Volume 138 — Tennessee Reports

<p>FROM. SHELBY.'</p> <p>Appeal from the Chancery Conrt of Shelby County to the Court of Civil Appeals, and by certiorari to the ■ Court of Civil Appeals from the Supreme Court. —Feancis Fentbess, Chancellor.</p>

<p>1. QUIETING TITLE. Title to support.</p> <p>The requisites of a bill to quiet possession are that the complainant must have either title or actual possession; actual possession being sufficient. (Post, pp. 23, 24.)</p> <p>Acts cited and construed: Acts 1877, ch. 97.</p> <p>Cases cited and approved: Railway &■ Light Co. v. O’Fallen, 130 Tenn., 270; Lieberman, Loveman & O’Brien v. Clark, 114 Tenn., 117; Walker v. Fox. 85 Tenn., 154; Kane v. Vandenburgh, 1 Johns. Ch. (N. Y.), 12; Hughes v. Merton College, 1 Ves., 188; Mitchell v. Dors, 6 Ves., 147.</p> <p>Cases cited and distinguished: Jerome v. Ross, 7 Johns, ch. (N.Y.),. 315.</p> <p>2. QUIETING TITLE. Right of action. Possession,</p> <p>One whose fences are being torn down, if in actual possession, may bring a bill to quiet his possession. (Post, pp. 23, 24.)</p> <p>3. QUIETING TITLE. Possession, Jurisdiction of chancery,</p> <p>Since Act 1877 (Laws 1877, chapter 97), giving to the chancery court concurrent jurisdiction with the circuit court in all cases except those involving unliquidated damages for injury to persons, property, and character, the chancellor has jurisdiction to quiet possession of land. (Post, pp. 23, 24.)</p> <p>4. QUIETING TITLE. Continuous actual possession, Evidence,</p> <p>Complainant, in a bill to quiet possession to' land, who claimed under a lease and who raised several crops upon the land during the summer, and who fenced it on three sides, there being a drain or small branch on the other boundary insufficient as a fence, and who dug a well, and who, after obtaining a prior injunction, erected a house, had no such continuous actual possession as would enable him to maintain a bill to quiet his possession. (Post, pp. 24-27.)</p>

<p>FROM SHELBY</p> <p>Appeal from the Chancery Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Hon. F. H. Heiskell, Chancellor.</p>

<p>FROM MADISON.</p> <p>Appeal from the Chancery Court of Madison County.- — I. W. Ross, Chancellor.</p>

<p>FROM SHELBY</p> <p>Appeal from the Chancery Court of Shelby County to the Court of Civil Appéals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —P. H. Heiskell, Chancellor.</p>

<p>CORPORATIONS. Right to purchase stock from shareholders.</p> <p>By-laws of a real estate development corporation, organized under Laws 1875, chapter 142, section 23, permitting shareholder to sell stock hack to corporation, which resulted in the diminution of capital stock, field invalid in view of its charter which only empowered corporation to take its own stock in payment for real estate, and limited powers to those especially granted or necessarily implied, and statutes specifically providing a method for reducing capital stock, and upon tendering hack certificates, corporation could recover amount paid the stockholder in thus repurchasing stock.</p> <p>Cases cited and approved: Trevor v. Whitworth, L. R., 12 App. Cas., 409; Cartwright v. Dickinson, 88 Tenn., 476; Herring v. Ruskin Co-operative Ass’n, 52 S. W., 327; Schulte v. Boulevard Gardens Land Co., 164 Cal., 464; Kelley v. York, etc. Co., 94 Me., 374; Wilson v. Torchon Lace‘& Mercantile Co., 167 Mo. App., 305; Maryland Trust Co. v. Nat. Mechanics’ Bank, 102 Md., 608; Dalton Grocery Co. v. Blanton, 8 Ga. App., 809; Re-Tiehenor-Grand Co., 203 Fed., 720; Green v. Ashe, 130 Tenn., 615.</p>

<p>prom Mcnairy.</p> <p>Appeal from the Circuit Court of McNairy County. —S. J. Everett, Judge.</p>

<p>PROM MADISON.</p> <p>Appeal from the Chancery Conrt of Madison County. — E. L. Bullock, Special Chancellor.</p>

<p>FROM CARROLL.</p> <p>Appeal from the Circuit Court of Carroll County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —Thos. E. Harwood, Judge.</p>

<p>FROM OBION.</p> <p>Error to tlie Circuit Court of Obion County.— Jos. E. Jones, Judge.</p>

<p>1. COUNTIES. Officers and agents. Ouster act.</p> <p>Acts 1907, chapter 545, section 1, provides that in all counties having a population of 36,100 and not over 38,000, etc., the quarterly county court may appoint a county engineer, and subsequent sections provide his duty looking to the construction and keeping in repair of the public roads of the county. Acts 1909, chapter 351, also provides for the appointment of a county engineer by the quarterly county court in such counties, and prescribes his duties, without differing materially. from the act of 1907. The statutes do not expressly declare a purpose on the part of the general assembly to create a county office or a public office of any character, and do not make the appointment of a county engineer mandatory or fix the term during which he shall be employed or the compensation which he shall receive. Ouster. Act (Public Acts 1915, chapter 11) section 1, provides for the removal for misconduct of persons holding an office of trust, or profit under and by virtue of any of the laws of the State of Tennessee, etc. Defendant was employed by the quarterly county court of Madison county as county engineer under a contract which could be terminated by either party on thirty days’ notice. Held, that the defendant was not a person holding an office of trust or profit within the meaning of the Ouster Act, but was a mere employee under contract with the county; the statute authorizing his appointment being necessary in order that his compensation might become a valid charge against the county. (Post, pp. 117, 118.)</p> <p>Acts cited and construed; Acts 1907, ch. 545, sec. 1; "Acts 1915, ch. 11; Acts 1909, ch. 361.</p> <p>Constitution cited and construed: Act 11, sec. 17.</p> <p>1. COUNTIES. Officers and agents. Ouster act.</p> <p>In view of Const. 1870, article 11, section 17, providing that no county office created by the legislature shall he filled otherwise than by the people or the county court, an office of trust or profit, under the laws of Tennessee within the meaning of the Ouster Act (Acts of 1915, chapter 11) may be created by one created by the Constitution or by the act of the general assembly, and the quarterly county court has no power to create such office, though power may be granted to it to fill a county office after the same has been validly created by the legislature. {Post, pp. 118-122.)</p> <p>Cases cited and approved: Jones, Purvis & Co. v. Hobbs et. al., 63 Tenn., 113; Prescott v. Duncan, 126 Tenn., 106.</p>

<p>FROM SHELBY.</p> <p>Appeal from tie Girenit Court of Shelby County.— A. B. Pittman, Judge.</p>

<p>FROM TIPTON.</p> <p>Appeal from tlie Chancery Court of Tipton County to tlie Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court —Colin P. McKinney, Chancellor.</p>

<p>1. CERTIORARI. Petition. “Duly sworn to.”</p> <p>The words “duly sworn to,” in Acts 1907, chapter 82, section 8, requiring a petition for a review by certiorari of a decision of the court of civil appeals to he duly sworn to, mean that the petition '. must be verified by affidavit. (Post, p. 137.)</p> <p>Acts cited and construed: Acts 1907, ch. 82, sec. 8.</p> <p>2. CERTIORARI. Petition. “Duly sworn to.”</p> <p>Acts 1907, chapter 82, section 8, providing that a petition for a review by certiorari of a decision of the court of civil appeals must be duly sworn to, is not complied with by filing a petition which is wholly printed, including the signature to the petition, affidavit, and jurat. (Post, p. 138.)</p>

<p>PROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby County. —F. H. Heiskell, Chancellor.</p>

<p>FROM MADISON.</p> <p>Appeal from the Chancery Court of Madison county. — J. W. Eoss, Chancellor.</p>

<p>1. MUNICIPAL CORPORATIONS. Public Contract. Lien-Material furnished. Coal. Bonds.</p> <p>Coal furnished to a construction company engaged on a public contract for use in operating its engines’ boilers and the other machinery is material used in the performance of a contract within Acts 1899, chapter 182, providing that no contract shall be let for any public work until the contractor shall execute a bond to pay for all the material and labor used íl such contract, and that any laborer or furnisher of material may bring an action'on such bond. (.Post, pp. 156-160.)</p> <p>Acts cited and construed: Acts 1899, ch. 182; Acts 1891, ch. 98; Acts 1883, ch. 220.</p> <p>Cases cited and approved: Johnson v. Starrett, 127 Minn., 138; Shultz v. Quereau Co., L. R. A., 1915 E., 986; Standard Boiler Works v. Nat. Surety Co., 43 L. R. A. (N. S.), 162; Sampson Co. v. Commonwealth, 202 Mass., 326; Thomas v. Commonwealth, ■ 215 Mass., 369; Powder Co. v. Railroad, 113 Tenn., 382; Luttrell v-. Railroad, 119 Tenn., 492.</p> <p>2. MUNICIPAL CORPORATIONS. Public contract. Bonds. Liens. Privity.</p> <p>Under Acts 1899, chapter 182, protecting laborers or furnishers fo material on public works, and providing that any laborer or furnisher may bring an action on the contractor’s bond and have a recovery in his own name, an action by a furnisher of coal to a' contractor against him and the surety cannot be defended on the ground of want of privity between plaintiff and surety. (Post, p. 160.)</p> <p>Case cited and approved: Templeton v. Nipper, 107 Tenn., 548.</p>

