137 Tenn.

Volume 137 — Tennessee Reports

68 opinions

137 Tenn. 1Thomas & Turner v. National Conservation Exposition Co. (1916)
1. MECHANICS LIENS. Improvement by lessee. Statute. “Superior title.” Plaintiffs having constructed improvements for assignee of lease which provided that all improvements should belong to lessor at expiration of lease, and that property should not be subjected to lien, knowing of lessor’s title, could not remove improvements to satisfy mechanic’s lien under Shannon’s Code, section 353-1, amended by Acts 1889, chapter 103, section 2, providing for such removal where work was done in ignorance of parties’ disability, “or in other cases of superior titles or liens.” (Post, pp. 9-16.) Acts cited and construed: Acts 1889, ch. 103, sec. 2. Cases cited and approved: Reed v. Estes, 113 Tenn., 204; Alley & Bush v. Lanier, 41 Tenn., 540; Kay v. Smith, 57 Tenn., 43; Burr v. Graves, 72 Tenn., 554; Daniel v. Weaver, 73 Tenn., 392; Steger v. Refrigerating Co., 89 Tenn., 456; Cole Mfg. Co. v. Palls, 90 Tenn.,' 466; Ice & Coal Co. v. Alley, 127 Tenn., 181. Code cited and construed: Sec. 3531 (S.). 2. MECHANICS’ LIENS. Improvements by tenant. Removal. The fact that president of the lessor company was an officer of the lessee company and knew of improvements made for lessee by plaintiffs, having done nothing to mislead the partties, and his actions being consistent with lease, does not entitle plaintiffs, who knew of the lessor’s superior title, to remove the improve- „ ments under Shannon’s Code, section 3531, as amended by Acts 1889, chapter 103, section 2. {Post, p. 16.)
137 Tenn. 17State ex rel. Mynatt v. King (1916)
1. JURY. Intoxicating liquor sale. Injunction. Right to jury trial. In view of Shannon’s Code, sections 6282-6287, as to jury trial of issues in suits in chancery, etc., a defendant in proceeding under Pub. Acts (2d Ex. Sess.) 1913, chapter 2, as to abatement as public nuisances of places where liquor is sold, etc., by filing a bill or petition in any chancery, circuit, or criminal court, providing that proceedings thereunder shall be conducted in accordance with procedure of chancery courts, etc., is entitled to jury trial of the facts in issue, notwithstanding the act contemplates that cases shall be tried with expedition, and a suit cannot be dismissed without the consent of the court. (Post, ■pp. 20-26.)' Acts cited and construed: Acts 1913, ch. 2. Case cited and approved: State ex rel. y. Howse, 134 Tenn., 67. Code cited and construed: Sec. 6282 (S.). 2. EQUITY. Jury trial. Under Shannon’s Code, sections 6282-6287, as to jury trial in chancery cases, the jury does not deliver a general verdict as in common-law courts, but only responds to issues framed under direction of the court, who decides the points of law involved. (Post, pp. 26-28.) Case cited and approved: State ex rel. v. Pérsica, 130 Tenn., 48. 3. JURY. Right to jury trial. The common-law right of trial by jury does not relate to trials 'n equity courts. (Post, pp. 28-31.) Cases cited and approved: State ex rel. v. Howse, 134 Tenn., 67; Brewing Co. v. Currier, 126 Tenn., 535; Tennessee Fertilizer Co. v. McFall, 128 Tenn., 645; Clingman v. Barrett, 25 Tenn., 20. 4. JURY. .Right to jury trial. Statute. “Summary.” In a statute creating a new cause of action, a direction that a trial in the new action shall be of a “summary” character is equivalent to saying that it shall he a trial without a jury, although the legislature may indicate that a jury shall be dispensed with by the use of other language. (Post, pp. 28-31.) 5. JURY. Right to jury trial. Statute. Where dispensing with the jury is asserted as the distinguishing feature of a new form of action provided by the legislature for an infraction of law, that purpose should clearly appear from the face of the act, and will not lightly be inferred. (Post, p. 31.) 6. STATUTES. Construction. Consequences. Statutes should be construed according to established principles without regard to the consequences, unless they are absurd, irrational, or lead to the unconstitutionality of the act. (Post, p. 31.)
137 Tenn. 32Frankfort Land Co. v. Hughett (1916)
1. VENUE. Local action. Situs of land. Under Shannon’s Code, section 6121, suhsec. 2, providing that all bills to clear up title to lands shall be filed in the county in which the land lies, a suit to recover possession of land and remove clouds from complainant’? title is a local action, properly brought in the county wherein the land lies. (Post, pp. 40, 41.) Code cited and construed: Sec. 6121 (S.). 2. VENUE. Land. Codefendants. Where one owning land in one county brought ejectment against individuals alleged fo be trespassers, and against a corporation located in another county which had purchased timber cut during the alleged trespass, but had not received all of such timber, the action was properly brought in the county wherein the land lay, the corporation being an interested party, and a court of equity requiring that all persons interested in the subject-matter shall be made' parties. (Post, pp. 41-45.) Cases cited and approved: McCaleb v. Crichfield, 52 Tenn., 288; Brown v. Brown, 86 Tenn., 277; Craig v. McKnight, 108 Tenn., 690; Birdsong v. Birdsong, 40 Tenn., 290. 3. VENDOR AND PURCHASER. Rights of purchasers. Knowledge of defect In title. Where promoters of a corporation conveyed land to the corporation ánd a third person as attorney in fact for one promoter joined, but later such third person took an assignment of all the timber rights from the promoters, he was charged with knowledge that all the property had already been conveyed. (Post, pp. 45, 46.) 4. VENDOR AND PURCHASER. Rights of purchaser. Innocent purchaser. Where a deed to land made specific reference to the book and page on which the grantor’s deed was recorded, and erroneously referred to the grantor therein as a corporation when in fact it was a number of individuals, the grantee of the second deed acquired no title. (Post, pp. 46, 47.) 5. ESTOPPEL. Estoppel by conduct. Delay. Claim to land. Where a Wisconsin corporation owned land in Tennessee, but for many years had no agent thereon, and merely kept up its possession by a tenant, and its directors only infrequently visited the land, hut immediately after a visit brought ejectment to remove the cloud of a trespass, it was not estopped to claim title by the alleged delay in asserting it. (Post, pp. 47-50.) 6. ESTOPPEL. Who may claim estoppel. Where, owing to his knowledge of defects in title, the original grantee could not have claimed estoppel as against the true owner, none of his successors could rely on estoppel. (Post, pp. 50, 51.) Case cited and approved: Bank v. Railroad, 128 Tenn.,, 530. 7. ESTOPPEL. Who may claim. Trespassers. A trespasser and those who connive at the trespass have little standing to invoke the doctrine of equitable estoppel. (Post, pp. 51, 52.) 8. ESTOPPEL. Right to claim. Negligence. Those who proceed in acquiring land without ordinary care are not entitled to the benefit of an estoppel. (Post, pp. 51, 52.) 9. LIMITATION OF ACTIONS. Trespass. Rule’applicable. Since an owner of land suing for timber wrongfully removed may waive the trespass, and recover in indebitatus assumpsit, his action is subject to limitation of Shannon’s Code, section 4472, of six'years, and not of section 4470 of three years, if he waives the tort. (Post, p. 52.) Case' cited and approved: Whitaker v. Poston, 120 Tenn., 207. Code cited and construed: Secs. 4470, 4472 (S.). 10.ASSUMPSIT, ACTION OF. "Damages.-Measure. In an action for trespass and to recover the value of timber remover during the trespass, where the owner relied on indebitatus assumpsit waiving the tort, his damages were properly limited to the mild rule. {Post, p.. 53.) Cases cited and approved: Dougherty v. Chestnut, 86 Tenn., 1; Holt v. Hayes, 110 Tenn., 42; Godwin v. Taenzer, 122 Tenn., 101; Moore v. Richardson, 68 N. J. Law, 305. 11. TRESPASS. Liability of joint tort-feasors. Trespass. Persons who connived at a trespass by cutting timber were joint tort-feasors and equally liable with the actual trespasser for the value of timber at the time of the conversion. {Post, V. 54.) 12. CORPORATIONS. Foreign corporation. Suits. Venue. A foreign corporation owning land in a county is entitled to bring ejectment in the county wherein the land lies. {Post, p. 54.) Cases cited and approved: Louisville Property Co. v. Mayor & City Council of Nashville, 114 .Tenn., 218; Morgan Bros. v. Coal & Iron Co., 134 Tenn., 228.
137 Tenn. 55Baker v. Miller (1916)
1. TAXATION. Inheritance tax. Legitimating child. Under Shannon’s Code, sections 5406-5408, as to the method and effect of legitimating ■ out of lawful wedlock, such a child’s share of his father’s estate is not subject to the five per cent, collateral inheritance tax under Acts 1893, chapter 174, section 1, for, since such child inherits directly, and not collaterally, and the title to the 1893 act covers only collateral inheritance, if the act were construed as ■ imposing a tax on the inheritance of such a child, it would be unconstitutional as broader than its title. {Post, pp. 59, 60.) Acts cited and construed: Acts 1909, ch. 479, sec. 20; Acts 1893, ch. 174, sec. 1. Cases cited and construed: Secs. 5406 to 5408 (S.). 2. DESCENT AND DISTRIBUTION. .Legitimation of children. Effect of statutes. The effect of the rule of Shannon’s Code, section 5408, creating the relation of father and child between a father and his legitimated child, is'not weakened, in respect of the rights of the child to inherit from such father, by the fact that his mother still has some rights as regards the. child’s person superior to those acquired by his father through legitimation, and some right of inheritance of the child’s property superior to the father’s next of kin. (Post, pp. 60, 61.) Cases cited and approved: Swanson v. Swanson, 32 Tenn., 446; Williams v. Williams, 79 Tenn,, 652; McKemie v. Baskerville, 86 Tenn., 459; Scott v. Wilson, 110 Tenn., 175; McCormick v. Cantrell, 15 Tenn., 615; Lawson v. Scott, 9 Tenn., 92; Commonwealth v. Mackey, 222 Pa., 613; Wirringer v. Morgan, 12 Cal. App., 26; In re Cook's Estate, 187 N. Y., '253; Com. v. Gilkeson, 18 Pa. Super. Ct., 516. 3. STATUTES. Inheritance tax. Adopted child. Subject expressed in title. Under Const, article 2, se'ction 17, providing that the subject of a law- shall be expressed in its title, Shannon’s Code, section 5411, provides that an adopted child shall have the rights of one born in lawful wedlock as concerns inheritance from his adopted father, etc., Acts 1893, chapter 174, section 1, entitled an act to provide for collateral inheritance tax, etc., on estates, pro- . vides that the exception therein in favor of “children” shall not apjjly to adopted children. Held, that such provision is unconstitutional, under Const, article 2, section 17, since the title of the act covers only collateral inheritance, and children by adoption inherit directly. {Post, pp. 61, 62.) Cases cited and approved: Helms v. Elliott, 89 Tenn., 446; Murphy v. Portrum, 95 Tenn., 605; In re Winchester’s Estate, 140 Cal., 468; McCamey v. Cummings, 130 Tenn., 494; State ex reí. v. Taylor, 119 Tenn., 229; State v. Hayes, 116 Tenn., 40; State ex rel. v. Trewhitt, 113 Tenn., 561. Code cited and construed: Sec. 5411 (S.). 4. TAXATION. Inheritance tax. Attorney for the State. Fees. In view of sections 14, 20, of the collateral inheritance tax law (Acts 1893, chapter 174), providing for attorney’s fees for attorney for the State in the county court in proceedings to enforce payment of the tax, but providing that in the circuit court the district attorney general and in the supreme court the attorney general shall represent the State in such proceedings, no attorney’s fees can be allowed a private attorney for the State in either circuit or supreme court. {Post, pp. 62, 63’.) Acts cited and construed: Acts 1893, ch. 174, secs. 14, 20.
137 Tenn. 64Hardcastle v. National Clothing Co. (1916)
1. CERTIORARI. Presumption as to return of warrant. On application for certiorari to review judgment of the court of civil appeals in an action of detinue, where, no service of the warrant or writ issued hy the justice of the peace appears on the copy thereof as reproduced in the transcript, hut no such question was made below, and it affirmatively appears from the evidence that there was such return, the supreme court must conclude that the failure of the warrant as copied is merely the result of a misprision of the clerk in preparing the transcript. {Post, p. 67.) Code cited and construed: Sec. 5137 (S.). 3. BANKRUPTCY. Recovery of security. Under Bankr. Act July l; 1898, chapter 541, section 67d, 30 Stat. 564 (U. S. Comp. St. 1913, section 9651), providing that liens given or accepted in good faith, and not in contemplation or in fraud of the act, and for a present consideration, which have been recorded according to law, if record was necessary to impart notice, shall, to the extent of the present consideration, not he affected by the act, the claim of a vendor of a suit of clothes, who retained title by a contract in writing, was unaffected by bankruptcy proceedings instituted by the buyer two or three days after the sale. (Post, pp. 67, 68.) ^ Acts cited and construed: Acts 1898, sec. 67d. 3. BANKRUPTCY. Jurisdiction of court. Duty of trustee. The bankruptcy court had power to take charge of a suit of clothes which a bankrupt had purchased, paying only $3 of the $20 for which it was sold, the vendor retaining title by contract in writing, to cause it to be sold to realize any surplus, and to prevent the bringing of any action in a State court to realize on the security after the inception of the bankruptcy proceedings, or to arrest such action if brought, but the trustee in bankruptcy was not bound to interfere with the seller’s action in, detinue in the State court to enforce his security: there being no reasonable ground for believing that a surplus over the seller’s security would be realized. (Post, pp. 68, 69.) Case cited and approved: Re Jersey Island Packing Co., 138 Fed., . 625. 4. PLEDGES. Conversion. The holder of security for a debt has a .special property in the security which entitles him to recover its value, to the extent at least of his debt, if it be converted by the debtor. (Post, p. 69.) Cases cited and approved: Zavelo v. Reeves, 227 TJ. S., 625. 5. BANKRUPTCY. “Provable debt.” A bankrupt’s liability to a security holder for a conversion of the security, arising after the institution of bankruptcy proceedings, does not constitute a “provable debt,” and is unaffected by Bankr. Act, section 63a (U. S. Comp. St. 1913, section 9647). (Post, p. 69.)
137 Tenn. 70Browning v. Gray (1916)
ELECTIONS. Official oath. Necessity. The statutory requirement that officers and clerks of elections shall take oaths prescribed is mandatory, hut when it affirmatively appears that no injury was done, either to the voters or to the candidates, failure to take and subscribe the oath by the officers of an election is a mere irregularity for which the election will not be invalidated. Cases cited and approved: Barry v. Lauch, 45 Tenn., 593; State ex rel. v. Burrow, 119 Tenn., 376; Cook v. State, 90 Tenn., 414; Peabody v. Burch, 75 Kan., 543; McGrane v. Nez Perce County, 18 Idaho, 714; Tuntland v. Noble, et al., 30 S. D., 145; Hughes v. Roberts et al., 142 Ky., 142. Case cited and distinguished: McCraw v. Harralson, 44 Tenn., 40.
137 Tenn. 77Sharp v. Sovereign Camp Woodmen of World (1916)
INSURANCE. Mutual benefit insurance. Designation of beneficiary. Persons eligible. Under Acts 1913, chapter 44, section 6, providing that death benefits of a mutual benefit association shall he confined to certain persons named, and a provision of the association constitution for reversion of benefits to the society if no legal beneficiary survived the member, where a member named a woman as his sister and she was not related to him, the designation was of no effect, but that did not avoid the policy or make it voidable, and it was competent for the insured later to name his brother as beneficiary. Acts cited and construed: Acts 1913, ch. 44, sec. 6. Cases cited and approved: Supreme Lodge, etc., v. Hiñe, 8b Conn., 315j Cunat v. Supreme Tribe of Ben Hur, 249 Ill., 448; Di Messiah v. Gern, 10 Mise. Rep., 30; Hicks v. Perry, 140 Mass., 580. Case . cited and distinguished: Britton v. Supreme Council of Royal Arcanum, 46 N. J. Eq., 102.
137 Tenn. 82State v. Norvell (1916)
1. HEALTH. Police power. Vital Statistics law. The Vital Statistics Law (Acts 1913, chapter 30), requiring undertakers to secure burial permit by filing complete certificate of death, etc., is a valid exercise of the State’s police power, tending to promote the safety, health, and well-being of the community. (Post, p. 93.) Acts cited and construed: Acts 1913, ch. 30. 2. CONSTITUTIONAL LAW. Personal privileges and liberty. Vital statistics law. This statute does not violate Const, article 1, section 8, providing that no man shall be taken or imprisoned or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, and property, but by the judgment of his peers or the law of the land; the statute being an exercise of the State’s police power. (Post, pp. 93, 94.) Cases cited and approved: Washington v. Mayor of Nashville, 31 Tenn., 180; Wright v. State, 50 Tenn., 256; House v. Whitis, 64 Tenn., 692; Theilan v. Porter, 82 Tenn., 622; Henley v. State, 98 Tenn., 665; Webster v. State, 110 Tenn., 491; Morrison v. State, 116 Tenn., 534; Motlow v. State, 125 Tenn., 547. Constitution cited and construed: Sec. 8, art. 1. 3. EMINENT DOMAIN. Taking property. Vital statistics law. Nor does it violate Const, article 1, section 21, providing that no man’s particular services shall be demanded or property taken or applied to public use without the consent of his representatives or without just compensation being made therefor; the statute being an exercise of the State’s police power. (Post, pp. 93, 94.) 4. CONSTITUTIONAL LAW.. Fifth amendment. Restriction of federal powers alone. The power of the Federal government alone are restricted by Const. TJ. S. Amend. 5. (Post, pp. 94, 95.) Cases cited and approved: Kelly v. Pittsburg, 104 U. S., 78; Livingston v. Moore, 7 Pet., 469; Barron, for Use, v. Baltimore, 7 Pet., 243. 5. CONSTITUTIONAL LAW. Constitutional restriction of federal government. The first ten amendments of Const. U. S. do not apply to the States, but are restrictions upon the power of the Federal government alone. (Post, pp. 94, 95.) 6. CONSTITUTIONAL LAW. Fourteenth amendment. Vital statistics law. Vital Statistics Law, requiring undertakers to procure burial permit and death certificate, and make report of death without medical attendance, etc., does not violate Const. U. S. Amend. 14. (Post, p. 95.) 7. HEALTH. Regulation. Reasonableness. Vital statistics law. Vital Statistics Law, requiring certain reports, etc., of undertakers, is not invalid as unreasonable or arbitrary, or imposing an undue burden on the undertakers, since it will he construed as not requiring impossibilities; but where the undertaker is unable to secure the statutory information after diligent effort, and a burial permit is refused him, he will not be punished for proceeding with the disposition of the body, notwithstanding such wrongful refusal. (Post, pp. 95-98.) Cases cited and approved: Robinson v. Hamilton, 60 Iowa, 134; Commonwealth v. McConnell, 116 Ky., 358; State v. Boone, 84 Ohio St., 346. 8. STATUTES. Title. Vital Statistics law. The Vital Statistics Law, entitled “An act to provide an effective system for the keeping of records of all births and deaths in Tennessee, and to provide penalties for the violation of this act,” does not violate Const, article 2, section 17, as being broader than its title. (Post, p. 98.) Constitution cited and construed: Art. 2, sec. 17.
