law, he is precluded, by his admission that he did nothing in a city within his county but to serve process where liquor was openly sold in violation of law, from asserting that no willful neglect of his duty has been shown. (Post, pp. 737-739.)