<p>1. MASTER AND SERVANT. Injuries to servant. Doctrine of "res ipsa loquitur.”</p> <p>Plaintiff’s decedent, a workman engaged in the construction of a concrete pier, was found dead at the bottom of the air shaft running to the caisson at the bottom of the river, together with all the other members of the shift. A small fire had started in the woodwork on top of the caisson, and there was evidence, of leaks in the air pipe. There was no gas in the pipe ten minutes before the accident occurred, nor was there evidence of any defect in the apparatus. Plaintiff introduced witnesses who testified to the circumstances immediately connected with the accident as well as those antecedent and subsequent thereto. Held, that a peremptory instruction in favor of defendants was not error; the doctrine of res ipsa loquitur not applying where there is evidence from which negligence may be inferred, such doctrine contemplating that where the evidence shows an injury inflicted, and also the physical thing inflicting it, and that thing does not usually or in the ordinary course produce such a result where due care is exercised by those in charge of it, it may be inferred that they failed to exercise such due care. (Post, pp. 177-181.)</p> <p>Cases cited and approved: Fitzgerald v. Southern R. Co., 6 L. R. A. (N. S.), 337; Byers v. Carnegie Steel Co., 16 L. R. A. (N. S.), 214; Railroad v. Fort, 112 Tenn., 432; Railway Co. v. Saulsbury, 115 Tenn., 402; Burke v. L. & N. R. R. Co., 54 Tenn., 451; Martin v. McCrary, 115 Tenn., 316; Turnpike Co. v. Yates, 108 Tenn., 428; Mitchell v. Railroad Co,, 100 Tenn., 329; Gorsuch, Adm’r. v. Swan, 109 Tenn., 36; Chattanooga Electric Railway Co. v. Mingle, 103 Tenn., 667; Menphis Street Railway Co. v. Kart- . right, 110 Tenn., 277; McHarge v. Newcomer, 117 Tenn., 595; Weeks v. McNulty, 101 Term., 495-500; Railway Co. v. Manchester Mills, 88 Tenn., 653; De Glopper v. Railroad & Light Co., 123 Tenn., 633; Memphis St. Ry. Co. v. Cayell, 135 Tenn., 462; Railroad Co. v. Porter, 117 Tenn., 13; Railroad v. Kuhn, 107 Tenn., 114-117; Transit Co. v. Venable, 105 Tenn., 460; Railroad v. Mitchell, 58 Tenn., 404.</p> <p>2. MASTER AND SERVANT. Injuries to servant. Doctrine of res ipsa loquitur.</p> <p>The doctrine of res ipsa loquitur may apply as between master and servant where proof of the injury and of the physical thing inflicting it also excludes the presumption in favor of the master having performed his duty in furnishing a safe place to work and suitable tools to work with as well as the servant’s own ■ negligence, that of his fellow servants and his assumption of risk. {Post, pp. 181-184.)</p> <p>Cases cited and approved: Gill v. Brown, 130 Tenn., 174; Railroad v. Hayes, 117 Tenn., 680; Railroad v. Lindamood, 111 Tenn., 457; Railroad v. Stewart, 81 Tenn., 432; Railroad v. Northington, 91 Tenn., 56.</p> <p>3. NEGLIGENCE. Res ipsa loquitur. “Burden of proof.”</p> <p>Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an aifirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is for the plaintiff; the term “burden of proof” having two distinct meanings as to the duty of establishing the truth of a given proposition by such a quantum of evidence as the law demands, and second to the duty of producing evidence at any stage of the trial in order to make or meet a prima facie case (quoting Words and Phrases, Second Series — Burden of Proof). {Post, pp. 184-193.)</p> <p>Cases cited and approved: Cleveland, C. C. & St. L. R. Co. v. Had-ley, 16 L. R. A. (N. S.), 527; Hughes v. Atlantic City & Shore Railroad Co., L. R. A. 1916 A, 930-940.</p> <p>Cases cited and distinguished: Chicago Union Traction Co. v. Well, 218 Ill.,- 9; Foss v. McRae, 105 Me., 140; Colston v. Bean, 28 Vt., 283; Carroll v. Boston Elevated R. Co., 200 Mass., -527; Klunk y. Hocking Valley By. Co., 74 Ohio St., 125; Powers v. Russell 30 Mass., 76; Sweeney v. Erving, 228 U. S,, 233.</p> <p>4. TRIAL. Correction of verdict. Evidence.</p> <p>Where there is no evidence to sustain a count in a complaint the court might properly direct a verdict for defendant, although he had previously overruled a demurrer to such count. (.Post, p. 193.) ,</p> <p>5. EVIDENCE. Presumptions.' Laws of sister States.</p> <p>Where in a personal injury ease the laws of another State apply, such laws must he presumed to he the same as those of the ' forum when not formally proven. (Post ,pp. 193, 194.)</p>

<p>1. HUSBAND AND WIFE. Nonsupport. Criminal prosecutions. indictment.</p> <p>An indictment, charging that defendant did “willfully and without good cause neglect or fail to provide for his wife according to his means, or leave her destitute or in danger of becoming a public charge,” held to charge a misdemeanor under the direct provisions of Acts 1915, chapter 125. (Post, p. 198.)</p> <p>Acts cited and construed: Acts 1915, ch. 125.</p> <p>2. HUSBAND AND WIFE. Nonsupport. Statute. “Good cause.”</p> <p>Acts 1915, chapter 125, making it a misdemeanor for a husband to willfully and without good capse neglect or fail to provide for his wife according to his means, or leave her destitute or in danger of becoming a public charge, is not fatally uncertain in that the words “without good cause” are not defined; such phrase meaning without cause sufficient in law to excuse the failure to provide. {Post, pp. 198, 199.)</p> <p>3. HUSBAND AND WIFE. Nonsupport. Statute.</p> <p>Acts 1915, chapter 125, denouncing as a misdemeanor nonsupport of a wife by her husband, does not apply to a husband who has no employment, nor property, unless he had intentionally dispossessed himself thereof. {Post, pp. 199-202.)</p> <p>Oases cited and approved: State v. Dvoracek, 140 Iowa, 266; State v. Stout, 139 Iowa, 557; State v. Baker, 182 La., 801; Commonwealth v. Ham, 156 Mass., 485; Samuelson v. State, 116 Tenn., 475.</p> <p>Cases cited and distinguished: State v. Williams, 136 Mo. App., 304; Ex parte Smythe, 56, Tex. Cr. B,., 375; United States v. Brewer, 139 U. S., 278.</p> <p>4. CONSTITUTIONAL LAW. Departments of government. Delegation of legislative power.</p> <p>Acts 1915, chapter 125, making it a misdemeanor for any husband to willfully and without good cause neglect or fail to provide for his wife according to his means, does not delegate to the courts and juries the power to determine what is good cause, in violation of Constitution article 2, section 2, prohibiting any person or persons belonging to one department of government from exercising any of the powers belonging to any other department. (Post, pp. 202, 203.)</p> <p>Constitution cited and construed: Const, art. 2, sec. 2.</p> <p>5. CONSTITUTIONAL LAW. Departments of Government. Pardoning power.</p> <p>Acts 1915, chapter 125, section 5, providing that at any time during the confinement of a husband for nonsupport of his wife he may be relieved from imprisonment upon giving bond, does not violate Constitution article 3, section 6, conferring power on the Governor to grant reprieves and pardons. {Post, pp. 203, 204.)</p> <p>Constitution cited and construed: Const, art. 3, sec. 6; Art. 11, see. 17.</p> <p>6. CONSTITUTIONAL LAW. Imprisonment for debt. Statutes.</p> <p>Acts 1915, chapter 125, making it a misdemeanor for a husband to neglect to support his wife without good cause, does not violate Constitution article 1, section 18, providing that the legislature shall pass no law authorizing imprisonment for debt in civil eases. (Post, p. — .)</p> <p>Case cited and construed: State v. Latham, 136 Tenn., 30.</p> <p>Constitution cited and construed: Sec. 18, art. 1.</p>

<p>PROM KNOX.</p> <p>Appeal from the Circuit Court of Knox County.— Yon A. Huffaker, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Circuit Court of Knox County. —Yon. A. Huffakee, Judge.</p>

<p>CONSPIRACY. Bulk sales law. “Collusion.”</p> <p>A bill charging defendants with conspiring to defeat the operation of the Bulk Sales Law (Acts 1901, chapter 133), and thereby to obtain a preference in behalf of one defendant to the exclusion and injury of complainant and all other creditors by procurement of a civil warrant and proceedings relating ■ thereto in favor of one defendant and against the other stated a cause of action, and charged a collusion; a “collusion” being defined as a deceitful agreement, or compact between two or more persons, for the one party to bring an action against the other for some evil purpose so as to defraud a third person of his rights; it is a secret understanding between two parties who plead or proceed fraudulently against each other to the prejudice of a third person, and in general may be defined as a secret agreement and co-operation for a fraudulent purpose, or as elsewhere defined an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.</p> <p>1. Acts cited and construed: Acts 1901, ch. 133.</p>