137 Tenn. 99Bostick v. Thomas (1916)
1. APPEAL AND ERROR. Reservation of grounds of review. Motion for new trial. A motion for a new trial is necessary to test the correctness of the action of the trial judge in allowing or disallowing a motion for peremptory instructions, since, in order for the appellate court to consider the evidence on which the trial judge directed verdict, it is necessary that there should he a motion for new trial. (Post, p. 101.) Cases cited and approved: Seymour v. Railroad, 117 Tenn., 102; Barnes v. Noel, 131 Tenn., 131; Railroad v. Ray, 124 Tenn., 28; Jacks v. Lumber Co., 125 Tenn., 127. 2. APPEAL ,AND ERROR. Reservation ’ of grounds of review. Motion for new trial. o Everything which occurs in the progress of the trial, and which must he preserved by bill of exceptions, must be made the basis of a motion for new trial, if complaint is to be 'made thereof on appeal. (Post, p.-101.) 3. NEW TRIAL. Motion for new trial. Hearing. Final order or judgment. If the trial judge, upon consideration of the motion for new trial, deems that he erroneously denied a motion for a directed verdict, it is his duty, in considering the motion, to correct.such error, and direct the verdict. (Post, pp. 101, 102.) Cases cited and approved: Box Co. v. Gregory, 119 Tenn., 546; Railroad v. Johnson, 144 Tenn., 632; Assurance Co. v. Feed Co., 122 Tenn., 655; Railroad v. Ray, 124 Tenn., 28; Railroad Commissioners v. Railway, 123 Tenn., 257. . 4. APPEAL AND ERROR. Finality of decision. Directions of verdict. When the trial judge directs a verdict, in considering motion for new trial, to correct his error in having previously denied a motion for a directed verdict, the appeal is not from his act awarding the new trial, such action not being final, and therefore not appealable, but from the directed verdict and the judgment. (Post, pp. 101, 102.)
137 Tenn. 103Grizzard v. Fite (1916)
1. ELECTION OF REMEDIES. Alternative remedies. Denial of contract barring relief on contract. “Election.” In view of Shannon’s Code, section 4439, providing that whenever the facts of the ease entitle plaintiff to sue for breach of contract, or at his election, for the wrong and injury, he may join statements of his cause of action in both forms, or either, bringing suit to cancel contract for fraud bars- later suit by the same plaintiff for breach of the contract; for an “election” is a voluntary act on the part of the suitor by which he chooses between two or more remedies, and such choice is an irrevocable ^election where the suitor has full knowledge of the facts and -of his rights and acts free from fraud or imposition on the part of his adversaries. (Post, pp. 107, 108.) Case cited and approved: Fowler v. Bank, 113 N. Y., 450. Code cited and construed: Sec. 4439(S.). 2. ELECTION OF REMEDIES. Concurrent remedies. Not every election of remedies is irrevocable because two or more remedies are often given to redress the same wrong, and are therefore concurrent. (Post, p. 108.) Cases cited and approved: Machine Co. v. Owings, 140 N. C., 603; Mizell Live Stock Co. v. Caskill Co., 62 Fla. 239. 3. ELECTION OF REMEDIES. Mistake as to remedy. An election is not irrevocable in cases in which the wrong remedy is elected, because in such a case the suitor really has no election between two remedies, although he may have erroneously'thought that he had the first remedy. (Post, pp. 108-114.) Cases cited and approved: Zimmerman v. Robinson, etc., Co., 128 Iowa, 72; Fuller v. Harter, 110 Wis., 80; Montlake Coal Co. v. Chattanooga Company, Ltd., 191 S. Y/. -; Louisville & N. B. Turnpike Co. v. Nashville & Ky. Turnpike Co., 32 Tenn., 282; Lockett v. Kinzell, 99 Tenn., 713; Register v. Carmichael, 169 Ala., 588; Commission Co. v. M. P. R. Co., 126 Mo., 344; Robb v. Vos, 155 U. S., 43: Kinney v. Kiernan, 49 N. Y., 164; Moller v. Tuska, 87 N. Y., 166; Farwell v. Myers, 59 Mich., 179; Acer v. Hotchkiss, 97 U. S., 395; Sanger v. Wood, 3 Johns. Ch. (N. Y.), 416; Lloyd v Brewster, 4 Paige (N. Y.), 537; Bulkley v. Morgan, 46 Conn., 393; O’Donald v. Constant, 82 Ind., 212; Bank v. Commission Co., 198 Ill., 232; Theusen v. Bryan, 113 Iowa, 496; Lowenstein v. Glass, 48 La., 1422; Bohanan v. Pope, 42 Me., 93; Thomas v. Watt, 104 Mich., 201; Conrow v.' Little, 115 N. Y., 387; Ludington v. Patton, 111 Wis., 208; Clausen v. Head, 110 Wis., 405; In re Garver, 176 N. Y., 386. Cases cited and distinguished: Watkins v. Watkins, 15 Tenn., 283; Parham y. Parham, et al., 25 Tenn., 287; O’Bryan y. Glenn Bros., 91 Tenn., 106; Phillips v. Rooker, 134 Tenn., 466; Row-ell v. Smith, 123 Wis., 510; Connihan v. Thompson, 111 Mass., 270. 4. ELECTION OF REMEDIES. ■ Inconsistency of alternative remedies. Where two or more inconsistent remedies are .given which depend on inconsistent facts, and which must result in the suitor’s assuming a position inconsistent with the position which he must afterwards assume to prosecute the alternative remedy, an election, deliberately made with full knowledge of the facts and without fraud or imposition on the part of his adversary, works a judicial estoppel whether the adversary has been injured thereby or not; for courts will not permit suitors to solemnly affirm that a given state of facts exists from which they are entitled to particular relief, and then afterwards affirm, or assume, that a contrary state of facts exists from which they are entitled to inconsistent relief. (Post, pp. 108-114.) 5. PLEADING. Amendment. Time of amendment. Where plaintiff’s case is dismissed by order allowing amended declaration within a certain time, an amended declaration filed after such time may be stricken; since plaintiff could acquire a status in court subsequent to such dismissal only by permission of the trial judge and upon the conditions prescribed by him. (Post, p. 114.) 6. PLEADING. Amendment. “Nunc pro tunc order.” Nor in such case could plaintiff file the amended declaration nunc :pro tunc, since a “nunc pro tunc order” can only be made when the thing ordered has previously been allowed, but by inadvertence has not been entered, and it applies, only to orders of court and never to action of counsel. (Post, pp. 115-124.) Cases cited and approved : Phillips v. Rooker, 134 Term., 457; Rohh v. Voss, 155 TJ. S., 43; Watkins v. Watkins, 15 Tenn., 283; Wells, F. & Co. v. Robinson, 13 Cal.^134; Ward v. Ward, 134 Ill., 417; Becker v. Walworth, 45 Ohio St., 173; Johnson-Brink-man Com. Co. v. Central Bank, 116 Mo., 558; Nyseuander v. Lowman, 124 Ind., 584; Woodburn’s Estate, McMa-nnis’s Appeal, 138 Pa., 606; Macknet v. Macknet, 29 N. J. Ecu 54; Mont-lake Coal Co. v. Chattanooga, 191 S. W., ——. Cases cited and distinguished; Register v. Carmichael, 34 L. R. A. (N. S.), 309; Miller v. Hyde, 161 Mass., 472; Standard Oil Co. v. Hawkins, 74 Fed., 395; Bierce v. Hutchins, 205 U. S., 340; Bullock v. Burdett, 3 Dyer, 281.
137 Tenn. 125State ex rel. Anderson v. Daugherty (1916)
1. 1 NTOXCATI NG LIQUORS. “Civil .contempt.” “Criminal contempt.” Injunction. A charge of contempt of court for violating an injunction inhibiting the sale of intoxicating liquors as a nuisance is a criminal contempt, which is punitive in character to vindicate the authority of the law and of the court as an organ of society and which, though it may arise in private litigation, raises an issue between the public and the accused, not a civil contempt, which is a proceeding in furtherance of the right of a private person which the court has determined he as a litigant is entitled to. (Post, pp. 126, 127.) Acts cited and construed: Acts 1913, ch. 2, p. 665. Cases cited and approved: In re Nevitt, 117 Fed., 451; Gompers v. Buck Stove, etc., Co., 221 U. S., 418; Clay v. Waters, 178 Fed., 385; State ex rel. v. Pérsica, 130 Tenn., 48. 2. CONTEMPT. Criminal contempt. Degree of proof. In cases involving criminal contempts, the defendant is presumed to be innocent and must be proved to be guilty beyond a reasonable doubt. (Post, pp. 127,' 128.) 3. CONTEMPT. Criminal contempt. Appeal. Weight of evidence. The presumption of innocence in case of criminal contempt obtains only in the trial 'court, and on appeal the adverse finding below raises a presumption of guilt, which the accused must overcome to be entitled to reversal on the facts by showing that the preponderance of the proof is against the finding. (Post, p. 128.) Case cited and approved: Cooper v. State, 123 Tenn., 37,
137 Tenn. 129Paytes v. State (1916)
PERJURY. Sufficiency of evidence. Evidence merely that one’s testimony before the grand jury and on a trial conflicted, without evidence of which was false, is insufficient to convict of perjury. Cases cited and approved: Reg. v. Wheatland, 8 C. & P., 238; Reg. v. Hughes, 1 C. & K., 519; People v. Burden, 9 Barh. (N.Y.), 467; People v. Doody, 172 N. Y., 165; Schwartz v. Commonwealth, 27 Grat. (Va.), 1025; Peterson v. State, 74 Ala., 34; State v. Williams, 30 Mo., 364; Billingsley v. State, 49 Tex. Cr. R., 620. Case cited and distinguished: Rex v. Hook, 8 Cox C. C., 5.
137 Tenn. 133Dobbins v. Carroll (1916)
1. BILLS AND NOTES. Statutes. Implied repeal. Acts 1899, chapter 94, section 1 (4), providing that the instrument, to he negotiable, must be.payable to order or bearer, impliedly repeals Shannon’s Code, section 3506, to the contrary. (Post, p. 137.)' Acts cited and construed: Acts 1899, ch. 94, sec. 1. Case cited and approved: Gilley v. Harrell, 118 Tenn., 115. Code cited and construed: Sec. 3506(S.). 2: DEPOSITS IN COURT. Purchase-money notes on judicial sale. Assignment by clerk. A nonnegotiable note for purchase money of land sold under decree of chancery court and payable to the clerk thereof is not assignable by him, such note being in custody bf the law and not subject to delivery. (Post, pp. 137, 138.) 3. DEPOSITS IN COURT, Note in chancery court. Conversion. Where a clerk of the chancery court, holding a note for purchase money of land sold under decree of court, payable to himself, and showing on the face thereof that it was part of the court record, assigns it to the cashier of a bank which collects it, the bank is an accessory to the diversion and loss of the fund and liable for the full amount thereof. (Post, pp. 138, 139.) Case cited and distinguished: Bunting v. Ricks, 2 Dev. & B. (22 N. C.), 130. Code cited and construed: 1092 (S.). 4. SUBROGATION. Official Bond. Surety. Where tbe clerk of tbe chancery court, who assigns to the bank a note for purchase money of land sold under decree of court, and the bank, are liable to the beneficiaries of the fund represented by the note sureties on official bond of clerk having paid beneficiaries may be subrogated to their rights against the bank, and Shannon’s Code, section 1092 (3), providing that bond in ' such cases is for benefit- of every person who is injured, does not release the bank. (Post, pp. 139-141.) Cases cited and approved: TJ. S. Fidelity, etc., Co. v. Bank, 127 Tenn., 720; Oglesby v. Foley, 153 Ill.,' 19. Case cited and distinguished: Bunting v. Ricks, 2 Dev. & B. (22 N. C.), 130. Code cited and construed: 1092 (S).
137 Tenn. 142Nashville, C. & St. L. Ry. Co. v. Myers (1916)
1. RAILROADS. Injury to shipper’s employee. Duty to inspect cars. A railway furnishing cars to a manufacturing shipper is bound to exercise ordinary care to avoid injuring servants of such shipper while loading the car, since such servants are not trespassers nor mere licensees. (Post, pp. 146, 147.) Cases cited and approved: Ladd v. New York, etc., R. Co., 193 Mass., 359; Hyslop v. Boston R. Co., 208 Mass., 362; D’Alifieida v. Boston, etc., R. Co., 209 Mass., 81; Roddy v. M. P. R. Co., 104 Mo., 234. 2 RAILROADS.' Injury to person loading cars. Duty to Inspect. The principle underlying the liability of the railway company to the employee of a shipper for negligence of the railway company in furnishing a defective car which injures the employee is that the railway company is held to have selected the car and to have furnished it as a fit instrumentality for the purpose of shipping the goods to be loaded in it, and any defect existing which results in injury to those engaged in loading it is attributable to the negligence of the railway company in failing to inspect the car and discover and remedy the defect. (Post, p. 147.) 3. RAILROADS. Injury to shipper’s employee. Rules.- Where a carrier had a rule requiring shippers to present the inspection card with the bill of lading, the inspection to be made before loading the car, failure to observe this rule by the shipper exonerates the railway company from liability for negligent condition of the car, unless placing it on the loading track was an implied invitation to load it; such rule being within the power of the railway to make. (Post, pp. 147, 148.) 4. RAILROADS. Injury to shipper’s employee. Rules. Where the railway had a rule requiring shipper to present inspection tag with hill of lading and the shipper knew of such rule, the mere act of placing an uninspected car on the loading track of the shipper did not give him an implied invitation to load the car. (Post, pp. 148, 149.) 5. RAILROADS. Injury to employee of shipper. Rule. Nor did it extend an implied invitation to an employee of the shipper to use the car, since the carrier owed him no duty save through his relationship with the shipper. (Post, pp. 149, 150.) 6. RAILROADS. Injury to employee of shipper. Rule. Custom. Where the carrier had á rule requiring the shipper to present an inspection tag with the bill of lading and required inspection to be made before loading, a mere showing that one car was loaded without such inspection before loading was insufficient to establish custom. (Post, pp. 150, 151.)
137 Tenn. 152Nashville, C. & St. L. Ry. Co. v. Williamson (1916)
1. JUSTICES OF THE PEACE. Warrant. Sufficiency. In an action before a justice of the peace for damages arising out of the killing of plaintiff’s cow, a warrant, commanding the defendant to appear to answer the complaint for the defendant “in a plea of debt due by account for damages for loss of cow killed by defendant’s train, $75 under $500,” while defective in not stating the time, place, or circumstances, afforded the defendant reasonable notice that it was sued for damages arising out of the killing of plaintiff’s cow, that the cow was killed by one of the defendant’s trains, and that the plaintiff claimed to have been damaged to the sum of $75 and sued therefor, and hence was not void. {Post, pp. 154, 155.) Cases cited and approved: Railroad v. Davis, 127 Tenn., 167; Railroad v. Flood, 122 Tenn., 56; Parris v. Brown, 13 Tenn., 267; Manning v. Wells, 28 Tenn., 746; Odell v. Koppee, 52 Tenn., 90; Wood v. Hancock, 23 Tenn., 467; Watkins v. Kit-trell, 62 Tenn.', 42. 2. JUSTICES OF THE PEACE. Warrant. Irregularity. Cure by verdict. In an action before a justice of the peace for damages arising out of the killing of plaintiff’s cow by defendant’s train, the defects in a warrant, which was not void because it gave defendant reasonable notice of plaintiff’s cause of action, were cured by the verdict. {Post, pp. 155, 156.)
137 Tenn. 157Wright v. Harrison & Black (1916)
1. FRAUDS, STATUTE OF. Sale at auction. Memorandum. Sufficiency. A memorandum signed by an auctioneer is sufficient, because lie is the agent for both parties, with authority to act for the sell el- and buyer; but to be effectual it must not only be signed by the auctioneer, but the substantial terms of the contract must be contained- therein or in another writing to which it refers. {Post, pp. 161, 162.) Cases cited and approved: Pipkin v. James, 20 Tenn., 326; Adams, Trustee, v. Scales, 60 Tenn., 337; Gudyer v. Darnfes, 61 Tenn., 570; Johnson v. Kellogg, 54 Tenn., 262. 2. FRAUDS, STATUTE OF. Sale at auction. Memorandum. Sufficiency. The agency of the auctioneer enabling him to sign the memorandum so as to bind the buyer ends with the sale, and a memorandum made subsequently is inadequate. {Post, p. 162.) Cases cited and approved: Craig v. Godfroy, 1 Cal., 415; Bamber v. Savage, 62 Wis., 110. 3. FRAUDS, STATUTE OF. Memorandum. Sufficiency. The description in the memorandum of the subject-matter of, the contract must bfe such that it will be capable of identification, and where it is sought to identify the land sold by reference to some other instrument, the instrument which contains the description must be clearly referred to and identified by the - memorandum or contract. {Post, p. 162.) Cases cited and approved: Pulse v. Miller, 81 Ind., 190; Hitchcock v. Southern Iron, etc., Co., 38 S. W., 588. 4. FRAUDS, STATUTE OF. Sale at auction. Memorandum. Sufficiency. In view of Shannon’s Code, section 3142, subsec. 4, providing no action shall be brought upon, any contract for the sale of lands, unless the promise or agreement, upon which such action shall he brought, or some memorandum or note thereof, shall be in writing, and signed by the party to he charged therewith, or some other person by him thereunto lawfully authorized, a memorandum made by an auctioneer showing only the name of the purchaser, the number of the lot and the price, without reference to the plat or any other instrument capable of identifying the lot sold and not signed by the seller nor by.the auctioneer, cannot he enforced. (Post, p. 162.)