<p>1. WILLS. Contests. Evidence.</p> <p>In view of the opportunity for falsification, and as it opens the doors to fraud, parol testimony as to conversations with testator, either before or after the malting of a will, as to his purposes or reason for malting a disposition, or failing to make a disposition of property, is not admissible to attack the instrument. (Post, pp. 222, 223.)</p> <p>3. WILLS. Attacks. Pretermitting children.</p> <p>As there is no rule requiring equality among children, and Thompson’s Shannon’s Code, sections 3925, 3926, provide for relief only in case of pretermission of unborn children, a will ■ is not open to attack on the ground that testator executed it, mistakenly believing that his only son was dead, where such mistake did not appear from the will itself and could only be established by parol testimony. (Post, pp. 223-226.)</p> <p>Cases cited and approved: Burns v. Allen, 93 Tenn., 149; Reeves v. Hager, 101 Tenn., 714; Wilson v. Fosket, 6 Mete. (Mass.), 400; Gifford v. Dyer, 2 R. I., 99; Campbell v. French,' 3 Yes. Jun., 321; Eatherly v. Eatherly, 41 Tenn., 462; Comstock v. Hadlyme Society, 8 Conn., 254.</p> <p>Code cited and construed: Secs. 3925, 3926 (T. — S.).</p>

<p>AFFIDAVITS. Authority to take. Clerk of court. Verification of petition.</p> <p>Shannon’s Code, section 5331 (Code 1858, section 3567), declares that the circuit judges shall have power to issue writs of mandamus upon petitions supported hy affidavit made before any judge, justice of the peace, or clerk of any circuit court. Section 5865 (Code 1858, section 4050) confers on all clerks of courts power to administer oaths, hut limits that power to cases in which the authority to administer such oath is not confined to some other officer. Acts 1877, chapter 97, gave chancery courts jurisdiction in mandamus concurrent with circuit courts. Held, that as an application for mandamus to a chancery court must he by hill or petition, and so falls within section 6140, declaring that hills required to be under oath may be sworn to before any judge, clerk of court, or justice of the peace, the clerk of the chancery court may, despite the restrictions, of section 5865, administer an oath to one verifying a bill for mandamus.</p> <p>Acts cited and construed: Acts 1877, ch. 97.</p> <p>Case cited and approved: Hawkins v. Kercheval, 78 Tenn., 535.</p> <p>Codes cited and construed: Sec. 5331 (S.); Secs. 3567, 4050 (1858); Secs. 5865, 6122, 6140 (S.).</p>

<p>FROM KNOX.</p> <p>. Appeal from the Circuit Court of Knox County.— Yon. A. Hueeakee, Judge.</p>

<p>1. TRIAL. Question of law. Definition of term. Scope of authority.</p> <p>What is meant hy the term “apparent scope of an agent’s authority” in the abstract is a question of law, a matter of definition for the court. (Post, p. 224).</p> <p>2. PRINCIPAL AND AGENT. Scope of authority. Questions for jury.</p> <p>Whether facts testified to in a given case exhibited an assertion of authority by one as agent of another with his consent or acquiescence, and whether the power so asserted is a reasonable inference from express powers proved, are questions -for the jury. (Post, p. 224).</p> <p>3. CARRIERS. Ejection of passenger. Scope of authority. Questions for jury.</p> <p>Evidence held insufficient to show that it was within the apparent scope of a railway conductor’s authority to collect in cash a return fare with the going fare, so as to render the railway liable, when, after he had collected such amounts and plaintiff attempted to return on his train, she was ejected for nonpayment of fare. (Post, pp. 224-247.)</p> <p>4. CARRIERS. Ejection of passenger. Scope of authority.</p> <p>The mere fact that a railway conductor has the right to accept cash fares on a going trip from a stop which had no ticket agent did not give him the right at that time to accept fares for the return trip from a station where tickets were sold. (Post, pp.. 247, 248.)</p>

<p>PROM LOUDON.</p> <p>Appeal from the Chancery Court of London County —Hugh G. Kyle, Chancellor.</p>

<p>1. WILLS. Administration. Expenses.</p> <p>While not debts of decedent, attorneys’ fees incurred by an executor in propounding a will, may he paid out of the estate as expenses of administration, unless the executor in propounding the will was not acting in good faith. (Post, p. 257.)</p> <p>Cases cited and approved: Smith v. Haire, 133 Tenn., 343; Lassiter v. Travis, 98 Tenn., 330; Douglas v. Baber, 83 Tenn., 665; Smith v. Harrison, 49 Tenn., 2,30; Bowden v. Higgs, 77 Tenn.', 346; Cornwell v. Cornwell, 30 Tenn., 487.</p> <p>2. WILLS. Administration. Expenses.</p> <p>A widow who through fraud and undue^ influence induced her deceased husband to execute a will propounded it to probate. Thereafter, on a contest instituted by the heirs at law, the wni was defeated and another established. The widow dissented from the. true will, electing to take a homestead and dower and a year’s support. Held, that fees to attorneys of the successful contestant should be paid out of the estate as an expense of administration, for without the contest the estate would have been disposed of by the invalid will, and payment of such fees cannot be denied on the ground that it would diminish the widow’s rights as a dissenting widow. (Post, V. 257.)</p> <p>Cases cited and approved: Weed’s estate, Appeal of McGinnis, 163 Pa., 595; Seminary v. Botto, 117 Ky., 962.</p>

<p>FROM KNOX.</p> <p>Appeal from tbe Circuit Court of Knox County.— Yon A. Hubeaker, Judge.</p>

<p>1. CARRIERS. Bill of lading. Diverting shipment.</p> <p>Where cattle are hilled to one point, hut directions are given to deliver at an intermediate point, and they are carried on to the point hilled to, the shipper is entitled to damages occasioned thereby; a shipper having the right to divert a shipment, in a reasonable manner, at any point. (Post. p. 268.)</p> <p>Cases cited and approved: Michigan Southern, etc., R. Co. v. Day, 20 Ill., 375; Loveland v. Burke, 120 Mass., 139.</p> <p>Cases cited and distinguished: Sharp v. Clark, 13 Utah, 510; Steidl v. Minneapolis & St. L. R. Co., 94 Miss., 233.</p> <p>2. EVIDENCE. Contract of shipment. Parol evidence.</p> <p>A shipper’s right to divert a shipment at an intermediate point is by law implied in the shipment contract, and proof of directions to deliver at an intermediate point is not a variation of the terms of a written contract by parol evidence. (Post, p. 270.)</p> <p>Cases cited and distinguished: London, etc., R. Co. v. Bartlett, 7 H. & N. 400.</p> <p>3. APPEAL AND ERROR. Saving objections. Assignments of errors.</p> <p>Errors not assigned in the court of civil appeals cannot be assigned in the supreme court. (Post, p. 271.)</p>

<p>1.HUSBAND AND WIFE. Estate by the entireties. Damage to rental value.</p> <p>At common law and prior to the married woman’s emancipation act of 1913 (Laws 1913, chapter 26), a husband had full right to the rents, profits, and usurfuct of property held by the entire-ties, and could sue, and take the damages, for an injury to the rental value of the property. {Post, pp. 274-275.)</p> <p>Acts cited and construed: Acts 1913, ch. 26.</p> <p>Cases cited and approved: Ames v. Norman. 36 Tenn., 683; Cole Mfg. Co. v. Collier. 95 Tenn.. 115; West v. Aberdeen, etc., R. Co., 140 N. C., 620; Sheridan Gas, etc., Co. v. Pearson, 19 Xnd. App., 252; Hiles v. Fisher, 144 N. Y., 306; Abies v. Abies, 86 Tenn., 333.</p> <p>2. EXECUTORS AND ADMINISTRATORS. Assets. Damages to estate by entireties. “Chose in action.”</p> <p>Prior to the married woman’s emancipation act of 1913, where a husband sued for damages to the rental value of an estate by th^ entireties, money recovered in such suit after his death should go to the husband’s personal representative, and not to the wife, the demand being a “chose in action.” (Citing Words and Phrases, Chose in Action.) (Post, p. 276.)</p> <p>Case' cited and approved: Winters v. McGhee, 35 Tenn., 128.</p> <p>3. EXECUTORS AND ADMINISTRATORS. Actions against. Pleading. Accounting.</p> <p>In an action by distributees against the administrator for money paid to wife of deceased, it is necessary to ask an accounting to ascertain what amounts are due. (Post, p. 276.)</p> <p>4. PARTIES. Privity. Autlon against, attorney of admins-trator.</p> <p>An attorney who sues for an administrator and recovers money which he turns over to wife of deceased, mistakingly thinking it hers by right, is not in privity with the distributees and cannot be sued by them. (Post, p. 277.)</p>

<p>FROM KNOX.</p> <p>Appeal from the Chancery Court of Knox Connty. —"Will D. "Weight, Chancellor.</p>

<p>1. INJUNCTION. Restraining action at law. Requiring confession of judgment.</p> <p>It is the dnty of a judgt or chancellor, granting an injunction to restrain the prosecution of an action at law, to exact of complainant a confession of judgment in the law case as a condition of granting an interlocutory injunction retaining, however, control of the judgment so confessed, in order that no injustice may be done on the final decision of the injunction suit. {Post, pp. 292-294.)</p> <p>Cases cited and approved: Chadwell v. Jordan, 2 Tenn., ch. 635; 'Mathews v. Douglass, 3 Tenn., 136; Haynes v. Bank, 106 Tenn., 425.</p> <p>2. ESTOPPEL. Change of decision in judicial proceedings.</p> <p>Where, in a suit to restrain actions at law and to have the controversies determined in equity, the chancellor granted a fiat for an injunction without requiring complainant to confess judgment in the actions at law, defendant, by moving to dissolve the injunction unless judgment was confessed, was not estopped from thereafter demurring to the bill, on the ground that no sufficient reason was shown to justify a defeat of the jurisdiction of the law court. {Post, pp. 292-294.)</p> <p>3. INJUNCTION. Jurisdiction. Submission to jurisdiction. Effect,</p> <p>Though, in a suit to restrain actions at law and have the controversy determined in equity, defendant by moving to dismiss an interlocutory injunction unless complainant would confess judgment in the actions at law, submitted to the court’s jurisdiction over the person of defendant, this was not tantamount to submitting to the court’s jurisdiction over the subject-matter of the controversy, so as to prevent a demurrer on the ground that sufficient cause for interfering with, the jurisdiction of the law court was not shown. (Post, pp. 294-296.)</p> <p>4. EQUITY. Jurisdiction. Preventing multiplicity of suits.</p> <p>Where, though charges against complainant for lithographic work were entered on defendant’s books under its general account against complainant, this was a mere matter of bookkeeping, and the charges were separate and distinct, defendant was not precluded from separating the charges for purposes of suit, and by bringing separate actions did not subject complainant to a multiplicity of suits, so as to entitle it to have the controversies determined in equity. (Post, pp. 296-298.)</p> <p>5. EQUITY. Jurisdiction. Remedy at law.</p> <p>That, in an action for lithographic work defended on the ground that the work did not come up to the sample furnished when the contract was awarded, the proper solution of the controversy would depend upon expert testimony as to the nature and character of th; paper to be engraved, and the quality of that furnished as compared with that which defendant contracted to furnish, did not entitle defendant to have cause heard in equity, as a court of law was as competent to hear and act on sluch evidence as the court of chancery. (Post, pp. 296-298.</p> <p>6. INJUNCTION. Suit for injunction. Dismissal. Vacating confessed judgment.</p> <p>In a suit to restrain two actions at law for lithographic work, the bill denied any indebtedness, alleging, with respect to one item, that the work did not come up to the sample furnished, and that defendant had acted in such an arbitrary and unbusinesslike manner that complainant could not afford to do business with it, and, as to the second item, that complainant did not owe the account and that the reasons would be made to appear at the trial. It was further alleged that complainant was being annoyed with a multiplicity of suits, and that a proper solution of the controversy over the first item depended on expert testimony. Held,, that a demurrer on the ground that no sufficient reason was shown to justify a defeat of the jurisdiction of the law court did not go to the merits of the defenses asserted to the actions at law and hence, on the sustaining of such demurrer, judgments which complainant was required to confess in the actions at law as a condition of granting an interlocutory injunction should be vacated and set aside. (Post, pp. 296-298.)</p> <p>7. EQUITY. Demurrer to bill good in part.</p> <p>While the statement of merits respecting plaintiffs defense to the second action at law was meager, a demurrer directed to the whole bill could not invalidate this special separable part of the bill not distinctly challenged. (Post, pp. 296-298.)</p> <p>8. INJUNCTION. Suit for Injunction. Dismissal. Vacating confessed judgment.</p> <p>The power of a court of chancery, in a suit to enjoin actions at law, to vacate judgments which complainant is required to confess as a condition of the granting of an interlocutory injunction exists independent of any particular bill,- and arises out of the court’s duty to protect litigants against dangers arising from its own action. (Post, pp. 298-299.)</p>

<p>RAILROADS. Operation. Lookout.</p> <p>Shannon’s Code, section 1574, subsec. 4, provides that every railroad company shall keep the engineer, fireman, or some other , person upon the locomotive always upon a lookout ahead. Plaintiff’s decedent was killed by a locomotive on a curve in the railroad track; the engineer, being on the side of the locomotive on the outside of the curve, was unable to see deceased; and the fireman could have seen him, if he had not been engaged in shoveling coal into the fire box. Held, that the company was not negligent under the statute in not providing for a lookout, either by the engineer, fireman, or a third person charged with that undivided duty.</p> <p>Cases cited and approved: Railroad v. Nowlin, 69 Tenn., 52S; Railroad v. Stone, 54 Tenn., 470; Rogers v. Georgia R. R., 100 Ga., 699; L. & N. R. R. v. Creighton, 106 Ky:, 42; Howard v. L., N. O. T. Ry. Co., 67 Miss., 247; East Tenn., Ya. & Ga. Railroad Co. v. Bayliss, 77 Ala., 429; Railroad v. Wyrick, 99 Tenn, 500.</p> <p>Cases cited and distinguished; Railroad v. White, 73 Tenn., 540; Railroad v. Dean, 37 Tenn., 293; O’Brien v. Railroad, 119 Wis., 7.</p> <p>Code cited and construed: Sec. 1574, subsec. 4 (S.).</p>

<p>1. PARENT AND CHILD. Emancipation. “Complete emancipation.”</p> <p>“Complete emancipation” loses to the parent custody and control, and works a severance of the legal filial relation as completely as if the child were of age. (.Post, p. 310.)</p> <p>2. PARENT AND CHILD. “Partial emancipation.”</p> <p>“Partial emancipation” frees a child for only a part of the period of minority, or from only a part of the parent’s rights, or for some purposes, and not for others. (Post, pp. 310-311.)</p> <p>Cases cited and approved: Wallace v. Cox., 136 Tenn., 69; Lufkin v. Harvey, 131 Minn., 238.</p> <p>3. PARENT AND CHILD. Action for loss of services. Burden of proof.</p> <p>The burden of proof to establish a complete emancipation is upon defendant, in a-suit by the parent for loss of services of the child through injury. (Post, pp. 311-312.)</p> <p>Case cited and approved: Singer v. St. Louis, etc., R. Co., 119 Mo. App., 112.</p> <p>4. PARENT AND CHILD. Loss of services. Emancipation. “Complete emancipation.</p> <p>A minor, who had not left the father’s home, but remained as a member of the family, contributed to the family expenses through voluntary gifts to his mother, .but did not pay for meals or lodging as a boarder, and had never been formally set free by his father, was not completely emancipated, so as to bar a suit by the father for loss of his services. (Post, p. 312.)</p> <p>5. PARENT AND CHILD. Lc.js of services. Emancipation.</p> <p>Where the emancipation of a minor is complete, the father’s right to maintain an action for loss of services due to injuries is cut off; the act affecting the entire home-spent period of minority, and being irrevocable at the father’s instance. (Post, p. 312.)</p> <p>Cases cited and. approved: McCarthy v. Boston, etc., R. Co., 148 Mass., 550; Chesapeake, etc., R. Co., v. DeAtley, 151 Ky., 109.</p> <p>6. PARENT AND CHILD. Emancipation. Revocation.</p> <p>The partial emancipation of an infant is revocable by the father. (Post, pp. 312-313.)</p> <p>7. PARENT AND CHILD. Loss of services. Emancipation.</p> <p>A parent can recover for the loss of the child’s services by wrongful act of the child’s employer, although such child has been partially emancipated. (Post, pp. 312-313.)</p> <p>Cases cited and approved: Hopkinson v. Knapp & S. Co., 92 Iowa, 328; Elwood Elec. St. Ry. Co. v. Ross, 26 Ind. App., 258; Texas, etc., R. Co. v. Adkins (Tex. Civ. App.), 126 S. W., 954.</p> <p>8. PARENT AND CHILD. Relations. Rights and duties.</p> <p>The duties and obligations of parent and child are reciprocal; it being the natural and legal duty of the parent to support the child, and by way of return therefor he has also the right to its services during minority. (Post, pp. 313-314.)</p> <p>Case cited and approved: Tennessee Mfg. Co. v. James, 91 Tenn., 154.</p>

<p>FROM KNOX.</p> <p>Appeal from the Circuit Court of Knox County, to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — • Yon A. Hueeakee, Judge.</p>

<p>FROM KNOX.</p> <p>Appeal from the Circuit Court of Knox County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— Yon A Htjffakee, Judge.</p>

<p>FROM HAMBLEN.</p> <p>Appeal from the Chancery Court of Hamblen Connty to the Conrt of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— Hugh G. Kyle, Chancellor.</p>

<p>1. NUISANCE. Abatement. Relator.</p> <p>Pub. Acts 1913 (2d Ex. Sess.) chapter 2, section 2, conferring on certain courts jurisdiction to abate certain public nuisances, on relation of the attorney general, or of any district attorney of the State, or “any city or county attorney” or any ten or more citizens of the county wherein the nuisances may exist, does not necessitate the construction,-without which it will not he given such effect, that any city or county attorney may go out of his local jurisdiction and institute such an action in any other city or county. {Post, pp. 347-348.)</p> <p>2. NUISANCE. Abatement. Relator. Abatement of action.</p> <p>Error in refusing to abate an action to abate a public nuisance</p> <p>■ in the city of P. because the relator was the city attorney, not of P., but of K., is not affected by the fact that P. was subsequently included in K. {Post, p. 348.)</p>