137 Tenn. 163Whitley v. Meador (1916)
1. DIVORCE. Estates by entirety. Effect of divorce. An estate by the entireties is converted into an estate in common by a divorce of the owners; but, where the husband parts with his interest in the land before the divorce, the decree does not make the wife and the husband’s vendees tenants in common', the vendees standing in the same relation as the husband did before the decree, and, in such case, if the wife survives the husband, she becomes the absolute owner of the whole estate. (Post, pp. 166, 167.) Cases cited and approved: Hopson v, Fowlkes, 92 Tenn., 697; Ames v. Norman et al., 36 Tenn., 683; Gillespie v. Worford, 42 Tenn., 642; Aiken v. Suttle et al., 72 Tenn., 103; Harrer -v. Wallner, 80 Ill., 197; Stuckey v. Keefe’s Executors, 26 Pa., 397; Beddingfleld v. Estill, 118 Tenn., 39. 2. HUSBAND AND WIFE. Estates by entirety. Effect of divorce. The death of one tenant by'the entirety effects a change in the properties of the legal person holding, and reduces the legal personage holding the estate to an indi- iduality identical with the natural person, and the estate of the survivor is freed from participation by the other. (Post, pp. 166, 167.) 3. LIMITATION OF ACTIONS. Accrual. Estates by entirety. Death of husband. Since in an estate by the entirety the wife has no separate right to , the whole estate until her husband’s death, at which time she owns the entire estate by right of survivorship, she would not be barred by lapse of time reckoned from the date of the conveyance' made by her husband, "since the statute of seven . years would not begin to run against her until her husband’s death. (Post, pp. 167, 168.) Cases cited and approved: Miller v. Miller, 19 Tenn., 484; Aiken v. Suttle, 72 Tenn., 109; McCorry v. King’s Heirs, 22 Tenn., 267; Harrer v. Waliner, 80 Ill., 203; Robinson's Appeal, 88 Me., 17.
137 Tenn. 169City of Nashville v. Mason (1916)
1 MUNICIPAL CORPORATIONS. Governmental powers. Garbage collector: Collection of garbage is a governmental fluty for which a municipal corporation is not rendered liable by its employees’ negligence, provided no nuisance is committed. (Post, pp. 172; 173.) Cases cited and approved: City of Denver v. Davis, 37 Colo., 370; Denver v. Porter, 126 Fed., 288; 'Missano v. New York, 160 N. Y., 123; Foster v. Water Company, 71 Tenn., 42; Irvine v.. Chattanooga, 101 Tenn., 291; Chattanooga v. Reid, 103 Tenn., 616; Chattanooga v. Dowling, 101 Tenn., 342; Kolb v. Knoxville, 111 Tenn., 311; Knoxville v. Klasing, 111 Tenn., 134; Con-elly v. Nashville, 100 Tenn., 262. 2. MUNICIPAL CORPORATIONS. Governmental powers. Nuisance. A garbage dump, upon which large quantities of material were burned during a high wind, constituted a nuisance rendering the municipality liable, where the fire communicated itself to plaintiff’s property. (Post, p. 173.)
137 Tenn. 174Earls v. Bennett (1916)
DEEDS. Execution. Presumption. Ancient grant. There Is no presumption of the execution of a deed arising from the fact that for fifty years a party’s predecessors in title have from time to time conveyed the land without attack where there has he§n no long possession of the land by any one or more of them. Cases cited and approved: Eldridge v. Knott, 1 Cowp., 215: Williams v. Donell, 39 Tenn., 695; Dunn v. Eaton, 92 Tenn., 743; Brown v. Edson, 23 Vt., 435. Case cited and distinguished: Rieard v. Williams, 7 Wheat., 106.
137 Tenn. 177Hughes v. City of Nashville (1916)
MUNICIPAL CORPORATIONS. Defect in ways. Sidewalks. Notice to city. The rule that the notice of injuries to the mayor of the city required by Acts 1913, chapter 55, is indispensable where the injury is the direct and open result of an act committed by the city does not apply to a case of injury from failure of contractor to guard or give warning of an excavation in an alley in the line of a sidewalk, which excavation was made by contract with the city, since the injury is not the direct and open result of the city’s contract, but of the failure of the city and its contractor to give warning of the excavation. Acts cited and construed: Acts 1913, ch. 55. Cases cited and approved: White v. Nashville, 134 Tenn., 688; Dunnington v. Columbia, MS., December Term, 1915; McCarty v. Town of. Mountain View, 136 Tenn., 133; Maness v. Coal Corporation, 128 Tenn., 143.
137 Tenn. 182Anderson v. Robertson (1916)
1. MORTGAGES. Release. Effect. The rule that upon release of a mortgage the legal title reverts to the mortgagor applies only where the mortgagor has retained the equity. (Post, pp. 186-188.) Cases cited and approved: Vaughn v. Vaughn, 100 Tenn., 284 • Birdwell v. Cain, 41 Tenn., 302; Huffaker v. Bowman, 36 Tenn., 80; Stow v. Tifft, 5 Johns. (N. Y.), 458; Marin’v. Knox, 40 L. R. A. (N. S.), 272. Case cited and distinguished: Scruggs v. Williams, 73 Tenn., 478. 2. JUDGMENT. Liens. Vendor’s creditors. Where land was sold to obtain money to pay an outstanding mortgage, the deed and mortgage release being executed beforé, but recorded together after, the vendor’s creditors had secured judgments against him, the purchaser’s title was superior to such judgment liens. (Post, p. 188.) Cases cited and approved: Bullard v. Leach, 27 Vt., 491; Bridges v. Cooper, 98 Tenn., 381.
137 Tenn. 189In re Bowers (1916)
1. ATTORNEY AND CLIENT. Admission to practice. Power of state board of law examiners. Acts 1903, chapter 247, section 5, provides that a State Board of ’ Law Examiners shall certify to the supreme court the names of all applicants who have complied with the rules regulating the admission to practice as attorneys, which compliance shall he determined by the State Board before examination upon such certificate. If the supreme court shall find that such person is of full age and good .moral character and otherwise qualified it shall admit him. A petition by the bar association charged that an applicant for admission had been in the business of soliciting and dividing fees with attorneys, and that upon his attention being called to the illegality of such practice he had devised a form of power of attorney under which he acted as agent of the litigant and continued in carrying on the illegal practices. Held, that the question as to whether he was a fit person to be admitted to the bar was one properly determinable by the State Board of Examiners. {Post, p. 191.) Acts cited and construed: Acts 1903, ch. 247, sec. 5. 2. ATTORNEY AND CLIENT. Admission to practice. Eligibility. Acts 1903, chapter 247, section 5, empowering the State Board of Law Examiners to’ certify to the supreme court the names of all applicants who have complied with tlN rules regulating the admission to practice, which compliance shall be ’ determined by the board before examination, and that “upon such certificate” if the supreme court shall find such person to be qualified it shall admit him, contemplates that the supreme court shall issue a license if the certificate from the State Board of Law Examiners shows that the applicant is qualified, and that [See opinion on petition to rehear at page 193.] such question must he determined upon the certificate of the State Board. (Post, pp. 191, 192.)
137 Tenn. 193In re Bowers (1916)
1. COURTS. Jurisdiction. Supreme Court. Original jurisdiction. Under Const, art. 6, section 2, providing that the jurisdiction of the supreme court shall he appellate only under such restrictions and regulations as may he from time to time prescribed hy law, hut it may possess such other jurisdiction as then conferred on the supreme court, the supreme court is without original jurisdiction in any matter, and the legislature cannot confer original jurisdiction on it. (Post, pp. 190-192.) Cases cited and approved: King v. Hampton, 4 Tenn., 59; Miller v. Conlee, 37 Tenn., 482; State v. Bank, 37 Tenn., 577; State v. Sneed, 105 Tenn., 711; Railroad v. Byrne, 119 Tenn., 278; State, ex rel. v. Hehert, 127 Tenn., 240. Case cited and distinguished: State v. Gannanay, 84 Tenn., 130. Code cited and construed: See. 2, art. 6. * 2. ATTORNEY AND CLIENT. License to practice. Statute. Determination by Supreme court. A statute conferring on the s.upreme court power to determine the. right of an applicant to he admitted to the practice of law will he construed to require the court to act only on the certificate of the State hoard of law examiners, since to give it jurisdiction to act independently would he to confer original jurisdiction on the court,- contrary to the Constitution. (Post, pp. 192, 193.) 3. ATTORNEY AND CLIENT. License to practice. Signature by court. Certificate of examiners. Where the supreme court had assumed to take jurisdiction of a petition resisting the admission of an applicant to practice law, and thereby misled the petitioners, the court will not sign a license, though the certificate of the examiners was regular, until the questions raised hy the petition can' he investigatd hy the examiners. (Post, p. 193.) PETITION DIRECT TO THE SUPREME COURT. [See original opinion at page 189.]
137 Tenn. 198Wilkinson v. Home Bank (1916)
FROM FRANKLIN. Appeal from the Chancery Court of Franklin County. — F. H. Mercer, Chancellor.
137 Tenn. 207Brackin v. McGannon (1916)
1. DISMISSAL AND NONSUIT. “Retiring of jury.” Time. Statute. Under Shannon's Code, section 4689, providing that plaintiff may at any time before the jury retires take a nonsuit, a jury has not retired until case has been submitted for consideration and verdict. (.Post, pp. 206, 207.) Cases cited and approved: Railroad v. Sansom, 113 Tenn., 683; Dodd v. Railroad, 120 Tenn., 440; Littlejohn v. Fowler, 45 Tenn., 284; Hardware Co. v. Hodges, 126 Tenn., 370; King v. Cox, 126 Tenn., 653. Code cited and construed: Secs. 4689-2691(S.). 2. TRIAL. Peremptory instructions by both parties. Operation. A motion for peremptory instructions, even where made by both parties, does not operate to withdraw case from jury. (Post, pp. 206, 207.) 3. DISMISSAL AND NONSUIT. Right to nonsuit after motion for directed verdict. Under Shannon’s Code, section 4689, providing that plaintiff may at any time before jury retires take a nonsuit, plaintiff is entitled to a nonsuit as a matter of right before court’s decision on a pending motion for a directed verdict. (Post, pp. 207-209.) Cases cited and approved: Barnes v. Noel, 131 Tenn., 126; Spran- • kel v. Meyernick (Civ. App.), 4 Hig., 515.
137 Tenn. 214Western Union Telegraph Co. v. Schade (1916)
1. COMMERCE. Exclusive powers of congress. Interstate telegraph operation. Congress having occupied the field with respect to interstate telegrams hy Act Cong. June 18, 1910, chapter 309, 36 Stat. 539, amending Interstate Commerce Act Feb. 4, 1887, chapter 104, 24 Stat. 379, and making that act apply to telegraph companies engaged in sending messages from one State to another, State regulations and decisions no longer govern as to the validity of contractual limitations of liability. {Post, pp. 215, 216.) Acts cited and construed: Acts 1910, ch. 309; Acts 1887, ch. 104. Cases cited and approved: Leedy v. Western Union Tel. Co., 130 Tenn., 547; Western Union Tel. Co. v. Bilisoly, 116 Va., 562; •Western Union Tel. Co. v. Simpson, 117 Ark., 156; Bailey v. Western Union Tel. Co., 97 Kan., 619; Western Union Tel. Co. v. Foster (Mass.), 113 N. E., 192; Williams v. Western Union Tel. Co., 203 Fed., 140; Gardner v. Western Union Tel. Co., 231 Fed., 405. 2. TELEGRAPHS AND TELEPHONES. Transmitting messages. Error. Limitation of liability. In action against telegraph company for error in transmission of message, it was error to confine plaintiff’s recovery to $50 and interest, where the telegram was written on a blank piece of paper and there was no showing of acceptance of the message under conditions that would incorporate, as part of the carrier’s contract, the limitation clauses appearing in print on the back of the telegraph blanks in general use. (Post, p. 216.) 3. COMMERCE. Exclusive powers of congress. Interstate telegraph operation. The liability of the comomn carrier of telegrams for mental suffering is, since Act Cong. June 18, 1910, controlled by the Federal law which supersedes State regulations and decisions ad hoc-(Post, p. 217.) Cases cited and approved: Adams Exp. Co. v. Croninger, 226 U. S., 491; Western Union Tel. Co. V: Brown, 234 U. S., 542; Western Union Tel. Co. v. Compton, 114 Ark., 193; Western Union Tel. Co. v. Smith, 188 S. W„ 702. 4. TELEGRAPHS AND TELEPHONES. Damages. Mental anguish. Under the Federal law applicable to interstate telegraph service, damages for mental anguish only, claimed to he due to the carrier’s default, are not recoverable. (Post, pp. 217, 218.) Case cited and distinguished: So. Express Co. v. Byers, 240 U. S. 612. 5. TELEGRAPHS AND TELEPHONES. Damages. Mental anguish. \ Under such Federal law, damages for mental suffering are allowable as an element of recovery where plaintiff has also sustained an injury to the person in connection therewith. (Post, pp. 218, 219.) Cases cited and approved: Wilcox v. Richmond, etc., R. Co., 52 Fed., 264; Denver, etc., R. Co. v. Roller, 100 Fed., 738.
137 Tenn. 224Weakley v. Barrow (1916)
1. TRUSTS. Management. Control by courts. Intent of grantor. The creator of a trust can 'preserve his specific realty as such after death so long as the rule against perpetuities is not violated, and the courts ordinarily must hold his will as supreme; hut, where the language in the instrument creating the trust leaves leeway as to the intention of the trustor, equity may in certain circumstances impute to him an intent to change the mode of management designated hy him. (Post, pp. 227, 228.) Cases cited and distinguished: Patton v. Patrick, 123 Wis., 218; Bennett v. Nashville Trust Co., 127 Tenn., 126. 2. TRUSTS. Management. Control by courts. Preservation of Estate. The power of a court of equity to sell trust property to preserve the trust from destruction or to prevent a frustration of the trustor’s scheme is broader than its power to sell merely for the benefit of the beneficiaries. (Post, p. 228.) 3- TRUSTS. Sale of property. Power of court. Preservation of estáte. Courts of chancery, under their inherent jurisdiction to administer and protect trust estates, can sell trust property notwithstanding a restriction on sale, where an exigency arising from unforeseen circumstances requires the sale to preserve the property to answer the primary purposes of the trust. (Post, pp. 228-230.) Cases cited and approved: Johns v. Montgomery, 265 Ill., 21; Cur-tiss v. Brown, 29 Ill., 201; -Lenow v. Arrington, 111 Tenn., 720; Ricardi v. Gaboury, 115 Tenn., 484; Jones v. Habersham, 107 U. S., 174. 4. TRUSTS. Sale of proprty. Power of court. Interests of different beneficiaries. Courts of equity cannot by ordering the sale of trust property subject the interest or estate, even by way of contingent remainder, of one person to the benefit of another, unless the trust discloses a clear purpose that it may he done. (Post, pp. 230-234.) Cases cited and approved: Greenwell v. Greenwell, 5 Ves. Jr., 194; Ruggles v. Tyson, 104 Wis., 500; Pitts v. Rhode Island, etc., Co., 21 R. I., 544; Miles v. Wister, 5 Bin. (Pa.), 477; Mills v. Michigan Trust Co., 124 Mich., 244. Cases cited and distinguished: Errat v. Barlow, 14 Ves. Jr., 202; Ex parte Keeble, 11 Ves. Jr., 604; In re -Application of Upham, 152 Wis., 275. 5. TRUSTS. Sale of property. Power of court. Unimproved ■property. Where an owner of land, much of which was unimproved, conveyed it in trust for his wife for life and after her death A their children in fee, stating his purpose to be to provide for the maintenance of his wife and children, and prohibited the sale of any of the property unless he joined therein, and after the grantor’s death it appeared that the ordinary maintenance expenses and special assessments against the property practically exhausted the income from the improved portions, the chancery court could decree the sale of a portion of the unimproved property for the purpose of improving the balance and thereby produce a sufficient income to support the widow and those dependent on her in the manner in which they had been accustomed, but could not direct the sale for the purpose of applying any of the proceeds thereof directly to the support of the widow (Post, pp. 234, 235.) Case cited and approved: Lenow v. Arrington, 111 Tenn., 736 6. TRUSTS. Sale of property. Power of court. Preservation of property. Special assessments. Where taxes and special assessments against unimproved trust property threaten to destroy the trust not only as to the iife beneficiary' but as to the remaindermen, the court of chancery can direct the sale of'so much thereof as is necessary to preserve the property for the beneficiaries. (Post, pp. 235-237.) Case cited and distinguished: Burroughs v. Gaither, 66 Md., 171. 7. TRUSTS. Sale of property. Intention of grantor. Where the creator of a trust stated his purpose to he to secure his wife and children a proper support, but prohibited the sale of the trust property without his consent, the purpose to provide support cannot be allowed to override the intention to restrict the sale. (Post, pp. 237, 238.) 8. TRUSTS. Sale. Application of proceeds. Duty of purchaser. A purchaser of trust property sold under decree of a court of chancery is under no obligation to .see to the proper application of the proceeds of the sale. (Post, p. 238.) Cases cited and approved: Jackson'v. Everett, 3 Tenn. Cas., 811; Bruce v. Goodbar, 104 Tenn., 638.
137 Tenn. 243State ex rel. McMorrow v. Hunt (1916)
1. OFFICERS. Ouster. Malfeasance. “Full hearing.” In Acts 1915, chapter 11, section 10, entitling an officer against whom ouster proceedings are brought to a full hearing, the words “full hearing” • mean only that the chancellor shall give ample opportunity to both sides to make a showing fairly adequate to show the propriety or impropriety of suspension pending final hearing. (Post, pp. 242, 243.) Cases cited and construed: Acts 1915, ch. 11, see. 10. Case cited and approved: State ex rel. v. Howse, 132 Tenn., 452. 2. OFFICERS. Ouster. Malfeasance. Discretion of court. In proceedings under Acts 1915, chapter, 11, section 10, to oust a county court clerk, where proof was begun in November and the motion for suspension pending final hearing was not made until the middle of February, there was no abuse of the chancellor’s discretion in ordering suspension. (Post, pp. 242, 243.) 3. CERTIORARI. Function of writ. Interlocutory order. , Supervision of court may be exercised in proper case through certiorari before final decree, if the lower court acts without jurisdiction or illegally, in view of Shannon’s Code, section 4853,' providing that the writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy. (Post, pp. 243-245.) Cases cited and approved: State ex reí. v. Hebert, 127 Tenn., 220; Conners v. City of Knoxville, 136 Tenn., 428; State ex rel. v. Alexander, 132 Tenn., 439. Code cited and construed: Sec. 4853(S.). 4- CERTIORARI. Function of writ. Common-law writ. Th.e common-law writ of certiorari, as distinguished from the statutory writ, may' not be had io correct technical or formal errors not affecting jurisdiction or power, or for correction of defects not amounting to an illegality which is fundamental as distinguished from an irregularity. (Post, p. 245.) 5. CERTIORARI. Existence of other remedy. Common-law certiorari will not lie to correct errors of fact or law in an interlocutory order of suspension in ouster proceedings from which an appeal is expressly authorized. (Post, pp. 245-247.) Case cited and distinguished: State v. Judge, 42 La. Ann., 1089.
137 Tenn. 253State ex rel. Woollen v. Pearson (1917)
1. MANDAMUS. Right to writ. Efficacy of remedy. Where after suits were begun to compel by mandamus a reassessment of property whibh had already been assessed on the theory that it was assessed at too low a figure, the legislature enacted Acts 1915, chapter 124, prohibiting reassessment of property except that which has never been assessed, the peremptory writ would not be awarded since it would compel a vain act. (Post, pp. 251-253.) Acts cited and construed: Acts 1915, 'ch. 124. Cases cited and approved: State v. Wilbur and Walker v. Henderson, 101 Tenn., 211; Harris v. State, 96 Tenn., 496; State v. Enlow, 121 Tenn., 347; Brown v. Ice Co., 122 Tenn., 239. 2. STATUTES. Reassessment. Construction. Repeal. , Acts 1915, chapter 124, prohibiting reassessment of property except that which has never been assessed, as applied to suits already brought to. compel reassessment, is not affected by Shannon’s Code, section 61, providing that the repeal of a statute does not affect any right which, accrued nor proceeding commenced under the statute repealed, since such act is not a repealing statute. (Post, pp. 253, 254.) Acts cited and construed: Acts 1915, ch. 124. Case cited and approved: Zickler v. Union Bank & Trust Co., 104 Tenn., 277. Case cited and distinguished: Home Ins. Co. v. Taxing Dist., 72 Tenn., 644. Code cited and construed: Sec'. 61 (S.). 3. TAXATION. Reassessment. Statutes. Construction. Acts 1915, chapter 124, prohibiting reassessment of property except that which has never been assessed, prohibits reassessment of property which has escaped adequate assessment through fraud, or which has been in any degree assessed by the regularly constituted authorities. (Post, p. 254.) 4. TAXATION. Reassessment. Statutes. Construction. “Any property.” The words “any property in the State of Tennessee,” in such act are sufficiently broad in meaning to cover any character.of property subject to taxation. (Post, pp. 254, 255.)
137 Tenn. 261Lively v. American Zinc Co. (1916)
1. MASTER AND'SERVANT. Safe appliances in mines. Statute. Duty of master. The duty to comply with specific provisions ¿f a statute designed as precautions against accidents and injuries in the, use of a mine elevator is absolute, and is not satisfied by'mere approxi- • mation or the exercise of reasonable diligence or ordinary care in an effort to comply therewith. .(Post, pp. 261-267.) Cases cited and approved: Deserant v. Cerillos Coal Co., 178 U. S., 410; Chicago, B. & D. R. CO. v. United States, 220 U. S., 557; McDaniels v. Rogle Mining Co., 110 Mo. App., 706; Little v. Norton Coal Co., 83 Kan., 232. 2. STATUTES. Construction. Words. Common-law meaning. When a term having a well-recognized meaning in the common law is used in a statute, that meaning will be given it in construing the statute, unless a different sense is apparent from the context or the general purpose of the statute. (Post pp. 267-270.) Cases cited and approved: Horne v. Memphis & Ohio R. R. Co., 41 Tenn., 72; State v. Cooper, 120 Tenn., 549; State v. Watkins, 123 Tenn., 502; Davis v. N. W. Ry. Co., 75 S. C„ 303; Wall v. Marshutz & Cantrell, 138 Cal., 522; Reed y. M., K. & T. Ry. Co., 94 Mo. App., 371; Titus v. Bradford, B..& K. R. Co., 136 Pa. 618. Cases cited and distinguished: Morriss Bros. v. Bowers, 105 Tenn., 59; Gray v. Washington Power Co., 30 Wash., 665. 3. MASTER AND SERVANT. Statutes. Derogation of common law. Construction, Where the word “safe” in-Acts 1915, chapter 169, section 27, which makes it the duty of a mine owner to make appliances safe, is . closely followed by special provisions looking to safety, the statute will he construed to intend that the result shall he attained by the use of those terms so far as they extend, and as- to points not covered the common-law signification of the word will control. (Post, pp. 267-270.) 4. MASTER AND SERVANT. Safe appliances in mines. Statute. Construction. “Safe.” “Reasonably safe.” “Available.” Under Acts 1915, chapter 169, section 27, providing that employees in mines shall be lowered into and out of a mine by machinery, and that the escapement shaft shall be fitted with “safe and available” machinery, and that the hoisting machinery used for lowering employees into and out of the mine shall be kept in a safe condition, followed by specific provisions prescribing precautions to be taken, the word “available” means “suitable” or “usable,” and the word “safe” means “reasonably safe” within the meaning of the law, requiring only such tools and appliances as are in general use among employers of ordinary caution and • prudence in the same line of business under the same circumstances. (Post, p. 270.) 5. MASTER AND SERVANT. Safe appliances in mines. Statute. Instruction. Where a statute requires mine owner to use such reasonably safe machinery as is in general use in such business, he may choose between different types of machinery in such general use, and is not liable because some other style than that adopted by him may be found safer. (Post, pp. 270-272.) Cases cited and approved: Washington & G. R. Co. v. McDade, 135 U. S., 554; Shadford v. Ann Arbor St. R. Co., Ill Mich., 390; Richards v. Rough, 53 Mich., 212; Kehler v. Schwenk, 144 Pa., 348; Wood v. Heiges, 83 Md., 257; Arkadelphia Lumber Co. v. Bethea, 57 Ark., 76; Sappenfield v. Main St. & Agri. Park R. Co., 91 Cal., 48; Wonder v. Baltimore & O. R. Co., 32 Md., 411; Wolfe v. New Bedford Cordage Co., 189 Mass., 591; Kent v. Y. & M. V. R. R. Co., 77 Miss., 494; Smith v. St. L., K. C. & N. Ry. Co., 69 Mo., 32; Cagney v. Hannibal & St. J. R. Co., 69 Mo., 416; Tabler v. Hannibal & St. J. R. Co.-, 93 Mo., 79; Dwyer v. Shaw, 22 R. I., 648; Norfolk & W. R. Co. v. Bell, 104 Va., 836; Innes v. Milwaukee, 96 Wis., 170; Stiller v. Bohn Mfg. Co., 80 Minn., 1; Towns v. Vicksburg, S. & P. R. Co., 37 La. Ann., 630. Case cited and distinguished: Sanford Day Iron Works v. Moore, 132 Tenn., 709. 6. MASTER AND SERVANT. Injury to servant. Certified mine Foreman. In action for death of mine servant, where there was no evidence that any of the duties required of the mine foreman were neglected, it is immaterial whether or not the mine foreman had a certificate as required by Acts 1903, chapter 237. (Post, pp. 272, 273.) 7. MASTER AND SERVANT. Injuries to servant. Evidence. Sufficiency. In action for death of mine servant, caused by a fall from an elevator in the mine shaft, evidence held insufficient to justify a finding that the mine was not properly ventilated. (Post, p. 273.) 8. MASTER AND SERVANT. Injuries to servant. Evidence. Admissibility. In action for death of mine servant, caused by a fall from an elevator in the mine shaft, the rejection of evidence of isolated instances of a witness in regard to the construction of mine elevators in other mines was not error. (Post, p. 274.) 9. APPEAL AND ERROR. Review. Harmless error. As several other witnesses testified to such isolated instances, making the rejected testimony merely cumulative, plaintiff suffered no harm by its rejection. (Post, p. 274.) 10. APPEAL AND ERROR. Reservation of grounds of- review. Where no exception was offered on the trial to the admission of eyidence, and the trial judge was not asked to rule on the point, hut counsel simply said, “I object,” and stated no reason, the question of its admission will not he reviewed. (Post, p. 274.)
137 Tenn. 280State v. McKay (1916)
1. CONSTITUTIONAL LAW. Pure seed law. Equal protection of law. The Pure Seed Law (Acts 1909, chapter 39S) is not unconstituional class legislation violating the equal protection clause of the Fourteenth Amendment because of exemption from its operation, by subsection 5 of section 8 thereof of the farmer grower, in selling seeds, since such exemption is closely limited to seeds grown by the seller and sold and delivered by him on his own premises to a purchaser for seeding by the purchaser himself, and the differentiation of such sale from open market sales cannot be considered arbitrary, in view of the greater opportunity for deception in selling in open market. (Post, pp. 282-289.) Acts cited and construed: Acts 1909, ch. 395; Acts 1893, sec. 9. Cases cite’d and approved: Connolly v. Union Sewer Pipe Co., 184 U. S., 540; Motlow v. State, 125 Tenn., 547; City of Memphis v. State ex rel., 133 Tenn., 83; International Harvester Co. v. Missouri, 234 U. S., 199; Mobile Co. v. Kimball, 102 U. S., 691; Consolidated Coal Co. v. Illinois, 185 TT. S., 203; McLean v. Arkansas, 211 TJ. S., 539; Armour v. North. Dakota, 240 T¡T. S., 510; Eubank v. Richmond, 226"U. S., 137; Lemieux v. Young, 211 IT. S., 489; Ozan Lumber Co. v. Union County Nat. Bank, 207 U. S., 255; Atlantic C. L. R. Co. v. George, 234 U. S., 280. Cases cited and distinguished: Gibbons v. Ogden, 9 Wheat., 1200; Heath & Milligan Mfg. Co. v. Worst, 207 U. S., 338; Rast v. Van Deman & Lewis Co., 240 U. S., 342; St. Louis, etc., R Co. y. Arkansas, 240 U. S., 518; St. John y. New York, 201 U. S., 633. 2. COMMERCE. Pure seed law. Validity. The Pure Seed Law is not invalid as an unwarrantable burden on interstate commerce in violation of United States Const., its burden on such commerce by reason of the exemption in section 8, subsec. 5, of the farmer grower being, inconsiderable, remote, incidental, and not designed. (Post, pp. 289-294.) Cases cited and approved: .Brimmer v. Rebman, 138 U. S., 78; Plumley v. Massachusetts, 155 U. S., 461. Case cited and distinguished: Minnesota v. Barber, 136 U. S., 319. 3. COMMERCE. Local regulations. Inspection. Interference with interstate commerce. Commerce between States may be affected by local inspection or police- regulations without the latter becoming invalid on that account; for when the local police regulation has real relation to the suitable protection of the people of the State and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate commerce. (Post, pp. 294-301.) Cases cited and approved: Savage v. Jones, 225 U. S., 525; Reid v. Colorado, 187 U. S., 137; Pittsburg & S. Coal Co. v. State of Louisiana, 156 U. S., 599] Hall v. Geiger-Jones., 242 U. S., 539 Cases cited and distinguished: Sherlock v. Ailing, 93 U. S., 99; Sligh v. Kirkwood, 237 U. S., 52; New Mexico ex rel. v. Denver etc., R. Co., 203 U. S., 38; In re Sanders (C. C.), 52 Fed., 802. 4. CONSTITUTIONAL LAW. Judicial functions. Reasonableness of laws. The consideration and determination of the reasonableness of regulations under the police power rests with the legislative departments, and courts will not examine the question de novo and overrule such judgment by substituting its own, unless it clearly appears that those regulations are so beyond all reasonable relation to the subject to which they are applied as to amount to mere arbitrary usurpation of power, or are unmistakeably in excess of the legislative power or arbitrary beyond possible justice, bringing the case within the rare class in which such legislation is declared void. (Post, pp. 301, 302.) Case cited and approved: Hutchinson Ice Cream Co. v. Iowa, 242 U. S., 153. Case cited and distinguished: Schmidinger v. Chicago, 226 IT. S., 578. 5. EVIDENCE. Judicial notice. The courts cannot judicially know that no means or process exist for cleaning seeds so as to exclude weed seeds from being present therein in quantities not more than 1 in 10,000. (Post, pp. 302-306.) Cases cited and approved: Ex Parte Foley, 172 Cal., 744; People v. Hawkins, 157 N. Y., 1. Case cited and distinguished: Ex Parte Hayden, 147 Cal., 649. .6. CONSTITUTIONAL LAW. Due process of law. The Pure Seed Law is not a violation of the due process of law clause of Const., IT. S. Amend. 14, because section 11 of the law contains a proviso that no one shall be convicted under the act if he is able to show that weed seeds named in section 3 are present in quantities not more than 1 in 10,000, and that due diligence has been used to find and remove them; such provision not showing palpable capriciousness or mere arbitrary usurpation of power. (Post, pp. 302-306.) 7. AGRICULTURE. Pure seed law. Validity. The, Pure Seed Law, is not invalid as arbitrary and unjust, because section 1 thereof requires labels on packages of agricultural seeds, to set forth the locality where the seed was grown. (Post, pp. 302-306.) 8. EVIDENCE. Judicial notice. The courts do not judicially know that in the ordinary conduct of business the requirement of a statute that agricultural seeds be labeled with the locality where the seed is grown is an impracticable one. (Post, pp. 306, 307.) Case cited and approved: Schraubstadter v. U. S., 199 Fed., 568.
137 Tenn. 313Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co. (1916)
1. DEEDS. Estates created. Construction. A deed, conveying “all right, title, claim, and interest,” conveys the lands as such. (Post, pp. 311, 312.) Case cited and approved: Dickson v. Wildman, 183 Fed., 398. Case cited and distinguished: Green Bay, etc., Co. v. Hewitt, 55 Wis., 96. 2. DEEDS. Estates created. Construction. Limitations. Where a deed conveyed “all right, title, claim, and interest” in’ certain lands, followed by the words “being an undivided one-half interest,” the full fee was conveyed, since an instrument should he construed against the grantor if the description is ■ doubtful, and where a whole property is described, a description is not restricted by a further general statement which can be' construed consistently with it. (Post, pp. 312-314.) Cases cited and approved: McLennan v. McDonald, 78 Cal., 273; Lovejoy v. Lovett, 124 Mass., 270. Case cited and distinguished: Morgan v. Somes, 154 Mass., 200. Code cited and construed: Sec. 3672 (S). 3. DEEDS. Estates created.- Construction. Limitations. A reference to a prior deed must -be definite and specific in order to control the specific description of the quantum of the estate passing. (Post, p. 314.) Cases cited and approved: Byrd v. Phillips, 120 Tenn, 14; Johnson v. Johnson, 170 Mo., 34. 4. DEEDS. Estates created. Construction. Limitations. Where a deed conveyed “all right, title, claim, and interest” in certain lands, followed by the words “being an undivided one-half interest,” and the grantor had an undivided interest in title under one .grant and an absolute fee under another, and overlapping grant to part of the land, she parted with her entire estate in all the land. (Post, pp. 315-317.) Cases cited and approved: Meld v. Huston, 21 Me., 69; Pennington v. Cumberland Valley Land Co., 150 Ky., 576. Case cited and distinguished: Coal Creek Mining Co. v. Heck, 83 Tenn., 497. 5. DEEDS. Construction. Grants. Estate. Where a new grant inferior to another excluded sixty-two acres older grant and still another grant overlapped it, but the older grant included all the land in the other two grants, the mere reference to the older grant did not show that the second conflicting grant was excepted from the latest grant., (Post, pp. 317, • 318.) Case cited and approved:. Savage v. Coal Co., 2 Tenn., ch. App., 598. i 6. DEEDS. Exceptions. Construction. An exception in a deed of “such parts of said lands as may be adversely held” is an exception of land held adversely to the grantor, and not of land acquired by the grantor’s predecessor in title, and conveyed to the grantor prior to the conveyance in question.
137 Tenn. 324Chambers v. Preston (1916)
1. CONVERSION. Testamentary disposition. A will revising the use of land as a loan to the testator’s wife to he sold by the executors on her death or on the son’s attaining majority, and the proceeds thereof to be distributed among the children, operated to convert the realty into personalty. (Post, pp. 324-327.) ° . Cases cited and approved: Wayne v. Pouts, 108 Tenn., 145; Wheless v. Wheless, 92 Tenn., 295; Bedford v. Bedford, 110 Tenn., 204; Bennett v. Gallaher, 115 Tenn., 568;- Stephenson v. Yandle, 4 Tenn., 109; McCormick v. Cantrell, 15 Tenn., 615; Campbell v. Campbell, 40 Tenn., 325; Reynolds v. Brandon, 50 Tenn., 593; Green v. Davidson, 63 Tenn., 488. 2. CONVERSION. Powers of beneficial owner. Sufficiency of acts. The beneficial owner of real estate which has been equitably converted into personalty has the power by word or act to reconvert it into realty, but his words or acts to have such effect must be unequivocal, and clearly indicate the purpose to countermand the trust. (Post, pp. 327-331.) Cases cited and approved: Baker v. Copenbarger, 15 Ill., 103; Bank v. Rice, 143 Cal., 265; Jibey v. Adams, 135 Ill., 80. Cases 'cited and distinguished: Wayne v. Pouts, 108 Tenn., 145; Craig v. Leslie, 3 Wheat., 578. 3. CONVERSION. Powers of beneficial owner. Sufficiency of acts. There can be no reconversion except by unequivocal act or declaration of the owner of the entire beneficial interest, and persons under disability are incapable of making such election. (Post. p. 331.) 4. CONVERSION. Powers of beneficial owner. Sufficiency óf acts.' Where testator by will converted realty to personalty, and one heir mortgaged his interest, which was also levied' on by certain creditors, and court proceedings were had, and 'his interest was' sold and bid in by the other legatees, and partition was had, there was no reconversion of the personalty into realty, especially where certain remaindermen in interest were not made parties to the partition suit. (Post, pp. 331-333.) Cases cited and-approved: Swann v. Garrett, 71 Ga., 556; Robinson v. Robinson; 19 Beav., 494. 5. JUDGMENT. Partners. Virtual representation. In a partition suit, where actual appearance of minor children in interest of certain legatees could have been enforced, their interest could not be bound by the judgment on the theory of virtual representation. (Post, pp. 333-335.) Cases cited and approved: Andrews v. Andrews, 54 Tenn., 234; Freeman v. Freeman, 56 Tenn., 301; Rutherford v. Rutherford, 116 Tenn., 383; Ridley v. Halliday, 106 Tenn., 607. Cases cited and distinguished: Realty Co. v. Andrews, 128 Tenn., 725.