<p>1. ADOPTION. Nature of right.</p> <p>The right of adoption is not a natural right, and was unknown to the common law, and originated in statute. (Post, pp. 352-353.)</p> <p>Cases cited and approved: Hockaday v. Lynn, 200 Mo. 456; Johnson’s Estate, 98 Cal., 531; Butterfield v. Sawyer, 187 Ill., 598; Mar-kover v. Krauss, 132 Ind., 294; Ross v. Ross, 129 Mass., 243.</p> <p>2. ADOPTION. Statutes in derogation of common law. Construction.</p> <p>Thompson’s Shannon’s Code, sections 5409-5411, relating to adoption, are in derogation of the common law, and must he strictly construed. (Post pp. 353-354.)</p> <p>Cases cited and approved: Jessup’s Estate, 81 Cal., 408; Furge-son v. Jones, 17 Or., 204; McCormick’s Estate, 108 Wis-., 234.</p> <p>Code cited and construed: Secs. 5409-5411 (T.-S.).</p> <p>3. ADOPTION. Proceedings. Notice to parents. Statute.</p> <p>Thompson’s Shannon’s Code, sections 5409-5411, relating to adoption, to the petition, decree, and the effect of adoption, hut not providing for notice to the natural parents of the child to be adopted, presumptively, intended that such proceedings should be in accordance with the usual practice of courts of record, . and thereunder notice to such parents is necessary, but, the notice need not necessarily be a formal notice, though some notice and some appearance must be shown. (Post, pp. 353-354.)</p> <p>4. ADOPTION. Notice to natural parents.</p> <p>The adoption statute (Thompson’s Shannon’s Code, sections 5409-5411), to be constitutional, must be construed to authorize the adoption of a child by strangers only in cases where the natural parents consent to the- adoption or where the proof shows that they have abandoned the child, or that it is manifestly to its interest tint it be taken from tlieir custody by some judicial proceeding of which they have notice. (Post, pp. 3.54-355.)</p> <p>5. ADOPTION. Decree. Effect.</p> <p>Adoption in legal contemplation creates the relationship of parent and child between persons where it is not naturally so existing, and severs in many respects the natural relations between the child and its parents. (Post, pp. 354-355.)</p> <p>6. ADOPTION. Right of natural parents.</p> <p>Where the father of an infant child had not abandoned it, and was solicitous for its welfare, and desired its society, care, and custody, and was financially able to provide for it in his station of life, and was morally fit for its custody, and did not consent to its attemped adoption by strangers, and know nothing of proceedings begun for that purpose, and the mother had practically abandoned the child and had consented to its adoption, the father was entitled to its custody. (Post, p. 355-56.)</p>

<p>FROM CAMPBELL.</p> <p>Appeal from tlie Chancery Court of Campbell County. — Hugh' J. Kyle, Judge.</p>

<p>PROM KNOX</p> <p>Appeal from the Chancery Court'of Knox County.— Will D. Weight, Chancellor.</p>

<p>FROM HAMBLEN.</p> <p>Appeal from the Circuit Court of Hamblen County.— W. N. Hickey, Special Judge.</p>

<p>FROM MORGAN.</p> <p>Appeal from the Circuit Court of Morgan County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — -Xen. Hicks, Judge.</p>

<p>FROM HAMILTON.</p> <p>Appeal from tlie Chancery Court of Hamilton County. —W. B. Garvir, Chancellor.</p>

<p>WEAPONS. Carrying weapons. Manner of carrying.</p> <p>It is no defense to prosecution for carrying a pistol that it he an army or navy pistol, if carried concealed, instead of openly in the hand. ,</p> <p>. Cases cited and approved: Wehunt v. State, 136 Tenn., 223; Moore-field v. State, 73 Tenn., 348; Barton v. State, 66 Tenn., 105; Heaton v. State, 130 Tenn., 163.</p>

<p>DAMAGES. Duty to reduce injunction bond.</p> <p>Where one enjoined from fencing a roadway finally prevailed and it appeared that he could have moved his fence hack pending litigation for $75, it was his duty to do so, and he cannot obtain $907 damages on the injunction bond for damages from loss of the use of fields left open, it being his duty to minimize the damages as much as he reasonably could.</p>

<p>1. RELIGIOUS SOCIETIES. Powers. Trustees.</p> <p>Under Thompson’s Shannon’s Code, secs. 2562-2564, as to the acquisition and holding of property by religious societies, such societies have a legal existence and entity, though unincorporated, and are endowed with limited powers to be exercised by the trustees. • (Post, p. 403.)</p> <p>Cases cited and approved: Rhodes v. Rhodes, 88 Tenn.', 687; Nance v. Busby, 91 Tenn., 303.</p> <p>2. RELIGIOUS SOCIETIES. Powers. Trustees.</p> <p>Since every corporation in addition to express powers has such implied powers as are reasonably necessary to accomplish its purpose, and religious associations have an entity similar to corporations, authority conferred on the trustees of a religious society by Thompson’s Shannon’s Code, section 2564, to hold land for purpose of public worship, implies a power to preserve and improve the land. (Post, pp. 403, 404.)</p> <p>Cases cited and approved: Doty v. Telephone & Telegraph Co., 123 Tenn., 329; Turnpike Co. v. Davidson County, 106 Tenn., ■258; Turnpike Co. v. Montgomery County, 100 Tenn., 417; Union Bank v. Jacobs, 25 Tenn., 515.</p> <p>3. RELIGIOUS SOCIETIES. Powers. Trustees.</p> <p>Under such section, it is within the powers of the trustees to execute a note as evidence of the obligation for money borrowed to build a church and bind property of the association for the payment of the note. (Post, p. 404.)-</p> <p>Case cited and approved: Erie First Baptist Church v. Caughey 85 Pa„ 271.</p> <p>4. RELIGIOUS SOCIETIES. Powers. Trustees.</p> <p>Under such statute, in the absence of proof as to the regulations of the church, when it appears that there are trustees, it may be presumed that the trustees acting officially are empowered to make contracts and incur indebtedness for the repair or improvement of the church property. (Post, pp. 404, 405.)</p> <p>Case cited and approved: St. Patrick’s Roman Catholic Church V. Gavalon, 82 Ill., 170.</p> <p>5. BILLS AND NOTES. Liability. Nature of signature.</p> <p>Under Acts 1899, chapter 94, section 20, providing that where the instrument contains, or a person .adds to^ his signature, words indicating that he signs for or on behalf or a principal, or in a representative capacity he is not liable on the instrument if he was duly authorized, but that the mere addition of words describing him as agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability, a note of church trustees disclosing that it was signed by them as such for a debt of the church did not render them personally liable, but the church was liable. (Post, pp. 405,'406.) •</p> <p>Acts’ cited and construed: Acts 1899, ch. 94, sec. 20.</p> <p>Cases cited and approved: Bank v. Looney, 99 Tenn., 278; Boyd v. Johnston, 89 Tenn., 284; East Tenn. Iron Co. v. Gaskell, 70 Tenn., 742.</p> <p>6. RELIGIOUS SOCIETIES. Power to sue and be sued.</p> <p>Since a corporation may sue-and be sued without any authority so conferred in express terms, a religious association endowed by statue with legal existence and vested with certain powers may assert its-rights by suit, and may be sued.' (Post, p. 406.)</p> <p>Case cited and distinguished: Jonesboro v. McKee, 10 Tenn., 167.</p> <p>7. EQUITY. Final decree. Condition of cause.</p> <p>In suit against the church and its trustees on a note given by the trustees for money borrowed to build a church, where mortgagees of the property were named as parties to the amended bill, but not served, and they filed no pleadings, and pro confessos were not taken against them, although the amended bill averred that the mortgages toad been satisfied, no final decree could be passed. (Post, pp. 406, 407.)</p> <p>Case cited and approved: King v. Patterson, 129 Tenn., 1.</p>

<p>FROM KNOX.</p> <p>Appeal from the Circuit Court' of Knox County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Yon A. Huffaker, Judge.</p>

<p>PROM HAMBLEN.</p> <p>Appeal from the Chancery Court of Hamhlen County. — H. Gr. Kyle, Chancellor.</p>

<p>JUSTICES OF THE PEAC’E. Appeal to circuit court. Amendment of appeal bond. Statute.</p> <p>Shannon’s Code, section 4595, provides tbatin appeals from justices of the peace the circuit court shall supply any defect in the proceedings of the inferior jurisdiction. Section 5989 provides that no civil case originating before a justice shall be dismissed on appeal for informality, and the court shall allow all amendments in the form of action, etc. necessary. Section 4583 provides that no summons, writ, pleading, etc. or other proceeding in any civil action in any court shall be abated or quashed for any defect or imperfection. Section 4871 provides for an appeal from the judgment of a justice within two days to the next circuit court, and section 4872 provides that before the appeal is granted appellant shall give bond. Held, that a circuit judge on appeal shall from a judgment of a justice may allow amendment of an appeal bond not complying with the statute, or permit the .substitution of a new one.</p> <p>Cases cited and approved: Gilbert v. Driver, 40 Tenn., 463; Park v. Bybee, 60 Tenn., 267; Howard v. Long, 71 Tenn., 207; Staub ' v. Williams, 69 Tenn., 36; Wilson v. Corry, 69 Tenn., 391; Croft v. Bailey, 69 Tenn., 369; Riailroad v. Hinds, 134 Tenn., 345; Jones v. Ducktown Co., 109 Tenn., 382; Catlett v. Brodie, 9 Wheat (22 U. S.) 555.</p>