137 Tenn. 341Louisville & N. R. Co. v. State (1916)
1. RAILROADS. Construction and maintenance. Grading crossings. Statutes. Construction. In view of Acts 1889, cliapter 119, requiring railroads to furnish good and sufficient crossings of highways, Acts 1899, chapter 356, providing that every railroad shall grade to a level with its rails and keep in repaid every public road crossing the- railroad for a distance of ten feet on each side of the track and between the rails, requires the road to be level for ten feet on each side of the rails and is not complied with by merely bringing the roadway at point of contact with the rails to the rail level. (Post, pp. 338-343.) Acts cited and construed. Acts 1889, chs. 119, 356. Cases cited and approved: Smith v. Washington City, 61 U. S., 135; City of Leavenworth v. Rankin, 2 Kan., 357. Cases cited and distinguished: Louisville & Nashville Railroad Company v. State, 128 Tenn., 172; City of Little Rock v. Citizens’ Street Railway Co., 56 Ark., 28; Como v. City of Worcester, 177 Mass., 543. 2. RAILROADS. Construction and maintenance. “Grading.” - “Grading” includes filling as well as cutting, and technically means the reducing the earth’s surface to a given line fixed as the grade and may include filling or excavating, or both (citing Words and Phrases, Grade). (Post, pp. 338-343).
137 Tenn. 349Baird-Ward Printing Co. v. Fleming (1916)
1. MASTER AND SERVANT. Injuries to servant. Safe appliances. Where a building was old and was never equipped with attachments for window washing and it appears that it has become the custom to use those belts and straps only in the last few years, and that only the modern office buildings are so equipped, and only two buildings in the city are so equipped, the owner of the building was not negligent in not furnishing deceased wth a belt or in not having places on the building or the window to which the belt could be attached when requiring him to wash windows. (Post, pp. 348, 349.) 2. MASTER AND SERVANT. Injuries to servant. Assumption of risk. As a servant assumes all risks which are necessarily incident to his employment, or which are obvious or known to him, where a porter of a building, a person of mature years, and more familiar with the windows than any other who worked on the floor, was told to wash windows without further instructions, and a work bench at a window which prevented the top sash from being drawn down and a flaw in the sill and a nail securing the fop sash were obvious and by the exercise of ordinary care on his part could have been known to him, and as the danger of falling from an upper story window while washing same is necessarily incident to the business of washing same, he assumed the risk. (Post, pp. 349-351.) Cases cited and approved: Sivley v. Nixon Mining Drill Co., 128 Tenn., 675; Standard Knitting Mills v. Hickman, 133 Tenn., 43; Westlake v. Murpliy, 85 Neb., 45; Choctaw, etc., R. Co. v. Jones, 77 Ark., 367. Case cited and distinguished: Brewer v. Tenn. Coal Co., 97 Tenn., 615. 3. MASTER AND SERVANT. Injuries to servant. Negligence of master. Proximate cause. Burden of proof. Although a master was negligent in allowing the upper sash of a window to be secured by a nail and allowing a work bench to be maintained so that such sash could not be lowered and in allowing a flaw to remain in the sill, a porter who fell while washing such window cannot recover in the absence of proof that such negligence caused the accident, as a casual connection between the negligence and the injury will not be presumed. (Post, pp. 351, 352.) Cases cited and approved: National Fertilizer Co. v. Travis, 102 Tenn., 16; Railroad Co. v. Stewart, 81 Tenn., 432; De Glopper v. Railway & Light Co., 123 Tenn., 633; Railroad v. Lindamood, 111 Tenn., 457.
137 Tenn. 358Figuers v. Fly (1916)
1. ACKNOWLEDGMENT. Liabiliy of notary. The taking by a notary public of an acknowledgment to a trust deed by one who is not the grantor, in which acknowledgment the notary recited that the person making it was a person with whom he was personally acquainted, is a ministerial, not a quasi judicial, act so far as to render the notary liable on his bond for his negligence, if any. (.Post, p. 363.) 2. ACKNOWLEDGMENT. Liability of officer. Statute. Shannon’s Code section 3769, making a clerk who takes the acknowledgment of a deed liable for injuries, caused by his failure to discharge the duties required of him, applies to notaries under Shannon’s Code, section 3714, empowering notaries to take acknowledgments in the same manner and under the same rules and regulations as govern county court clerks under existing laws. (Post, pp. 363, 364.) Acts cited and construed: .«.cts 1870, ch. 71 Code cited and construed: Secs. 3714, 3722, 3769 (S.). 3. ACKNOWLEDGMENT. Liability of notary. Identity of ac-knowledger. Duty to ascertain. In the absence of statute, a notary is held to the care and diligence of a reasonably prudent man to ascertain the acknowledger’s identity, but is not an insurer of the truth of the recitals, but, where a statute requires the identity of an acknowledger not personally known to the notary to be established by sworn witnesses, the notary acts at his peril in making the certificate on anything short of the evidence required by the statute. (Post, p. 364.) 4. ACKNOWLEDGMENT. Liability of notary. Certificate. Reliance by third person, A certificate of an acknowledgment is an act which must be relied on with confidence by business men, and the notary must exercise care to prevent imposition, since tlie effect of that imposition does not end with his own deception, hut may extend to innocent persons relying on his exercise of due diligence. (Post, pp. 364, 365.) 5.ACKNOWLEDGMENT. Liability of notary.. Certificate. “Personally acquainted with.” The phrase “personally acquainted with” in a certificate of acknowledgment means a knowledge independent and complete in itself and existing'without information, and imports more than a slight or superficial knowledge. (Post, pp. 365, 366.) Cases cited and approved: Kelly v. Calhoun, 95 TJ. S., 710; Fall v. Roper, 40 Tenn., 485; Willingham v. Potter, 131 Tenn., 18; State v. Ogden, 187 Mo. App., 39. 6.ACKNOWLEDGMENT. Liability of notary,. Negligence. Where a notary took an acknowledgment of one who falsely pretended to be one of the grantors of a trust deed, and who had been previously induced by the other grantor at the time of making his acknowledgment to a forged chattel mortgage, and the notary knew the other grantor only slightly, and knew that the two had come to an inconvenient place to have the acknowledgments taken, though there was opportunity to have them taken nearer home, and he testified that the deed was signed in his .presence, though it was apparent therefrom that the forged signature was placed thereon by the other grantor whom " the notary claimed to know, the notary was negligent in taking the acknowledgment, and liable to one who loaned money on the security of the trust deed. (Post, pp. 366, 367,) 7.ACKNOWLEDGMENT. Liability of notary. Negligence. Proximate cause. The negligence of a notary in taking the acknowledgment of one falsely claiming to he one of the grantors of a trust deed is nearer in time and causal relation to the loss sustained by one loaning money on the security thereof than the fraudulent representations made to the lender by the other grantor, and renders the notary liable for such loss. (Post, pp. 367, 368.) Cases cited and approved: Grigsby v. Bratton, 128 Tenn., 597; People y. Nederlander, 177 Mich., 434. 8. BANKS AND BANKING. Liability to depositor. Payment of check. Forged indorsement. If a drawe^ bank pays a check to which the payee’s name is forged as indorser, the payment is deemed to be made out of its own funds, not the depositor’s, provided the latter has not been guilty of negligence or fault that misled the bank. (Post, p. 368.) Cases cited and approved: Pollard v. Wellford, 99 Tenn., 113; Farmers’ etc., Bank v. Rutherford Bank, 115 Tenn., 64; Shuttle Co. v. Nat. Bank, 134 Tenn., 379. 9. ELECTION OF REMEDIES. Payment of forged check. Liability of several persons. The maker of a check possession of which was fraudulently obtained by the payee’s son, who forged the payee’s indorsement thereon, cannot recover from the bank which paid the check, where he sought recovery in the same suit against the bank on which it was drawn, on the theory that in paying the check the drawee had paid out its own funds, not those of the maker of the check. (Post, pp. 368-370.) Cases cited and approved: Farmer v. Bank, 100 Tenn., 190; Phillips v. Rooker, 134 Tenn., 457. 10. BANKS AND BANKING. Payment of check. Liabilities between banks. A drawee bank which pays out money on a forged indorsement may recover it from the bank which received the proceeds, if the paying bank is to be loser in consequence of the forgery, especially where the receiving bank has guaranted the indorsement that turns out to be forged. (Post, p. 370.) Cases cited and approved: People’s Bank v. Franklin Bank, 88 Tenn., 299. 11. BILLS AND NOTES. Indorsement of check. Liability between banks. Warranties. A stamped indorsement on a check, payable to a bank other than that on which it was drawn, guaranteeing indorsements, goes no further than a blank indorsement, and does not warrant to the drawee bank the genuineness of the signature of the maker of the check. (Post, pp. 370, 371.) Cases cited and approved: Farmers’ & Merchants’ Bank v. Bank of Rutherford, 115 Tenn., 64; State Bank v. Cumberland, etc., Co., 168 N. C., 606. 12. BILLS AND NOTES. Liability of indorser. Signature of drawer. “Negotiation.” The warranty of signatures on a negotiable instrument imposed on an indorser by Negotiable Instruments Law (Laws 1899, chapter 94) section 66, does not run in favor of the drawee in respect of the genuineness of the signature of the drawer, but only in favor of subsequent holders in due course, and the drawee taking the instrument on presentation for payment is not such a holder, nor is such presentation a negotiation of the instrument (citing Words and Phrases, Second Series, Negotiation). (Post, pp. 371, 372.) Acts cited and construed: Acts 1899, ch. 94. 13. BANKS AND BANKING. Liability. Forged check. Payment. The doctrine that a drawee bank which paid a forged check can not recover the amount thereof under Negotiable Instruments Act, section 62, which provides that the acceptor of a negotiable instrument admits the existence of a drawer, the genuineness of his signature, and his capacity and authority to draw the instrument, applies only in favor of one who was a bona fide holder for value of the forged check. (Post, pp. 372, 373.) Cases cited and approved: Title Guaranty & T. Co. v. Haven, 196 N. Y., 487; Cherokee Nat. Bank v. Union Trust Co., 33 Okl., 342; First Nat. Bank v. Bank, 59 Or., 388; Price v. Neal, 3 Burr., 1354; Bank of U. S. v. Bank of Georgia, 10 Wheat., 333; National Park Bank v. Ninth National Bank, 46 N. Y., 77; Peoples Bank v. Franklin Bank, 88 Tenn., 299. 14. BANKS AND BANKING. Liability. Forged check. “Holder for value.” Under Negotiable Instruments Act, section 25, providing that an antecedent or pre-existing debt constitutes value, a bank to whom a forged check was given in payment of a pre-existing debt is a holder for value, though it was the payee; and not an indorsee, on purchase or discount, especially where it surrendered in return for the check a note signed by personal solvent sureties. (Post, pp. 373, 374.) Cases cited and approved: Liberty Trust Co. v. Tilton, 217 Mass., 462; Armstrong v. American Exchange Nat. Bank, 133 TJ. S., 433. 15. BANKS AND BANKING. Payment of check. Liability to maker. Forged indorsement. The doctrine that the drawer of a check made payable to an imposter cannot recover of a drawer or intermediate bank because the payment on indorsement of the imposter carries out the actual intention of the drawer, though such intention was induced by fraud, does not apply where the imposter does not assume the name by which the payee was described in the check, hut pretends merely that he is the agent of the described payee in receiving and indorsing check. (Post, pp. 374, 375.) Cases cited and approved: Murphy v. Metropolitan Nat. Bank, 191 Mass., 159; Armstrong v. Nat. Bank, 46 Ohio St., 512; Land Title & Trust Co. v. N. W. Nat. Bank, 50 L. R. A., 80; Russell v. First Nat. Bank, 2 Ala. App., 342. Case cited and distinguished: Goodfellow v. First Nat. Bank, 71 Wash., 554. 16. BANKS AND BANKING. Payment of check. Liability to maker. Duty of bank. The hazard of ascertaining the authority of the person who asserts the right to indorse a check or to receive or check out funds as its product is imposed on the drawee bank, unless it has been misled by the negligence of the drawer, or the latter has estopped himself. (Post, pp. 375, 376.) Case cited and approved: Central Nat. Bank v. Nat. Metropolitan Bank, 31 App. D. C. 391. 17. BANKS AND BANKING. Payment of check. Liability to maker. Where one who had loaned $1,000 on the security of a trust deed made his check payable to the owner of the land and delivered it to the owner’s son, anl thereafter wrote out a check for the broker’s commission on the loan, which the son signed in his father’s name, but in an illegible hand, and the lender wrote the father’s name legibly underneath the signature, after which the son, accompanied by the broker, took both checks to a bank of which the broker’s brother-in-law was cashier, and deposited the $1,000 check, stating that he desired to check • against the deposit, and his authority to do so was confirmed by the broker, the lender did not vouch for the son’s authority to sign checks on the deposit, and was not negligent in seeking to interpret the signature so as to justify the bank cashier in making no further inquiry as to'the son’s authority to check against the deposit, and the lender is therefore not precluded from recovering from the bank the amount of that cheek. (Post, pp. 376-378.) 18. BANKS AND BANKING. Payment of check. Negligence of maker. Reliance by bank. Those, facts show that the cashier did not rely on- the interpretation of the signature by the lender, but upon the assurance of his kinsman as to the authority of the son to check against the deposit. (Post, p. 378.) 19. BANKS AND BANKING. Payment of check. Forged in-dorsement. Laches. Duty of depositor. A depositor is not guilty of laches for failure to discover the forged indorsement of the payee of a check which was deposited in another bank, where he had no reason to suspect that the fund had been checked out by an unauthorized person, since he had no duty to scan his checks returned by the bank to discover any such diversion. (Post, pp. 379, 380.) Cases cited and approved: Morgan v. U. S. Mortgage & T. Co., L. R. A., 1915D, 748.
137 Tenn. 386Poindexter v. State (1916)
1. FINES. “Penalty.” “Fine.” Constitutional provisions. Acts 1915, chapter 120, and sections 2, 3, 4, and 6 thereof, making it a misdemeanor for a person chargeable with the care of a child under sixteen years of age to willfully and without good cause neglect or fail to provide for such child according to his means or to leave it destitute or in danger of becoming a public charge, conferring jurisdiction of such offenses primarily upon the juvenile court, and conferring authority upon the juvenile and criminal courts as a penalty to exact of the defendant a bond. commensurate with defendant’s means for the financial support of the child, are not violative of Const, art. 6,. section 14, providing that no fine shall be laid on any citizen of this State that shall exceed $50, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact if they think the fine should be more than $50, since, while a “fine” is always a “penalty,” a “penalty” is not always a “fine;” a “penalty” when recovered ordinarily going to the statutory beneficiaries, while a “fine” goes to the State, and a fine being proportioned to the gravity of the offense punished, and the financial ability of a defendant'to pay is not ordinarily considered. (Post, pp. 383-390.) Acts cited and construed: Acts 1915, eh. 120, 125. Cases cited and approved: State v. Latham, 188 S. W., 534; Kelly v. Davis, 38 Tenn., 72; United States v. Nash (D. C.), Ill Fed., 525; Hudson v. Granger, 23 Mise. Rep., 401; Constitution cited and construed: Art. 6, sec. 14. 2. PARENT AND CHILD. Failure to support. Evidence. Relevancy. A father cannot escape the duty to support his child placed upon him by Acts 1915, chapter 120, by voluntarily relinquishing the child and permitting it to remain away from him in the mother’s custody; so that a controversy as to alleged efforts of defendant to induce his wife who had the child to retúrn and live with him was immaterial in a prosecution under the statute. (Post, pp. 390. 391.) ' . 3. CRIMINAL LAW. Venue. As the primary purpose of Acts 1915, chapter 120, was protection of a dependent child by punishing the delinquent father and to deter others from being guilty of a same wrong, and not to prevent, the neglected child from becoming a charge on the county, the venue of such offense is properly laid in the county where the father resides, and not in the county where the child and'its mother were located. (Post, pp,. 391, 392.) Cases cited and approved: State v. Gillmore, 88 Kan., 835; Commonwealth v. Acker, 197 Mass., 93; State v. Baurens, 117 La., 136. Case cited and distinguished: Latham v. State, 188 S. W., 534.
137 Tenn. 398Kidd v. National Council of Junior Order of the United American Mechanics of the United States (1916)
1. INSURANCE. Construction of policy. Intemperance clause. ' A mutual benefit policy not collectable if death be caused by intemperance or other immoral conduct will be liberally construed to provide indemnity. (Post, pp. 399, 400.) Cases cited and approved: State Ins. Co. v. Hughes, 78 Tenn., 461; Kimbro v. Insurance Co., 101 Tenn., ¿45; Aetna Life Ins. Co. v. Davey, 123 U. S., 739; Aetna Life Ins. Co. v. Ward, 140 U. S., 76; Knights of Pythias v. Allen, 104 Tenn., 623. Cases cited and distinguished: Davey v. Aetna Life Ins. Co., 38 Fed., 650; Conn. Mut. Life Ins. Co. v. Attee, 3 Ohio Cir. Ct. R.., 650; Miller v. Mutual Benefit Ins. Co., 34 Iowa, 222; Tatum v. State, 63 Ala., 147; Mowry v. Home Life Ins. Co., 9 R. I., 346. 2. INSURANCE. Construction of policy. Intemperance clause. A mutual benefit life insurance policy not collectible if death be ' caused by intemperance is not avoided where insured drank a reasonable amount in good faith for medical purposes, though he was made drunk and died as a result. (Post, pp. 399, 400.) 3. INSURANCE. Construction of policy. Mutual benefit. Recovery will not be denied upon a mutual benefit life insurance policy unless its language, naturally construed, so requires. (Post, p. 400.) Case cited and approved: Bracket v. M. B. A., 154 Ky., 340. 4. INSURANCE. Burden of proof. Violation of policy. Defendant insurance company has the burden of proving that a mutual benefit policy has been avoided by a violation working a forfeiture. (Post, p. 400.) 5. INSURANCE. Sufficiency of evidence. Death from intemperance.’ Evidence that insured was found in a drunken condition, dying three days later, the hospital interne assigning acute alcoholism as tlie cause, is insufficient to avoid a mutual benefit policy on ground that insured died as the result of intemperance, where no' other intemperate acts were shown. - (Post, pp. 400, 401.) 6. INSURANCE. Statutory penalty. Insurer's good1 faith. Defendant insurance company is not liable for the statutory penalty for refusing in good faith to pay a claim for which it was afterward found' liable. (Post, p. 401.) Cases cited and approved: Sullivan v. Insurance Co., 135 Tenn., 646 .