<p>1. APPEAL AND ERROR. Supreme court. Jurisdictional amount,</p> <p>The supreme court has no jurisdiction of appeal from a decree overruling exceptions of creditors of a coal mining company in the hands of a receiver for winding up to preferential allowances of certain sums as laborer’s claims and receiver’s compensation and expenses; no one claim amounting to as much as $lj000. (Post, pp. 435, 436.)</p> <p>Case cited and approved: Linger v. Linger, 122 Tenn., 671.</p> <p>2. APPEAL AND ERROR. Supreme court. Recovery of money judgment sought or resisted merely as incident.</p> <p>Wher the recovery of a money judgment is resisted merely as an incident to other matters involved, as where, in proceedings to wind up an insolent company, certain creditors seek by their appeal to postpone all other claims to their own, the entire assets being insufficient to pay their claim for royalties and rentals, the supreme court does not acquire jurisdiction. (Post, p. 436.) •</p> <p>Cases cited and approved: Burns v. City of Nashville, 132 Tenn., 429; Morris v. Railroad, 124 Tenn., 524; Chattanooga v. Railroad, 123 Tenn., 497.</p>

<p>FROM SULLIVAN.</p> <p>Error to the Chancery Court of Sullivan County.— Hal IT. Haynes, Chancellor.</p>

<p>1. COUNTIES. Bond issue. Election. Right of suffrage.</p> <p>Constitution article 1, sec. 5, providing that right of suffrage, “as hereinafter declared,” shall never he denied any person, except on conviction, applies only to the class of elections enumerated in article 4, section 1, providing that every male of certain qualifications may vote for members of the general assembly, legislature and other civil officers for the county or district in which he resides, and not to an election to determine whether a county shall issue bonds for highways. (Post, pp. 445, 446.)</p> <p>Constitution cited and construed: Art. X, sec. 5; Art. 4, sec. 1.</p> <p>2. COUNTIES. Bond Issue. Election. Suffrage.</p> <p>The General Assembly under Constitution article 2, sec. 29, empowering it to authorize counties and incorporated towns to impose taxes for county and corporation purposes, having power to authorize a county to issue bonds for highways, without an election on the question of issuance, Priv. Acts 1917, chapter 100, authorizing such an issuance on the vote of a class hav- • ing a property interest involved in the result of the election, violates no legal or constitutional right of any one having no such property interest. (Post, pp. 446-448.)</p> <p>Acts cited and construed: Acts 1917, ch. 100.</p> <p>Constitution cited and construed: Art. 2, sec. 29.</p> <p>3. TAXATION. Uniformity and equality. Highways. Counties and cities.</p> <p>Priv. Acts 1917, chapter 100, section 5, excepting from taxation for payment of bonds to be issued by a county for macadamizing and grading existing roads, property in incorporated municipalities where a street tax is levied and collected for maintaining their streets, being regarded, as it must, as an effort of the general assembly in the exercise of its discretion, under Constitution article 2, section 29, empowering it to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes respectively, in such manner as shall he prescribed by law — to equalize burdens between the county and municipal entities in the construction and maintenance of a single system of highways — does not contravene Constitution aiticle 2, section 28, requiring taxes to be equal and uniform. (Post, pp. 448-452.)</p> <p>Acts cited and construed: Acts 1907, ch. 100, sec. 5.</p> <p>Cases cited and approved: King v. Sullivan County, 128 Tenn., 393; Raulston et al. v. Marion County et al., 133 Tenn., 433; Smith et al. v. Carter et al., 131 Tenn., 1; Ferguson v. Tyler, 134 Tenn., 25.</p> <p>Case cited and distinguished: Patterson v. Washington County, 136 Tenn., 60.</p> <p>Constitution cited and construed: Art. 2, sec. 28.</p>

<p>1. INDICTMENT AND INFORMATION. Duplicity. Gaming.’</p> <p>Under Thomp. Shan. Code, section 6807, providing that any person who shall, keep a room, hall, or house for the purpose of encouraging or promoting, aiding or assisting, the playing of any game of keno, craps, etc., shall be deemed guilty, an indictment charging that defendant did keep “a room, hall or house” tor promoting a gambling game named, was not void for duplicity as it did not state that the defendant kept more than one place. {Post, p. 456.)</p> <p>Codes cited and construed: Sec. 6807 (T. S.) Sec. 6805 (S.).</p> <p>2. INDICTMENT AND INFORMATION. Charging two crimes. Surplusage.</p> <p>As that part of the indictment under Thomp. Shan. Code, section 6807, charging that defendant then and there, and the said room or hall then and there being under his custody and control, did encourage or promote, aid or assist, in the playing of the said gambling game, did not charge a crime under section 6805, providing that if any person encourages or promotes, etc., the playing at any game or the making of any bet of wager, for money or other valuable thing, he shall be guilty, etc., because not alleging that the game was played for money, etc., it will be regarded as surplusage, and the indictment held sufficient under the former section. (Post, pp. 456, 457.)</p>

<p>FROM SHELBY.</p> <p>Appeal from .the Chancery Court of Shelby County. —Fbanois Fentbess, Chancellor.</p>

<p>FROM SHELBY.</p> <p>Appeal from the Chancery Court of Shelby' County. —Frawcis Fbutbess, Chancellor.</p>

<p>1. TRIAL. Motion for peremptory instructions. Evidence.</p> <p>In considering defendant’s motion, for peremptory instructions, that view of the evidence most favorable to plaintiff’s case must he taken by the court, and, if there is any doubt as to the conclusion to be drawn ■ from the whole evidence, the motion must be denied. (Post, p. 479.)</p> <p>Cases cited and approved: Kinney v. Railroad, 116 Tenn., 451; Norman v. Railroad, 119 Tenn., 401; Walton v. Burchel, 121 Tenn., 715.</p> <p>Cases cited and distinguished: Wagner v. Woolsey, Adm’x, 48 Tenn., 235; McCahill v. N. Y. Transportation Co., 201 N. Y., 221; Campbell v. Los Angeles Traction Co., 137 Cal., 565.</p> <p>2. DEATH. Death by wrongful act. Proximate cause. Statute.</p> <p>Where the driver of a wagon, one of whose wheels struck a hole in the street, was pitched out onto the street and sustained personal injuries giving him kidney trouble, which so weakened liis system that some months after he contracted idiopathic pneumonia and died therefrom, the case did not come within Shannon’s Code, section 4025, providing that a right of action which a person whose death is caused by the wrongful act or omission of another would have had against the wrongdoer if death had not ensued shall not abate or be extinguished by his death, since the wrongful act of the city in leaving the hole in' the street was not the proximate cause of the death. {Post, pp. 480-491.)</p> <p>Code cited and construed: Sec. 4025 (S.).</p> <p>3. DEATH. Proximate cause.</p> <p>Where a person has received an injury, and many months later dies of a germ disease in no wise connected with such injury, a cause of action does not arise against the wrongdoer on the theory that by reason of the injuries the viotim’s constitution became weakened and an easy prey for disease. {Post, pp. 480-491.)</p> <p>4. DEATH. Death by wrongful act. Proximate cause.</p> <p>The damages to be recovered under the wrongful death statute (Shannon’s Code, section 4025), must be the natural and proximate consequences of the act complained of. {Post, p. 437.)</p> <p>Cases cited and distinguished: Daniels v. N. Y., N. H. & H. R. R. Co., 183 Mass., 393; Rettig v. Fifth Avenue Transportation Co., 6 Mise. Rep. 328.</p> <p>Cases cited and approved: Thompson v. Railroad Co., 91 Ala., 496; Santer v. Railroad Co., 66 N. Y., 50; Randall v. New Orleans, etc., R. R. Co., 45 La. Ann., 778.</p> <p>5. DEATH. Death by wrongful act. Contributing cause. Statute.</p> <p>Under Shannon’s Code, section 4025, providing that a right of action which a person whose death is caused by the wrongful act or omission of another would have had against the wrongdoer shall not abate or be extinguished by his death, where the driver of a wagon was injured by being thrown to the street when one wheel dropped into a hole in the street, and his injuries initiated kidney disease, which so weakened kirn that some months thereafter he contracted idiopathic pneumonia and died, his wife could not recover against the city on the ground that the injuries, hy weakening his constitution, contributed to his death. (Post, pp. 480-491.)</p> <p>Case cited and approved: McDonald v. Nashville, 114 Tenn., 540</p> <p>Case cited and distinguished: Chase v. Nelson, 39 Ill. App., 53</p>

<p>FROM WHITE.</p> <p>Appeal from the Circuit Court of White County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court — C. E. Snodgkass, Judge.-</p>

<p>FROM YAN BUREN.</p> <p>Appeal from the Chancery Court of Van Burén County. — W. B. Garvin, Chancellor, sitting by interchange.</p>

<p>FROM HAMILTON</p> <p>Appeal from the Chancery Court of Hamilton County to the Court of Civil Appeals, and hy certiorari to the Court of Civil Appeals from the Supreme Court.— W. G. M. Thomas, Special Chancellor.</p>

<p>FROM WASHINGTON</p> <p>Error to Law Court of Washington County. — Dana Harmon, Judge.</p>