137 Tenn. 407Gooch v. Beasley (1916)
1. EXECUTORS AND ADMINISTRATORS. Contracting indebtedness. “Funeral expensse.” A monument to be erected over the deceased’s grave is a part of the funeral expenses, though not a strictly necessary disbursement but entirely proper when the estate is solvent. (Post, pp. 405, 406.) Cases cited and approved: Killebrew v. Murphy, 50 Tenn., 546; Fite v. Beasley, 80 Tenn., 328; Cannon v. Apperson, 82 Tenn., *553; Cate v. Cate, 43 S. W., 365; Pease v. Christman, 158 Ind., 642; Moulton v. Smith, 16 R. I., 126; Bendall v. Bendall, 24 Ala., 295; Van Emon v. Tulare Co., Superior Court, 76 Cal., 589; Kroll v. Close, 28 L. R. A. (N. S.), 572; Moyers’ Estate, 5 Kulp. (Pa.), 167; Webb’s Estate, 165 Pa., 330. 2. EXECUTORS AND ADMINISTRATORS. Contracting indebtedness. Funeral expenses. Monument for deceased. The manner of burial and erection of monument for deceased is a matter largely within the discretion of the executor, so long as he does not expend unreasonable amounts, (Post, pp. 405, 406.) 3. EXECUTORS AND ADMINISTRATORS. Contracting Indebtedness. Monument for Deceased. It was not an abuse of the discretion of the executor of a deceased person who left an estaté of $20,000 to seek allowance of the sum of $240 for a monument for the deceased. (Post, p. 406.)
137 Tenn. 412Sullivan v. Myer (1916)
FROM SMITH. Appeal from the Chancery Court of Smith County. —A. H. Robeets, Chancellor.
137 Tenn. 422Nashville Interurban Ry. v. Gregory (1916)
1. ELECTRICITY. Injuries from use. Actions. Negligence. Question for jury. While it cannot he said, as a matter of law, that it is the duty of a trolley company to erect guard wires between its wires and telephone wires crossing above them, the existence of such duty may, if the proof warrants, be submitted to the jury. (Post, pp. 422, 423.) ' Cases cited and approved: Heidt v. Southern Telephone, etc., Co., 122 Ga., 474; Stark v. Lancaster Electric, etc:, Co., 218 Pa., 576; Pressley v. Bloomington, etc., Co., 271 Ill., 622; Electric Railway Co., v. Shelton, 89 Tenn., 423. 2. ELECTRICITY. Injuries from use. Negligence. Res Ipsa loquitur. Negligence on the part of. a trolley company may be inferred from the fact that a guide wire or trolley wire dangerously charged with electricity falls on or near a public street. (Post, pp. 423, 424.) Cases cited and approved: Chattanooga Electric Ry. Co. v. Mingle, 103 Tenn., 667; Street Ry. Co. v. Kartwright, 110 Tenn., 277; Saulman v. Nashville, 131 Tenn., 427. 3. ELECTRICITY. Injuries from use. Degree of care required. A trolley company is charged with the highest degree of care in the construction, maintenance, and operation of its wires," and that degree of care must be exercised with reference to the supervision of its wires. (Post, p. 424.) 4. ELECTRICITY. Injuries from use. Company liable. It is the duty of a trolley company, as well as of the telephone company, to take steps to have telephone wires crossing above the trolley wires inspected and kept safe, since it is negligence for a trolley company to maintain its wires highly charged with electricity under wires known to be defective, or to rest unmindful of the state of the overhead wires. (Post, pp. 424, 425.) 5. ELECTRICITY. Injuries from use. Res Ipsa loquitur. Where a telephone wire broke and fell across a.trolley wire underneath, thereby becoming highly charged, and injuring a boy who came in contact therewith, the accident was one which would not have happened if either the telephone company or the trolley company had used the high degree of care required of it, and the doctrine of res ipsa loquitur applied to both companies, so as to warrant the jury in inferring negligence in the absence of a showing of due care. (Post, pp. 425-427.) Cases cited and approved: De Glopper v. Railway & Light C<?., 123 Tenn., 633; Memphis St. Ry. Co. v. Cavell, 135 Tenn., 463; Gill v. Brown, 130 Tenn., 178. 6. ELECTRICITY. Injuries from use. Res ipsa loquitur. Rebuttal. That inference of negligence is not overcome by proof that a trolley company carefully constructed and operated its own lines without proof of supervision or inspection of the telephone wires strung above its wires. (Post, pp. 427, 428.) • Cases cited and approved: East Tennessee Coal Co. v. Daniel, 100 Tenn., 65; Railway v. Lindamood, 111 Tenn., 457. 7. NEGLIGENCE. Pleading. Specific acts. Res ipsa loquitur. Where res ipsa -loquitur is applicable, plaintiff need not allege specific acts of negligence, and if he allges both specific and general negligence, the specific allegations can be disregarded as surplusage. (Post, pp. 428, 429.) Cases cited and approved: Turnpike v. Yates, 108 Tenn., 429; Wash. Ya. Ry. v. Bouknight, 113 Va., 696; McNamara v. Boston, etc., R. Co., 202 Mass., 497; Walters v. Seattle, etc., R. Co., 48- Wash., 233. 8. RELEASE. Joint tort-feasors. Covenant not to sue. Effect. A covenant by an injured person not to sue one of two joint tort-feasors does not affect the liability of the other and does not entitle the other to credit for the. amount received for covenant, since the consideration is not a satisfaction, of the claim for damages and the other tort-feasor would have no cross-action against the one to whom the covenant was given. (Post, pp. 429-431.) Cases cited and approved: Smith v. Amusement Co., 128 Tenn., 112; Dwy v. Conn. Co., 89 Conn., 74; Matheson v. Okane, 211 Mass., 91; Texarkana Telephone Co. v. Pemberton, 86 Ark., 329; Dardanelle, etc., R. Co. v. Brigham, 98 Ark., 169; Yeates y. Ill. Cent. R. Co., 145 Ill. App.; 11; Farmers’ Sav. Bank v. Aldrich, 153 Iowa, 144; Louisville Times Co. v. Lancaster, 142 Ky., 122; Musolf v. Duluth Edison Electric Co., 108 Minn., 369; Judd v. Walker, 158 Mo. App., 156; Gaetjens v. New York, 145 App. Div., 640. 9. EVIDENCE. Parol evidence. Actions between third parties. The rule that parol evidence is not admissible to alter or vary a valid written instrument refers only to the parties to the instrument, and does not prevent a tort-feasor from showing by parol evidence that an instrument which was in form a covenant not to sue a joint tort-feasor was in fact a release. (Post, pp. 43i; 432.) Cases cited and approved: Myers v. Taylor,-107 Tenn., 364; Mathe-son v. Okane, 211 Mass., 91.
137 Tenn. 438Butler v. Givens (1916)
FROM JACKSON. Appeal from the Chancery Court of Jackson County. —A. H. RobeRts, Chancellor.
137 Tenn. 440Montlake Coal Co. v. Chattanooga Co. (1916)
EQUITY. Pleading. Repugnancy of bill. Where a coal company, the lessee of coal lands, filed a bill against its lessor company to obtain a rescission of the lease contract for fraud,. and thereafter sought to amend its bill so as to seek relief both by way of the remedy of rescission and by way of the remedy of reformation of the lease contract and enforcement of one of its provisions, the bill, as amended, was subject to the charge of repugnancy. Cases cited and approved: Phillips v. Rooker, 134 Tenn., 457; Daly v. Brennan, 87 Wis., 36; West v. Badger Lumber Co., 56 Kan., 287; Hopper v. Hopper, 11 Paige ch. (N. Y.), 46; Shields v. Barrow, 17 How; 130 Henderson v. Boyd, 85 Tenn., 22; Bynum v. Ewart, 90 Tenn., 655; Dillard & Coffin Co. v. Smith, 105 Tenn., 372. Cases cited and distinguished: Kinney v. Kiernan, 49 N. Y., 164; Fuller-Warren Co. v. Harter, 110 Wis., 80; Zimmerman v. Robinson & Co., 128 Iowa, 72; Butler v. Hildreth, 5 Mete. (Mass.), 49; Conrow v. Little, 115 N. Y., 387; Wilson v. New United States Cattle Ranch Co., 73 Fed., 997; Neal v. Reynolds, 38 Kas., 432.
137 Tenn. 452Gibson v. Frye Institute (1916)
1. CHARITIES. Character of gift. Though testator’s primary intention in making a gift of a building,'for the use of working people of a city may have been to amuse or entertain the people, or even to memorialize his own name, if, as a matter of fact, the institute, as contemplated by him, will advance charitable purposes, the bequest will be none the less charitable, since the real nature and effect of a gift determines its character rather than the motive of the donor. (Post, pp. 453-455.) Cases cited and approved: Jones v. Habersham, 107 U. S., 174; In re Graves’ Estate, 242 III., 23; Franklin v. Hastings, 253 111., 46; Wilcox v. Attorney-General, 207 Mass., 198; Richardson •v. Ethics Institute, 208 Mass., 311; Burbank v. Burbank, 152 Mass., 254; Burr v. Boston, 208 Mass., 537; Stairnes v. Burton, 17 Utah, 331; Chamberlain v. Stearnes, 111 Mass., 267; Mason v. Perry, 22 R. I., 475; Coit v. Comstock, 51 Conn., 352; Rotch v. Emerson, 105 Mass., 433; Goodell v. Union Association, 29 N. J. Eq., 32; Green v. Allen, 24 Tenn., 170; Johnson v. Johnson, 92 Tenn., 559. Constitution cited and construed: Art. 1, sec. 22. 2. CHARITIES. Educational Institution. Auxiliary amusements. Where testator made a gift in trust to a corporation to erect a building wherein dancing and other amusements might be carried on for the working people of the city in connection with & library and lectures, the dancing and 'amusements were merely accessory and auxiliary to the purpose of the trust, which was educational and charitable, and would not vitiate such trust. (Post, pp. 455-457.) Cases, cited and approved: Goodell v. Union Association, 29 N. J. Eg., 32; Commonwealth v. Y. M. C. A., 116 Ky„ 711; Pa. v. Y. W. C. A., 126 Pa.; 572;' Little v. City of Newburyport, 210 Mass., 414. 3._ CHARITIES. Validity of gift. Public policy. A bequest in trust for the erection of a building containing a library, free lecture rooms, dancing halls, and other rooms for amusements for the working people of the city, was not void as against public policy, on the ground that a dancing hall would tend to promote immorality. (Post, pp. 457, 458.) 4. CHARITIES. Validity of gift. Public policy. A bequest to a corporation to be formed to erect a building containing a library, lecture rooms, a dance hall, and other amusements for the working people of the city, was not void as against public policy, on the ground that the dancing would be participated in by both races, and the institution would degenerate into a negro dancing hall. (Post, p. 458.) 5. CHARITIES. “Education.” “Education,” as used in relation to the law of charitable trusts, includes not only the training and development of the mind, but the training and development of the body. (Post, p. —.) Cases cited and approved: Almy v. Jones, 17 R. I., 265; Detwiller v. Hartman, 37 N. J. Eq., 347. 6. CHARITIES. Questioning authority of corporation created to administer. Right of heirs. Testator’s collateral heirs and distributees after his widow’s death could not question the authority of the corporation chartered by testator’s trustees to administer a charitable trust created by him, which question could only be raised in a suit by the attorney-general. (Post, pp. 458-460.) Cases cited and approved: Heiskell v. Chickasaw Lodge, 87 Tehn., 668. 7. CHARITIES. Charitable Trust. Indefiniteness. Testator’s bequest to trustees to organize a corporation to erect a building containing a library, lecture rooms, dance hall, and amusement rooms for the use of the working people of the city, was not indefinite. (Post, p. 460.)
137 Tenn. 466Fox v. Corbitt (1916)
FROM DAVIDSON. Appeal from the Chancery Court of Davidson Connty. — Jas. B. Nbwmak, Chancellor.
137 Tenn. 474Austin v. State (1916)
1. ABORTION. Intent. Under Shannon’s Code, section 6464, penalizing persons who administer substances with the intention to procure a miscarriage, etc., the intent is an essential element of the crime. (Post, pp. 470-472.) Case cited and approved: Rex v. Phillips, 3 Campbell, 73. Code cited and construed: Sec. 6464 (S.). 2. ABORTION. Sufficiency of evidence. Evidence that accused induced a woman to take medicine given him by physicians who advised him it would not cause a miscarriage does not sustain a conviction for attempting to secure a miscarriage under Shannon’s -Code, section 6464, prohibiting administering substances with intent to secure a miscarriage, etc., since the essential element of intent is not established. (Post, pp. 470-472.)
137 Tenn. 478Decker v. Rice (1917)
LANDLORD AND TENANT. Liability of purchaser of crops. Under Thomp. & S. Code, sections 5302, 5302a, and 5302al, allowing a landlord whose rent is in arrears to recover the value of the crop from the purchaser from the tenant, and making'persons selling a tenant’s crop and applying the proceeds to payment of tenant’s indebtedness to themselves liable for such amount, only the first buyer from the tenant is liable, in absence of fraud, although under section 5299 the landlord may levy upon the crop in any person’s hands. Acts cited and construed: Acts 1857-58, ch. 25; Acts 1899, ch. 22. Cases cited and approved: Bryan v. Buckholder, 27 Tenn., 561; Biggs & Moore v. Piper, 86 Tenn., 591; Davis v. Wilson, 86 Tenn., 521. Code cited and construed: Secs. 5299, 5302, 5302a, 5302al.
137 Tenn. 483Provident Loan Bank v. Parham (1917)
1. STIPULATIONS. Agreed statement of facts. Construction. In an action to restrain the collection of license tax as pawnbroker levied against a hank, an agreed statement of fact that the bank had in some instances loaned and collected money on the pledge of personal property will be construed as meaning that the bank had received personal chattels on pledge for loans, though personal property is broad enough to include bills, notes, and other choses. in action. (Post, p. 481.) 2. BANKS AND BANKING. License.- Liability as Pawnbrokers. A bank whose charter empowered it to receive deposits, discount notes, deal in gold, silver, bonds, and stocks, advance money on pledge or mortgage of real and personal estate, and sell the same, but specially provided that it could not carry on the business of a pawnbroker and which only occasionally, in connection with its banking business, loaned money on the pledge of personal chattels, is not subject to the license tax imposed on pawnbrokers. (Post, pp. 481-485.) Cases cited and approved: Trentham v. Moore, 111 Tenn., 346; Cigar Co. v. Cooper, 99 Tenn., 472; Union & Planters’ Bank v. Memphis, 101 Tenn., 154; Barlin v. Knox Co., 188 S. W., 795. 3. STIPULATIONS. Agreed statement of facts. Construction. “Few.” In a suit to restrain the collection of a pawnbroker’s license tax from a bank, an agreed statement of facts that there had been only a few instances in which the bank had loaned money on the pledge of personal chattels, would be satisfied by the happening of two or three such incidents, since “few” means not many, of small number, indicating a small number of units or individuals which constitute a whole. (Post, pp. 481-485.)
137 Tenn. 491Mobile & O. R. Co. v. Mayor & Aldermen of Union City (1917)
1. EMINENT DOMAIN. Property subject. Property devoted to public use. Property already devoted to a public use may be by tbe legislature appropriated to another inconsistent public use, though it cannot be taken for an inconsistent use, unless the legislature has clearly manifested an intention to do so. (Post, pp. 489-492.) Case cited and approved: Railroad v. Memphis, 126 Tenn., 267. Case cited and distinguished: Railroad Co. v. Cemetery Co., 116 Tenn., 400. Code cited and construed: Secs. 1324-1848 (1858). 2. STATUTES. Title of act. Municipal charter. Eminent domain. The title of Priv. Acts 1915, chapter 93, which was an act to amend a city charter, so as to increase and enlarge the powers of eminent domain, is broad enough to include a grant to the city of the right to condemn for street extension property already devoted to public use for railroad tracks and buildings, so that the act did not violate Const, art. 2, section 17. (Post, p. 492.) Constitution cited and construed: art. 2, sec. 17. 3. EMINENT DOMAIN. Authority of city. Statute. Condemnation of railroad property. The provision of Priv. Acts 1915, chapter 93, section 2, giving a city specific authority to extend its streets through and across tracks, switchyards, depot buildings, and grounds, of any corporation within the city, and section 3, vesting the city with power to condemn such property for the purpose of street extension, sufficiently specify the property to be taken to confer authority to condemn it, though it has already been devoted to public use. (.Post, pp. 492-495.) Acts cited and construed: Acts 1915, ch. 93, see. 2. Cases cited* and approved: Ex parte Russell, 19 Ves. Jr., 163; Ex parte Postmaster General, 10 Ch. D., 595; In re Cuckfleld Burial Board, 19 Beav., 153, United States v. Herron, 20 Wall., 251; Jones v. Tatham, 20 Pa., 398; Stoughton v. Baker, 4 Mass., 522; People v. Rossiter, 4 Cow. (N. Y.), 143; In re New York, 135 N. Y., 253; Pittsburgh, P. E. W. & C. R. Co. v. Sanitary District of Chicago, 286. 4. EMINENT DOMAIN. Necessity. Determination of- question. Power of courts. Where the legislature has specifically empowered a city to condemn railroad property for street extensions, the question of the necessity for such extensions cannot be brought before the'court. (Post, pp. 495, 496.) 5. ESTOPPEL. Municipal corporations. Defenses. An agreement by city authorities that, if railroad companies would erect a union depot, the city would not attempt to open streets through the premises, does not estop the city from condemning the right 'to extend its streets through the premises after the erection of the depot, since the power of eminent domain is inalienable, and no legislature or municipal authority can bind itself or its successors not to exercise it when public necessity and convenience require. (Post, pp. 496, 497.) . Case cited and approved: Portland v. Inman-Poulsen Lumber Co., 66 Ore., 86.
137 Tenn. 503Burton v. Rose (1917)
1. BROKERS. Commissions. Securing an option. A broker, having entitling him to commission on sale of plantation, does not show performance, entitling him to commission on agreed selling price, upon producing a person who enters into an optional contract. (Post, pp: 499, 500.) Cases cited and approved: Crowe v. Trickey,• 204 U. S., 228; Warnekros v. Bowman, 43 L. R. A. (N. S.), 91. 2. BROKERS. Commissions: Amount forfeited on option. A broker, having contract entitling him to commission on sale of plantation, who secures an optional purchaser, is not entitled to commissions on earnest money forfeited to seller under option. (Post, pp. 500, 501.) Cases cited and distinguished: Gilder v. Davis, 137 N. *7., 504.
137 Tenn. 507Shelby County v. Fisher (1917)
FROM SHELBY Appeal from the Circuit Court of Shelby County.— A. B. PittmaN, Judge.