<p>FROM CAMPBELL</p> <p>Appeal from the Chancery Court of Campbell County. —Hugh G. Kyle, Chancellor.</p>

<p>FROM KNOX</p> <p>Appeal from tbe Chancery Court of Knox County. — ■ Will D. Wright, Chancellor.</p>

<p>1. RAILROADS. Actions for injuries. Pleading.</p> <p>In an action against a terminal railway company for injuries, a declaration alleging that defendant unlawfully, wrongfully, and negligently ran one óf its engines into and against plaintiff, injuring him as therein set forth, was drawn under the statute and invoked the application of the precautions prescribed by statute for the prevention of accidents on railroads. (Post, pp. 576-578.)</p> <p>Cases cited and approved: Railroad v. Binkley, 127 Tenn., 77; Chattanooga Rapid Transit Co. v. Walton, 105 Tenn., 415; Railroad v. Davis, 104 Tenn., 444; Bast Tennessee, etc., R. Co. v. Pratt, 85 Tenn., 9; Middle Tennessee R. R. v. McMillan, 134 Tenn., 490; Whittaker v. Railroad, 132 Tenn., 576; Railroad Co. v. Robertson, 56 Tenn., 276; Haley v. M. & O. R. R. Co., 66 Tenn., 239; Taylor v. Railroad Co., 93 Tenn., 305; Railroad Co. v. Pugh, 95 Tenn., 419; Railroad v. Martin, 113 Tenn., 286; Todd v. Railroad, 135 Tenn., 92; King v. Railroad, 129 Tenn., 44; Railroad Co. v. Dies, 98 Tenn., 655; Railroad Co. v. Wilson, 90 Tenn., 271.</p> <p>2. RAILROADS. Actions for injuries. Burden of proof.</p> <p>Where plaintiff in an action against a railroad company for injuries invoked the application of the statutory precautions for the prevention of accidents, defendant was bound to prove a strict compliance with the statutory precautions. (Post, pp. 576-578.)</p> <p>3. RAILROADS. Injuries to persons on track. Precaution against injury. “Switching operation.”</p> <p>Where a terminal railway company nightly moved a sleeping car from the station of the N. Railway to its own station, where it was picked up by another company, and for such purpose ran its engine about half a mile on its own track to the junction of its track with that of the N. Company and then backed down the N. Company’s track about a mile and a half to that company’s station, and while so backing within the station limits of the N. Company ran into plaintiff, it was engaged in a “switching operation,” even though the N. Company was not accustomed to use the tracks in question at that point lor switching purposes and the precautions prescribed by statute for the prevention of accidents did not apply. {Post, pp. 576-578.)</p> <p>4. RAILROADS. Injuries to persons on track. “Trespasser.”</p> <p>An employee of a railway company, engaged in inspecting the cars of his employer to discover whether any of them had been broken into or any seals on the doors tainpered with and directed by his employer to also examine cars on the tracks of another company when observed on their way over such tracks to his employer’s tracks, but not authorized by the other company to go on its tracks for such purpose, was a “trespasser” on .such tracks. {Post, pp. 578, 579.)</p> <p>Cases cited and approved: Railroad Co. v. Holland, 117 Tenn., 257; Railroad v. Finley, 122 Tenn., 134; Cox v. Railroad, 1 Shan. Cas., 475; Todd v. Railroad, 135 Tenn., 100; Railroad v. Fair, 80 Tenn., 35.</p> <p>5. RAILROADS. Injuries to persons on tracks. Liability to trespassers.</p> <p>That a person injured in the yards of a railroad company, where the company is. engaged in switching, is a trespasser on the track, will not prevent a recovery; the rule as to trespassers in such case being the same as the rule respecting employees of the company. {Post, pp. 578, 579.)</p> <p>6. RAILROADS. Injuries to persons- on track. Precautions against injury.</p> <p>By the common law it is the duty of a railway company’s employees on an engine to keep a lookout ahead, and have reasonable appliances including a headlight of reasonable efficiency, and on the appearance of any obstruction on the track to use their utmost endeavor to prevent a collision, and also to see what could be seen by a person of good eyesight with the aid of a proper headlight or a proper light on the back of the engine when running backwards. (Post, pp. 579-581.)</p> <p>Cases cited and approved: Horne v. Railroad, 41 Tenn., 72; Railroad v. Humphreys, 80 Tenn., 200; Railroad v. Flemming, 82 Tenn., 139; Railroad v. Pratt, 85 Tenn., 9; Railroad v. Seaborn, 86 Tenn., 397; Railroad v. Scott, 87 Tenn., 499; Patton v. Railroad Co.„ 89 Tenn., 370; Katzenberger v. Lawo, 90 Tenn., 237; Railroad v. Wilson, 90 Tenn., Cotton Oil Co. v. Shamblin, 101 Tenn., 271; Rapid Transit Co. v. Walton, 105 Tenn., 422; Railroad v. Crews, 118 Tenn., 52;. Whittaker v. Railroad, 132 Tenn., 580; . Todd v. Railways Co., 135 Tenn., 92; Railroad Co. v. Parks, 136 Tenn.,, 367.</p> <p>7. RAILROADS. Injuries to person on track. Contributory-negligence.</p> <p>A railway employee on the tracks of another company where switching was done and cars were being constantly transferred to other roads was bound to constantly look and listen to avoid the danger of a collision, especially at night, and where he did not look and listen he was guilty of contributory negligence. (Post, pp. 579-581.)</p> <p>8. NEGLIGENCE. Railroads. Injury on track. Contributory negligence. Effect.</p> <p>Where the statute prescribing precautions that railway companies shall use to prevent collisions applies to an injury on the track, the contributory negligence of the injured person can only be taken in mitigation of damages; but, where the rights of the parties are to be settled by the co.mmon law, such negligence, contributing proximately to the injury either alone or in conjunction with that of the railroad company, defeats a recovery. (Post, pp. 579-581.)</p> <p>9. RAILROADS. Injury on track. Contributory negligence. Effect.</p> <p>Where the negligence of a railway company was the proximate cause of an injury to a person on the track, and that of the injured person on the track, and that of the injured person contributed only remotely, then such contributory negligence can be used only in mitigation of damages; but, if the negligence of the injured party was gross, the rule is otherwise, though in the absence of such degree of negligence the negligence of the railway company would be treated as the proximate cause. (Post, pp. 579-581.)</p> <p>10. RAILROADS. Injury on track. .Contributory negligence. Effect. “Gross Negligence.”</p> <p>The negligence of a person on a railroad track within station ' limits on a very dark night in failing to look or listen was “gross negligence,” preventing a recovery. (Post, pp. 581, 582.)</p> <p>11. RAILROADS. Operation. Rate of speed.</p> <p>A city ordinance, providing'that any engineer or.other person in in charge of an engine who should run it at a greater rate of speed than those therein specified should on conviction De fined, applied to the railway company itself as well as engineers. (Post, pp. 582, 583.)</p> <p>Cases cited and approved: Railroad Co. v. Haynes, 112 Tenn., 712; Grube v. Missouri Pacific R. Co., 98 Mo., 330.</p> <p>12. RAILROADS. Operation. Rate of speed.</p> <p>A city ordinance prescribing a rate of speed for railway engines of six miles.an hour, but providing that from and southeast of K. street trains and cars might be run at a rate of speed not exceeding thirteen miles an hour, applied to railroad tracks lying immediately southeast of K. strc where the duties of railroad employees required them to go, and was not limited in its operation to public streets and public places. (Post, pp. 582, 583.)</p> <p>13. APPEAL AND ERROR. Review. Presumptions. Peremptory instruction.</p> <p>Where, in an action for injuries to a person on a railway track, there was conflicting evidence as to an alleged violation of a spee ordinance, the supreme court must hold that the ordinance was violated in determining whether a motion for a peremptory instruction should have been granted. (Post, pp. 583, 584.)</p> <p>Cases cited and approved: Queen v. Dayton Coal & Iron Co., 95 Tenn., 458; Rider v. Grimm Bros., 97 Tenn., 220; Wise & Co. v. Morgan, 101 Tenn., 273; Rhea County v. Sneed, 105 Tenn., 581 Iron & Wire Co. v. Green, 108 Tenn., 161; Railway Co. v. Haynes, 112 Tenn., 712; Railroad v. Martin, 113 Tenn., 266; Adams v. Iron Co., 117 Tenn., 470; Schmalzried v. White, 97 Tenn., 36; Weeks v. McNulty, 101 Tenn., 495.</p> <p>14. RAILROADS. Injuries to person on track. Rate of speed. “Negligence per se.”</p> <p>The running of a railway engine at a rate of speed in excess of that permitted by an ordinance was “negligence per se.” (Post, pp. 583, 584.)</p> <p>15. RAILROADS. Injuries to persons on track. Contributory negligencce.</p> <p>Contributory negligence has the same effect to defeat an action for injuries in the case of a violation of a speed ordinance in the operation of a railway engine as in the case of a failure to perform the common-law duty of keeping a lookout and using endeavors to prevent a collision after the discovery of an obstruction on the track. (Post, pp. 583-584.)</p> <p>16. APPEAL AND ERROR. Review. Matters not passed on below.</p> <p>In an action for injuries sustained on a railroad track, where the trial court ruled that the statutory precautions did not apply and withdrew that question from the jury but submitted the case on the common law and on a city speed ordinance, and the jury returned a verdict for plaintiff, the court of civil appeals, on reaching the conclusion that the statutory precautions did apply and that plaintiff’s contributory, negligence therefor was not a bar, could not determine the question withdrawn from the jury as to whether the statutory precautions had been coniplied with, the evidence being conflicting, and affirm the judgment so far as it fixed defendant’s liability reversing it only for a new assessment of damages, hut could only pass on the question of the statutory precautions in reviewing the overruling of a motion for peremptory instructions or the withdrawal of such question from the jury, since, while a jud_ -ent may he affirmed in part and reversed in part, the court of civil appeals did not affirm any part of the action of the trial judge nor of the judgment based on the jury’s verdict. {Post, pp. 584-588.)</p> <p>Case cited and approved: Perkins v. Brown, 132 Tenn., 294.</p>

<p>FROM HAMILTON</p> <p>Appeal from the Chancery Court of Hamilton County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals, from the Supreme Court. —W. B. Garvin, Chancellor.</p>

<p>FROM SHELBY</p> <p>Appeal from the Chancery Court of Shelby County to the Court of Civil Appeals, and by certiorari to the. Court of Civil Appeals from the Supreme Court. — F. H. Heiskell and Feast oís Fentress, Chancellors.</p>

<p>FROM KNOX..</p> <p>Error to the Chancery Conrt of Knox County. — R. H. Sahsom; Special Chancellor.</p>

<p>1. CHARITIES. Liability for negligence. Negligence in operation . of elevator in income. Producing office building.</p> <p>To the extent of income derived from its office building, operated largely for profit and separately from the rest of its. educational plant, though occupied in part by its law school and library, Vanderbilt University was liable to the widow of a lawyer, tenant in the building, for his ° death in an elevator accident due to negligence, though the university was a charity, and the general rule is that charitable trust funds are not to be depleted by subjection to liability for negligence. (Post, pp. 623-634.). ' ' •</p> <p>Cases cited and approved: Abston v. Waldon Academy, 118 Tenn, 24; Powers v. Massachusetts Homeopathic Hospital, 47 C. C. A., 122; Bruce v. Central M. E. Church, 147 Mich., 230; Hordern v. Salvation Army, 199 N. Y. 233; Basabo v. Salvation Army, 35 R. I., 22; Fire Insurance Patrol v. Boyd, 120 Pa., 624; For-dyee v. Woman’s Christian National Library Association, 79 _ Ark., 550; Whittaker v. St. Luke’s Hospital, 137 Mo. App., 116; Perry v. House of Refuge, 63 Md., 20; Hearns v. Waterbury Hospital, 66 Conn., 98; Duncan v. Nebraska Sanitarium, etc., Ass’n, 92 Neb. 162; McDonald v. Massachusetts General Hospital, 120 Mass., 432; Thornton v. Franklin Square House, 200 Mass., 465; Parks v. Northwestern University, 218 Ill., 381; Taylor v. Protestant Hospital Ass’n, 85 Ohio St., 90; Adams v. University Hospital, 122 Mo. App., 675; Gable v. Sisters of St. Francis, 227 Pa., 254; Jensen v. Maine Eye & Ear Infirmary. 107 Me., 408; Lindler v. Columbia Hospital, 98 S. C., 25; Vermillion v. Woman’s College of Due West, 104 S. C., 197; Far-rigan v. Pevear, 193 Mass., 147; Heriot’s Hospital v. Ross, 12 Clark & Finnelly, 507; Bennett v. Wyndham, 4 De G., F. & J., 258 Vanderbilt University v. Cheney, 116.Tenn., 259; Holden v. Massachusetts Horticultural Society, 211 Mass-, 370; Mc-Inerny v. St. Luke’s Hospital' Ass’n, 122 Minn., 10.</p> <p>Cases cited and distinguished: Winnemore v. Philadelphia, 18 Pa. Super. Ct., 625; Fordyce v. Woman’s Christian National Library Ass’n, 79 Ark., 550.</p> <p>2. CHARITIES. Liability of agents for negligence to third person. “Misfeasance.”</p> <p>The executive committee of Vanderbilt University, its intermediate agents, charged with the supervision and operation of its office building, including the passenger elevator, were liable to the widow of a tenant in the building killed in an "elevator accident, the committée having permitted the use of the elevator in a defective condition with knowledge, since, when an agent undertakes the performance of his agency, he is liable to third persons for negligence therein, that is, for nonfeasance an agent is responsible to his principal only, but for misfeasance may be responsible to third persons; “misfeasance” being a failure to use, in the performance of a duty owng to an individual, that degree of care, skill, and diligence which the circumstances reasonably demand. (Post, pp. 634-639.).</p> <p>Cases cited and approved: State v. McClellan, 113 Tenn-, 616; Osborne v. Morgan, 130 Mass., 103; Hagerty v. Ore Co., 38 Mont., 69; Consolidated Gas Co. of Baltimore City v. Connor, 114 Md., 140; Mayor v. Thompson-Hutchison Building Co., 104 Ala. 611; Wines v. Crosby, Ann. Cas. 1913D, 1055. Tippecanoe L. & T. Co. v. Jester, 180 Ind-, 357; Nunnelly v. Iron Co., 94 Tenn., 397; Drake v. Hagan, 108 Tenn., 265; Lumber Co. v. Sessler, 128 Tenn., 665.</p>

<p>FROM DAVIDSON</p> <p>Appeal from the Circuit Court of Davidson County. —M. H. Meeks, Judge.</p>

<p>FROM DAVIDSON</p> <p>Error to the Circuit Court of Davidson County.— Thos. E. Matthb-ws, Judge.</p>

<p>FROM DAVIDSON</p> <p>Appeal from the Chancery Court of Davidson County to the Court of Civil Appeals, and by certio-rari to the Court of Civil Appeals, from the Supreme Court. — John Allison, Chancellor.</p>

<p>1. ATTORNEY AND CLIENT. Admission to practice. Character.</p> <p>A man of mature years and of good general reputation, who, as found hy the State hoard of law examiners, has failed to conceive the nature of the duties of an attorney, and has proper conception of the ethics of the profession, having solicited business for a member of the bar, and, on being remonstrated with by other lawyers, devised a form of power of attorney whereby the prospective litigant employed him as attorney in fact and-agreed to pay fifty pe_ cent, of whatever amount should be realized, should not be admitted to practice law. (Post, pp. 665-668.)</p> <p>Acts cited and construed: Acts 1903, ch. 247.</p> <p>Cases cited and approved: In re Bowers, lS^ Tenn., 189; In-gersoll v. Coal Co., 117 Tenn., ^63.</p> <p>2. ATTORNEY AND CLIENT. Admission to practice. Board of examiners. Review. „</p> <p>Under Acts 1903, chapter 247, sectio'ns 2 and 3 creating the board of law examiners and defining its duties, when the board of examiners refuses to make a certificate to an applicant, or certifies that he is an unfit person to -be admitted to practice, that ends the matter, in the absence of allegation and proof of fraud, corruption, or oppression on the part of the board, and the supreme court cannot revise its action. (Post, pp. 668, 669.)</p>

<p>FROM WARREN.</p> <p>Appeal from the Circuit Court of Warren County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals' from the Supreme Court. —Ewin L. Davis, Judge.</p>

<p>ABATEMENT AND REVIVAL. Ouster of official. Death pending appeal.</p> <p>Where the court decreed in favor of an official in a proceeding under the Ouster Law (Thomp. Shan. Code, section 1166a37 et seq.), and the officer died pending the appeal, and there was no suspension from office, and the proceeding concerned nothing hut the qualification of the deceased, the supreme court must allow a motion of the personal representatives for an order to abate the cause.</p> <p>Cases cited and approved: Posey v. Posey, 113 Tenn., 588; Mc-Bee v. McBee, 48 Tenn., 558; Gantt v. Brown, 244 Mo., 271; People v. Kemppainen, 163 Mich., 186; State v. Gower, 73 Neb., 304; Carney v. Carney, 137 Tenn.,-.</p> <p>Code cited and construed: Sec. 1166a37 (T.-S.).</p>

<p>MECHANICS’ LIENS. Laborers, Right to lien.</p> <p>Under Thompson’s" Shannon’s Code, section 3-540, providing for a lien in favor of journeymen or other persons employed by • the principal or original .contractor, one who merely supervised the work of laborers for the contractor is not entitled to a lien on the premises.</p> <p>Case cited and approved: McDonald v. Railroad, 93 Tenn., 281. Code cited and construed: Sec. 3540 (T.-S.).</p> <p>Case cited and distinguished: Thompson v. Baxter, 92 Tenn., 305.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from tlie Chancery Court of Davidson County to the Conrt of' Civil Appeals and by certiorari to the Conrt of Civil Appeals from the Supreme Conrt. — Jos. R. West, Special Chancellor.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from the Chancery Court of Davidson Connty. — Jas. B. Newman, Chancellor.</p>

<p>PROM DAVIDSON.</p> <p>Appeal from tlie Chancery Conrt of Davidson Connty to the Conrt of Civil Appeals, and.by certiora-ri to the Conrt of Civil Appeals from the Supreme Conrt — Jas. B. Newman, Chancellor.</p>

<p>FROM DAVIDSON.</p> <p>Appeal from the Circuit Court- of Davidson County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. —Thos. E. Matthews, Judge.</p>