137 Tenn. 509Somerville v. Gullett Gin Co. (1917)
1. PRINCIPAL AND AGENT. Powers of agent. Apparent scope of authority. Warranty. Tlie purchaser of a gin under a contract warranting it to he as represented, but providing that no other warranty should bind the seller, could not recover on alleged verbal warranty of the agent .who sold, the machine, since such verbal warranty was beyond the apparent scope of the agent’s authority. (Post, pp. 513-517.) Cases cited and approved: Nixon Mining Drill Co. v. Burk, 132 Tenn., 481; Hines v. Wilcox, 96 Tenn., 148. Cases cited and distinguished: Johns v. Jay cox, 67 Wash., 403; Wood Mowing & Reaping Co. 'v. Crow, 70 Iowa, 340; Furneaux v. Esterly, 36 Kan., 539. 2. EVIDENCE. Admissibility. Parol evidence varying writing. Parol evidence of verbal warranty is inadmissible to vary the written warranty.' (Post, pp. 513-517.) 3. PRINCIPAL AND AGENT. Powers of agent. Ratification by principal. The principal cannot be held to have ratified the acts of the agent which were beyond the apparent scope of his authority without full knowledge by the principal, so that the seller of the gin who merely tried to make the machine do the work required of him did not ratify his agent’s unauthorized verbal warranty of which the buyer had given him no notice. (Post, p. 518.) , 4. SALES. Warranty. Implied warranty. Where the contract of sale of a machine provided that no other warranty than that in the written contract should be binding, no implied warranty could be .found. (Post, pp. 518, 519.) Cases cited and approved: Bagley v. General Fire Extinguisher Co., 150 Fed., 284; Boyer v. Neel, 50 Mo. App. 26; McCormick Harvesting Machine Co. v. Allison, 116 Ga., 445. 5. SALES. Warranties. What constitutes. Where the contract of sale of a gin warranted the machine to perform what was claimed for it in the printed circulars, the language of the circulars was adopted and became the warranty of capacity. (Post, p. 519.) 6. SALES. Breach of warranty. Damages. When recoverable. 'Where the buyer of a gin claimed that it was not satisfactory, the seller was not, solely on account of' his attempt during two months to make the machine do the necessary work, liable for the damages due to the delay, when the machine was not shown to have been defective under the warranty given. (Post, pp. 519, 520.)
137 Tenn. 521State v. Adams (1917)
1. STATUTES. Pari materia. Construction. Pub. Acts 1915, chapter 127, section 1, providing that persons chargeable with care of a child under sixteen years of age, who, sh.all willfully leave State after abandoning such child, shall be guilty of felony, is in pari materia with, and should be construed in connection with, chapter 120, section 1, making it a misdemeanor for any person charged with such care to fail to provide for a child. (Post, pp. 524-526.) Acts cited and construed: Acts 1915, ch. 127, sec. 1. Constitution cited and construed: Art. 4, sec. 2. 2. CONSTITUTIONAL LAW. Abandonment of child, Statute. Privileges and immunities. Pub. Acts 1915, chapter 127, providing that person chargeable with care of a child under sixteen years of age, who shall willfully leave State after abandoning such child, shall be guilty of felony, unless he leaves the State to enter employment previously accepted, does not, when read in connection with chapter 120, section 1, abridge privileges or immunities of citizens contrary to Const. U. S. Amend. 14, cl. 2. (Post, pp. 524-526.) 3. CONSTITUTIONAL LAW. Abandonment of child. Statute. Class legislation. Pub. Acts 1915, chapter 127, is not partial and discriminative, violating Const, art. 11, section 8, as a classification separating criminals from law-abiding people is proper. (Post, p. 526.) 4. CRIMINAL LAW. Abandonment of child. Venue. Statute. Validity. Pub. Acts 1915, chapter 127, section 1, making it a felony to leave State after abandoning a child, is not subject to objection that it is impossible to say from its terms where venue would lie in view of Shannon's Code, section 6935, providing that when an offense is commenced within, hut consummated without, State offender is liable to punishment therefore, and in such case the venue is in county where offense was commenced, and section .6936, providing that when an offense is committed partly in one county and partly in another the jurisdiction is in either. (Post, pp. 526-527.1 Cole cited and construed: Sec. 6935(S).
137 Tenn. 528Mutual Life Ins. v. Dibrell (1916)
1. INSURANCE. Life insurance. Misrepresentations. “Increases risk of loss” “Risk of loss.” Shannon’s Code, section 3306, provides that no misrepresentation or warranty made in the negotiations of a policy of insurance, hy the assured or in his behalf, shall he deemed material or defeat the policy unless made with actual intent to deceive, or unless it increases the risk of loss. Held not to require that the matter represented should he one that contributed to the death of the insured to make the policy invalid; and the phrase “increases the risk of loss” being the same as “increases the risk,” and both alike including the risk of loss involved in the issuance of the policy, where insured had been examined four times on three policies in less than four months previous to his application and no policies were issued to him, his statement that he had never been examined for a policy which was not issued as applied for was a material misrepresentation of facts increasing the risk of loss assumed in issuing the policy, which rendered it voidable. (Post, pp. 533-542.) Acts cited and construed: Acts 1895, ch. 160, sec. 22. Cases cited and approved: White v. Provident, etc., Society, 163 Mass. 108; Johnson v. Nat. L. Ins. Co., 123 Minn., 453; Empire L. Ins. Co. v. Gee, 171 Ala., 435; Barker v. Mutual L. Ins. Co., 198 Mass., 384; Van Woert v. Woodmen, 29 N. D., 441; Everson v. General, etc., Corp., 202 Mass., 169; Monjeau v. Met. Life Ins. Co., 208 Mass., 1; Alden v. Supreme Tent, etc., 178 N. Y., 635; Home L. Ins. Co. v. Myers, 112 Fed., 848; Aetna L. Ins. Co. v. Moore, 231 H. S., 543; Fishblate v. Fidelity Co., 140 N. C„ 589; Dolan v. Mutual Reserve, etc., 173 Mass., 197; Johnson v. Nat. L. Ins. Co., 123 Minn., 453; Taylor v. Grand Lodge, 96 Minn., 441; March v. Metropolitan L. Ins. Co., 186 Pa., 642; II. S. L. Ins. Co. v. Smith, 92 Fed., 505; Blenke v. Citizens’ I. Ins. Co., 145 Ky., 332; Masonic L. Ins. Co. v. Robinson, 149 Ky., 80; Am. L. Ins. Co. v. Solomon, 233 Fed., 213; Hunter v. Guaranty C.o., 129 Tenn., 572; First Nat. Bank v. Fid. & Guar. Co., 110 Tenn., 10. Cases cited and distinguished: Ins. Co. v. Stallings, 110 Tenn., 1; Schas v. Ins. Co., 166 N. C., 55; U. S. Life Ins. Co. v. Smith, 92 Fed., 503. Code cited and construed: Sec. 3306(S.). 2. INSURANCE. Life insurance. Question of law. Whether a misrepresentation of an' insured in applying for a life insurance policy increased the risk of loss is a question of law either under Shannon’s Code, section 3306, or at common law. (Post pp. 533-542.)
137 Tenn. 543Dennis v. State (1917)
1. CRIMINAL LAW. Bill of exceptions. Authority of judge. Under Shannon’s Code, section 7222, providing relative to criminal cases that defendant is entitled to his bill of exceptions to be taken and signed as in civil cases, and section 4693, providing as to civil cases that, the truth of the case being fairly stated in the bill, the judge shall sign it, a bill should be signed by the judge who presided at the trial, and a bill of exceptions signed by a special judge appointed pending impeachment proceedings against the judge who presided at the trial could not be considered. (Post, p. 648.) Code cited and construed: Sec. 7222. (S.). 2. CRIMINAL LAW. Appeal. Review. Presumptions. In the absence of a bill of exceptions, the supreme court will conclusively presume that the evidence justified the verdict. (Post, pp. 648, 549.) Cases cited and approved: Allen v. State, 8 Tenn., 294; Hud-dleston v. State, 66 Tenn., 55; Darden v. Williams, 100 Tenn., 415; Dunn v. State, 127 Tenn., 267; Berndren v. State, 109 Ten,n., 225. 3. CRIMINAL LAW. Appeal. Review, Necessity of bill of exceptions. In tire absence of a properly authenticated bill of exceptions, the admission of evidence cannot be reviewed. (Post, p. 549.) Cases cited and approved: Walker v. Graham,, 18 Tenn., 231; Dunn v. State,, 127 Tenn., 267. 4. CRIMINAL LAW. Bill of exceptions. Necessity. Review of instructions. A trial court’s charge does not become a part of the record unless made so by a properly authenticated and filed bill of exceptions, and, in the absence of such a bill, a paper purporting to be the charge cannot be considered. (Post, pp. 550, 551.) Acts cited and construed: Acts 1899, ch. 275. Cases cited and approved: Railway Co. v. Foster, 88 Tenn.,-671; Marble Co. v. Black, 89 Tenn., 118. 5. CRIMINAL LAW. Bill of exceptions. Scope and sufficiency. Where after a criminal trial and while a motion for rehearing was pending impeachment proceedings were instituted against the presiding judge, and a special judge was appointed, who denied the motion and signed a paper purporting to be a bill of exceptions covering the proceedings in the case from its beginning to and inclusive of the order of authentication, though such paper was not a proper bill of exceptions as to the proceedings at the trial before the regular judge, it might be treated as a bill of exceptions in respect of the proceedings occurring before the special judge on the hearing of the motion for a new trial; the recitals as to the proceedings before the regular judge being regarded as surplusage. (Post, p. 551.) Cases cited and approved: Dunn v. State, 127 Tenn., 267. 6.CRIMINAL LAW. Appeal. Reversal. Where a motion for a new trial was filed on the day verdict was rendered, and was continued from time to time under the orders of the judge, and before a hearing thereon impeachment proceedings were instituted against the presiding judge, and a special judge appointed who denied the motion, and though the hill of exceptions was not presented, as it might have been, to the trial judge, it was presented in proper time aind soon after the denial of the -motion for new trial, the conviction would he reversed; as defendant was denied the benefit of having the exceptions reserved during the' trial presented to the trial judge and to have that judge pass upon the merits of the exceptions and of the motion for a new trial. {Post, pp. 551-553.) Cases cited and distinguished: Cooper v. State, 123. Tenn., 37„; Mahon v. State, 127 Tenn., 535. 7. CRIMINAL LAW. Review. Approval of verdict by trial court. The denial of a motion for a new trial by a special judge appointed pending impeachment proceedings against the judge who presided at the trial was not an approval of the verdict by the trial judge within the rule as to the conclusiveness of a verdict so approved. {Post, pp. 554, 555..) Cases cited and approved: Crittenden v. Schermerhorn, 35 Mich., 370; Newton v. Boodle, 3 C. B., 795; Bennett v. Peninsular, etc., Steamboat Co.,. 16 C. B., 29; Hume v. Bowie, 148 U. S., 245; People v. Judge, 40 Mich., 630; People v. Judge, 41 Mich., 726; Isler v. Haddock, 72' N. C., 119; Mason v. Osgood, 72 N. C., 120; Shelton v. Shelton, 91 N. C., 329; Sanders v. Norris, 82 N. C., 243; Henrichsen v. Smith, 29 Or., 475; State v. Parks, 109 N. C., 813; Taylor v.- Simmons, 116 N. C., 70; Bor-rowscale v. Bosworth, 98 Mass., 34; Pire Ass’n of Philadelphia v. McNerney, 54 S. W., 1053; Nelson v. Marshall, 77 Vt.,'44; Trammell v. State, 1 Tex., App. 121. Preston v. State, 15 Tex., App. 336; Baub v. State, 8 Tex. App., 173; Henderson v. State, 20 Tex. App., 394; State v. Reed, 67 Mo., 36; Gaiter v. State, 45 Miss., 441; State v. Bess, .31 La. Ann., 191; Southall v; Evans, 114 Va., 461. Cases cited and distinguished: Richardson v. State, 15 Wyo., 465.
137 Tenn. 556Goodman v. Palmer (1917)
1. APPEAL AND ERROR. Question raised by demurrer. Review. Where the chancery court overruled general legatee’s demurrer raising question of jurisdiction to grant certain relief, general legatee was entitled, under proper assignment of error in the court of civil appeals, to have the jurisdiction of the chancery court passed upon. (Post, pp. 559, 560.) 2. COURTS. Chancery courts. Jurisdiction. Administration of estates. Shannon’s Code, section 4048, providing that any distributee or legatee may apply to the chancery court of the county or district in which administration was taken out to compel the payment of his distributive share or legacy, does not deprive the court of chancery of its inherent common-law jurisdiction over the administration of estates which is reserved by section 6088, providing: “The chancery court shall continue to have .'all the powers, privileges and jurisdiction properly and rightfully incident to a court of equity by existing laws.” (Post, pp. 560-562.) Cases cited and approved: Murgitroyde v. Cleary, 84 Tenn., 539; Talliafern v. Wright, 1 Tenn. Cas., 178; Lake v. McDavitt, 81 Tenn., 26, 30. Codes cited and construed: Sec. 4048 (S.); Sec. 4279 (Thomp. Shan. sec. 6088.). 3.EXECUTORS AND ADMINISTRATORS. Enforcing settlement. Jurisdiction of chancery court. When the chancery court is duly resorted to to enforce in behalf of legatees or distributees under Shannon’s Code, section 4048, and jurisdiction is taken, it may proceed to determine the amount for distribution, and thus fix the compensation payable to administrator and his solicitor, determining the questions of the amount of costs, charges, etc., properly to be deducted. (Post, p.‘ 562.) 4. EXECUTORS AND ADMINISTRATORS. Enforcing settlement. Parties to petition. Under Shannon’s Code, section 4048, providing that any distributee or legatee may apply to the chancery court of the county or district in which administration was taken out to compel the payment of his distributive share or legacy, the chancery court properly entertained a bill filed by administrator making legatees defendants and reciting that legatees made demand on him to make distribution without taking refunding bonds from them, which he could not safely do without direction of the court, that it was necessary that the court fix the compensation of petitioner and his solicitor, and that it is absolutely certain that all debts of testator have been paid. (Post, pp. 563. 564.) Case cited and approved: Head v. Citizens’ St. R. Co., 110 Tenn., 316. ON PETITION TO REHEAB. 5. WILLS. General pecuniary legacies. Interest. The general rule of the common law that interest is allowable on general pecuniary legacies after one year from the death of the testator unless the will contains a provision to the contrary has not been conformed to in this State in every situation. (Post, pp. 564-567.) Cases cited and approved: Ensley v. Ensley, 105 Tenn., 107; Kent v. Dunham, 106 Mass., 590; In re Woodward, 78 Vt, 254; State v. Adams, 71 Mo., 620; Church Home v. Morris, 99 Ky., 317; Wheeler v. Ruthven, 74 N. Y., 433; Cobb v. Stratton’s Estate, 56 Colo., 278. Cases cited and distingushed: Chappel v. Theus, 3 Tenn. Cas., 460; Darden v. Orgain, 45 Tenn., 211; Laura Jane v. Hagen, 29 Tenn., 332. 6. WILLS. General pecuniary legacies. Interest. Where distribution has been delayed by a long and hard-fought contest of the will without fault on the part of the general legatee, interest on the general pecuniary legacies will be allowed only from the date of the final decree terminating contest suit in favor of all legatees. (Post, p. 568.)
137 Tenn. 569Edmonson v. Walker (1917)
FROM SHELBY. Appeal from the Chancery Court of Shelby County to the Court of Civil Appeals, and hy certiorari to the Court of Civil Appeals from the Supreme Court. —P. H. Heiskell, Chancellor.
137 Tenn. 590Wilson v. Wilson (1917)
1. SLAVES. Legitimation of issue. Shannon’s Code, section 4179, legitimizing the issue of slaves living together as husband and wife in Tennessee, is inapplicible to parties not so living together in this State when the child in question was born. (Post, pp. 693, 594.) Acts cited and construed: Acts 1887, eh. 151. Code cited and construed: Sec. 4183 (S.). 2. STATUTES. Validity. Title. Shannon’s Code, section 4183 (Acts 1887, chapter 151), entitled an act to amend descent and distribution laws and certain sections of Revised Code, violates Const, art. 2, section 17, requiring amendatory acts to recite the title or substance of the amended law, since no official Revised Code exists, and the descent and distribution laws include statutory provisions, court decisions, etc. (Post, pp. 594-596.) Cases cited and approved: Memphis St. Ry. Co. v. State, 110 Tenn., 598; Shelton v. State, 96 Tenn., 522. Case cited and distinguished: Burnett v, Turner, 87 Tenn., 126. Constitution cited and construed: Sec. 17, art. 2. 3. STATUTES. Validity. While a statute will not be declared unconstitutional unless it appears so beyond reasonable doubt, mere lapse of time will not validate an otherwise invalid law. (Post, pp. 596, 597.) Case cited and approved: Henley v. State, 98 Tenn., 682. Case cited and distinguished: Cribble v. Wilson, 101 Tenn., 616. 4. EJECTMENT. Title to support action. In ejectment the complainant must recover on the strength of his own title. (Post, p. 597.) Case cited and approved: Hubbard v. Godfrew, 100 Tenn., 150. 5. EJECTMENT. Title from common source. Estoppel. In ejectment a party cannot deny the common source of title, since he cannot dispute the title under which he claims. (Post, p. 597.) 6. CONSTITUTIONAL LAW. Validity of Statute. Estoppel to question. Where complainants in ejectment claimed through an ancestor’s • second marriage, and Shannon’s Code, section 4183, legitimizing the issue of such marriages, the defendants, claiming under the same ancestor’s - first marriage, are not estopped to deny the validity of the act, since they do not claim under a common source of title. (Post, p.' 597.)
137 Tenn. 598Biggs v. Reliance Life Ins. (1917)
1. INSURANCE. Rebate. In action on a life insurance policy, the insurance company could not defend on the ground that an agent’s acceptance of a note for the premium was a “rebate” to insured within Thompson’s Shannon’s Code, section 3312, prohibiting rebates, and that such unlawful action rendered the policy contract void, since, where only a subsidiary or collateral agreement is violative of a statutory inhibition, and it is capable of segregation for denunciation, the policy itself should not be declared void; the statute not having so provided in explicit terms. (Post, pp. 601-603.) Acts cited and construed: Acts 1891, cli. 122. Case cited and approved: Cary Lombard Co. v. Thomas, 92 Tenn., 687. ’ ' Case cited and distinguished: Singer Mfg. Co. v. Looney, 103 Tenn., 262. Code cited and construed: Sec. 3312 (Thomp. Shan.) 2. CONTRACTS. Prohibition by statute. Generally, a contract explicitly prohibited by statute is void, and a prohibition may be implied from the fact that a penalty is prescribed; but the rule is not an inflexible one. (Post, pp. 604-608.) Cases cited and approved: Woolwine v. Mason, 128 Tenn., 43; Laun v. Pac. Mut. L. Ins. Co., 131 Wis., 555; McNaughton v. Des Moines L. Ins. Co., 140 Wis., 214; Rideout v. Mars, 99 Miss., 109; Security Life & An. Co. v. Costner, 149 N. C., 293; Security Life I. Co: v. Allen, 170 S. W. 131. Cases cited and distinguished: Pennypacker v. Capital Ins., Co., 80 Iowa, 56; Pangborn V. Westlake, 36 Iowa, 546.
137 Tenn. 609Co-Operative Stores Co. v. United States Fidelity Guaranty Co. (1917)
1. INSURANCE. Fidelity insurance. Action. Evidence. In action on fidelity insurance bond, evidence and letters held to show that agent of defendant company changed the bond contract from one requiring strict proof as to fraud or dishonesty to one requiring proof only of merchandise shortage of an employee. (Post, pp. 620, 621.) 2. INSURANCE. Fidelity bond. Construction. A schedule bond insuring the fidelity of the managers of retail grocery stores operated by insured corporation in four different States was a fidelity bond, and to be construed as an insurance contract. (Post, pp. 621, 622.) Cases cited and approved: Railroad v. Fid. & Guar. Co., 125 Tenn., 690; Insurance Co. v. Dobbins, 115 Tenn., 239; Royal Ins. Co. v. Vanderbilt Ins. Co., 102 Tenn., 264; Anderson v. Fitzgerald, 4 H. L. Cas., 484; American Surety Co. v. Pauly, 170 U. S.„ 133; Railroad v. Fid. & G. Co., 125 Tenn., 690. Cases cited and distinguished: Hunter v. Guaranty Co., 125 Tenn.,. 581; Green v. Guaranty Co., 135 Tenn., 121. 3. CONTRACTS. Written contracts. Modification. After a written contract is made, it may be modified by the express words of the parties in writing, as well as by parol, notwithstanding the contract itself provides that it cannot be subsequently modified. (Post, pp. 622-625.) Cases cited and approved: Insurance Co. v. Fallow, 110 Tenn., 735; Pechner v. Phoenix Co., 65 N. Y., 195; Insurance Co. v. Wilkinson, 13 Wall., 222; Westchester Fire Ins. Co. v. Earle, 33 Mich., 153; Ins. Co. v. Norton, 96 TJ. S., 234; Pitney v. Glens Falls. Ins. Co., 65 N. Y., 25. Cases cited and distinguished: De Rossett Hat Co. v. Insurance Co., 134 Tenn., 211; Am. Cent. Ins. Co. v. McCrea, Maury & Co., 76 Tenn., 524. 4. INSURANCE. Authority of agent. An insurance agency company advertising as general agents of a fidelity insurance company, having its office in the same city as the headquarters of a corporation operating retail grocery stores and representing that it had authority from the surety company to act as its general agent, had authority to change a schedule bond of the grocery store corporation, covering the fidelity of the managers of its retail grocery stores in four States, from a bond requiring strict proof of fraud and dishonesty to one requiring proof only of a manager’s merchandise shortage. (Post, pp. 625-632.) Cases cited and approved: Murphy v. Continental Life Ins. Co., 62 Tenn., 440; Southern Life Ins. Co. v. Booker, 56 Tenn., 606; Sugg v. Assurance Soc., 116 Tenn., 658; Markey v. Mut. Benefit Life Ins. Co., 103 Mass., 78; Ermentrout v. Girard Fire & Marine Ins. Co., 63 Minn., 305; Rivara v. Queen’s Ins. Co., 62 Miss., 720; Phoenix Ins. Co. v. Boudre, 67 Miss., 620; Am. Cent. Ins. Co. v. McCrea, Maury & Co., 76 Tenn., 546; Life Ins. Co. v. Fallow, 110 Tenn., 730; Foresters v. Cunningham, 127 Tenn., 529. Cases cited and distinguished : Life Ins. Co. v. Fallow, 110 Tenn., 720; Murphy v. So. L. Ins. Co., 62 Tenn., 440; Butler v. Maples, 76 U. S. 766; Walsh v. Hartford Fire Ins. Co., 9 Hun., 421. 5. APPEAL AND ERROR. Objections below. Where plaintiff recovered in suit on fidelity insurance bond, defendant’s assignment of error that the court of civil appeals erred in affirming the chancellor and in rendering judgment against defendant was too broad and general to be considered. (Post, p. 632.) 6. ACTION. Stay. ■ Pendency of prior action. In suit on fidelity insurance bond, it was not error not to stay the suit until the termination of litigation at another place between complainant and the alleged defaulter concerning his shortage, in which suit the employee was attempting by cross-bill to recover a certain amount for stock which he alleged he had bought from certain agents of insured under alleged circumstances of fraud, there being no allegation of insolvency as to insured or the employee, and no reason being shown why the insurer did not file a cross-bill in the instant case or could not bring later an independent suit. (Post, p. 632.)
137 Tenn. 633State ex rel. Trelkeld v. Casotti (1917)
NUISANCE. Violation of injunction. Penalty. Statute. The penalty for violating injunction issued under the Nuisance Act (Laws 1913 [2d Ex. Sess.] c. 2) section 4, providing that violation thereof “shall be a contempt of court and punished as hereinafter provided,” is that prescribed by section 7 for contempt of court, although the latter section does not expressly mention the breach of injunction covered by section 4.
137 Tenn. 637Memphis St. Ry. Co. v. Bernstein (1917)
FROM SHELBY. Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and hy certiorari to the Court of Civil Appeals from the Supreme Court. —Bek L. Capell, Judge.
137 Tenn. 642Yates & Donelson Co. v. City of Memphis (1917)
1. EMINENT DOMAIN. Right to compensation. Closing street. Where a street abutting plaintiff’s flour mill is closed by reason of a cut due to construction -of a subway, he is entitled to compensation. (Post, p. 645.) Case cited and approved: Ill Cent. R. Co. v. Moriarity, 135 Tenn., 446. 2. EMINENT DOMAIN. Closing street. Damages.. Basis. Factors'. Damages consequent • upon a taking of property or a property should be assessed upon the basis of the mill being a going concern. (Post, pp. 646-647.) Case cited and approved: Railroad v. Michaels, 126 Tenn., 702. 3. EMINENT DOMAIN. 'Value or depreciation. Measure of damages. Damages consequent upon a taking of property or a property right are fixed on the value or depreciation of' the property affected for any use for which it would ordinarily sell in the market. (Post, p. 647.) 4. EM 1N ENT DOM Al N. Closing street. Assessment of damages. Fixtures. In estimating the damages to plaintiff’s abutting flour mill from closing a street, appliances essential to complete the mill as a workable unit should be deemed part of the realty; the rule applicable being that enforceable between vendor and vendee. (Post, pp. 647. 648.) Cases cited and approved: Re Post Office Site, 210 Fed., 832; Jackson v. State, 213 N. Y., 34. Case cited and distinguished: White v. Cincinnati, etc., R. Co., 34 Ind. App. 287, 5. EMINENT DOMAIN. Closing street. Assessment of Damages. Movable appliances. In estimating the damages to plaintiffs .abutting flour mill from closing street, personal effects, tools, and movable appliances are not to be considered part of the plant, unless actually taken. (Post, pp. 648, 649.) Case cited and approved: Missouri Pac. ft: Co. v. Porter, 112 Mo., ■ 361.
137 Tenn. 650Danheiser v. Germania Savings Bank & Trust Co. (1917)
1. CONTRACTS. Consideration. Sufficiency. Agreement not to appeal. Where complainant brought suit to have the will of his wife declared ineffiective as to certain personalty valued at $5,000 or $6,000, on the ground that it was her general estate and belonged to him by virtue of his marital rights, the withdrawal by the executors of their appeal from a decree in his favor was a sufficient consideration for his agreement to place $500 in trust, th.e interest to go to him during his life and at his death to ■.go to one of the beneficiaries under the will; complainant to have the right to use the money if needed for his support. {Post, pp. 655-660.) Cases cited and approved: Warren v. TVilliamson, 67 Tenn., 427; Rector, etc., of St. Mark’s Church v. Teed, 120, N. Y., 583; Palmer v. North, 35 Barb. (N. Y.), 282; Bellows v. Sowles, 57 Vt., 164; Prater v. Miller,' 25 Ala., 320. Case cited and distinguished: Turner v. Denham, 63 Tenn., 569. 2. CONTRACTS. Consideration. Adequacy. To constitute a sufficient consideration, the benefit conferred or the detriment suffered- by the promisee need not be equal to the responsibility assumed, as any consideration however small, will .support a promise, and in the absence of fraud the courts, will not undertake to regulate the amount of the consideration. {Post, pp. 660-662.) Case cited and distinguished: Lawrence v. McCalmont, 2 How., 426. 3. CONTRACTS. Requisites. Certainty. Complainant brought suit to have the will of his wife declared ineffective as to certain personalty, and, after a decree in his favor, agreed, in consideration of the executors’ withdrawal of their .appeal, to create a trust in $500 of the money, the interest to go to him during his life, and at his death to one of the beneficiaries under the will if living, or to his heirs, if dead, the details of the trust to be stipulated by the executors. The agreement further provided that if complainant lived long enough to consume the entire estate left by his wife under the terms of the will, the $500 might be intrenched upon. Held, that the agreement was not void for vagueness and uncertainty, as the fund was certain, the parties were all named, and their respective rights fixed, and the executors were empowered to prepare further details if necessary. (Post, p. 662.)
137 Tenn. 663Roland v. State (1917)
.CRIMINAL LAW. Argument of counsel.' Appeals to race prejudice. On the trial of a negro for an assault upon a white woman, a case calculated to excite the passions of the jurors, it was inexcusable for the assistant district attorney in his argument to say, after animadverting upon negro witnesses, that, “even at that, I have more respect for these nigger witnesses than I have for these two white witnesses who have volunteered to come here and testify in favor of a nigger that he has a good reputation,” especially where the court merely remarked that the witnesses were not volunteers if they were subpoenaed and failed to take any action on the objection that the statement was an appeal to prejudice. Cases cited and approved: Hardaway v. State, 99 Miss., 223; Tan-nehill v. State, 159 Ala., 51; Taylor v. State, 50 Tex. Cr. R. 560; - State v. Lee, 130 La., 477; State v. Cook, 132 Mo. App., 167; St. Louis, I. M. & S. R. Co. v. Briggs, 87 Ark., 581; Harda-way v. State, Ann. Cas., 1913D.
137 Tenn. 667Nolan v. H. E. Wilcox Motor Co. (1917)
1. BILLS AND NOTES. Accommodation paper. “Accommodation party.” Liability of “indorser.” Under Negotiable Instrument Law (Laws 1899, cli. 94) section 29, defining an accommodation party as “one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person,” section 63, providing that a person placing his signature on an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates his intention to be bound in some, other capacity; and section 115(3), providing that notice of dishonor is not required, where instrument was made or' accepted for accommodation of indorser, plaintiff president and stockholder, who indorsed a note of the corporation before delivery was an accommodation indorser for the corporation, not for himself, and failure to give him notice of dishonor relieved him from liability barring defendant’s right to offset note. (Post, pp. 669-677.) Cases cited and approved: Bank v. Busby, 120 Tenn., 652; Deahy-v. Choquet, 28 R. I. 338; Skagit State Bank v. Moody, 86 Wash., 286; Case cited and distinguished: McDonald v. Luck-enbach, 170 Fed., 434. 2. BILLS AND NOTES. Accommodation indorser. Insolvency of maker. Demand and notice. Although accommodation indorser on note of corporation was one of its principal stockholders and president thereof, insolvency of corporation would not excuse demand and notice, which were conditions precedent to his liability. (Post, pp. 677, 678.) Cases cited and approved: Alton v. Robinson, 21 Tenn., 340; Hudson Furniture Co. v. Harding, 70 Fed. 468; Groton v. Dall-heim, 6 Me. 476; Sanford v. Dillaway, 10 Mass. 52; Farnum v. Fowle, 12 Mass., 89; Barton v. Baker, 1 Serg. & R., 334; Buck y. Cotton, 2 Conn., 126; State Bank v. Napier, 25 Tenn., 270; Apperson & Co. v. Union Bank, 44 Tenn., 445; F. Lane & Co. y. Bank of West Tenn., 56 Tenn., 419.
137 Tenn. 679State v. Crockett (1917)
FROM HENRY. Appeal from the Circuit Court of Henry County.— Thos. E. Hammosd, Judge.
137 Tenn. 685Life & Casualty Ins. v. King (1917)
1. INSURANCE. Application as part of contract. Necessity of attaching. Acts 1907, chapter 441, requires .every policy of insurance issued by any company, except fraternal beneficiary associations and mutual insurance companies, to contain the entire contract of insurance. -Chapter 457, passed on the same day, provides, in section 1, subd. 4, that all statements by insured shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall avoid the policy unless contained in the written application, and that a copy of such application shall be indorsed upon or attached to the policy. Section 6 provides that that act shall not apply to industrial policies or to corporations or associations operating on the assessment or fraternal plan. Held, that as this last act relieves industrial insurance companies from the -necessity of attaching their applications to their policies, and as the two statutes should be construed in pari materia, chapter 441 does not require the application to be attached to an industrial policy in order to malee it a part thereof. (Post, pp. 695-697.) Acts cited and construed: Acts 1907, ch. 441. 2. INSURANCE. Application as part of contract. “Industrial insurance.”. A company which issued a policy providing for a weekly premium of twenty-five cents, maximum weekly allowances for sickness or accident of $5, and payment of $70 in case of death, was within the provision of Acts 1907, chapter 457, excepting industrial policies from the requirement that a copy of-the application shall be indorsed upon or attached to the policy, since .“industrial insurance” means small policies issued in consideration of weekly payments (quoting Words and Phrases, Second Series, Industrial Insurance). (Post, pp. 697, 698.) Cases cited and approved: Bird v. State,-131 Tenn., 518; State v. Chadwick, 131 Tenn., 355. Case cited and distinguished: Russell v. Insurance Co., 176 N. Y., 178. ■ 3. INSURANCE. Conditions. Delivery while insured is in good health. Validity. A condition of an insurance policy that the applicant must be alive and “in sound health” when the policy is delivered is not void for indefiniteness. (Post, pp. 698, 699.) Cases cited and approved: Barnes v. Fid. Mut. Life Ass’n., 191 Pa. 618; Horne v. John Hancock Mut. L. Ins. Co., 53 Pa. Super. Ct., 330; Rand v. Life Assurance Society, 97 Tenn., 291; Insurance Co. v. Lauderdale, 94 Tenn.,, 635; Knights of. Pythias v. Cogbill, 99 Tenn., 28; Eminent Household v. Prater, 24 Okla., 214. 4. INSURANCE. Conditions. Delivery while insured is in “good health.” Construction. The term “good health,” as used in a provision of a policy re quiring insured to he in good health when the policy is delivered, means that the applicant has no grave, important, or serious disease, and is free from any ailment that seriously affects the general soundness or healthfulness of the system, and a mere temporary indisposition which does not tend to weaken or undermine the constitution does not render the policy void. (Post, pp. 698, 699.) 5. INSURANCE. Life insurance. Risks covered. A provision in an insurance policy that no benefits will be paid for sickness or death resulting directly or indirectly from diseases contracted or injuries received before the delivery of the policy is valid. (Post, pp. 699, 700.) 6. INSURANCE. Avoidance of policy. Misrepresentation as to health. Where an application for life insurance contained a declaration that the answers therein were were strictly correct and truthful, and an agreement that, if any misrepresentation or fraudulent or untrue answers had been made, the agreement should be null and void, and the policy contained a similar provision, and further provided that the applicant must he alive and in sound health when the policy was delivered, and that no benefits would be paid for sickness or death' resulting, directly or. indirectly from diseases contracted or injuries received before the delivery of the policy, and it appeared that insured had Hodgkin’s disease, from which he subsequently died, when examined by the agent and when -the policy was issued, that he knew he had such disease and had been operated on therefor, but that he failed to give this information to the company in his application, and falsely represented that he had consulted a doctor only for indigestion, the policy was void. {Post, pp. Y00, 701.) 7. INSURANCE. Estoppel to urge forfeiture. Knowledge of facts. As a general rule, where an insurer at the time of the issuance of a policy has knowledge of existing facts, which if insisted upon would ^ invalidate the contract from its inception, such knowledge constitutes a waiver of conditions in the contract inconsistent with such facts, and the insurer is estopped thereafter from asserting the breach of such conditions. {Post, pp. 701, 702.) Cases cited and approved: Wisotzkey v. Niagara F. Ins. Co., 112 App. Div. 599; McCarty v. Piedmont Mutual Ins. Co., 81 S. C., 152; Fósmark v. Equitable F. Ass’n., 23 S. D., 102; Irwin v. Westchester F. Ins. Co., 58 Mise. Rep., 441; Fludd v. Equitable L. Assurance Soc., 75 S. C., 315. Cases cited and distinguished: Damms v. Humboldt Fire Ins. Co., 18 Ann. Cas., 687; Gurnett v. Atlas Mut. L. Ins. Co., 124 Iowa, 547. 8. INSURANCE. Estoppel to urge forfeiture. Knowledge of soliciting agent. The general rule applies where the agent soliciting the insurance knows of the existing facts, such knowledge being imputable to the insurer. {Post, pp. 701, .702.) 9. INSURANCE. Estoppel to urge forfeiture. Facts putting on inquiry. Where an insurance company, when a policy is issued, has information which, if pursued with reasonable diligence, would lead to a discovery of the true state of facts regarding the health of insured or other matter existing at the time upon which it is sought to base a forfeiture of the insurance or a defense, it is estopped to assert such forfeiture or such defense. (Post, pp. 702, 703.) Cases cited and approved: North British, etc., Co. v. Steiger, 124 -Ill., 81; Gandy v. Orient Ins. Co., 52 S. C. 224; Morrison v. Wis. Odd Fellows Mut. L. Ins. Co., 59 Wis., 166; Porter v. Ins. Co. of N. A., 29 Pa. Super. Ct., 75. 10. INSURANCE. Estoppel to urge forfeiture. “Wen.” At the time application was made for life insurance, insured was suffering from Hodgkin’s disease, from which he subsequently died, and which manifested itself by swelling in the neck, and insured told the soliciting agent that none of the companies seemed to want to take him on account of the knot in his neck. It did not appear that he had ever been’ rejected by any’ company or that he so told the agent. The agent not being a medical man, and not having any true conception of the meaning of the small knot, supposed it to be and reported it to the company as a “wen,” which is an indolent encysted tumor of the skin, especially a sebaceous cyst. Held, that there was nothing sufficiently definite in the information given the agent to put the company on inquiry, and -it was not estopped to insist upon a forfeiture. (Post, pp. 703, 704.)